1415891 (Refugee)

[2016] AATA 3212

1415891 (Refugee) [2016] AATA 3212 (1 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415891

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Stuart Webb

DATE:1 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 01 February 2016 at 2:38pm

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 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] April 2014 and the delegate refused to grant the visa [in] August 2014.

3. The applicant appeared before the Tribunal on 21 January 2016 to give evidence and present arguments. The applicant provided a copy of the delegate’s decision to the Tribunal.

   RELEVANT LAW

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, the applicant 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.

   Refugee criterion

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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

15. 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 a protection 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 the applicant 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’).

16. ‘Significant harm’ for these purposes 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.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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

19. The applicant made the following claims with his application. He had a small business since 2008 selling [items] at a night market in [Town 1], Perak. A gangster asked for protection money of 500RM. If he did not pay they would threaten to beat and kill him. This was in December 213. He said he would not pay. They came and beat him. He is scared of returning, they know where he lives. They have lots of members, they will hurt him because he did not pay money. He reported to the police but they could not do anything. He closed his business and came to Australia. The applicant arrived in Australia [in] January 2014. He provided a copy of his passport to the Department.

20. The applicant was interviewed by the Department in respect to his claims. The delegate did not find the applicant to be a credible witness. The delegate noted the contradictory, vague, inconsistent, improbable and lacking in detail elements of the applicant’s evidence. His answers regarding ever being harmed by gangsters was vague and evasive. The delegate noted that the applicant lived with his parents at the same address all his life and ran his business for 6 years. The applicant claimed he was harassed weekly over an extended period of time. The delegate was concerned regarding the applicant’s evidence about the gangsters knowing where he lived. The delegate did not accept that applicant was being truthful.

21. The delegate did not consider that the claim had a convention basis. Further, having determined that the applicant was not a witness of truth or credible, the delegate did not accept that the applicant had real risk of significant harm on return to Malaysia.

    Findings and reasons

    Country of nationality

22. The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Tribunal. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s country of nationality for the purposes of the Refugees Convention and receiving country for the purposes of the complementary protection assessment.

    Third country protection

23. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Claims

24. The applicant provided some further details regarding his claims. He stated that he established the stall at a local night market in 2008 or 2009. There were about 20 stalls, selling [various items]. He would make about 80 Ringgit profit on week days, and between 150 and 200 Ringgit on the weekend. He paid 7 Ringgit per night to have the stall.

25. The applicant claimed that within weeks of his starting his business gangsters came round demanding money. They would demand around 50 Ringgit, and would come round between once or two to three times a week. There were 3 to 4 of them, sometimes 7. They visited all the stalls. They did this until the late months of 2013, when he closed the business. The applicant always paid them. He was able to make a living from the business, and employ a staff member, though he claimed his takings were reduced.

26. The Tribunal asked the applicant as to whether the stall holders ever sought to stop such criminal activity. The applicant stated that they were not brave enough to join together. The Tribunal asked if the applicant had spoken to the council or the people who took the money to permit the applicant to operate the stall. The applicant stated he spoke to the organiser who said it was under consideration, but nothing happened. The Tribunal asked if the applicant had been to the police to report this. The applicant stated he had, but did not have the reports. The applicant’s mother is looking for them at their home and would send them, along with a photo of the gangsters demanding money if she found them. The Tribunal provided time to present this evidence. However the applicant did not provide this information to the Tribunal, nor seek further time to provide the information. By the date of this decision no further information had been provided, despite the opportunity to do so.

27. The Tribunal asked if the police had done anything. The applicant stated he would not speak badly of his country. The Tribunal noted country information regarding the crackdown on gangs by the police, as detailed below.

28. The Tribunal asked if the applicant was ever harmed by these gangsters. The applicant stated that they threatened to hit him, but never did. He stated that they took his picture so they could remember him.

29. The Tribunal asked the applicant why the gangsters would be interested in him after he had closed the stall, as this would appear to be cause of the applicant’s concerns in Malaysia. The applicant stated they might have thought he has money. The Tribunal noted the passing of time since he had come to Australia, over two years, and that as he was not operating the market business it was not likely that he would be affected by such criminal activity. The applicant stated he hoped they would not look for him again.

30. The Tribunal discussed with the applicant the grounds for a protection visa based the Convention, that 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. The Tribunal noted that it appeared that this did not apply to the applicant based on his claims as put and discussed with the Tribunal, that of facing some criminal activity from a local gang. The applicant did not make any submission on this issue.

31. The Tribunal considers that the evidence of the applicant does not disclose any ground as defined in the Convention. The Tribunal finds that the applicant does not have a real chance that, if returned to Malaysia, the applicant faces a real chance of serious harm for a Convention reason. The Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons. For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

32. 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).

    Credibility

33. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

34. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

35. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

36. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

37. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

38. The Tribunal found the applicant’s answers to be quite vague and limited. The applicant could not explain why the stallholders of the market, a group of 20 who he stated were all suffering from the criminal activities, did not band together to seek proper security, either from the organisers of the market, or the police. The applicant could not explain why they would not do so, despite what appears to be on the claims a systematic criminal exercise that lasted for years. That the applicant stated they were not brave enough to do so is belied by the applicant’s evidence that he did go to the organisers, who did nothing, but said the matter was under consideration, and the police, whom he stated he made reports, but again appear not to have done anything, the applicant cryptically responding to questions as to police response by saying he would not speak badly of his country.

39. The extent of this criminal activity over such an extended period of time, where more than 50% of the profits were taken on multiple occasions over the week, is not plausible. The Tribunal does not accept that the stall-holders in the market would allow such criminal activity to occur unchecked for such an extended period, that the market organisers would respond non-committedly, or that the police would do nothing with such a long standing criminal activity that appears overt and unchecked. The Tribunal considers that the applicant is not a witness of truth regarding the frequency or longevity of the criminal activity, the Tribunal does not accept that the applicant and other affected stallholders would accept such activity, to continue to pay rental on the market space while being subjected to such a level of crime is not plausible. The Tribunal is prepared to accept that the applicant paid some protection money on limited occasion, as there is country information that supports his claim that protection crime has existed, but that he has significantly embellished his claims with respect to the frequency of this criminal activity.

40. The Tribunal discussed the applicant’s opportunities if he returned to Malaysia. He stated that he hoped they had forgotten him, he would open a [a business]. He would move accommodation though. The Tribunal questioned the concerns of the applicant, including needing to move, given he had not done so during the difficulties he had claimed to have experienced. The Tribunal again asked the applicant why he could not seek assistance from the police if he believed he was being targeted by criminals. The applicant stated that he did not trust Malaysian police. Asked why, he just stated that he did not trust them, he had had no personal experience of difficulties with them.

1. The Tribunal accepts that the applicant may have suffered from some low level criminal activity, but that he significantly embellished the frequency and seriousness of such activity. The Tribunal does not accept the applicant’s claim that he was photographed by any person, the Tribunal considers that the crime he experienced was localised to the stall he ran at the night market, and that there was no reason for a person to photograph him for the purpose of seeking protection money from him.

2. The Tribunal is extremely concerned by the very limited action of the applicant in response to this criminal activity, either by himself or in conjunction with other stall-holders who he states were similarly affected. The Tribunal considers that the applicant has not availed himself of this protection as the frequency of the criminal conduct was very low, and not of concern to the applicant, such that he would pursue protection from the authorities. The Tribunal considers that the applicant chose to live with the low level of criminal activity as it was not affecting his business to a significant degree. The Tribunal further does not accept that the threat to take clothes from the applicant would lead to the applicant fearing an escalation of the criminal activity. The Tribunal does not accept that this is a reason for the applicant to leave the business.

3. The Tribunal does not consider that the experience of the applicant constitutes significant harm as defined in the Act. ‘Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted.

4. The final type of significant harm listed in s.36(2A) is degrading treatment or punishment: s.36(2A)(e). Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

5. In these circumstances, the applicant occasionally paid money to criminals for ‘protection’. He was not harmed, he was not overtly threatened, though there is an implicit threat in not paying the money. The applicant did not pursue assistance from the authorities arising from this implicit threat, though he could have done, he appears to have accepted it as part of doing business. The applicant’s experience, as considered against the definition does not constitute severe pain or suffering, or humiliation. That the experience of the applicant does not appear to meet the definition of significant harm is of concern to the Tribunal.

6. The Tribunal discussed effective protection. In this instance it would appear that the applicant has not sought the assistance of the organiser of the market to any great degree, or taken much initiative with respect to reporting this to the police. In the circumstances, and noting the applicant’s vague and evasive response to direct questions on this issue, the Tribunal considers that the applicant has not availed himself of any of the protection that the state may have afforded him.

7. The police have been active in cracking down on gang activity.  In August 2013 the Royal Malaysian Police Force launched Ops Cantas Khas against criminal gangs and crime syndicates. In September 2013, Gambling and Secret Societies Division (D7) principal assistant director Senior Assistant Commissioner Datuk Abdul Jalil Hassan told the Malaysian Insider that the police had arrested 5,505 people for various crimes, including armed robbery, theft, vehicle theft, extortion and secret society activity.

   Abdul Jalil, adding that the police also seized other weapons, including 21 swords, 70 knives, six axes, 11 brass knuckles and a stun gun. Ops Cantas Khas was launched following a spate of shootings in the country, believed to be related to turf war among gangs and linked to illegal activities. Among those shot dead were gang members or leaders, with the latest incident involving the shooting of a former air force man, whom the police claimed was the head of Geng 36 in Batu Gajah, Perak[1].

   [1] Police make 5,505 arrests in three weeks in crackdown on gangs, organised crime’ 2013, Malaysian Insider, 9 September < <CXC28129414714>

8. The Tribunal noted that country information also did not support the applicant’s contention that the police were so corrupt that their second income was gang related bribery. The Tribunal noted country information including the 2014 DFAT report on Malaysia. This report states

   2.17 The threat of crime and terrorism in Malaysia is relatively low and the security situation is generally stable.

   Police Integrity and Accountability

   5.5 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged corruption within the RMP and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers, including suspension, dismissal or demotion.

9. Human Rights Watch reports:

   The current RMP is a 112,145-member police force responsible for everything from traffic control to intelligence gathering and is composed of eight specialized law enforcement departments.

   These departments are the following: Criminal Investigation Department; Narcotics Criminal Investigation Department; Internal Security and Public Order Department; Special Branch; Commercial Crime Investigation Department; Counter-Terrorism Special Operations Task Force; Management Department; and Logistics Department.

   Human Rights Watch credited the government for implementing ‘many’ of the Royal Commission’s recommendations but also reported that, ‘according to former commissioner Dennison Jayashooria, key recommendations have not been implemented, including improving the investigative capabilities of the police and creating effective external accountability mechanisms.’[2]

   [2] Human Rights Watch 2014, No answers, no apology: Police abuses and accountability in Malaysia, 2 April, p.17 <CIS28014>

10. The USSD reported in July 2015:

    The government has some mechanisms to investigate and punish abuse and corruption, and SUHAKAM[3] played a role in investigating alleged abuses committed by the security forces. NGOs and media reported that despite investigation into some incidents, security forces often acted with impunity.

    Police officers are subject to trial by the criminal and civil courts. Police representatives reported there were disciplinary actions against police officers and that punishment included suspension, dismissal, and demotion. Civil society groups renewed their call for the parliament to oversee an independent police complaints and misconduct commission. Police training included human rights awareness in its courses. SUHAKAM also conducted human rights training and workshops for police and prison officials[4].

    [3] Suruhanjaya Hak Asasi Manusia Malaysia (SUHAKAM), the Human Rights Commission of Malaysia, was established by the Malaysian Parliament under the Human Rights Commission of Malaysia Act 1999, Act 597 with the aim of promoting and protecting the human rights of people in Malaysia. See

    [4] US Department of State 2015, Country Reports on Human Rights Practices for 2014 – Malaysia, 25 June, p.6, 5 <OG2B06FAF115>

11. The Tribunal accepts that there is criticism of the police response to some areas of crime in Malaysia, and that there is perception by the community that they are corrupt. However the Tribunal does not accept that the corruption is so pervasive that they are unwilling to provide assistance to stop gang related violence and criminal activity. The Tribunal does not accept this aspect of the claim by the applicant.

12. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

13. The Tribunal has not accepted that the applicant was subjected to the level of criminal activity as he has claimed. The Tribunal finds that the applicant experienced a low level of criminal activity that is not significant harm, as defined by the Act. The Tribunal also considers that the applicant has not sought the assistance of the authorities or the organisers of the market in any effective measure to counter or stop this criminal activity as he was not unduly concerned by this activity.

14. The Tribunal considers that is reasonable to expect that the applicant would seek to open a new shop business on return to Malaysia. The applicant has stated he hoped he would be forgotten by the criminals. The Tribunal considers that he is not a person of interest to the criminals, the Tribunal considers that he was the subject of opportunistic criminal activity located at a local market. In the future, in his own shop, the applicant would be in a position to operate without such opportunistic criminal activity affecting him to any significant extent. The Tribunal finds that he could rely upon the assistance of the authorities for the provision of policing services that reduce the risk of the applicant suffering significant harm to a level that is less than a real risk.

15. The Tribunal finds that the applicant does not face a real risk of significant harm for this reason. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

16. 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

17. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Stuart Webb
    Member