1514347 (Refugee) [2015] AATA 3841 (3 December 2015)

Last Updated: 21 December 2015

1514347 (Refugee) [2015] AATA 3841 (3 December 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1514347

COUNTRY OF REFERENCE: Malaysia

MEMBER: Rachel Westaway

DATE: 3 December 2015

PLACE OF DECISION: Melbourne

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

STATEMENT MADE ON 03 DECEMBER 2015 AT 11:20AM

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 Immigration on 24 September 2015 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 [in] May 2015. The delegate refused to grant the visa on the basis that the applicant’s claims of fear were not credible. His claims were considered vague and contained very little detail with no supporting material.
3. The applicant was invited to a hearing on Friday 27 November 2015 and did not attend the hearing. The applicant did not respond to the hearing invitation and did not provide submissions to the Tribunal to support their review. The review applicant was advised that if he could not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without further notice. No response was received. The review applicant was sent all correspondence through their nominated email address. In these circumstances and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

CRITERIA FOR A PROTECTION VISA

4. 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.
5. 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.
6. 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 themself 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).
7. 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.
8. 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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

10. The applicant claims he is a traditional Buddhist which is not acceptable in Malaysia. He claims that as the Prime Minister supports racial preferences for Malay citizens, Buddhism is not acceptable in Malaysia and he finds it impossible to find a job and is constantly being watched. He claims Islam smashed his car, broke into his home and locked him up until his family paid a security fee. He claims police cannot help him.
11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
12. The applicant provided the Tribunal with a copy of the Department decision pertaining to his visa refusal the subject of this review. He did not provide any further submissions or claims.
13. The applicant’s claims are brief and provide only the bare outline. As the applicant did not provided any further detail other than the vague and limited information listed above in his claims, and he did not attend the hearing, the Tribunal was denied an opportunity to test his claims.
14. The Tribunal has considered the independent country information available to it as listed below against the applicant’s claims.

COUNTRY INFORMATION

15. The applicant made the following claim in his initial visa application. The Prime Minister supports racial preferences for Malay citizens, Buddhism is not acceptable in Malaysia and he finds it impossible to find a job and is constantly being watched. He claims Islam smashed his car, broke into his home and locked him up until his family paid a security fee. He claims police cannot help him.
16. The Tribunal has given consideration to the following independent country information from the Department of Immigration and Border Protection dated 30 September 2015. Malaysia’s ethnic demographic consists of 67.4% Malay, 24.6% ethnic Chinese, 7.3% ethnic Indian and 0.7% other. The constitution forbids discrimination against citizens on the basis of gender, race, and religion however there are special privileges offered to ethnic Malays which is considered affirmative action. Further, Malaysian Chinese generally have no problems accessing public primary or high school education. DFAT assess that ethnic Chinese generally do not experience discrimination or violence on a day to day level, but may face low levels of discrimination attempting to gain entry into state tertiary system of the civil service.
17. The Royal Malaysian Police (RMP) is considered a professional and effective police force. As evidence of their approach to ensure non-discriminatory behaviour in 2014 the Government commenced a campaign to increase the number of women, ethnic Chinese and Indians in RMP.

FINDINGS AND REASONS

18. The Tribunal finds that the applicant is a citizen of Malaysia, and that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
19. The Tribunal has considered the country information before it which is not consistent with the applicant’s claims. The applicant’s claims are very brief and given the applicants did not attend the hearing, the Tribunal was denied the opportunity to test his claims. I am unable to be satisfied on the evidence before me that the applicant faces torture, mental and physical harm if returned to Malaysia because he is Buddhist and Muslims will target him. Nor can the Tribunal accept that the applicant could not seek protection from the Royal Malaysian Police if required. Independent country information clearly indicates that discrimination is forbidden on the basis of religion and that the police and other government bodies exist to protect citizens.
20. The Tribunal is aware of the importance of adopting a reasonable approach and the decision maker is not required to make the applicant's case for him or her. Nor is Tribunal required to accept uncritically any and all the allegations made by an applicant. Had the applicant attended a hearing, the Tribunal would have explored his relevant claims with him and sought further information from him on a range of details relevant to his claims.
21. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' for the reasons 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 that the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.
22. For the reasons set out above I am unable to be satisfied that there is real chance that the review applicant has a real chance that he will face torture or be harmed physically or mentally by Muslims if he returns to Malaysia now or in the reasonably foreseeable future.
23. I have also considered whether the applicants meet the complementary protection criteria under s.36(2)(aa). For the reasons set out above, the Tribunal does not accept that there is a real chance that the applicant will face serious harm from Muslims and be unable to seek protection by Malaysian authorities if he returns to Malaysia now or in the reasonably foreseeable future. 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 the Refugee Convention definition. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk they will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

CONCLUDING PARAGRAPHS

24. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
25. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
26. 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

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

Rachel Westaway
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.
...

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 them 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 illtreatment 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 wellfounded 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 wellfounded 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

...

(2A) A noncitizen will suffer significant harm if:

(a) the noncitizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the noncitizen; or

(c) the noncitizen will be subjected to torture; or

(d) the noncitizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the noncitizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a noncitizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the noncitizen to relocate to an area of the country where there would not be a real risk that the noncitizen will suffer significant harm; or

(b) the noncitizen could obtain, from an authority of the country, protection such that there would not be a real risk that the noncitizen 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 noncitizen personally.

...