1603603 (Refugee)

[2016] AATA 4279

1603603 (Refugee) [2016] AATA 4279 (19 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603603

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Denis Dragovic

DATE:19 August 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 19 August 2016 at 1:42pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] February 2016. The delegate refused to grant the visa [in] March 2016. The applicant appealed the decision [in] march 2016.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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

8. 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

9. [The applicant] is a [age] year old Malaysian man who departed his country legally and arrived in Australia on a [temporary] visa [in] October 2015. A [particular occupation] in his home town of [Town 1] he joined the People’s Cooperative of Malaysia, a charity supporting the needs of the poor, in a voluntary capacity. Through his involvement with the Cooperative he claims to have attended the 2012 Bersih rally. He is claiming protection based upon his participation in the activities of Bersih, a protest movement established by Malaysian NGOs to push for political change, and knowledge of secrets which has made him a person of interest to the government. He fears arrest and being fined for these activities in addition to becoming an ex-offender which he believes limits his ability to live a normal life.

10. The delegate refused to grant the visa on the basis that political persecution in Malaysia is a concern for high-profile opposition leaders, while general opposition party members are able to undertake political activities without risk of discrimination or if arrested they are shortly thereafter bailed. The delegate was not presented with evidence to suggest that the applicant was a high profile opposition leader.

11. The delegate determined the applicants’ identity as Malaysian and without any information to the contrary I have assessed the applicants’ claims against Malaysia as his country of nationality and receiving country for Complementary Protection purposes.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

13. Country information suggests that a small number of high profile opposition leaders have faced official harassment through the application of various laws but general members of opposition parties face a low level risk of official discrimination.[1] In October 2015, the Malaysian Court of Appeals upheld a provision of the Peaceful Assembly Act that allows for criminal prosecution of rally organizers who fail to give police 10 days advance notice. After the decision, the government promptly charged an opposition politician. The authorities also charged two of the organizers of the 2015 Bersih rally with failure to give proper notice.[2]

    [1] DFAT Country Information Report: Malaysia, DFAT, 19 July 2016 [3.53 and 3.59]

    [2] Human Rights Watch, World Report 2016: Events of 2015, pp388-394 Accessed 18/7/2016

14. The applicant claims to be a voluntary member at the [position] rank of the People’s Cooperative of Malaysia. In support of this claim he produced a membership card along with his title as [position]. I accept that the applicant is a member at the rank of [position] with the Cooperative.

15. I asked questions that would elicit an understanding of his [position] within the Cooperative including the size of membership, the budget, when it was established in Kedah and by whom it was established. His answers to these questions were vague and not as exact as would be reasonably expected of a [certain position] within a movement. His responses included that the membership was ‘about one or two thousand’, the budget was ‘[amount], that it was established about two or three years ago and the founders were other dignitaries but he didn’t know their names. I do not accept that he is or could be perceived to be a [position holder] of the Cooperative within Kedah state.

16. The secrets that he claimed were of interest to the government were the names of the leadership of the Cooperative. I asked what would happen were the government to know the names of the leadership, to which he responded that they would be caught and interrogated. I asked whether it was because they were doing something illegal to which he responded, no, but because they were giving voice to the poor. I asked for an example in which he was involved in giving voice to the poor and he named his participation in the 2012 Bersih rally. I showed him the Facebook page of the People’s Cooperative of Malaysia – Perlis, and the photos of people speaking, panels being held and various functions saying that it couldn’t be a secret organisation if it has a Facebook page and people aren’t afraid to have their photos posted, to which he responded that the government still didn’t know the leaderships’ names. I accept that he knows the names of the leadership of the Cooperative, but I do not accept that this information is secret or that its knowledge would lead to the applicant being considered a person of interest to the government.

17. He claimed to have participated in the 2012 Bersih rally (commonly known as Bersih 3.0) in [location] because he was not satisfied with the government as it is corrupt and full of fraud and believes that it should be acting more appropriately. When I asked him what were the main demands that they were protesting for he produced a piece of paper and read them, a list that exactly matched the 2011 demands. I put to him that they were not the same as the 2012 demands (differences being an addition of two key demands reflecting events that had occurred between the 2011 and 2012 rallies[3]), to which he had no other response than to affirm that he was at the 2012 rally. I asked what type of role he played to which he responded that he had organised [number of people] from the Cooperative to attend the Bersih rally, [organising] , [planning their participation]. I asked questions to ascertain whether he played an organising role on the day of the rally including whether he carried a megaphone, was dressed differently than others, was arrested, personally knew the leadership, talked to the media or was mentioned by name in the media to which he answered in the negative for each of the questions. I accept that the applicant participated in the Bersih 3.0 rally of 2012. But as he did not know the specific demands of the 2012 rally and that he wasn’t distinguishable in any way I find that he would have attended in the capacity of a general protester who would not be set apart through his actions from any other protestor in the eyes of the government.

    [3] Bersih, and filed in folios [34] and [35]

18. Following the 2012 rally and through to October 2015 when he departed Malaysia the applicant did not face any difficulties with the government, he was not arrested and was able to leave the country on his passport without being detained. I asked him why he chose to wait to leave then and not earlier to which he responded that he had heard from his group that he might be arrested. I find that the chance of the police pursuing him three years after his participation in the Bersih rally and not impeding him from departing through Malaysian immigration to be remote. As such I do not accept the claim of fearing an impending arrest.

19. Having accepted that the applicant did participate in the 2012 Bersih rally, but not in a capacity that could be considered or imputed to be at a leadership level or that he undertook actions that may have attracted the attention of the authorities, which country information suggests may lead to arrest and prosecution, I do not accept that there is a real chance that the applicant will be arrested for his political activities or imputed political opinions.

20. It therefore flows that his fear of serious harm based upon being of a particular social group, namely ex-offenders, is not well-founded as I do not accept that there is a real chance of the applicant being arrested or fined upon return to Malaysia.

21. As I have found that his knowledge of the names of the senior leadership of the People’s Cooperative of Malaysia would not be of interest to the government of Malaysia I find that his fear of serious harm being based upon an interest by the government in his information is not well-founded.

22. In MILGEA v Che Guang Xiang the Court required that to establish a real chance it is necessary to look at the totality of circumstances.[4] Considering the concerns cumulatively, as a participant in a Bersih rally who knows the names of the leadership of the People’s Cooperative of Malaysia, I do not find that his fear of being arrested leads to a real chance of serious harm and as such find that his fear is not well-founded.

    [4] Unreported, Federal Court of Australia, Jenkinson, Spender and Lee JJ, 12 August 1994 at 17.

23. I have also considered the Department’s Complementary Protection Guidelines as required by Ministerial Direction No. 56. In MIAC v SZQRB [2013] FCAFC 33, the Full Court of the Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test in the assessment of ‘well-founded fear’. In applying the real risk test to the question of significant harm I find that the chance of the applicant facing significant harm, as defined exhaustively in s.36(2A), is remote.

24. For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk he will suffer significant harm.

25. 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).

26. 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).

27. 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

28. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Denis Dragovic
    Senior Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:    For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:    For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …