1821771 (Refugee)

1821771 (Refugee) [2018] AATA 5066 (5 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821771
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Peter Vlahos
DATE:5 December 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 5 December 2018 at 9:46am

CATCHWORDS

REFUGEE – Protection visa – Malaysia – religion – Buddhist beliefs – applicant failed to attend hearing – claims are vague and lacking detail – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65,499
Migration Regulations 1994, 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.
_________________________________________________________________________________
In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 July 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 1 February 2018. The delegate refused to grant the visa on the basis that the application did not satisfy sub-section 36(2) of the Act.
The applicant applied for a review to the Tribunal of this decision on 27 July 2018.
APPLICATION BACKGROUND
On 17 October 2018, the Tribunal wrote to the applicant that it considered all the material before it relating to his application but was unable to make a favourable decision on the information alone. The Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case at the hearing on 5 December 2018. The letter also advised that he was unable to attend the hearing he was required to inform the Tribunal as soon as possible. The letter also advised the applicant that any request for postponement of the hearing must be made in writing earlier than later and reasons provided (by the applicant) for making that request. Furthermore, the letter advised that if he did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal. The letter also advised the applicant that if he was not able to attend the hearing she should advise the Tribunal.
Following the Tribunal’s letter of 17 October 2018 the applicant received two SMS reminders of the scheduled hearing on his mobile telephone on 28 November 2018 and on 4 December 2018.
The applicant did not attend the scheduled hearing or contacted the Tribunal to explain his absence or to seek a new 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 (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 themself 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.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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 Australia has protection obligations in respect to [the applicant]. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality and Identity
Based on a copy of the applicant’s passport, which was provided to the Department of Immigration & Border Protection (the Department) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia, and has had his claims assessed against that country in relation to sections 36(2) (a) and 36(2)(aa) of the Migration Act (the Act).
On the basis of the abovementioned evidence, the Tribunal further accepts the applicant’s identity as claimed.
Claims
The applicant’s claims were set out in his application for protection visa. The applicant claims are as follows:
§He left Malaysia due to his Buddhist beliefs and activities.
§He was arrested by the local police and prosecuted.
§Since arriving in Australia he has become a stronger Buddhist believer and involved in more Buddhist activities.
§In Malaysia religions other than Islam are not neglected and non-Muslim believers have suffered from isolation, oppression and even death.
§The government has started arresting more people especially ethnic-Chinese.
§The Malaysian government has also sent many spies to western countries including Australia to watch the Malaysian dissidents so he is seeking protection. He cannot relocate within Malaysia because there are no opportunities and he has no money.
§He will be punished more severely if he returns to Malaysia.
§He cannot relocate because Malaysia is a very small country.
The Tribunal finds the applicant’s claims for protection are vague and lacking detail.
Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim to person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The applicant did not attend the Tribunal hearing despite being advised that the Tribunal had considered all the material before it in relation to his application but that it was unable to make a favourable decision on the information alone. Had the applicant attended the hearing, the Tribunal would have explored the applicant’s claims with him and sought further information from him on a range of details relevant to his claims. For example, the Tribunal would have explored with the applicant his fears for returning to Malaysia because of his Buddhist beliefs and asked the applicant to explain his claim of having been persecuted because he wished to worship freely his religion. The Tribunal would have also explored with the applicant his claim that he had been arrested and persecuted by the Malaysian authorities.
Furthermore, the Tribunal would have asked the applicant about what he did in Malaysia which made him in the eyes of the authorities (as he claimed) a person of interest. Also, the Tribunal would have sought details from the applicant as to how he practised his Buddhist faith while in Malaysia and how he did so here and at which temples. Finally, the religious activities of his family would have been discussed with the applicant and the Tribunal would have sought clarification as to whether in his absence, his family had been persecuted by the Malaysian authorities because of their Buddhist beliefs and ethnicity as Chinese Malaysians. Also, the Tribunal would have sought the applicant’s explanation if he was a person of interest to the Malaysian authorities due to his ethnicity and Buddhist beliefs and had been detained arbitrarily, how was he allowed to leave Malaysia on a validly issued passport?
Country Information that would have been discussed with the applicant at the scheduled hearing
The Tribunal would also have referred to country information on Malaysia from DFAT[1]and would have engaged the applicant’s opinion on DFAT’s assessment of the religious freedom in Malaysia and the relationship between the Chinese Malaysians with other Malaysian peoples. The Tribunal notes that DFAT assesses that Chinese Malaysians do not experience official or societal discrimination on a day-to-day basis. The Tribunal also noted from the DFAT report that Buddhists are usually able to practise their religion without interference and do not face official or societal discrimination on a day-to-day basis. The Tribunal would have explored with the applicant this information and enquired of the applicant which of his activities while in Malaysia made him consider himself as being a person of interest for the authorities and why, if he returned to Malaysia would be subject a curtailment of his personal freedoms – when the information provided by DFAT presented a very different situation.
[1] DFAT Country Information Report – Malaysia 19 April 2018.
The Tribunal would have also examined the why the applicant’s claim concerning having his rights to worship as Buddhist being curtailed by the Malaysian state.
The Tribunal would also have explained to the applicant that it was obliged to put this country information to him that addressed some of the issues he had raised in particular about the general situation concerning ethnicity and religious freedoms in Malaysia and how he claimed this affected him to the point that he had to leave and come to Australia to seek sanctuary and protection.
Moreover, the Tribunal would have sought the applicant’s comments on this information and engaged in discussion with the applicant in order for him to provide the Tribunal with his views as to all of the issues as he claimed forced him to flee Malaysia.
Considering the applicant’s individual circumstances on a cumulative basis, the Tribunal finds there is not a real chance that in the reasonably foreseeable future he would be persecuted for any reason. His fear is not well-founded as required by s.5J of the Migration Act and therefore he is not a refugee within the meaning of s.5H.
Considering the applicant’s individual circumstances, the Tribunal finds that there are no substantial grounds for believing that a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm.
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).
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.
Peter Vlahos
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 5066

5 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice