1919793 (Refugee)

[2024] AATA 2312

1919793 (Refugee) [2024] AATA 2312 (17 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1919793

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Jennifer Ermert

DATE:  17 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 17 June 2024 at 9:15am

CATCHWORDS

REFUGEE – Protection Visa – Malaysia – applicant declined hearing invitation – fear of harm from the investors in the multi-level marketing business who lost their money – claims are made in general terms and are unsubstantiated – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 July 2019 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 7 December 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations, nor is he a member of the same family unit as a person in respect of whom Australia has protection obligations and who holds a protection visa of the same class as that the applicant applied for. 

3. The applicant was invited to attend a hearing scheduled on 14 May 2024.  On 8 May 2024, the applicant wrote to the Tribunal declining the hearing invitation and consenting to a decision on the papers instead.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations either because he is a refugee or a person who satisfies the complementary protection criterion, or whether he is a member of the same family unit as such a person and that person holds a protection visa of the same class as that the applicant applied for. 

Identity and country of nationality

1. The applicant has provide a copy of the biodata page of his Malaysian passport to the Department in connection with the protection visa application.  In the absence of evidence that the passport a copy of the biodata page of which was provided is a bogus document as defined in s 5(1) of the Act, the delegate has accepted the applicant’s identity and accepted that he is a citizen of Malaysia. 

2. The Tribunal has considered the copy of the biodata page of the applicant’s Malaysian passport on his departmental file.  In the absence of information that the applicant is not who he claims to be, and in the absence of evidence that the Malaysian passport a copy of the biodata page of which was provided to the Department is not genuine, the Tribunal also accepts the applicant’s identity and accepts he is a citizen of Malaysia

3. For the purposes of assessing whether the applicant meets either of the criteria in      s 36(2)(a) and s 36(2)(aa), the Tribunal finds the applicant’s country of nationality is Malaysia. 

Personal background and immigration history 

1. Based on the information contained in the applicant’s protection visa application, the applicant is a [age] year old Chinese Malaysian man of the Buddhist faith who was born in Sarawak, Malaysia.  He has completed his high school education in Malaysia, and prior to his departure from Malaysia he has never been employed nor has he travelled to any other country.    

2. The applicant arrived in Australia on [date] December 2017 on a Class UD Subclass 601 Electronic Travel Authority (‘ETA’), and he has not departed Australia since.  On [date] March 2018 following the cessation of his ETA, the applicant became an unlawful non-citizen.  On 7 December 2018, the applicant applied for the grant of a protection visa, the refusal of which is the subject of this review.

3. In the absence of information and evidence to the contrary, the Tribunal accepts each of the above matters to be true.

Protection claims

1. The applicant claimed in the protection visa application that he and his business partner were involved in a multi-level marketing business which hundreds of people invested in.  However, his business partner betrayed him by taking all the investors’ money to the tune of hundreds of thousands of Malaysian Ringgit and leaving him to deal with the problems that followed.  The investors lodged a police report and as a result, the applicant was convicted and his company assets were confiscated.  He cannot return to Malaysia because the authorities and all the investors who lost their money are looking for him.  The authorities would not protect him because he is a wanted person, and he cannot avoid harm through relocation because the authorities would be able to track him down easily.

2. The applicant was not invited to a hearing by the Department.  In refusing his protection visa application, the delegate found that the applicant does not meet the definition of ‘refugee’ because his claimed fear of harm is not for reason of his race, religion, nationality, membership of a particular social group or political opinion.  Nor was the delegate satisfied that the applicant faces a real chance of serious harm for one of the enumerated reasons in the reasonably foreseeable future.

3. The delegate also found that the applicant does not face a real risk of significant harm on return to Malaysia from the investors because he is able to obtain effective state protection within the meaning of s 36(2B)(b).  To the extent that the applicant claimed fear of harm from the authorities, the delegate found that Malaysia has an impartial judicial system with the administration of fair trials where the presumption of innocence applies.  Whilst overcrowding in prison is an issue and access to healthcare can be limited, it is not of such severity as to amount to cruel or inhuman treatment or punishment, or degrading treatment or punishment, that contravenes Article 7 of the International Covenant on Civil and Political Rights.

REASONS FOR THE DECISION

1. For the reasons that follow, the Tribunal concludes that the decision under review should be affirmed because the applicant is not a person in respect of whom Australia has protection obligations. 

Refugee and complementary protection assessment

1. To be eligible for the grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a), the applicant must show he has a well-founded fear of persecution in Malaysia, and owing to that fear, is unable or unwilling to avail himself of the protection of Malaysia. This requires an assessment of whether there is a real chance that the applicant would be seriously harmed in the reasonably foreseeable future if he returned to Malaysia because of his race, religion, nationality, membership of a particular social group or political opinion.

2. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

3. The applicant was invited by the Tribunal to attend a hearing.  He declined the invitation and opted instead for a decision on his review application to be made on the papers.  Without the benefit of the hearing, the Tribunal is unable to be satisfied on the limited information and material currently available that the applicant faces a real chance of persecution if he returned to Malaysia, now or in the reasonably foreseeable future. The applicant’s protection claims with respect to his fear of harm from the investors in the multi-level marketing business who lost their money, and his claims of conviction and the confiscation of his company assets, are lacking in substance and detail and without any corroborating evidence. 

4. Had the applicant attended the hearing, the Tribunal would have asked him to describe the multi-level marketing business.  The Tribunal would have asked him about details of how he and his business partner, who he alleged has betrayed him, came to be involved in the business; what kind of product or service the multi-level marketing business promoted or marketed; how he recruited his downline investors and who they were; and how the investors’ remuneration was supposed to be calculated and paid, etc.  The Tribunal would have asked the applicant to explain to it the circumstances in which his business partner’s alleged betrayal in absconding with all the investors’ money was discovered; what happened immediately after the discovery; and how the affected investors were notified.

5. Moreover, the Tribunal would have asked the applicant questions in relation to his claimed prosecution and conviction, including details such as the offence provision/s under which he was prosecuted and convicted; the terms of the specific sanctions or punishment that was ordered by the court including whether there was anything other than the claimed confiscation of his company assets (e.g. any other pecuniary penalty and/or imprisonment, and if so the amount and duration); what company assets were confiscated and how it happened.  The Tribunal would have also asked the applicant to particularise the nature of the harm or mistreatment he fears from the investors and why he does not believe the authorities would be able to protect him, as well as explain why he believes the authorities continue to be after him following the confiscation of his company assets.  The Tribunal would have asked the applicant how he managed to depart Malaysia if he is indeed a person wanted by the authorities, and what difficulties (if any) he encountered on his departure from Malaysia.   

6. Finally, the Tribunal would have asked the applicant to explain why there was a delay of almost one year after his arrival in Australia before he lodged his protection visa application, if he had indeed fled Malaysia due to a genuinely held fear of serious harm from the investors who lost their money in the multi-level marketing business, and fear of unfair treatment from the Malaysian authorities in relation to the failed multi-level marketing business.

7. As the Tribunal is unable to be satisfied on the limited information available that there is a real chance the applicant would suffer serious harm now or in the reasonably foreseeable future if he returned to Malaysia, the Tribunal finds the applicant does not meet the refugee criterion in s 36(2)(a). 

8. For the same reasons, the Tribunal finds there are no substantial grounds for it to believe that, if the applicant was removed from Australia to Malaysia, there is a real risk that he would suffer significant harm as a necessary and foreseeable consequence of that removal.  Accordingly, the Tribunal finds the applicant does not satisfy the complementary protection criterion in s 36(2)(aa). 

9. Finally, there is no evidence before the Tribunal to suggest that the applicant is a member of the same family unit as another person who satisfies s 36(2)(a) or (aa) and who holds a protection visa of the same class as that applied for by the applicant. Therefore, the Tribunal finds that the applicant does not satisfy s 36(2)(b) or (c) of the Act. 

DECISION

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

Jennifer Ermert
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.

1. 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.

2. 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.

3. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…