1615552 (Refugee)

1615552 (Refugee) [2018] AATA 2272 (13 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615552
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Rosa Gagliardi
DATE:13 May 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 13 May 2018 at 4.00pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Political opinion – Democratic Action Party – Race – Indian – Successful businessman – Unlawful detention – Loss of business and reputation – Internal relocation

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 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
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 30 August 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Malaysia applied for the visas on 16 February 2016. The delegate refused to grant the visas on the basis that they did not meet the criteria for the grant of a Protection visa.
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.
NB: In this decision the term Applicant 1 and “the applicant” are used interchangeably as the dependents claims arise mostly from Applicant 1’
Country of reference
The applicants claim to be citizens of Malaysia. There is no evidence to suggest that they have a right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, the Tribunal finds that the applicants are citizens of Malaysia and as such, their protection claims will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.
In terms of the child born in Australia recently, the Tribunal notes that this child has not been included in the application for the purposes of the review.
Claims at the time of application
·The first named visa applicant’s political activities and race, ‘subjected him to arrest, detention, disgrace and the loss of his business which was built up over many years’.
·In July 2015 (the applicant claims this should be 2014) the applicant’s school friend, [Friend A], an active politician of the Democratic Act Party (DAP), approached the applicant for help to open a branch in their area to enrol more members. The applicant claims he refused the request but then agreed after discussing the matter with his wife, following [Friend A’s] explanation for the need for every Malaysian to take part in forming a government.
·The applicant agreed to use his influence to enrol new members and assist financially but claims that he told [Friend A] that he would not become a member or participate openly in political activities as it would affect his business.
·[Friend A] would visit his house; teach him about politics and the steps to follow to open a branch.
·In September 2015 (the applicant claims this should be 2014), [Friend A] and two of his friends who were also politicians came to his home for an initial meeting. He invited a few of his close friends to his home at [Friend A’s] request, and they were asked to ‘spread the word to canvas new members’. [Friend A] told the applicant that the meetings would be held at the applicant’s home until a branch was established.
·Many people were aware that there was a branch of the Party being established at the applicant’s home. He held another meeting which discussed transferring members from other areas to his branch as local people were reluctant to join as the branch had not been established.
·On [a date in] April 2015 the police raided his home and premises. After ransacking the house the police said ‘where do you keep the stuff? The drugs’. He told the police that it must be a mistake but he was handcuffed and taken to the police station and interrogated. He was threatened and asked to admit he dealt with drugs. Both he and his nephew were drug tested, kicked and scolded by the police.
·The applicant claims when he left the police station everyone looked at him in a different way. The police continued to come to his business and the customers got scared and did not want to come to his [business]. Employees left their jobs.
·Two officers came to his house and realised there was no reason to raid the applicant’s home and assured him they’d carry out an investigation. A few weeks later he received threatening phone calls where he was asked to give a statement that he ran a drug business. During this time he claims ten people came to his [business] with knives and small swords and told him not to support DAP or open a branch or he would be killed. He was told if he went against “[Mr A]” the consequences would be worse and [Mr A] would send him to gaol.
·The applicant was told by many people that [Mr A] used his influence to carry out the raid to jeopardise his public reputation to sabotage his plan to open a DAP branch.
·After the incident he decided not to get involved in politics. Unknown people came to his business and parked outside their home at night.
·He and his wife could not find employees to carry on their business as they were scared of the police and gangs which visited the premises. His children were teased at school. He fears his political opponent may plant something in his home to put him into trouble.
The second-named visa applicant (the first named visa applicant’s wife) claimed the following at the time of application:
·She owns a company and a business in Malaysia.
·Her husband was approached by a politician who belonged to the opposition, the Democratic Act Party (DAP) to help them open a branch in their home area. Both her and her husband had no interest or knowledge in politics.
·Her husband agreed to help the DAP but said that ‘they would not become members or get involved publically’.
·She and her husband arranged a few meetings at their house and contacted some close friends to attend the meetings. The message to form a new party in their area flourished.
·[In] April 2015 the police raided their home and arrested her husband and her brother. After eight days they were released on bail but their bank accounts were frozen, keys to cars taken and their home and businesses were sealed. She claims it took a long time to get the keys back for their vehicles and businesses.
·Following her husband’s release, the police visited their home and businesses and harassed them and their employees which resulted in many employees leaving their jobs. Less customers came to the [business] as the police visited and they thought her husband was a drug dealer.
·Two officers from the [Section 1] came to speak with her husband at his home and stated it ‘appeared to be a wrong move by the police and they would investigate the matter’. After the visit, threatening calls were received asking for her husband not to talk to anyone about the raid.
·Gangs came to her [business] and threatened to harm her husband if he opened a branch in their area or helped the DAP.
·She could not take it and attempted suicide twice.
·She and her husband realised that false information was given to the police by [Mr A]; a drug dealer and strong supporter of the ruling Barison National party of Malaysia.
·Visits and observations by unknown people to her business and house made her fear for her family’s safety.
The applicant’s migration agent provided an additional submission to support the applicant’s claims and two statements from Applicant 1 and 2 which outlined corrections to their original statements. The corrections are primarily in relation to the correction of dates and a change to the Malaysian opposition name to ‘Democratic Action Party’ (DAP) as Democratic Act Party is incorrect.
The hearing
The first named visa applicant (Applicant 1)
The applicant was born in Perak. He had a high school education to Year [number]. He took over his father’s [business] and was trying to develop that in Perak. He married Applicant 2 in 2002. He has three children in all, including [an age] old baby, born in Australia. They had their own home and they still own it. He also owned [number] houses. The Tribunal noted that by Malaysian standards the applicant was quite wealthy. The Tribunal also noted that therefore he would have many connections in Malaysian society who would support him. He said that he had many connections. It was all due to his hard work. He worked day and night and encountered hardships but he was so ambitious he wanted to do well.
His [business] was doing very well until he became involved with the police. [In] April 2015 they arrested the applicant. His troubles started when he became involved in political things. The Tribunal asked the applicant to clarify what he meant by “political things”. He stated that earlier on he was not particularly interested in political issues, but he had a school friend, [Friend A], who said to him, “Why don’t you support some of these causes?” The Tribunal attempted to gauge how the applicant was still associated with a school friend. The applicant stated that this was a friendship that he had maintained after school. [Friend A] was big in political circles; in DAP. He wanted the applicant to support him to open a new branch. The applicant told the Tribunal that it was the Democratic Act Party - an opposition party.
The Tribunal noted that the applicant had a successful business and asked why he suddenly became interested in politics. He stated that in the beginning he was not interested but then “he” ([Friend A]) gave the applicant a lot of explanations by stating that citizens had a duty to become involved. This was particularly so as the applicant was a successful businessman. His friend told him he should think about his children’s future, even if he himself was doing well.
The applicant stated that [Friend A] approached him in July 2014. The Tribunal noted that the applicant had established himself financially and that he had no need to oppose the government. The applicant responded that he would give him some support and that was as far as he was going to go. He started to think about the country and his social conscience. The Tribunal asked the applicant what the DAP stood for. He stated that the main goal was to bring about equality for all races. The quota system was not in favour of those of Indian backgrounds; only Malays. The Tribunal noted that with all the claimed discrimination, he had flourished economically in Malaysia so it could not be said that he had been discriminated against financially. He stated that he was affected because he was not getting the same privileges as Malays, such as, for example, when he was running a [product 1] business he was not getting the same percentage of benefits.
The Tribunal asked the applicant to explain how [Friend A] got to a position of such political influence. The applicant responded that it was step by step, little by little. He was just a member in the beginning and he educated himself about the party and what it stood for. Then he got a position; it was lower than MP. The Tribunal asked what role exactly [Friend A] held if he was not an MP, and he stated what sounded like “Adun” of that district. The Tribunal noted that if [Friend A] had an official role in the community there would be documentation to support the existence of [Friend A]. The applicant responded that he had asked him but he had refused to provide any. The Tribunal noted that there would be publicly available information on [Friend A] if he had an official role. The Tribunal noted that there would be his registration documents and as a close friend the applicant would have access to such documents. The applicant stated that he never expected to get documents from him and he did not know how much [Friend A] was involved in “this party”, and how much work he was doing.
When asked when he joined the DAP, the applicant stated that “he” approached him in 2014. The Tribunal asked whether he signed up to the party. The applicant stated he was not a member. He never signed anything because he was doing good business and he did not want to have that business affected. He had Malays, Indians, Chinese as customers and he was not aware of their political affiliations. He thought that if he got involved deeply, his business would collapse.
The Tribunal noted that in his application, the applicant wrote that he was asked by [Friend A] to open a branch and to enrol more members in the area. The applicant stated that it was true. He was asked to open a branch and he had a lot of customers who could become members. Asked what his wife thought about him getting politically involved, the applicant stated he told her and she said they could help. The applicant stated that he had donated about AUD[amount] to the Party. In Malaysia you gave gifts and took people out to dinner. The Tribunal noted, however, that donations in funds were important to keep the party afloat. The Tribunal asked whether the applicant was provided a receipt for the money he gave the party and he stated, “no”. The Tribunal noted that a receipt would have been very important evidence to demonstrate his commitment to the cause and that he was someone who should be respected by the Party - that he had influence. The applicant responded that he never bothered with that. He was always motivated to help people; the Indian community.
The Tribunal asked what the applicant wanted for the Indian community and what were the goals of DAP to this end. The applicant stated that they did not have the same rights as the Malays; in education, the quotas were never filled and if you wanted to start a project with the government you did not get support. His [business] was not really patronised by Malays.
The Tribunal asked who the local leader of DAP was and he stated that it was [Friend A]. The Tribunal asked whether [Friend A] encouraged him to be a member. The applicant stated that he tried but he flatly refused.
The applicant’s wife worked in his [business] but later they opened a business for her - it was in [a service industry]. The Tribunal asked how much money they had in Malaysia. The applicant stated that it had been reduced but he did not know what was going on. The Tribunal asked how it was possible for him not to know what was in his bank accounts. He responded that the police seized all the “slips”.
The Tribunal asked whether the applicant had opened a DAP branch in his area. He stated he was not successful. [In] April 2015 he was arrested. They worked hard to open the branch and he had recruited a lot of people he had known, but as soon as he was arrested they said they did not want a part of it and just took off.
The Tribunal asked the applicant to explain how he recruited people to the party. For example, did he work alone? The Tribunal noted that recruiting people to a political party was a difficult thing to do and encouraged the applicant to discuss the process, and how long it took. The applicant avoided the question by stating that [Friend A] told him the basic requirements of recruiting. The applicant stated he found out how to recruit his employees, their spouses, relatives, drivers to persuade them to join the party. He had 30 employees. The Tribunal asked whether [Friend A] had given him a strategy document and told him which areas to target. The applicant stated that he did. The applicant stated that in September 2014 they had the first meeting with [Friend A] and two other colleagues and they explained the process to the applicant and how to approach members they wanted to recruit and so on. Asked where the meeting had taken place he stated his house because they have a big house. The Tribunal asked how the meeting was organised. The applicant responded that he told his staff that they would have a formal meeting and he had gifts to give them and that seemed to be the procedure.

The Tribunal asked whether the applicant distributed leaflets or anything similar. He stated he did not because he had direct contact with people. It was his employees and so forth.
The applicant stated that [Friend A] lived about 500 metres away from his house. The applicant stated that when they had the meetings his wife was responsible for refreshments only. She never became involved or spoke to the others about political matters.
Asked to provide details about the meeting in September 2014, the applicant claimed that it went well and they said it seemed a good idea that things were moving. In fact there were some people from the ruling party who left their party to join the DAP. The Tribunal asked whether the applicant had signed up members on that night. He stated that [Friend A] gave them the forms and undertook all the formalities. Asked what had happened to [Friend A], the applicant stated that he was there (in their local area) and that [Friend A] had assisted to rescue his business. The Tribunal asked, if the applicant was in trouble with the police, why was it that [Friend A] had not been targeted given his greater role in the Party. The applicant stated that [Friend A] had problems but he was not a successful businessman like the applicant.
The applicant stated that his house was like an office so to discuss the issue of opening the branch they used his house. The Tribunal asked whether the applicant had any evidence such as documents of having organised such meeting. He stated “no” but he would tell the Tribunal about it. The reason he did not have any records is because he was not a member. He wanted to be supportive of the Indian community. The Tribunal stated that regardless of him not being a member, he would have had a high profile in the area and people would have known that he was involved in the establishment of a new branch as it was an historical event – it would have been documented. In any event people would have assumed that he was a member. The applicant responded that he just wanted to help out. He had his business and he did not know what party others voted for and he did not want to disrupt the business. He just wanted to support the DAP and for him to have a good conscience that he was helping people.
The Tribunal asked when the new branch actually started. He responded that September 2014 was the first step for getting members to join. After a while some people started to ask him about it. He had held 3 to 4 meetings at his house. About 100 people attended his house and he stated that to start a branch they needed 100 members. The applicant then revised his account to state that 50 people came to the house. The Tribunal noted that it appeared that he had a very large house to accommodate such a large group.
The applicant stated that as people started talking members from the ruling party started to go to the DAP. Later people phoned and wanted to know more about it and new members wanted to be recruited, but not everyone wanted to be members, although they were interested. The applicant mentioned this to [Friend A] and [Friend A] brought some of the old members to help.
The applicant stated it was not easy organising meetings and recruiting people – it was time-consuming. The Tribunal noted that in 2015 the internet was active, as was Facebook and he would have had all those tools at his disposal to spread the word about opening a branch of the DAP. The Tribunal asked whether there was evidence that he had used the internet to recruit members, for example, and whether anything was reported in the news, for example, in terms of the organisation of a new branch. The applicant stated that he did not distribute pamphlets and did not use social media because it would affect his business.
It was Indian New Year and they were asleep at night at 12.15am and there was a knock on the door on [that day in] April 2015 just after midnight. They were in civilian clothes carrying guns. They showed their ID cards. They were police from the [Section1]. He asked them “Why are you here?” They told him to go upstairs. They started bringing everything down and asking “Where have you hidden the goods?” The applicant asked them “What goods?” He told them there was [some product 1] as well as the [main business] supplies behind the property. They asked where the money from drug sales was. The applicant stated that it was a case of mistaken identity. They handcuffed him.
People started coming around and the neighbours saw. They took boxes and clothes and took him in their van. The applicant stated that he was speechless. He asked, “Why are you arresting me?” They told him they would discuss it at the station. They sealed the house. They searched the [business] and sealed that as well. He had trucks in the yard and they sealed those off as well. Everything was lost now. They took him to the station. They said to him that he had to cooperate and tell the truth. He had to admit now that he was a drug dealer. The applicant denied it. He would not admit to anything he had not done. They took a urine sample as well as from his brother-in-law/nephew. It was negative he could see it and they poured it down the drain. They remanded them for [number] days. The authorities said that the tests tested positively. The Tribunal asked how it was that Applicant 1 knew how to read drug tests and he replied that if it was positive they would not have thrown the sample out.
Applicant 1 was then released as his wife paid a surety. The Tribunal asked if there had been a trial. He went to court on the morning of [that date in] April 2015. The Tribunal asked whether there were any documents relating to those hearings. The applicant responded that they gave him a card to appear again. They could not prove anything so they dismissed the case after a month; in May 2015. Asked if he was cleared of all charges the applicant responded that he was. Afterwards he became a different person. Everyone was looking at him differently. People started gossiping that he had dealt in drugs. His reputation was destroyed. His business was closed off. There was an investigation into the police’s actions by the JIP. The JIP was a higher authority within the police force that investigated misconduct within the force and dealt with matters relating to police integrity. The investigator from JIP told the applicant that there had been no proof that he dealt in drugs. It was unfair and the person who had brought these charges against him needed to be investigated. The applicant stated that he then received a threatening call from someone asking “Who is this JIP? You have to tell the investigator in JIP that you were dealing in drugs and that you escaped punishment”. The applicant advised that in prison the police threatened him to own up to the drug dealing. They kicked him.
The applicant then wanted to start over.
The Tribunal asked why the police would allow the applicant to come to Australia given they were allegedly still in pursuit of him. Applicant 1 confirmed they permitted him to leave Malaysia. The Tribunal asked whether the narcotics matter had now been resolved and was over and that it had. The Tribunal asked the applicant to clarify in that case, who he feared on return to Malaysia. He responded that the person who had arrested him (the police officer who had carried out the sting) was shaking because JIP was investigating him. The person being investigated by JIP then threatened him – with knives stating that he should confess that he was a drug dealer and told him not to get involved in the new investigation into his actions. He was warned not to cooperate with JIP.
In December 2015 he went to [Country 1]. Because he had lost everything he thought he could not continue to battle people so he went to get wholesale goods for [his business]. The Tribunal noted that the applicant having initially arrived in Australia departed again on 3 November 2015. The applicant stated that the first time he came to Australia he came on his own looking into opportunities for exporting of [specified products] to Malaysia. He had a licence in Malaysia to conduct such business. The Tribunal noted that if he feared for his life because of everything that had happened to him he would have brought his wife and children to Australia on his first visit to ensure their safety. The applicant stated that it was only when he returned to Malaysia later that 10 Malay people came with knives and threatened him that he realised it was not safe for him to stay there.
The Tribunal asked the applicant to provide information about [Mr A]. The applicant responded he was a politician in the ruling party – a big wig drug dealer. The Tribunal asked how he and [Mr A] were connected. The applicant stated they were recruiting more people and their members were becoming aware of corruption so [Mr A] did “all this” to stop him from opening another branch and to teach him a lesson.
The Tribunal put to the applicant the country information in the DFAT Country Information report which notes that the Royal Malaysian Police are reasonably effective, albeit the Tribunal did not discount corruption in the force. The applicant stated that it was easy for an ordinary working person like him working to get into trouble. They could plant drugs in the car or the house - it was easy to do under the influence of [Mr A].
Asked again what the persecution he would face on return to Malaysia, the applicant stated that when he returned from [Country 1] to Malaysia they went with knives to kill him. [Mr A] was not to know he was no longer interested in politics. The person who organised the sting on his property had to clear his name and had to prove that he was right. He could plant drugs on him to prove he was justified in undertaking the sting.
The Tribunal asked the applicant whether he was still getting rental income from his [number] properties. The applicant stated that they could live in one or two of the houses, but the others were old and the government demolished them. He stated that he was not compensated. Asked if it was to specifically punish the applicant or to make way for other buildings, the applicant responded that it was an act directed against him because he opposed the government.
The Tribunal asked the applicant when the government demolished the houses. He stated it was where Indians and Chinese had land and were told to relocate. The Tribunal noted that the applicant had stated that the demolition had been aimed at him whereas it appeared to have been directed at Indians and Chinese living in the area. The applicant stated that he had told the Tribunal that he had rented those houses to Indians and Chinese people. The Tribunal asked the applicant whether he had any documentation in relation to the sequestration of his houses or written warnings that they would seize the properties. The applicant responded “no” but he would explain it to the Tribunal.
They accused him of having attained the cash in the bank as proceeds of drug sales. The Tribunal noted that it appeared that his [business], the house and trucks were all there and in his possession. The Tribunal asked how [Friend A] had helped him get the businesses started again. The applicant stated that he had submitted documents for the things they had seized. The Tribunal noted that it was mostly money that had been forfeited. The applicant stated they had seized his house, [business], yard and trucks. After he was cleared they were released and returned to him.
The Tribunal asked whether the applicant tried to appeal the forfeiture and his matter to a higher court. His lawyer suggested he could have done that. But the applicant considered that if he acted against the police further he would definitely be killed.
The Tribunal asked the applicant why he had not lodged a protection visa as soon as he arrived in Australia on the first occasion [in] October 2015. The applicant stated at that time he wanted to change his business and he did not come with his family. He had a [relevant Malaysian] licence. The Tribunal noted that on a [temporary] visa he would not have been permitted to do business in any event. The applicant stated he was simply researching [related businesses] at that time.
When he came to Australia the second time with his family, he had been looking after his mother at the time. She had difficulty walking and he liked looking after the elderly so he studied [a related course] in Australia.
The Tribunal noted that the applicant had stated that his wife had attempted suicide on two occasions and could he tell the Tribunal about that. He stated that she became mentally tortured after he was accused of being a drug dealer. They had a lot of respect in the community and then to be called a drug dealer’s wife was too much. She did not proceed with the self-harm because she thought of the future of the children.
The Tribunal asked why the applicant and his family could not relocate to some other area of Malaysia where they could start over. The applicant stated that he lived in a place where he knew everyone. Where could he go? They were all Malays and it would be easy to find out about him. They will say he was accused of being a drug dealer. The politicians have connections everywhere; it would be dangerous.
Applicant 2
Applicant 2 stated that she had no involvement in DAP. She cooked for them and then went off to work at their [business]. She stated that as a result of his involvement in DAP they came to kill him and put him in gaol. She recounted the events of the night of the raid and that they searched everywhere but did not find anything. They took the cash, the [business], and keys to property. Her husband’s sister’s husband (son) was also in the house. They took the car and took them to police station.
Their lawyer told her Applicant 1 would be out on bail shortly. The Tribunal asked Applicant 2 to list all of the assets taken but she did not mention the [number] houses. The Tribunal noted that her husband had stated that they had purchased [number] houses over time. She responded that they were village homes. She confirmed they were rented out. The Tribunal asked whether they still owned the houses and she responded that they were still there. The Tribunal probed further until Applicant 2 stated that there had been an issue with two houses as two were burnt down. They got news that as they were close to each both houses burned down.
The Tribunal put to Applicant 2 that her husband had told the Tribunal that the government had forcibly taken [number] properties and asked Applicant 1 to explain the discrepancy. The Tribunal noted that he had stated that the houses were bulldozed and that they seized the land. Applicant 1 stated that he was doing lots of different businesses and his wife’s job was to look after the [business] and the house. She did not know about all his businesses. He was also concerned that she would commit suicide if she learnt about the houses.
Applicant 2 recounted that business started to go down because their reputation was tarnished and the lorry drivers would not turn up. The employees were also a bit scared and did not come. The [service industry] people cancelled because the applicants did not have work for a while. Then two police officers from JIP made some inquiries but they did not ask her anything – they spoke to her husband only.
Applicant 2 stated there was no way to guarantee Applicant 1’s safety. The Tribunal asked about herself and did she fear harm. She stated that if Applicant 1 were not safe and something happened to him; who would look after her children. The Tribunal asked whether Applicant 2 had mental health difficulties. She stated that she used to get depression and that is why she tried to kill herself. She did not seek medical assistance because she would fine as long as he was fine.
The Tribunal asked Applicant 2 whether she had any fears on behalf of her children. She stated that they were dependent on her and her husband. She feared that something might happen to them. After he was arrested, the children would say, “Here are the kids of the drug dealer” and they did not want to go to school. Their grades went down.
The Tribunal referred to the country information which shows that Indian Malaysians did not appear to face systematic discrimination in Malaysia and that any discrimination was at the lower level. This being the case they could relocate to another part of Malaysia as she and her husband had entrepreneurial skills and the resources to set up businesses. The country information also shows that if they had the money they could hire a private lawyer to assist them with matters relating to wrongful detention and that the majority of cases were processed in accordance with the rule of law and procedure.
Applicant 2 responded that these were general observations. There was misuse of things. They could drag things on.
The Tribunal again observed that the lawyer and the courts must have produced some documents in relation to his case and asked that Applicant 1 submit these. There would also be documentation in relation to the forced forfeiture of his [number] houses. Applicant 1 stated that he had asked the lawyer several times but he would not provide them to him. The Tribunal noted that as a successful businessman he would have known that keeping records was important. He stated that was true. Applicant 1 stated he would provide what he could.
Applicant 1 stated that “they” were still waiting for them, even though the Tribunal noted that they had been out of Malaysia now for quite some time.
Applicant 1 stated that he considered he did not need to tell the Department of Home Affairs prior to arrival in Australia that he had ever had any charges because he was not convicted of anything. They asked him if he had any criminal offences so he said “no” in his [temporary] visa application because that is the truth.
Post hearing submissions
After the hearing the applicants’ migration agent provided a submission dated 12 December 2017, stating among other things:
The applicant and his dependent wife and children are Malaysian citizens and Indian by race and Hindus by religion.
The applicant first lodged his protection visa application at the [specified] Office on 16 February 2016. The above application was refused on 30 August 2016. On 23 September 2016, the applicant lodged his review application to the Administrative Appeals Tribunal.
The applicant’s claims:
The applicant fear or persecution and also fears for his life due to his race and political involvement.
The applicant 1 claims that he was arrested and detained unreasonably charged and discharged by the Court. He also claims he was, discriminated, degraded, harassed and threatened due to his political involvement, he was assaulted and threatened by a gang of people sent to harm him by a politician belonging to an opposition party. Applicants cannot relocate to other parts of Malaysia as he fears that he could be tracked down by his political opponents. He fears that if he returns to Malaysia, his political opponents will harm him and he fears for his life. He also fears for the safety of his family members. Further, he fears the Malaysian police to justify their illegal arrest, will do anything to implicate him. He sustained heavy loss and damage to his business.
Clarifications:
Further, to the hearing, I am instructed to submit the following:
i.After the review applicant’s arrest and detention, his business earnings dropped severely and he was making the bank repayments. Due to the above reasons, his bank balance also dropped very badly.
ii.The review applicant’s spouse, after he was arrested and detained, due to fear and depression, attempted to commit suicide on two occasions. Due to the above reason, the review applicant never told her all his business losses.
iii.When the review applicant left and entered Malaysia, he did not have any problems at the Malaysian airport as he was not having any Court cases or he was not wanted for any reasons.
iv.When he applied for an Australian [temporary] his travel agent applied and his visa. In this respect, he did not fill any form wrongly.
v.The review applicant was not convicted of any offence at any time in Malaysia. He was wrongly charged and thereafter, he was discharged by the Court as evidenced in document filed herein….

In addition, the agent attached the following documents:
·Documents in relation to registration of Applicant 1 and 2’s business. The business registration for the buying and selling of [product 1 and other specified products] and other items is valid until [December] 2017;
·Business licenses;
·Court document showing that [in] May 2015 the applicant appeared in the Magistrate’s Court whereby it was ordered that the applicant was ‘Discharged not Amounting to Acquittal (DNAA) with a bail bond of RM [amount].[1]
[1] Astrowani, ‘Khairuddin, Chang: Prosecution applies to discharge not amount to acquittal’, Accessed on 10 May 2018. In this article relating to another case, the lawyers for the client stated, “by giving his client a discharge not amounting to an acquittal, it would enable the prosecution to reinstate the charge against…at any time. In this case, if there is a hearing (the defence), will produce facts and evidence that the motive of the charge was deception by those higher up and this cannot be done with the retraction of the case”.
·Documents from the [Section 1] Department, Royal Malaysia Police, Selangor: Dangerous Drugs (Forfeiture of Property) Act 1988 [section 25](2)], Notice for Seizure of Property, stating that on [a date in] April 2015, assets had been seized by the police because of a reasonable suspicion that the property “is an illegal property”. The Notices state: AND FURTHER, PLEASE NOTE THAT if you fail to make a claim within three (3) months from the date of foreclosure, the property shall be forfeited immediately upon the expiry of the three (3) months. Assets seized include:
-    Cash funds in bank account totalling RM[amount];
-    Cash funds in bank account totalling RM[amount];
-    Cash funds in bank account totalling RM[amount];
-    A ring; [and various personal items]; and
-    Mixed cash amount RM [amount].
·A letter from the applicant dated [in] May 2015 to the [relevant] Department claiming back the cash, car and other items that had been forfeited by the authorities. The Tribunal notes that these documents do not have any official quality to them.
·Photographs of the applicant’s business locations, his vehicles and employees.
·A statutory declaration dated 21 November 2017 in which the writer from Malaysia declares that he/she has known Applicant 1 for many years and that he was involved in DAP and that the applicant encountered many problems such as getting himself arrested, detained and harassed and that “Once, after the police had arrested him, he was locked up by them or about four (4) weeks”. The writer also states that Applicant 1 is a hard working businessman and is well respected by the local Indian community. The writer states that political influence may have been used to ruin his future to cripple his business with his bank accounts closed upon his arrest. The writer also states that it is her/his view that the applicant may be harmed and harassed by some quarters/people whenever he returns to Malaysia.
·A second statutory declaration dated 21 November 2017 declares that the writer became aware that the applicant all of a sudden became involved in politics and would call him/her to attend meetings and that he did so out of respect and friendship and “The ruling party which did not like the opposition party had a temple as well and it warned us not to develop our temple any further”. Then he/she found out that the Malaysian police had padlocked their house and [business premises]. After 8 days they went back to their [business]. The writer found out that this was all “a political conspiracy”; he lost many of his businesses which were once thriving. The setting up of a DAP branch for the local community landed him into much trouble from the Barisan National party. The writer states that if he returns to Malaysia the Barisan National Party would enquire about them.
·Several other letters were also submitted referring to the applicant’s role in the Indian community and in politics and that one day unknown persons had gone to the applicant’s [business] “wielding swords and warning him not to involve in politics or be affiliated to any political party anymore’. Some of the letters are to a large extent similar to other letters provided.
The applicant also submitted a written submission explaining and rebutting some of the observations made by the department in its decision. The applicant wrote:
The decision maker stated in her decision that she was not convinced that:
a)     I agreed to help DAP and had meetings at our family home.
b)    I was persuaded by [Friend A] of DAP to support DAP.
c)     That my family and I are fearing to return to Malaysia as we will be persecuted by my political opponents and discriminated by the Malays and Malaysian government.
Further, I never faced any interview in my life….Both my wife and I were very nervous when we faced the above interview…
In these circumstances, we may not have explained our claims and answered the questions properly at the interview and could have make (sic) some mistakes.
The applicant corrects a date and then goes on to write:
Reference to paragraph 45
[Friend A] is my school friend. After I travelled to Australia, my relatives could not look after and manage my business. [Friend A] came to my rescue and agreed to look after my business up to now. When I was questioned as to what I spoke to [Friend A] when I last contacted him (before my interview), as speak about my business and various other matters, I could not exactly remember why I spoke to [Friend A] on that day.
Reference to paragraph 46
It is true that I had no intention to continue with any political activities if I return to Malaysia as I do not want to face any problems. But, as my representative submitted, I will support the DAP as I believe that DAP will help the current and future generation of Indians in Malaysia and Malaysia need a political change. I also believed that DAP is the only political party which could voice the need for the minorities in Malaysia.
Reference to paragraph 47
My wife helped in making refreshments for the DAP politicians and supports who attend my home. But, she did not participate in the meetings held at my house prior to my arrest (We never got together after my arrest).
Reference to paragraph 49
After I was arrested and remanded in April 2015, I did not take any steps to recruit any new members. Further, after my arrest, most the new members that I recruited left DAP. Due to the above, the number of members required to open a branch could not be reached. Hence, the new branch in our area could not be opened even after 18 months.
Reference to paragraphs 52 and 53
The decision maker asked me as to why I visited [Country 1] and Australia previously. I explained to her the reasons for my visit to the best of my ability. The reasons for my above visits are genuine. I went to [Country 1] to explore the export market (including the prices of various items) for [his business lines]. In respect of my previous visit to Australia, I wanted to make various inquiries and to visit the [related businesses in] Australia and also to export [identified products]. I also wanted to mention that in Malaysia, I was selling [certain products] and I had a licence for it. I also had a [product source] and had a good knowledge in [that industry] and some knowledge in [the other] business which I gained at my [business] in Malaysia. Many of my customers were asking for Australian [products] and I also noticed that there is a great demand for [another product] in Malaysia, I intended to import the above from Australia. When I visited Australia previously, I did research on exporting Australian products, mainly [these two products] to Malaysia.
My representative also confirmed the above in respect of my previous visit to Australia. Whereas, the decision maker is referring the above to my last visit to Australia which is incorrect.
Reference to paragraph 63
I never stated at the interview that the Malaysian police admitted that the raid on my property was not appropriate. The JIP who came to my house and did the investigation told the raid on my property was not appropriate.
Reference to paragraph 56 and 57
[Mr A] did not know that I have stopped all my political activities to open a branch for DAP in our area. I strongly believe that the people not known to who were watching me, and the thugs who came to harm me must have been sent by [Mr A]. I also wish to mention that one of the thugs who came to harm me that if I go against [Mr A], then [Mr A] will send me to jail.
On my last visit to Australia, I travelled with my family as I feared for their safety as well. When I was arrested and remanded in Malaysia, no one helped me or my family. Considering the above, I cannot expect any one to help my wife and young children in my absence.
Reference to paragraph 58
I ran my businesses with a few employees with great difficulties and fear with a much reduced profit. I could not do anything better.
Reference to paragraph 59
I did not have the support of the Malaysian police as stated by the decision maker. It was the JIP, an investigation unit in Malaysia who visited my house to investigate about my arrest. In fact, the police officers who are responsible for my arrest. In fact, the police officers who are responsible for my arrest would not have like (sic).
Reference to paragraph 69
It may be true that the Malaysian constitution provides equal protection under the law and prohibits discrimination against citizens based on religion, race, decent or place of birth. But, in practice the Malaysian government do not observe the provisions of the constitution.
For example, on the advice of the Malaysian government officials and with the consent of the Malaysian government, many Hindu temples which were in existence for many years were demolished and Muslim Mosques were built on the premises. If the Malaysian government treats all religion same, this could not happen. It is obvious, from police officers to Ministers, Indians in Malaysia are discriminated and treated as second class citizens.
Further, I did business in Malaysia for the last 20 years and have built it up very well and expanded my business in Malaysia. I started my business only with a [specified premises] and expanded it and had 30 employees worked for me. I made very good profit in my business and also had many plans to expand further including importing various items from other countries. In these circumstances, there was no need for me to leave Malaysia.
Finally, I state that I travelled to Australia lastly with my family as I feared to live Malaysia and to escape from persecution in Malaysia….
The applicants have also submitted a copy of a birth certificate showing that on
[date] Applicant 1 and 2 had a child born in Australia.
Country information
Law enforcement and the legal system in Malaysia
The DFAT report notes that law enforcement entities in Malaysia operate at both federal and state level and that local and international sources consider the Royal Malaysian Police (RMP)[2] to be a professional and effective police force. It states:
Royal Malaysian Police (RMP)
The RMP employs approximately 102,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Home Affairs Minister. Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP's responses varies depending on levels of training, capacity or engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam does conduct some human rights training and workshops for police and prison officials. Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern (see 'Police Integrity and Accountability', below). The RMP is 80–85 per cent ethnic Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.
[2] DFAT Country Information Report – Malaysia 19 July 2016.
In its Country Reports on Humans Rights Practices for 2015 the USDOS reported:
The Royal Malaysian Police (RMP) is a national police force that is well trained and equipped….However, the RMP is sometimes limited in its effectiveness in investigations.’[3]
[3] US Department of State 2016, Malaysia 2016 Crime and Safety Report, 29 February at p.11
The Tribunal notes the following information relating to corruption within the RMP:
Police Integrity and Accountability
The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion.[4]
[4] Ibid.
The Tribunal notes a report by Human Rights Watch in 2014[5] which has credited the Malaysian government for implementing many of the Royal Commission's recommendations, although some of the key recommendations including improving investigative capabilities of the police, and creating effective external accountability mechanisms, have not been implemented.
[5] No answers, no apology: Police abuses and accountability in Malaysia, Human Rights Watch, 2 April 2014.
Further, the country information indicates that the Malaysian authorities including the police and judiciary are reasonably effective in combating criminal gangs and there has been a great deal of coverage in Malaysian media regarding the various operations by law enforcement authorities to combat this. In its Country Information Report – Malaysia, DFAT provides the following summary regarding Malaysia's judicial system:
Judiciary
The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level and subordinate courts. Sharia courts operate at state level with jurisdiction over Muslims. The majority of Malaysia's criminal, civil and family law matters are heard in the subordinate civil courts. Judicial appointments are made by a Judicial Appointments Commission; however the Prime Minister has final approval. The majority of the members of the Federal Court are Malay Muslims. Malaysia's highest courts are somewhat influenced by political or religious affiliation. For example, credible local and international human rights organisations considered the prosecution of Anwar Ibrahim to be politically motivated (see 'Political Opposition Members', above). In July 2015, the government removed the Attorney General, Abdul Gani, who had been leading an investigation into 1MDB.
Credible sources advised that defendants generally had adequate time to prepare a defence, particularly where they had financial means to engage private counsel. Government legal aid resources were limited and generally of poor quality. Strict rules of evidence apply in court. However, state-held evidence was not consistently made available to the defence. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods; the International Center for Prison Studies reported that in mid-2014 24.8 per cent of the total prison populations were pre-trial detainees.
The ability for individuals to seek legal redress through Malaysian courts is mixed. Judges receive relatively low salaries, limited training, and appointments were often made directly from university. Selective prosecution and arbitrary verdicts occurred, particularly in instances involving high-profile opposition politicians and human rights defenders.
However, the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.[6]
Ethnicity – Indian Malaysians
[6] DFAT Country Information Report – Malaysia 19 July 2016.
DFAT’s latest report indicates the following:
Indian Malaysians constitute the third largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against Indian Malaysians.
Indian Malaysians predominantly live in major urban centres, including Kuala Lumpur, Penang, Negeri Sembilan,, Selangor and Perak on Peninsular Malaysia. Most Indian Malaysians form part of the working classes but according to 2010 official figures they also represent a high proportion of professionals (15.5 per cent) including 38 per cent of the entire medical workforce. Access to primary and secondary education is high, with 524 state-based Tamil-language schools across Malaysia. However, access to state-based tertiary education remains low with approximately six per cent of student places at public universities offered to Indian applicants. The predominant use of the Malay language can be a major barrier to Indian employment in the civil service. However, in 2015 an Indian Malaysian was appointed as Chief of Police in Kuala Lumpur, the first non-Malay to hold this position.
While some belong to the upper-middle class, many Indian Malaysians remain poor, in contrast to increased prosperity in the Malay and Chinese communities. Gangs comprised of Indians make up the majority of street-level criminal gangs and Indian Malaysians comprise a disproportionately high number of incarcerated persons,, with some figures suggesting they represent 48 per cent of the prison population.
Indian Malaysians freely participate in political life. The Malaysian Indian Congress is part of the ruling BN coalition but does not necessarily receive support from the bulk of the Malaysian Indian community, with many voting for the opposition in the 2013 elections. There are several members of parliament of ethnic Indian origin and three serving ministers within the current government as well as the current President of the Senate, appointed in April 2016.
DFAT assesses that while Indian Malaysians generally have a lower socio-economic position than bumiputera or Chinese Malaysians, they generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.
While there is cynicism that relations between Malaysian politicians and Indian Malaysians have been fostered to shore up support for former Prime Minister Najib in the current elections, the now former Malaysian Prime Minister’s trip to India and the courting of Malay Indians, demonstrates that maintaining positive relations with Indians both in Malaysia and outside is an important goal for any government [7]:
First, the domestic politics. Najib’s ruling Barisan nasional (National Front) coalition sees engagement with India as an important way to win over Malaysian Indians, who make up 7 per cent of the country’s population of 32 million people. As the coming election is going to be closely fought between Barisan Nasional and Pakatan Harapan (Allicance of Hope), the Najib camp recognises that every vote matters.
Barisan Nasional is relying heavily on the Malays vote to win the upcoming election, not least because the bulk of the Chinese vote is likely to remain with Pakatan Harapan. This means the Indian vote is increasingly being viewed by the party coalition as insurance to supplement the Malay vote. This will be even more the case if there are three-cornered electoral contests, particularly where the Malay vote is split two or more ways among different Malay-centric parties, the most dominant being the ruling United Malays National Organisation.
Najib’s India engagement is domestically intertwined with Indians in Malaysia. During his visit, Naib recognised the pivotal role played by Malaysian Indians to bring Malaysia and India closer together, saying they “constitute a special reason why it is so natural for our two countries to forge even closer and friendlier relations”.
Najib astutely chose not to limit his interaction to Modi and New Delhi, as they are mainly associated with northern India and the Hindi language. As Indians in Malaysia hail most from southern India and speak the Tamil language, Najib engaged the state of Tamil Nadu in particular, and elsewhere such as the surrounding states of Andhra Pradesh, Karnataka, Kerala and further afield, Telangana.
…
Where Malaysia sees India as a gateway to the Indian subcontinent, India sees Malaysia as a gateway to Southeast Asia through ASEAN. So long as Najib and Modi reman leaders of their respective countries, Malaysia-India relations will keep progressing, as both countries see the value of bilateral cooperation.
Credibility
[7] ‘Malaysia-India relations at a crossroads- Policy Forum. Strategic engagement, ethnic politics’ Mustafa Izzuddin, 11 April 2018. accessed on 17 April 2018.

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.
Charges against Applicant 1 by police and claims the applicants are being pursued because JIP (an investigating authority in the police) is investigation why and how the drugs operation was wrongfully conducted
Before assessing all of the evidence, the Tribunal will review the uncontroversial evidence before it.
The evidence before the Tribunal indicates that the applicants’ property was confiscated by the police ([Section 1]) and that he was Discharged Not Amounting to Dismissal (DNNA) in the magistrate’s court. The Tribunal has no reason to doubt that these documents are not genuine documents. The Tribunal notes that the country information would indicate that this does not mean that the proceedings were necessarily closed and the applicant had no charges to answer. What occurred after this is unclear in terms of what action either the defendant or the prosecution may have taken. The Tribunal asked the applicant to make available all the documentation he had available in relation to his case but apart from the document confirming the applicant’s case being DNNA little else has been submitted.[8]
[8] Astrowani, ‘Khairuddin, Chang: Prosecution applies to discharge not amount to acquittal’, Accessed on 10 May 2018. In this article relating to another case, the lawyers for the client stated, “by giving his client a discharge not amounting to an acquittal, it would enable the prosecution to reinstate the charge against…at any time. In this case, if there is a hearing (the defence), will produce facts and evidence that the motive of the charge was deception by those higher up and this cannot be done with the retraction of the case”. The case had been fixed for hearing for the next and following day and the court would decide on the request by the prosecution.
The Tribunal asked the applicant to submit any defence documentation that his lawyer might have prepared or any other material that would shed light on his case. The applicant at hearing blamed his lawyer for not having provided such documents to him but the Tribunal finds it unconvincing that the applicants’ own lawyer would not provide the applicants with documents that would support their case to the Tribunal. Nonetheless, the applicant at no time expressed concern that the hearing might come on again or that the proceedings were still afoot and the Tribunal accepts that this aspect of his dealings with the police have now ceased and he is no longer a person of interest to the authorities as it has been recognised that the applicants were not drug dealers. The Tribunal notes that the applicant importantly has never been charged with any offence.
In terms of his money and other items as listed in the forfeiture notices, the Tribunal is satisfied that these were also returned to the applicant in acknowledgement that he had no case to answer in terms of dealing in drugs or any other crimes in Malaysia.
Hence, the Tribunal accepts that:
·The applicants’ businesses and homes were raided by the [Section 1] on the reasonable suspicion that the applicants’ possessions and cash funds were the proceeds of crime;
·The applicant had never been involved in drug dealing;
·The applicant was apprehended for two weeks until he was released and a magistrate found he was Discharged Not Amounting to Dismissal;
·He was arrested and released within two weeks;
·The applicant’s reputation and business income were adversely affected because people perceived him to be someone involved in drug dealing; and
·The secondary applicants (children) were teased at school because it was considered their parents were drug dealers; and
·The JIP was involved in investigating the wrongful apprehension.
The Tribunal accepts that having been wrongfully detained on suspicion of having attained proceeds of crime, would be upsetting and traumatic. For the following reasons, however, the Tribunal is not satisfied that this action on the part of the law enforcement authorities was for any reason under s.5J(1)(a). While the Tribunal accepts that the police’s actions were unwarranted and mistaken, the Tribunal is not satisfied that the raids were conducted with malice on account of Applicant 1’s political opinion or imputed political opinion, his race/ethnicity or for any other reason under s.5J(1)(a). Rather, the raids were conducted on a reasonable suspicion which turned out to be unfounded. The Tribunal finds that as undesirable as their actions were, in hindsight, these were not intended to target the applicants for any reason relating to s.5J(1)(a) as to render the applicants refugees.
The Tribunal’s finding in this regard is reinforced by the fact that Applicant 1 was released on bail and the charges dismissed. Furthermore, the confiscated items were returned to him. The applicant himself at hearing stated that he was of no interest to the police in relation to the claimed drug charges, and indeed the fact that the Applicant continued to travel in and out of Malaysia without difficulty after the raids, supports the Tribunal’s contention that the applicants are of no interest to the authorities or anybody else in Malaysia who would harm them.
The country information shows that Malaysia’s law enforcement authorities operate reasonably effectively as do the criminal and legal systems. Indeed, Applicant 1 told the Tribunal that a higher authority within the police (JIP) had been investigating the police’s actions in conducting the raid, indicating that the police do not act with total impunity in Malaysia and that Malaysian society is not lawless.
The Tribunal does not accept, however, that those who raided the applicants’ businesses and home are now out to avenge themselves by frightening the applicants from seeking redress. It was open, for example, to the applicants to provide documentation from JIP to confirm the applicants’ claims that they are now being pursued by the police who conducted the raids, and who want to justify themselves and have threatened to kill Applicant 1 if he co-operates with JIP. Further, the applicants’ ability to leave Malaysia and return without difficulty demonstrates that the police have no interest in harming the applicant or his family. The Tribunal finds that in light of the limited evidence pointing to the applicants ever being targeted specifically on account of their political opinions and their race/ethnicity that the applicants do not face a real chance of serious harm on return to Malaysia on account of having their matter investigated by JIP. The Tribunal does not accept that the applicants face a real chance of serious harm by the police involved in the raids, or any other parties, were the applicants to return to Malaysia now or in the reasonably foreseeable future, for any reason and the applicants do not meet s.36(2)(a) in this regard. Had the police wanted to punish the applicants they could have organised to do so on Applicant 1’s initial trip to Malaysia from Australia and would have organised for him not to be able to leave the country, along with his family.
As the Tribunal has rejected the applicants’ claims that they are now being pursued by the police because JIP is investigating the errors involved in the raids at the home and businesses of the applicants, the Tribunal is also not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia there is a real risk that they will suffer significant harm by way of being arbitrarily deprived of their lives; that the death penalty will be carried out on them; or that they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or that they will be subjected to degrading treatment or punishment. As such, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa) because they are being targeted by the police to avenge the investigation into their conduct.
While the Tribunal accepts that the applicants several years ago suffered some reputational damage and that their businesses may have been adversely affected, the Tribunal does not accept that such reputational damage constitutes serious harm, particularly when it has been open to the applicants to pursue redress via JIP.
The applicant’s claimed political activities
The applicants’ account regarding Applicant 1’s political activities also strains credulity. The Tribunal found the applicants’ evidence was at times disjointed, confusing and at other times contradictory. For example, the applicant at times contradicted himself by saying that he had lost everything, yet it would appear from the decision of the department which was provided to the Tribunal for the purposes of the review, and from his own submission to the Tribunal above, that these are still operating.
Furthermore, the forfeiture notices do not indicate that the applicants’ property or businesses were seized. While the properties and businesses may have been sealed off for a certain period while the police investigations were afoot, the applicant has provided little evidence by way of forfeiture notices or other documentation that his businesses were confiscated.
Given the applicant since his arrest and release has travelled to [Country 1] and indeed Australia with the intention of diversifying and expanding his business interests, the Tribunal is not satisfied that as a result of the raid on his properties Applicant 1 ever lost his properties or his businesses, and the evidence before the Tribunal indicates that they are continuing concerns being run on behalf of the applicants by some other party.
Applicant 1 at hearing also stated that he owned [number] houses he rented out to Indians and Chinese tenants. He stated that because of his claimed political activities [number] of these were razed to the ground by the government. Applicant 1 claimed that the government’s action was a direct result of his activities with DAP. There was no compensation and he had no official documentation to provide the Tribunal demonstrating that his land and property had been sequestrated.
When the Tribunal asked Applicant 2 about this matter, she stated that several of the houses had burned down. When the Tribunal put to Applicant 1 the inconsistency with his account, he stated that he could not reveal the extent of the damage to their properties to Applicant 2 because he was concerned that she would attempt suicide as she had in the past. The Tribunal appreciates that Applicant 1 may have wanted to shield Applicant 2 from the extent of their losses, however, the Tribunal does not accept that the applicants’ ever lost their properties or their combined businesses, including [number] houses. The Tribunal accepts that Applicant 2 suffered serious mental health issues in response to the raids on her property and the confiscation of cash and other items, but the Tribunal does not accept Applicant 1’s explanation that he told her that only two properties were burned because if he genuinely wanted to protect her from knowledge of loss to their properties, he would not have told her anything about any of the [number] houses being damaged. The Tribunal finds that this oral evidence which had not previously been raised at primary review was fabricated by Applicants 1 and 2 for the purposes of enhancing their claims.
The Tribunal therefore rejects that the applicants lost any properties or businesses in Malaysia, even if business was affected adversely for a period because people in their community started to view them with suspicion after the raids.
The applicants’ arguments have been that it was Applicant 1’s political activities with DAP which led to the raids on his home. The Tribunal is not satisfied, however, that such a nexus exists and indeed rejects that it does. The applicant’s claims about his activities with DAP were vague and did not convince the Tribunal that they ever occurred.
In the first instance, Applicant 1 was able to say little about what DAP stood for, other than “equality among the races” and that he wanted to advance the rights of Indians through the party. While a minor issue, the Tribunal notes that in the hearing Applicant 1 continued to call the Democratic Action Party, the Democratic Act Party. The Tribunal would have thought that someone who was so committed to the party would be able to spontaneously refer to the name correctly. This is not something that the Tribunal places significant weight on, but it does contribute to the Tribunal’s lack of conviction that Applicant 1 ever joined such a party.
The Tribunal acknowledges that an applicant is not required to corroborate their account. Nonetheless, as put to Applicant 1 at hearing, establishing the branch of a political party is an event that would have a considerable paper trail and indeed cyber trail. The applicant stated that he only recruited from among his employees and their families and associates so as to maintain a low profile, as he did not want his customers to know he was politically affiliated, and did not want to offend their political sensibilities and thereby lose business. The Tribunal does not accept that had Applicant 1 been recruiting he would have been able to confine his recruiting activities to word of mouth without using more effective tools such as pamphlets, the internet and other means of communication of which there would be evidence. Nor does the Tribunal accept that he was able to keep his activities confined to his family and employees given the high profile he was taking in establishing a branch of DAP.
The Tribunal encouraged the applicant to discuss any strategies they may have developed to recruit members but the applicant was unable to discuss any such strategy which would have satisfied the Tribunal that the applicant and a person called [Friend A] ever developed any strategy to establish a branch of the DAP in the applicants’ home area, with plans to recruit new members, because the Tribunal does not accept that the applicants’ as a whole, were ever involved in the activities of the DAP or any other political movement in Malaysia.
Further, the Tribunal does not accept that in opening a new branch, the applicant would not have some evidence of his activities in the Party. The applicant’s account that he never received a receipt for the substantial sums he provided the Party does not seem plausible as even if he wished to remain an anonymous donor, the Tribunal considers that there would be some record of the contribution having been made.
The Tribunal also found the applicant’s account that he wanted to be active in the Party to the point he was prepared to recruit members and open a local branch, but also wanted to keep at arms’ length so as not to offend his customers who might have different political views, incongruous. The applicant claimed that he was given an important role in the establishment of a new Branch. On the one hand he attempted to convey that he had a high profile to the point of being targeted by the government through trumped up drug charges, and on the other hand, wanted to convey that he was acting behind the scenes in a clandestine way in terms of his political activities. The applicant claimed to have held meetings at his home involving some 50 people. The Tribunal considers that if the applicant had wanted to remain anonymous about his activities holding meetings at his home, would have drawn significant attention to himself.
The applicant’s accounts of the meetings he claims he held at his home were also vague and lacking in detail. It is unclear to the Tribunal what was discussed, whether any goals were established, what role people might have been given, or any other matter that would lead the Tribunal to find that such meetings were ever held at the home of the applicants.

Given the serious doubts the Tribunal has that Applicant 1 ever worked for a political party, the Tribunal also has serious doubts about the existence of [Friend A]. Had [Friend A] had such a prominent role in the DAP the Tribunal considers that he would have provided Applicant 1 with evidence of his membership and his existence, this is particularly so as it is claimed that [Friend A] and Applicant 1 continue to have some dealings. In the submission to the Tribunal by Applicant 1 he wrote, “I spoke to [Friend A] when I last contacted him (before my interview), as we speak about my business and various other matters…”, clearly indicating that the applicant is entrusted with discussing the applicants’ business matters and that a claimed friendship exists. It does not make sense to the Tribunal that if [Friend A] existed and was a friend of Applicant 1 he would deny providing Applicant 1 with evidence of [Friend A’s] involvement in DAP as well as evidence of Applicant 1’s involvement in the DAP. From the vague evidence provided by Applicant 1 about [Friend A], as well as the limited evidence that he exists, the Tribunal rejects that such a person called [Friend A] who approached Applicant 1 to become involved in DAP ever existed.
The Tribunal is also perplexed because it would appear that Applicant 1 appears to have borne the brunt of the government’s anger over the plans to open a branch of the DAP in their home area. Applicant 1 claims he had properties bulldozed and land sequestrated, as well as having been falsely accused of drug charges, yet [Friend A], who the applicant claimed was living 500 metres away, appears to be living in Malaysia in the same area without difficulty or harassment. Applicant 1 claimed never to have joined the Party, whereas Applicant 1 made it clear that [Friend A] was a member and a prominent member at that. Applicant 1 was unable to explain why [Friend A] was not targeted but his own family was, by the authorities, the police who raided his properties, criminal gangs, and others.
The Tribunal notes that some letters of support, including statutory declarations confirming the applicants’ account of having been targeted because of Applicant 1’s involvement in the DAP have been submitted. The Tribunal is unable to place other than limited weight on these statements and declarations, however, as probative evidence as the Tribunal is not convinced of their provenance. They were supplied to the Tribunal after the Tribunal suggested that there would be evidence by others if the account presented were genuine. In response, several letters have been submitted. The Tribunal is not satisfied that these letters were written spontaneously by the authors and not at the applicants’ behest. Secondly, there is nothing official about the statements and the Tribunal is unable to be satisfied that they have been written by the authors as claimed. Given the amount of official documentation that would have been available to the applicants in terms of DAP documents with DAP letterheads, for example, the Tribunal finds it incongruous that the applicants have only been able to provide statements that could have been typed up at any time, by any person.
The Tribunal also attempted to learn from Applicant 1 at hearing as to who [Mr A] was. Applicant 1 seemed to indicate that he was responsible somehow for the raids on his properties yet he was unable to even say what [Mr A’s] surname was. Applicant 1 was unable to speak about the personality of [Mr A] and his direct role in the raids, apart from saying that he was a member of the opposition party in Malaysia. The applicant’s evidence about [Mr A] was so vague, and he provided such little evidence, leading the Tribunal to reject that anyone called [Mr A] who organised raids on Applicant 1’s properties and businesses exists.
Given that the Tribunal does not accept that the applicants’ were ever targeted on the basis of Applicant 1’s involvement in DAP or any other political movement, the Tribunal rejects that the motivation for the raids on the applicants’ properties and businesses and the forfeiture of cash and other items, was politically motivated and that the applicants continue to be of interest to the authorities or anyone else in Malaysia for any reason.
The Tribunal places significant weight on the applicants’ being able to leave Malaysia (and in the case of Applicant 1 being able to return) without difficulty. The migration agent has stated that Applicant 1 (as for all the applicants) did not have any cases before the courts and therefore no one would have had an interest in him passing through the Malaysian airport on several occasions. The Tribunal rejects this claim. On the one hand, Applicant 1 claims he was the victim of underground and sinister government, opposition and criminal forces who were prepared to kill him if he did not stop his political activities and who were prepared to abuse instruments of law by conducting raids on his property with the aim of forcing him to admit he was a drug dealer. On the other hand, such sinister forces were not able to prevent him from leaving the country to be able to continue monitoring him. The Tribunal finds that the applicants have been able to leave Malaysia, and in the case of Applicant 1, return there to see his businesses and so forth, because he and his family are of no interest to the authorities, a person called [Mr A], the police who conducted raids on his property or anyone else, for any reason.
The Tribunal places significant weight on the fact that Applicant 1 travelled to [Country 1] and then returned to Malaysia and on that occasion returned again to [Country 1]. The applicant has written that these visits were genuine in terms of him wanting to explore possibilities of exporting and expanding his business interests. In respect of his initial visit to Australia (without his family) which occurred on October 2015, the Tribunal notes that it is well after the events of the claimed political vengeance by the police and the government who bulldozed his properties. The Tribunal considers that had Applicant 1 and his family had a genuine fear of persecution in Malaysia because of political animosity towards him and due to threats to kill, that he and his family would have departed Malaysia and sought refuge, even if temporarily, in [Country 1] prior to planning to come to Australia. Applicant 1 justified his departure alone from Malaysia when he came to Australia in October 2015, on the basis that he thought that it was important that he survive otherwise his family would not be able to go on. The Tribunal considers, however, that had anyone in the government, police or gangs or anyone else been interested in harming Applicant 1 that they would have continued to harass his family in his absence. Yet at hearing it was claimed that Applicant 2 and her children were not harassed during this time.
In the submission dated 12 December 2017, the migration agent states that the applicants fear that if Applicant 1 returns to Malaysia, his political opponents will harm him and he fears for his life and that he fears the Malaysia police will do anything to confirm that their illegal arrest was warranted by ensuring Applicant 1 is charged with drug dealing. Yet Applicant 1’s conduct was not reflective of such fear.
Applicant 1 has been clear in stating that when he came to Australia in October 2015 he did so for business purposes as he wanted to make inquiries about exporting [specific products] from Australia. The Tribunal considers that had Applicant 1 held a genuine fear for his safety and that of his family at the time he came to Australia, in October 2015, after having escaped his circumstances where he had been pursued by the authorities, threatened and harassed due to his political and imputed political opinion, Applicant 1 with his resources would have sought to lodge a Protection visa application on arrival on the first occasion.
It is also telling, the Tribunal considers, that Applicant 1 returned to Australia with his family [in] December 2015, but only applied for this Protection visa on 16 February 2016, meaning there was a delay of almost two months. The Tribunal considers that had Applicant 1 and his family held a genuine fear of persecution, on arriving in Australia in October 2015, Applicant 1 would not have returned to the country of the claimed persecution with ease and secondly, on arriving in Australia on the second occasion, would have lodged a protection visa application on arrival to ensure the safety for himself and his family. Applicant 1 seemed to indicate that his fear had escalated only after he was confronted by people wielding swords on the second occasion he returned to Malaysia, but the Tribunal does not accept that had the applicant genuinely held fears that he was being targeted due to his political opinion or for any other reason that he would not have sought refuge in Australia on the first occasion he arrived here instead of researching business projects.
For all of these reasons the Tribunal rejects:
·That a person called [Friend A] ever approached the Applicant about setting up a branch of the DAP or any other political party in their home area;
·That [Friend A] exists;
·That Applicant 1 became involved with DAP and agreed to set up a branch but only on the basis that he remain in the background;
·That the applicants’ ever hosted potential and current members of the DAP in their home at any time;
·That the applicants’ homes were bulldozed by the government as punishment for Applicant 1’s alleged involvement in DAP;
·That a political figure called [Mr A] organised raids on the applicants’ properties with the intention of setting up trumped up charges of drug dealing with the intention of destroying his properties and reputation;
·That the figure of [Mr A] exists;
·That gangs or anyone else with swords approached Applicant 1 and his family on his return to Malaysia after coming to Australia to warn him not to become involved in politics again, and
·That he and his family were monitored by underworld figures related to the government or anyone else; and
·That the after JIP started to investigate the police officers involved in the raids on the applicants’ property, these officers started a campaign to frame the applicants’ with drug charges to justify their operations and forfeiture of cash etc.
It follows that the Tribunal does not accept that there is a real chance that Applicant 1 or any member of his family will be targeted on return to Malaysia on account of his political or imputed political opinion. As such, the Tribunal finds that there is not a real chance that on return to Malaysia the applicants would be subjected to any serious harm as outlined in s.5J(5) of the Act (but not exhaustively), now or in the reasonably foreseeable future by any reason of s.5J(1(a).
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a) on account of his political or imputed political opinion.
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). As the Tribunal has not accepted that the applicants have been targeted in any way on account of their political or imputed political opinion, and that there is not a real chance that they face serious harm on return to Malaysia now or in the reasonably foreseeable future, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Malaysia, there is a real risk they will suffer significant harm, including that they will be arbitrarily deprived of their lives; they will suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or that they will be subjected to degrading treatment or punishment, as required by s.36(2)(aa).
Ethnicity/race/religion
It has also been claimed that Applicant 1 and his family have been targeted by the government, authorities and others due to his social status as a successful Indian businessman who helped the DAP. As the Tribunal has rejected that the applicants were ever targeted on account of Applicant 1’s political or imputed political opinion or activities or for any other reason, the Tribunal does not accept that he was targeted on account of his race, ethnicity or religion.
In terms of Applicant’s 1 claims regarding his social status as a successful Indian businessman, the Tribunal rejects the claim that he had ever been persecuted on this basis alone given that he continued to travel to Australia to undertake further business and expand his opportunities. The Tribunal finds that there is not a real chance that the applicant would suffer serious harm on account of social status or for any other reason or that there are substantial grounds for believing that as a necessary and foreseeable consequence of the family being removed from Australia to Malaysia, they will suffer because they are a member of a particular social group “members of a family of a successful Indian businessman”.
The country information does show that Indians in Malaysia do face some low level discrimination but given that the applicants have been able to operate several businesses, purchase several properties and large vehicles as well as save significant funds, the Tribunal does not accept that the applicants will be targeted for any reason or deprived of any ability to make a living or for any other reason under s.5J(5) of the Act. The applicants have, and continue to be able to carry out their businesses, to diversify and expand. The Tribunal is unable to identify any reasons for the applicants to claim that they have been targeted racially or ethnically, and the Tribunal finds there is not a real chance that they will face serious harm on return to Malaysia now or in the reasonably foreseeable future on account of their ethnicity and race, and not least because the Tribunal has dismissed that the applicants were ever targeted for their political affiliations, opinions or imputed opinions and they do not meet the requirements of s.36(2)(a) in this regard.
For similar reasons, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Malaysia there is a real risk that the applicants will suffer significant harm by way of being arbitrarily deprived of their lives; that the death penalty will be carried on them; or that they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or that the applicants will be subjected to degrading treatment or punishment. As such, the Tribunal is not satisfied that the applicants are person in respect of whom Australia has protection obligations under s.36(2)(aa) on account of their ethnicity/race.
Applicant 2 – claims of Applicant 1’s spouse
The claims of Applicant 2 are those of Applicant 1 as a dependent. Nonetheless, the Tribunal considers that Applicant 2 has an unarticulated claim relating to her psychological condition. The Tribunal notes that it does not have any medical evidence before it that she attempted suicide on two occasions. Nonetheless, the Tribunal is prepared to accept that this is the case. As the Tribunal has rejected that the family was ever targeted by the authorities or anyone else on account of their political opinion or imputed political opinion, or for their race/ethnicity, the Tribunal finds that there is no nexus between her condition and claims regarding Applicant 1’s political activity or the family’s race and ethnicity. The Tribunal does accept, however, that Applicant 2 may have experienced a deep sense of embarrassment, loss of face and depression due to having her family’s businesses and property raided which led her to attempt suicide.
Applicant 2 stated at hearing that she had not sought professional medical assistance for her condition either in Malaysia or Australia but the Tribunal does not see any reason why given she has the means, she could not seek out appropriate medical help in Malaysia on return. The Tribunal is therefore satisfied that Applicant 2 will not be deprived of assistance for her mental health condition on return to Malaysia, for any reason, and that she will not suffer serious harm for any other reason listed under s.5J(5) of the Act. For the reasons given above, the Tribunal is not satisfied that Applicant 2 is a person in respect of whom Australia has protection obligations under s.36(2)(a) on account of her psychological condition.
The Tribunal is also not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of Applicant 2 being removed from Australia to Malaysia there is a real risk that she will suffer significant harm by way of being arbitrarily deprived of her life; that the death penalty will be carried out on her; or that they will be subjected to torture; she will be subjected to cruel or inhuman treatment or punishment; or that she will be subjected to degrading treatment or punishment. As such, the Tribunal is not satisfied that Applicant 2 is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The applicants who are minors
Applicants 1 and 2 spoke of their fears for their children because of their claimed political opinion and ethnicity and race and that they held fears for their safety due to the parents having been targeted by the authorities and other criminal and political forces. The Tribunal has rejected that political forces, the authorities, [Mr A] or anyone else ever targeted Applicant 1 and 2, because it also does not accept that Applicant 1 or 2 were ever involved in any political activity. As such, the Tribunal is not satisfied that the children will face a real chance of serious harm on account of being the children of Applicant 1 or 2 (who held political opinions), now or in the reasonably foreseeable future. As such they do not meet the requirements of s.36(2)(a) of the Act on account of their parents’ claimed political or imputed political opinion.
The Tribunal has similarly rejected that the children’s parents will be targeted on account of their ethnicity/race and the Tribunal has not identified any reason that the children will be so now or in the reasonably foreseeable future. The children’s parents are well-resourced and the Tribunal finds that any discrimination they face will be low level because their economic situation will provide them with opportunities that children of Indian background from lower economic circumstances would not have.
The Tribunal has also taken into account that the applicants who are minors experienced some teasing at school due to the botched raids on their properties and that they carry a stigma now. Nonetheless, the Tribunal is not satisfied that teasing meets the threshold of serious harm, particularly when the events occurred some three years ago now.
The Tribunal finds that the applicants who are minors do not face a real chance of serious harm on return to Malaysia now or in the reasonably foreseeable future and do not meet s.36(2)(a) for reasons of their parents’ claimed political opinions, for their ethnicity/race or membership of a particular social group. Similarly, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Malaysia there is a real risk they will suffer significant harm by way of being arbitrarily deprived of their lives; that the death penalty will be carried out on them; or that they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or that they will be subjected to degrading treatment or punishment. As such, the Tribunal is not satisfied that Applicant 1 and 2’s children are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

The Tribunal accepts that children at school may have taunted Applicant 1 and 2’s children, referring to them as the children of drug dealers but the Tribunal does not accept that this conduct amounts to serious harm as envisaged by s.5J(5)(a) and that it is not for any reason outlined in 5J(1)(a).
At hearing the Tribunal noted that for Applicant 1 to enter Australia on his [temporary] visas that he may not have advised the Department of Home Affairs that he had on one occasion, albeit wrongly, been charged with offences. Nonetheless, the Tribunal accepts that Applicant 1 was assisted by someone else in preparing his applications and accepts that applicants never intended to mislead the immigration authorities because he had never actually been convicted of any crimes.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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.
…

[2018] AATA 2272

13 May 2018

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