1511851 (Refugee)

1511851 (Refugee) [2015] AATA 3682 (20 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1511851
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Filip Gelev
DATE:20 November 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 20 November 2015 at 3:41pm

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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] August 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa [in] May 2015. The applicant did not arrange an interview with the delegate and the delegate refused to grant the visa on the basis that, on the evidence before her, she was not satisfied that the applicant held a genuine fear of persecution or significant harm.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent DFAT Country Report is from 3 December 2014.
Credibility
The Tribunal accepts the difficulties of proof faced by applicants for refugee status and complementary protection. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’.
The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196‑197 and 203‑204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.
However, a decision maker is not required to accept uncritically any or all allegations made by an applicant. Moreover, 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. In addition, The Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. 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.
As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):
Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)
The Full Court noted that this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:
in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.
If the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality and identity
The applicant is a [age] year old Malaysian national. He first entered Australia [in] March 2015 on a three months Electronic Travel Authority using a valid Malaysian passport.
The Tribunal is satisfied on the basis of a copy of the biodata page of his Malaysian passport that he is a citizen of Malaysia and that the applicant’s identity is as claimed.
The Tribunal accepts that Malaysia is the country of reference for the purposes of assessing the applicant’s claims under ss.36(2)(a) and (aa)).
On the evidence before it, the Tribunal is also satisfied that, for the purposes of s.36(3) of the Act, the applicant does not have a right to enter and reside in a third country.
Background
The applicant is Tamil by ethnicity and a Hindu by religion.
The applicant claimed that he comes from [Town 1] in the state of [name] in peninsular Malaysia.
According to the DFAT Country Report, ethnic Indians are the third largest ethnic group in the country. While there are no laws that directly discriminate against ethnic Indians, they do face some discrimination in relation to access to university education and to the civil service:
3.11 …Most Indian Malaysians form part of the working classes but they also represent a high proportion of professionals (15.5 per cent) including 38 per cent of the entire medical workforce. Access to primary and secondary education is high, with over 500 state-based Tamil Schools across Malaysia, however, access to state-based tertiary education and the civil sector remains low. Between 2011 and 2012, only 2.6 per cent of student places at public universities were offered to Indian applicants. The exclusive use of the Malay language may be a restriction in this regard.
3.12 While many Indian Malaysians belong to the upper-middle class, the number of ethnic Indians living below the poverty line has not decreased in recent years, in contrast with decreases in poverty for ethnic Malay and Chinese communities. Ethnic Indians also constitute a disproportionately high number of incarcerated persons in Malaysia, with some figures suggesting they represent up to 48 per cent of the Malaysian prison population.
3.13 Indian Malaysians freely participate in political life. There are several members of parliament of ethnic Indian origin and two serving ministers within the current government.
3.14 DFAT assesses that ethnic Indians generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.
He did not make any express claims that he fears harm as a Tamil person or as a Hindu, but he claimed that he participated in one demonstration, because he wanted to improve the position of Tamils in Malaysia.
Claims
The applicant prepared the application form by himself and it is somewhat difficult to follow his claims, even after the Tribunal asked him a number of questions at the hearing.
He did not contact the Department of Immigration to organise an interview, probably because he does not speak English and he did not realise – having received an acknowledgment letter and various other pieces of information totalling 15 pages – at the onus was on him to organise an interview.
The claims fall into two categories. First, he said he feared harm because of his involvement in 2010 and 2011 with a human right body called Bersih. He claimed that his involvement caused him to receive a call from “unknown” person or persons.
In answer to the question what he feared will happen to him if he went back, he said
Which also threaten to kill and no action taken even police report are made.
As to whether he had experienced harm in the past, the applicant wrote:
I’d afraid to be sought by government supporters reduced has been warning me rudely no humanitarian debts burden causes another person under me.
When asked if he could relocate to another part of Malaysia, the applicant said
No. Ows in Johor [distance] from my town but in week my family receiving call from known al treaten to kill.
In response to the question whether the applicant feared being harmed or mistreated on return to Malaysia, the applicant’s response seemed to suggest that he was a loan guarantor and the failure of the debtor to pay off a debt means that now the applicant is at risk of harm:
Yes. I also have guarantor a frinds of mine which ran away now. Due on that the loan shark threatens me to kill.
He said the authorities would not protect him because “I have involved in this coused my name was blacklisted and the police did not bother or my safty requirement.”
As to whether he thought that he could relocate to another part of Malaysia, he said that he was unable to settle all his debts, he may be threatened or killed by a loan shark.
Political opinion
At the Tribunal hearing, the applicant reiterated his claim that he had been involved with Bersih. He said that Bersih took him to fight for the country and the people. He was asked what he meant by that he said that Malaysians do not consider Tamils to be a part of the country, that is, Tamils are oppressed in Malaysia, so Bersih fought for “that right”.
There are many reports and references relating to the Bersih movement. According to a 2013 online article published on the New Mandala website:[1]
Bersih is the Malay word for “clean”. The Bersih movement, also known as the Coalition for Clean and Fair Elections is a group of 84 non-governmental organizations whose aspiration is to push for a thorough reform of the electoral process in Malaysia. In the beginning, Bersih was a political party-driven movement, which later on developed into a non-partisan movement in April 2010.
Bersih started out in July 2005 as a Joint Action Committee for Electoral Reform. A Joint Communiqué on Electoral Reform was a result of an Electoral Reform Workshop held in Kuala Lumpur in September 2006 and this subsequently led to the formal launch of Bersih in the Malaysian Parliament building lobby on 23 November 2006 with members comprised of political leaders from the opposition parties and representatives from the civil society.
In April 2010, the movement was re-named to Bersih 2.0 as a “fully non-partisan” movement and “free” from political influences, which is now solely by the civil society representatives under the co-chairmanship of Datuk Ambiga Sreenevasan and Datuk A. Samad Said. Bersih 2.0 has since expanded the original four demands to eight demands to the government of Malaysia. The demands has since then expanded to eight and they are: clean the electoral roll, reform postal ballot, use indelible ink, free and fair access to media, minimum 21 days campaign period, strengthen public institutions, stop corruption and dirty politics. Apart from the street rallies in 2007, 2011 and 2012, Bersih 2.0 has decided to push forward with its electoral reform campaigns, such as the “Jom 100” campaign in urging the Malaysians to exercise their voting rights and the “Jom Pantau” (let’s observe) campaign in getting citizen observers to watch out deception in yesterday’s polls.
[1] Khoo Ying Hooi, “What about Bersih?”, accessed at on 19 November 2015.
The Straits Times 27 August 2015 provides[2]:
[2] “What you need to know about Malaysia’s Bersih Movement”, accessed at on 23 October 2015
What is Bersih?
Bersih, which means "clean" in Malay, refers to the Coalition of Free and Fair Elections. It is a civil society movement consisting of 84 non-government organisations calling for a thorough reform of the electoral process in Malaysia. It is led by Maria Chin Abdullah from the Women's Development Collective (WDC). Its previous chief was former Bar Council president Datuk S. Ambiga.
Bersih was first launched in November 2006 as a political party-driven movement with members consisting of opposition political leaders and representatives from the civil society. In April 2010, the movement was re-named Bersih 2.0 as a fully non-partisan movement free from political influences.
What is Bersih 4.0?
Bersih 4.0 is the fourth rally planned for three cities on Aug 29-30 to push for Prime Minister Najib Razak's resignation as well as institutional reforms to prevent prime ministerial corruption. The rally comes amid allegations in the Wall Street Journal that US$700 million (S$981 million) in state funds was deposited into Mr Najib's personal bank accounts and alleged mismanagement of debt-ridden state investor 1Malaysia Development Berhad (1MDB).
Bersih says recent events in Malaysia, including the removal of Abdul Gani Patail as Attorney-General and the removal of ministers who had spoken out on the 1MDB issue, have triggered the call for the rally.
Organisers say protests will be held in Kuala Lumpur, Kuching and Kota Kinabalu from 2pm on Aug 29 until midnight Aug 30.
The Malaysian police have declared that Bersih 4.0 is illegal due to the organisers' failure to furnish permissions from premises owners to use their locations as rallying points. Police say those who join the rally can face legal action under the Peaceful Assembly Act.
Inspector-General of Police Khalid Abu Bakar has also warned all quarters not to incite violence. He was responding to news reports that an anti-Bersih group would be training with machetes and swords as preparation to counter the Bersih rally.
But the group leader, Umno division chief Jamal MD Yunos, has said the training is for self-defence and not to incite violence. He plans to mobilise 30,000 people to counter the Bersih rally.
Bersih chief Maria Chin Abdullah has insisted the rally will take place as planned and the group will work with the police to ensure that the event is peaceful.
SOURCE: ASTRO AWANI, CNN, MALAYSIAN INSIDER, MALAYSIAKINI, DFAT Report refers to political rallies in Malaysia as follows::
Political Rallies
3.46 The government closely administers political rallies under the Peaceful Assembly Act and Criminal Code. The required permits can be difficult to obtain and can be restrictive in their application.
3.47 Many political rallies are held within Malaysia without incident or interference from law enforcement agencies. However, individuals have been arrested for organising or engaging in rallies in contradiction with the law and the Royal Malaysian Police have on occasion used excessive force to control crowds. Bersih, a coalition of 62 NGOs, organised a series of rallies calling for free and fair elections in 2007 (Bersih 1.0), 2011 (Bersih 2.0) and 2012 (Bersih 3.0). The rallies attracted thousands of protesters and were supported by opposition parties in the Pakatan Rakyat (People’s Alliance). While the Government declared the July 2011 Bersih protest to be illegal, many thousands still participated. The police used tear gas and water cannons to break up the protest and made approximately 1500 arrests. Government approval was granted for the 2012 rally and several thousand people participated, however, when protesters moved beyond the approved protest site, the police used water cannons and tear gas to disperse the crowd and arrested approximately 500 people, including 25 women and five youth. In May 2013, the opposition PKR organised nationwide demonstrations known as the “Black 505” rallies, disputing the results of the May 2013 general elections. The rallies attracted thousands of people and took place with little interference from authorities. However, police subsequently arrested and charged a number of alleged organisers under the Peaceful Assembly Act for failing to provide the required ten days notice for public assemblies. Reports on the number of organisers arrested range from between six to forty individuals.
3.48 Overall, DFAT assesses that protesters face a low risk of arrest when engaged in political rallies. Such individuals have commonly been released on bail shortly following their arrest. Organisers of political rallies face a low risk of being charged under the Peaceful Assembly Act or Criminal Code.

The DFAT Report indicates that
A small number of high-profile opposition leaders or organisers have faced official harassment through the application of Malaysian law, particularly the Peaceful Assembly Act, Sedition Act, Criminal Code and occasionally, sodomy or corruption charges.
…
DFAT assesses that high-profile opposition leaders are at risk of official discrimination however general opposition party members are able to undertake political activities and are not at risk of official discrimination on a day-to-day basis. While a spike in interparty and societal violence occurred in connection with the 2013 elections, such incidents are not a common occurrence and individuals with political affiliations do not live in fear of violence on a day-to-day basis.
The applicant said that there was an event held before the 2006 and 2007 election and there was a lot of injustice done to the Tamil people. He said that on 9 July 2011 there was a rally held called Bersih 2.0. He said that many people were beaten – about 30, many more arrested – about 1,600. He was held for about a week and badly beaten. The protest was held at Dataren Merdeka or Merdeka Square in Kuala Lumpur. He said he travelled from his town to Kuala Lumpur specially for the gathering. He said that he travelled by bus, organised by Bersih. The authorities did not provide any reason for detaining him nor for releasing him. The authorities recorded his ID card details “on the system” and he found it hard to get a job afterwards because prospective employers knew that he had participated in the Bersih demonstration.
The Tribunal acknowledges that the country information indicates that there was a rally on 9 July 2011 and many people were arrested while much fewer were assaulted.
The Tribunal asked what the Bersih demands were. He said that the Tamil people in Malaysia are not getting any rights. When asked about anything else, he said Tamil people are always pushed to the back. He said it was started by Tamil people: Ambiga Sreenevasan. He was asked if he knew what else Bersih stood for. He said he did not know.
The Tribunal asked the applicant if he knew what the word “bersih” means in Malay. He said he knew the Tamil name and it translates as “cleanliness”. The Tribunal asked the applicant why in his opinion the movement was called “Cleanliness” if it is about equal rights for Tamils. He said he did not know, but wherever you go in Malaysia, there is corruption. He was asked whether he had heard of Bersih’s demand to “clean the electoral” roll; he said he had not. He did say that he had heard of the demand to put an end to corruption. However, when asked to name any more of Bersih’s 8 demands – as set out in the country information – he said he did not know them. He confirmed that he had only participated in one demonstration between the time when “Bersih” was founded in 2008 and March 2015 when he came to Australia.
Later on during the course of the hearing, the Tribunal told the applicant that it might have difficulty accepting his claims of involvement with Bersih, because he did not know Bersih’s official aims.
The Tribunal was asked why potential employers such as the owner of a fishing boat or a trucking business would care about the fact that he supported Bersih, he said they did not; but when he applied for jobs with big companies, they refused him.
The applicant referred to well-known persons who have been harmed because of their involvement in politics. He referred to the well-known lawyer called Karpal Singh. He said the government claimed that he died of natural causes, but the applicant said he thought he was killed because he participated in a rally. He said, Anwar Ibrahim, the former politician, is another well-known person in prison. If Mr Singh and Mr Ibrahim cannot be safe, what chance does he have as an ordinary person. The Tribunal referred to country information according to which Bersih supporters with a low profile are not at risk of harm.
Loan shark claims
When asked at the start of hearing if he had lived in [Town 1] his whole life, the applicant said that he had. He said that before coming to Australia he worked loading and unloading trucks. He was specifically asked if he was doing this job in [Town 1] and he said “yes”. He said it was a casual job. He said in the 3 months before he came to Australia he was working about 3-4 days a week. He was earning 400-500 Ringgit a fortnight or 1,000 a month. Before that he did some fishing. He said he would do whatever work was available. When asked if the last job before loading and unloading trucks was fishing or there was a period of unemployment between the two, he said he was unemployed. When asked for how long for, he said 2-3 years.
The Tribunal asked the applicant about his loan shark claims set out in his written application. The applicant said that a friend of his wanted to borrow from a “financial”, a loan shark. The applicant signed a document and he did not realise that by signing the document he had become a guarantor of his friend’s loan.
Since then, his family has been harassed. There was also a fight in which the applicant’s wrist was broken. He showed his [specific] wrist and said it had been broken in 2012.
He said as a result of all the threats, he had to hide in a place called [Location 2], which is a forest area. Then he said he went to a place called [Village 3] which is a village on the water. He said that the distance from his place to both of these places was 40-50km and the distance between them was about 15-20km.
He said he was hiding for about 2 years, first in [Location 2], then in [Village 3]. He managed to hide successfully, because he worked and lived on a fishing boat.
He said he did not know what happened to his friend, who borrowed the money.
Nothing happened to his family, but the loan sharks kept coming back to his house. His mother told him that he was not safe and he needs to leave the country.
He said the amount the person borrowed was 50,000 Ringgit. Now there is also interest that needs to be paid.
He said that his friend borrowed the money in February 2012 and he went into hiding in November 2012.
He said that he was in hiding until about a week before he came to Australia. He stayed with relatives for about 4 days in Kuala Lumpur.
He said that up until that time he was in [Location 2/Village 3]. When asked about the job where he was loading and unloading trucks, he said that he did that also in [Location 2/Village 3]. He was doing fishing about 2 days a week and also working loading and unloading trucks.
Then the applicant said that he was unemployed prior to going hiding/fishing. He said he was unemployed between 2010 and November 2012. The Tribunal asked why then he claimed to have had problems finding a job as a result of the participation in the Bersih protest in mid-2012. He just repeated that because he participated in the protest he was not given a job.
When asked about the claim that he received call from “unknown” he said he had received a call from someone who told him to “behave well” or else. The Tribunal asked what he thought that meant. He said he did not know. He said it happened after 2011, but he could not remember when. He thought that it may have been from the loan sharks. When the Tribunal pointed out that he already knew the identity of the loan sharks, he said he was not sure.
The Tribunal asked the applicant if he went to Johor as claimed in his application. He said that he had a friend there and he stayed there for 2-3 days. He said it was “after 2011”. He was asked why he returned home and he said that he could not find a job. His ID was recorded everywhere and that was why he could not get a job.
The applicant confirmed that he only returned home, because he could not find a job in Johor. He was then asked why then he wrote in his application that he went to Johor “but in week my family receiving call from known and also treaten to kill”. He had difficulty understanding the question. Finally, he said whatever he wrote on the application form was true.
The Tribunal raised the applicant’s overall credibility with him. He said that he was telling the truth.
The Tribunal finds that the applicant is not a credible witness, because aspects of his evidence were vague, internally inconsistent or implausible. Particular in relation to his claims to have gone into hiding for 2 years, his evidence was evolving as he became aware of various gaps and contradictions:
(1)In the Tribunal’s view, he knew very little about Bersih’s aims. The Tribunal places more weight on the country information that Bersih aims to reform the electoral process and root out corruption than the applicant’s claims that it aims to promote the rights of Tamil people.
(2)At the start of the hearing he told the Tribunal that before coming to Australia he worked loading and unloading trucks for about 3 months. He said that was the only job he had, it was casual and it was in his home town. Prior to that he had been unemployed for some 2-3 years. Later on, he changed his evidence. He said he had been unemployed from 2010 to November 2012. After that he was both hiding in an area some 40-50 kilometres from his home town and working in the fishing industry there. In the last 3 months he continued to hide in that same area while simultaneously he had two jobs: he continued to work in fishing as well as loading and unloading trucks.
(3)At the hearing he claimed to have gone into hiding in [Location 2/Village 3], some 40-50 km from his home town, where he stayed for about 2 years. According to the visa application form he tried to relocate to Johor, some [number] km from his home town. When asked at the hearing why he had not mentioned [Location 2/Village 3] in the application form he said he did not know why. When asked what he did in Johori, he said that he went there for work, but only stayed 2-3 days.
(4)At the hearing the applicant said he returned home from Johor, because he could not find a job in Johor, not for any other reason. He was then asked why he wrote in the visa application form that he went to Johor “but in week my family receiving call from known and also treaten to kill”. He had difficulty understanding the question. From his demeanour it appeared to the Tribunal that he could not remember writing this on the application form. He was asked what this meant. He said his family had been threatened. He was asked two more times how the threats related to his decision to return from Johor to his home area. He did not answer the question. Finally, he said whatever he wrote on the application form was true.
(5)In answer to the question on the application form whether he had suffered any harm in the past, the applicant did not say that he had been assaulted in the past, had his wrist broken and been forced to go into hiding for 2 years.
(6)When he was asked about the claim in his application form that an “unknown” (person) had made a call, he said that was true. He had received a call from someone who told him to “behave well” or else. The Tribunal asked what the caller meant when they said he ought to “behave well”. He said he did not know. When asked about the time of the call, he said it happened “after 2011”, but he could not remember when. When asked who may have called, he replied it might have been the loan shark. When the Tribunal pointed out that he already knew the identity of the loan sharks and they were making open threats against him, he said he was not sure.
(7)The applicant claimed that he became guarantor on a friend’s loan from a loan shark, because he had no idea what he was signing. The Tribunal finds it implausible that the applicant would have signed a loan guarantee without noticing what he was about to do. He said the amount of the loan was 50,000 Ringgit which was the equivalent of his income over a period of 50 months.
The Tribunal finds that the applicant has never had any association with Bersih, has never participated in any Bersih rallies, nor had anything to do with Bersih. The country information suggests that some Tamils do suffer low level discrimination in Malaysia. However, it does not follow that the applicant has ever had any interest in politics or fighting for the rights of Tamils. The Tribunal considers that he has fabricated the Bersih claim. The Tribunal does not accept that the applicant faced difficulties finding work because of his actual or imputed association with Bersih. The Tribunal finds that the applicant has never had any problems and will not face any difficulties on return to Malaysia for any reason related to Bersih.
The Tribunal further finds that the applicant has fabricated the claim in relation to an unpaid loan and loan sharks. The Tribunal finds that neither the applicant, nor his friend borrowed money from a loan shark. The Tribunal does not accept that the applicant or any member of his family received threats from unknown or known persons. The Tribunal finds that the applicant has never been asked to repay money to loan sharks. The Tribunal is not satisfied that the applicant had his wrist broken by a loan shark or someone associated with a loan shark, nor that the applicant had to go into hiding or travel to any other part of Malaysia to seek to escape harm.
The Tribunal has rejected the applicant’s claims in their entirety.
Having assessed the applicant’s claims individually and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Act. 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).
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).
Having assessed the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that it 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 will suffer significant harm of any kind as defined in the Act. Therefore, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Filip Gelev
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 ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2015] AATA 3682

20 November 2015

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