1606217 (Refugee)

[2017] AATA 809

1606217 (Refugee) [2017] AATA 809 (3 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606217

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:C. Packer

DATE:3 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 03 May 2017 at 4:49pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Ethnicity – Chinese – Political opinion – Supported Democratic Action Party – Attended Bersih 3.0 protest – Credibility issues 

LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a), 5H(1)(b), 5J(1), 5J(2)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A), 36(2B)
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

APPLICATION FOR REVIEW

1. The applicant is a man aged [age], born in Malaysia and a citizen of Malaysia.

2. The applicant arrived in Australia [in] August 2015, as a holder of a [temporary] visa, and had travelled on a Malaysian passport issued [in] 2015 and valid to [2020].

3. [In] January 2016 the applicant applied for a Protection (Class XA) visa.

4. The applicant did not attend an interview with a delegate of the Minister for Immigration.

5. [In] March 2016 the delegate refused the application under s.65 of the Migration Act.

6. On 3 May 2016 the applicant applied for review of the delegate’s decision.

7. On 3 May 2017 the applicant attended a Tribunal hearing.

8. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

Background

1. The applicant’s protection visa application provided some basic background information. He supplemented this with further details at the hearing. In the written application, the applicant stated that he was born and raised in Taiping, Perak state. He indicated he was a Chinese Malaysian and a Buddhist, and he spoke Mandarin. He did not show any employment/work in Malaysia. He claimed to have family members in Malaysia including parents [and siblings].

2. At the hearing the applicant said that his father was deceased, and only his mother and [one sibling] resided in Taiping. [Another sibling] lived in Penang, and a [third sibling] was in [country]. He stated he had work in Malaysia as [occupation].

3. The applicant’s protection visa application showed no travel to any other country. However, I sighted the applicant’s Malaysian passport at the hearing and this showed he had travelled to [country] in May 2015 and [country] in June 2015. The applicant stated those trips had been holidays.

Summary of claims

1. The applicant’s protection claims are in summary:

   ·He joined the Bersih 3.0 rally in 2012 in order to protest political issues. Several groups of Malays who were against the rally chased them away and even used violence. This incident also threatened his family as long as he stayed in Malaysia.

   ·On one occasion a random group of Malays came to the family home and called out for him to receive punishment. When he didn’t come out, the group broke windows and as they left said they would find him again. He did not report this to the police as he considered the “police doesn’t have time to bother this small issue”.

   ·At the hearing he discussed being a Chinese Malaysian who has supported the Democratic Action Party, and so he fears Malays who are pro-government.

Evidence

1. The evidence before the Tribunal includes the following material:

• The applicant’s Protection visa application form lodged [in] January 2016, which includes handwritten reasons for seeking protection in Australia.

• Passport pages.

• The Protection visa decision record (‘delegate’s decision’) dated [in] March 2016, which is the subject of this review.

• The application for review, which has attached to it a copy of the delegate’s decision.

1. The applicant appeared before the Tribunal to give evidence and present arguments, on 3 May 2017. The hearing was conducted with the assistance of an accredited interpreter in the Mandarin and English languages. The applicant stated he understood the interpreter, and during the hearing he did not tell me he had any difficulties with the interpretation.

2. At the start of the hearing I asked whether he was well and able to talk about his story, and he stated he was. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments.

3. The Department had not issued a certificate under s438 of the Act.

Assessment of claims: credibility

1. The applicant claims to be a national of Malaysia. He produced his Malaysian passport at the hearing and partial photocopies were made. All the available evidence, including the applicant’s oral evidence and familiarity with Malaysia, supports his claim to be a Malaysian national. Malaysia is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing his claims against the complementary protection grounds.

2. Country information[1] shows Malaysia is economically advancing. Malaysia is a country of over 30 million, with about 73% living in urban centres, and is ethnically diverse including: Malay and indigenous, collectively known as bumiputera, (68.1%); ethnic Chinese (24.8%); ethnic Indians (7.1%). The official language in Malaysia is Bahasa Malaysia (Malay) however English is widely used, as is Mandarin (and other Chinese languages and dialects), and Tamil. Malaysia is also religiously diverse and while Malaysia’s Constitution makes Islam the “religion of the Federation” it also notes that Malaysia is a secular country. According to the most recent census in 2010, Muslims represent 61.3% of the population, Buddhists 19.8%, Christians 9.2%, Hindus 6.3%, and Confucianism, Taoism, other traditional Chinese religions 1.3%.

   [1] Department of Foreign Affairs and Trade’s July 2016 report on Malaysia

3. The applicant’s narrative is now centred on his political opinion as a Chinese Malaysian who has supported the Democratic Action Party and attended political gatherings such as the Bersih 3.0 protest gathering. However, my significant concerns with his narrative and evidence lead me to find that he has fabricated and embellished claims and that he is not a credible witness. My assessment follows.

4. During the hearing I pointed out that in his application he had failed to show any employment in Malaysia. The applicant explained that someone else had helped him fill in the application. But other parts of the application have been completed with accurate personal information often in some detail, and so I do not accept that the absence of information or vague information given in the application has been the result of someone helping him complete the application.

5. At the hearing the applicant said he had been a member of the opposition Democratic Action Party (DAP), but his membership had expired. When I asked when it expired he said he could not remember. When I asked whether it expired before or after he departed Malaysia, he said before his departure and he gave no further indication of a date. The DAP is a multi-racial, centre-left Malaysian political party that became the largest opposition party following the 2013 elections. Although he has not provided any documentary evidence showing his past party membership, it is not unusual for a person to support such a large political party in Malaysia. Accordingly, I accept his evidence that he had been a DAP supporter. The applicant stated that now he followed Malaysian politics just a little, and he has not renewed his party membership.

6. At the hearing the applicant gave vague answers and information when I discussed his political activities. He stated that there were always political issues in the country and every year there were Bersih events that he attended including in 2015. However, as I pointed out, country information[2] shows that the Bersih coalition in fact had rallies in 2007, 2011, 2012 and 2015 and not annually:

   Bersih, a coalition of 62 NGOs, organised a series of rallies calling for improved government transparency free and fair elections in 2007 (Bersih 1), 2011 (Bersih 2), 2012 (Bersih 3) and 2015 (Bersih 4). The rallies attracted thousands of protesters and were supported by opposition parties.

   He made no comments about this country information.

   [2] Department of Foreign Affairs and Trade’s July 2016 report on Malaysia

7. I also indicated that Bersih 4 had been held after he had departed Malaysia and so he could not have attended that rally. The applicant replied that there had been minor events before Bersih 4 and he often wore a yellow Bersih ‘uniform’ that could attract attention. I pointed out that in his written application he specifically mentioned attending Bersih 3, and indeed, this was the only rally he had referred to. He replied that he does not remember what was in his written application. When I put to him that his party membership expiring before he departed Malaysia shows he had little interest in the upcoming Bersih 4 rally, he agreed. I conclude that by late 2015 the applicant had scant interest in the upcoming Bersih rally and in wearing the Bersih ‘uniform’.

8. When I discussed the applicant’s attendance at Bersih 3, he could not say when it had been held, although he knew it had been held in the Taiping Lake Gardens. He said that there were events in Taiping albeit they were not too serious. He said that conflict arose when large groups of people were not around, albeit people would intervene and prevent any altercation becoming serious. When I indicated I had googled and watched youtube videos of the 2012 Taiping gathering that showed a small peaceful gathering with some speakers with a microphone, he agreed with my description and agreed that the gathering had been peaceful. His evidence contradicts his written account of his attendance at Bersih 3 that discussed being chased away by opponents.

9. The applicant has given a shallow and vague account of his political activities in Malaysia. Despite ample opportunity, he has not given an account of attending any political gatherings/rallies/meetings/protests/events other than the Bersih 3 rally in 2012. He has not given an account of being involved in the 2013 election beyond saying that he had not been of voting age so could not vote. In sum, I accept that the applicant attended Bersih 3, but do not accept that he or any attendees were chased away or faced any violence or other difficulties at all. I accept, as he claims, that on occasion he was involved in verbal altercations albeit these altercations did not become violent.

10. At the hearing I asked whether he had ever been harmed in Malaysia, and he described Malays throwing rocks at the family home that damaged windows and parked vehicles. He added he thought attention had been attracted by the family drying their political ‘uniforms’ on an outside line. I asked whether the family thereafter dried the clothes inside and he agreed. He stated the rock throwing had occurred in one particular week, although as I pointed out, in the written application he spoke of just one occurrence. When I asked when the rock throwing had occurred the applicant at first said he did not remember, and then that he thinks around the time of Bersih 3 although he could not remember when that was. He stated he had contacted the police but the police had not taken any action. I pointed out that this was inconsistent with his written application which indicated he had not sought help from the police as the “police doesn’t have time to bother this small issue”. He disagreed and replied he had reported to the police. In sum, the applicant’s changeable and at times vague evidence about the rock throwing Malays leads me to consider he is not speaking from personal experience. I reject his account in his written application of a group of Malays threatening him and then rock throwing on an occasion, and I reject his account at the hearing of Malays rock throwing over the course of a week.

11. At the hearing I explored other aspects of the applicant’s life in Malaysia. I noted he was a Buddhist, as are almost 20% of Malaysians[3]. He stated he did not practice Buddhism much, but had been able to visit Temples in Malaysia and had no difficulties practising his religion there. He does not claim despite ample opportunity that if he returns to Malaysia he faces serious or significant harm because of his religion.

    [3] Department of Foreign Affairs and Trade’s July 2016 report on Malaysia

12. Some aspects of the applicant’s evidence concerned being threatened by Malays, and his fear that Malays will harm him if he returns. Accordingly, at the hearing I discussed his personal and family circumstances. He did not claim despite ample opportunity that before he departed his ethnicity had led him to suffer any occurrences of serious or significant harm. He attended school for a total of [number] years, and said he stopped his schooling as he had little interest. He described his work experience in a number of diverse jobs and said he had no problems getting work. He speaks Mandarin. He had no difficulties practising his religion in Malaysia. He lived with his family in the family home in Taiping. All of these circumstances point to the applicant having a modest background, but not with any marked signs of discrimination or hardship due to his Chinese Malaysian background. As I pointed out, country information[4] shows almost 25% of Malaysia’s population are Chinese Malaysian. In sum, I accept that the applicant is a Chinese Malaysian and that in his life he may have experienced some discrimination in Malaysia. However, I am not satisfied that the applicant experienced discrimination that, individually or cumulatively, amounted to serious or significant harm. I accept that the applicant may face some discrimination if he returns to Malaysia because he is a Chinese Malaysian, but I am not satisfied that such discrimination, individually or cumulatively, amounts to serious or significant harm.

His circumstances if he returns

[4] Department of Foreign Affairs and Trade’s July 2016 report on Malaysia

1. The applicant’s country of reference is Malaysia. At the hearing he said if he returns he would return to Taiping where his mother and [sibling] continue to reside. The applicant departed Malaysia on his genuine Malaysian passport and that passport is now valid to [2020]. He is a Malaysian national and he will reasonably be able to return to Malaysia without difficulties. I alerted the applicant to country information about returnees, drawing on the Department of Foreign Affairs and Trade’s July 2016 report on Malaysia:

   ·Many thousands of Malaysians enter and leave the country every day. People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return on account of their absence. Malaysians who over-stayed their work or tourist visas, or breached visa conditions in other countries are regularly returned to Malaysia with no attention paid to them by authorities.

   ·Likewise, failed asylum seekers would be unlikely to face adverse attention as the Malaysian government would not typically know the individual was a failed asylum seeker, although it is possible that some individuals might be questioned upon entry or have their entry delayed particularly if their passport has expired while abroad.

   In sum and in light of my findings above, while the applicant has overstayed in Australia and sought protection, I do not accept these actions will cause him to face harm on his return to Malaysia.

2. As I discussed with the applicant, country information[5] shows that since 2013, the Malaysian Government has demonstrated an increasing intolerance of anti-government criticism and freedom of expression and assembly. The constitution states that all citizens have ‘the right to assemble peaceably and without arms’, albeit in practice the government closely administers political assemblies and rallies. Nonetheless, protests and demonstrations occur from time to time, including the peaceful ‘Bersih 4’ (Coalition for Clean and Fair Election) rallies in August 2015. While a spike in interparty and societal violence occurred in connection with the 2013 elections, such incidents are not a common occurrence and individuals with political affiliations do not live in fear of violence on a day-to-day basis.

   [5] Department of Foreign Affairs and Trade’s July 2016 report on Malaysia

3. In my discussion above I accept that the applicant had a shallow interest in politics and undertook some political activities in Malaysia. I accept he had been a member of the opposition Democratic Action Party and attended the peaceful Bersih 3 gathering in his home town of Taiping. However, the applicant did not give an account of doing any other party activities including during the 2013 election. Further, he let his party membership lapse before he departed Malaysia, and I find he had scant interest in the upcoming Bersih 4 that was held after he departed. I accept as he says that on occasion he was involved in verbal altercations but these altercations did not become violent as people always intervened. I do not accept that there had been a serious occurrence where Malays had thrown rocks at the family home and damaged property. In sum, I find that the applicant had not suffered any harm in Malaysia either because of his party membership, or political activities, or religion, or because of his Chinese Malaysian ethnicity. I find that his political activities and experiences had been at a low level, and that he had not been confrontational in his activities with, and support of, the DAP.

4. Further, as I discussed at the hearing, the applicant’s travel to [countries] in May and June 2015 for holidays, and then return to Malaysia, does not support his claims to have had a fear of harm for any reason in Malaysia. Additionally, he remained in Malaysia for several years after the 2012 Bersih rally, and then after the 2013 election, without suffering any harm, and this does not support his claims to fear harm because of his political interest and activities at that time.

5. In light of these findings I find unconvincing his claims that he came to the serious and ongoing adverse attention of political opponents, or government supporters, or Malays. I do not accept that he departed Malaysia so as to escape feared harm (such as threats, intimidation, physical or other harm) from those agents, or that he now fears to return for the reasons he has given. In light of the foregoing I do not accept that the applicant is now of adverse interest to political opponents, or government supporters, or Malays, or the authorities, or any other agents. I find that those of his past circumstances and activities that I do accept are now distant in time and will not cause him any difficulties on his return to Malaysia.

6. I accept the applicant may resume his support of the DAP and of Bersih on his return. But in light of his low level political and social involvement before he departed, I am not satisfied that on his return to Malaysia he will be motivated to become any more politically involved than he had been before he left.

7. At the end of the hearing the applicant said that he finds living standards here are more comfortable and he would like to stay for a further short period. But as I pointed out to him, that is not a basis for granting a Protection visa.

8. In sum, I have considered the applicant’s evidence and claims individually and cumulatively. But taking all of my foregoing concerns together, I find unconvincing and do not accept his claim that in Malaysia he suffered any harm. I do not accept either that the applicant departed Malaysia so as to escape feared harm (such as threats, intimidation, physical or other harm) from any agents there, or that he now fears to return to Malaysia for the reasons he has given.

Refugee criterion

1. In light of the above assessment, the Tribunal finds that in Malaysia the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims or for any reason. The Tribunal finds that in Malaysia the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the five reasons set out in s.5J(1) of the Act either when looked at individually or cumulatively.

2. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection

1. I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm. However, in light of the foregoing I find there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor am I satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. I am not satisfied the applicant will be subject to significant harm for any reason if he is removed/returns to Malaysia.

Conclusion

1. 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).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. 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

1. The Tribunal affirms the decision not to grant the applicant a Protection visa.

C. Packer
Member

ATTACHMENT A – RELEVANT LAW

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.

Refugee

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.

Complementary protection

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 a protection 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 the applicant 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’).

‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where 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; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

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.