2011036 (Refugee)

[2021] AATA 3303

2011036 (Refugee) [2021] AATA 3303 (10 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2011036

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Denise Connolly

DATE:10 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 10 June 2021 at 10:48AM

CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – economic hardship – written claims fabricated – fear of COVID pandemic – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 66, 499
Migration Regulations 1994 (Cth), 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 February 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 1 December 2017. The delegate refused to grant the visa on the basis the applicant is not a person in respect of whom Australia has protection obligations.

3. The applicant sought review on 15 March 2018. On 3 April 2018, the Tribunal notified the applicant that his application for review was lodged out of time and it has no jurisdiction in the matter. On 19 April 2018 the Tribunal, differently constituted, found it did not have jurisdiction.

4. The applicant lodged an appeal to the Federal Circuit Court of Australia and the case was remitted on the basis the Tribunal erred in concluding that the applicant was notified of the delegate's refusal decision in accordance with the statutory requirements, as the notification the delegate’s decision to refuse to grant the applicant a visa did not clearly state the time by which the application to the Tribunal was to be made as required by s.66(2)(d)(ii) of the Act. The matter is now before the Tribunal pursuant to a court order.

   CLAIMS AND EVIDENCE

   Background to review

5. The applicant is a [age]-year-old national of Malaysia. He was born in Selangor, Malaysia, and entered Australia on an Electronic Travel Authority [in] September 2017. On 1 December 2017, he lodged his protection visa application. He claimed economic hardship and sought work in Australia. He was not offered an interview by the Department. 

6. In his written claims the applicant stated he is from a broken family. His father took another wife and forced his mother to accept polygamy. His mother gets sick from stress. His father does not spend time with them. His mother has a small business selling food at a stall. She also does baby sitting. His siblings are still studying. He needs to help his family financially. He does not have a “high education”, and his salary in Malaysia was not enough to cover the family’s expenses.  The applicant wants to work in Australia.

7. Having considered the country information the delegate found the economic climate in Malaysia affects the population generally. She was not satisfied the applicant claimed to fear harm for any of the reasons set out in s.5J(1)(a). Accordingly he did not meet s.36(2)(a) of the Act. She found the economic hardship the applicant may suffer on his return does not amount to significant harm as defined in s.36(2A), and there is no real risk of the applicant facing significant harm for any other reason, if he returns to Malaysia in the foreseeable future. The delegate was also not satisfied the applicant met s.36(2)(aa) of the Act.

   Hearing on 9 June 2021

8. The Tribunal arranged for the hearing to be conducted with the assistance of an interpreter in the English and Malay languages, however the applicant indicated he was comfortable to give his evidence in English. The interpreter was available throughout the hearing but he chose to give his evidence in English. The Tribunal is satisfied the applicant was able to give his evidence and present his arguments with clarity. It is also satisfied he participated in the hearing in a meaningful way.

9. The Tribunal discussed with the applicant the requirements of the law and his claims and evidence. He admitted that his claims had been written by an agent and did not reflect his circumstances in Malaysia. He told the Tribunal that his parents live together in their 3 bedroom house. His father, aged about [age], is a [Product 1] salesman, and is quite good at his job as he has been doing it for 20 years.  His mother works in [administration], for [a company] owned by his uncle. His parents’ work has been affected by COVID but his father continues to sell [Product 1].  His brother is [studying] at university and his sister is completing [a] degree. His siblings continue to live with his parents who pay for their education. His mother is disappointed with him because she wanted him to study but he did not want to go to university. This is one reason he does not want to return to Malaysia.

10. The applicant has married his long term girlfriend, [named], in Australia. She arrived in Australia in November 2019. He had been in a relationship with her in Malaysia since 2014. They met when going to school. She has now made a protection visa application. When asked about her claims, the applicant had difficulty remembering. He then indicated it was because a boyfriend had beaten her up in Malaysia. The Tribunal asked when this occurred. He said it was in 2014. The Tribunal noted he was her boyfriend in 2014. He then denied this and said their relationship started in 2015.

11. The applicant told the Tribunal he came to Australia to work on a farm at [Town 1]. It had been arranged in Malaysia. He was promised $1000 a week but only earned $13 an hour. He left [Town 1] in January 2018 and moved to Sydney where he worked in a [business] at [Suburb 1]. It had been arranged by his friend. He now works in a warehouse in [Suburb 1] and is paid $17 per hour. Before he came to Australia he worked in a restaurant in Malaysia.

12. The applicant indicated he continues to have contact with his parents. He claimed to send money back to Malaysia but had no evidence of this.

13. The Tribunal observed that the applicant had braces on his teeth. He indicated he had them put on in Malaysia before he came to Australia. He indicated he cannot afford to have them removed in Australia because it will cost $2000.

14. The Tribunal asked the applicant why he believes he cannot return to Malaysia. He indicated he got involved in democracy. However when the Tribunal read to him claims he had made in his visa application, he acknowledge that an agent had made up those claims and he had also made up the claim that the applicant was involved in democracy. He knowledge that he had signed his visa application but that he had not read it. He acknowledged he was not involved in politics in Malaysia.

15. The Tribunal discussed with the applicant country information in the Department of Foreign Affairs and Trade (DFAT) report indicating that Malaysia is an upper middle-income, export-oriented economy. It is reported that Malaysia’s economic performance over several decades has led to a significant reduction in poverty[1]. The Tribunal also noted that the applicant’s family appears to be financially comfortable and while it may accept that there is conflict between the applicant and his parents, because he does not want to undertake further study, it may find that the applicant will be able to return to live with his family, secure some form of employment and will not be destitute if he returns to Malaysia. The applicant asked the Tribunal if he should return to Malaysia. The Tribunal explained that it could not give him advice but it did have concerns about his evidence as it indicated he may not meet the definition of refugee or the complementary protection criteria.

    [1]  DFAT Country Information Report - Malaysia 13 December 2019

16. The Tribunal asked the applicant if there was any other reason why he could not return to Malaysia. He indicated he fears COVID as the number of cases are higher in Malaysia than in Australia. The Tribunal explained there was nothing before it to indicate the applicant would not receive medical treatment or vaccination if available in Malaysia. It noted Malaysia’s vaccination rollout is underway.[2] It explained to the applicant that the pandemic is affecting the general population in Malaysia and it may not consider it to be a reason for the applicant to fear serious or significant harm. It asked the applicant if he had any other reason why he could return to Malaysia. He asked for time to think. He then said he wants to earn some money. The Tribunal explained that this was not a reason to grant a protection visa.

    [2] Malaysia records highest daily vaccination rate of 151,309 doses on June 8, The Edge Markets, 

    Mandatory considerations

17. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CRITERIA FOR A PROTECTION VISA

18. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

19. 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.

20. 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).

21. 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.

22. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nationality

23. The applicant presented to the Tribunal his Malaysian passport. On the basis of his passport the Tribunal is satisfied the applicant is a Malaysian citizen and will assess his claims on this basis. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any other country other than his country of nationality.

    The applicant’s claims

24. The applicant has admitted to the Tribunal that the claims made in the written application are not true. He admitted that his written claims had been fabricated by an agent. Initially he indicated to the Tribunal that he was involved in democracy in Malaysia but ultimately he admitted that this had also been fabricated by an agent. The Tribunal is not satisfied the applicant has had any involvement in politics in Malaysia. It is satisfied there is no real chance or real risk the applicant will suffer serious or significant harm if he returned to Malaysia in the foreseeable future because of any political opinion or involvement in politics.

25. On the basis of the applicant’s oral evidence the Tribunal is satisfied the applicant’s family in Malaysia, with whom he continues to have contact, is financially comfortable. The applicant himself raised the issue of whether he should now go home, strongly suggesting he does not fear returning to Malaysia. This is a decision for him to make. While it accepts there is some conflict between the applicant and his parents, because he does not want to pursue tertiary study, the Tribunal is not satisfied there is a real chance or real risk the applicant would suffer serious or significant harm if he returns to Malaysia in the foreseeable future because of that conflict.

26. The applicant has claimed he fears returning to Malaysia because of the COVID pandemic. He did not indicate there would be any reason why he would be denied treatment or vaccination in Malaysia if it was available. The Tribunal is of the view the health risks related to the COVID-19 pandemic, which the applicant claims to fear, are faced by the Malaysian population generally and not by him personally. There is no suggestion he will be denied medical treatment or vaccination for any reason other than a general lack of avialability. It is not satisfied there is real chance or real risk the applicant will suffer serious or significant harm in Malaysia for these reasons.

27. The applicant has indicated he wants to remain in Australia to earn money. The Tribunal notes the applicant was working in Malaysia in a restaurant before he came to Australia. It notes his family in Malaysia live in a 3 bedroom house and his parents have earned sufficient income to support his siblings to study at university. The Tribunal accepts the applicant does not want to undertake further study in Malaysia and this may be the source of conflict with his parents. It may also limit his employment prospects in Malaysia. However the Tribunal is not satisfied there is any evidence to indicate the applicant will be denied the opportunity to work and subsist in Malaysia. It is not satisfied there is real chance or real risk the applicant will suffer serious or significant harm in Malaysia for these reasons.

28. The applicant has indicated that his wife arrived in Australia in 2019 and has applied for protection because she was beaten by a boyfriend in 2014. It is of the view he was somewhat vague regarding her claims. However it notes he did not claim that he would suffer any harm if he returned to Malaysia on the basis of this claim. The Tribunal is not satisfied there is real chance or real risk the applicant will suffer serious or significant harm in Malaysia for these reasons.

29. Considered overall the Tribunal accepts there may be some conflict between the applicant and his parents because he does not want to undertake further study in Malaysia.  It accepts he is concerned about the impact of the pandemic in Malaysia however it is satisfied he will receive medical treatment and vaccination if it is available. It is satisfied he will be able to secure family support and some form of employment such that he will be able to subsist in Malaysia. It is not satisfied the applicant will be denied medical treatment, employment, accommodation or any other basic need for any of the reasons set out in s.5J(1)(a). It is not satisfied the applicant has a well-founded fear of persecution. Accordingly he does not meet s.36(2)(a) of the Act.

30. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he meets the criterion for the grant of a protection visa under the complementary protection criterion.

31. For the reasons set out above, the Tribunal has considered the evidence in relation to the complementary protection criteria and does not accept, on the evidence provided, that there is a real risk the applicant will suffer significant harm.  There is no evidence to indicate he will suffer arbitrary deprivation of life or the death penalty. The Tribunal is not satisfied there is a real risk he will be harmed because of the conflict with his family. It is satisfied he has sufficient family support in Malaysia, work experience and financial resources to secure accommodation and subsist. The Tribunal is not satisfied he will be denied medical treatment or vaccination if it is available. It is not satisfied he will be harmed on the basis of his wife’s claims. It is not satisfied there is any evidence to suggest there is a real risk he will suffer cruel, inhuman or degrading treatment or punishment. 

32. 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. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

33. The Tribunal notes the applicant’s evidence that his wife’s protection visa application is with  the Department and a primary decision has not yet been made. At this time 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

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

    Denise Connolly
    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.

    …