2012445 (Refugee)

[2023] AATA 4854

2012445 (Refugee) [2023] AATA 4854 (12 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012445

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Paul Windsor

DATE:12 December 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 12 December 2023 at 8:44 am

CATCHWORDS
REFUGEE – protection visa – Malaysia – decision on the papers – expressed dissatisfaction with a Sultan and his son – lack of details – unsupported by any documentary evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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 14 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 20 October 2019.

3. In his protection visa application, the applicant indicated he was born on [date] in Kuala Lumpur, Malaysia. He stated he is of Malaysian Chinese ethnicity, a Christian and has never married. He indicated he departed Malaysia legally [in] September 2019 and arrived in Australia [in] September 2019, entering on a visitor visa.[1]

   [1] See the Departmental file.

4. In his protection visa application, the applicant stated that he was threatened and beaten when he expressed his dissatisfaction with the attitudes of one of the Sultans and his son towards people who are not from ‘the state’.[2]

   [2] Ibid.

5. The delegate refused to grant the visa, finding on the basis of the information provided (and noting that the applicant had failed to respond to an invitation to provide further information in support of his claims), that the applicant’s claims were not credible.

6. The applicant sought review of this decision on 4 August 2020. He provided the Tribunal with a copy of the delegate’s decision record.

7. On 15 November 2023, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing at 9:30 am on 6 December 2023. On 3 December 2023  the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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 (the Department), 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Claims

14. The applicant’s claims for protection, as set out in his protection visa application, are summarised as follows:

    • He left Malaysia as he was dissatisfied with one of the Sultans and his son. He thought their attitude towards people who are not from ‘the state’ was very unfair.
    • When he expressed his dissatisfaction, most of the Islamic people, especially the Malay people, were angry with him. He can take responsibility if they are taking the case to the authorities, but what they did is outside of the law. He was beaten and threatened.
    • He made a comment on Facebook that the Sultan cannot ‘disturb’ any decision made by the State or Federal Government Cabinet, because it is according to the rules and regulations of the Federal Law 1957. Once he commented, some Malay people came to harm him and threatened to kill him, to protect their Sultan’s reputation.
    • He was beaten by a Malay group when he went to the market. They also came to his house to find him.
    • He did not try to seek help as he was afraid to show up in public. He does not think the authorities can protect him. He had to report to the police department many times.
    • He did not try to move to another part of the country because he believes it will be the same. He will be harmed later because they have posted all his personal information including his photo on Facebook.
    • He fears if he returns to Malaysia he will be harmed again or worse.

    Assessment

    Identity

15. On the basis of the copy of his passport submitted to the Department,[3] the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is as claimed. The Tribunal accepts that Malaysia is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    Issues

    [3] See the Departmental file.

16. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.

17. For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

    Assessment of claims

18. 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. 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 remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. 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: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

    Claim to fear harm due to expressing dissatisfaction with a Sultan and his son

19. The applicant’s claim to have angered people and to have been beaten and threatened because he expressed his dissatisfaction with a Sultan and his son is vague and unsupported by any documentary evidence.

20. The delegate’s decision record, a copy of which the applicant provided to the Tribunal,  reveals the delegate wrote to the applicant on 10 June 2020 indicating that he had concerns the applicant’s claimed fear of harm due to their dissatisfaction with the Sultan and his son may not be plausible because the claims lack details that are personal or particular to the applicant. The letter requested that further information be provided in order for the delegate to be satisfied the applicant’s claims for protection are genuine. The applicant was invited to answer the following questions:

    ·Details of the Sultan and his son the applicant’s claims relate to.

    ·Details of the Sultan and his son’s attitudes and actions towards those not from his state that made him want to voice his dissatisfaction. In particular, what was his motivation behind voicing his dissatisfaction?

    ·Details of his Facebook post in which he expressed his dissatisfaction towards the Sultan and his son. In particular, what he said and key dates.

    ·How did the group of Malays who beat him identify him as someone who was dissatisfied with the Sultan and his son?

    ·Details of the group of Malays who beat him.

    ·What personal information was posted about him online that enabled his identification and details of who posted the information, key dates and what information was shared.

    ·He claims if he returns to Malaysia the group of Malays will harm him again. How will the group know he has returned to Malaysia?

    ·Did he seek medical treatment after being beaten? If so, does he have evidence of being treated by health professionals?

    ·Details of his ‘many’ previous police reports.

    ·Details of why Malaysian authorities will not provide him with protection if he returns to Malaysia.

    ·He has stated that he cannot relocate within Malaysia because ‘I come to Australia because I feel safe’. Explain why he cannot relocate within Malaysia.

21. The applicant was allowed 28 days in which to provide a response. The delegate’s decision record indicates that no response was received from the applicant.

22. The applicant did not provide any further information in support of his claims, either with the review application or with his response to the hearing invitation. He also failed to respond to a letter from the Tribunal sent on 30 August 2023 requesting he complete a pre-hearing information form which requested, inter alia, that if he has any additional evidence that is relevant to his application, he send it to the Tribunal as soon as possible.

23. The applicant has not provided any details regarding which Sultan and his son he was referring to, what he interpreted to be the attitudes of the Sultan and his son regarding people who were not from ‘the state’, or any details regarding the government decisions he considers the Sultan and his son were seeking to ‘disturb’. The applicant has not indicated when he posted on Facebook about this and has not provided a copy of the claimed post or any details regarding the claimed post.

24. The applicant indicates that ‘most’ of the Islamic people were angry with him, especially the Malay people, and that he was beaten and threatened. He has not provided specific details regarding why so many people were angry with him, how they identified him and how all his personal details were posted on Facebook. He has not submitted any copies of Facebook posts showing all his personal details.

25. The applicant has not indicated when he was beaten and threatened. He has not indicated when a Malay group came to his house and how he was able to escape from or avoid them.  He has not provided any evidence, such a medical records and/or photographic evidence that he was beaten.

26. The applicant states that he had to report to the police many times, but he has not indicated when this was, or if he had to report to the police many times because he was attacked many times or because the police were investigating him.

27. These are all matters the Tribunal would have questioned the applicant about in detail had he attended the hearing.

28. Considering the available evidence, the Tribunal is not satisfied that the applicant has made out his claims. The Tribunal does not accept that the applicant posted a comment on Facebook that angered most of the Islamic people, especially the Malay people. The Tribunal does not accept that, as a consequence, he was beaten and threatened, including by a Malay group when he went to the market, or that people also came to his house looking for him. The Tribunal does not accept that all his personal details were posted on Facebook so that he would be at risk of harm wherever he went in Malaysia. The Tribunal does not accept that the applicant was too afraid to show up in public or that he fears if he returns to Malaysia he will be harmed or worse.

    Does the applicant have a well-founded fear of persecution if he returned to Malaysia?

29. Having considered the applicant’s claims and the available evidence, the Tribunal does not accept there is a real chance that the applicant will suffer persecution involving serious harm from a Sultan and/or his son, Islamic people in Malaysia, ethnic Malay Malaysians, the Malaysian authorities, or any other authority, organisation, person or group, for one or more of the five reasons mentioned at s.5J(1)(a), if he was to return to Malaysia, now or in the foreseeable future.

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

    Complementary protection

31. 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).

32. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[4]

    [4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

33. Significant harm is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

34. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

35. Considering the applicant’s claims and the available evidence regarding his circumstances, and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from a Sultan in Malaysia and/or his son, Islamic people, ethnic Malay Malaysians, the Malaysian authorities, or any other authority, organisation, person or group.

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

    Member of the same family unit

    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, he does not satisfy the criterion in s.36(2).

    DECISION

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

    Paul Windsor
    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.

    …