1607223 (Refugee)

1607223 (Refugee) [2018] AATA 1424 (29 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1607223
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Brendan Darcy
DATE:29 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 March 2018 at 2:54pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Political opinion – Bersih group – Malaysian Islamic Party – Attended Bersih rallies – Employment – Intimidation of political opponents – Credibility issues
LEGISLATION
Migration Act 1958, ss 5(1), 5J-5LA, 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
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
MZZIA v MIBP [2014] FCCA 717
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 17 May 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 the Federation of Malaysia, applied for the visa on 17 February 2016. The delegate refused to grant the visa on the basis that there was a lack of evidence to support the applicant’s claims.
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
The applicant claimed to be born on [date] in Kuala Terengganu in the Malaysian state of Terengganu and claimed to be a citizen of the Federation of Malaysia.
On the departmental file ([number]) is a certified copy of the applicant’s valid passport issued by the Malaysian authorities [in] 2015.
The applicant arrived in Australia on 27 November 2015 while holding a [temporary] visa. On 17 February 2016, the applicant lodged an application for a class XA subclass 866 protection visa and was granted an associated bridging visa.
According to the applicant’s 866 forms submitted at the time of application, the applicant claimed to be able to speak, read and write English and Bahasa Malaysia; that his ethnicity is Malay and that he identified religiously as a Muslim. The applicant further claimed he began but did not complete a course work in [subject] but that he had never worked.
The applicant claimed he has never married, been engaged or been in a de facto relationship.
According to his poorly-written claims outline in the 866C form, the applicant is owed Australia’s protection obligations for the following reasons:
·     The applicant claimed he departed Malaysia because the government was looking for him;
·     The applicant claimed he was a member of the Bersih group which is opposed to the unfair election system in Malaysia;
·     If the applicant were to return to Malaysia, he will be arrested, imprisoned and forced to pay a heavy fine, as the authorities are looking for anyone who joined the Bersih group; and
·     There is no state protection as the police are part of the government and there is nowhere for him to relocate as the police could find him anywhere.
After the delegate refused to grant the applicant a protection visa, he validly applied to have that refusal decision reviewed by the Tribunal on 20 May 2016.
On 8 September 2017, the applicant provided oral evidence and presented arguments that he is owed Australia’s protection obligations. The applicant was assisted by an interpreter in the Bahasa Malaysia and English languages.
The applicant was provided with an additional opportunity to submit documents to substantiate his claims with regards to photographic evidence and to provide any additional claims. Right up to the time of writing this decision, the Tribunal has not received any further evidence or submissions of any kind from the applicant or on his behalf.
Country Information
The Department of Foreign Affairs and Trade report states the following about the opposition.
Political Opposition Members
3.53 A small number of high-profile opposition leaders or organisers have faced official harassment through the application of Malaysian law, particularly the Peaceful Assembly Act (PAA), Sedition Act, Criminal Code and occasionally, sodomy or corruption charges.
3.54 Since 1999, a series of legal cases have been pursued against Datuk Seri Anwar Ibrahim, the former deputy prime minister and former leader of the opposition coalition Pakatan Rakyat (People's Alliance). He was convicted of sodomy for a second time and sentenced to five years' imprisonment in 2015. Credible local and international sources have concerns about the lack of procedural fairness applied in Anwar's case. In November 2015, the UN Working Group on Arbitrary Detention found that Anwar's imprisonment was arbitrary and called for his immediate release. The Malaysian Government stated that Anwar would not be released as he was convicted of a crime and his detention was not political.
3.55 The PAA was used to charge eight individuals involved in the 28 February, 21 March and 28 March 2015 '#KitaLawan' protests held in support of Anwar Ibrahim. Those arrested included members of the opposition People's Justice Party (PKR) and organisers of the Bersih rallies (see 'Political Rallies' below). In February 2014, Karpal Singh, Anwar's lawyer and former National Chairperson of the opposition Democratic Action Party (DAP), was convicted of sedition for a second time.
3.56 On 29 June 2016 the Chief Minister of Penang and senior Opposition figure, Lim Guan Eng, was arrested and charged with corruption. If convicted, Lim would be prevented from contesting the next general election.
3.57 Politicians who have spoken publicly about the 1MDB corruption scandal have faced repercussions. Former UMNO division leader, Khairuddin Abu Hassan, was arrested on 19 September 2015 under the SOSMA. Hassan had contributed evidence to international 1MDB investigations. The Inspector General of Police accused Hassan of sabotaging Malaysia. In October 2015, Parliamentary Leader of the DAP, Lim Kit Siang, was suspended from parliament for six months for refusing to retract his comment that the Parliamentary Speaker was intentionally delaying the Public Accounts Committee's investigation into 1MDB corruption claims. Opposition Members of Parliament Nurul Izzah Anwar and Tony Pua were investigated under the Penal Code for their alleged role in acquiring documents related to 1MDB. Pua has been banned from undertaking international travel. If convicted and sentenced to more than one year in prison or fined more than RM2,000, Members of Parliament are disqualified from serving in parliament for five years after their release from a term of imprisonment.
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.
3.59 DFAT assesses that political opposition and dissent, particularly direct criticism of the government, can result in legal harassment, detention and even prosecution. While opposition party members are able to undertake political activities on a day-to-day basis they do report an increase in self-censorship and DFAT assesses that they face a low level risk of official discrimination. High-profile opposition leaders face a moderate level of official discrimination. While a spike in interparty and societal violence occurred in connection with the 2013 elections, such incidents are not a common occurrence and individuals with political affiliations do not live in fear of violence on a day-to-day basis.
FINDINGS AND REASONS
Country of nationality
The applicant claimed to be a citizen of the Federation of Malaysia and provided copies of his passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Credibility
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.)
The Tribunal has also considered the published guidelines of the AAT MR Division in relation to credibility.
2.4 Findings made by the Tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the member's subjective belief or gut feeling about whether an applicant is telling the truth or not. A member should focus on what is objectively or reasonably believable in the circumstances.
2.5 The Tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
2.6 In relation to protection visa matters, if the Tribunal is not able to make a confident finding that an applicant's account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant's account of past events is true. If, on the other hand, the Tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct. The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant's claim for a protection visa. For example, when assessing an applicant's claims against the Refugees Convention, if an applicant is disbelieved as to his or her claims, the Tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the Tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out
Accepted Claims
During the scheduled hearing, the applicant elaborated about his personal experience.
The applicant made a limited number of claims about his circumstances that the Tribunal has considered to be credible. They include:
·The applicant was born [in year] in the Malaysian state of Terengganu;
·The applicant’s parents continue to reside in Malaysia and that he has [number] siblings, with [number] of them still of school age, as claimed in the scheduled hearing;
·The applicant’s father who is [an occupation] had a number of health problems seven years ago but has since returned to work; as claimed in the scheduled hearing;
·The applicant has travelled to [another country] in 2010, as claimed in the scheduled hearing;
·The applicant has never married, been engaged or in a de facto relationship; and that he has no children;
·The applicant is ethnically Malay, who speaks reads and writes Bahasa Malaysia; and that he is a Muslim; and
·The applicant completed his secondary school studies and that he began but did not complete a course in [subject]. It is also accepted that he has worked in a [business] prior to his departure from Malaysia to Australia;
Political Opinion Claims
During the scheduled hearing, the applicant elaborated on his written claims that he was owed protection due to his political opinion. He claimed that he had been to Bersih rallies in the past, including in 2006 at the first Bersih rally when he was [age] years of age. When the Tribunal noted that the applicant was only [age] years of age in 2006 and enquired into the reason he attended the rally, the applicant responded that his relatives took him to the rally but he was not worried about his 2006 attendance as a person of interest and during and after which he claimed not to have been detained. The applicant claimed that he was from a Malaysian Islamic Party (PAS) village and family.
The applicant further elaborated that the was more concerned about his attendance at the August 2015 Bersih 4.0 rally in Kuala Lumpur; stated that he was not arrested, detained or fined but heard rumours of participants being arrested and detained and feared for his safety. The applicant explained that that PAS was one of the organisations supporting PAS and that he had formal PAS membership. Due to his fears of being harmed by the authorities, the applicant claimed he moved from his home state of Terengganu between August and his departure from Malaysia to Australia in November 2015.
Asked about his political views and understanding of the Bersih rally, the applicant explained that the rallies were against the ruling coalition of Barisan Nasional (BN). He added that PAS and BN were both for the Syariah (or Sharia) law in Malaysia but BN tolerates alcohol, gambling and prostitution and that PAS will genuinely uphold the Syariah laws. While the applicant was not able to mention any of the non-government organisations supporting Bershi rallies, he was aware of the high profiled human rights lawyer, Ambiga Sreenevasan, as a leader. He also mentioned Mohamad bin Sabu (or Mat Sabu) a former PAS deputy president, as a high profiled and outspoken supporter (which is the case). DFAT reports that the Pan-Malaysian Islamic Party (PAS) has sought to apply hudud in Malaysia, a hard-line interpretation of the ancient Islamic penal code that prescribes corporal and capital punishment for ‘moral’ crimes, including amputating the hands of thieves, lashing fornicators and applying capital punishment for apostasy.
DFAT reports that protests and demonstrations occur from time to time, including the peaceful ‘Bersih 4’ (Coalition for Clean and Fair Election) rallies in August 2015. The pro-government ‘red shirt’ rally held in response to Bersih 4 was aggressive but police quelled the protest with water cannons before it became violent. The Royal Malaysia Police Special Branch Counter-Terrorism Division has disrupted several domestic terror plots. Malaysia’s law-enforcement and counter-terrorism agencies are willing and capable of acting against extremist and terrorist suspects.

In this case, the Tribunal accepts that the applicant and many of his relatives are supporters of PAS and that he is a member of the PAS, as claimed. It is accepted that the applicant has some anti-government opinion towards the ruling BN but those criticisms are limited to a perceived tepid enforcement of Malaysia’s Syariah laws and the toleration of immoral practices. Noting the country information above which states incidents of inter-party rivalry are not a common occurrence and individuals with political affiliations do not live in fear of violence on a day-to-day basis, this strongly indicated to the Tribunal that the applicant does not face a real chance of serious harm arising from this PAS membership, in of itself.
However, the Tribunal has credibility concerns that the applicant had not been in attendance in any Bersih rallies. Firstly the applicant was unable to mention that the former prime minister, Dr Mahathir Mohamad – the most high profile member at the rally. Curiously the applicant responded that he had read it on facebook but was unsure if it was true. This invited the Tribunal to query the applicant that had been at the 2015 rally he would have been aware of the former prime minister’s high profiled attendance. The applicant responded that he was not close to the front of the rally and people were very noisy. The Tribunal finds that someone claiming to attend this particular rally was unaware or unsure of Dr Mahathir’s attendance to be far-fetched. Secondly, the applicant was unable to provide any photographic or other documentary evidence. During the hearing, the applicant claimed he had photographs of his attendance at a Bersih rally but there were on an old phone. When the Tribunal enquired whether the applicant had photos on his facebook account, the applicant responded that he does. The Tribunal provided additional time for the applicant to submit this evidence by 13 September 2017; however the applicant did not submit any further documents at all by this date or right up to the time of making this decision; neither did the applicant provide any explanation for the lack of documentary evidence. The Tribunal places significant weight on this lack of non-responsiveness, given he claimed to have available photographs on his facebook account. Thirdly, the Tribunal finds that the applicant’s reasons for attending the rallies he claimed a party loyalty with PAS and did not mention the widespread concerns about unfair elections. Fourthly, the Tribunal finds it far-fetched that the applicant had been to any 2006 rally when he was [age] years of age, in the context of these other adverse credibility concerns. Furthermore, as discussed during the hearing, only high profile members and organisers of the Bersih movement have been subject to arrest, detention or fines for their participation, further indicating that the applicant did not have a urgent or deep or even genuine fear of persecution due to his attendance at such rallies in the past. The applicant also undermined his claims that he feared being targeted by the authorities when it was pointed out that he was able to depart Malaysia without being apprehended, to which the applicant responded that he was not a person of interest, just that he had that an aroused fear based on rumours.
The Tribunal also credibility concerns that the applicant did not leave his home state of Terengganu arising from his fears of being arrested or detained following his attendance at a 2015 Bersih rally. Firstly it is it far-fetched and fanciful to insist that the government would target ordinary PAS members. As discussed in the hearing, PAS is a lawful part of the opposition. There are media reports of only a handful of high profiled PAS members being arrested or detained for their lawful anti-government political opinions (including Mat Sabu under the Internal Security Act). Secondly, it is noted that the applicant’s passport was issued in Kuala Terengganu strongly indicating that the applicant was in his home state in the weeks prior to his departure and that he had relocated to another state, as claimed in the scheduled hearing.
When cumulatively considering the credibility concerns, the Tribunal finds the evidence of the applicant’s August 2015 attendance at a Bersih rally and his subsequent fears of being a person of interest to have been inconsistent, unpersuasive and far-fetched which were further undermined by the lack of supportive country information and documentary evidence to support his claims. Furthermore while the Tribunal accepts that the applicant is a PAS supporter and member and has some genuine anti-government views as claims, he did not demonstrate any deeply held anti-government views. As the Tribunal’s credibility concerns are so considerable, it is unable to provide the applicant the benefit of the doubt about the critical but unpersuasive claims pertaining to being a person of interest based on his attendance at a Bersih rally. Accordingly, the Tribunal does not accept the applicant ever attended any rallies organised by Bersih in the past and that he ever relocated from his home state after hearing rumours that attendees were arrested or detained. Neither does it accept the applicant ever had any documentary or photographic evidence about his participation in political rallies as he did not attend any in the past. It finds that the applicant contrived these claims solely for migration purposes and not because he had any genuine personally held fears of harm due to his political opinion, imputed or otherwise.
The applicant also made an additional claim that he will experience systematic discrimination if he returns to Malaysia based on his political opinion. In particular the applicant argued that his pro-PAS support stopped him from gaining a government job and that he had applied for the fire brigade and public service agencies. The Tribunal enquired whether anyone said he was unsuccessful in his job applications do to his political opinion, to which the applicant replied ‘no’ but added that due to his village being a well-known PAS village that would explain why he and some his friends were unsuccessful. He also stated that he may have been unsuccessful due to his slight build (which was apparent to the Tribunal during the scheduled hearing) and because he did not complete any trade qualifications. When the Tribunal enquired if he could relocate to a state where the government was run by PAS such as Kelantan, the applicant claimed that he could. In assessing these comments in the context of the political opinion claims lacking in credibility, the Tribunal finds that these specific claims about struggling to find desirable work in the public service in his home state of Terengganu or anywhere else within Malaysia, due to his political opinion, to have been speculative and unpersuasive. For these reasons the Tribunal finds that these specific claims about employment discrimination based on political opinion, imputed and actual, lack credibility and were contrived to augment his otherwise weak claims for protection.
Having consider all the specific claims about the applicant’s political opinions, both imputed and actual, the Tribunal finds that the applicant does not have a real chance of serious harm arising from his contrived attendance and activities at a political rally in late August 2015 or his actual support or membership of PAS or that he is a person of interest to the authorities or subject to employment discrimination, if he were to return to either his home state of Terengganu or Malaysia more generally, now and into the reasonably foreseeable future. Based on the same credibility findings about the applicant’s political opinions, the Tribunal does not believe there are substantial reasons for it to believe the applicant will face a real risk of significant harm of any kind as a necessary and foreseeable consequence of being removed from Australia to the applicant’s country of reference.
Accordingly, in this regard, the applicant does not satisfy the criteria for ss.36(2)(a) and 36(2)(aa), if he were to return to Malaysia.
Residual claims
Although the Tribunal finds the applicant had contrived his fears arising from economic discrimination based on his political opinion, for completeness the Tribunal identified a strong thread of oral evidence that the applicant has a genuine personally-held fear that he will face significant economic hardship, if he returned to Malaysia.
However, although it is accepted that applicant has struggled to find suitable work and that he has not finished a qualification, it does not accept that as an unmarried man with no children and who is relatively young, motivated and fit, will not be able to find work or generate income in returning to Malaysia. Neither does it accept that he cannot return to Malaysia and complete a trade certificate, either as an apprentice or with a student loan. It is noted that he does not want to relocate to Kuala Lumpur or another large city as he likes the urban areas. He also expressed his frustration that if one is rich they gain the jobs. These responses, however, do not indicate that the applicant’s economic difficulties amount to the applicant having a well-founded fear of persecution if the applicant were to return to Malaysia. Furthermore the applicant has the support of his immediate and extended family. Based on the applicant’s educational and economic circumstances, the Tribunal accordingly finds that the applicant will face some challenges in advancing his qualifications and finding work, but these difficulties do not amount to the applicant faces a real chance of serious harm as the harm does not amount to significant economic hardship or a denial of that would satisfy one of the harm non-exhaustively listed in s.5J(5) or s.5J(4) as there harm is not directed towards the applicant for any reasons mentioned in s5J(1)(a).
The Tribunal has considered if there are any reasons to substantial reasons to believe, the applicant will face a real risk of significant harm arising from the applicant’s economic circumstances as contemplated by s.36(2)(aa). Significant harm is different from the concept of serious harm as required by 91R(1)(b)/s5J(4) in the context of s.36(2)(a).[1] The Tribunal has already made a finding that the applicant has the capacity and inclination to find work anywhere in Malaysia and does not face a real chance of serious harm based on these specific claims. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work to support himself and from advancing his qualifications, it does not accept the applicant will not be able to access paid employment or access a trade certificate anywhere in Malaysia, as a necessary and foreseeable consequence of being removed from Australia or that those challenges amount to significant harm as required by s36(2A). Furthermore the Tribunal finds there is no intention on the part of the governing of the Malaysian economy in combination of market forces to inflict significant harm, including subjecting the applicant to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to the applicant’s country of reference. Based on the applicant’s educational and economic circumstances as a whole, the applicant does not satisfy s.36(2)(aa).
[1] In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller, 16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g. a risk of being killed is sufficient to fulfil both: at [34].
At the beginning and at the end of the hearing, the applicant claimed that he another reasons he could not return to Malaysia but he could not remember it. The applicant did not advance on this claim in a post hearing response despite having the opportunity to do so. As it cannot delay its decision making responsibilities indefinitely, the Tribunal has decided to proceed with its decision making.
The Tribunal notes that the applicant did not advance any claims that he faces a real chance of serious harm based on his religion, his ethnicity or any other reason that would satisfy s.5J(1)(a) or any other reason at all. Accordingly, the Tribunal finds there are no more residual claims to consider in this review application.
Having assessed all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s.5J(1)(a),(b) or (c), if he is returned to the Federation of Malaysia, and does not satisfy the criterion in s.36(2)(a).
Having assessed all of the applicants’ claims, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Federation of Malaysia there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subject to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treating or punishment, pursuant to s.36(2)(aa) of the Migration Act.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s.5J(1)(a), (b) and (c). Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
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 1424

29 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing