1514726 (Refugee)

1514726 (Refugee) [2016] AATA 4276 (19 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514726
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Tony Caravella
DATE:19 August 2016
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 August 2016 at 4:32pm

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] October 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] July 2015. The delegate refused to grant the visa on the basis of finding the applicant’s claims are not credible and that the applicant does not face a well founded fear of persecution. The delegate also was not satisfied the applicant meets the criteria for the grant of a Protection visa pursuant to the complementary protection provisions in s.36(2)(aa) of the Act, or that she meets any other criteria for a protection under s.36 of the Act.
Background and Protection claims
In a written statement submitted to the Department together with her written application for a protection visa, the applicant claims that she is a Malaysian. The following claims are extracted from that written statement.
She claims her family and she are persecuted by the government because they protested against [a government] Department about the relocation of a Chinese [landmark]. She claims that recently the government started the work of relocating the [landmark] and arrested “the member of my family”.
She claims in early February 2012, part of the Chinese [landmark] in [location] was acquired by the [government department] to make way for [Construction 1]. She claims the affected area was about [number] [acres]. She claims [objects of personal significance] were there and faced relocation.
The applicant describes how they heard the government would bear the costs of [relocation] and also refers to how the [objects of significance would be placed] in [Location 1]. The statement goes on to say that, those who did not accept the offer would be given [a certain amount] as compensation.
The applicant describes how she and her family and affected residents went to [Location 1] to protest. She also refers to writing an open letter which was handed to the local government in protest. Her statement includes an extract from that letter which indicates the applicant and her family found the [department]’s handling of the relocation unprofessional and unsatisfactory. The letter discusses other options, including increased monetary compensation.
The applicant claims that [in] March 2012, her father was ambushed and taken away by police and was tortured. It is claimed that the government officials had shares in the contract and the company and the contractor bribed the police to arrest opponents.
The applicant claims she avoided being arrested because she was working out. She claims police came to her house several times to catch her. She claims she had to take shelter in a friend’s home and claims she did so until [June] 2012 when she came to Australia.
The applicant’s statement describes the mistreatment of her father and that he was permitted only restricted visits by the applicant’s mother. She claims [in] November 2012, her father died in prison. She claims police said her father died “of diseases”.
The applicant’s statement goes on to say that recently the government started the relocation again. She writes that [in] June 2015, her mother was arrested by police and transferred to a special district for seniors and ill patients at a detention centre. The statement goes on to say that the head of the district said the applicant’s mother could only be released if the applicant returned. She writes in her statement that [in] June 2015, her relatives were permitted to visit her mother in the detention centre. She writes that her mother was in a wheelchair and appeared very weak and that she told her visitors that if she died it would have been caused by persecution.
The applicant’s concluding paragraph states that the contractor tried to warn others through the persecution of her family. She claims that they achieved their goal, and now nobody dares to oppose the project.
The delegate’s decision
[In] October 2015, the delegate rejected the applicant’s application for a protection visa.
The Tribunal notes from the delegate’s decision record, that the applicant was offered the opportunity to attend an interview to further present her claims and to provide information to support them, however, she did not do so. The delegate found this raises questions as to the genuineness of the applicant’s claims that she would face harm if she returned to Malaysia. The delegate expresses the view that it would be reasonable to expect that a person who genuinely feared being harmed upon returning to their country would take the opportunity to attend an interview to present their claims, or to submit as much documentary evidence as possible to support their claims.
The delegate also notes a significant delay of three years in seeking protection. The delegate concluded that this raises doubts as to the genuineness of the applicant’s claim to fear serious harm or death at the time she left Malaysia in order to escape from the authorities.
Application for review
[In] October 2015, the applicant applied to this Tribunal for a review of the delegate’s decision to refuse the grant of a protection visa. A copy of the delegate’s decision record accompanied the applicant’s application for review.
The applicant appeared before the Tribunal on 11 August 2016. The Tribunal was assisted in the hearing by an interpreter in the English and Mandarin languages. The applicant gave sworn oral evidence.
The applicant began her oral evidence by confirming she was born in [year] and that she first arrived in Australia in June 2012.
She told the Tribunal she has been working [at a workplace] since she arrived in Australia. She said she commenced working [at the workplace] some three months after arrival. The [workplace] is in [location]. The Tribunal put it to the applicant that it appeared she entered Australia as the holder of a [temporary] visa and as such, she was not permitted to work. The applicant confirmed she had worked contrary to the no work visa condition. She added that she now has work rights and a tax file number.
The Tribunal referred to the delegate’s decision record which indicates she was an unlawful noncitizen for almost 3 years. It invited her to comment on this. She said this occurred because she did not want to go back to Malaysia. When asked why she does not want to return, she said something happened in Malaysia before she left. When asked to explain, she said she was involved in politics, as was her father. She said they tried to catch her and her father was tortured to death. When asked what politics she has been involved in, she said it was to do with the shifting of [landmarks]. When asked why anyone would want to harm her now for this, she replied that shifting the [landmark] is illegal and that’s why she objected.
When asked why the authorities wanted to shift the [landmarks], she said it was because they wanted to build a [construction]. She said a developer wanted to build a [construction]. She repeated that the intention was to build a [construction]. The Tribunal asked the applicant why in her application she referred to the building of a [different construction], that is [Construction 1]. She replied it is the same thing. The Tribunal asked the applicant why anyone would want to harm her because of her objection to [the constructions], for that matter. She said the [landmark] protects their feng shui. The Tribunal referred to her claim that she was paid compensation and asked her for detail about this. She responded by saying the compensation was minimal and she did not accept it.
The applicant told the Tribunal that the [landmarks] are located in [a] City, and the area is also known as [name]. The Tribunal asked the applicant whether the authorities have now in fact actually shifted the [landmarks]. She said that because her father was tortured, they had no choice and they had to back out of the protest. She told the Tribunal that the relocation of the [landmarks] has gone ahead. She said they were paid [compensation].
When asked who would harm her if she returned to Malaysia, the applicant said she fears people from the government or the businessman/developer will harm her. She said she does not want her family dragged into it. The Tribunal asked the applicant why they would bother or harm her now that the authorities, or the developer, had achieved what they were seeking, that is relocation of the [landmark] to permit the development. The applicant replied that her father died in prison, and that her mother was abused as well. She said that she managed to escape from them, and added that they had to let her mother go because they could not catch the applicant. She went on to say that her mother accepted the minimal compensation and she was released thereafter.
The Tribunal asked the applicant whether anything of relevance to her claim has happened in her area since she left Malaysia in June 2012. She replied that the authorities and developers got what they wanted. She added that she has been away so long that she does not know what is going on there now.
When asked whether she speaks with her mother, the applicant said she does not keep in contact with her mother very often, but she knows her mother is well and not under any risk.
The Tribunal asked the applicant if she was aware of anyone enquiring about her or enquiring about her whereabouts in her home town. She replied by saying that every now and then she calls her mother to see how she is. When the Tribunal asked whether her mother has told her about anyone enquiring about the applicant, the applicant responded that her mother told her not to go back.
The Tribunal asked the applicant what she would do if she was to return to Malaysia. She said she does not want to go back and hopes that Australia can give her a visa to remain here permanently.
The Tribunal asked the applicant whether she is married or partnered. She said she divorced in 2012 before she came to Australia. She said she has children in Malaysia and they live with their father. She said that being with their father is better for the children. She said [her children’s ages]. When asked if she fears harm might be directed to her children, the applicant said she does not fear this. She said she rarely has contact with them because she is out working.
The Tribunal put it to the applicant that it was having some trouble understanding why anyone would be motivated to harm her in the circumstances. She said she would be targeted for harm because she opposed the relocation of the [landmark]. The Tribunal repeated that it understood that she may have upset the authorities, or the developer, or both, when she opposed the development, but that the development had gone ahead. The applicant then said that she had no choice now but to now give up.
The Tribunal referred to the fact that the applicant delayed for some three years before applying for protection. It explained that such a delay may indicate she does not have a genuine or grave fear for her safety in Malaysia. It invited her to comment. She replied by saying she did not know there was such a thing as protection visas.
The Tribunal asked the applicant whether she was mainly afraid of the developers or of someone else. She said the developers kept bothering family members, and it was a real nuisance. When asked why if this was the case, she did not report it to the police. She said the police are corrupt and bribed.
The Tribunal asked the applicant whether she could relocate to some other location in Malaysia. She said she is not rich. The Tribunal put it to the applicant that there are a number of large cities in Malaysia and that not everyone who lives there is rich and it might not accept that she needs to be rich to relocate. She responded that the expenses are higher in larger cities and she cannot therefore relocate.
The Tribunal asked the applicant whether there was any other reason she feared serious harm in Malaysia or any other reason why she does not want to return there. She said that she has been in Australia a long time now and she is used to living here. She said she hopes to get a permanent visa. She said she does not want her family members to be harmed. The Tribunal asked her why her family members would be harmed, to which she replied she fears going back.
The Tribunal asked the applicant if she was involved in any other political or other activity in Malaysia that would attract harm. She replied that she had not been involved in any other political activities.
The Tribunal referred the applicant to the Department of Foreign Affairs and Trade country information in its report published on 19 July 2016 where, at paragraph 3.65, it states that 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. High-profile organisers of political rallies face a moderate risk of official discrimination and could be charged under the Peaceful Assembly Act or the Criminal Code. It explained, that if it accepted this information, and if it determined that she was not a high profile organiser then this may be the reason or part of the reason why it might conclude that the applicant does not face a real chance of serious harm for reasons of her protesting against the relocation of the [landmarks] in Malaysia.
The Tribunal asked the applicant what work she had performed in Malaysia before coming to Australia. She said she had worked doing [certain] work. She said she is a high school graduate. She told the Tribunal that in Australia she works [at a] factory in [suburb].
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria for a Protection visa in s.36 of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference and third country protection
The Tribunal observes at folio 44 of the Department’s file, a photocopy of the biodata page from a Malaysian passport issued [in] 2012 in the applicant’s name. This confirms the applicant was born in Perak and that her nationality is Malaysian.
There is no evidence before the Tribunal to suggest the applicant has a right to enter or reside, whether temporarily or permanently, any country other than Malaysia. She is therefore not precluded from Australia’s protection by the operation of s.36(3) of the Act.
Having regard to the findings in the preceding two paragraphs, the Tribunal finds Malaysia is the country of reference for the purposes of assessing the applicant’s refugee protection claims, and also finds Malaysia is the ‘receiving country’ for the purpose of assessing her complementary protection claims.
Credibility issues
The mere fact that a person claims fear of persecution or harm for a particular reason does not establish either the genuineness of the asserted fear or that it has a real chance or real risk or arising, or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).
The Tribunal carefully considered the applicant’s claims. Ultimately, and for all the reasons in this decision record, it does not accept the applicant meets the relevant criteria for a Protection visa, however, the Tribunal does not reject all of the applicant’s claims as lacking credibility. It found parts of her sworn oral evidence in relation to the dispute over the relocation of [landmarks] in her area appeared plausible and truthful. However, and for all the reasons in this decision record, the Tribunal does not accept the applicant’s claim that she will be seriously harmed as she claims because it concluded she has exaggerated the risk of harm which she faces in Malaysia. Her claims therefore lack credibility in that respect.
Assessment of refugee claims

In assessing the applicant’s claims and evidence, the Tribunal had regard to relevant law and to the various relevant legal principles, including those set out in the following paragraphs.
A fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted.[1] In Chan v MIEA Mason CJ observed that various expressions have been used in other jurisdictions to describe ‘well-founded fear’ – ‘a reasonable degree of likelihood’, ‘a real and substantial risk’, ‘a reasonable possibility’ and ‘a real chance’. His Honour saw no significant difference in these expressions, but preferred the expression ‘a real chance’ because it conveyed the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it was an expression that had been explained and applied in Australia.[2]
[1] Chan v MIEA (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9.
[2] Chan v MIEA (1989) 169 CLR 379 at 389.
A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. According to Mason CJ in Chan v MIEA, the expression ‘a real chance’:
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.[3]
[3] (1989) 169 CLR 379 at 389.
In the same case Dawson J stated:
... a fear can be well-founded without any certainty, or even probability, that it will be realized. ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.[4]
[4] Chan v MIEA (1989) 169 CLR 379 at 397-398.
The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[5]
[5] Chan v MIEA (1989) 169 CLR 379 at 397.
A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[6]
[6] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
The Tribunal considered the applicant’s claim where she says she fears she would be persecuted by the government because she protested against [a government] Department about the relocation of a Chinese [landmark]. Having regard to all of the evidence, the Tribunal accepts her claim that sometime in early 2012, part of the Chinese [landmark] in [location] was acquired by the [government department] to make way for [Construction 1]. The Tribunal accepts that part of the work may have also involved the construction of a [construction] as indicated by the applicant at the hearing. It also accepts that [objects of personal significance] were situated there and [faced] relocation.
The Tribunal accepts it as plausible and credible that the applicant, and others, were not happy at the prospect of the relocation of the [landmarks]. It accepts that their dissatisfaction with the proposed relocation extended to dissatisfaction over the relocation [to] [Location 1], and dissatisfaction over the [compensation]. It also accepts the applicant, and others opposed to the proposed relocation were also concerned about the loss for feng shui, and on other grounds.
The Tribunal accepts that based on her consistent statements presented to the Department and to the Tribunal, she and her family and other affected residents went to [Location 1] to protest. It is also prepared to accept that part of the protest included the applicant presenting a letter to the relevant Malaysian authority and the letter criticised its handling of the relocation as unprofessional and unsatisfactory. It accepts the protest and letter also argued other options, including increased monetary compensation.
The applicant has also claimed that [in] March 2012, her father was ambushed and taken away by police and was tortured. Although the applicant has not submitted any independent evidence to support this, other than her written and oral statements, the Tribunal is prepared to accept that the applicant’s father, and her mother, were detained due to their protesting in opposition to the relocation of the [landmarks]. The Tribunal is also prepared to accept the applicant’s father passed away [in] November 2012. However, having regard to all the evidence before it including the country information indicating credible local and international sources consider the Malaysian police to be a professional and effective police force, the Tribunal does not accept that the applicant’s father died due to police mistreatment in prison.
Based on the evidence of the applicant, the Tribunal accepts that she was not arrested for her part in the protests. Based on the evidence before it, the Tribunal does not accept that the applicant was to be arrested for her activities in protesting against the [landmark] relocation. It considers that if a warrant had been issued for her arrest, given the efficiency of the Malaysian police generally, she would have been found and arrested in the four months or so between the protest and her departure for Australia. It does not accept that she avoided arrest because she was working out, or that police came to her house several times to catch her. Nor does the Tribunal accept that the applicant had to take shelter in a friend’s home until [June] 2012 when she came to Australia. It does not accept these claims because it does not accept the applicant was wanted by the police, or by the authorities, or by businessmen or developers, or by anyone else, for protesting against the [landmark] relocation, or for any other reason.
The Tribunal accepts that based on the applicant’s written and sworn oral evidence, the relevant Malaysian authorities have proceeded with the [landmark] relocation. It does not however, accept that the applicant’s mother was detained in circumstances where she would be released only if the applicant returned as the applicant claimed in her written application. That this is incorrect is evidenced by the applicant’s own oral evidence before the Tribunal where she declared that her mother has since been released.
The Tribunal considered the significant delay of approximately three years between the applicant’s arrival in Australia and her seeking protection. As discussed with the applicant at the hearing, the Tribunal is concerned that this delay is suggestive of the applicant not holding genuine fear for her safety if she were to return to Malaysia. She sought to explain her delay by saying that she did not know there were Protection visas available. The Tribunal found the applicant to be an articulate and reasonably educated person with the capacity to have made inquiries to determine visas that might meet her circumstances. It does not accept the delay of 3 years is due to her lack of knowledge of the existence of Protection visas. Having considered all the circumstances, the Tribunal finds the delay in the applicant applying for protection undermines the applicant’s claim that she feared, or now fears, serious harm now or in the reasonable foreseeable future in Malaysia.
The Tribunal also noted that by the applicant’s own evidence, she has been working in Australia since some three months after her arrival here. It notes that by her own admission, the applicant worked contrary to the no work visa condition. Further, she remained as an unlawful non-citizen for almost three years. The Tribunal considered whether these circumstances arose because of a genuine fear of returning to Malaysia on the part of the applicant. At the hearing, the applicant said she remained as an unlawful non-citizen because she did not want to go back to Malaysia. She then spoke of not wanting to return for reasons of the [landmark] relocation dispute. Having regard to all of the evidence in this case, the Tribunal does not accept that the applicant remained as an unlawful non-citizen for reasons of fear of returning to Malaysia. Rather, the Tribunal formed the view based on all the evidence before it that the applicant simply elected to overstay to continue working in Australia.
The Tribunal considered the applicant’s claim as to who would harm her if she returned to Malaysia. In this respect, the applicant said she fears people from the government or the businessmen or developers will harm her. The Tribunal does not accept that the Malaysian government or the developers would have a motive to seriously harm the applicant now or in the reasonably foreseeable future in Malaysia in light of the fact that the relocation of the [landmarks] has now proceeded, and compensation has been accepted by the applicant’s mother. When this question, that is, why the government or the developer would want to harm her now, the applicant did not respond in a way in which the Tribunal found plausible or credible. She replied along the lines that her father died in prison, and that her mother was abused as well.
A further reason why the Tribunal does not accept that the applicant faces a real chance of any harm for reasons of her protests against the [landmark] relocation is her evidence in respect of developments in Malaysia since her departure. In this respect, at the hearing, the Tribunal asked the applicant whether anything of relevance to her claim has happened since she left Malaysia in June 2012. She replied that the authorities and developers got what they wanted. She added that she has been away so long that she does not know what is going on there now. Her evidence also indicates to the Tribunal that there have not been any adverse inquiries being made as to the applicant’s whereabouts or as to her possible return. The Tribunal finds this is consistent with its assessment that the applicant is not a person of adverse interest to anyone in Malaysia. The Tribunal accepts her evidence that she may not keep in contact with her mother very often, however, she also declared that she does stay in contact to determine if her mother is well and not under any risk. In these circumstances, the Tribunal considers that if there was anyone inquiring as to her whereabouts and when she might be returning to Malaysia, then the applicant’s mother would have communicated that information to the applicant. However, the applicant did not give evidence that this has occurred. All she said when this was put to her was that her mother told her not to go back. On the evidence before the Tribunal, it does not accept that advice from her mother was given because of the applicant facing a real chance of serious harm if she was to return to Malaysia
The Tribunal finds the applicant’s evidence in respect of her political activities is that her activities are confined to this particular isolated incident involving the relocation of the [landmarks]. Based on this evidence, the Tribunal finds the applicant has no significant profile as a political activist, opponent or dissident such that she would be targeted for adverse attention or serious harm in Malaysia. Further, the applicant’s evidence is that she has no choice but to now give up on the protests. The Tribunal accepts that with the proposed relocation having now taken place, the applicant has accepted this has occurred. Based on her evidence, the Tribunal finds the applicant does not intend to maintain any protest or political activity in respect of the [landmark] relocation, or in respect of any other matter, which will give rise to a real chance of serious harm to her now or in the reasonably foreseeable future in Malaysia.
The Tribunal considered the applicant’s evidence where she claimed at the hearing that the developers kept bothering family members, and that it was a real nuisance. The Tribunal accepts that the dispute over the relocation of the [landmarks] appears to have been a stressful and unpleasant experience and one that was not resolved in the applicant’s, or to her family’s, satisfaction or favour. It accepts the applicant considers the compensation was inadequate, however, her mother subsequently accepted the amount paid. It accepts that in those circumstances the applicant and her family may have perceived the developers and the relevant authorities as being a nuisance, or even worse. However, that is a different thing to those parties being motivated to, or in fact, targeting the applicant for serious harm of the kind contemplated in s.91R of the Act. Having regard to all of the evidence before it, the Tribunal accepts the applicant’s claim that the developers may have been a form of nuisance in the past through the relocation and redevelopment of the [landmarks]. However, it does not accept that the developers, the Malaysian authorities, the police, businessmen, developers, or anyone else, would target the applicant for serious harm now or in the reasonable foreseeable future in Malaysia for reasons of the dispute over the [landmark] relocation, or for any other reason.
As the Tribunal finds the applicant does not face a real chance of serious harm, it is not necessary for it to consider whether it is possible for the applicant to avail herself of State protection in Malaysia. Nor is it necessary for it to make findings on whether the applicant could reasonably relocate to a part of Malaysia where there is not an appreciable risk of the harm she claims she faces in her place of usual residence in [city], Malaysia.
The Tribunal also considered the applicant’s claim that she fears returning to Malaysia because she has been in Australia a long time now and she is used to living here. The Tribunal notes the applicant’s evidence where she indicated that she had previously worked in Malaysia in [certain]. It also notes the DFAT country information[7] indicates that many thousands of Malaysians enter and leave the country every day. DFAT country information also states that people who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return on account of their absence. Malaysians who over-stayed their work or tourist visas, or breached visa conditions in other countries are regularly returned to Malaysia with no attention paid to them by authorities. Likewise, failed asylum seekers would be unlikely to face adverse attention as the Malaysian government would not typically know the individual was a failed asylum seeker, although it is possible that some individuals might be questioned upon entry or have their entry delayed particularly if their passport has expired while abroad. The International Organization for Migration (IOM) assists voluntary returnees and Malaysian authorities cooperate with the IOM in these arrangements. Based on all this, and having regard to the circumstances of this case, the Tribunal does not accept the applicant faces a real chance of serious harm for reasons of the period of time she has spent in Australia, or for reasons of the period of time she has been absent from Malaysia.
[7] DFAT Country Information Report – Malaysia – 19 July 2016, paragraph 5.20
The applicant also claimed that she fears returning to Malaysia because she does not want her family members to be harmed. When asked why her family members would be harmed, the applicant said she fears going back. Having regard to all the evidence, including the evidence that the [landmarks] have been relocated, the Tribunal does not accept that the applicant’s family face a real chance of serious harm now or in the reasonably foreseeable future for reasons of the applicant returning to Malaysia, or for any other reason in relation to the applicant.
For all of the above reasons, the Tribunal finds the applicant does not have a well-founded fear of persecution in accordance with s.5J(1) of the Act.
Assessment of complementary protection claims
The Tribunal has also considered whether there is a real risk that the applicant will suffer significant harm, including arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal has found above that it does not accept, on the evidence before it, that the individuals or groups of persons nominated by the applicant have any intention to cause her any harm. Based on those findings, the Tribunal also finds there is not a real risk that the individuals or groups, including the police, the government authorities, businessmen or developers, or anyone else, will cause significant harm to the applicant if she is removed to Malaysia. The Tribunal is therefore not satisfied on the evidence before it that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that she will suffer significant harm, including arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
Conclusions
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). The Tribunal is not satisfied that the applicant is 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.
Tony Caravella
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
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(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.
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[2016] AATA 4276

19 August 2016

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