1614166 (Refugee)

1614166 (Refugee) [2017] AATA 2930 (13 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614166
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Rosa Gagliardi
DATE:13 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 November 2017 at 2:02pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Political opinion – Member of Bersih – Credibility Issues
LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 91R, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
MZZIA v MIBP [2014] FCCA 717
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 [in] August 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] June 2016. The delegate refused to grant the visa on the basis the applicant did not meet the definition of a refugee or the criteria for complementary protection.
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.
The applicant was born in the state of Perak. He is [age] years of age and is a Malaysian national. His mother was living without difficulty as she was getting a pension. His father had left the family home and his mother had remarried.
The applicant claimed to have worked in Kuala Lumpur as [an occupation] in a [workplace] in Kuala Lumpur. In Australia he was working on [a] farm.
The evidence at time of application
The applicant stated that he completed his application form with the assistance of a friend. The applicant’s evidence in his application form was vague and general. His specific claims were:
I left my own country because the government of Malaysia is seeking the group member of Bersih. I’m the one of Bersih member (Group the coution (sic) for clean and fair election). Our minister of Home Affair Ahmad Zahid Hamidi said ‘Malaysian who are unhappy with this country political system should leave the country (Malaysia). This statement was after series of street demonstrations led by opposition parties. Many group prissioned (sic). Media hidden this sensitive issue. I decide to seek refuge and safely life (sic) matter. Thank you.
In his application, he also stated that if he returned to his own country, the police would catch him and put him in gaol, so of course his life was in danger. He was hoping the Australian government could help him. He also wrote that Malaysia is a small country and to move out of the country was the only option that he had to protect himself rather than reside in other states of Malaysia.
Asked to provide details of the type of harm or mistreatment the applicant was likely to experience, and the person/people who would be responsible for the harm or mistreatment, and why they would harm or mistreat him, the applicant responded:
For long term it will affect me and my family. Due to this political issue, I will be questioned and mostly and the Bersih member will be detained because this sensitive issue (politic).
He stated that he did not think he would be protected because Bersih was against the government parties. Also, he could not relocate because Malaysia is a small country and to move out was the only option as Bersih members were everywhere.
As put to the applicant at hearing pursuant to s.424AA of the Migration Act, his claims at hearing were divergent from the little detail he had provided at the time of application, and furthermore, continued to be lacking in detail and the applicant at hearing was unable to sustain a discussion about the movement of Bersih, his attendance at rallies and what occurred there without significant prompting from the Tribunal. Even then, the applicant’s answers were brief and the applicant could not elucidate in a manner consist with someone having lived the events he claimed to have lived. Rather than provide the Tribunal with a spontaneous account of his involvement in the Bersih movement, for example, he only responded to the Tribunal’s questions, even though the Tribunal had encouraged him to provide as much detail as possible, otherwise the Tribunal may not accept that any of the evidence provided was credible.
The evidence at the time of hearing
Given the paucity of detail in the applicant’s written application form, the Tribunal at hearing gave him the opportunity to explain why he had been motivated to join the Bersih movement and what the movement’s aims were. The applicant stated that he came to Australia as he also participated in a Bersih rally and that was against company policy. [His] uncle was a member of the ruling party and he was also against it.
The Tribunal asked when the applicant first decided that he wanted to be a part of the Bersih movement. The applicant gave a vague response to the effect, “It was a while back”. He had never voted before so he wanted to join the Bersih. The Tribunal explained that something must have prompted him to join the movement, to which he responded, he thought the government was unfair and treated its people unjustly. The Tribunal asked the applicant to explain what he meant by this. He stated that the prices went up and petrol was going up so it was not fair.
The Tribunal asked the applicant when the movement had started. He responded that he did not know. It was in mid-2014 but he was not really an active member. Asked as a member what his involvement had been, he stated that in 2014-2015 onwards he became more actively involved. He had been influenced by people around him; by colleagues from the office and his friends. Asked what his friends had told him about the Bersih movement, the applicant stated that they should try to overthrow the ruling government and protest their rights.
Asked what he had done to join the movement, such as whether he signed a document to register, he stated no, but he received a T-shirt. Others said that the movement would be big and there would be participants from every state. Asked what people were “participating” in precisely, the applicant responded that the group was already getting bigger as members were joining in each state.
The Tribunal asked the applicant who initially led the movement. He responded he did not remember as he was merely following people. The Tribunal pressed the applicant to provide details about exactly what he was following and he responded, “The riots and reformation movement”. The Tribunal asked what riots these were and when they had occurred. He stated he could not recall when they had happened. It was a Bersih rally between the red and yellow supporters.
Asked if the applicant attended the rally he was referring to he stated that he did, with a group. Asked to provide the names of his friends who accompanied him, he responded: [several names]. Again the Tribunal encouraged the applicant to give specific details about his involvement in the rally. The applicant answered that his family was opposed to him joining Bersih and his uncle asked why he would want to join as it was of no benefit to him.
To provide a further flavour of the general and unspecific nature of the applicant’s evidence, the Tribunal has reproduced some of the evidence as provided by him to the Tribunal:
Tribunal: Describe that day you went to the rally.
Applicant: I don’t remember it’s a while ago. Since I have been here a lot has changed I am far from Malaysia…
Tribunal: Did anything happen to you at that rally?
Applicant: Nothing really. We were shouting slogans it wasn’t really a big riot. We would march to Puduraya to the Jane mosque.
….
Tribunal: How many rallies have there been?
Applicant: Three rallies since I have been following it.
Tribunal: Can you talk to me about these three rallies. What were the rallies called, what was their purpose and the aims of the those three rallies?
Applicant: What do you mean? What they were protesting to the government about? Bersih was demanding a clean economy, that’s all I know.
Tribunal: Can you tell me please what the first rally was called and when it was held?
Applicant: I do not remember because when I came to Australia I tried to keep away from friends of Bersih. My mother said it is better if you go because you will make trouble for the family.
Tribunal: This is a movement that started a long time ago. Well before you came to Australia. You must know the history of how many rallies were held and what sparked the rallies.
Which one did you go to?
Applicant: I remember the ones where we marched from Puduraya to the Jane mosque and onwards.
Tribunal: You said there were riots there. What happened?
Applicant: We were marching and along the way we were shouting. About the economy. That’s all I remember.
Tribunal: Have any of the previous rallies involved violence?
Applicant: No.
Tribunal: What harm do you fear on returning to Malaysia? It’s the prospect of facing work. Because the aim was to overthrow the government. My family was opposed and my uncle was a part of the ruling party.
Tribunal: What do the Red shirts stand for?
Applicant: If I am not mistaken the ruling national front.
Tribunal: Did anything happen to you at any of the rallies you went to?

Applicant: Nothing. There were supporters of the Red Shirts and they were also my friends. We clashed. Red Shirts are part of my family – uncles and aunties.
Tribunal: How many rallies have you attended?
Applicant: Just three.
Tribunal: Were the police involved in the rallies at all. The police were just on the corners (motioned encircling them).
It is evident from this interaction that the applicant knows little about the movement, its aims, its history in terms of the specific names ascribed to particular rallies and that overall the applicant’s knowledge of the Bersih movement was so limited as to lead the Tribunal to find that the applicant was never a member of the Bersih movement and had never attended any rallies and as a consequence all the applicant’s remaining claims about fearing harm from his workplace/colleagues, his family, his uncle in particular, the Red Shirts, and the police all fall away and are rejected by the Tribunal in their entirety.
The Tribunal does not expect the applicant to have an encyclopaedic knowledge of the Bersih movement and its origins, nevertheless, the applicant’s very limited knowledge of even basic matters such as what were the names of the rallies he claims he attended, reinforces the Tribunal’s findings that the applicant was never a member and had never participated in any Bersih rallies.
Even if the Tribunal accepts that the applicant was a marginal supporter of the Bersih movement (and it does not), his inability to provide other than vague references to riots and rallies and the aims of the movement being about attaining a clean economy, leads the Tribunal to find that the applicant may have read cursorily about the movement or had found out about the movement through a third party in order to be able to advance claims for the purposes of his application.
Country information
DFAT’S Country Information Report, Malaysia, 19 July 2016 provides material on how protests in Malaysia are viewed by the authorities generally, as well as Bersih in particular:
Political Rallies
3.60 The constitution states that all citizens have ‘the right to assemble peaceably and without arms’, however, in practice the government closely administers political assemblies and rallies under the Peaceful Assembly Act (PAA) and the Criminal Code. Permits can be difficult to obtain and can be restrictive in their application. The PAA requires organisers to submit notice of a rally to authorities ten days in advance.
3.61 Individuals have been arrested for organising or engaging in rallies in contradiction with the law and the Royal Malaysian Police have on occasion used excessive force to control crowds. Bersih, a coalition of 62 NGOs, organised a series of rallies calling for improved government transparency free and fair elections in 2007 (Bersih 1), 2011 (Bersih 2), 2012 (Bersih 3) and 2015 (Bersih 4). The rallies attracted thousands of protesters and were supported by opposition parties.
3.62 The Bersih 4 rallies on 29 to 30 August 2015 saw approximately 100,000 people, mostly opposition parties and their supporters, civil society activists and Chinese Malaysians, take to the streets in Kuala Lumpur to call for the resignation of Prime Minister Najib in light of 1MDB corruption claims. The protest was peaceful and no violence was reported, despite the government declaring the protest illegal and banning the yellow t-shirts with ‘Bersih’ print that were worn by the protestors. Smaller rallies were also held in Melacca, Penang, Kuching, Kota Kinabalu with a small number of arrests. This was an improvement on the July 2011 Bersih 2 protest where the police used tear gas and water cannons to break up the protest and made approximately 1,500 arrests.
3.63 In response to Bersih 4. UMNO-linked NGOs, known as the ‘red shirts’, held a government approved rally in Kuala Lumpur on 16 September 2015. The protest messages were pro-Najib, pro-Malay and slogans and banners were ethnically charged. There were a few arrests and police used water cannons to disperse the crowd when it attempted to enter the Chinatown district.
3.64 In May 2013, the opposition PKR organised nationwide demonstrations known as the ‘Black 505’ rallies, disputing the results of the May 2013 general elections. The rallies attracted thousands of people and took place with little interference from authorities. However, police subsequently arrested and charged a number of alleged organisers under the PAA for failing to provide the required ten days’ notice for public assemblies. Reports on the number of organisers arrested range from between six to forty individuals.
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.[1]
[1] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report, Malaysia, 19 July 2016, accessed on 13 November 2017.
The following article which appeared The Straits Times on 27 August 2015, gives an simplified outline of the Bersih movement:
WHAT IS BERSIH?
Bersih, which means "clean" in Malay, refers to the Coalition of Free and Fair Elections. It is a civil society movement consisting of 84 non-government organisations calling for a thorough reform of the electoral process in Malaysia. It is led by Maria Chin Abdullah from the Women's Development Collective (WDC). Its previous chief was former Bar Council president Datuk S. Ambiga.
Bersih was first launched in November 2006 as a political party-driven movement with members consisting of opposition political leaders and representatives from the civil society. In April 2010, the movement was re-named Bersih 2.0 as a fully non-partisan movement free from political influences.
WHAT ARE ITS DEMANDS?
Bersih has eight demands. These include the updating of the electoral roll to remove "phantom voters" - deceased persons, multiple persons registered under a single address or non-existent addresses, and reform of postal ballot to allow voting not only for Malaysian citizens living abroad, but also those within the country who cannot vote in their constituency on polling day.
The group also demands the use of indelible ink to prevent voter fraud and a minimum 21 days for campaigning to allow voters more time to gather information and deliberate on their choices.
WHAT HAPPENED IN PAST RALLIES
Nov 10, 2007:
The first rally by Bersih at Dataran Merdeka in Kuala Lumpur was sparked by allegations of corruption and discrepancies in the Malaysian election system that favoured the ruling Barisan Nasional (BN) coalition. Supporters were urged to wear yellow T-shirts as a symbol of protest. Organisers estimated that between 30,000 and 40,000 people from various races and all walks of life took part in the rally.
The protest was credited for the shift in political landscape in Malaysia's 2008 general election, when the BN failed to obtain a two-thirds majority for the first time since 1969.
July 9, 2011:
The second rally, known as the Walk for Democracy, was organised to protest alleged vote rigging and other electoral abuses in the Sarawak state election in April 2011. An estimated 50,000 people took part in the rally. Malaysians living in 32 cities overseas also rallied in solidarity with the Kuala Lumpur protesters.
Police fired tear gas and used water cannons with chemical-laced water at the demonstrators to stop the march. More than 1,000 people were reportedly arrested.
April 28, 2012:
In early April 2012, the Public Select Committee released a report of its findings on electoral reform and it was passed in the House of Representatives with no debate between the opposition and ruling parties. An opposition minority report was not included in the final report and none of Bersih's demands were met. This led to Bersih calling for a third rally on April 28 that year.
The protest was peaceful as the participants marched from various locations towards Dataran Merdeka. But scuffles broke out when some protesters broke through a police barricade, with police riot units responding with chemical-laced water cannons and tear gas. Hundreds of protesters were arrested.
Opposition leader Anwar Ibrahim and five others were charged with participating in a street protest but a Sessions Court later ordered a discharge not amounting to an acquittal.
WHAT IS BERSIH 4.0?
Bersih 4.0 is the fourth rally planned for three cities on Aug 29-30 to push for Prime Minister Najib Razak's resignation as well as institutional reforms to prevent prime ministerial corruption. The rally comes amid allegations in the Wall Street Journal that US$700 million (S$981 million) in state funds was deposited into Mr Najib's personal bank accounts and alleged mismanagement of debt-ridden state investor 1Malaysia Development Berhad (1MDB).
Bersih says recent events in Malaysia, including the removal of Abdul Gani Patail as Attorney-General and the removal of ministers who had spoken out on the 1MDB issue, have triggered the call for the rally.[2]
[2] The Straits Times, What you need to know about Malaysia’s Bersih movement, 27 August 2015, accessed on 13 November 2017.

Furthermore, the Tribunal found the applicant’s account of how and when he decided to become a member of the movement unconvincing as he referred simply to being influenced by unidentified people around him and that he had joined or followed because they wanted to overthrow the government and he thought the government was not fair in raising prices. Earlier the applicant had stated that he joined because he had never voted before, adding to the applicant’s vague account.
The applicant is a mature person and the Tribunal would have expected that he would have enquired into the origins of the movement and been in a position to discuss more spontaneously why he had joined, given the violent history at other rallies prior to the one he claim he had attended and the risk of arrest by the authorities.
The applicant claimed he was unable to recall detail because he was a forgetful person. Details such as the name of the rally he attended, however, are matters ground in history and the Tribunal does not accept that no matter how forgetful the applicant might have been, he would not remember the name of the specific rallies he had attended, particularly when he claims he did so with others and not in isolation.
The applicant’s weak claims continued when the Tribunal asked the applicant to be clear about what harm he feared and from whom in Malaysia. He stated that his uncle was a big wig in the Malaysian Railways. Asked what would happen to him on return to Malaysia he responded that his uncle warned him not to be involved in a movement to overthrow the government.
The Tribunal asked the applicant whether he feared harm from anyone else on return to Malaysia. The applicant stated, “I came here to seek protection to be free from the traps and pressures from my family”, and that he wanted to be free from the influence of his friends who supported Bersih and those that supported the government.
He stated that he could not relocate to another place other than Kuala Lumpur and Perak because his family would persist in finding him. Only his mother knew he was in Australia. His mother had told him he should make himself free for a while. The applicant stated that he did not want to stay in Australia permanently; after all he wanted to return for his mother.
Having regard to the applicant’s claims at hearing that he feared friends, workplace/colleagues, members of his extended family, and in particular his claimed influential uncle who, when asked, the applicant stated was named, [name], the Tribunal put to the applicant pursuant to section 424AA of the Migration Act what he had written in his application about who he claimed would harm him on return to Malaysia. The application had stated that he was concerned about the police catching him and his life being in danger by them. This was not consistent with the evidence provided at hearing about why he was fleeing Malaysia when he did not even mention the police, leading the Tribunal to have further serious doubts about the applicant’s credibility overall.
The applicant stated that he had not made a copy of his application when he filed it. The Tribunal stated, however, that had these events happened and if the applicant had held, and holds a genuine fear of persecution for a reason, or reasons set out in the definition of refugee, that he would not need a copy of his script to tell the Tribunal what had occurred. The applicant again referred to being forgetful in nature and that for example, he could not recall his password.
At hearing, however, the Tribunal had asked broad questions which required him to provide a narrative of what had happened overseas and what he feared on return, which did not require recalling specific data, such as a password. The Tribunal rejects that the applicant could not recall what he had written in his application but finds that the reason he could not recall what he had written is because none of the claims advanced had any base in reality.
Given the applicant’s conflicting, confusing and nebulous evidence at the time of application and at the hearing, the Tribunal tried to ensure the applicant was clear about what harm he feared and from whom on return to Malaysia:
Tribunal: What do you fear after that (meaning information in s.424AA) on return to Malaysia?
Applicant: What I have just told you.
Tribunal: Not the police? You do not think the police will catch you?
Applicant: I think it’s been a while and I have not been home so…
Tribunal: You don’t think police would be interested in you?
Applicant: Have not been in Malaysia for a while.
Tribunal: What do you think your uncle would do to you if you returned to Malaysia and you continued to participate in Bersih.
Applicant: He will ignore me. Even my mother because if he hates me, he will hate all members of my family.
Tribunal: Do you think you will have trouble finding work in Malaysia.
Applicant: Yes quite difficult.
Tribunal: Why? It’s probably because I do not have a high level of education but I probably can find a job. I could probably get a job. We will see.
The applicant stated that he had come from a village in Perak, so the opportunities there were few, however, he agreed that he had worked in Kuala Lumpur in a sophisticated job.
Having considered the applicant’s vague and general claims about his involvement in Bersih and having attended unspecified rallies, the Tribunal rejects the claims made by the applicant at the time of application and at the time of hearing in their totality, and does not accept that the applicant has ever been interested in the Bersih movement or participated in any activity relating to the movement or held any political opinion, actual or imputed or held any political profile.
It follows that the Tribunal is not satisfied that there is a real chance that on return to Malaysia, the applicant will be persecuted for his actual or imputed political opinion, in opposition of the government of Malaysia or for any other of the reasons in the refugee definition, now or in the reasonably foreseeable future. This is particularly so as the applicant stated that he just needed time to be free and that he intended to return to Malaysia. The Tribunal considers that had the applicant had a genuinely held fear of persecution he would not be considering remaining in Australia only for a while so, as he put it, he could be himself again.
The Tribunal has also had consideration for the applicant’s claims that he was concerned about unfairness by the government because of rising prices and whether this could give rise to a real chance of serious harm arising from economic destitution for the reasons mentioned in s.5J(1)(a), if he were to return to Malaysia in the foreseeable future, mainly difficulty in subsisting.
The applicant at hearing had stated that his mother was in receipt of a pension. Therefore the household is in receipt of an income, although the Tribunal acknowledges that this may be limited. Nonetheless, the applicant has proven to work in a position of authority in [a] sector and that furthermore, the applicant was able to set himself up in Kuala Lumpur without difficulty. The Tribunal can identify no reason the applicant would not be able to procure similar or other work in any area of Malaysia in which he may choose to live.
During the hearing the Tribunal posited that the economy in the applicant’s country of nationality generally enjoyed economic growth, and specifically in relation to Perak, the area appeared to hold significant prospects for the applicant in terms of employment. In particular, the Tribunal summarised the following information to the applicant about plans to develop Perak’s economy as reported in the New Straits Times on 28 July 2017:
THE Northern Corridor Implementation Authority (NCIA) unveiled specific development plans for Perak under the Northern Corridor Economic Region (NCER) Development Blueprint 2016-2025 (Blueprint 2.0) yesterday.
…..
Blueprint 2.0, with its theme of ‘Growth with Social Equity', aspires to spur the inclusive and sustainable economic development in Perak by establishing new industries, attracting investment in human resources development as well as creating a vibrant environment for work and entrepreneurial activities.
It is expected to positively impact the people of Perak by improving job opportunities, income, skills and lifestyle.
NCIA chief executive Datuk Redza Rafiq said the players in the economic regions needed to adapt to the changes in the current world. At the same time, the aspects of community welfare, social equality, as well as nature conservation need to be included in all development programmes.
“The rapid global changes require all regions to move promptly in a creative and firm manner, to cater to the current economic demand. This includes expanding the network with stakeholders, including the community, state governments, local authorities, industries and non-governmental organisations,” he said.
Redza said in line with the theme of ‘Growth with Social Equity', the developments need to take into consideration the aspects of universal access to education and health, social inclusivity, as well as high-income economic activities.
“It does not stop there. As a body responsible in planning and executing policies, we need to get closer to the community. Their inputs are crucial in the process of drafting the action plans” he said.
He said it was also in line with the approach by the government throughout the 11th Malaysia Plan which is to reaffirm and strengthen the economy of the people.
Blueprint 2.0 is in alignment with National Plans i.e. RMK-11, Economic Transformation Programme, Government Transformation Programme and New Economic Model. It covers more than 80 strategic projects that will spearhead the economic development across four states in the north of Peninsular Malaysia which are Kedah, Perlis, Perak and Penang by 2030.
It aims to outline the future directions and strategies to expand growth and reduce regional imbalances.
…..
These initiatives will expand the economic benefits to targeted areas in Perak by driving the growth of Gross Domestic Product as well as increasing economic sustainability through physical and socioeconomic components.
The first growth node, GKC, aims to develop and advance a key economic centre in the north of Perak, while enhancing inclusiveness through equitable distribution of income and wealth.
Another growth node, the Manjung-Aman Jaya Maritime City, will open the economic potential in the districts through eight main clusters which are Manufacturing, Agriculture, Fisheries and Aquaculture, Tourism, Infrastructure, Halal Hub as well as Human Resources and Maritime.
One of the strategic thrusts in Blueprint 2.0 is to develop NCER‘s economy and to focus on liveability to support the local community as well as to attract and retain the workforce in the region.[3]
[3] New Straits Times, Blueprint 2.0 to develop Perak’s economy, 28 July 2017, accessed on 13 November 2017.
Noting that the Tribunal has made an earlier finding that it does not accept the applicant will face a real chance of serious harm based on the applicant’s political opinion, actual or imputed, the Tribunal is not satisfied that the applicant will suffer any economic hardship for reasons mentioned in s.5J(1)(a) based on the applicant’s own written and oral testimony. This is because the Tribunal has found that the applicant has never held a political profile in Malaysia.
The Tribunal has made earlier findings that the applicant does not face a real risk of serious harm arising from the applicant’s political claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, it follows that the Tribunal does not accept that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of significant harm, including the torture, being subjected to cruel or inhuman treatment or punishment or being subjected to degrading, for reasons based on the applicant’s political opinion or membership or a combination of these claims.
Complementary protection
The Tribunal has considered if there are 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) in the context of s.36(2)(a).[4]
[4] 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].
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. The Tribunal does not accept the applicant will not be able to access paid employment anywhere in Malaysia, given he has some education and experience in a work place, as a necessary and foreseeable consequence of being removed from Australia or that any 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 with 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. The Tribunal, accordingly, does not have substantial reasons for believing the applicant faces a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, because he will be arbitrarily deprived of his life; he will be subjected to torture or cruel or inhuman treatment or punishment or degrading treatment or punishment or for any other reason set out in 36(2A).
Having considered the applicant’s claims, both individually and cumulatively, and for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
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.
Rosa Gagliardi

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 2930

13 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction