1930408 (Refugee)
[2024] ARTA 612
•30 October 2024
1930408 (REFUGEE) [2024] ARTA 612 (30 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 1930408
Country of Reference:Malaysia
Tribunal:General Member M. Moustafine
Date:30 October 2024
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 30 October 2024 at 6:50pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – threats from business investors – conviction for investment failure – criminal gang – physical assault – fear of killing – family violence – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275Any 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 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 who claims to be a national of Malaysia, applied for the visa on 13 July 2019. The delegate refused to grant the visa as he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either refugee or complementary protection criterion.
On 27 October 2019 the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of that decision.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 29 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
Evidence before the Department
According to the Protection visa application form, the applicant was born in [specified year] in Perak, Malaysia where he lived until he left for Australia, where he arrived [in] July 2019. The applicant identified his ethnicity as Malaysian Chinese and his religion as Christian. He speaks, reads and writes in English, Malay and Mandarin. He completed [number] years of high school in December 2013 and derived his income from his own business. He stated that he had never married and did not identify any family members in Australia or overseas. The applicant stated that he left Malaysia legally on his Malaysian passport, a copy of which was submitted with his application.
The applicant’s protection claims as set out in his application form were as follows:
At early of Year 2017, I have managed my own business retail shop with selling [specified] products. One of the days, my friend [Friend A] come to visited me and selling high return investment plan with monthly return 8% margin. This investment product hold by one company name [Business 1]. At that time, I have made an investment almost RM [amount] and continuously 6 month I have received the profit return from my friend. So, my friend asking to be the sales agent for promote the investment plan to my other friends. I have start to promote the investment plan to my relative and other friends. There are many closed deals, and all my customers received their profit return on time.
At March of Year 2019, the company name [Business 1] suddenly declare that temporary unable to payout monthly divide and unable refund the investment fund because their currency investment system hacked by someone and running lost USD [amount] within a night. All of my investors come to my business place and ask for refund their investment and harm me. Some of the investors have make a report to police department and the authority department have call me up for investigation. They lodge a report to the authorities and I'm the only one who was convicted. The investors come to my house to harm me and family member. One of the investors having [a specified title] with very powerful network in government department, his bodyguard harmed me very badly and warning will kill me if I not to settle by refund all the money. The company [Business 1] personal in charge had called to warning that do not make any report to police department about this issue otherwise they will send gangster member to harm me. My family member advises me to leave a country for security purpose because some of the investor they come to my house with pistol and mention that if I cannot make a fully refund then they will kill me. I have report to police department, but there are no action or news reply from the police department.
For the security purpose, my family member advises me leaving home country so I entry Australia with visitor visa. Recently, I have online searching for Australia visa type and I found that the protection visa can help me. I believe that Australia is the safe place for me to start my new life.Further, the applicant claimed that if he returned to Malaysia, he may be harmed again, captured by the investors or killed by them. The authorities would not provide him ‘any kind of protection as 24 hours protection’ and he was ‘unable to relocate to any other part of Malaysia because the investors had wide network in whole Malaysia state’ and he would certainly be caught by them if he returned there.
The applicant did not provide any supporting documents to the Department and was not invited to attend an interview.
On 30 September 2019, the delegate refused to grant the applicant a Protection visa as he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either refugee or complementary protection criterion.
The delegate found that the applicant’s claimed fear of harm in Malaysia was not for reasons of his race, religion, nationality, political opinion or membership of a particular social group, as set out in (5J(1)(a). He was therefore not satisfied that the applicant was owed protection under the refugee criteria as outlined in s36(2)(a) of the Act. Having considered country information regarding law enforcement, corruption and legal protection in Malaysia, as well as the personal circumstances of the applicant, the delegate was not satisfied that there were substantial grounds for believing that there was a real risk the applicant would suffer significant harm or was owed protection under the complementary protection criterion as outlined in s36(2)(aa) of the Act.
Evidence before the Tribunal
On 27 October 2019, the applicant applied to the AAT for a review of the Department’s decision, a copy of which he provided for the purpose of the review. No other written material or evidence was provided to the Tribunal in support of the applicant’s claims for protection.
The applicant was invited to appear before the Tribunal at a hearing on 22 October 2024 but was granted a postponement [for a reason specified].
The applicant appeared before the Tribunal on 29 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Where relevant the applicant’s evidence at the hearing is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
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.
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).
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.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
On the basis of his Malaysian passport provided to the Department, and, in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and considers Malaysia as the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria, respectively.
The applicant’s claims
The applicant told the Tribunal at that hearing that he came to Australia in July 2019 with his wife because they wanted to live and work here. He arrived on a tourist visa and found an agent as he wanted to get a Bridging visa. The agent suggested that he apply for a Protection visa and filled in his form. He did not know what was in the form as he has not been able to locate the agent. Asked why his wife was not included in his application, the applicant said she had made a separate application at the same time.
In a discussion of his background the applicant confirmed that he was born and lived in Perak until he came to Australia. He completed [specified years] of middle school when he was [age range] years old, then worked in various short-term jobs as an [occupation 1]. His parents and [a sibling] are still living in Perak. He married his wife in 2017, although they had been together since 2010 and lived together since 2015. He said he had a marriage certificate but had not provided it to the Tribunal as he did not know he had to. In Australia he had also been working as an [occupation 1] and had saved some money.
Asked what claims he wished to make for protection, the applicant said his wife grew up in a terrible environment, being beaten by her drunken father every day since she was a child. She had moved out of her father’s house to live with the applicant in the same village in 2015 but her father had come to their house to cause trouble, although the applicant stopped him. The last time his wife was beaten by her father was two weeks before they left for Australia. Her father allegedly slapped her on the face and verbally abused her. His wife had never reported this treatment to police as the perpetrator was her father. Nor had she received medical treatment for any injuries.
The applicant confirmed that he had never suffered serious or significant harm in Malaysia himself and did not fear that anything would happen to him if he returned to Malaysia now or in the reasonably foreseeable future. However, his wife did not want to return to Malaysia as she did not want to live in that environment. She was worried that her father, who still lived in their village, would come after her and cause trouble as before, although she had not had contact with hm for five years.
Asked why he and his wife could not move away from their village to another region, the applicant said they had not done so because it would be unfamiliar to them and they did not have money. Noting that the applicant had now been living and working in another country for five years and also saved some money, the Tribunal suggested that a move to another region in Malaysia should not be so difficult, to which the applicant agreed.
As discussed with the applicant, given that he had applied for a Protection visa as an individual, identified himself in his application as a single man and provided no evidence that he was married, the Tribunal has proceeded to assess his claims on that basis.
The Tribunal accepts that the applicant came to Australia on a tourist visa because he wanted to work and live here. It accepts that he sought the assistance of an agent to obtain a bridging visa to enable him to stay in Australia and the agent submitted an application for a Protection visa on his behalf. Whether or not he was aware of the claims made in that application, by his own evidence at the hearing, the applicant has never suffered serious or significant harm in Malaysia. By his own evidence at the hearing, the applicant does not fear that he will suffer serious or significant harm in Malaysia were he to return there now or in the reasonably foreseeable future.
On the evidence before it, the Tribunal is not satisfied that there is a real chance that, if the applicant were to return to Malaysia, he would face persecution for any of the reasons contemplated by s.5J(1)(a) of the Act or that the applicant has a well-founded fear of persecution. For the same reasons, on the evidence before it, the Tribunal is 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, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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.
Date(s) of hearing: 29 October 2024
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.
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