1827864 (Refugee)

1827864 (Refugee) [2024] AATA 3535 (13 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1827864
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Hee-Jung Kim
DATE:13 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 May 2024 at 4:12pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – applicant was properly invited to a hearing – failed to attend hearing – very vague information lacking in any meaningful details – applicant has not provided sufficient relevant information to support his claims – not satisfied the applicant has a well-founded fear of serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 425, 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.
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 30 August 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 20 February 2018. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person in respect of whom Australia has protection obligations.
On 23 September 2018, the applicant applied for review of the delegate’s decision to the Tribunal. On 14 March 2024, the Tribunal invited the applicant to appear before it on 26 April 2024 to give evidence and present arguments in relation to the issues under review because it considered that it could not decide the review in the applicant’s favour on the basis of the material before it. On the morning of 26 April 2024, the Tribunal received the applicant’s email requesting a postponement of the scheduled hearing because he was in Queensland for work and he will return to Sydney in 2 weeks.
The Tribunal carefully considered the applicant’s very late request for a postponement. Given that the applicant had some engagement with the Tribunal since lodging the review application and his request for postponement not being for an unreasonable amount of time, the Tribunal agreed to postpone the hearing and rescheduled to 13 May 2024. The hearing invitation for the rescheduled hearing was emailed on 26 April 2024 to the applicant’s email address which the applicant provided to the Tribunal for the purposes of corresponding with the Tribunal and from which he communicated with the Tribunal. The invitation clearly stated that the applicant needs to advise the Tribunal if he is unable to participate in the rescheduled hearing and that if he is unable to attend in person, he may request a change of hearing mode to video. It also stated that if he does not participate in the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.
The Tribunal sent 2 separate reminder messages about the hearing via SMS to the applicant’s mobile number provided in his review application and the pre-hearing information form, 5 business days and 1 business day before the rescheduled hearing date. There is no evidence before the Tribunal to indicate that the email and the SMS messages were not received by the applicant.
The applicant did not appear before the Tribunal on the day of the hearing at the rescheduled time and place. There is no evidence that the applicant contacted the Tribunal to seek an adjournment, to request a change of hearing mode or to explain his non-appearance. On the day of the hearing, the Tribunal registry staff made several checks of the Tribunal premises prior to and after the time of the scheduled hearing but the applicant was not present.
On the information before it, the Tribunal is satisfied that the applicant was properly invited to a hearing and that notice of invitation to appear was given to the applicant in accordance with s 425A of the Act. The applicant failed to appear and has not provided any reasons for his non-appearance. In these circumstances, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
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-5LA, 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.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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) 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 faces a real chance of persecution or there is a real risk he will suffer significant harm in Malaysia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicant provided to the Department and the Tribunal copies of his Malaysian passport issued on [date] 2017. On the information before me, I am satisfied of the applicant’s identity as claimed and that he is a citizen of Malaysia. I find that Malaysia is the receiving country for the purpose of assessing the applicant’s claims for protection under the refugee and complementary protection criteria. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than Malaysia.
Evidence before the Department
The applicant’s protection visa application provided very limited information. He provided he is a Malay Muslim born in[year] and does not have a right to enter or reside in any countries other than Malaysia. His passport states Negeri Sembilan as his place of birth. He claimed that he had never been married or in a de facto relationship, and he provided the details of his parents and 4 older siblings in Malaysia. He claimed that he contacts them via mobile phone once a month. He did not answer the questions (Q67 & 68) regarding his previous international travels and address history for the last 20 years. His Malaysian ID card states an address at [Negeri] Sembilan. He claimed that he completed up to high school in November 2008 .Whilst stating his occupation as ‘[occupation]’ (at Q31), he claimed that he never worked (at Q71). He arrived in Australia on [date] December 2017 on a visitor visa.
In relation to his reasons for seeking protection in Australia, the applicant provided the following claims:
·He left his country because someone threatened him for taking his girlfriend and he paid gangsters to kill the applicant. His family got rid of him from the community because they were afraid of being involved in this problem.
·They hit him badly as a warning and ‘fall acid on’ him. They threatened his family many times which was the main reason his parents got rid of him from the family.
·He sought help but it takes a long time for the police department to take action. That is why he ran to Australia before anything bad happened. He also went to [an island] to seek safety but they can still track him and send their people to kill him.
·If he returns to Malaysia, they will kill him. They will beat him badly and try to ‘fall acids on’ him. The gang is very dangerous and unpredictable. The authorities cannot and will not protect him because this gang is unpredictable, they can secretly send their people to kill the applicant anytime. The applicant also cannot relocate to an area where he would not be harmed because the gang have many people and they are very dangerous.
The applicant did not provide any additional material in support of the above claims.
Evidence before the Tribunal
The applicant has not provided any additional information or evidence to the Tribunal in support of his protection claims since lodging his application for review. As noted above, he did not attend the scheduled hearing.
Assessment and findings
It is the responsibility of an applicant for a protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4).
The Tribunal has reviewed the material before it. The limited evidence consisting of his Malaysian identity documents, some information about his background and vague written claims about his reasons for seeking protection lacks important and specific details to satisfy the Tribunal of the applicant’s claims.
He did not provide any timeline or specific details of the claimed events including being threatened by the ‘someone’ for taking their girlfriend, the beating and having ‘fall acid on’ him, threats to his family and the subsequent rejection from his family and community. He also did not provide any details about the person he fears other than vaguely referring to them as ‘someone’, about the gang that threatened, beat and harmed him, or the relationship with his claimed girlfriend which appears to be the reason for the claimed harm from his persecutor.
Despite claiming that his family got ‘rid of’ him because they were afraid of being involved in the applicant’s problem, the applicant stated in his application that he contacts them once a month (at Q41 of the visa application). It is unclear from his vague written claims whether acid was thrown on him and any injuries were sustained from the claimed harm and assault. It is also unclear whether he in fact sought help from the police as he has not provided any specific details including the relevant police department he sought help from, how he sought help and whether he filed any reports. His claim to have fled to [an island] also lacks any detail including when he fled, how long he was there and where he stayed to seek safety.
He has not provided any information about his current circumstances including whether he is still in a relationship with the girlfriend, any recent contacts from the girlfriend, the persecutor or the gang, and whether they have harassed or threatened his family since the applicant departed Malaysia over 6 years ago. He did not attend the scheduled hearing to clarify and provide more detailed oral evidence about his vague claims. There is insufficient information before the Tribunal to be satisfied of any of the applicant’s protection claims.
The Tribunal accepts that the applicant is a Malay Muslim man born in [year] in Negeri Sembilan, who came to Australia on a visitor visa on [date] December 2017. It accepts the applicant’s family composition as claimed. However, based on the very vague information lacking in any meaningful details in the material available before the Tribunal, it does not accept the applicant’s claimed reasons for leaving Malaysia and fear of returning to Malaysia. It does not accept that the applicant was harmed or threatened in any way in Malaysia including being beaten and having acid thrown on him by a man and his gang or anyone else because the applicant took the man’s girlfriend. It does not accept that the applicant’s family was threatened in relation to these claims and his parents or family got ‘rid of’ him from the community because they were afraid of being involved in the applicant’s problem. It also does not accept that the applicant sought help from the police or that he fled to [an island] to seek safety.
As the Tribunal rejects the applicant’s claims about the past events in Malaysia, it does not accept that he will be harmed in any way in relation to these claims by anyone, including being beaten, having acid thrown on him or being killed, if he returns to Malaysia. The applicant has not raised any other claims and the Tribunal is satisfied that no other claims arise clearly on the available material.
For the reasons set out above and having considered the available material and the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on return to Malaysia for his claimed reasons or for any other reason in s 5J(1)(a), now or in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied the applicant has a well-founded fear of persecution in Malaysia, and the applicant does not meet the definition of refugee in s 5H(1). The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligation 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 has found that the applicant will not be harmed for his claimed reasons or for any other reason upon return to Malaysia. As the ‘real risk’ test for the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[1] for the same reasons set out above, the Tribunal is not satisfied that there is a real risk that the applicant will be harmed upon return to Malaysia. Therefore, the Tribunal is not satisfied that 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 that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[1] MIAC v SZQRB (2013) 210 FCR 505.
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.
Hee-Jung Kim
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.
…

[2024] AATA 3535

13 May 2024

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