2109639 (Refugee)

2109639 (Refugee) [2024] AATA 2139 (18 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2109639

COUNTRY OF REFERENCE: Malaysia
MEMBER:Scott Clarey
DATE:18 March 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 March 2024 at 11:26am

CATCHWORDS
REFUGEE – protection visa – Malaysia – political opinion – opposition to the government – opposition to Rohingya refugees – social media postings – fear of killing – detention – physical assault – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 425, 426, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 dependants.
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 on 23 July 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant ( [named]), who is a citizen of Malaysia, applied for the visa on 7 September 2020. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was owed protection in Australia.
On 28 February 2024, the Tribunal wrote to [the applicant] to advise that the material before the Tribunal had been considered but it was unable to make a favourable decision on this information alone. Accordingly, [the applicant] was invited to appear before the Tribunal on 19 March 2023 at 2:00pm to give evidence and present arguments relating to the issues in his case.
On 15 March 2024 the Tribunal received email correspondence from [the applicant] stating that he did not wish to appear before the Tribunal and requested a decision be made by the Tribunal ‘on the papers’ on the basis of the documentary evidence before it.
The Tribunal is satisfied that requirements under s425(1) of the Act are met and the obligation to invite [the applicant] to appear ceases pursuant to s425(2)(b). As [the applicant] has requested a decision on the papers, the Tribunal has determined to proceed to a decision without taking any further action. In these circumstances, and pursuant to s 426A of the Act, the review has been decided on the material before the Tribunal. The Tribunal has considered the documentary evidence on the Department’s file and the (limited) additional documentary evidence that has been submitted to the Tribunal. I note that there is no evidence on the Department’s file that the Department ever conducted a formal interview with [the applicant].
On the basis of the copy of [the applicant’s] Malaysian passport provided to the Department, I accept that he is a citizen of Malaysia and that his identity is as he claims it to be. I accept that Malaysia is his country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
According to information in the Department’s decision record, [the applicant] last arrived in Australia [in] May 2017 having departed Malaysia legally, on an Electronic Travel Authority (Subclass UD-601) visa. He applied for a Protection (Subclass XA-866) visa on 7 September 2020 that is the subject of this review.
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) of the Act 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.
For the reasons set out below, I have concluded that the decision under review should be affirmed.
Claims and evidence
I have had regard to information on the Department’s file and the Tribunal’s file. I note that [the applicant] has provided very little documentary evidence to either the Department or the Tribunal in support of his claims.
Claims from [the applicant’s] protection visa application
[The applicant] set out his claims for protection in the application form as follows (unedited):
Select the country or countries from which this applicant is seeking protection and cannot return to:
A:Malaysia
Provide reasons why this applicant left that country or those countries?
A:I am very active in society media such as [named platform] and putting comment on any news issue. I have comment on about against illegal refugee Rohingya entry to Malaysia and government provide refugee protection because they are religion ISLAMIC. There are too many illegal refugee Rohingya by ship coming to Malaysia every month but Malaysia government did not take any action and always look like welcome them and provide accommodation and work. But a lot of Islamic religion follower attack me in putting on many bad comments such as will kill me or harming me. I thought the comment just kidding, and I do not too aware about the comment. There are 5 people come to my retail shop to harming me very seriously until I have admitted to general hospital 7 days. I have reported to police department, and they reply did not arrest anyone on this case. Few days ago, I have received a call from anonymity told me that will kill me soon. But, I still not afraid from the warning because I believe Rohingya refugee will do bad thing in my country. I am keeping making comment at society media as usual but there are few police office attend to my home and arrest me because someone report me putting slander Islamic comment on [named platform] society media. I have been arrested for 7 days, in very bad condition environment small jail room.
Once I have been release from jail, I have closed down my business and move to other state to start my new life for prevent harming from other people and disturb by police because I have advice by lawyer I did not break the country law so police department cannot put me into court. I received again the call from anonymity and mention to kill me soonest. I feel very scare, so I have made a decision escape to Australia freedom country. Recently, I have online seeking for Australia visa type, so I decide to apply protection visa for seeking protection and hope to start my new life here.
Did this applicant experience harm in that country or those countries?
A:Yes. There are 5 people come to my retail shop to harming me very seriously until I have admitted to general hospital 7 days. I have reported to police department, and they reply did not arrest anyone on this case. Few days ago, I have received a call from anonymity told me that will kill me soon.
Did this applicant seek help within the country or those countries after the harm?
A:Yes. I have reported to police department, and they reply did not arrest anyone on this case.
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
A:Yes. I have closed down my business and move to other state to start my new life for prevent harming from other people.
Explain what the applicant thinks will happen to them if they return to that country or those
countries:
A: I received the call from anonymity and mention to kill me soonest.
Does this applicant think they will be harmed or mistreated if they return to that country or
countries? back?
A:I received the call from anonymity and mention to kill me soonest.
Does this applicant think the authorities of that country or those countries can and will protect
this applicant if they go back?
A:No. Police department told me that cannot provide 24 hours protection service for prevent harming from other people.
Does this applicant think they would be able to relocate within that country or those countries
to an area where they would not be harmed??
A:No. I have tried to move to other state, but will able found by them so I feel very afraid.
THE RELEVANT LAW
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Hearing on 19 March 2024
As noted above, after being sent an invitation on 28 February 2024 to attend a hearing on 19 March 2024, [the applicant] wrote to the Tribunal on 15 March 2024 and stated that he did not wish to participate in a hearing and requested that a decision be made on his case ‘on the papers’. I note that in the application for the visa under review, [the applicant] made vague and at times terse claims relating to issues he faced in Malaysia. If [the applicant] had participated in the scheduled Tribunal hearing, I would have given him an opportunity to further ventilate his claims and asked specific questions relating to them. As has been noted above, [the applicant] chose to waive his right to a hearing, and chose not to engage further in the review process, including by providing any significant new/additional information to the Tribunal relating to his claims.
In these circumstances, I have determined to proceed to a decision without taking any further action. In these circumstances the review has been decided on the material before the Tribunal. I have considered the documentary evidence on the Department’s file and the (limited) additional documentary evidence that has been submitted to the Tribunal.
Findings and reasons
A refugee is a person who has, as defined in s.5J(1)(a), a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim by the person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claims.
I have serious concerns with [the applicant’s] claims in terms of their generality and lack of specificity, particularly with regard to the particular harms he claimed to fear in Malaysia. As noted above, had [the applicant] attended the scheduled Tribunal hearing, given the sweeping and at times terse nature of his claims, I would have sought further specific information from him on a range of relevant details. For example, if [the applicant] had attended the hearing, I would have asked specific questions to him about his claimed experiences, including those relating to his claimed issues with making comments on social media about refugees and the claimed criticisms he received for these comments. I would have asked [the applicant] about his background, ethnicity and religious beliefs. I would have also taken the opportunity to ask him further questions about why he believed he could not seek protection from the authorities in Malaysia if required.
I find that the details provided by [the applicant] about his claims are vague, generic and do not provide anywhere near the kind of detail that would lead me to be satisfied that he was at risk of persecution in Malaysia. [The applicant’s] claims in their entirety lack the kind of specific detail that would satisfy me that he had actually experienced adverse treatment as claimed. Given the breadth of unanswered questions and the lack of specific detail relating to his claims, I am not satisfied, on the information before me, that any of these events occurred as claimed.
For the reasons outlined above, I do not accept [the applicant] posted comments on social media about Rohingya refugees/migrants or any other politically sensitive matter. I do not accept [the applicant] was threatened, harassed, targeted or otherwise pursued by people upset by these comments or anybody else for reasons relating to comments he made or views he held related to Rohingya refugees/migrants or for any other reason. I do not accept [the applicant] was ever incarcerated. I do not accept [the applicant] left his home in Malaysia and travelled to Australia to escape these threats. It follows that I find [the applicant’s] fears of persecution on this basis are not well founded.
I am therefore not satisfied [the applicant] faces a real chance of suffering persecution involving serious harm for reasons of his ethnicity, religion, political opinion, either actual or imputed, or his membership of a particular social group or for any other reason he has claimed or can be distinguished on the information before me by the authorities, Muslim Malaysians or anyone else if he returns to Malaysia, now or in the reasonably foreseeable future. I find that [the applicant’s] fears of persecution on this basis are not well founded.
Accordingly, I am not satisfied that [the applicant] is a refugee as defined by s.5H(1) of the Act. Therefore, I am also not satisfied [the applicant] is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act.
Conclusion – refugee grounds
Having considered [the applicant’s] claims both individually and cumulatively, all of the available evidence and relevant country information, I find that he does not face a real chance of persecution on return to Malaysia for any reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore [the applicant] does not satisfy the criterion set out in s.36(2)(a) of the Act.
Complementary protection
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
For the reasons given above, I have found there is not a real chance that [the applicant] would suffer persecution involving serious harm for reasons of his ethnicity, religion, political opinion, either actual or imputed, or his membership of a particular social group or for any other reason he has claimed or can be distinguished on the information before me by the authorities or anyone else if he returned to Malaysia, now or in the reasonably foreseeable future.
In considering whether there is a real risk that [the applicant] would suffer significant harm if returned to Malaysia, I have 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.[1]
[1] 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].
[The applicant] has not advanced any claims indicating that he considers he would face a real risk of significant harm if returned to Malaysia other than for the reasons discussed above relating to his claims (such as they are) under the refugee criterion. Given I do not accept that [the applicant] faces a real chance of suffering persecution involving serious harm if he returns to Malaysia, I also find, having regard to the findings of fact set out above, that there are not 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 would: suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by the Malaysian authorities, or anyone else, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia.
Consequently, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
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.
For the reasons given above I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore [the applicant] does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Scott Clarey
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 2139

18 March 2024

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

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Jurisdiction

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