1812804 (Refugee)

Case [2024] AATA 2845

1812804 (Refugee) [2024] AATA 2845 (22 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812804

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Peter Vlahos

DATE:22 April 2024

PLACE OF DECISION:  Melbourne

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

This Statement was made on 22nd April 2024 at 9.45AM

CATCHWORDS

REFUGEE – protection visa – Malaysia – religion – conversion from Sunni to Shi’a Islam – threatened by family and assaulted by Sunnis – vague claims and evidence – departed many years after claimed conversion – country information – ostracism by family and community not serious or significant harm – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v Commonwealth (1999) 197 CLR 510

Chand v MIEA [1997] FCA 1198

Iyer v MIMA [2000] FCA 52

MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

MIEA v Wu Shan Lian (1996) 185 CLR 259

MIMA v Rajalingam (1999) 93 FCR 220

SAAD v MIMA [2003] FCAFC 65

Sivalingam v MIEA [1998] FCA 1167

Sivalingam v MIMA [1999] FCA 76

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 6 February 2018. The delegate refused to grant the visa on the basis that the application did not satisfy sub-section 36(2).

  3. The applicant appeared before the Tribunal on 17 April 2024 to give evidence and present arguments.

  4. The Tribunal received no witness statements and no notification that witnesses would be present before the Tribunal to provide evidence to the Tribunal concerning the applicant’s claims.

  5. The applicant was not represented by a solicitor or registered migration agent

  6. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

    CRITERIA FOR A PROTECTION VISA

  7. 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…

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1812804 (Refugee) [2024] AATA 2845
Case
[2024] AATA 2845
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Department of Home Affairs to refuse a protection visa. The applicant, a national of Malaysia, claimed he had converted from Sunni to Shi’a Islam and, as a result, faced threats from his family and physical assaults from other Sunnis in Malaysia. He also claimed he would not have the freedom to practice his religion if returned to Malaysia. The Tribunal was required to determine whether Australia had protection obligations towards the applicant under section 36(2)(a) or section 36(2)(aa) of the Migration Act 1958 (Cth).

The Tribunal considered the applicant's claims in light of country information and the relevant legislative provisions, including sections 36(2A) and (2B) which define "significant harm." The applicant stated he converted at age 16 through a friend and that while mosques in Malaysia were predominantly Sunni, he had attended a Shi’a mosque. He also indicated he departed Malaysia many years after his claimed conversion. The Tribunal found that the applicant's identity as a Malaysian national was not in dispute and that section 36(3) of the Act did not apply as he had no right to reside in another country.

The Tribunal concluded that the applicant had not established a real risk of suffering significant harm if returned to Malaysia. It found that the ostracism by his family and community, and the vague claims of threats and assaults, did not amount to serious or significant harm as contemplated by the Act. Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal has before it the Department’s File relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s decision to the Tribunal with his application to review. Background - The Applicant’s migration and visa history The applicant was born on … and is …years-of-age, in Penang, Malaysia and is married and his wife is currently expecting child. The applicant received his education in Malaysia. He has family in Malaysia which consists of his siblings and his mother. When in Malaysia, the applicant told the Tribunal that he was employed as a “[Occupation]”. The applicant provided no other details concerning his employment. While here in Australia, the applicant told the Tribunal that he is currently working at a local “[factory].” The applicant is a ethnic Malay. The Applicant’s claims for Protection as submitted and considered by the Department and Tribunal The applicant’s claims for protection were summarised in the delegate’s decision record[2]as follows: ·The applicant left Malaysia because he converted from Sunni Islam to the Shi’a Islam faith and this conversion is not accepted in Malaysia; ·The applicant claims his family did not accept his decision to convert to Shi’a Islam and he was threatened by his family; ·The applicant claims that if he returns to Malaysia, he will not have the freedom to follow his religion. [2] Department of Home Affairs_ Decision record_ refusal_ dated 30 April 2018_see Department File no. BCC2018/612072. The applicant made no other claims The Tribunal asked the applicant to indicate when and how he converted from Sunni Islam to the Shi’a faith of Islam? The applicant said that he decided to convert to the Shi’a faith “when he was 16 years of age” when he was still at school. The Tribunal asked the applicant – how he converted to the Shi’a branch of Islam? The applicant said that “a friend” took him to a Shi’a mosque and from then, he has been a follower of the Shi’a faith of Islam. The Tribunal asked the applicant to explain – what was the difference between Sunni and Shi’a that caused him to follow the latter? The applicant said that there was “a dispute” as to who would “succeed” the “Prophet Mohammad” “after his death”. The applicant said that a prophet – he described as the “Prophet Ali” was to “succeed the prophet” but he did not and this caused a schism within the Islamic faith – ‘Sunni’ and ‘Shi’a’. The applicant no other details. The Tribunal asked the applicant – how he worshipped his Shi’a faith while in Malaysia? The applicant said that he “would attend a local mosque” which was frequently attended by other Shi’a followers. The applicant also told the Tribunal that “all mosques in Malaysia were Sunni” and that when ‘others’ “found out” one was a Shi’a it became difficult to attend because Sunnis became abusive, threatening and at time the applicant was physically “assaulted” by ‘angry’ Sunnis which had come to know he was a Shi’a convert.

Evidence

Evidence Before The Court

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 Australia has protection obligations in respect of the Applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of origins and identity First, there is no evidence before the Tribunal to indicate that any of the documents provided to the Tribunal to prove the applicant’s identity is a ‘bogus document’ as is defined in section 5(1) of the Act. Second, based on a copy of the applicant’s Passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal (on file)[1]and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Federation of Malaysia and has his claims assessed against that country in relation to section 36(2)(a) and section 36(2)(aa) of the Act and on the basis of this evidence (currently before the Tribunal), the Tribunal further accepts and finds the applicant’s identity is as is claimed for the purposes of this decision. Protection in another country considered[1] see, AAT File and Department of Home Affairs File no. BCC2018/612072 The Tribunal finds on the evidence before it, that the applicant does not have a right to enter or to reside in a country other than the Federation of Malaysia. Therefore, the Tribunal concludes and finds that section 36(3) of the Act does not apply to the applicant. Department File accessed by the Tribunal The Tribunal has before it the Department’s File relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s decision to the Tribunal with his application to review. Background - The Applicant’s migration and visa history The applicant was born on … and is …years-of-age, in Penang, Malaysia and is married and his wife is currently expecting child. The applicant received his education in Malaysia. He has family in Malaysia which consists of his siblings and his mother. When in Malaysia, the applicant told the Tribunal that he was employed as a “[Occupation]”. The applicant provided no other details concerning his employment. While here in Australia, the applicant told the Tribunal that he is currently working at a local “[factory].” The applicant is a ethnic Malay. The Applicant’s claims for Protection as submitted and considered by the Department and Tribunal The applicant’s claims for protection were summarised in the delegate’s decision record[2]as follows: ·The applicant left Malaysia because he converted from Sunni Islam to the Shi’a Islam faith and this conversion is not accepted in Malaysia; ·The applicant claims his family did not accept his decision to convert to Shi’a Islam and he was threatened by his family; ·The applicant claims that if he returns to Malaysia, he will not have the freedom to follow his religion. [2] Department of Home Affairs_ Decision record_ refusal_ dated 30 April 2018_see Department File no. BCC2018/612072.

Decision

Reasons for decision

The issue in this case is whether Australia has protection obligations in respect of the Applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of origins and identity First, there is no evidence before the Tribunal to indicate that any of the documents provided to the Tribunal to prove the applicant’s identity is a ‘bogus document’ as is defined in section 5(1) of the Act. Second, based on a copy of the applicant’s Passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal (on file)[1]and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Federation of Malaysia and has his claims assessed against that country in relation to section 36(2)(a) and section 36(2)(aa) of the Act and on the basis of this evidence (currently before the Tribunal), the Tribunal further accepts and finds the applicant’s identity is as is claimed for the purposes of this decision. Protection in another country considered[1] see, AAT File and Department of Home Affairs File no. BCC2018/612072 The Tribunal finds on the evidence before it, that the applicant does not have a right to enter or to reside in a country other than the Federation of Malaysia. Therefore, the Tribunal concludes and finds that section 36(3) of the Act does not apply to the applicant. Department File accessed by the Tribunal The Tribunal has before it the Department’s File relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s decision to the Tribunal with his application to review. Background - The Applicant’s migration and visa history The applicant was born on … and is …years-of-age, in Penang, Malaysia and is married and his wife is currently expecting child. The applicant received his education in Malaysia. He has family in Malaysia which consists of his siblings and his mother. When in Malaysia, the applicant told the Tribunal that he was employed as a “[Occupation]”. The applicant provided no other details concerning his employment. While here in Australia, the applicant told the Tribunal that he is currently working at a local “[factory].” The applicant is a ethnic Malay. The Applicant’s claims for Protection as submitted and considered by the Department and Tribunal The applicant’s claims for protection were summarised in the delegate’s decision record[2]as follows: ·The applicant left Malaysia because he converted from Sunni Islam to the Shi’a Islam faith and this conversion is not accepted in Malaysia; ·The applicant claims his family did not accept his decision to convert to Shi’a Islam and he was threatened by his family; ·The applicant claims that if he returns to Malaysia, he will not have the freedom to follow his religion. [2] Department of Home Affairs_ Decision record_ refusal_ dated 30 April 2018_see Department File no. BCC2018/612072.

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether Australia has protection obligations in respect of the Applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of origins and identity First, there is no evidence before the Tribunal to indicate that any of the documents provided to the Tribunal to prove the applicant’s identity is a ‘bogus document’ as is defined in section 5(1) of the Act. Second, based on a copy of the applicant’s Passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal (on file)[1]and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Federation of Malaysia and has his claims assessed against that country in relation to section 36(2)(a) and section 36(2)(aa) of the Act and on the basis of this evidence (currently before the Tribunal), the Tribunal further accepts and finds the applicant’s identity is as is claimed for the purposes of this decision. Protection in another country considered[1] see, AAT File and Department of Home Affairs File no. BCC2018/612072 The Tribunal finds on the evidence before it, that the applicant does not have a right to enter or to reside in a country other than the Federation of Malaysia. Therefore, the Tribunal concludes and finds that section 36(3) of the Act does not apply to the applicant. Department File accessed by the Tribunal The Tribunal has before it the Department’s File relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s decision to the Tribunal with his application to review. Background - The Applicant’s migration and visa history