1929411 (Refugee)

1929411 (Refugee) [2024] AATA 4105 (26 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1929411
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Mia Bailey
DATE:26 August 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 August 2024 at 5:03pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Chinese Malaysian ethnicity – Christian religion – has not provided any additional information – have been involved in an investment scheme – fear harm from the investors – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 426, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 30 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 18 May 2019. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act.
On 15 July 2024, the Tribunal wrote to the applicant advising that his case was being prepared to be given to a Tribunal Member. He was requested to complete a ‘Pre-hearing information’ form and provide any additional evidence of relevance to his application. No response was received from the applicant.
On 2 August 2024, the Tribunal wrote to the applicant inviting him to attend a hearing on 26 August 2024 at 10:30am to give evidence and present arguments. The invitation stated that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear. On 19 August 2024 and 23 August 2024, the Tribunal sent SMS reminders to the applicant about the hearing. The applicant did not respond to the hearing invitation or otherwise contact the Tribunal.
The applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal called the applicant’s mobile at the scheduled hearing time but received no answer.
Having reviewed the Tribunal file, I am satisfied that the applicant was properly invited to a hearing in accordance with the relevant statutory requirements, the invitation was not returned to sender, 2 SMS hearing reminders were sent, and the applicant was informed of the potential consequences of non-appearance. No reason for the non-appearance has been provided.
I acknowledge that the review application was lodged in October 2019. However, the above hearing correspondence was sent to the applicant via the email address provided in his review application. Between December 2019 and May 2020, the applicant contacted the Tribunal on several occasions from the same email address. There is nothing before me to indicate that the applicant was not aware of the Tribunal hearing.
In these circumstances I have decided to exercise my discretion under s 426A(1A)(a) of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Relevant provisions of the Act are extracted in the attachment to this decision.
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 (Department), 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 applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

s 36(2)(aa) of the Act.
The mere fact that a person claims to fear 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 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. 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 or all the allegations made by an applicant.[1]
[1] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
For the following reasons, I have concluded that the decision under review should be affirmed.
Background and receiving country
The applicant, a [age]-year-old male, arrived in Australia on[date] March 2019 on an Electronic Travel Authority (UD-601) visa.
The applicant provided a copy of the biodata page of his Malaysian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Malaysia and there is no information before me to the contrary. I find that the applicant is a citizen of Malaysia, and that Malaysia is his receiving country for the purposes of assessing his claims for protection.
Evidence before the delegate
According to the protection visa application, the applicant was born in Perak and resided in Melaka. He is of Chinese Malaysian ethnicity and Christian religion. No details are provided of any family members. He completed high school in Melaka in December [year] and had his own business.
Regarding his claims for protection, he stated (in summary) that:
i.In 2016 he had his own business in retail sales but was not making much profit.
ii.A friend visited him and offered him a high return investment plan with a monthly return of 20 per cent. He invested money and received the profit return for the next 5 months.
iii.His friend asked him to be a sales agent and promote the investment plan to others. He signed up many relatives and friends who all received the profit return.
iv.In early 2018 his friend suddenly disappeared, and the company closed down. All the investors he signed up came to his workplace, asked for a refund of their investment and harmed him.
v.Some of the investors made a report to the police and he was called in for investigation. He was the only person who was convicted. His company assets were impounded by the authorities and the investors came to his house and harmed him and his family members. Some of them came with a pistol and threatened to kill him if he didn’t refund their money.
vi.He made a report to the police but no action was taken.
vii.If he returns to Malaysia, he thinks he may be harmed or killed by the investors. The authorities could not protect him, and he cannot relocate because the investors have a wide network throughout the country.
The applicant was not invited to attend an interview with the Department. The delegate found the applicant did not fear harm for any of the reasons in s 5J(1)(a) of the Act and was therefore not a refugee. For the purposes of the complementary protection criterion, the delegate found that the applicant could obtain protection from the Malaysian authorities such that there was no real risk that he would suffer significant harm from the investors.
Assessment
As discussed above, the applicant did not appear before the Tribunal to give evidence and present arguments. I have made my decision based on the available information.
I have significant concerns with the applicant’s claims. The evidence provided by the applicant to the Department is not sufficiently detailed to enable me to be satisfied 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 he will suffer significant harm. He has not provided any additional information to the Tribunal in support of his protection claims.
There is insufficient information before me in relation to whether he fears harm for any of the reasons in s 5J(1)(a) of the Act and on what basis. The applicant has provided insufficient information about the investment scheme that he entered into in 2016 and his role in promoting the scheme to other investors, including how many investors he signed up and the amount of money they invested. He has provided no documentary evidence in support of his claims to have been involved in an investment scheme.
He has provided insufficient information about the events that took place between early 2018 when the investment scheme closed, and his departure from Malaysia on [date] March 2019. There is insufficient information regarding the threats and harm that he was subjected to during this period, including by whom, when and how often these incidents occurred, and the nature of any harm that he or his family experienced.
The applicant has provided insufficient details regarding his interactions with the police regarding these incidents. He refers to being investigated and convicted following a complaint by the investors to the police but has provided no further details of the reason for the investigation, any court proceedings that he was involved in, or the offence for which he was convicted. He has provided no documentary evidence of any court proceedings.
The applicant has also referred to making a report to the police in connection with the threats and harm that he was subjected to by investors but has provided insufficient details of what action was taken by the police or why they were unable to assist him. He has provided insufficient information about how the investors would be able to locate him throughout Malaysia, such that he could not safely live in another part of the country.
The applicant has not provided any details of what has occurred since he lodged his protection visa application in May 2019, including whether his family members in Malaysia have experienced any problems and whether he continues to fear harm from the investors or anyone else and why.
Given the lack of information identified above, without more detail, I am unable to make an assessment of the significance to be attached to the applicant’s assertions. He has not provided any further information to enable me to determine if he has suffered persecution in the past; whether his fear of facing persecution in the future is for any of the reasons in

s 5J(1)(a) of the Act; or if his fear is well-founded.
In view of the insufficient information and lack of detail contained in the applicant's claims, I am not satisfied that he has been persecuted in the past, or that there is a real chance that he will be persecuted in the reasonably foreseeable future if he were to return to Malaysia. I am not satisfied that the applicant has a well-founded fear of persecution in Malaysia and therefore find that the applicant is not a refugee as defined in s 5H(1).
Having concluded that the applicant is not a refugee, I have considered the alternative criterion in s 36(2)(aa). For the same reasons discussed above, I am 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.
Conclusions
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mia Bailey
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4105

26 August 2024

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