1515843 (Refugee)
[2016] AATA 4061
•7 July 2016
1515843 (Refugee) [2016] AATA 4061 (7 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1515843
COUNTRY OF REFERENCE: Malaysia
MEMBER:David Corrigan
DATE:7 July 2016
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 07 July 2016 at 4:33pm
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] November 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.
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.
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
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 applicant’s claims can be summarised as follows. He was born in [year] in Tawau, Sabah, Malaysia. In his application for a protection visa, he claimed his life was in danger several times when pirates came to his house near the coast of Sabah and took everything including the engine from his boat. He tried to move several times but all the coastal areas of Sabah are not suitable for living. The authorities come from the peninsular of Malaysia and do not care about the security of Tawau.
Country of reference
The applicant claims to be a Malaysian national. Based on the copy of his passport, I find that Malaysia is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Assessment of claims
I accept that the applicant was born in Tawau and that he has lived there as well as in Kuala Lumpur and [Country 1] as he stated at the hearing. I accept that his family currently live in Tawau (as he stated at the hearing). I accept that the applicant first worked as a fisherman but when he went he went to Kuala Lumpur he [did Occupation 1] and that he did this work also in Tawau and [Country 1] (as he stated at the hearing).
At the hearing, I explored with the applicant his claims of being targeted by pirates. I questioned him about when he first had problems with pirates and I accept that about a decade ago that his father’s boat was attacked by pirates who took the boat and engine and that his father had to swim to shore (as he claimed at the hearing). I accept (as he claimed at the hearing) that about a decade ago friends of the Moro (Philippino Muslims[1]) in the village of Lahad Datu on the coast on Sabah where he was living at the time demanded [various possessions] but he kept quiet and they took rice. I accept that he had an incident with these people and he hit them. I accept that after this incident his wife left for Tawau after that and he later did (as he stated at the hearing). I asked the applicant if anything else had happened to him after this incident and he said nothing happened to him in Tawau. I consider the applicant’s claims in these respects to be generally credible, not exaggerated and in accord with country information concerning the past activities of pirates on the east coast of Sabah.[2]
[1] R.C. Pangalangan, Religion and the Secular State: National Report for the Philippines,
[2] See for example, Borneo Post Online, No more fear of pirates in east coast of Sabah, thanks to security agencies, 10 September 2012,
The applicant told the Tribunal that Lahad Datu was about three hours away from Tawau and that nothing happened to him in Tawau afterwards. When I put to him that I doubted that he would be of any adverse interest to any of these people given these incidents occurred 10 years ago and nothing had happened since, he commented that people in the village still recognised him and those people were still free to move around
The Australian Department of Foreign Affairs and Trade (DFAT) have stated:
The coastal areas of eastern Sabah are subject to a continuing high threat of kidnapping by extremists based in the southern Philippines. Australians should avoid all travel to the coastal resorts of eastern Sabah, including islands, dive sites and associated tourist facilities.
The risk increases on the water and waterfront after nightfall.
The kidnapping threat is highest in the area between the towns of Sandakan and Tawau owing to its proximity to the Sulu archipelago in the southern Philippines.
On 14 May 2015, gunmen reportedly linked to the Abu Sayyaf group entered a local seaside restaurant in Sandakan and abducted the manager and one customer (who was subsequently killed by his captors). In July 2014, gunmen attacked the Mabul Water Bungalows Resort on Mabul Island in eastern Sabah, killing one member of the security forces and kidnapping another. In June 2014, a foreign worker and a local employee were kidnapped from a fish farm near the town of Kunak in Eastern Sabah. In May 2014, a foreign worker was kidnapped at gunpoint from a fish farm near the coastal town of Palau Baik, near Lahad Datu. In April 2014, a foreign tourist and a local employee were kidnapped from the Singamata Reef Resort in eastern Sabah. These incidents highlight the ongoing risk of violent crime, including kidnapping, in eastern Sabah by groups based in the southern Philippines.
In the past, the Abu Sayyaf Group, based in the southern Philippines, has kidnapped foreigners from the east coast of mainland Sabah, the islands (Sipadan and Mataking) and surrounding waters. Malaysian authorities have increased security in the region in response to these incidents.
Since April 2014, the Sabah Government enforced night-time restrictions on the use of waterways off Semporna. It has also ceased all resort organised activities such as diving and fishing, undertaken at night.
Authorities tightened restrictions even further by imposing a curfew on all travel by water from 7:00pm to 5:00am in six coastal districts of eastern Sabah state. The curfew is subject to fortnightly extension. The affected districts are Kinabatangan, Kunak, Lahad Datu, Sandakan, Semporna and Tawau, and include offshore areas up to three nautical miles (5.5 kilometers) from the coast. The authorities have warned those travelling by water during curfew hours without permission may face a fine or up to six months imprisonment.
Vessels travelling in the area in daylight hours require a permit or permission from police to enter controlled areas in the waters off Lahad Datu and Sandakan. Vessels sailing through these high risk areas are required to travel on designated routes.
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In February 2013, clashes between gunmen from the Sulu archipelago in the southern Philippines and Malaysian authorities resulted in a number of fatalities in the coastal region of eastern Sabah. The Malaysian Government established the Eastern Sabah Safety Zone (ESSZone), which provides an increased security presence. The ESSZone comprises the regions of Kudat, Kota Marudu, Pitas, Beluran, Sandakan, Kinabatangan, Lahad Datu, Kunak, Semporna and Tawau.[3]
[3] Australian Department of Foreign Affairs and Trade, Malaysia Latest Advice 21 February 2016,
The United States Department of State has commented:
U.S. citizens are advised against travel to coastal resorts and outlying islands in eastern Sabah from Kudat to Tawau, including the resort islands of Selingan, Lankayan, Mabul, Pom Pom, Kapalai, Ligitan, Sipadan, and Mataking. The government has designated the entire eastern portion of Sabah (extending from the town of Kudat in the north to Tawau district near the border of Indonesia) as the Eastern Sabah Security Zone and established the Eastern Sabah Security Command (ESSCOM) to coordinate security forces' activity there. There is a significant police/army presence in the area, and road checkpoints have increased. Malaysian law enforcement officials have enacted land and water-based curfews in the coastal areas of eastern Sabah.
The Royal Malaysia Police (RMP) is a national police force that is well trained and equipped. The RMP provides good law enforcement support to the U.S. Embassy and has responded favorably to the needs of the U.S. private sector and to U.S. citizens in general. However, the RMP is sometimes limited in its effectiveness in investigations.[4]
[4] United States Department of State, Malaysia 2016 Crime and Safety Report, 29 February 2016,
I have taken into account these reports that indicate that in eastern Sabah there are incidents of violent crime including kidnapping by Abu Sayyaf and other Philippino extremists. However, these reports have to be seen in the context that that the applicant is from the town of Tawau which has a substantial town population of 113,809 and a municipal area population of 397,673.[5] The applicant has not worked as a fisherman for many years instead in more recent years in Tawau, Kuala Lumpur and [Country 1] he worked as [an Occupation 1] and I note the above country information indicates that the risk is greater on the water and on the waterfront. Furthermore, the country information indicates that the Malaysian authorities have increased security in the region and that there is a significant police/army presence in the area which would reduce the risk of him being targeted and harmed.
[5] Department of Statistics Malaysia, "Total population by ethnic group, Local Authority area and state, Malaysia, 2010,
Whilst I have accepted that his father was attacked by pirates this was about a decade ago and was when his father was fishing on his boat. I have accepted that the applicant faced problems with Moro pirates and their friends in Lahad Datu. However, he said this location is three hours from Tawau and that these events occurred a decade ago. He also said he was not targeted by them or suffered any problems whilst living in Tawau. The applicant’s family are still living in Tawau and the applicant did not indicate that they had suffered any problems or harm. In these circumstances, I consider that the chance or risk that he will be seriously harmed or significantly harmed on account of any of these past incidents is remote.
Considering the applicant’s individual circumstances and the country information, I find there is not a real chance that in the reasonably foreseeable future he would be persecuted for any reason (including race, religion, nationality, membership of a particular social group or political opinion) at the hands of non-state actors (including pirates, Abu Sayyaf, Moro or their friends or anyone) or the state.
Considering the applicant’s individual circumstances and the country information as a whole, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm.
Relocation
Further, I consider that the applicant would not face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future at the hands of the above non-state actors mentioned above in western Sabah or peninsula Malaysia. As I put to the applicant at hearing, the above country information does not indicate that pirates or Abu Sayyaf or Moro are an active and substantial issue in the rest of Malaysia (including the west coast of Sabah and peninsular Malaysia) other than the eastern Sabah. The Tribunal has no evidence to that effect before it.[6] The applicant has not claimed that he experienced any problems or harm when he had previously lived in Kuala Lumpur. I also consider it remote given the passage of time and that nothing further had happened to him that he would face a real chance of persecution or a real risk of significant harm in these areas from the individuals or associates who he had an incident with in Lahad Datu a decade ago.
[6] For example, the Australian Department of Foreign Affairs and Trade, DFAT Country Report Malaysia, 3 December 2014 and the US State Department, Country Reports on Human Rights Practices for 2015 – Malaysia do not refer to this.
Considering the applicant’s individual circumstances and the country information, I find in Western Sabah and peninsula Malaysia that there is not a real chance in the reasonably foreseeable future that he would be persecuted for any reason (including race, religion, nationality, membership of a particular social group or political opinion) at the hands of non-state actors (including pirates, Abu Sayyaf, Moro or their friends or anyone) or the state.
Furthermore, I also consider it reasonable for the applicant to relocate outside his home area to western Sabah or peninsula Malaysia. Country information from the Australian Department of Foreign Affairs is that Malaysians can and do freely relocate internally.[7] I have taken into that the applicant has his family living in Tawau; however he has lived previously in Kuala Lumpur and has work experience as [an Occupation 1] which would assist him to obtain employment and support himself and his family. When I discussed these matters with the applicant, he said there were a lot of burglaries in Kuala Lumpur and a [neighbour] there was kidnapped for organ donation. He did not indicate that he had been burgled there or that his daughter was ever threatened with such conduct. There is no evidence before the Tribunal that kidnapping for organ donation is a significant problem in Malaysia or that burglaries are at such a level that it would make relocation unreasonable or that these matters mean that is an appreciable chance or risk of serious harm or significant harm.[8]
[7] Australian Department of Foreign Affairs and Trade, DFAT Country Report Malaysia, 3 December 2014.
[8] For example, the Australian Department of Foreign Affairs and Trade, DFAT Country Report Malaysia, 3 December 2014 and the US State Department, Country Reports on Human Rights Practices for 2015 – Malaysia do not refer to this.
Considering the independent country information and the applicant’s individual circumstances, I find that it would be reasonable for the applicant to relocate outside his home area to western Sabah or peninsula Malaysia where there would not be a real risk that he will suffer significant harm and that s.36(2B)(a) would also apply in his case.
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.
David Corrigan
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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