1809725 (Refugee)

1809725 (Refugee) [2024] AATA 2169 (16 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1809725
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Amanda Goodier
DATE:16 April 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 16 April 2024 at 12:29pm

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – religion – Islam – race – Malay – first named applicant is not in Australia – experienced harm from the gangster youngsters – a drug user – not satisfied the applicant has a well-founded fear of serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33

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 Home Affairs on 4 April 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Malaysia applied for the visas on 29 October 2017. The delegate refused to grant the visa on the basis that that the delegate did not accept that the applicants faced a real chance of serious harm from the authorities or any other person on their return to Malaysia. The delegate also did not accept that there was a real risk the applicants would face significant harm for any reason on their return to Malaysia. A copy of the delegate’s decision was provided to the Tribunal by the applicants.
The second named applicant appeared before the Tribunal on 14 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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 (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.
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 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).
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.
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.
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.
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made, or evidence not presented before the primary decision was made.
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
First named applicant.
Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.
As far as is relevant to this matter, s 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the applicant is in Australia.
Movement records indicate that the first named applicant is not in Australia. It appears that he left Australia on [date] July 2019. On 12 March 2024, the Tribunal wrote to the first named applicant pursuant to s424A inviting him to respond to the information that he was no longer in Australia. The Tribunal has not received a response to that letter.
The Tribunal is satisfied from the circumstances set out above that the first named applicant is not in Australia. Therefore, the first named applicant does not satisfy the requirements of s 36(2) and cannot be granted a protection visa.
Second named applicant.
The issue in this case is whether the second named applicant is 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.
The delegate accepted that the first named applicant and the second name applicant were brothers and therefore members of the same family unit. The Tribunal accepts based on the evidence provided in the form of the passports and confirmation from the second named applicant, that he is a member of the family unit of the first named applicant.
Country of nationality
The second named applicant travelled to Australia on a genuine Malaysian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and has been assessed on that basis by the Department. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.
Background information
In his protection visa application, the second named applicant (“applicant”) indicated he was the brother and therefore a member of the same family unit of the first named applicant. He indicated he was born in [year] and his place of birth was [Village 1], Johor, Malaysia. He indicated he had resided at the same address in [Village 1], Johor from birth until his departure for Australia. He indicates he speaks, reads, and writes Malay. He indicates his religion is Islam and ethnic group Malay. He arrived in Australia on [date] August 2017. No details as to his work history, education or family either in Malaysia or in Australia, were provided. The applicant indicated he was relying on the claims of the first named applicant and had no claims of his own.
The first named applicant’s claims for protection can be summarised as follows:
·We left Malaysia as we were scared and stressed living there. My brother and I were helping in the family [shop] where we were [providing services]. In our hometown, heaps of problems are involved by young people around our ages. They steal people’s vehicles, they beat people and worst thing is selling drugs. One day my brother, the second named applicant, accidently saw them selling drugs near the road and to make things worse at the same time police arrived and arrested them. They were angry and thought that my brother told the police. After that day, our lives became worst.
·We have experienced harm as the gangster youngsters in our place do lots of things because they feel angry to us. They beat us, especially my brother a few times. Even when we explain that it was a misunderstanding, they still feel angry and did not believe us. They warned if they see us in [shop], they will set fire to the [shop].
·With the advice of our family, we made a police report at the nearby station but some of the police have connection to the gangster group in their hometown. Rumour is they catch people selling drugs and they give it to the gangsters in their hometown to sell again.
·They tried to move to their aunt’s house, but the gangster can still find us, and they said if they find us in Malaysia, they want them to suffer.
·If they return to Malaysia, their life will be ruined as the gangsters will definitely seek them out and may be angry, they ran away from them. Worst thing if they collaborate with bad policemen and will trap them.
·The gangsters are still angry as some of their important people get caught because they think the second named applicant made a police report and it is not true.
·The police did nothing, and we suspect some bad policemen get involved in drug cases. We do not feel safe anywhere in Malaysia.
The applicant provided information to the Tribunal with his hearing response. In an unsworn statement the applicant set out the following information:
I am second named applicant, a Malaysian citizen, born at [Village 1], I am [age] years old, I have [number] siblings and I am the [position], Studying at [a] school, I applied for a protection visa in Australia because I felt threatened and not free, therefore, I realized that my condition began to be disturbed, my mind began to be confused, and I was thinking too much so that day by day there was more and more pressure caused by those around me who did not care and did not love me, I want to live in Australia because I feel safe, I want to change my life better than before, the people around are open-minded and the atmosphere in Australia is really pleasant,
Part 2
Why did I become like that, because One of them, due to family problems, in my family is full of violence, and I always see my family always fighting, like my father always uses violence against my mother, my siblings and me, up to 1 level, I almost killed myself, because I couldn't stand the pressure, pain and suffering in my life,
Part 3
After entering high school, I got caught up in socializing, and started hanging out with motorcycle gangs, and I had fun, I never felt like going out at night, every night I raced illegally, that's where I got to know the types of drugs, and started taking drugs until I sold them, , I can't focus on studying, because I'm not interested in studying, and the teachers who teach often use violence, punishment and say things until I can't accept it openly because my results don't satisfy the school, while my hobby is sports ,in school
Part 4
When I was in the [specified] grade, aged [age], I was expelled from school, because my behavior did not satisfy the eyes of the school, me and the gang started acting like squatting and selling drugs, one day the police started searching the area where I used to hang out , I was almost picked up by the police, because I was racing illegally and was suspected of being a drug dealer, but I managed to escape and my family found out about it, my family wanted to take me to a (juvenile) rehabilitation centre, From there, I left my family, that's the story of my life, thank you so much from [applicant’s name deleted]
The applicant also provided a copy of Act 621, Mutual Assistance in Criminal Matters Act 2002, Laws of Malaysia as well as a copy of Act 333 Road Transport Act 1987, Laws of Malaysia.
At hearing the applicant told the Tribunal that he paid an agent who was based in Melbourne to prepare his application for protection. He found the agent through a friend. He was not aware of the contents of the application as the agent told him he had to apply for a protection visa if they wish to stay in Australia. He did not sign the application.
The applicant confirmed he lived at the same address in Malaysia until he was about [age] years of age. He lived with his father who worked at [a] Department until he retired on a pension. His father is unwell and on dialysis. His mother is a homemaker and cares for his father. Sometimes his family have a little business operating from the [home]. He has [number] siblings, and he is child number five.
After he had completed school, he moved away from home and lived with work colleagues for about 9 months before departing for Australia. He was working at the port at the time.
The applicant arrived in Australia in August 2017 at age about [age] years. He has lived in Western Australia and worked in various places in farming and maintenance. He confirmed his religion as Islam and ethnic group Malay. He has not had any interest or political involvement in Malaysia.
The applicant told the Tribunal that after completing school at age [age] years, he worked at the port for about 9 months. He also sold drugs.
The applicant told the Tribunal that he did not feel as though he was free in Malaysia. When asked what he meant, he told the Tribunal that he tended to fall into bad company. He fell into the company of motorcycle gangs in Malaysia. He engaged in the sale of drugs and the police would often conduct ambushes or raids where they hung out. He fears returning to Malaysia as he is worried, he will fall into his bad ways again. The Tribunal asked whether he was worried about falling into his bad ways again in Australia and was told no but he is still a habitual drug user. He told the Tribunal he took drugs while in Australia and would continue to take drugs if he returns to Malaysia. He told the Tribunal that he only buys drugs in Australia, he does not sell drugs. He was not under the influence of drugs at the hearing.
The Tribunal asked why he felt he would fall into bad company if he returned to Malaysia as he had lived in Australia for some time and not fallen into bad company. The applicant told the Tribunal that he knew himself. He told the Tribunal that he was never caught selling drugs in Malaysia but did come close to being caught. The applicant told the Tribunal that he is fearful because he does not want to be what he was before.
The Tribunal explained that fearing returning to his bad ways did not appear to be for one of the reasons of his race, nationality, religion, political belief or membership of a particular social group. The Tribunal explained that it may need to consider his claims against the complementary protection provisions.
He told the Tribunal that he did not want to fall into his bad ways and associate with the people he was associating with in Malaysia. He did not want to associate with the people he did before. The Tribunal put to him that he had been in Australia for some time and had not fallen back into his bad ways associated with bad company. The Tribunal put to him that it was up to him to decide who he associated with on his return to Malaysia.
The applicant told the Tribunal that he travelled to Australia with his older brother who he thinks has returned to Malaysia.
The Tribunal referred to the claims for protection in his protection visa application that was lodged with the department. The applicant told the Tribunal that he was not aware the agent applied for protection. His understanding was that he would be able to work in Australia. He wanted to come to Australia to change his life.
The Tribunal went through each of the claims in the protection visa application. The applicant told the Tribunal that his family did not own a small [shop]. As the Tribunal went through each of the claims as set out above in para 21, the applicant denied each claim.
The applicant told the Tribunal that he witnessed a drug deal when he was in high school, aged about [age] years. The drug deal was near the school. The police arrested people, and he ran away because he was involved.
The Tribunal referred to his current claims to the Tribunal. The applicant confirmed he wanted to live in Australia as he felt safe and wanted to change his life around. He confirmed that his family was violent, but he was in contact with his mother. If he returned to Malaysia, he would return to live with his mother. He told the Tribunal that he did not like studying but enjoyed sports. His family wanted to take him to a rehabilitation centre, but he did not want to go as he did not think it would fix him. He told the Tribunal he was involved with a motorcycle gang and drug ring while in Malaysia. He fears them as he caused some trouble over drugs. They threatened him as he tried to stop selling drugs.
When asked why he submitted a copy of Act 621, Mutual Assistance in Criminal Matters Act 2002, Laws of Malaysia as well as a copy of Act 333 Road Transport Act 1987, Laws of Malaysia to the Tribunal, the applicant stated because if you get caught racing motorcycles in Malaysia, you can go to jail. The Tribunal put to the applicant that if he were caught racing motorcycles, he would be punished for committing an offence. It would be a law of general application in that it would apply to everyone who was found guilty of committing an offence.
The Tribunal put to the applicant that he had been in Australia for over six years and during that time not fallen in with a “bad” group and had worked hard. The Tribunal put to the applicant for comment information drawn from the most recent DFAT Country Information Report, and other sources as indicated, regarding illegal gangs in Malaysia, state protection, and assistance available from the Christian NGO Malaysian CARE for people seeking to safely leave criminal gangs. [1]
[1] 2021 DFAT Country Information Report, Malaysia, at [ 2.47; 5.5-5.9; 5.14-5.18]; ‘Public enemies’, Southeast Asia Globe, 1 November 2013, Malaysian CARE website, < type="1">
The applicant confirmed his fear was that if he returned to Malaysia, he would revert to the person he was before he left. The applicant told the Tribunal that he was a drug user prior to leaving Malaysia, he continued to use drugs in Australia, and he thinks he may continue to use drugs if he returns to Malaysia where the penalty was death.
The Tribunal raised with the applicant the availability of rehabilitation centres in Malaysia to assist him overcome his drug dependency on his return, particularly as his family had recommended he attend one prior to his departure for Australia.[2] The applicant told the Tribunal that he was a not a heavy user and only used it when he was tired after work.
[2] 'Malaysia Announces Plans To Decriminalize Minor Drug Offenses', Diplomat, The, 17 May 2023, 20230522111917
Findings and reasons
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[3] The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm.’ It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[3] Summaries of the principles relating to credibility findings are provided by the Federal Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ.
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[4]
[4] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[5] However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[6]
[5] MIMA v Rajalingam (1999) 93 FCR 220.
[6] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal had concerns about the applicant’s claims he fears harm on return to Malaysia because he will revert to his old ways and have difficulty with a gang with which he was involved. The Tribunal found the applicant’s claims vague and lacking in detail, noting that it does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim.
The applicant was unaware of the claims in his protection visa application that were considered by the delegate. When put to him by the Tribunal, he disavowed each one. He did witness a drug deal where the police attended and arrested people when he was about [age] years of age, but he ran away as he claims he was involved. He also told the Tribunal that he was unaware that he was applying for protection but thought he was applying for a visa to work. He told the Tribunal that he wanted to come to Australia to change his life.
Based on the applicant’s evidence at the hearing, the Tribunal finds he is renouncing those claims in para 21 above. On this basis, the Tribunal finds there is no real chance the applicant will face serious harm if he returns to Malaysia, now or in the reasonably foreseeable future for those reasons.
The Tribunal acknowledges the applicant’s claims and evidence that his father was violent towards his mother and siblings while he was growing up. The applicant told the Tribunal that his father was now ill and on dialysis with his mother caring for his father, and if returned to Malaysia, he would return to live with his mother. The Tribunal finds that if he returns to Malaysia, his family circumstances have changed, and he is now an older, different person to when he last lived with his family. On this basis the Tribunal finds that there is no real chance the applicant will face any harm from his family on return to Malaysia.
The applicant’s evidence is that he has no prior convictions for any offences in Malaysia. His evidence is that while he was never caught selling drugs, he did come close. The Tribunal finds that he will be of no interest to the authorities on his return to Malaysia on the basis of his lack of past interactions with them and because he has been outside Malaysia for over six years.
The Tribunal acknowledges the applicant’s fears that if he goes back to a familiar environment in Malaysia that he will revert to his old ways, fall back in with a “bad group” and continue to use drugs. He told the Tribunal that when in Malaysia he used drugs as well as sold them. While he initially claimed to be a habitual drug user, the applicant later told the Tribunal that in Australia he used drugs, but he was not a heavy user and only used gunja when he was tired, after work. The applicant does not consider himself an “addict” and has never sought treatment for drug addiction either in Australia or Malaysia. After considering the applicant’s evidence, the Tribunal does not accept that the applicant is a habitual drug user.
Since his arrival in Australia over six years ago, the applicant has not reverted to his old ways or fallen in with a “bad group.” The applicant told the Tribunal that he wished to come to Australia to change his life. He has been gainfully employed during his time in Australia. The Tribunal finds that not reverting to his old ways or falling in with a “bad group” is attributable to the applicant’s own choices, his expressed desires to better his life, as well as his increased maturity. These are decisions he has made to change his behaviour and are decisions he can continue to make in the future. The Tribunal finds that his desire for a better life, and increased maturity are factors that will remain in place if he returns to Malaysia and would continue to motivate him to successfully avoid using drugs or reverting to his old ways and stop him from falling back in with a “bad group” like his former gang.
The applicant claims that when he fears his previous gang as he refused to continue to sell drugs for them and this caused some trouble. As discussed with the applicant, there are organisations such as the Christian NGO Malaysian CARE, that can assist him to break away from his old gang should he require such assistance. He has also been absent from Malaysia for over six years and has made decisions to change his previous lifestyle.
The applicant was previously able to find work in Malaysia and he has since acquired skills and experience in various employment positions in Australia. He has also gained skills in moving to and living in a different linguistic and cultural country. He is able to return to live with his mother for support. The Tribunal finds that given the applicant’s experience and skills, he would be able to find a job in Malaysia to support himself and would not need to sell drugs to support himself.
While the Tribunal accepts that the applicant has previously used drugs, it has found that he is not a habitual drug user. The Tribunal has considered the applicant’s evidence that he may use drugs in the future if returned to Malaysia against his evidence of limited drug use in Australia and finds that in view of his decision to change his life for the better, the applicant can choose not to use drugs on his return to Malaysia to avoid reverting to his old ways or falling in with a “bad group”.
The Tribunal also notes the applicant’s comment that the penalty in Malaysia for drug use is death. The death penalty in Malaysia applies to drug trafficking, not drug use and has been abolished for many offences.[7] The applicant has previously used drugs in Malaysia and would be aware that the penalties for drug use offences result in fines and/or imprisonment rather than the death penalty. The Tribunal finds the applicant has embellished his comment for the purposes of supporting his claims for protection.
[7] Malaysia Repeals Mandatory Death Penalty | Human Rights Watch (hrw.org/news/2023/04/11/Malaysia-repeals-mandatory-death-penalty) accessed 12/4/2024.
Should the applicant engage in selling drugs or in street racing motorcycles on his return to Malaysia, this would be an offence and his arrest as a result would be due to the laws of general application that would apply to anyone who did this. Sanctions or punishment imposed pursuant to generally applicable laws, such as drug laws or street racing laws, will not generally constitute persecution. These laws applied to the whole of Malaysia’s population regardless of race, religion, nationality, membership of a particular social group or political opinion and would not be directed at him in a discriminatory manner. The Tribunal finds that any sanction that might be applied to the applicant under Malaysian drug laws or street racing laws would arise under a law of general application, would not have a discriminatory intent or impact and does not give rise to persecution.
The Tribunal has considered the applicant’s claims individually and cumulatively. Having considered the evidence as a whole, the Tribunal finds that if the applicant returns to Malaysia, now or in the reasonably foreseeable future, he does not face a real chance of serious harm from the Malaysian government, its authorities, members of his old gang or any other person for the reasons of reverting to his old way of life, drug use or falling in with a “bad group”.
Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason now, or in the reasonably foreseeable future, if he returns to Malaysia.
Complementary protection
The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk he will suffer significant harm (s 36(2)(aa) of the Act).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[8]
[8] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances and the relevant country information, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from members of his old gang, the Malaysian government, its authorities, or anyone else.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Amanda Goodier
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.
…

‘Malaysia gang violence fed by drugs, guns and race’, Agence France Presse, 4 November 2013,

Key Legal Topics

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Immigration
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Citations

1809725 (Refugee) [2024] AATA 2169

Cases Citing This Decision

Cases Cited

Statutory Material Cited

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Re Ruddock; ex parte Applicant S154/2002 [2003] HCA 60

WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

[2024] AATA 2169

16 April 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction