1516532 (Refugee)
[2016] AATA 4047
•1 July 2016
1516532 (Refugee) [2016] AATA 4047 (1 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1516532
COUNTRY OF REFERENCE: Malaysia
MEMBER:Stuart Webb
DATE:1 July 2016
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 01 July 2016 at 8:11am
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 on 17 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. The applicant provided the delegate’s decision to the Tribunal.
On 26 May 2016 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 30 June 2016. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received. The Tribunal sent SMS reminders of the hearing to the applicant’s provided mobile number on 23 June 2016 and 29 June 2016. No response to the hearing invitation was received and no request for an adjournment was provided to the Tribunal. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
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 applicant made the following claims with his application. He left Malaysia because he is a strong supporter of the Bersih group. The government hates those who oppose in protest about the unfair election system, and prisons anyone who opposes government policy. The authorities in Malaysia will find out where opponents and protesters are so he will be imprisoned. Wherever Bersih protesters have fled in Malaysia they have been detected.
The applicant provided one residential address in Malaysia. The applicant stated that he had been employed as [occupation] at [a workplace] from 2007 to 2015.
The applicant did not attend an interview with the Department. The delegate considered country information about Bersih in general opposition to the government. The delegate noted country information that demonstrated that protesters face a low risk of arrest when engaged in political rallies. The delegate noted the applicant provided no detail regarding his involvement with Bersih for any reason why he would be imprisoned. The delegate did not consider the applicant’s claims to be made out.
Findings and reasons
Country of nationality
The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
The Tribunal invited the applicant to a hearing as his claims were vague and limited. He had not taken up the opportunity to discuss his claims with the Department, to provide further information about his claims. He did not attend the Tribunal to discuss these claims. The applicant has not explained why he was a supporter of Bersih or whether he had been involved in any of the Bersih rallies that have taken place in Malaysia. The written information about the Bersih movement as included in the application does not provide any information about the applicant being involved in any activities, just that he is a supporter of Bersih and has an anti-government opinion.
Had the applicant attended the hearing, the Tribunal would have discussed the Bersih protests and the anti-Government sentiment that has occurred. The Tribunal would have noted that there were some people arrested at the second and third rallies but they were released afterwards, as detailed in the delegate’s decision. The Tribunal would have asked the applicant about the contradiction with his claim that the Malaysian Government imprisons anyone who opposes government policy. The Tribunal would have discussed country information that the Bersih 4.0 rally that took place in August 2015 had no arrests and was permitted to occur. The Tribunal would have discussed with the applicant the DFAT country information that
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.[1]
[1] DFAT Country Report Malaysia, December 2014
The Tribunal notes that the applicant has made no claim that he was a leader or an organiser of Bersih. The Tribunal would have noted with the applicant that DFAT considers there to be a low risk of arrest when engaged in political rallies. The applicant has not explained why the authorities would seek to imprison him when the country information suggests otherwise, despite his claims in this regard. The Tribunal would have noted the country information in the delegate’s decision that a small number of the leaders of the protest movement had received sentences, while the thousands of other supporters of Bersih with anti-Government opinions have not faced sanction.
Had the applicant attended the hearing the Tribunal would have identified that the applicant maintained the same residential address from [year] to 2014 and the same employment at a [workplace] as [occupation] from 2007 to 2015. The Tribunal would have asked the applicant why the authorities could not find him if they were interested in the applicant, given his stable home and work life.
Had the applicant attended the hearing the Tribunal would have asked why the authorities would have issued him with a passport [in] 2015 if they were interested in imprisoning him for his political opinion. The Tribunal would have questioned why the authorities would show no interest in arresting the applicant in these circumstances, and why the applicant was willing to go before the authorities for such a document to be issued in his name. The Tribunal would have raised its concern that this demonstrated that the authorities were not interested in the applicant.
The Tribunal would have asked the applicant why he remained in Malaysia after the Bersih 3.0 rally of April 2012 until his departure in May 2015, three years later, if he feared being harmed. He instead remained at his own home and work as he had done for many years. The Tribunal would have questioned this significant delay in leaving the country and apparent lack of fear of harm despite his stated anti-government opinions.
Had the applicant attended, the Tribunal would have questioned the applicant about his future activities in Malaysia, including continuing to not support the Government. The Tribunal would have noted the country information that the Malaysian authorities permitted the Bersih 4.0 protest to go ahead, demonstrating that they permitted protests against them and their authority and policies.
The applicant is not an organiser or a leader of any protest group, Bersih or another group. He has not detailed his involvement in any protests, let alone claimed to have led them. The applicant maintained his home and work throughout this period of time. He has not claimed to have ever been approached by the authorities in Malaysia. He approached the authorities and had his passport issued in [2015]. He remained at home and at work until April 2015 when he came to Australia. He has made no claim of any issues leaving Malaysia.
The Tribunal does not accept that the applicant is a person of interest to the authorities because of his support for Bersih and anti-government opinions. The authorities have shown no interest in him, and the applicant has engaged with the authorities without any detrimental treatment. If the applicant was wanted by the authorities, they could have found him. They did not. The Tribunal considers that the evidence of the applicant with regard to the lack of interest in the applicant accords with the country information as cited with respect to the authorities attitude towards protesters. The Tribunal considers that the applicant’s fear of harm because of his support for Bersih and anti-government opinions are not supported by his own claims, information in the application and the country information.
The Tribunal finds that the applicant does not have a real chance of serious harm arising from his because of his support for Bersih and anti-government opinions, expressing his political opinion, on return to Malaysia and in the foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.
The Tribunal has considered the prospect of the applicant returning to Malaysia and becoming involved in expressing his political opinion in the future. The Tribunal notes that the applicant has not claimed to have involved himself in any rally or protest, but that he supported Bersih. He was in Australia when the Bersih 4.0 rally occurred in August 2015.
The Tribunal considers that the applicant can express his political opinion opposing the present government, supporting Bersih, and seeking free and fair elections. The Tribunal notes that in August 2015 the Bersih 4.0 was permitted to proceed and occurred in a peaceful and non-violent manner, with no arrests. The Tribunal considers that this, alongside the DFAT advice, demonstrates that the authorities have no issue with alternative political views being presented, and low level activists, such as the applicant, do not face harm for having or pursuing their political opinions. The Tribunal considers that the country information demonstrates that the applicant will be able to express his political opinion freely on return to Malaysia and in the reasonably foreseeable future.
The Tribunal finds that the applicant does not have a real chance of serious harm arising out of his political opinion on return to Malaysia and in the foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.
Further, having considered the applicant’s claims, information in the application and the country information cited above, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm on return to Malaysia.
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.
Stuart Webb
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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Standing
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