1616298 (Refugee)

1616298 (Refugee) [2018] AATA 2586 (25 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616298
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Sean Baker
DATE:25 May 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 25 May 2018 at 4:57pm
CATCHWORDS
Refugee – Protection Visa – Malaysia – Race – Indian Malay – Religion – Roman Catholic – Political profile – Member of Bersih – Active involvement in the Bersih rally – Divorcee – Vague and generalised evidence – Credibility concerns – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 9 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 28 June 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in Malaysia and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided a copy of his Malaysian passport to the Department. On the basis of this information and without any information to the contrary the Tribunal accepts that the applicant is who he claims to be, that he is a national of Malaysia, which is also his receiving country.
The applicant claimed at the hearing that he did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal I accept this claim and find that the applicant does not have a right to enter and reside in any safe third country.
Claims
In his protection application the applicant claimed
·That he left Malaysia because he was hunted by the Malaysian Government for his active involvement in the Bersih rally to protest for clean electoral reforms. He claimed he is a member of Bersih.
·He fears he would be subject to unlawful detention for an indefinite period under a newly enacted law SOSMA.
·He was vocal on the ‘Allah’ issue, in which the government prohibited Malaysian Catholics from using the word Allah in their weekly magazine.
·The applicant claims that Christians are a minority and are bullied and persecuted.
·He was harassed by a group of Malay men accusing him of being anti-government and telling him to leave the country because Malaysia belongs to Malays and Indians are cheap labour from India.
·He did not seek help within his country because all of his activities were probably monitored and he did not want to expose his children to harm and attract attention.
·He considered hiding in his grandparents’ home in Taiping but it was not safe there as it was widespread in the media that Bersih members were being searched for by the police everywhere.
The applicant provided a copy of the delegate’s decision to the Tribunal.
At the hearing he submitted:
·A number of documents titled ‘change of name and religion by deed poll’ for various people, with the applicant’s wife’s witnessing as an advocate and solicitor;
·Statutory declarations made by the applicant’s wife that she was present when the above various people changed their name and that their signature appears on these documents along with hers;
·A medical report dated 3 September 2016 for the applicant from a surgery in Penang, which records that the applicant presented on [date]/8/2015 alleged being assaulted on the [date]/8/2015 with pain on the face and [hand]. The report notes that the [hand] and [one] side of his face were swollen and tender;
·Internet printouts with claims that Christian pastors are going missing in Malaysia;
·News reports on the disappearance of Pastor Raymond Koh;
·News reports on the prohibition of Christian groups using the word “Allah”;
·Other news reports;
·A judgment, Dalip Kaur v Pegawai Polis [1992] 1 MLJ 1;
·What appears to be a title for land made out to the applicant and his wife;
·An employment letter dated 28 March 2017 from his employer for his work as [an occupation] from 2003 until 2013 in Selangor; and
·Divorce documents dated 23 July 2010 and 8 November 2010 for the applicant and his wife.
On 22 March 2018 the applicant informed the Tribunal that he had had a [medical condition] and wanted to send in medical records. He was informed how to do so. To date no medical records have been received. I am willing to accept that the applicant recently suffered a [medical condition].
Credibility
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (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 applicant’s claims suffer from several difficulties which lead me to doubt his overall credibility, as I noted to him at the hearing. I have set out these difficulties below.
It is relevant to note that the applicant said he had been assisted by his wife in the preparation of his written claims, and said that as far as he knew his written claims were correct and there were no mistakes he wished to correct at the outset.
Difficulties with his ‘deed poll’ claim
The applicant claimed at hearing that the main issue that led him to fear returning was because of the work he had done assisting his wife to prepare and witness deed polls when someone wanted to revert back to the Hindu or Christian faith from Islam. He said that this was very sensitive and had led to him being assaulted, and to fear that he would be harmed because of this.
In support of this claim he provided a number of documents titled ‘change of name and religion by deed poll’ for various people, in which they stated that they were changing their name and religion, with the applicant’s wife’s witnessing as an advocate and solicitor. He also provided statutory declarations made by the applicant’s wife that she was present when the above various people changed their name and that their signature appears on these documents along with hers. These documents date from 2002 and 2008.
At hearing he said that his wife was a lawyer and they used to do deed polls when someone wanted to re-convert back to Hindu or Christian, the person would do a deed poll affirmed by a lawyer and then you would have to go to an agent and the religious office and the officer would have to endorse it. He explained that what usually happened was that a Hindu or Christian young man would be seen out with a young Muslim woman and be pressured to convert to Islam by the police, and then after a few months or years they want to return to their original religion. He said that after a few of these cases he and his wife were called up to the office and they said it is illegal to do deed polls, but they argued that according to the law it can be done. He said then in 2010 they made a law that deed polls are no longer valid. He said that by that time his name was a little bit known.
He said that around [date] August 2015 when he arrived back in Penang after a Bersih rally, he went to go and have tea in a stall, and he saw a group of Malays. One of them was someone who used to work in the religious office whom he knew. He asked the applicant whether he was still doing the deed polls with his wife. The applicant explained that the law had been changed in 2010 so they were not doing them anymore. Then some other Malay guys with him started arguing with the applicant saying how could he convert Muslims to non-Muslims. The discussion got very heated so the applicant excused himself and left. He went to church for evening mass and when he got out of his car two motorbikes came up and the people on them started hitting him with helmets. The applicant shouted for help and the church members came out. The applicant was so shaken he could not attend the service, he just sat there. The next day he went to a Doctor but because this was a religious case, and Malaysia is very sensitive on religious issues, he did not go to the police.
He said that later he went to his neighbours and whilst he was there 30 people ambushed his house, if he had been at his house that day he doesn’t know what would have happened. He said then he went to [Country 1] and then he left to come to Australia. He said he chose to come to Australia as he wanted to go to a Christian country.
I noted to the applicant that he did not seem to have mentioned his ‘deed poll’ claim in his written application to the Department. The applicant responded that he had not been sure whether the immigration officer was a Muslim, and so he was afraid of putting this down, because for a Muslim it would be a very sensitive matter. I explained to him that I might consider this an unlikely explanation for why he had not included it – especially as he had mentioned in his written claims that he had been vocal on the ‘Allah’ issue, which might also be considered a problem for Muslims, yet he had not mentioned the deed poll issues. He said that the Allah issue was not so sensitive, but converting a Muslim is a very sensitive issue. I noted to him that he had claimed he was harmed in Malaysia but had written that he was harassed by a group of Malay men accusing him of being anti-government and telling him to leave the country because Malaysia belongs to Malays and Indians are cheap labour from India, and had not mentioned the claimed incident outside the church, nor the claimed ambush of his house. He said maybe he had not mentioned because there was not space there. He said that he might have overlooked mentioning this. I noted that I may come to the view that these things had not happened. He said when he came here he was not in a good frame of mind as he was missing the children.
He said that the group of guys that came to his house looking for him have told his uncle that they will get the applicant. He said that his son had told him that they had stopped his car twice and asked after the applicant, they knew he was in [Australia].
I asked why these people would be upset about the deed polls if he and his wife had stopped doing them in 2010. He said that in Malaysia it became very sensitive for a very long time. He said these people didn’t know what was happening and this has just triggered them and they believed all the people who did this were murtad, they should be killed. I asked if this was the case, why these people had not created problems for him and his wife earlier than 2015, by which time they had not been doing deed polls for at least 5 years. He said it was because this person met him at the tea house, if he had never seen him he would not have instigated that.
I also raised with the applicant my concerns that he was not mentioned at all in the documents he had supplied – these mentioned his wife as the person witnessing the ‘deed poll’ and then as the author of the statutory declarations, but his name did not seem to me to appear anywhere. He said he was not mentioned in the papers but in action he was involved, he took them to the commissioner of oaths.
I further noted with the applicant that I had concerns with the medical report he had obtained, because it was dated a year after the claimed treatment, and because of this and my other concerns I may place no weight on this document as supporting his claims to have been assaulted. The applicant responded that he called the doctor and asked him to provide it, he had only visited him once, he did not go back, the doctor has asked the applicant what was the reason but the applicant could not tell him it was a religious issue, so he just told him some other reason.
I have carefully considered the claims of the applicant but I find that there are significant difficulties with this claim which lead me not to accept it.
Firstly, I find the applicant has not provided a convincing reason for his omission of this claim from his written claims. He claimed that he was concerned that a Muslim immigration officer might have been offended. I find this far-fetched and implausible – the applicant has not explained on what basis he knew or believed that an immigration officer would be a Muslim. Further, as I discussed with him, it does not appear to have stopped him from mentioning the ‘Allah issue’ in his written claims to the Department. Even if this had been his thinking, there appears no reason he could not have included the assault outside the Church in his written statement, or the attempted ambush at his house, but he did not include these claimed instances of harm.
Secondly, the applicant was not able to convincingly explain why the attacks happened in 2015, some 5 years after he and his wife ceased undertaking deed polls. He claimed that this was because the person from the religious office saw him at the tea house then and had not seen him and therefore not had an opportunity prior to this. I find this claim highly unlikely – the religious office person would have had to have felt very strongly to have brought up events that occurred at least 5 years prior to their claimed chance encounter – and the consequences of this, that the applicant was attacked by two people on motorbikes, and that his house was then ambushed by 30 people – seem out of all proportion to a reaction to a chance encounter some 5 years after the applicant had ceased having anything to do with preparing deed polls.
Lastly, there is some doubt in my mind that the applicant in fact had any role in preparing the documents – they mention only his wife and although he claims he had some role in taking the deed polls to the relevant office or offices, his evidence on this was not detailed.

Considering these concerns, I find that I do not accept that these things have happened. Whilst I accept the documents which his wife prepared to assist people to revert to their former religion, I do not accept that the applicant played any role in the process whatsoever. Hs evidence on this was vague and generalised, and I find it highly significant that he did not include this claim in his written claims to the Department. I place no weight on the documents provided which include his wife but no mention of the applicant as supportive of his claims for these reasons. I do not accept that he assisted or helped with the preparation or lodging of these documents. I do not accept therefore that he had any contact with the religious office, nor that he was called up to explain why he was preparing or assisting in the preparation of deed polls. It follows that I do not accept his claims that he got into an argument some five years after they had ceased preparing deed polls with one of the people who used to work in the religious office and other Muslim people there. I do not accept that he was attacked in the church grounds by two men on motorcycles for any reason connected to this argument or for any reason connected to his claims. I do not accept that he attended a doctor for treatment for the injuries from this assault the next day, and place no weight on the medical report given the reasons set out above. It follows that I do not accept that his house was ambushed by 30 people sometime after this – I found this claim exaggerated, lacking in detail and implausible. I do not accept that the applicant has had any involvement in assisting people to re-convert from Islam, other than having been married to his former wife.
I have considered whether the applicant would face harm as the husband of someone who prepared documents to assist people to re-convert from Islam. I do not accept that there is any chance of him being harmed for this reason – firstly, the applicant provided divorce certificates which show that his wife divorced him in 2010. Given that she petitioned for divorce, and my concerns above, I do not accept his claim at the hearing that they are back together now, nor that they divorced as a way to avoid these issues. Secondly, he said that after the law changed in 2010 they had no longer prepared these documents, and so it has been a very considerable number of years since his wife did this work. I find therefore that there is only a remote or far-fetched chance of the applicant being harmed on the basis of his past marriage. Given these findings I do not accept that the applicant would be imputed to have assisted in helping people to convert back either.
Having considered this claim, I have come to the conclusion that the applicant manufactured this claim, starting with the established basis that his ex-wife assisted people to re-convert, inserting himself as a party who had then suffered harm for this reason. I find the applicant has deliberately manufactured his part in this claim and this leads me to find he is not credible or a witness of truth.
Bersih claims
The applicant’s initial claims were, in part, around his claimed Bersih involvement. Bersih was a political movement of opposition groups and other parties opposed to the corruption of the former government.
The applicant had little to say about this claim at the hearing, focusing more on the above claim. When he did discuss this claim his responses were at odds with his written claims. The applicant said that he had attended Bersih rallies [in] August 2015. The applicant said he had gone to the Bersih rally and nothing had happened except some people had food poisoning but he had not. I asked if he had had any problems due to his attendance at the Bersih rally and he said no he had never had any problems because of that. I noted to him that in his written claims he said:
·he was hunted by the present government for his active involvement in the Bersih rally;
·he was harassed by a group of Malay men accusing him of being anti-government and threatening him to like the government or leave the country, and saying the country belonged to Malays and the Indians are cheap labourers;
·He claimed later that he could not relocate as the police were on the lookout for Bersih members;
·He claimed that he joined Bersih, went against the authorities and the authorities would be waiting to finish him off.
The applicant responded that people were harassed at the rally. I noted that country information from a range of credible sources indicated it was peaceful and there was no violence recorded.[1] He responded that the chairperson was harassed and a few other members were detained. I asked why he had said that the authorities would be waiting to finish him, specifically, off though and he said that there were warnings given by authorities not to join. I noted that he had earlier said that he had never had any problems because of his attendance at the Bersih rally. He said it was always the after effects.
[1] The Star Online, ‘Cops keep a distance as rally proceeds smoothly’ 30 August 2015, DFAT Country Information Report – Malaysia, 19 July 2016 at 3.62, substantially the same as the more recent DFAT Country Information Report – Malaysia, 19 April 2018, at 3.79.
The applicant also claimed in his written claims that he would be jailed and harassed under the newly enacted law SOSMA. When asked about this the applicant responded that he thinks that is for freedom of speech and did not provide any further information.
Later in the hearing the applicant said that he was afraid that the authorities would relate the ‘deed poll’ matter to his Bersih attendance, and ask him to come to a police station and make a report, and the police stations are all Muslim. I asked if he thought he would be harmed for reasons of his claimed political opinion and he said he won’t be harmed but the authorities might harass him, because of this deed poll thing and all these things now.
I find that there are significant, unexplained, differences between the applicant’s claims in his written statement and what he said at hearing, where he explained that he had never had any problems because of his attendance at the Bersih rally. When his written claims were raised he then attempted to re-direct his evidence to reconcile his statements at hearing with his written claims. I do not accept his explanations for the disparity, and I find that the disparity causes me once again to be unable to lend credence to his claims, either written or as made at the hearing. I find therefore that I do not accept that the applicant attended the Bersih protests in August 2015, I do not accept that he joined Bersih. I do not accept that he was hunted by the government for his active involvement in the Bersih rally. I do not accept that he was harassed by a group of Malay men accusing him of being anti-government and threatening him to like the government or leave the country, and saying the country belonged to Malays and the Indians are cheap labourers. I do not accept that the police were on the lookout for him as a Bersih supporter or member. I do not accept that the applicant has expressed his political opinion in Malaysia in any way in the past, nor that he has a particularly strong political opinion.
For reasons of religion
I accept that the applicant is a practicing Roman Catholic. At hearing the applicant said that they had Church problems. When asked to explain this he said that they used to use the word ‘Allah’ to refer to God, and some court decided the word can be used in Churches but then it went to the Shariah court which ruled that Churches were not allowed to use the word. He referred to the articles he had provided on this. I asked how this issue had affected him. He said it affects the Church, and they Church had been using the word Allah for a long time, the national language is Malay, they are more fluent in Malay, and they have to use the word Allah. He said that they had been deprived. He said he might be found in contempt of Court by the Shariah Court because they are still protesting. I asked how he personally had been affected by the ban on the use of the word Allah. He said that some bombs were thrown and a cross had to be brought down. He said that they were just asking for justice.
I discussed with the applicant country information from the DFAT Country report of 2016. This is substantially similar to the information in the DFAT country report of 2018. I note for completeness that the most recent DFAT report includes information on the abduction of several Christian pastors in suspicious circumstances.[2] The applicant raised some of these abductions at the hearing.
[2] DFAT Country Information Report – Malaysia, 19 April 2018, at 3.50.
The 2016 report addresses the situation for Christians, noting that they represent close to 10% of the population, are generally free to practice their religion, but that the government has restricted the use of the word Allah by Christian newspapers, the seizure of bibles which included the word, the report also noted the removal of a cross from a Church in Kuala Lumpur after a protest, and the attack on two nuns in May 2014, but that this was not common, and assessed that Malaysian Christians are generally able to practise their religion without interference. Occasionally they may face a low level of official discrimination but do not face official or societal discrimination or violence on a day-to-day basis.[3] I noted that this country information might lead me to the view that he could return and practice his religion without interference. He said that in Malaysia there are issues with nuns, one of them died, and the government want to say that it is all ok and portray the country a certain way. He said they had religious problems, Churches have been broken down, Churches cannot ring the bell when Muslims pray, a lot of things are going on and pastors are going missing. He referred to the news articles he had supplied on these things.
[3] DFAT Country Information Report – Malaysia, 19 July 2016 at 3.42 – 3.47, as noted, substantially the same as the more recent DFAT Country Information Report – Malaysia, 19 April 2018, at 3.46 – 3.52.
I have thought carefully about the claims of the applicant in relation to his religion. I accept that, as a practicing Catholic, he was and is engaged in the ‘Allah’ issue, and is concerned about the 2014 death of a nun and the abductions of several pastors. I accept that he would be concerned about these things. I have had regard to and accept the news reports he has provided, which accord with the country information summarised above. However, I do not accept that his evidence, or the articles he has provided indicate that the situation for Christian worshippers is such that they face a real chance or a real risk of harm for worshipping or otherwise practicing their faith. He has not claimed, and I do not accept, that he has suffered harm for reasons of his religion in the past. In concert with my findings above about the deed poll claims, I have not accepted that the applicant is engaged in or was associated with or would be imputed with having proselytised or having converted Muslims to Christianity. I find he would return to Malaysia as a Catholic worshipper but without any further profile.
For reasons of race
Whilst not directly raised by the applicant, in his written claims he claimed to have been racially abused by a group of Malays. I have not accepted that this event happened, but I accept that the applicant, as an Indian Malay, may have suffered some discrimination in the past. The DFAT country report notes that Indian Malaysians constitute the third largest ethnic group in Malaysia, that there are a number in the professions but many remain poor, unemployment is comparatively high, but that Indian Malaysians freely participate in political life, and do not experience discrimination on a day-to-day basis but may face low level discrimination when attempting to gain entry to the state tertiary system or civil service.[4]
[4] DFAT Country Information Report – Malaysia, 19 July 2016 at 3.11 – 3.15, substantially the same as the more recent DFAT Country Information Report – Malaysia, 19 April 2018, at 3.11 – 3.17.
The applicant was educated to a tertiary level and worked as [a certain position] of [a certain company]. Having weighed the country information with the information about him I find that he has not suffered serious or significant harm in the past for reasons of his ethnicity/race.
Does the applicant have a well-founded fear of persecution if he returns to Malaysia?
The applicant said in his written claims that if he returned to Malaysia he feared he would be harmed because of his Bersih participation/membership and because of his Christianity. At hearing his claims had a different focus, claiming that he would be harmed principally because of his work helping his wife with ‘deed polls’ helping people re-convert, and the altercation that this had provoked and subsequent attacks and attempted attack on him at his home.
I have found above that I have accepted very little of the specific claims put forward by the applicant. I have not accepted that he assisted or helped or was in any way involved in his wife’s assistance of people preparing documents to change their names and religion. I have found he was divorced from his wife in 2010 and remains divorced. I have not accepted that he would be imputed to have helped or assisted someone to help people convert from Islam. I have not accepted that because of this he got into an argument with someone who worked at the religious office and others, and that he was then assaulted by two men on motorbikes outside his Church. I have not accepted that sometime later his house was ambushed by 30 people. I do not accept that his travel to [Country 1] after this and before he came to Australia was to flee these events. I have not accepted that he attended a Bersih rally as claimed, I have not accepted that he was harassed and racially insulted by a group of Malays. I do not accept that he was hunted by the government, or that the police were on the lookout for him. I do not accept that he was a member or supporter of Bersih or has a strong political opinion.
I have accepted that he is a practicing Roman Catholic, but have found that he has not been harmed for any reasons connected to his religion. I have found that he is of the Malay Indian ethnicity, but have found that he has not been harmed on this basis.
I find that the applicant would return to Malaysia as a practicing Roman Catholic, of the Malay Indian ethnicity, and as a divorcee, who has worked previously in Malaysia and has worked for some time in Australia, who has recently suffered a [medical condition].
Considering the situation in the future, if the applicant were to return to Malaysia, I do not accept, given my findings above, that there is more than a far-fetched or remote chance that he would be harmed on the basis of the claims he has made. I have not accepted his claims and find that there is no real chance that he will be harmed by the person from the religious office, the other men he claimed to have argued with, the two motorcyclists, the gang who he claimed ambushed his house or anyone else for reasons of his claimed assistance with preparing deed polls now or in the reasonably foreseeable future. I have not accepted his claims that he attended a Bersih rally, was harassed and abused by a group of Malays and that he is wanted or chased by the government, police or and other authorities and find that there is no real chance he will be harmed by these people or groups now or in the reasonably foreseeable future. I find that there is no real chance that he will be harmed for reasons of his religion as a practicing Roman Catholic, finding that he has not proselytised or converted people and would not be imputed with any of these actions. I find that there is no real chance that the applicant will be harmed as a Malay Indian, taking account of his specific circumstances, now or in the reasonably foreseeable future.
The applicant, I accept, has recently suffered a [medical condition]. However, there is no information before me about how severe this was or his current condition, despite me delaying the decision for him to submit material. On the information before me I do not accept that this leads to a real chance of him suffering serious harm on return to Malaysia now or in the reasonably foreseeable future.
I have considered, cumulatively, the information I accept about the applicant – as a Roman Catholic Malay Indian divorcee who has recently suffered a [medical condition]. I do not accept that, even cumulatively, there is a sufficient basis to conclude that he suffers a real chance of serious harm on return to Malaysia, now or in the reasonably foreseeable future.
I find that there is no real chance that the applicant will suffer significant harm amounting to persecution if he returns to have Malaysia now or in the reasonably foreseeable future form anyone for reasons of his race/ethnicity, religion or political opinion or on any other basis. He is not a refugee.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to Malaysia?
In MIAC v SQRB[5] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition.
[5] MIAC v SZQRB [2013] FCAFC 33 (Landeer, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]
As detailed above, I have not accepted his claims and find that there is no real risk that he will be harmed by the person from the religious office, the other men he claimed to have argued with, the two motorcyclists, the gang who he claimed ambushed his house or anyone else for reasons of his claimed assistance with preparing deed polls now or in the reasonably foreseeable future. I have not accepted his claims that he attended a Bersih rally, was harassed and abused by a group of Malays and that he is wanted or chased by the government, police or and other authorities and find that there is no real risk he will be harmed by these people or groups now or in the reasonably foreseeable future. I find that there is no real risk that he will be harmed for reasons of his religion as a practicing Roman Catholic, finding that he has not proselytised or converted people and would not be imputed with any of these actions. I find that there is no real risk that the applicant will be harmed as a Malay Indian, taking account of his specific circumstances, now or in the reasonably foreseeable future. I find that there is no real risk that he will suffer significant harm from anyone for reasons of his recent [medical condition]. I find that there is no real risk that he will suffer significant harm from anyone as a divorcee.
The applicant did not claim to fear harm on return to Malaysia for any reason other than those above. I have considered his claims cumulatively and find that, as a Roman Catholic Malay Indian divorcee who has recently suffered a [medical condition], I do not accept that, even cumulatively, there is a sufficient basis to conclude that he suffers a real risk of significant harm on return to Malaysia, now or in the reasonably foreseeable future.

It follows that I do not accept that there is a real risk the applicant will suffer significant harm from any person or for any of the reasons set out above or for any other reason evident on the claims or material as a necessary and foreseeable consequence of him being removed from Australia to Malaysia.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sean Baker
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 2586

25 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing