1605834 (Refugee)

[2017] AATA 1082

1605834 (Refugee) [2017] AATA 1082 (19 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605834

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Nicole Burns

DATE:19 June 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 19 June 2017 at 2:54pm

CATCHWORDS

Refugee – Protection visa – Malaysia – BERSIH co-ordinator – Pan-Malaysian Islamic Party (PAS) supporter – Credibility issues

LEGISLATION

Migration Act 1958, ss 5, 36, 499
Migration Regulations 1994, Schedule 2

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

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] April 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Malaysia, applied for the visas [in] September 2015. The delegate refused to grant the visas [in] April 2016.

3. The applicants appeared before the Tribunal on 13 June 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.  

8. 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

9. 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

10. The first named applicant (the applicant) is a [age] year old man from Kuala Lumpur.  His wife is the second named applicant and their [child] is the third named applicant.  The applicant parents have [another son] who was born in Australia.  The applicant presented his initial claims for protection in the visa application as follows.

    Why did you leave that country?

    I left my country (Malaysia) because I and my wife was the head of the area [town] (BERSIH).  The coalition for clean and fair elections or BERSIH is a coalition of non-governmental organisations (NGOs) which seeks to reform the current electoral system in Malaysia.  To ensure free, clean and fair elections.  Supporters of BERSIH were urged to wear yellow tribunal-shirts as a symbol of protest.  The government called off its counter-rally due to its instability to secure a venue and without police permits are illegal.  The Malaysia government will give instruction arrest anyone who involved in these demonstrations. 

    What do you think will happen to you if you return to that country?

    The Malaysian government surely want me and my wife to get arrested and getting jail and also getting fine at high cost for info, police already arrested a lot of protestors.  Now the police still detect the remaining members of this group. 

    Did you experience harm in that country?

    Yes.  I already experience harm in that country before I got hit by the police officer but I’m lucky I can get away before I get caught by the police and get jailed.

    Did you seek help within the country after the harm?

    Yes but nothing happen because the people don’t want to get any trouble with the police and the government of Malaysia.

    Did you move, or try to move, to another part of the country to seek safety?

    Yes. I already try to moved to another part of the country but the same situations still keep happening and the police always can find me and I have to run/move to another part of the country. 

    Do you think you will be harmed or mistreated if you return to that country?

    Yes surely it is.  I’m sure I will be harm and I already experience it before. 

    Do you think the authorities of that country can and will protect you if you go back?

    No because the authorities wouldn’t help. They are a part from the government and if I seek for help from them surely they will hand me to the police. 

    Do you think you would be able to relocate within that country?

    Yes I will be able to relocate if I am still inside that country.  It’s easy to them to locate me because some of the people around are reporting to the police and government. 

    [errors in original]

11. The second named applicant’s claims set out in her visa application form are almost identical to her husband’s written claims.

12. The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of Malaysia, there is a real risk that they will suffer significant harm.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

13. The applicants travelled to Australia on valid Malaysian passports and state that they are nationals of Malaysia. The delegate had no concerns about the applicants’ identity.  Therefore the Tribunal has assessed the applicants’ claims against Malaysia as their country of nationality and receiving country.

14. At the Tribunal hearing the applicant said he left Malaysia in April 2014 because police were looking for him because of his involvement with Bersih, and in particular his leadership role.  Specifically he said he police started to look for him in early 2014 because of his role encouraging people in his neighbourhood to attend the Bersih 3.0 rally on 29 April 2012 in Kuala Lumpur.  He had attended the Bersih 2.0 rally in 2011 in Kuala Lumpur, but as a participant not an organiser or leader.  He became involved through a friend [who] he used to work [with].  He knew the applicant supported the Pan-Malaysian Islamic Party (PAS) so he invited him to join Bersih.  The applicant said he became involved with Bersih because he felt there was a lot of corruption within the government. 

15. The applicant said the aim of the Bersih 3.0 rally was to demand free and fair elections.  He was not sure the aim of the Bersih 2.0 rally.  At the Bersih 2.0 rally there was clashes between protestors and the police and some were injured by rubber bullets and water cannons used by the police.  The applicant was not involved, but witnessed the clashes.  He said some people were arrested but did not know how many or what happened to them.  In the Bersih 3.0 rally in 2012 the applicant said it was not as bad however there were ‘skirmishes’ between protestors and police and some people were injured and arrested.  Again he did not know what happened to them.  This was the last time he was involved in Bersih because after he was married (in August 2012) he tried to stay away.

16. The applicant said the police started looking for him in early 2014, he thinks because they were trying to prevent Bersih 4.0 from happening by detaining its leaders. The police came to his house one day but he was not home: his neighbours told him they were looking for him and they had an arrest warrant.  The police returned to his house sometime after the applicant had come to Australia (around mid-2014).  His wife then moved to [Town 1] (near Kuala Lumpur).  He was told by neighbours that the police came looking for him again after his wife came to Australia in February 2015 (his [relative] was staying at their house at the time).   

17. The applicant said he is afraid the police might detain him on return to Malaysia because perhaps they are still looking for people according to outstanding arrest warrants. 

18. In her oral evidence to the Tribunal the applicant’s wife said she followed her husband to Australia because the neighbours told her the police had come to their house looking for him: twice when her husband was around and once after he came here.  The police were looking for her husband because he was the team leader for a small neighbourhood group which joined the Bersih 3.0 rally in April 2012 (before they were married).  Asked about her involvement with Bersih, if any, the second named applicant said she watched a rally with a friend sometime in the past. 

19. The second named applicant said she moved from her home to [Town 1] (near Kuala Lumpur) in October 2014 because the police had come looking for her husband.  After [Town 1] she moved to her hometown [in] January 2015 then came to Australia in February 2015.  

20. As discussed with the applicant at hearing, the Tribunal has a number of concerns with his claims that he was involved with Bersih and experienced problems from the authorities as a result in Malaysia for the following reasons.

    a.There are inconsistencies between the applicant’s oral evidence to the Tribunal and written claims in his visa application in significant respects.  For instance, at hearing he said he was never harmed while attending Bersih rallies (or anywhere else) however in his application form it is stated that he got hit by a police officer.  He also stated that his wife was involved with Bersih in the application form, as the head of the area like himself, however at hearing when asked if his wife was involved with Bersih at all he replied “no”.  When asked about these inconsistencies at hearing, the applicant said an unregistered agent wrote his application (and his wife’s) after he told him their story, so it must have been a mistake.  

    b.The applicant raised a new claim at the Tribunal hearing that the police had a warrant for his arrest which was not mentioned in his application form, which casts doubts on this claim.  Also his oral evidence about why the police issued a warrant for his arrest in early 2014, almost two years after his alleged involvement in Bersih 3.0 was vague and unpersuasive: that is because perhaps the police had detained all the leaders above him.  Furthermore, the fact that the applicant departed Malaysia on his own passport issued in his own name with no issues indicates to the Tribunal that he did not have an outstanding arrest warrant in relation to his involvement with Bersih or for any other reason. 

    c.In his oral evidence to the Tribunal the applicant displayed limited knowledge of Bersih and what knowledge he did display was general.  For example, he made a general statement that Bersih demanded the Malaysian government ensure free and fair elections, which was the specific aim of the Bersih 3.0 rally.  However he was unable to state the specific demands made during Bersih 3.0 in relation to cleaning up the electoral process[1], which the Tribunal would expect the applicant to have known about given his claims to have been a leader and organiser in relation to that rally.  Further, the applicant was unable to state what the aims of Bersih 2.0 rally were, despite his claims to have attended the rally in 2011.  At hearing he said he merely joined the rally and was not focused on their aims, which the Tribunal does not find a persuasive explanation for his lack of knowledge about its aims. 

    d.The applicant claimed to have left Malaysia in April 2014 because the police considered him a person of interest in relation to his involvement with Bersih, yet he did not apply for protection until September 2015, over a year later.  At hearing the applicant said he did not know anything about protection visas when he first arrived and it was only later that he heard about it through friends.  The Tribunal does not find this explanation persuasive. 

    [1] The three demands made during the Bersih 3.0 rally was for: 1) the resignation of the Election Commission; 2) the electoral process to be cleaned before the 13^th general election; and 3) international observers to be invited to observe the 13^th general election. (>

    Based on the above, the Tribunal does not accept that the applicant is a credible witness. Given these concerns the Tribunal does not accept the applicant’s claims to have joined Bersih or to have participated in any rallies.  It follows that the Tribunal does not accept the police looked for him on three occasions because of his involvement in Bersih or issued a warrant for his arrest.  It follows that the Tribunal does not accept that the applicant has been harmed, arrested, threatened or of any interest to the police or anyone else in relation to his alleged support to Bersih. 

21. In reaching this conclusion, the Tribunal has taken into account the applicant’s wife’s oral evidence to the Tribunal that her husband was involved with Bersih (and a team leader in their neighbourhood) and the police looked for him in the past.  However her evidence does not overcome the serious credibility concerns the Tribunal has with the applicant’s claims, as discussed above. 

22. At hearing the applicant claimed (for the first time) that he was also involved with the Pan-Malaysian Islamic Party (PAS) in the past in Malaysia.  He initially said he was a member, then changed his evidence to that of a supporter: in terms of voting for them and putting up posters and banners for them during election time.  However his oral evidence was vague about his alleged support during elections times, for instance he did not state which elections and only after some hesitation said they were in 1996 in Kelantanmi, without providing any further details or context.  Given his vague oral evidence and the fact this is a late claim, the Tribunal does not accept the applicant was a supporter or involved with PAS at all in the past in Malaysia and finds he does not face a real chance of serious harm on this basis on return to Malaysia. 

23. For reasons above, the Tribunal does not accept that the applicant was ever involved in Bersih in the past or any other political groups or activities for reasons set out above, and given this and his limited knowledge of Bersih, it does not accept that if he returns to Malaysia he will engage in any activities associated with this organisation or movement or any other.  The second named applicant said she (and friends) watched a Bersih rally in the past but was otherwise not involved. Her evidence about watching the rally was vague: for instance she was unsure which rally and when it took place. On this basis the Tribunal does not accept that she watched a Bersih rally or was in any way involved in Bersih in the past in Malaysia and does not accept she would be on return to Malaysia.  As such, the Tribunal does not accept that the applicants face a real chance of persecution, now or in the reasonably foreseeable future, including being arrested and imprisoned and fined, from the police or anyone else because of their political opinion based on their alleged association with Bersih or with any other movement, political group or party. The Tribunal is not satisfied the applicants have a well-founded fear of persecution as required by s.5J of the Act and therefore finds the applicants are not refugees within the meaning of s.5H.

24. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicants will suffer significant harm from the Malaysian authorities or from anyone else for the reasons advanced in relation to their alleged Bersih involvement or support to a political party.  The Tribunal is therefore not satisfied that the applicants meet the alternative provisions in s.36(2)(aa).

25. There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).

26. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

27. The Tribunal affirms the decision not to grant the applicants protection visas.

    Nicole Burns
    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.

    …