1418341 (Refugee)

[2016] AATA 3388

1418341 (Refugee) [2016] AATA 3388 (2 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418341

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Frances Simmons

DATE:2 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 02 March 2016 at 4:07pm

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. The applicant is a citizen of Malaysia. He was born on [date]. He is of the Muslim faith and [name] ethnicity. He was issued a Malaysian passport [in] 2013 and a [temporary] [visa] on the same day. He arrived in Australia [in] December 2013. He applied for protection [in] March 2014.

2. In his protection visa application the applicant claims he worked as [Occupation 1] in Malaysia. He claims his employer, [(Mr S)], worked as a [Occupation 2] to [a] Minister but after this Minister’s party was defeated at the election in [year] Mr S became involved with illegal [activities]. The applicant claims he was ‘roped in’ to working with his [gang] and when he attempted to quit Mr S told him he could not do so because he knew his secret affairs and dealing and if he tried to leave he would be killed. The applicant escaped and travelled to Australia. He fears Mr S or gang members acting on his behalf will harm or kill him. He has also said he is still afraid of a prominent businessman, [(Mr T)], who he worked for until around 2004.

3. The applicant applied for a protection visa [in] March 2014 and the delegate refused to grant the visa [in] October 2014. The delegate found the applicant’s claims did not fall within the refugee criteria because the applicant did not fear being persecution for one or more of the reasons in the Refugees Convention. The delegate found the applicant was not entitled to complementary protection because he could obtain protection from the Malaysian authorities such that there would not be a real risk that he would suffer significant harm.

4. The applicant appeared before the Tribunal on 10 February 2016 where, with some variations which are noted below, he reiterated his claims. The issues for consideration in this review are whether the applicant has a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention. If the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason it must consider 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 he will suffer significant harm. For the reasons that follow, I have concluded that the decision under review must be affirmed.

   RELEVANT LAW

5. 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

6. 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).

7. 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.

8. 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.

   Complementary protection criterion

9. 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’).

10. ‘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.

    Section 499 Ministerial Direction

11. 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. To the extent it is relevant to the assessment of the applicant’s claims I have considered the DFAT Country Assessment: Malaysia published on 3 December 2014.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Statement of claims submitted to the Department

12. In his written claims, which appear in English on the Departmental file (folios 48-51), the applicant states that in 2003 he moved to Kuala Lumpur and started working as a [Occupation 1] for a prominent businessman, Mr T. He [details of work deleted] and often kept large amounts of money for him. [In] October 2004 Mr T was arrested under Malaysia’s internal security act. The applicant initially stayed in the servant’s room with Mr T’s family and drove them to and from the detention centre to visit Mr T.  Then he came to know Mr T was [details deleted] and he had effectively assisted [him].

13. The applicant acquired a new job working as a [Occupation 1] for [(Mr S)] the [Occupation 2] to [name] who was, at that time, [a] Minister of Malaysia. One day when he was waiting for Mr S, he saw Mr T. Mr T told him he was now free and that he had senior police personnel under his payroll. Initially he encouraged the applicant to return to work for him as a [Occupation 1] but, when the applicant resisted these offers, he began threatening the applicant. The applicant has said Mr T believes the applicant has information about his illegal activity that could be detrimental to him. He changed his phone number, but he did not go to police because he did not want to offend Mr T.

14. After the Malaysian elections in [year] [name] lost his position as [a] Minister and Mr S lost his position as his [Occupation 2]. Mr S then became involved in illegal [activities]. He made a lot of money. The applicant was part of his [gang] and he was paid a lot of money too. However, after some time, he decided that his work conflicted with his beliefs as a Muslim and he told Mr S he wanted to quit. Mr S was concerned the applicant knew about his illegal dealings and said if he left he would be killed. The applicant kept working for Mr S until he had time to secretly arrange his passage to Australia.

15. In his written claims the applicant has said he will be killed by Mr S or his gang of thugs if he returns to Malaysia. He also believes he could be harmed by Mr T because he has been threatened by him in the past.

    Interview with the delegate and the delegate’s decision

16. The applicant attended a thirty minute interview with the delegate of the Minister. The delegate’s decision record contains the following summary of the interview and, having listened to this interview, I accept it is an accurate summary of the applicant’s evidence.  

    a.The delegate put to applicant that his arrival in Australia on [date]/12/2013 and not making a protection visa application until [date]/3/ 2014 could be considered to indicate the claimed fear is not well-founded. The applicant advised he is illiterate. He went to the mosque for prayer

    b.The delegate asked the applicant if he ever did anything knowingly illegal while he was employed in the positions he mentioned in his protection claims. The applicant advised that he did not get involved with anything irregular. He had a fear that he would be questioned by the authorities because they would be thinking that he had new information.

    c.Should he return to Malaysia he will be killed.

    d.The applicant has not approached the Malaysian authorities as the politician is a big shot.  The Malaysian police always follow instructions of politicians and they can be bribed. He will not be listened to by the police and there will not be a fair investigation.

    e.The delegate put to the applicant that the country information indicates that Malaysia has a working criminal law and legal system and the provision of a reasonably effective and impartial police and justice system exists and the Constitution states that all persons are equal before the law and entitled to have the protection of the law. The applicant advised the police are good but the politicians have a big say. You cannot complain against the politicians. The police can be bribed. Should he go to the police they will tell him to be quiet as it involves a politician.

    f.The applicant submitted what he advised was proof that he was [Occupation 1] in Malaysia (Departmental file, folio 64)

17. The delegate accepted as credible that the applicant worked as [Occupation 1] and fears gang members will harm or kill him on behest of the employer and that the applicant had a subjective fear of being harmed. The delegate was not satisfied that the applicant feared harm for one of the reasons in the Refugee Convention. The delegate concluded that the applicant was not entitled to complementary protection because he could obtain State protection such that there would not be a real risk that he would suffer significant harm.

    Evidence to the Tribunal

18. The Tribunal explained the refugee and complementary protection criteria to the applicant. The applicant had three documents he wanted to submit to the Tribunal which he said he had not submitted before. He described two documents (the photo ID from when he was working for the government, and an identity card from when he was working for Mr T) and I indicated they appeared to be identity cards he submitted to the Department. The third item he wanted to submit was a USB stick which he said contained photographs of the politicians and Mr S. The applicant said he does not appear in the photographs; he took these photographs for Mr S. [1]

    [1] Although the applicant was advised someone would take copies of these documents at the end of the hearing, unfortunately there was no one available to do so (the hearing was conduct via videolink to [town]). A Tribunal officer attempted to contact the applicant by phone to advise him that he had 7 days to provide any documentation he wanted the Tribunal to consider. Attempts to contact him by phone were unsuccessful, so a letter was sent to him stating he had until 22 February 2016 to provide any further documentation to the Tribunal. The applicant responded by providing copies of his identity documents, a USB stick with photos of Malaysian politicians, and several handwritten pages in [language]. On 16 February 2016 the Tribunal wrote to the applicant advising that he had until 1 March 2016 to provide English translations or further submissions in English. No further submissions were received, although the applicant did contact the Tribunal by telephone: see further para 25-26 of the decision

19. The applicant confirmed that someone helped him complete his protection visa application. He told the Tribunal he was born in [State 1] and moved to Kuala Lumpur in around 2001.  He said [State 1] is about [number] hours from Kuala Lumpur by plane. He had no family in Malaysia; he was an orphan; he never attended school; he was illiterate. He does not know anyone in Australia but he has found [work] in [town]. He worked [at workplace] and, more recently, in a [factory]. Hesaid he was being paid $[amount] per week.

20. The applicant worked for Mr T and Mr S in Kuala Lumpur. He first worked for Mr T and then he was arrested. He worked for Mr T’s family for some time after this and then started working for Mr S. Mr S initially worked for a politician but later made money from illegal [activities]. Before the Tribunal the applicant said that a month before he left Malaysia he went back to work for Mr T. The applicant gave evidence that he had not ever been questioned by the Malaysian authorities about his work for Mr T or his work for Mr S. The applicant claimed that if he returned to Malaysia certainly one of Mr S and Mr T would kill him; he had done all the work for him, he was not educated, and he knew all the details about what they had done and there was no protection for his life.

21. When asked why Mr S would want to harm him, he said Mr S’s activities were against his Islamic faith and so he started working for Mr T for a month. I asked why either Mr T or Mr S would harm him if he went back to Malaysia. He said Mr S didn’t want him to stop working for him because he knew about Mr S’s dealings. I asked whether Mr S had ever threatened him. He described an incident that occurred after he stopped working for Mr S when people acting on behalf of Mr S threw stones at his house and threatened to kill him if he did not go back to work for Mr S. The applicant claimed he had approached the Malaysian authorities about Mr S before he left Malaysia but they did not assist him and told him to return to work.

22. When asked why Mr T would harm him, he said he had a threat to his life from Mr T and Mr S. It was put to him that he had said he went back to work for Mr T a month before he left Malaysia so why would he want to harm him? He said he didn’t tell Mr T he was leaving; this was his feeling – Mr T may be looking for him and he doesn’t know where he is. I asked why Mr T would care that [he] had left his employment. The applicant gave evidence Mr T would know about his activities and he would think that the applicant had betrayed him by leaving. I asked how he knew this and he said it was what his heart said. I asked whether he actually threatened him and he gave evidence that Mr T told him if he worked for him he could not leave him again.

23. During the course of the hearing the applicant was invited to comment on the following issues: whether the harm he feared was for one or more of the reasons in the Refugee Convention; whether the applicant could obtain State protection such that there would not be a real risk he would suffer significant harm; whether he could relocate to an area where there would not be a real risk that he would suffer significant harm; and  concerns about the credibility of his claims and, in particular, significant variations between his written claims and his oral evidence to the Tribunal. Where relevant the applicant’s evidence in response to these issues is discussed further below.

    Country information

24. In addition to the DFAT Country report on Malaysia dated 3 December 2014, the Tribunal has also considered reports about [(Mr T)], a [nationality] businessman and permanent resident of Malaysia. Mr T was arrested in Kuala Lumpur in [year] under Malaysia’s Internal Security Act, for his alleged involvement in an international [description] network.[2] There are reports that during his detention Mr T [information deleted].[3] Upon his release in [year], he was subject to weekly reporting to police and travel restrictions.[4] In 2010, an article in [a newspaper] claimed that Mr T was living ‘[details deleted]’.[5] No further information was located on whether [Mr T] continues to reside in Malaysia.

    Post hearing information

    [2] [Information deleted].

    [3] [Information deleted].

    [4] [Information deleted].

    [5] [Information deleted].

25. After the hearing the applicant provided copies of documents that identified him when he was working as [Occupation 1], a memory stick which I understand to be the USB stick that he referred to at the hearing and which I accept contains the photographs he described at the hearing, and several handwritten pages in [language]. The Tribunal has considered these documents, but as no translation was provided for the handwritten documents is unable to give these documents any weight. On 16 February 2016, the Tribunal wrote to the applicant and explained that it did not know what the hand written documents were about. The applicant was advised that the Tribunal can only consider documents that are in English or that are accompanied by a translation by a qualified translator. He was provided until 1 March 2016 to provide the Tribunal with a translation of the documents or any further submissions in English.

26. The applicant subsequently contacted the Tribunal with the assistance of the Telephone Interpreting service. He advised he could not arrange to provide the information in English; he could only do this verbally. The Tribunal officer who spoke to him said he would bring this to the attention of the Tribunal member. What I did in these circumstances was to draw upon the services of a [language] speaking member of the Tribunal staff. She read the handwritten documents (‘the [language] document’) and advised the Tribunal orally, and in broad terms, of their contents. The Tribunal understands from this conversation that the [language] document, which is undated, provides an account of the applicant’s experiences in Malaysia between 2003, when he moved to Kuala Lumpur, and 2013 when he left Malaysia and travelled to Australia, that is generally consistent with the applicant’s evidence at the hearing. It is noted that the [language] document refers to the applicant returning to work for Mr T in late 2013 before he left Malaysia in December 2013, as well as to an incident that occurred shortly before he left Malaysia in which his room was stoned and threats were made to kill him.  As noted above, the [language] documents submitted to the Tribunal to be generally consistent with information presented by the applicant during the hearing. For the avoidance of doubt, I do not consider that these documents raise any new issues for the Tribunal to consider and nor, in my view, do they contain any information I consider to be adverse to the applicant. 

    ASSESSMENT OF CLAIMS AND EVIDENCE

27. The applicant has said he is a citizen of Malaysia and the evidence before the Tribunal indicates he is.  I find that the applicant is a citizen of Malaysia, that Malaysia is the applicants' country of nationality for the purposes of the Refugees Convention, and that Malaysia is his receiving country for the purposes of complementary protection.

    Findings of Fact

1. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.  In assessing the credibility of the applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if the Tribunal 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.[6]  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.[7]

   [6] MIMA v Rajalingam (1999) 93 FCR 220

   [7] 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

2. The Tribunal has issued guidelines on the assessment of credibility in protection visa cases, which state, in part:

   … The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

   The tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims [footnotes omitted].

3. I have had regard to the fact the applicant has said he has never attended school and that he was anxious appearing before the Tribunal. I am also mindful that he is unrepresented. I have given him the benefit of the doubt and accepted most of his claims. However, I do have doubts about his credibility as a witness. There are four issues that I consider are of concern:  

4. Firstly, there was a significant variation between the applicant’s written claims and his evidence before the Tribunal about what happened in the month before he left Malaysia. In his written claims the applicant has said he kept working for Mr S until he hid in a friend’s house and had time to secretly arrange his passage to Australia. Before the Tribunal the applicant claimed that in the month before he left Malaysia he returned to work for Mr T.

5. The applicant explained this variation between his written claims and his evidence to the Tribunal by saying he dictated his claims in [language] and then they were translated into English by the person who assisted him with his claims; he told the person who helped him that he went to back to Mr T. It was put to him his statement said he escaped and stayed with a [friend] and at that point in time he had already been threatened by Mr T. The applicant said he could not read the English statement.  I note that after the hearing, the applicant provided an undated handwritten document in the [language] which I understand states that, in the month before he left Malaysia, he returned to work for Mr T.

6. Secondly, the applicant’s written claims state that he was too frightened to approach the authorities for assistance. However, at the hearing he said that he did approach the authorities about Mr S but they told him that he was working for Mr S and he should continue to do so. However, as the applicant acknowledged, he didn’t mention approaching the authorities in his written claims.

7. While the applicant told the Tribunal that he did tell the delegate about approaching the authorities in Malaysia, the delegate’s decision records that the applicant gave evidence he has not approached the Malaysian authorities because the politician is a big shot. This is, in my view, an accurate summary of the applicant’s evidence although I note the applicant did also say that, if he did approach the authorities, they would just tell him to go back to work for his employer. But this evidence was given in hypothetical terms; as something that would happen, not as something the applicant had actually done.

8. Thirdly, before the Tribunal the applicant described an incident that is not mentioned in the applicant’s written claims. He said after he quit his job with Mr S, the day he returned to work for Mr T, people came to his house and threw stones at the house and told him if he did not come back and work for Mr S they would kill him. However, given the applicant’s evidence about how his statement was prepared and that the [language] statement submitted by the applicant refers to an incident in which his room was stoned and people threatened to kill him, I have decided to give him the benefit of the doubt and accept this incident occurred as he described at the hearing.

9. Fourthly, the applicant’s evidence that that Mr T and Mr S would be able to find him wherever he went in Malaysia and could use their influence with the authorities to do so was highly speculative. This claim also lacks internal logic: on one hand the applicant has suggested that Mr T or Mr S are afraid he will tell their secrets to the authorities but, on the other, he has suggested that Mr T and Mr S would approach the authorities to find out where he was and, because of their power and influence, the authorities would assist them. 

10. Despite these concerns, for the purpose of this decision, I have given the applicant the benefit of the doubt and accepted most of his claims. Accordingly,

    a.I accept that the applicant was born in [State 1] and he was raised an orphan and he is illiterate. 

    b.I accept based on the applicant’s evidence that sometime between 2001 and 2003[8] the applicant claims that he moved to Kuala Lumpur and started working as [Occupation 1] for Mr T. He [details of work deleted] and often kept large amounts of money for him.

    [8] In his written claims the applicant states he moved to Kuala Lumpur from [State 1] in 2003; before the hearing he thought he moved to Kuala Lumpur in 2001. The variation is not significant.

    c.I accept based on the applicant’s evidence and the available country information that Mr T was arrested under Malaysia’s internal security act at some time in [year].

    d.I accept, based on the applicant’s written and oral evidence, that he kept working for Mr T for some time after Mr T was arrested before finding employment with [(Mr S)].

    e.I accept his employer, Mr S has worked for politicians in Malaysia including as a [Occupation 2] to the former Malaysian [Minister], [name]. I accept that after this Minister’s party was defeated at the [election] Mr S became involved with illegal [activities].

    f.I accept that the applicant was ‘roped in’ to working with his [gang] and when he attempted to quit his employer told him he could not do so because he knew his secret affairs and dealing and if the applicant tried to leave he would kill him.

    g.For the purpose of this decision and not without doubt I accept the applicant‘s oral evidence to the Tribunal that he stopped working for Mr S and started working for Mr T again a month before he left Malaysia. 

    h.I find, based on the applicant’s evidence at the hearing, that Mr T did not threaten the applicant at this time but the applicant is afraid that he will harm him upon his return because he didn’t tell him he was leaving and now he feels he may be looking for him.  

    i.I find, based on the applicant’s evidence at the hearing, that the authorities have not ever questioned him about his work with Mr S or Mr B.

    j.I accept that employees or agents of Mr S went to the applicant’s house in Kuala Lumpur and threw stones at it about a month before he left Malaysia. I accept that when he went outside and yelled at them neighbours gathered and the stone throwers ran away.

    k.For the purpose of this decision and not without doubt I am prepared to accept that the applicant is afraid that Mr T and Mr S (or third parties acting on their behalf) will harm or kill him if he returns to Malaysia.  

    l.I accept the applicant’s evidence that neither Mr S nor Mr T know he is in Australia and there is no way for them to find out where he is because he does not have any family in Malaysia and is not in contact with anyone there.

    m.I accept the applicant may not have been immediately aware that he could not apply for a protection visa in Australia. I place no adverse weight on the minor delay in applying for protection in this matter.

11. However, there are some aspects of the applicant’s evidence that I do not accept because I consider they are entirely lacking in credibility. To the extent that the applicant has suggested that Mr T and/or Mr S have the power to influence the authorities such that he will be identified upon his return to Malaysia even if he relocates to another area of Malaysia, I do not accept this claim. I find this claim far-fetched, speculative and implausible.

12. I do not accept that the applicant approached the authorities to seek protection from Mr S.  His evidence about this issue has been inconsistent over time. The applicant did not mention this in the written claims that were submitted with his protection visa application. Furthermore, while I have considered that he did tell the delegate he approached the authorities, I consider the delegate’s decision record presents an accurate summary of evidence to the delegate.  Also, his evidence to the Tribunal about the authorities’ response to his complaint (that he should continue working for Mr S) is not supported by the country information which indicates that Malaysia has a reasonably effective and impartial police force.

    Whether the applicant is entitled to protection as a refugee

13. To meet the criterion in s.36(2)(a) 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.

14. At the hearing I explained to the applicant to satisfy the definition of a refugee the persecution he fears must be for one or more the reasons set out in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. It was put to the applicant that he claimed he would be targeted by Mr T or Mr S; that it appeared that he was afraid he would be the target of criminal activity by his former employers. I put to him that the harm he claims to fear in his current application for protection does not appear to be motivated by any of the Convention reasons. In response he reiterated he did not want to go back to Malaysia as he would be killed; he would rather be in jail in Australia.

15. On the evidence before me, I am not satisfied that the essential and significant motivation for the infliction of the harm the applicant claims he fears in his current application for protection is for a Convention reason or reasons.  On the evidence before me, I am not satisfied that there is a real chance that the applicant will face serious harm for one or more the Convention reason, either now or in the reasonably foreseeable future, if he returns to Malaysia.

16. Although it is unnecessary to do so, given the above findings, on the evidence before me I find the applicant could avoid the harm he fears by relocating from Kuala Lumpur to another area of Malaysia, where there would be no real chance that the applicant would be a target of criminal activity amounting to serious harm. This is because, for the same reasons that are discussed below at para 49-53, I consider there is no real chance that Mr T or Mr S would become aware the applicant had returned to Malaysia and seek to harm him if he relocated away from Kuala Lumpur to another part of Malaysia, such as [State 1]. While it would appear that both Kuala Lumpur and [State 1] could be described as his home areas, it is, in any event, and for the same reasons that are noted at para 52 of this decision, I am satisfied that it is reasonable, in the sense of practicable, for this particular applicant to relocate from Kuala Lumpur to another area of Malaysia.

17. Having regard to all the circumstances and findings above, I find that that there is no real chance that the applicant will be subject to serious harm in Malaysia for one or more the Convention reasons, now or in the reasonably foreseeable future.

    Whether the applicant is entitled to complementary protection

18. Because I am not satisfied that the applicant is entitled to protection as a refugee, I have considered whether, having regard to what I have accepted of the applicant’s claims, he is entitled to complementary protection. The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a)

19. At the hearing I advised the applicant that 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.

20. During the hearing the applicant was invited the applicant to comment upon the delegate’s conclusion that he could obtain State protection such that there was not a real risk he would suffer significant harm. I put to the applicant that DFAT assesses that, in general, ‘[c]redible local and international sources consider the RMP to be a professional and effective police force’ and, as at 2011, RMP employed approximately 102, 000 officers and operated 837 police stations across Malaysia.[9]  I also referred, in general terms, to the fact that DFAT’s country report on Malaysia identifies corruption among the Royal Malaysian Police (RMP) as an issue which can undermine the quality of responses to crime, but also notes that, in response to a Royal Commission into the RMP in 2005 that identified ‘a perception of widespread corruption’, the government implemented reforms and established compliance units within the RMP and disciplinary action was taken against corrupt officers. It was put to the applicant that, if he feared harm from people involved in criminal activity, he could seek protection from Malaysian authorities.

    [9] DFAT Country Report: Malaysia, 3 December 2014, Sections 5.4, 5.5, p.20 <CIS2F827D91671>

21. The applicant disagreed: he said there was no protection for his life; they may try to kill him and set it up as an accident; he has seen this happen; the authorities could not protect him. He gave evidence that he had worked for Mr T and Mr S; they had money and influence, and he knew the activities they were involved in. He gave evidence there would be ‘no point’ seeking protection – his attempt to make a complaint about Mr S was not successful.  As noted above, the applicant first claimed to have approached the authorities about Mr S before the Tribunal. He claims the authorities did not assist him and told him he was working for Mr S and should go back to work. As noted above, I do not find this aspect of the applicant’s evidence credible.  In any event, even if it were to be accepted that the applicant could not obtain State protection such that there would be a real risk that he would not suffer significant harm, it would not change the outcome of this review.

22. This is because, on the evidence before me, I have concluded it would be reasonable for the applicant to relocate to an area of Malaysia where there would not be a real risk that he would suffer significant harm. When the issue of relocation was discussed with the applicant he claimed that Mr T or Mr S could find him wherever he goes in Malaysia. I consider this claim to be speculative and unpersuasive. The applicant has given evidence that neither Mr S nor Mr T know he is Australia; that he does not have any family in Malaysia; that no one knows where he is and he is not in contact with anyone. While he says he believes Mr S or Mr T would want to find him, there is no evidence before the Tribunal that either Mr T or Mr S have made any attempts to find him after he left Malaysia. When asked how Mr T or Mr S would even be aware he had returned to Malaysia, the applicant said Malaysia was a small country: it only took about six hours to go around it and they could find out he had returned as they had influence all over the place and influence with the authorities – Mr S had worked for a Minister. He said they had their own people everywhere – he knew this from working for him – and they could find him wherever they do. In response to the suggestion that he could relocate from Kuala Lumpur to [State 1], where he grew up, the applicant said [State 1] was a very small place so even if they went there they could find him. However, as I put to the applicant, firstly, it is unclear how Mr S or Mr T would know he was there and, secondly, it is also unclear why they would be motivated to pursue him to [State 1]. His response was vague and speculative: he said his heart said they would come to know and he would be killed.

23. After considering all the evidence, in my assessment the risk that Mr T and/or Mr S would discover he had returned to Malaysia if he relocated away from Kuala Lumpur (where the applicant lived between around 2001 and 2013 and where he worked for Mr T and Mr S) is far-fetched, remote and insubstantial. Furthermore, I do not consider the applicant’s own evidence supports the conclusion that, even if Mr T and/or Mr S became aware that he had returned, they would be motivated to target the applicant, kill him or otherwise cause him significant harm (whether this be physical harm or forced labour). In reaching this view, I have had regard to the applicant’s evidence Mr T did not actually threaten him when he began working for him again in 2013, it is just his feeling that he will be harmed by Mr T for leaving his employment without telling him. I also note his evidence that he had left Mr T’s employment before (when Mr T was imprisoned under the NSA) and, although his written claims suggest that, when he had a chance encounter with Mr T, Mr T expressed his disappointment about the fact he stopped working for him and then behaved in a threatening way to try and get the applicant to return to work for him, the applicant did not return to work for Mr T.  The applicant’s evidence does not indicate he has ever actually been physically harmed by Mr T and there is no evidence that Mr T ever took any action to carry out any implied or express threats made to the applicant. With respect to his fears about Mr S, while I have accepted the applicant’s account of the stone throwing incident, I also note his evidence was the stone throwers eventually ran away and that he remained in Malaysia for another month before travelling to Australia. 

1. Even accepting, for the purpose of this decision, that there is a real risk that, if the applicant were to return to his home in Kuala Lumpur, Mr T or Mr S might discover the applicant had returned home and cause him to be subjected to significant harm, I am of the view that this risk is localised and only exists in Kuala Lumpur where the applicant lived while working for Mr T and Mr S and where he might encounter Mr T or Mr S or people who worked for them in Kuala Lumpur. I do not accept 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 Mr T or Mr S would discover the whereabouts of the applicant and subject him to significant harm if he relocated away from Kuala Lumpur to another area of Malaysia, such as [State 1]. I find the risk of this happening to be remote.

2. Having found the harm that the applicant fears is localised, I have considered whether it is reasonable to expect the applicant to relocate to another area of Malaysia. I find that it is.  The issues which arise when considering the reasonableness of relocation in the refugee context are the same which arise in the complementary protection context.[10] With respect to whether it is reasonable for this particular applicant to relocate, I have considered the fact that he is a single man who has had the means to relocate within Malaysia, and from Malaysia to Australia. Notwithstanding his lack of formal education he has found employment in both Australia and Malaysia. Having regard to the applicant’s particular circumstances, I consider it is reasonable for the applicant to relocate to another area of Malaysia where there would not be a real risk that he would suffer significant harm as a result of being targeted by Mr T and /or Mr S or persons acting on their behalf. An obvious place for the applicant to go would be the state of [State 1] where he was born and where he lived until around 2001. However, it would also appear to open to him to relocate to other areas in Malaysia.  

   [10] MZYXS v MIAC [2013] FCA 614 (Marshall J, 21 June 2013) at [37].

3. I find, therefore, that the applicant that it would be reasonable for the applicant to relocate to another part of Malaysia where there would not be a real risk that he will suffer significant harm. Accordingly, I find 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 will suffer significant harm.

   CONCLUSION

4. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

5. 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).

6. 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

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

   Frances Simmons
   Member