1606507 (Refugee)

1606507 (Refugee) [2018] AATA 634 (27 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606507
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Brendan Darcy
DATE:27 February 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 27 February 2018 at 2:28pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Threatened by debt recovery agents – Fear of violence – Inconsistent evidence – Witness credibility – Implausible claims – Victim of assault – Fear of assault of third applicant – Fear of emotional harm – Historic offence
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, r 1.12, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 [date] May 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of the Federation of Malaysia (Malaysia), applied for the visas on [date] September 2015. The delegate refused to grant the visas on the basis that effective protection measures were available to the applicants and there was taken not to be a real risk of significant harm to the applicants due to the state protection measures in place in their home country.
In this decision, the first named applicant, [Mr A], will be referred to as the first applicant; the second named applicant, [Ms B], will be referred to as the second applicant or the first applicant’s spouse; and the third named applicant, [Ms C], will be referred to as the third applicant.
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
On departmental file ([file number]) the applicants submitted 866 forms about their personal particulars and their claims for protection. The following background information is based on this submitted information.
All three applicants claimed to be citizens of the Federation of Malaysia.
The first applicant claimed to be born [date] in [Town 1] in the Malaysian state of Sabah. The first applicant claimed his ethnicity is Malay; that his religion is Muslim; and that his occupation is [Occupation 1].
The second applicant claimed to be born on [date] in Sandakan in the Malaysian state of Sabah. She claimed her ethnicity is Malay; that her religion is Muslim; that her occupation is [Occupation 2].
The second applicant claimed that she completed form 4 (or year 10) at secondary college and she worked in [a certain industry] in Kuala Lumpur between 2010 and 2012 but does not identify earlier periods of employment.
The first and second applicants claimed that that prior to arriving in Australia on [date] September 2015 that they resided on [Town 2] (near Kuala Lumpur) since 2010. The first applicant claimed that he then resided in Kota Kinabalu between 1998 and 2010 and the second applicant resided on Kora Kinabula between 2008 and 2010.
The first and second applicants claimed to married on [date] 2009 and that they have one daughter and no sons. A copy of a marriage certificate in Bahasa Malaysia with no accompanying translation is attached to the applicants’’ visa application forms.[1]
[1] [file number] Folio 79
It is claimed on behalf of the third applicant that she was born [in] Kota Kinabala in the Malaysian state of Sabah and that she arrived on [date] September 2015 with her putative parents.
Identification
On departmental file, there are certified copies of the applicants’ valid passports.[2] The third applicant’s passport was issued on [date] 2015.
[2] [file number] Folio 84-85, 115-6
A certified copy of the first applicant’s national identification card is attached to the visa applications forms. It indicates that the first applicant resided in [Town 1], Sabah.[3] There is also a copy of the second applicant’s birth certificate on file issued in Sabah. [4]
[3] [file number] Folio 77
[4] [file number] Folio 75
Certified copies of the second applicant’s national identification card and drivers licence are attached to the visa applications forms. It indicates that the second applicant resided in [Town 2], Kuala Lumpur.[5] A copy of the third applicant’s birth certificate is only on file.[6]
[5] [file number] Folio 80
[6] [file number] Folio 75
There is also a certified copy of the third applicant’s national identification card on departmental file, indicating that she resided at the same address as her claimed parents. Kota Kinabalu in Sabah.[7]
Written claims for Protection
[7] [file number] Folio 117
The applicants’ claims for protection are not submitted in a statutory declaration or statement of claims. They are written in the first applicant’s 866C form. The claims are very limited and vague as outlined below:
Question 90: ‘I am scared and for the sake of our safety’
Question 91: ‘We all will be kill if we return to Malaysia’ (sic)
Question 92 regarding experiencing past harm: ‘Hereby. I submits a photocopy of my police report dated [08].2015
Question 93 regarding to relocation in the past: ‘To Sabah but they still follow us’.
Question 95 regarding who will be harmed: ‘We will be kill by the same person’ (sic)
Question 96 regarding protection: ‘They cannot protect us’
Question 97 regarding relocation in the future: ‘Not at all’
Attached to the application for a protection visa was attached a copy of a police report in Bahasa Malaysian that appears to be issued on [date] August 2015 in [Town 2]. No translation, certified or otherwise, was attached.
A delegate on behalf of the Minister refused to grant the visas to the applicants on [date] May 2016
The applicants validly applied to have the delegate’s refusal decision reviewed by this Tribunal on 9 May 2016. The delegate’s decision record was attached to the review application.
The applicants submitted a certified translation of the earlier submitted police report to the Tribunal on 4 August 2017. The report indicates that the person making the report to a police station in [Town 2] was the first applicant who is described as Bruneian and [Occupation 1].
The compliant in the police report states:
On [date]/08/2015 at approximately 1730 Hrs while I was home at the above address, I was visited by [number] Indian males who introduced themselves as from [Bank 1] and ordered me to pay [a Bank 1] debt of RM[amount] /- whereas my debt was only [a fraction of that amount]. They then threatened to kill me and cause trouble for my children in the future as well as destroy my house and car. I wish to also state that these [Indian] males had previously come to my home many times ordering me to make payment and using the same threats when I refused. I have therefor come to lodge a report for police action to be taken.
Also submitted was a letter from a principal of a local primary school in favour of their visa application; a letter in favour the second applicant as an employee; a letter to evident that the second applicant is enrolled in practical work as part of a diploma.
No further submissions were received by the Tribunal right up to the time of this decision being made.
ASSESSMENT OF CLAIMS AND FINGINGS
Country of Reference
The applicants claim to be citizens of the Federation of Malaysia and provided copies of their Malaysian passports to the Department, as well as the Tribunal. On the basis of the copy of their passports, the Tribunal finds that the applicants are nationals of Malaysia. As the Tribunal has found that the applicants are nationals of the Federation of Malaysia, the Tribunal also finds that Malaysia is the applicants’ country of nationality for the purposes of s.36(2)(a) and the applicants’ “receiving country” for the purposes of s.36(2)(aa).
With no evidence to the contrary, the Tribunal finds that the applicants are not excluded from Australia’s protection by subsection 36(3) of the Act.
Membership of the same family unit:
Spousal Couple
At the time of application of the protection visas, it was claimed that the first and the second applicants were in a spousal relationship; that they have one child between them; and that they have travelled to Australia together. It is noted that the first applicant claimed that his current marriage was a second marriage and that he had [adult] children arising from this initial marriage, which he claimed to have ended in divorce in 1995. It is further noted that the second applicant claimed to have been in two previous marriages which both ended in divorce. The applicant claimed to have [adult children] arising from this initial marriage. It is again noted that on the departmental file is a copy of marriage certificate issued in Malaysia indicating that the first and second applicant were married on [date] 2009.[8]
[8] [file number] Folio 29
Based on the available evidence, the Tribunal accepts the marital histories of the first and second applicant and that the first and second applicants are in a genuine spousal relationship and that the second applicant satisfies clause 1.12(4)(a) of the Migration Regulations, as she has membership of the same family unit as the first applicant for the purposes of this application for review.
Biological Child in Australia
It is claimed that the third applicant is a minor and is the biological child of the first and second applicants. On departmental file is an copy of a birth certificate indicating that it pertained to the third applicant and that the first and second applicant are the parents of the third applicant. Having considered all the relevant information, the Tribunal does accept the third applicant is a member of the same family unit in accordance of regulation 1.12(4)(c) of the Migration Regulations as a dependent child of the family head (the first applicant).
Credibility Findings
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.)
Accepted Circumstances
The Tribunal accepts the following aspects about the applicants’ background to be credible:
It is accepted that the first applicant was born [in] the Malaysian state of Sabah as claimed; that his surviving parent and siblings reside in Sabah; that his ethnicity is Brunei and that he can speak Brunei and Bahasa Malaysia, as claimed during the scheduled hearing. It also accepts that he has various employment including [list of occupations deleted].
It is accepted that the second applicant was born [in] Sandakan in the Malaysian state of Sabah and that her ethnicity is Sino-Malay; that she is able to speak Chinese and Bahasa Malaysian; and that her occupation is as [Occupation 2].
It is also accepted that the applicants belong to the Islamic faith tradition, as claimed. The Tribunal also accepts the applicants moved from Sabah to [Town 2] in Kuala Lumpur in 2010 as claimed in his 866C form and during the hearing.
The Tribunal further accepts that the third applicant was born in Kuala Lumpur in [year].
Credibility Findings about the Applicants’ Critical Claims for Protection
During the scheduled hearing, the first applicant claimed that he departed Malaysia for Australia because his wife and daughter were harassed and threatened with torture and property damage and [serious injury to] the second [applicant]. However the applicant claimed that no actual harm had occurred to his wife or daughter. The applicant claimed the threats were conveyed by [number] Indian males who came to their residency and knock at the door on several occasions including at night. The applicant claimed [Bank 1], a licensed financial institution, was demanding [amount] Malaysian ringgits (or about [amount] Australian dollars) arising from a [amount] Malaysian ringgit credit card debt that began in 1991. The applicant claimed that he had been able to avoid the bank when he moved address from Sabah to [Town 2] (metropolitan Kuala Lumpur) in 2009, although he had earlier stated he moved to peninsular Malaysia for better economic opportunities. The applicant claimed the licensed bank used Indian thugs for debt recovery and mentioned he had received various phone calls about his debt repayments. The applicant claimed that he made a police report and relocated to Sabah before departing for Australia. The first applicant claimed that if he returns to Malaysia, the thugs working for the bank will kill him.
When the Tribunal enquired when the second applicant about the claims for protection, she was unable to outline her written claims except to claim that there threats against her husband and his property but not herself, by the Indian men asking for men on behalf a bank. The second applicant claimed the men visited their residence a few time and twice when she was at home and that she only heard their voices. The second applicant also claimed that she and the third applicant remained in [Town 2] (a district in Kuala Lumpur) while her husband moved to Sabah. The second applicant added that she and her daughter moved to younger sister’s house. The second applicant claimed she did not know the amount of her husband’s indebtedness. She claimed she remained in the car while her husband went to the police to make a complaint. The Tribunal also notes that the applicants departed for Australia via [an] Airport as stated in their 866 application.[9]
[9] [file number] Folio 38, 57
Of particular concern to the Tribunal were the inconsistencies and implausibilities between the first and second applicants’ oral evidence at the scheduled hearing and the police report. With regards to the submitted police report dated [August] 2015, the Tribunal enquired as to the reasons the applicants did not earlier report the serious threats of violence towards them given the incident claimed to be occurred on [date] Augusta 2015. The first applicant responded that he had urgently fled to Sabah prior to making the police report while his wife and daughter remained in [Town 2]. When the Tribunal pointed out that the police report was issued in a police station in peninsular Malaysia not in Sabah in Borneo, the applicant shifted his testimony by claiming that he departed for Sabah after the police report was issued. This changed testimony especially undermines the applicants’ claims to have been threatened in such a dramatic manner or that the first applicant had relocated at all. The second applicant claimed that she and the third applicant remained in [Town 2] but moved to the house belonging to second applicant’s sister. The Tribunal also finds it implausible that the first applicant fled to Sabah for safety leaving his wife and child in [Town 2], even if they moved to the second applicant’s sister house, given the seriousness of the claim. Furthermore, the Tribunal note that the first applicant returned to Kuala Lumpur before departing. Had the applicants genuine and urgent personally held fears of being harmed in Kuala Lumpur, as claimed, and outlined in the police report, then it would be reasonable to expect the applicants to have all left for Sabah or [another country] before departing for Australia and not to remain in metropolitan Kuala Lumpur, given the seriousness of the claims.

The Tribunal finds the following elements to have undermined the applicants’ claim for protection based on the first applicant’s indebtedness: Firstly, the first applicant had originally claimed that he moved to [Town 2] to seek better opportunities; however the applicant changed his testimony by stating that the relocation was to avoid the bank’s harassing calls. Secondly, although the first applicant had claimed he acquired the debt since 1991, he did not depart for [Town 2] until 2009 but made no claims that the bank had sent threatening debt recovery agents to him in Sabah. Thirdly, given the available powers of banks to initiate lawful debt recovery or bankruptcy proceedings, it would be very unlikely that the banks would employ debt recovery agents who would make threats to [physically assault individuals], against private property or towards other vulnerable family members, as claimed. Fourthly, it is also unlikely that a bank would lend as much as [amount] Malaysian ringgits to a low income worker in 1991. Fifthly, given the historic nature of the claimed debt, it would have been reasonable for the bank to have undertaken bankruptcy proceedings long before the applicants’ departed. And lastly, the Tribunal notes that the applicants acquired their passports in July 2015 – a few weeks before incident is said to have happened – indicating to the Tribunal the applicants were planning to depart for Australia before the claimed incident of harm in August 2015. Cumulatively considered, these concerns invited the Tribunal to consider that there are too many implausible, inconsistent and mutually unsupportive elements to the first applicant’s claims about indebtedness to a licensed bank to be credible or reliable.
In assessing these critical claims about indebtedness, it is central to the Tribunal’s decision making in considering whether these claims are credible or reliable. When the Tribunal considers the inconsistencies and implausibilities pertaining to the first and second applicants’ account of events in acquiring the debt and then being severely threatened by Indian gangs on behalf of licensed financial institutions and their related fears in returning to Malaysia, the Tribunal is unable to provide the applicants the benefit of the doubt that the overall claims are credible or reliable and find that the oral evidence was not mutually supportive in any persuasive or convincing manner.
The Tribunal, accordingly makes the following adverse credibility findings, cumulatively considered about these specific claims:
The Tribunal does not accept the first applicant has any debt, substantial or otherwise, with a licensed financial institution as claimed by the applicants; nor does it accept the first applicant was ever targeted by debt recover agents, thugs or criminals of Indian or any other ethnicity on behalf of any lender, licensed or otherwise, in the past or that it was the triggering event leading to the applicants’ departures to Australia. The Tribunal further does not accept the applicants were seriously or significantly harmed or harassed, including through property damage, or physically threatened, either by phone or face-to-face, either in Malaysia or Australia, as claimed by the applicants. Neither does it accept the first applicant relocated briefly in Sabah before departing with the other applicants; nor does it accept that the other applicants left their residency in [Town 2] to be with the second applicant’s sister in Kuala Lumpur, as claimed.
While the Tribunal accepts the police report is not a fraudulent document as such, it does not accept that that the complaint contained in the submitted report reflected the applicants’ actual or genuine circumstances about indebtedness to a licensed financial institution leading to violent threats in any reliable manner. The Tribunal finds that the complaint was generated by the applicants to the Royal Malaysian Police to augment the applicants’ otherwise weak, mutually unsupportive and implausible claims for protection about indebtedness and not because they have any genuine claims in this regard.
And for completeness, neither does the Tribunal accept the applicants believed the authorities would not protect them, given they were willing to make a complaint to the police and based on the country information, including the country information about effective protection obtained in the submitted decision record and the most recent DFAT Malaysian country information report.
Based on these adverse credibility findings, the Tribunal finds that the applicants do not have a real chance of serious harm, including being killed as claimed, for any reason mentioned in s.5J(1)(a) based on the first applicant’s claims about indebtedness, if returned to anywhere within Malaysia, now or into the foreseeable future. Accordingly, the applicants do not have a well-founded fear of persecution pursuant to s.36(2)(a) for these specific reasons.
Based on the same adverse credibility findings, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to anywhere in Malaysia, there is a real risk that the applicants will suffer significant harm as required for the Act’s complementary protection provisions, for these same specific reasons.
Second Applicant’s Residual Claim
The second applicant made a claim that she had been [assaulted] by [a family member]; that this [assault] occurred when she was a teenager; and that the police could not protect her. The Tribunal enquired whether she had even gone to the police about this serious [incident] which was also in breach of Islamic laws in Malaysia; to which the applicant responded that she had not as that she was embarrassed to make a complaint and because she feared the police. The second applicant added that she also feared her [family member] who was now elderly and in Sabah, would attack the third applicant as she reaches her teenage years; that she had felt suicidal and that when she had told her family about the attack they did not believe her. The applicant claimed she did not want her family near her.
Despite considering this specific claim in the context of the Tribunal’s abovementioned adverse credibility findings, the Tribunal accepts the second applicant had experienced a very serious [assault] by a [family] member as claimed; that she had not report this criminal matter for the reasons claimed and that she had genuinely personally-held fears for emotional harm for herself and of physical [harm] for her daughter. In accepting this, it accepts that the applicants may have been motivated to depart Sabah for Kuala Lumpur in the past and that they departed Malaysia for Australia to distance themselves from the second applicant’s unsupportive family, as claimed by the second applicant.
The Tribunal accepts that both the second and third applicants will face a chance of serious harm, namely [physical] assault, arising from a [perpetrator] within the second applicant’s extended family; however it does not accept the applicant will face a chance of serious harm that is more than a remote and an insubstantial chance. This is based on the historical nature of the assault occurring when the second applicant was a minor and who is currently [age] and married to a supportive husband. It is also based on the first and second applicants being in a position to be vigilant in protecting the third applicant being a real chance of serious harm in this regard, if the applicants were to be returned to Kuala Lumpur specifically or Malaysia more generally. As the ‘real risk’ test is the same as the ‘real chance’ standard as the Federal Court held in MIAC v SZQRB, the Tribunal also finds there is not a real risk of significant harm arising from this claim, if the applicant were to be removed from Australia for Kuala Lumpur or anywhere else in Malaysia, now or into the foreseeable future.
It is also noted that the applicants did not provide any medical evidence about the severity of the second applicant’s mental distress from a medical or other professional. Nevertheless, the Tribunal makes further findings that the second applicant faces a real chance of emotional harm in returning to Malaysia based on these claims, given accepted claims about mental health, the lack of family support; however it does not accept the level of harm amounts to being serious harm, that would satisfy any of the harm non-exhaustively listed under s.5J(5) including significant physical ill-treatment and significant physical harassment. Neither does it accept the level of harm amounts to serious harm that would satisfy s.5J(4) more generally. This is based on the passage of time since the assault occurred; that second applicant will return to Malaysia with the emotional and material support of her husband; and that the psychological injuries or emotional distress of the second applicant are not assessed to be significant or severe based on the available evidence, either now or into foreseeable future if returned to Malaysia.
Similarly, the Tribunal has considered whether any of the applicants will face a real risk of significant harm based on the second applicant’s claims about emotional harm. Noting that significant harm is differently from serious harm, the Tribunal finds that while there is a real risk of emotional harm, it does not amount to any significant harm listed in s.36(2A), including being subjected to degrading treatment or harm (or extreme humiliation), in the reasonably foreseeable future. This is based on the same considerations mentioned above that the second applicant will return to Malaysia with the emotional and material support of her husband and that the Tribunal does not assess the second applicant’s physiological injuries or emotional distress as significant or severe, if returned to Malaysia.
Having considering all the evidence relevant to the second applicant’s claims, the Tribunal does not accept the applicants will face a real chance of serious for any reasons mentioned in s5J(1)(a), if they are returned to anywhere within Malaysia, into the foreseeable future that would satisfy s.36(2)(a). Based on the findings above, cumulatively considered, about the second applicant’s residual claim, it also follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to anywhere in Malaysia, there is a real risk that the applicants will suffer significant harm as required for the Act’s complementary protection provisions, in this regard.
Cumulative Findings
At not stage did the applicants advance face a real chance of serious harm or a real risk of significant harm based on their religion, their race or any other reason, including those related to any other dispositive claim prescribed by s.5J(1)(a).
Having considered all the applicants’ accepted claims, both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance that, if returned to Malaysia, they will face serious harm or persecution for one or more of the reasons mentioned in paragraph 5J(1)(a).
The Tribunal accordingly finds that the applicants do not have a well-founded fear of persecution for these reasons as required by s.36(2)(a).
Based on all available information and accepted claims, both individually and cumulatively considered, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the Federation of Malaysia, there is a real risk of the applicants will suffer harm by way of their being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, as required in s.36(2)(aa).
Conclusion
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
The Tribunal affirms the decision not to grant the applicants protection visas.
Brendan Darcy
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.
…

[2018] AATA 634

27 February 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction