1606575 (Refugee)

1606575 (Refugee) [2017] AATA 1968 (7 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606575
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Peter Vlahos
DATE:7 September 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 7 September 2017 at 2:20pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Political opinion – Bersih movement – PKK Opposition to government – Demonstrations – Arrests – Bankruptcy proceedings

LEGISLATION
Migration Act 1958, ss 5(1), 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 Schedule 2

CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (199) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIMEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
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 [in] April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] March 2016 and the delegate refused to grant the visa [in] April 2016
The applicant appeared before the Tribunal on 28 August 2017 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was not represented by a legal representative or a registered migration agent.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect to the applicant.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality and Identity
Based on copies of the applicant’s passport which was provided to the Department of Immigration and Border Protection (the Department), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has assessed her claims against that country in relation to sections 36 (2) (a) and 36 (2) (aa).
On the basis of the abovementioned reasons, the Tribunal further accepts the applicant’s identity as is claimed.
Background
The applicant arrived in Australia from Malaysia as the holder of [temporary] visa [in] October 2015 and [in] February 2016 she applied for a Protection Visa (Class XA) visa and was also granted by the Department a bridging visa.
The applicant’s claims
The applicant’s claims can be summarised as follows:
§The applicant left Malaysia because the government is tracking members of the Bersih and imprisoning many of them;
§If the applicant returns to [Malaysia] she will be arrested, imprisoned and heavily fined; and
§There is no protection and nowhere to relocate.
The applicant also submitted to the Tribunal copies of documents pertaining to pending bankruptcy proceedings in Malaysia (as she alleged) and the applicant had concerns she wished to discuss with Tribunal about these proceedings and wished to incorporate them with her current claims.
The Tribunal consented to the applicant’s bankruptcy issues to form part of her overall protection claim.
The applicant also submitted to the Tribunal for its consideration the following documents:
§Statutory declaration dated 8 August 2017 declared by the applicant and attesting to debts owed by her to various banks in Malaysia
§Copy of bank statement from [a named] Bank dated [in] December 2016 of amounts owing by the applicant totalling RM[amount].
§Letter from [a business] in Malay (provided without an ‘English’ translation) dated [in] April 2017.
The applicant post-Hearing provided the Tribunal with the following documents[1] for the Tribunal’s consideration:
[1] AAT File no.1606575 Folios 40, 41, 42, 43, and 44
§An Australian Residential Tenancy Agreement
§A blood donor card (in the applicant’s name)
§Birth (Malaysian) Certificate of her son.
§Death (Malaysian) Certificate (ex-husband)
The Applicant’s – personal background
Prior to her arrival in Australia, the applicant [named] resides in a suburb of Kuala Lumpur, Malaysia. She has lived in Kuala Lumpur from 1990-2015 and from January 2001-2011, she was employed at a [named business]. Since 2011, she has been helping her [relative] with her [service] business. She is a single mother and has an adult son who is living independently in Malaysia
Also, in 2011 the applicant told the Tribunal that she joined the PKK Opposition Party, working as ‘volunteer.’
The applicant’s political involvement while in Malaysia
According to the applicant her political involvement while in Malaysia centred on the Bersih and its rallies. Her responsibility as a PKK Opposition “volunteer” was to gather people and to channel them to the Bersih rally so they can participate and lend support to the opposition’s political causes. The applicant confirmed for the Tribunal that she was not a ‘member’ officially of PKK Opposition but a ‘volunteer’. She became a volunteer in 2011.
The applicant told the Tribunal her problems began when people in her neighbourhood where she lived found out that she was recruiting people for the Bersih rallies. Eventually, news of her political alignment to the PKK reached the officials of the ruling government party, the UNMO and she was ‘treated badly’ and was warned ‘not to attend the Bersih rallies.’
The Tribunal asked the applicant – did she encounter any threats because of her political activities while in Malaysia? The applicant’s response was to tell the Tribunal that “…people do not like me because I am a supporter of PKK…” The applicant went on tell the Tribunal that she felt ostracised by her neighbours who live in the flat estate where she resides as most of the are ‘Malays’ and supporters of the ruling party in government. Also, the applicant confirmed for the Tribunal that she had not been assaulted but the “attitudes” of her neighbours did not help the situation.
The applicant was asked – did she consider moving to another housing estate? The Tribunal was told that relocation was not an option because she had limited financial means and was a single mother.
The applicant confirmed that her son is [age] years old and is living on his own and is working at [a named business] in Kuala Lumpur.
The Tribunal asked the applicant if her son had suffered any attacks or ridicule from neighbours because of the applicant’s political involvement with the PKK? The applicant told the Tribunal that her son has been asked about her whereabouts by people but he has told those who ask that he does not know where the applicant (his mother is). The applicant confirmed for the Tribunal that the local authorities have not subjected her son to any questioning or harassment because of his mother’s involvement with the PKK Opposition party and Bersih movement.
The applicant was asked when she decided to leave Malaysia for Australia in 2015 did she encounter any problems at the airport which could have been caused by her open support of the PKK Opposition? The Tribunal was told the applicant did not encounter any difficulties when leaving Kuala Lumpur International Airport. The applicant’s explanation for this was that she may have been actively involved in the activities of the PKK Opposition and in the Bersih movement but had not involved her in any violence. Moreover, when she attended political rallies she was “not at the forefront…”
What has the applicant been doing while here in Australia since 2015?
The applicant told the Tribunal she desired to be given ‘work rights’ to allow her to work in Australia. So far, all of her attempts to be provided for work rights have failed (but the applicant provided no evidence such attempts having been made). Nevertheless, in her time in Australia, the applicant worked as ‘volunteer’ at a local [agency] and is also waiting for some money to be provided to her from an International ‘NGO’. She also doing some housework for people with whom she resides and this allows her to earn some money to help her live while in Australia.
What problems will the applicant encounter if she was to return to Malaysia in the reasonably foreseeable future?
The applicant told the Tribunal “…I do not know what my status is…” and offered no other explanation or clarification.
The applicant’s bankruptcy issues
The applicant submitted to the Tribunal documents concerning her financial situation in Malaysia and informed the Tribunal that she faced in the Malaysian courts bankruptcy proceedings. The applicant explained to the Tribunal that she two personal loans one in the amount of [amount] ringgits and another in the amount of [larger amount] ringgits. She also has a credit card loan in the amount of [amount] ringgits. The applicant told the Tribunal that bankruptcy proceedings are pending because she has not made any monetary contributions towards any of these amounts to reduce the moneys owed.
The applicant told the Tribunal “…my problem is if I am given the right to work here (in Australia) I would be able to repay all my loans…” The applicant lamented that she had been in Australia for the past two years and had not received work rights.
The applicant was asked by the Tribunal if she wished to add anything further to what she had already told the Tribunal and the applicant’s response was “…I do not want to go back to Malaysia …”
The Tribunal provided the applicant with the a further period of time until Wednesday 30 August 2017 to provide the Tribunal with any further submissions and documents she would want the Tribunal to consider before making its decision.
Country Information – Malaysia – Political Opinion
In its Freedom in the World 2016 – Malaysia report, Freedom House provides an overview of Malaysia’s parliament and controversial 2013 parliamentary election:
The paramount ruler, the monarch and titular head of state, is elected for five-year terms by fellow hereditary rulers from 9 of Malaysia's 13 states. King Tuanku Abdul Halim Mu'adzam Shah was elected to the post in 2011. The role of the king is largely ceremonial.
Executive power is vested in the prime minister and cabinet. The leader of the coalition that wins a plurality of seats in legislative elections becomes the prime minister. The upper house of the bicameral Parliament, the Senate, consists of 44 members appointed by the king and 26 members elected by the 13 state legislatures, serving three-year terms. The House of Representatives, or Dewan Rakyat, has 222 seats; its members are elected by popular vote at least every five years.
The ruling National Front (BN) coalition won the 2013 parliamentary elections, capturing 133 seats in the lower house despite receiving only 47 percent of the overall popular vote. Among the main opposition parties, the Democratic Action Party (DAP) took 38 seats, the People's Justice Party (PKR) took 30, and the Pan-Malaysian Islamic Party (PAS) won 21. The opposition and observers accused the BN of electoral fraud, citing irregularities like phantom voting and power outages that occurred in vote-tallying centres in a number of constituencies that opposition parties hoped to win. Malapportioned voting districts and other structural flaws in the electoral system also favoured the ruling coalition. Following the elections, a People's Tribunal was held to record individuals' accounts of electoral problems. The resulting report, issued in March 2014, concluded that electoral irregularities contributed to the BN's victory.[2]
[2] Freedom House 2016, Freedom in the World – 2016, 14 July, p.2 < Accessed 18 August 2016 <NGE43874C422>
The People’s Tribunal was set up by BERSIH 2.0, a civil society organisation promoting clean and fair elections in Malaysia, after the Election Commission reportedly failed to act in response to its observers’ complaints of misconduct and violence during the election period.[3]
The Tribunal consisted of a panel of five high-level judges who examined complaints compiled and verified by a team of over 30 lawyers. Some 75 witnesses were heard including, ‘politicians, party officials, parliamentarian candidates, specialist NGOs, electoral experts, ordinary voters and many more’ over a five day period in September 2013.[4]
The Tribunal’s findings and observations on freedom to organise and campaign are as follows:
1. There is some reason to believe that the Registrar of Societies is not even-handed in treatment of government and opposition parties.
2. Unfortunately there was significant evidence that parties and candidates were not always free to campaign, that intimidation was found in some places, and that this was sometimes supported by official sources.
3. This evidence indicates not so much that the law restricts freedom to campaign, but parties, supporters and even officialdom obstruct the exercise of the freedom.
4. The victims of the obstruction of freedom to organise and campaign were mostly opposition candidates.[5]
[3] Maria Chin Abdullah 2014, The People’s Tribunal on GE13, New Mandala, 2 August < Accessed <CISBDC679D10073>
[4] Maria Chin Abdullah 2014, The People’s Tribunal on GE13, New Mandala, 2 August < Accessed <CISBDC679D10073>
[5] The Coalition for Clean and Fair Elections BERSIH 2014, Report of the People's Tribunal on Malaysia's 13th General Elections, 26 March, p. 34 < Accessed 16 September 2015 <CISBDC679D10074>
Furthermore, the Tribunal’s report stated, ‘that political parties and candidates, especially the ruling party coalition (BN), tended to seek power from the voters by using intimidation and coercion’. The report includes the following examples of violence, intimidation and obstruction:
Amani Williams-Hunt Abdullah, PKR candidate in Chenderiang, Perak, testified that he was prevented by RELA (Malaysia Volunteer Corps) from campaigning in an Indigenous (Orang Asli) village. The police took no action on his report.
Vasantha Kumar a/l Krishnan, PKR candidate for Tapah parliamentary seat, testified that BN campaigner B. Kalaivanar punched Loganathan, his assistant, attempted to attack Vasantha Kumar himself and another assistant, and threatened to kill another. He also testified that Murugan, a security officer and a supporter of PKR, received death threats by phone from a BN supporter, and was later found brutally murdered; no action had been taken thus far by the police to prosecute anyone…
Nurul Izzah binti Anwar, PKR MP for Lembah Pantai, said that her campaign was continuously subject to violence or threats of violence. Seven police reports were lodged by the victims but there was no action by the police. Rocks and eggs were thrown at speakers and supporters in a PKR rally, the wire of the public announcement system was cut, a party worker was injured during an assault in the election tent, her PKR volunteers were attacked, flags put up by volunteers were removed and workers were threatened…
In Tandek, Kota Marudu, Sabah, the BN instructed the village head to warn the community members not to receive any visitors…
Alfian Zohri bin Mohd. Tahir, a journalist for Free Malaysia Today, testified that he saw three banners with inflammatory content in Tebrau apparently created with the intention to incite violence [..] one poster said: ‘Malay supremacy would be threatened, and there was a Chinese figure doing something to a royal figure, if BN lost election.’
PEMANTAU observer Lee King Thim described what he had seen at a BN public rally. An UMNO speaker incited racial hatred by reminding Malay voters about the May 13, 1969 events where Chinese chased out the Malays, something that induces fear in the Chinese electorate and induces both Chinese and Malay voters to vote for BN to keep the peace.[6]
[6] The Coalition for Clean and Fair Elections BERSIH 2014, Report of the People's Tribunal on Malaysia's 13th General Elections, 26 March, p. 33-35 < <CISBDC679D10074>
In its Country Information Report – Malaysia DFAT reported on some incidents of violence in the lead-up to the 2013 national elections:
3.58 Instances of interparty and societal violence were reported in the run-up to the May 2013 national elections. A female campaign member for an incumbent opposition member was threatened with a machete by a BN coalition supporter in April 2013. In Penang, two men were assaulted by five unknown individuals when they were hanging opposition party flags. A bomb was set off at a BN rally in northern Penang in the lead up to the election. The Royal Malaysian Police investigated these events.[7]
[7] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 3.57, pp.15-16 <CIS38A80121311>

In January 2015, activist Hishamuddin Md Rais was convicted of sedition for his remarks as a speaker at a forum shortly after the 2013 elections. In lieu of a six months prison term he was fined RM5, 000. He and four others, including politicians Chua Tian Chang, Tamrin Ghafar and activists Adam Adli Abdul Halim, Haris Ibrahim and Muhammad Safwan Ananghad were charged for ‘inciting the public to overthrow the government through street protests.’ Muhammad Safwan was sentenced in September 2014 to 10 months imprisonment, while Adam Adli is serving a one-year prison term.[8]
[8] ‘Activist Hishamuddin Rais found guilty of sedition, fined RM5,000’ 2015, Malay Mail on line, 9 January, < > Accessed 10 August 2016 <CXBD6A0DE13602>
In its Freedom in the World 2016 – Malaysia report, Freedom House noted the government’s use of the Sedition Act against politicians and political activists who criticise the government:
In addition to the skewed electoral system, opposition parties face obstacles such as unequal access to the media, restrictions on campaigning and freedom of assembly, and politicized prosecutions. In recent years, politicians and political activists have increasingly been charged with sedition and other criminal offenses for criticizing the government or organizing demonstrations. PKR leader Anwar Ibrahim has been dogged by claims that he "sodomized" a male aide in 2008, a charge seen as politically motivated. He was acquitted in 2012, but the Court of Appeal reversed that verdict and sentenced him to five years in prison in 2014. The Federal Court, Malaysia's highest court, confirmed the sentence in February 2015. Anwar's daughter, lawmaker Nurul Izzah Anwar, was arrested on sedition charges and temporarily detained in March after she criticized the judiciary in Parliament for its handling of her father's case. At least two members of Parliament were formally charged with sedition later in the year for making similar remarks.[9]
[9] Freedom House 2016, Freedom in the World – 2016, 14 July, p.3 <> Accessed 18 August 2016 <NGE43874C422>
In its World Report 2016, Human rights watch noted the use of the Sedition Act against opposition parliamentarians during 2015. Furthermore, amendments to the Sedition Act resulted in increased penalties for violations:
The biggest threat to free speech remains the Sedition Act, which has been used to prosecute those who criticize the government or the judiciary, or make remarks the government considers to be derogatory toward the sultans (traditional Malay state rulers) or disrespectful of religion.
The Federal Court rejected a constitutional challenge to the law in October. More than 33 people, including seven opposition parliamentarians, have been charged with sedition since 2013. Parliamentarians who receive fines of more than 2,000 Malaysian ringgit (US$475) or are sentenced to more than a year in prison lose their seats and are banned from politics for five years.
In April, the ruling Barisan Nasional, or National Front, coalition passed amendments to the Sedition Act to increase the penalties for violations and to make it easier to use the law against online speech. The amendments created a new offense of “aggravated sedition,” providing a penalty of up to 20 years in prison for “seditious” statements that result, even indirectly, in harm to property or bodily injury. The strengthening of the law was a major reversal by Prime Minister Najib Razak, who had repeatedly promised to revoke the Sedition Act and replace it with what he called a Harmony Act.[10]
[10] Human Rights Watch 2016, World Report 2016, 28 January, p.388 < Accessed <NGE43874C32>
In 2016 Freedom House reported that restrictions in the freedom of the media where noted during the reporting period, in particular relating to the IMDB scandal:
Freedom of expression is constitutionally guaranteed but restricted in practice. The 1984 Printing Presses and Publications Act was amended in 2012, retaining the home minister's authority to suspend or revoke publishing licenses but allowing judicial review of such decisions. In July 2015, the Edge newspaper received a three-month suspension over its coverage of the 1MDB scandal; a court lifted the suspension in September.
Most private publications are controlled by parties or businesses allied with the BN, as are most private television stations, which generally censor programming according to government guidelines. State outlets reflect government views. Books and films are directly censored or banned for profanity, violence, and political and religious content. Publications often face harassment from the government; police raided the offices of two online newspapers in November 2015 over alleged defamation in their corruption coverage.[11]
[11] Freedom House 2016, Freedom in the World – 2016, 14 July, p.4 < Accessed 18 August 2016 <NGE43874C422>
In July 2015 the Home Ministry suspended the licensing permits of The Edge Financial Daily and The Edge Weekly for a period of three months and blocked an online publication, Sarawak Report, after they published ‘a series of reports exposing corruption in a government-managed investment company that implicated Prime Minister Najib Razak.’[12] The Ministry deemed the reports to be, ‘prejudicial or likely to be prejudicial to public order, security or likely to alarm public opinion or is likely to be prejudicial to public and national interest.’[13]
[12]‘Malaysia Silences the Press Amid Corruption Scandal’ 2015, The Diplomat, 29 July < Accessed 10 August 2016<CXBD6A0DE13610>
[13] ‘Malaysia Silences the Press Amid Corruption Scandal’ 2015, The Diplomat, 29 July < Accessed 10 August 2016 <CXBD6A0DE13610>
The USDOS reported in 2016 that ‘[a]uthorities used the law prohibiting sedition to combat dissenting views online’ and ‘charged human rights lawyer Eric Paulsen for a Twitter post criticizing the Malaysian Islamic Affairs Development Department’.[14]
[14] US Department of State 2014, International Religious Freedom Report for 2013 – Malaysia, 28 July, section 2.a, p.12 < <OG
In 2016 Freedom House reported on the government’s use of defamations laws, the Official Secrets Act, and the Sedition Act against some individuals who express criticism of the government through the use of media and communications:
The internet has emerged as a primary outlet for free discussion and the exposure of political corruption, but the Malaysian Communication and Multimedia Commission monitors websites and can order the removal of material considered provocative or subversive. A 2012 amendment to the 1950 Evidence Act holds owners and editors of websites, providers of web-hosting services, and owners of computers or mobile devices accountable for information published through their services or property. The government engages in legal harassment of bloggers, activists, academics, students, lawyers, and journalists who post critical content, charging them under defamation laws, the Official Secrets Act, and the Sedition Act, all of which include imprisonment as a possible penalty. At least 91 people were arrested, charged, or investigated for sedition during 2015, according to Amnesty International. In one prominent case, the political cartoonist Zulkiflee Anwar Haque (Zunar) was charged in April for his criticism of the Anwar sodomy conviction on social media.[15]
[15] Freedom House 2016, Freedom in the World – 2016, 14 July, p.4 < Accessed 18 August 2016 <NGE43874C422> 54B5446107>
In 2016 Human Rights Watch reported that the government also used the Printing Presses and Publication Act ‘to ban “any yellow coloured clothing” bearing the logo of the Coalition for Free and Fair Elections (known as Bersih, meaning “clean” in Malay) and any publications about the planned Bersih rally’.[16] According to the report:
Despite the ban, which came into effect two days before a major rally Bersih organized in downtown Kuala Lumpur, tens of thousands of people wore yellow Bersih t-shirts to the peaceful 34-hour rally August 29 to 30. The government has instituted criminal investigations of several opposition politicians for wearing Bersih t-shirts.[17]
[16] Human Rights Watch 2016, World Report 2016, 28 January, p.389 < <NGE43874C32>
[17] Human Rights Watch 2016, World Report 2016, 28 January, p.389 < <NGE43874C32>
166 Human Rights
Human Rights Watch also noted the application of ‘the Printing Presses and Publication Act to bank publications “likely to be prejudicial to public order”or“likely to alarm public opinion”’. The Printing Presses and Publication Act was invoked to suspend two newspapers over 1MDB reporting:
The government continued to use the Printing Presses and Publication Act (PPPA) to suppress publications and limit content. The PPPA requires all publishers to obtain a license and enables the government to ban publications “likely to be prejudicial to public order,” or “likely to alarm public opinion.” In July, the Ministry of Home Affairs used the PPPA to suspend the publication of two newspapers for three months after they reported on allegations of corruption involving the government-owned investment fund 1 Malaysia Development Berhad (1MDB), whose board of advisors is chaired by Prime Minister Najib. The High Court overturned the suspension in September.[18]
[18] Human Rights Watch 2016, World Report 2016, 28 January, pp.388-389 < <NGE43874C32>
According to its Country Reports on Human Rights Practices for 2015 – Malaysia, the USDOS reported ‘at least 14 individuals’ were charged with sedition during 2015.[19]
[19] US Department of State 2016, Country Reports on Human Rights Practices for 2015 – Malaysia, 13 April, section 2.a, p.10 < Accessed 16 August 2016 <OGD95BE926273>
DFAT assess in its 2016 Country Information Report – Malaysia that protesters involved in Bersih rallies ‘face a low risk of arrest.[20] According to the report:
3.65 DFAT assesses that protesters face a low risk of arrest when engaged in political rallies. Such individuals have commonly been released on bail shortly following their arrest. High-profile organisers of political rallies face a moderate risk of official discrimination and could be charged under the Peaceful Assembly Act or the Criminal Code.[21]
FINDINGS
[20] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 3.65, p.16 <CIS38A80121311>
[21] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 3.65, p.16 <CIS38A80121311>
The question of the applicant’s credibility
The Tribunal is aware of the importance of adopting a reasonable approach in 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 (see, The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph 196). However, the Handbook 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 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 (199) 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 Beaumount J; Selvadurai v MIMEA & Anor (1994) 34 ALD 347 at 348 per Heerey J, and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal accepts that the applicant has accumulated number debts owing to various banks in Malaysia in the amounts of [amount], [amount] and [amount] ringgits and may face bankruptcy proceedings in Malaysia. The Tribunal also accepts that based on the country information Malaysian citizens like the applicant do choose to associate with certain political parties and organisations in Malaysia and do from time to time choose to express their disagreements with stated government policy via their participation and involvement in mass demonstrations. However, the applicant’s version of events as submitted to the Tribunal at the hearing raises certain issues of credibility.
First, the applicant told the Tribunal her involvement with the PKK Opposition and the Bersih commenced in 2011. The applicant was not a member of the PKK but had involved herself as a ‘volunteer’. As a volunteer, the applicant told the Tribunal she was responsible for informing citizens of public meetings and rallies and then ensuring that they attended on a given date. This activity, according to the applicant was noticed by local UNMO party officials and they ‘warned her’ against being involved. The applicant also told the Tribunal that she was ostracised by her neighbours but was never assaulted or harmed. Indeed, the applicant’s claims of receiving warnings from government/party officials and the ostracism of her neighbours because of her open support for PKK and Bersih may have disturbed the applicant but did not cause her fear for her safety or well-being. In her evidence to the Tribunal the applicant admitted that she continued to reside in a government owned flat and was surrounded by pro-UNMO Party/Government supporters but her life continued until she decided to leave for Australia in 2015. Therefore, the Tribunal finds that the applicant’s claims of being threatened by government party members and ostracised by her pro-government neighbours while continuing to live in her government-owned flat as lacking substance and credibility. The very fact that she chose to remain in same place for almost four years even though all knew of her political affiliations despite warnings and ostracism suggests to the Tribunal that applicant faced minimal threats or danger because of her willingness to exercise her freedom of expression and to participate in the political life of her country, Malaysia.
Second, the applicant told the Tribunal that she had to leave Malaysia because her political involvement made it difficult for her to live there. Her political activities made it difficult for her to do – having received warnings from her political party’s opponents. However, the applicant was able to leave Malaysia on a valid travel document issued by the Malaysian government and departed Kuala Lumpur International Airport without any questions being asked of her due to her volunteer work she had carried out in previous years for the Opposition-PKK Party and Bersih. Moreover, DFAT country information assesses that protesters face a low risk of arrest in Malaysia when engaged in political rallies. Only high-profile organisers of political rallies faced a moderate risk of official discrimination and could be charged under the Peaceful Assembly Act or the Criminal Code. Therefore, the Tribunal finds that the applicant’s fears of return to Malaysia and being subject to government attention because of her past political activities are not credible. The applicant faced no delays or had to explain her reasons for departing Malaysia to the authorities upon her departure for Australia on 2015 and therefore would not face any impediments or would have a well-founded fear of persecution if she was to return Malaysia in the reasonably foreseeable future pursuant to s.5J(1)(a) of the Act.
Third, the applicant told the Tribunal that she did not wish to return to Malaysia because she was facing a number of court proceedings for debts unpaid and could possibly be declared a bankrupt. Indeed, the applicant made the admission to the Tribunal that “…if I am given work rights here (in Australia) I would be able to repay all my loans…” As mentioned in the paragraph [58] the Tribunal accepts that the applicant has some very pressing issues concerning her personal finances and her future financial status in Malaysia. There is nothing in her evidence she presented to the Tribunal to suggest that she would not be able to access the legal system in Malaysia and attempts to represent her defence in bankruptcy proceedings. On this, the Tribunal is guided by DFAT assessments of the Malaysian judicial system. According to the country information “the ability for individuals to seek legal redress through the Malaysian courts is mixed… However, the majority of cases in Malaysian civil courts are processed with the rule of law and legal procedure.”[22] Therefore, the Tribunal does not find as credible the applicant’s claim that she would not be able to prosecute her defence to any claim brought against her in bankruptcy within the Malaysian judicial system because of her past or current political involvement or support and work as a volunteer for the PKK-Opposition or the Bersih movement.
[22] Department of Foreign Affairs and Trade Country Information Report – Malaysia, 19 July 2016, at p.26.
For the reasons given in paragraphs 59 and 61above, the Tribunal does not accept that the applicant was forced to flee Malaysia for her political opinions, as she has claimed, nor that there is a real chance that she will face persecution involving serious harm because she chose to involve herself as a volunteer in gathering people to attend the demonstrations against the Malaysian government organised by the PKK- Opposition and Bersih in 2011 or that she would be unable to defend herself in the Malaysian courts in proceedings for bankruptcy because of present or past political beliefs and affiliation if she returns to Malaysia now. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Migration Act (as amended).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect to whom Australia has protection obligations under s.36 (2)(a).

The Tribunal having concluded that that the applicant does not meet the refugee criterion in s.36 (2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the reasons given in paragraphs 59 and 61 above, the Tribunal does not accept that the applicant was forced to flee Malaysia for her political opinions, as she had claimed, nor that there are substantial grounds for believing that, as necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm because he chose to act as a volunteer to get participants at the public rallies protesting against the Malaysian government or that she would be unable to defend herself in the Malaysian courts in proceedings for bankruptcy because of her present or past political beliefs and affiliation to PKK-Opposition and Bersih if she returns to Malaysia.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2) (aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
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.
…

[2017] AATA 1968

7 September 2017

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