1907845 (Refugee)

[2024] AATA 4059

1907845 (Refugee) [2024] AATA 4059 (7 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1907845

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Ben Goulding

DATE:07 October 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 07 October 2024 at 11:06am

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – bisexual – fear of detention – fear of physical assault – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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 28 March 2019 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 12 August 2018. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.

3. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CRITERIA FOR A PROTECTION VISA

4. 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, the applicant 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.

5. Section 36(2)(a) of the Act 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.

6. 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.[1] 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.[2]

   [1]Migration Act1958 (Cth), s 5H(1)(a).

   [2]Migration Act1958 (Cth), s 5H(1)(b).

7. Under the Act, 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.[3] 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 the Act, which are extracted in the attachment to this decision.[4]

   [3]Migration Act 1958 (Cth), s 5J(1).

   [4]Migration Act 1958 (Cth), s 5J(2)–s 5J(6) and s 5K–s 5LA.

8. If a person is found not to meet the refugee criterion,[5] s 36(2)(aa) of the Act sets out that a person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).

   [5]Migration Act 1958 (Cth), s 36(2)(a).

9. The Act sets out that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[6]

   [6] Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are defined in s 5(1) of the Migration Act 1958 (Cth).

10. The Act also provides certain circumstances where it is taken not to be a real risk that a person will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[7]

    [7]Migration Act 1958 (Cth), s 36(2B).

    Mandatory considerations

11. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

14. According to the applicant’s protection visa application, the applicant is [an age]-year-old male from Sabah, Malaysia. The applicant travelled to Australia on an apparently genuine Malaysian passport. A copy of the biodata page of the applicant’s passport is contained on the Departmental file. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.

15. Department records indicate that the applicant arrived in Australia [in] May 2018, and he lodged an application for a protection visa with the Department on 12 August 2018.

    The applicant’s protection claims

16. In summary, in his protection visa application, the applicant claimed as follows:

    a.He is bisexual and was born and raised in an Islamic country under Islamic law.

    b.Under Malaysian law, he can be punished under s 377 of the Penal Code, including being sentenced to prison for up to 20 years and whipped.

    c.Several states also apply Sharia law to any male or female Muslim that is found to be in a same-sex relationship. This can include up to 3 years in prison, whipping or a fine of MYR5000. These penalties can be combined if a person is found guilty.

    d.He cannot continue his life as a bisexual man in Malaysia.

    e.Malaysia is not safe for the LGBT community.

17. No further material has been provided by the applicant in support of his claims.

    Consideration of claims by the Department

18. On 25 February 2019, the Department wrote to the applicant and requested further information in relation to his claims for protection. In the request for further information, it was put to the applicant that the Department delegate had ‘concerns that [the applicant’s] claims for protection relating to [his] sexual orientation may not be plausible because they lack substantiating personal details’. The letter went on to say that the claims outlined in the protection visa application ‘primarily reference the general country situation’ rather than the applicant’s own personal situation. Following this, the delegate then requested that the applicant provide further information about his own personal situation, including:

    a.What made him leave Malaysia;

    b.What he thinks will happen when he returns to Malaysia; and

    c.Details of when he first became aware of his sexual orientation.

19. The applicant was given 28 days to respond to the letter; however, the Department did not receive a response.

20. The applicant was not invited to attend an interview with the Department and no further material was provided by the applicant in support of his claims. The delegate refused the applicant’s protection visa application on 28 March 2019. In the Department decision record, the delegate stated as follows:

    I do not accept the applicant’s claims that they are bisexual are credible because no substantiating personal details have been provided by the applicant despite numerouns [sic] opportunities provided to them to do so. I am therefore unable to be satisfied that these claims reflect the applicant’s circumstances.

    On the basis of the information before me, I reject the applicant’s claims in their entirety.

21. As such, the delegate was not satisfied that the applicant was a refugee as defined in s 5H(1) of the Act. The delegate also considered the applicant’s claims under the complementary protection criterion and determined that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that the applicant will suffer significant harm.

22. For these reasons, the Department was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).

    Consideration of claims by the Tribunal

23. The applicant appealed the Department’s decision to the Tribunal on 1 April 2019.

24. On 11 March 2024, the Tribunal wrote to the applicant and advised him that his file was being prepared for review. The applicant was invited to complete a pre-hearing information form.

25. On 12 March 2024, the applicant replied by email and attached a copy of the pre-hearing information form. In the form, the applicant re-stated a summary of his claims that was taken from the Department decision record, namely:

    ·     I am Bisexual and were born and raised in an Islamic country that practices Islamic law.

    ·     According to Malaysia’s Penal Code, a person can be imprisoned for up to twenty years and according to Sharia law, a person can be imprisoned for up to three years, for homosexual and lesbian acts. Other punishments also include whipping and fines.

    ·     If they return to Malaysia the will be unable to continue living their lifestyle as bisexual.

26. On 23 August 2024, the Tribunal wrote to the applicant and invited him to give oral evidence and present arguments at a hearing on 4 October at 10:00 am. The hearing invitation set out that the Tribunal had considered all the material before it, but it was unable to make a favourable decision on that information alone. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.

27. On 1 September 2024, the applicant returned the completed hearing invitation form. In the hearing invitation form the applicant checked the box which reads ‘No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear’. The applicant also checked ‘no’ to questions relating to whether he would have any issues that may affect his ability to participate in a hearing. Additionally, the applicant checked ‘no’ to questions relating to whether he intended to provide additional documents in support of his claim, and the intention to call witnesses.

28. On 6 September 2024, an Officer of the Tribunal attempted to call the applicant twice at about 10:55 am and 10:58 am. The applicant did not answer the phone and the call was directed to an unidentified voicemail. The Officer did not leave a voice message.

29. On 10 September 2024, an Officer of the Tribunal again attempted to call the applicant twice at 4:20 pm and 4:25 pm. The calls were again directed to voicemail and no message was left.

30. On 11 September 2024, the Tribunal sent a letter to the applicant by email. The letter requested that the applicant confirm that he does not want to provide evidence before the Tribunal and that he agrees to a decision on the papers. The applicant was given until 18 September 2024 to provide a response. The letter set out that if a response was not received by that date, a decision will be made on his case without holding a hearing in accordance with s 425(2)(b) of the Act.

31. The Tribunal did not receive a response from the applicant and the applicant’s hearing was cancelled.

32. The Tribunal is satisfied that the necessary consent has been provided by the applicant under s 425(2)(b) and that, pursuant to s 425(3), the applicant is no longer entitled to appear before it. Given the above, the Tribunal cancelled the applicant’s hearing.

    Reasons and findings

33. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. As per s 5AAA of the Act, the Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[8]

    [8] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70

34. Aside from the information outlined above, the applicant has not provided any further details to the Tribunal in relation to his claims for protection. Moreover, those claims outlined in his protection visa application and in his pre-hearing information form, are insufficiently detailed. For instance, the applicant has stated that he is bisexual, and that he is at risk of harm on account of the generally applicable Penal Code in Malaysia, and under Sharia law as it applies in various states. However, the applicant has not provided any information about his life in Malaysia as someone who is bisexual, nor has he provided details regarding his past experiences of harm, his individual circumstances, or current or past relationships. Additionally, the applicant has not provided any updated information about his circumstances since he lodged his application, such as whether he has engaged in any activities with the LGBTIQA+ community in Australia.

35. The Tribunal has had regard to country information contained in the current DFAT report for Malaysia regarding the situation for the LGBTIQA+ community. The report indicates that the LGBTIQA+ community faces a range of issues, with a high risk of official discrimination, a moderate risk of societal discrimination, and a prohibition on same-sex sexual relationships.[9]

    [9] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, (24 June 2024), at [3.126]-[3.148].

36. However, on the limited evidence before it, the Tribunal cannot be satisfied that the applicant is bisexual, as he claims. Nor is the Tribunal satisfied that the applicant is a member of the LGBTIQA+ community. As such, the Tribunal does not accept that the applicant would face a real chance or real risk of harm, including imprisonment, whipping, discrimination or other harm, for reason of his sexuality if he were to return to Malaysia.

37. For these reasons, and based on all the information before it, the Tribunal is not satisfied the applicant would face a real chance of serious harm if he returns to Malaysia now or in the reasonably foreseeable future. The Tribunal is also 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.

    CONCLUSION

38. 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).

39. 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).

40. 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

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

    Ben Goulding
    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.

    …