1812228 (Refugee)
[2024] AATA 1545
•14 March 2024
1812228 (Refugee) [2024] AATA 1545 (14 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1812228
COUNTRY OF REFERENCE: Malaysia
MEMBER:Damien Power
DATE:14 March 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 March 2024 at 10:49am
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – Christianity – friends detained and tortured and applicant wanted by police – application prepared by another person without applicant’s knowledge of contents – claim discontinued at hearing and no new claims made – no harm as Buddhist – country information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2Any 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 dependants.
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 18 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 25 January 2018. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 13 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CLAIMS AND EVIDENCE
Background
The applicant is a male aged [Age] years of age from Sarawak in Malaysia. He is married.
The applicant speaks, reads and writes Mandarin.
Evidence before the Department
Migration History
[In] June 2017, the applicant arrived in Australia on an Electronic Travel Authority visa. The applicant had previously travelled to Australia [in] August 2012.
On 25 January 2018, the applicant lodged a valid application for a (subclass XA-866) protection visa.
On 18 April 2018, the delegate made a decision to refuse the applicant a protection visa.
Protection visa application
The applicant’s protection visa application provides the following information.
The applicant is a devout Christian and lived in Malaysia from birth. Through the Lord’s teaching, he felt happy and made many friends.
A majority of Malaysians believe in Islam. Chinese Malaysians cannot follow their beliefs freely. Many of his church friends were caught during a gathering, and cruelly detained and tortured in a detention centre.
The police wanted to arrest the applicant because they knew he was a Christian. He escaped to Australia with the help of a friend.
In Australian, there is freedom of religious belief and he can believe in Jesus Christ without any restraints.
If he returns to Malaysia, he will be harmed by the government, like other underground Christians. He will be regarded as a heretic. He will be arrested and insulted by the police. They will force him to give up his beliefs and torture him cruelly in prison. There is nowhere he can go in Malaysia in the whole of Malaysia. He cannot survive there.
Interview with the delegate
The applicant was not offered an interview with the Department.
Delegate’s decision
The delegate did not accept that the applicant would face harm or persecution on return to Malaysia because of their Christian faith, citing country information that Christians in Malaysia represent a significant portion of the population and are generally free to practice their religion without significant discrimination or interference. The delegate was not satisfied that the applicant would face persecution on return to Malaysia.
Evidence before the Tribunal
Application for review
On 30 April 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. They provided the Tribunal with a copy of the delegate’s decision.
Additional submissions or evidence
The applicant did not make any additional submissions to the Tribunal prior to the hearing.
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.
Nationality
The applicant provided a copy of the bio-data pages of his Malaysian passport. The delegate was satisfied as to the applicant’s identity and nationality. The applicant has provided a consistent account of their claimed identity. In the absence of evidence to the contrary, I am satisfied as to the applicant’s identity and that their receiving country for the purposes of assessing their claims for protection is Malaysia. Although the applicant’s protection visa application lists ‘Malawi’ in one instance, this is clearly a mistake. The applicant presented his Malaysian passport at the hearing and confirmed that he had been born in Malaysia.
There is no evidence that the applicant is a national of or has a right to enter and reside in any country other than Malaysia.
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 is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
At the commencement of the hearing, the applicant took an oath as a Buddhist. However, the written claims accompanying the applicant’s protection visa application stated that the applicant feared harm on return to Malaysia because of his Christian faith.
The applicant was asked at the outset of the hearing whether he feared harm because of his Christian faith and whether this was the claim he wished to put before the Tribunal. The applicant said that he was not aware what the person who assisted him with his application had actually put in his claims. He had only become aware when he rang the Department last year to confirm what was happening with his application. He confirmed that the claims regarding his Christianity were not the claims he wished to put forward.
The applicant was then asked what claim he wanted to put before the Tribunal. The applicant said that he very much wished to stay in Australia. When asked if there was any other claim he wished to make, the applicant said there was not.
The applicant was asked to confirm whether he was a Buddhist. The applicant confirmed that he was a Buddhist.
The applicant was asked if he had any reason to fear returning to Malaysia. The applicant said that he preferred not to answer the question. He said Malaysia was where he was born but he was reluctant to say some things.
I reminded the applicant that he had applied for a review of the decision to refuse his protection visa application. I said that I understood that sometimes past experiences can be difficult to talk about. However, if he were asking me to review the refusal of his protection visa, I would need to know why he did not want to return to Malaysia, if in fact that was the case. I reminded him that today was his opportunity to tell me those reasons. The applicant responded that he did not know how to start.
The applicant was reminded that he had been in Australia since June 2017. It was also put to him that he made an application for a protection visa to the Department which was refused. He was presumably aware of that refusal because he had applied for a review of the refusal decision. It was now seven years since he had arrived in Australia. He was advised that if he wished to make a claim for Australia’s protection, now was the time to do so. I asked the applicant if he could tell me in broad terms why he did not want to return to Malaysia. The applicant said that he had no idea how to answer and that he did not want to answer.
I asked the applicant why he had attended the hearing today. He said that he had come today because he wished to remain in Australia. I asked him to tell me why he wanted to remain in Australia. The applicant replied that he had initially wanted to leave Australia after had arrived here, but the longer he stayed the more comfortable he felt here. It was a nice place, and life was not complicated. People could do their own thing and not be affected by other things.
I asked the applicant what he meant by not being affected by other things. He said people had more freedom here. I asked if he had had any issues back in Malaysia. He said that he did. I asked what the issues were. At that point, the applicant stated again that he preferred not to talk about it.
The applicant was reminded that his protection visa application had been refused and that he had decided to apply for a review of the decision. The applicant was informed that if he did not want to put forward any additional claims or information that I would consider closing the hearing and making a decision on the information already before me.
However, I also noted that the applicant’s protection visa application made claims about fearing harm because of his Christian religion. I also noted that the applicant was not Christian and had confirmed that he was a Buddhist, and that he had confirmed that the original claims regarding his Christianity were not correct. I might therefore make a finding that affirmed the refusal decision made by the Department.
I asked him, if noting all that I had said, there was anything further he wanted to say to me. The applicant responded that there was not. The hearing was then closed, and the applicant was told that he was free to go.
Despite multiple opportunities, the applicant was unwilling or unable to put forward any claims for protection.
The applicant was asked at the outset of the hearing if he was feeling well and able to discuss his claims. The applicant replied in the affirmative. The applicant was asked if he understood the interpreter and he stated that he did. There is no information before me to suggest that the applicant is suffering from any sort of physical or mental impairment or is otherwise incapable of putting forward his claims for protection.
The applicant also confirmed at the hearing that he is a Buddhist and not a Christian.
The Department of Foreign Affairs and Trade (DFAT) indicates that Buddhists make up almost 20% of the Malaysian population[1]. Although there have been instances of Buddhist places of worship being compulsorily acquired by the government or relocated, both federal and state governments have supported the building of Buddhist places of worship[2]. DFAT assesses Buddhists are usually able to live without societal discrimination in Malaysia and can worship freely without significant official interference[3].
[1] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, 20210629092134
[2] Ibid
[3] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, 20210629092134
However, as noted earlier, the applicant did not claim or indicate in any way that he feared harm on return to Malaysia because of his Buddhist beliefs or put forward any other reason he feared harm on return to Malaysia.
On the information before me, I am not satisfied that the applicant faces a real chance of any harm on return to Malaysia. The applicant indicated clearly that he is not a Christian, as stated in his protection visa application, but a Buddhist. He also stated that he was not aware of the claims that had been put forward in his protection visa application. Despite multiple opportunities to do so, the applicant did not claim to fear harm as a Buddhist (or as a Christian) or articulate any other basis on which he feared harm on return to Malaysia.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The applicant confirmed at hearing that he was not Christian. The applicant confirmed that he is a Buddhist. However, as noted above the applicant did not claim to fear any harm on account of his Buddhist (or Christian) beliefs.
The applicant did not articulate any alternative basis on which he feared any harm on return to Malaysia or put forward any other claims that would engage the complementary protection criteria.
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.
Damien Power
MemberATTACHMENT - 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.
…
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Immigration
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