Minister for Home Affairs - [2024] ARTA 513

1903550 (REFUGEE) [2024] ARTA 513 (28 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1903550
Tribunal:General Member J Meyer
Date:28 October 2024

Place:Melbourne
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 October 2024 at 9:44am
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – Christian – prevented from going to church and assaulted by family – consent to decision without hearing – undetailed and insufficient information and no documentary evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 1958 (Cth), s 106(3)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Malaysia, applied for the visa on 14 June 2018. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a refugee as defined by s5H(1) of the Act, and thus not satisfied the applicant was a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act. He was further not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there was a real risk he will suffer significant harm as defined in s36(2A) of the Act.
Waived right to hearing
The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if the parties consent (where the only parties are applicant and non -participating party to the proceeding or hearing and the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding) per s.106(3)) Administrative Review Tribunal Act 2024.
The Tribunal wrote to the applicant on 18 September 2024 inviting him to appear at a hearing scheduled for 23 October 2024. The Tribunal stated that it had considered the material before it, but was unable to make a favourable decision on this information alone.
In this case the applicants indicated on the Tribunal's hearing response form on 15 October 2024 providing written consent for the Tribunal to make a decision without a hearing: in these terms: “No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear.”
The Tribunal is satisfied that the necessary consent has been given under s.106(3)) of the Administrative Review Tribunal Act 2024 where the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding. For the following reasons it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. This matter has therefore been determined on the evidence available to the Tribunal.
In these circumstances, the Tribunal has proceeded to make a decision. At the outset however, it is appropriate to highlight that a decision maker is not required to make the applicant's case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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
The issues in this case are whether the applicant has a well-founded fear of being persecuted in Malaysia for one or more of the five reasons set out, and, if not, whether 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.
There were no other submissions. There was no departmental interview.
I am satisfied that the applicant had notice that the Tribunal did not have sufficient information to make a favourable decision on the information supplied by the applicant, and that the applicant has had a reasonable opportunity to provide any further information to the Tribunal in support of his claims and has not done so.
I am satisfied as to the applicant’s identity and the validity of his identity documents. I find that the applicant has Malaysian nationality, and that the receiving country for the applicant on this review is Malaysia.
Is the applicant a refugee under the Act?
The applicant’s claimed fear of persecution by a gangster(s) who harmed him (and his wife) appears to fall under a claime grounds in s 5J(1)(a) of the Act, namely by reason of religion.
The applicant’s claims for protection and supporting evidence are contained in his application form and are summarised below:
·He is a Christian.
·He left Malaysia because he was grounded and physically assaulted by his family on account of his religion. His family is not Christian and refused to allow him to go to church.
·He sought safety at his friend’s house, however, his family begun causing trouble for his friends.
·If he returns to Malaysia he will be unable to practice his religion freely and his family will continue to harm him.
The information presented by the applicant about Christian practice and his friends and family is lacking in detail. The applicant has provided few details about how he or family members were harmed. It is not evident where the harm occurred, where the locations in question are, how his journey in Christianity transpired, and the motives, reasons and mindset of his alleged persecutors.
There is no other evidence to confirm that he was harmed and threatened and might face this in the upon return.
Although by no means a requirement there is no corroboration of the claims. There are no documents or photographs to support the claims. The is no evidence of an injury or misdeeds occurring, other than the applicant writing that the events took place.
In the absence of further information, I am unable to determine if the applicant has suffered persecution in the past, or whether his claimed fear of persecution in the future falls within the grounds in grounds in s 5J(1)(a) of the Act.
I am also unable to determine whether the applicant might belong to a particular social group based on this information.
In light of the lack of sufficient information, I am not satisfied that there is a real chance that the applicant would be persecuted for any reason, if he is returned to Malaysia, now or in the reasonably foreseeable future.
Country information
The Tribunal considers country information – the DFAT Country Information Report Malaysia of 24 June 2024. A relevant section is as follows:
3.75
According to the US State Department, Christians account for approximately 10 per cent of the Malaysian population. Most live in Sabah and Sarawak. Christian politicians are present in most political parties, although they tend not to represent Christian interests specifically.
3.76
Christianity attracts few converts, as it is very difficult to convert from Islam (the religion of most Malays) and illegal to proselytise to Malays (see Religious Conversion and Apostasy). Christians of Malay background are sometimes forced to hide their faith from family, friends and colleagues. Christianity is portrayed by some Malay Muslim political parties as a threat to Islam. In-country sources told DFAT some Christians felt pressure to convert to Islam.
3.77
Although Christians say they have used the word ’Allah‘ (Arabic for God) for centuries in their religious practice in Malaysia, official impediments are in place to their use of the word. In 2008, the Home Affairs Ministry banned The Herald, a Catholic newspaper, from using the word ’Allah‘ under the Printing Presses and Publications Act (1984). The Malaysian Court of Appeals and Federal Court upheld the ban. Religious tensions including attacks on churches followed an October 2017 decision by the High Court of Kuala Lumpur to reject a Sabah church’s request for a judicial review of the ban on Christians’ use of the word ‘Allah’. In March 2021, the High Court of Kuala Lumpur ruled that Christians could use ‘Allah’ with the judge calling the ban unconstitutional. In 2023, the government discontinued its appeal.
3.78
Three Christian pastors (and a Shi’a convert, Amri Che Mat) suspected of proselytising disappeared between 2016 and 2017, with probable state involvement. SUHAKAM investigated the disappearances and concluded, in the cases of Amri and Pastor Raymond Koh at least, that they were conducted by RMP Special Branch. Despite the findings by SUHAKAM of direct police involvement in the disappearance of Pastor Koh and some involvement in the disappearances of Hilmy and Sitepu, there had been no response by the Malaysian state at the time of publication. DFAT is not aware of any disappearances of Malaysian Christians since 2017.
3.79
DFAT assesses that Christians are generally not at risk of societal discrimination. Christians who proselytise or promote Christianity to Muslims face a moderate risk of harassment by state authorities, potentially including violence or abduction.
The Tribunal identifies the applicant as a Chinese Malaysian (based on his application form declaration), and not apparently subject to issues of conversion from Islam. There is no substantive evidence that he is a Christian who proselytises or promotes Christianity to Muslims. There is no evidence contradicting DFAT’s notion that Christians are generally not at risk of societal discrimination.
Summary
It is evident that Christianity is largely practiced with a good deal of freedom in Malaysia by non-Malays.
There is nothing in the country information that alters my conclusion that the lack of sufficient information leads to me to be unsatisfied that there is a real chance that the applicant would be persecuted for any reason, if returned to Malaysia, now or in the reasonably foreseeable future.
It follows that I am not satisfied that the applicant has a well-founded fear of persecution pursuant to s.5J(1) of the Act, and I am not satisfied that the applicant is a refugee under s 36(2)(a) of the Act. Is the applicant entitled to complementary protection under the Act?
Having found that the applicant is not a refugee, I have considered whether the applicant is entitled to complementary protection under section 36(2)(aa) of the Act.
Based on my analysis of the evidence and findings above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
Is the applicant a member of a family unit?
The applicant does not make a claim based on membership of a family unit. As such, no family claims arise in this case.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…