Background
Background to the litigation
The issue in this case is whether the applicants, or either of them, meet the refugee criterion and, if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The first applicant claims to be [age] years old and a national of Malaysia. The second applicant claims to be [age] years old and a national of Malaysia. The applicants entered Australia [in] December 2017 as the holders of UD-601 Electronic Travel Authorities (ETAs). The ETAs ceased [in] March 2018 and they subsequently became unlawful non-citizens. On 7 August 2019, the applicant lodged an application for a Class XA, Subclass 866 (Protection) visa. They were subsequently granted Class WC, Subclass 030 (Bridging C) visas in association with the lodgement of their protection visa application. On 16 September 2019, the applicants were notified that the Department of Home Affairs had refused to grant their application for protection visas in a decision made on the same date. On 17 September 2019, the applicant applied for merits review of the Department’s decision. Claims: The applicants’ claims are summarised in the delegate’s decision and the applicant’s protection visa application. The applicants claim that they are ethnically Chinese and have experienced serious racial discrimination from Malays. They claim that Malaysia has a serious racial discrimination problem and that Malays like to harm Chinese and rob, kidnap and rape them. They claim that they were kidnapped and imprisoned for three weeks, and that their family was threatened and forced to pay for their release. They claim that, after escaping imprisonment, they sought help from the police which was refused because they were not Malay or Muslim. They claim that the authorities will not protect them because Malays and Muslims like to harm non-Muslims such as Chinese or Indian people. They claim that, if they return to Malaysia, they will be treated unfairly and will face racial discrimination Evidence: The material before the Tribunal includes, relevantly:·The applicants’ protection visa application;·The applicant’s identity documents being copies of their Malaysian passports provided to the Department; ·The protection visa decision record dated 16 September 2019 (the delegate’s decision record);·The application for review form; ·Department file [number] concerning his protection visa application; and·Country information on Malaysia, referred to below. Country of reference / receiving country: The applicants claim to be citizens of Malaysia. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Malaysia is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country; therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.Hearing:
Evidence
Evidence Before The Court
The applicants claim that they are ethnically Chinese and have experienced serious racial discrimination from Malays. They claim that Malaysia has a serious racial discrimination problem and that Malays like to harm Chinese and rob, kidnap and rape them. They claim that they were kidnapped and imprisoned for three weeks, and that their family was threatened and forced to pay for their release. They claim that, after escaping imprisonment, they sought help from the police which was refused because they were not Malay or Muslim. They claim that the authorities will not protect them because Malays and Muslims like to harm non-Muslims such as Chinese or Indian people. They claim that, if they return to Malaysia, they will be treated unfairly and will face racial discrimination Evidence: The material before the Tribunal includes, relevantly:·The applicants’ protection visa application;·The applicant’s identity documents being copies of their Malaysian passports provided to the Department; ·The protection visa decision record dated 16 September 2019 (the delegate’s decision record);·The application for review form; ·Department file [number] concerning his protection visa application; and·Country information on Malaysia, referred to below. Country of reference / receiving country: The applicants claim to be citizens of Malaysia. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Malaysia is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country; therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.Hearing: On 1 July 2024, the Tribunal wrote to the applicants advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing to be held on 25 July 2024. The letter advised that if they did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable them to appear before the Tribunal. The letter was sent to the applicant by email at the email address provided in the application for review. That correspondence was returned undeliverable. On 3 July 2024, the Tribunal sent a letter by express post to the physical address provided in the application for review. That correspondence had not been returned from the applicants and the Tribunal received no response. On 18 July 2024 and 24 July 2024, the Tribunal sent hearing reminders to the applicants by SMS to the telephone number provided in the application for review. No response was received to these reminders. At 9.55am on 25 July 2024, an officer of the Tribunal attempted to contact the applicants by telephone to ascertain whether they intended to attend the hearing but the call was not answered. There was no response to the voicemail message left by the officer.
Decision
Reasons for decision
There is no suggestion that the applicants satisfy s.36(2) on the basis of being a member of the same family unit of a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.James LambieSenior MemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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, 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 to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicants, or either of them, meet the refugee criterion and, if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The first applicant claims to be [age] years old and a national of Malaysia. The second applicant claims to be [age] years old and a national of Malaysia. The applicants entered Australia [in] December 2017 as the holders of UD-601 Electronic Travel Authorities (ETAs). The ETAs ceased [in] March 2018 and they subsequently became unlawful non-citizens. On 7 August 2019, the applicant lodged an application for a Class XA, Subclass 866 (Protection) visa. They were subsequently granted Class WC, Subclass 030 (Bridging C) visas in association with the lodgement of their protection visa application. On 16 September 2019, the applicants were notified that the Department of Home Affairs had refused to grant their application for protection visas in a decision made on the same date. On 17 September 2019, the applicant applied for merits review of the Department’s decision. Claims: The applicants’ claims are summarised in the delegate’s decision and the applicant’s protection visa application. The applicants claim that they are ethnically Chinese and have experienced serious racial discrimination from Malays. They claim that Malaysia has a serious racial discrimination problem and that Malays like to harm Chinese and rob, kidnap and rape them. They claim that they were kidnapped and imprisoned for three weeks, and that their family was threatened and forced to pay for their release. They claim that, after escaping imprisonment, they sought help from the police which was refused because they were not Malay or Muslim. They claim that the authorities will not protect them because Malays and Muslims like to harm non-Muslims such as Chinese or Indian people. They claim that, if they return to Malaysia, they will be treated unfairly and will face racial discrimination Evidence: