1924440 (Refugee)
[2024] ARTA 577
•11 December 2024
1924440 (REFUGEE) [2024] ARTA 577 (11 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1924440
Tribunal:General Member J Cabarrús
Date:11 December 2024
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 11 December 2024 at 2:37pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Chinese ethnic minority – racial discrimination – request for the Tribunal to make a decision on the papers without a hearing – lack of supporting evidence to substantiate claims – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Administrative Review Tribunal Act 2024, ss 105, 106
Migration Act 1958, ss 5, 36, 65, 499
CASES
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a national of Malaysia as shown on his passport, applied for the visa on 9 August 2019. The delegate refused to grant the visa on the basis of country information showing that Chinese Malaysians did not face risks of serious or significant harm in Malaysia.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he meets the complementary protection criterion. These criteria broadly require a person to face a real chance of persecution for specified reasons, or a real risk of significant harm, in their home country. The relevant law is set out in the attachment at the end of this decision.
For the following reasons, I have concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background, summary of claims and consideration of s 106 of the ART Act
The applicant was born in Pahang, Malaysia in [year]. He initially came to Australia in February 2016 on a visitor visa, and was granted a student visa in May 2016. He departed Australia in February 2018, returning in March 2018. He applied for the protection visa in February 2019. He gave the Department a copy of his passport, and in the statement accompanying his visa application form, he briefly stated claims for protection along the following lines:
a.As a member of the Chinese ethnic minority in Malaysia, he has experienced racial discrimination which was ignored by the Government; Muslims are privileged in Malaysia, and as a Chinese person, he has to pay more than them in commercial activities;
b.He engaged in a secret campaign against racial discrimination, which undertook its activities underground due to safety concerns; they wanted to advocate to elect a politician who would favour people of Chinese ethnicity; they proposed a motion to cancel Muslim privileges and maintain seats in parliament proportionate to the population, and a policy to punish Muslim mobs who harmed or insulted Chinese people in race riots in the past;
c.They were inspected and monitored by local police and became persecuted; the organisation was discovered by the police and he heard the police were planning to arrest the group members, so he ran away and went into hiding;
d.He managed to flee to Australia but his relatives tell him that the danger has not subsided and police still harass his family to get information from them; he was warned not to return or he could be vanished.
The delegate refused to grant the visa in August 2019, and the applicant applied to the Tribunal for a review of that decision in September 2019. He gave the Tribunal a copy of the delegate’s decision.
In March 2024, the Tribunal asked the applicant to complete a ‘Pre-hearing information form’, which included a prompt to provide more information about his claims for protection. The applicant returned the completed form, but in the field for supplying more information about the claims, the applicant simply copied and pasted the delegate’s summary of his claims and did not provide any new information.
In October 2024, the Tribunal notified the applicant that his matter had been listed for hearing. The applicant responded by completing the ‘Response to hearing invitation’ form, and indicating on that form that he would not participate in the hearing, and requesting the Tribunal to make a decision on the papers.
In November 2024, the Tribunal wrote to the applicant to advise him that because he had provided very limited evidence about his claims for protection, if the Tribunal were to proceed to make a decision on the papers, it would likely be an unfavourable decision. The Tribunal asked the applicant to advise whether there was any further evidence he could provide, e.g. by way of documents or by way of oral evidence at a hearing. The applicant replied and reiterated his request for the Tribunal to make a decision on the papers without a hearing.
Section 106 of the Administrative Review Tribunal Act 2024 (ART Act) permits me to make a decision after considering the documents provided and without holding a hearing in certain circumstances. In this case, the only parties to the proceeding are the applicant and the Minister for Home Affairs, who is a non-participating party; and the applicant has requested the Tribunal to make its decision without holding a hearing; so the requirements of s 106(3)(a) and (b) are met. I therefore need to decide whether it appears that the issues for determination can be adequately determined in the absence of the parties, for the purposes of s 106(3)(c).
In reviewing a decision of this kind, to refuse to grant a protection visa, I need to decide whether I am satisfied that the applicant faces a real chance of persecution in his country of nationality for a reason set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act; and if not, I need to decide whether I am satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to their receiving country, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
In this case it appears to me that the issues for determination can be adequately determined in the absence the parties. I have a copy of the Department’s file, which includes a copy of the applicant’s identity documents, and his protection visa application form with his biographical information and his protection claims set out in the accompanying statement. He also gave the Tribunal a copy of the delegate’s decision record which sets out some of this information. Based on this information I can determine the applicant’s identity and his country of nationality (and receiving country). The applicant was also put on notice in correspondence from the Tribunal, that a key issue in this case is a lack of supporting evidence to substantiate his claims. He was given the opportunity to provide further substantiating information but has not done so. In these circumstances, I am able to form conclusions about whether he meets the criteria for a protection visa in ss 36(2)(a) and 36(2)(aa) of the Act based on the documents provided and in the parties’ absence.
Therefore, I consider that s 106(3) of the ART Act applies, and in accordance with the applicant’s request, I have proceeded to make a decision based on the documents provided.
In making this decision, I have considered all documents on the Department file and the Tribunal file, including those referred to above. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant.
Findings and reasons
It is the responsibility of the applicant to specify all particulars of their protection claims and to provide sufficient evidence to establish the claims: s 5AAA of the Act. A visa application must be rejected unless the decision-maker reaches a positive finding of satisfaction that the criteria for the visa are met: s 65 of the Act and see e.g. Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73 at [16]-[19]. In this case the central criteria for the protection visa require the applicant to face a real chance of persecution or a real risk of significant harm in Malaysia.
The evidence the applicant has given to the Department and the Tribunal (including in the brief claims in his statement), is not sufficiently detailed to satisfy me that he faces a real chance of persecution in Malaysia or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm. The applicant has provided insufficient detail about the organisation he claimed he belonged to, his activities with that organisation, the claimed encounters with the police, or the discrimination, harassment or harm he has faced in the past or would face in the future if he returned to Malaysia.
Given the lack of information, I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). There is no suggestion that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa, so the applicant does not meet s 36(2)(b) or (c) either. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…
0
1
0