1608577 (Refugee)

[2017] AATA 3128

1608577 (Refugee) [2017] AATA 3128 (4 September 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608577

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Colin Huntly

DATE OF ORAL DECISION:  4 September 2017

DATE OF DECISION:  4 September 2017

DATE CORRIGENDUM

SIGNED:14 May 2018

PLACE OF DECISION:  Perth

AMENDMENT:  The following corrections are made to the decision:

Delete Paragraph “2” and insert as follows:

“2. At the hearing on 4 September 2017 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.”

Dr Colin Huntly
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608577

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:          4 September 2017 at 3:55 pm (WA time)

DATE OF WRITTEN RECORD:                16 October 2017

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 16 October 2017 at 3:47pm

CATCHWORDS

Refugee – Protection Visa – Malaysia – Political opinion – Participation in anti-government protests – Particular social group – Returnees – Country information does not support applicant’s claims – Credibility issues – Ulterior reasons for applying for protection visa – Claimed fear of harm not genuinely held – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 May 2016 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on [insert hearing date] the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

3. The applicant appeared before the tribunal on 27 July 2017, and again on 4 September 2017, to give evidence and present arguments.  The applicant was not represented in this application by a registered migration agent.

   APPLICATION IDENTITY

4. The applicant, who claims to be a national of Malaysia, applied for the visa on 10 September 2015, and the delegate refused to grant that visa on 18 May 2016.  The applicant arrived in Australia on 13 September 2013 as the holder of a UD-601 Visitor’s ETA visa.  The tribunal has had regard to the Departmental files and the information on which the decision of the delegate, relating to identity, was based.  The tribunal has also had the advantage of interviewing the applicant in person in addition to reviewing the applicant’s Malaysian passport, which was issued in [District 1] [in] 2015, and bears the same identifiers as the applicant.

5. Accordingly, on the basis of the foregoing evidence, the tribunal finds that the applicant is a national of Malaysia, and was born on [a particular date]. Having established the applicant’s identity to the tribunal’s satisfaction, the tribunal finds that the receiving country with respect to the applicant is Malaysia. The tribunal also finds that the application does not have a current right to enter and reside in any other country other than Malaysia. Accordingly, section 36(3) of the Act does not apply to him.

   STATEMENT OF DECISION AND REASONS

6. The tribunal was assisted in its review by being provided, by the applicant, with a copy of the decision which was made by a delegate of the Minister in the first instance, and which is the subject of this review.  The tribunal notes that the applicant’s primary claim for protection rests on persecution for the essential and significant reason of his political views, specifically relating to a protest he participated in against [a particular government policy in] 2015, and that such persecution would apply to him if he was to return to Malaysia now or in the reasonably foreseeable future. 

7. The tribunal has considered whether or not there is a real chance of persecution to the applicant, now or in the reasonably foreseeable future, if the applicant was returned to Malaysia, for the essential and significant reason of his political views in connection with that protest. 

8. In addition, the tribunal has also considered the applicant’s membership of the particular social group, returnees. 

9. The tribunal has also considered the applicant’s complementary protection claims. 

10. The tribunal expressly accepts the delegate’s discussion of country information contained in their record of decision, and in general terms adopts it as the tribunal’s own, to the extent that it accords with the following additional country information.  The tribunal has had regard DFAT Country Information Report on Malaysia, which is dated 19 July 2016.  In particular, the tribunal notes that this publication discusses the treatment of returnees at [5.20].  The tribunal has, in addition, had regard to the DIBP publication entitled “Malaysia:  Common Claims”, produced by the COISS division of the Department, which is dated 1 September 2016. 

11. The tribunal notes that, if it makes findings that an applicant’s claims are not credible, that may lead to the conclusion that the tribunal does not believe the applicant had a genuinely subjective fear of harm.  Judicial authority provides that, in such cases, the tribunal is not required to proceed to assess other aspects of the applicant’s claims.  The tribunal notes that it will not be sufficient that a person has a real chance of being persecuted only in a particular part of a receiving country. 

12. Under section 5J(1)(a), the real chance of persecution must relate to all areas of the receiving country. A person will be taken not to have a well-founded fear of persecution if effective protection measures are available to the person in the receiving country. The circumstances in which effective protection measures are available to a person are set out in section 5LA of the Act.

    APPLICANT’S CLAIMS

13. The applicant’s claims for protection are summarised in the delegate’s record of decision.  This has been discussed with the applicant at the hearing, and the applicant states that these claims are an accurate reflection of his claims for protection.  These are as follows:

    He fled to Malaysia after being involved in anti-government protests with [a friend], [Mr A]. 

    [Mr A] was his [friend] since 2013, and was politically involved.  [Mr A] was arrested by the authorities and died on [a particular date in] 2015, after being tortured in gaol. 

    In [2015] the applicant became concerned about [a particular social issue] in the state of Johor.  On [a particular date in] 2015 the applicant took part in a protest organised by [Mr A], with more than 1000 people, mostly local residents, in front of government offices.  The applicant claims to have carried a protest placard. [Later in] 2015 [Mr A] was arrested by the police at his home and detained.  At this time the applicant went to hide at a friend’s house.  The police came to his house [later in] 2015.  [Later in] 2015 the applicant went to [Country 1], and in September [Country 1] the applicant flew to Australia. 

14. The Tribunal discussed these claims with the applicant, the applicant believes that he is under continuing threat by the Malaysian state if he was to return to Malaysia.  As mentioned above, the tribunal has also considered whether or not the applicant would be owed protection obligations by Australia because of his membership of a particular social group, namely returnees. 

    DECISION UNDER REVIEW

15. The tribunal notes that the reasons given by the delegate for not granting the applicant’s application for protection are contained in the delegate’s record of decision between pages 5 and 11.  Firstly, the delegate found that the applicant’s refugee criteria based claims were vague, lacking in details, and included no supporting evidence.  As a result, although not expressly stated in this manner by the delegate, the implication is that the delegate found those claims to lack credibility. 

16. On this basis, the delegate found that the applicant did not hold a well-founded fear of persecution in Malaysia, now or for the reasonably foreseeable future, for the purposes of section 5H and 5J(1)(a) of the Act, as these relate to section 36(2)(a) of the Act.

17. The tribunal notes that, in addition to this finding relating to the refugee criteria, the delegate also found that there was no real risk of significant harm to the applicant under the complementary protection considerations at section 36(2)(aa) of the Act. As mentioned above, the tribunal has also considered an additional particular refugee convention claim to that considered by the delegate, namely membership of a particular social group, returnees. The tribunal discussed these delegate findings with the applicant at the hearings.

    PROCEEDINGS BEFORE THE TRIBUNAL

18. At hearing on 27 July 2015, the applicant confirmed that his documents and claims were accurate and complete.  No further submissions were received after this from the applicant before the second hearing on 4 September 2107. 

19. When questioned by the tribunal at the second hearing, the applicant acknowledged that his parents have no knowledge of the applicant’s involvement in this hearing.  Similarly, the applicant’s parents have no knowledge of the applicant’s involvement in the protest on which his claims are based.  The tribunal discussed its concerns with the applicant about the complete absence of any reports of the [2015] protest on any forum.  The applicant claims that this is accounted for by the control of the Malaysian state over the media, and the fact that it was a localised protest.

20. The tribunal, nevertheless, raised its concerns with the applicant about the fact that there was no corroborating Internet information available relating to this protest, nor could it locate any information on social media related to the protest.  The applicant was unable to account for this absence of commentary on any forum relating to the protest.  Similarly, the applicant acknowledged that he had no first-hand knowledge of the treatment of his friend, [Mr A], either before or after the time he was in detention. 

21. When questioned, the applicant stated that he initially wished to study in [Country 1] when he moved there in [2015]. The applicant then returned to [District 1], when he was unable to obtain the requisite visas in [Country 1].

22. At a later stage the applicant learned about travel arrangements for Australia from an agent, and decided to travel to Australia in September 2015.  Initially, the applicant’s intention was to apply for a study visa while here, but was unable to afford the fees.  After approaching another agent he decided to apply for a protection visa, with a view to securing study rights in Australia. 

23. The applicant has advised the tribunal that his family believe his is in Australia to pursue work and study opportunities. 

    CREDIBILITY CONCERNS

24. The tribunal raised its concerns with the applicant about his credibility and the credibility issues raised by his evidence.  In particular, the applicant was unable to provide any corroborating evidence, or suggest any witnesses who could verify the relevant aspects of his claims.  Given that the applicant has stated that he is wanted by the Malaysian state, his ability to travel out of Malaysia and return back into Malaysia without any difficulty raises concerns about the credibility of those claims.  The applicant’s acknowledged lack of candour with his own family about the circumstances in which he finds himself in Australia is also of some concern. 

25. In addition, the applicant has consistently stated that he wishes to study and work in Australia as his primary reason for being in this country, and also for seeking protection.  For the foregoing reasons the tribunal finds that the applicant’s claims generally do not appear to be credible. 

26. Accordingly, the tribunal places little weight on the applicant’s claims for protection as stated in his application for protection.  Accordingly, the tribunal finds that the applicant’s claim to have a well-founded fear of persecution if he were to be returned to Malaysia now or in the reasonably foreseeable future, for the essential and significant reason of his political views arising out of his participation in the protest over Malaysian government [policy] held on [a particular date in] 2015, is not genuinely held by the applicant.

27. The tribunal also notes the country information referred to above about the treatment of returnees.  On the basis of that country information, the tribunal finds that the applicant’s claim to have a well-founded fear of persecution if he were to be returned to Malaysia now or in the reasonably foreseeable future, for the essential and significant reason of his membership of the particular social group of returnees, is not genuinely held. 

28. In light of these considerations, the tribunal has considered each of the integers of the applicant’s claims for protection, together with the applicant’s evidence to the tribunal, individually and then cumulatively.  On the basis of these considerations, the tribunal finds that, taken at its highest, the applicant’s claims and evidence do not reach a level that demonstrates the applicant faces either a real chance of serious harm, or a real risk of significant harm, now or for the foreseeable future, if he were returned to Malaysia.

    FINDINGS AS TO CLAIMS CONSIDERED IN THIS REVIEW

29. On the basis of the foregoing factual findings and country information, in addition to the country information relating to freedom of movement into Malaysia of returnees, referred to above, the tribunal finds that the applicant has not demonstrated that there is a real chance that, if he was returned to Malaysia, he would experience persecution for the essential and significant reason of political views, or for being a member of the particular social group, returnees, now or in the reasonably foreseeable future. The tribunal further finds that the applicant has failed to demonstrate that he would experience serious harm or systematic and discriminatory conduct of the type required of section 5J(4) of the Act if he were to be returned to Malaysia now or in the reasonably foreseeable future.

30. Accordingly, the tribunal finds that there is not a real chance that, if the applicant were returned to Malaysia, he would be persecuted for the essential and significant reason of his political views, or membership of the particular social group of returnees, now or in the reasonably foreseeable future, for the purposes of 36(2)(a) of the Act (the refugee criteria). 

31. The tribunal has also considered the applicant’s claims in light of the complementary criteria at section 36(2)(aa) of the Act. On the basis of the foregoing, the tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk that the applicant would suffer significant harm now, or in the reasonably foreseeable future.

32. The tribunal has considered the applicant’s particular protection needs in light of his claims, and the tribunal is satisfied that there is less than a real risk of significant harm if the applicant was removed from Australia to Malaysia, such that Australia’s non-refoulement obligations would be engaged. Accordingly, there is not a real risk that the applicant will suffer significant harm, and the tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations for the purposes of section 36(2)(aa) of the Act.

33. Based on all of the foregoing, the tribunal is satisfied that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed to Malaysia, there is a real risk that he will suffer significant harm. Therefore, the applicant is not a person in respect of whom Australia has protection obligations as outlined at section 36(2)(aa) of the Act.

    CONCLUSION

34. For the reasons given already, the tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Act. Therefore the applicant does not satisfy the criterion set out at section 36(2)(a) of the Act (the refugee criteria).

35. Having concluded that [the applicant] does not meet the refugee criterion in section 36(2)(a) of the Act, the tribunal has considered the alternative criterion in section 36(2)(aa) of the Act (the complementary protection criteria). The tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

36. There is no suggestion that [the applicant] satisfies section 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies section 36(2), or 36(2)(aa) of the Act, and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in section 36(2) of the Act.

    DECISION

37. The Tribunal affirms the decision under review.

    Dr Colin Huntly
    Member