1805682 (Refugee)

[2024] AATA 908

1805682 (Refugee) [2024] AATA 908 (22 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1805682

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Andrew Verduci

DATE:22 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 January 2024 at 12:40pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – gay or homosexual man – attended party hosted by an LGBT group – non-appearance before the Tribunal – application dismissed – request for reinstatement granted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 426A, 441A
Migration Regulations 1994 (Cth), Schedule 2

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

1. The applicant is a citizen of Malaysia who arrived in Australia [in] April 2017 as the holder of an electronic travel authority. He lodged an application for a protection visa on 20 January 2018 which was refused by a delegate of the Minister for Home Affairs on 20 February 2018 under s 65 of the Migration Act 1958 (Cth) (the Act). For the following reasons, I have concluded that the decision under review should be affirmed.

   Protection visa application

2. The applicant’s claim for protection, as contained in his visa application, can be summarised as:

   ·He was accused of being involved in LGBT activities. He was arrested at a party hosted by a LGBT group and jailed for seven days before being bailed by his family.

   ·His case was widely reported so his family and friends started to ignore him.

   ·He was forced to leave Malaysia because he was not accepted. If he returns, he will be arrested because he fled his trial, may spend years in prison and may be barred from leaving the country for a certain period.

   ·The Royal Malaysian Police and National Islamic Council were hunting him and he will not get any protection from the authorities.

   ·He would be unable to relocate because he has lost the trust of his relatives and friends.

   Delegate’s decision

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy ss 5J and 36(2) of the Act.

   Application for review

4. The applicant applied for review of the delegate’s decision on 4 March 2018. His application was accompanied by a copy of the delegate’s decision but no other supporting material was given.

5. On 4 October 2023, the Tribunal emailed the applicant advising that his application was being prepared to be given to a Tribunal Member. He was invited to complete a pre-hearing information form and return it to the Tribunal within 7 days. He replied by return email on 12 October 2023 stating that he had just received the email but did not give any other information or return a completed form.

6. The applicant emailed the Tribunal again on 22 October 2023 asking for a month to look for a lawyer.

7. On 27 October 2023, an email was received from the Asylum Seeker Resource Centre (ASRC). It stated that they were not representing the applicant but were facilitating correspondence in this instance. Attached to the email was a completed pre-hearing form which confirmed that the applicant wanted to have a hearing. It also stated that he was seeking legal advice and would provide further information about his claim at a later date.

8. A Freedom of Information request, also from the ASRC, was received on 2 November 2023. It again stated that the ASRC were only facilitating correspondence on the applicant’s behalf and that the applicant should be contacted directly for further correspondence. On 9 November 2023 the Tribunal granted the applicant access in full to the documents he had requested.

9. On 30 November 2023, the applicant was invited to attend a hearing 21 December 2023. The invitation explained that if he did not attend at the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear, or it may dismiss his application without any further consideration of the application or the information before it. He was also requested to complete and return the response to hearing form within seven days.

10. The applicant did not contact the Tribunal, did not return the response to hearing form and did not appear at the scheduled hearing on 21 December 2023. Later that day, I made a decision to dismiss the applicant’s application for review.

11. An email was received from Victorian Legal Aid (VLA) on 2 January 2024. It stated that the applicant had been in contact with VLA about the Tribunal’s dismissal decision and that he wished for his application to be re-instated. An unsigned statutory declaration was attached which said, in summary, that:

    ·He had received the Tribunal’s hearing invitation but did not attend because, in part, he was unable to find a lawyer to assist him.

    ·He did not have a stable address, current employment or speak much English which made it hard for him to engage with the process.

    ·He had since sought legal advice from VLA who provided him with information about how to seek a lawyer and who explained the importance of attending any hearing even if he did not have a lawyer.

    ·He feared returning to Malaysia because he is gay.

    ·The statutory declaration was prepared with the assistance of VLA on a limited assistance basis and with the assistance of an interpreter in the Mandarin language.

12. The email sent by VLA re-stated that the applicant had been provided with advice about the process and referral information so that he may seek ongoing legal representation. VLA indicated that it was only assisting to draft correspondence for the applicant and were not representing him on an ongoing basis. It stated that further correspondence should be sent to the applicant directly.

13. I made a decision on 2 January 2024 to re-instate the applicant’s application for review. The applicant was notified of this decision on the same day. He was told that this meant that the Tribunal would continue to conduct the review.

14. On 4 January 2024, the applicant was invited to attend another hearing on 19 January 2024. This invitation also explained that if he did not attend his scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear, or it may dismiss his application without any further consideration of the application or the information before it. He was also requested to complete and return the response to hearing form within seven days.

15. The applicant did not contact the Tribunal, did not return the response to hearing form and did not appear at the scheduled hearing on 19 January 2024.

16. Having reviewed the Tribunal file, I am satisfied that the applicant was properly invited to a hearing in accordance withs 441A(5) of the Act. The invitation was sent by email to an address that the applicant has used to communicate with the Tribunal. It has not been returned to sender and an attempt to contact the applicant by telephone on the day of his hearing was unsuccessful with his mobile telephone number appearing to be disconnected. These matters should be considered alongside the applicant’s unsupported claim to not have a stable address, employment and limited English. In these circumstances, which include the applicant failing to appear at two separate hearings, the importance of appearing at a hearing being explained to him even if he does not have legal representation, confirmation that he has been receiving Tribunal correspondence such as the first hearing invitation and initial dismissal decision, and an apparently disconnected mobile telephone number, I have decided, pursuant to s 426A of the Act, to make my decision on the review without taking any further action to enable the applicant to appear before me.

    CRITERIA FOR A PROTECTION VISA

17. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

18. 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.

19. 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 of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

20. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

21. 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

22. 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.

    CLAIMS, EVIDENCE AND ANALYSIS

23. The material before me is limited to the written claim contained in the applicant’s protection visa application which was lodged about six years ago. Since that time, he appears to have given no further information, evidence or submissions about his claim to either the Department or to the Tribunal. The claim contained in his written application, which I have summarised above, is vague and lacking in detail. It does not explain, for example, anything about his claimed sexuality, including his claim to be gay or homosexual; his attendance at a party, including when, where, and which LGBT group was involved in hosting it; how he came to be arrested and detained for seven days, and on what basis; the circumstances surrounding his family bailing him out; and what trial or trials he was facing but fled before they were resolved.

24. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

25. On the basis of the limited evidence that is before me, I do not accept that the applicant is gay or homosexual or that he attended a party hosted by an LGBT group that was raided by the authorities. It follows that I do not accept that he was arrested and detained for seven days before being bailed by family, that he was involved in a case reported country wide or that he has been ignored by family and friends because they came to believe he was gay, homosexual or LGBT. It further follows that I do not accept that he fled whilst there were ongoing trials against him.

26. As I do not accept that the applicant is gay, homosexual or LGBT, I do not accept that he is of any interest to his family, relatives, friends or the authorities, including the Royal Malaysian Police and/or National Islamic Council for this reason.

27. Accordingly, I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, for this or any other reason, now or in the reasonably foreseeable future.

28. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act. Nor am I satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

29. 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).

    Other matters

30. There is material recorded in the Department’s electronic database which states that 1) the applicant’s visa application was lodged, and the application fee paid for, by a credit card linked to a known IPIA syndicate under investigation; and 2) his fingerprints are recorded in Victoria and relate to criminal matters. Had the applicant attended either of his scheduled hearings, I would have explained to him that, whilst I am aware of this material, I intended to place no weight upon it. This is, and was, because the record relating to the credit card payment is dated March 2021 and there is no other information before me about the relevance or outcome of the investigation. Whilst the record regarding his fingerprints is more recent, being made in March 2023, there is no other information before me about what criminal matters the applicant’s fingerprints relate to, the outcome of those matters (if any) and their relevance (if any) to his application for a visa. For these reasons I have placed no weight upon this material. For the avoidance of doubt, this is not information that I have considered any further in relation to my decision. Nor is it information that would be the reason, or a part of the reason, for the decision under review being affirmed.

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Andrew Verduci
    Member

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (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 family

    For 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 family

    For 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.

    …