1729844 (Refugee) - [2022] AATA 4120

1729844 (Refugee) [2022] AATA 4120 (22 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1729844
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:James Lambie
DATE:22 August 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 August 2022 at 10:18am
CATCHWORDS
REFUGEE – Protection visa – Malaysia – homosexuality – no real chance that the applicant will suffer persecution as a consequence of his sexuality –delay in lodging the visa application –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2, cl 866.211
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Nagalingam v MILGEA (1992) 38 FCR 191
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 20 June 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1729844 (Refugee)

Details

AGLC: 1729844 (Refugee) [2022] AATA 4120
Case: [2022] AATA 4120
Decision Date: 22 August 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of a Malaysian national seeking a protection visa in Australia. The applicant, who had remained in Australia since February 2016, claimed to be gay and feared persecution in Malaysia due to its application of Islamic law, which he asserted criminalised homosexuality. He contended that if returned, he faced execution, rejection by his family and friends, and an inability to relocate within Malaysia due to the uniform application of these laws. The Tribunal was required to determine whether the applicant met the criteria for a protection visa, either as a refugee or through complementary protection.

The central legal issues before the Tribunal were whether the applicant possessed a well-founded fear of persecution in Malaysia for reasons of his sexuality, and if not, whether there were substantial grounds to believe he faced a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. This involved assessing the credibility of the applicant's claims, the nature of Malaysian law and its enforcement concerning homosexuality, and the availability of effective protection within Malaysia. The Tribunal also considered the applicant's delay in lodging his protection visa application and any potential credibility concerns arising from this.

The Tribunal found that the applicant did not satisfy the criteria for a protection visa. While acknowledging the applicant's claims regarding the legal framework in Malaysia, the Tribunal was not satisfied that there was a real chance he would suffer persecution or significant harm as a consequence of his sexuality. The decision was affirmed, meaning the applicant was not granted a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background: The applicant is a [age]-year-old national of Malaysia. The applicant first arrived in Australia on [date] February 2016 pursuant to a visitor visa. He has remained onshore since. The applicant was an unlawful non-citizen from [date] August 2016 when his Bridging Visa A expired to 20 June 2017 when he was granted a Bridging Visa C in connection with his protection visa application, which was lodged on the same date. The applicant’s protection visa application was refused by a delegate of the Minister for Home Affairs in a decision made on 14 November 2017. The applicant applied for merits review of the delegate’s decision on 27 November 2017.Claims: The applicant’s claims are summarised in his protection visa application form and the delegate’s decision. The applicant claims he is gay. He claims Malaysia is a Muslim country which applies Muslim and Islamic laws, and therefore he would be punished if he was found to be gay. He claims homosexuality is seen as a crime and a sin in Malaysia. The applicant claims he will be punished by being “executed and rejected” from the country if he returns to Malaysia. He further claims his family will not accept him as a member of the family and his friends will avoid him due to his homosexuality. The applicant claims he did not try to relocate to another part of Malaysia, because every state applies the same Islamic law and rules in relation to the LGBTI community. The applicant claims Malaysian authorities would be unable to protect him if he returns, because Malaysia is a Muslim country. Evidence: The Tribunal has before it a range of material, including, relevantly: (a)the applicant’s protection visa application form, which was lodged on 20 June 2017;(b)the applicant’s identity documents provided to the Department, being his passport, Malaysian national identity card and Malaysian driver licence; (c)the protection visa decision record dated 14 November 2017 (delegate’s decision); (d)the application for review form, which was lodged on 27 November 2017;(e)Department file [concerning] the applicant’s protection visa application;(f)Pre-hearing submissions received on 25 November 2021, comprising the applicant’s undated statement, screenshots of an “[Website 1]” account, screenshots of a “[Website 2]” account, screenshots of text messages, bank statements, a picture of his [debit] [card], and untranslated screenshots of media reports in Bahasa Malaysia. (g)Post-hearing submissions received from the applicant, including copies of screenshots from his social media and other internet accounts; and (h)country information on Malaysia, referred to below. Country of reference / receiving country: The applicant claims to be a citizen of Malaysia. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Malaysia is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

Evidence

Evidence Before The Court

The applicant claims Malaysian authorities would be unable to protect him if he returns, because Malaysia is a Muslim country. Evidence: The Tribunal has before it a range of material, including, relevantly: (a)the applicant’s protection visa application form, which was lodged on 20 June 2017;(b)the applicant’s identity documents provided to the Department, being his passport, Malaysian national identity card and Malaysian driver licence; (c)the protection visa decision record dated 14 November 2017 (delegate’s decision); (d)the application for review form, which was lodged on 27 November 2017;(e)Department file [concerning] the applicant’s protection visa application;(f)Pre-hearing submissions received on 25 November 2021, comprising the applicant’s undated statement, screenshots of an “[Website 1]” account, screenshots of a “[Website 2]” account, screenshots of text messages, bank statements, a picture of his [debit] [card], and untranslated screenshots of media reports in Bahasa Malaysia. (g)Post-hearing submissions received from the applicant, including copies of screenshots from his social media and other internet accounts; and (h)country information on Malaysia, referred to below. Country of reference / receiving country: The applicant claims to be a citizen of Malaysia. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Malaysia is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act. Hearing: The applicant appeared before the Tribunal on 2 December 2021 to give evidence and present arguments at an in-person hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection. The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Malaysia. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Malaysia. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Malaysia.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).decision The Tribunal affirms the decision not to grant the applicant a protection visa.James LambieSenior MemberAttachment - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF Claims and evidence The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background: The applicant is a [age]-year-old national of Malaysia. The applicant first arrived in Australia on [date] February 2016 pursuant to a visitor visa. He has remained onshore since. The applicant was an unlawful non-citizen from [date] August 2016 when his Bridging Visa A expired to 20 June 2017 when he was granted a Bridging Visa C in connection with his protection visa application, which was lodged on the same date. The applicant’s protection visa application was refused by a delegate of the Minister for Home Affairs in a decision made on 14 November 2017. The applicant applied for merits review of the delegate’s decision on 27 November 2017.Claims: The applicant’s claims are summarised in his protection visa application form and the delegate’s decision. The applicant claims he is gay. He claims Malaysia is a Muslim country which applies Muslim and Islamic laws, and therefore he would be punished if he was found to be gay. He claims homosexuality is seen as a crime and a sin in Malaysia. The applicant claims he will be punished by being “executed and rejected” from the country if he returns to Malaysia. He further claims his family will not accept him as a member of the family and his friends will avoid him due to his homosexuality. The applicant claims he did not try to relocate to another part of Malaysia, because every state applies the same Islamic law and rules in relation to the LGBTI community. The applicant claims Malaysian authorities would be unable to protect him if he returns, because Malaysia is a Muslim country. Evidence: