1620356 (Refugee)

1620356 (Refugee) [2017] AATA 3137 (7 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620356
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Gabrielle Cullen
DATE:7 June 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 07 June 2017 at 3:07pm

CATCHWORDS
Refugee – Protection – Malaysia – Fear of harm – Criminal charges – Police witness – Released on bail – Inconsistent evidence – Departed Malaysia on a valid passport –Credibility issues – Incorrect information provided in protection application – No real chance of persecution – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 413, 499
Migration Regulations 1994, Schedule 2
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 23 November 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, departed Malaysia for Australia [in] June 2016. On 10 August 2016 he applied for a protection visa and claims to fear return as he was charged and accused of a crime he did not commit and as he was a witness in a drug trial.
The delegate refused to grant the visa on 23 November 2016[1] on the basis that the applicant outlined his situation in limited detail, providing vague and contradictory information. He noted the applicant did not provide any information to substantiate his clams. He noted that his claim he was released on bail is inconsistent with his ability to depart the country on a valid passport. He found, nonetheless, if the applicant returns to Malaysia he will be subjected to a fair and effective judiciary system. He found that effective protection is available to the applicant.
[1] The decision was attached to the Application for Review.
The applicant appeared before the Tribunal on 20 March 2017 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. The applicant was assisted with an interpreter in the Tamil and English languages; however the hearing was conducted in English with the applicant’s approval. [The] applicant’s cousin, attended as a support person and did not wish to give evidence.
The applicant was given until 27 March 2017 to provide untranslated police reports as to the difficulties he faced. He was given until 29 March 2017 to provide the translated documents. The applicant requested a month to obtain the documents. However, the Tribunal advised it considered the time given as reasonable as his application had been live for seven months and he had been put on notice in the Department decision of 23 November 2016 as to the need to substantiate his claims with evidence.
The issues to be considered in this case are as follows.
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Migration Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Migration Act?
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 Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.
·The protection visa application of the applicant dated 10 August 2016, including claims outlined in the application and identity documents.
·Oral evidence of the applicant provided at the Tribunal hearing held on 20 March 2017.
·Independent information submitted at the Tribunal hearing as to racism in Malaysia; and particularly directed towards Malaysians of Indian descent, including at University. Also submitted was a report from 2009 as to a list of the killed and abused Malaysian Indians by police. Information was also submitted as to the lack of ethnic harmony in Malaysia.
·The applicant also submitted information about Kevin Anthony Morais who was Deputy Public Prosecutor for the Malaysian Anti –Corruption Commission and whose body was found in September 2015 in a concrete filled drum. The applicant asserts this as evidence of police corruption in Malaysia as even this man is not safe.
·Translated police document, from [a] Magistrate Court, [dated] May 2016 ordering the applicant under s.413 that his vehicle, with number plate [number deleted] is not to change ownership or be sold to another party, not to be altered in physical structure, to be presented when required by the court and to inform the court when changing address or moving.
·Royal Malaysian Police Report from PEJ IPK Selangor dated [May] 2016 at 23.44pm with the applicant named as the second person arrested. It indicates that [a representative] from the police, on acting upon information on drugs on [date] May 2016 at approximately 20.30 with a team of police arrived at the house in Selangor and found three Indians, including the applicant sitting in the lounge and conducted a body search but did not find any wrongful items. He claims that after a search of the house they found a [Bag] in which was 9 packets of the drug amphetamine and other pills. He claims a further search found another bag with the inscription MV in which there was 10 clear plastic packets of dried leaf, suspected to be cannabis. He claims on inspection of the applicant’s car he found a pistol bearing the inscription [along] with a holster and bullet cartridge. He notes all three named persons; including the applicant as named person 2 were then arrested.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
·DFAT Country Report Malaysia dated 19 July 2016.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The Applicant’s Claims
The applicant claims in his protection visa application he left Malaysia as he was charged and accused of a crime he did not commit. He claims he was chilling out with friends and the police found some drugs and pills in his care. He claims he was ambushed. He claims he also parked his car in front of his friend’s house and the police discovered a pistol with no bullets in his care. He claims he never owned those things. He claims he and his other three friends were arrested and sentenced to prison. He claims he was not guilty and 8 days later he was bailed out for RM 30,000.
He claims the gang that was involved in the crime is one of his friend’s cousins. He claims he is now looking for him and the cousin has threatened him as he thought he was the one who blew off everything to the police. He claims the gang member lost their half of their drugs and pills that night. The applicant claims he was at the wrong place at the wrong time and his life is not safe anymore.
The applicant claims after he was bailed out the three remaining friends were still in jail. He claims the cousins of his friends sought revenge and they threatened him and in many ways made chaos in front of his house. He claims they threw liquid paint on his car.
He claims he was bailed out with the crime and never convicted. He claims he worries about his and his family’s safety.
He claims he cannot move elsewhere as the gangs are all over Malaysia. He claims he will be followed wherever he goes and that is why he decided to travel abroad.
He claims if he returns their grudge on him will never fade and he is traumatised that he will bump into them again. He claims they will kill him as they think he is the one that blew them off to the cops. He claims they will find him in Malaysia and he is worried for his safety if he goes to the police.
He claims he does not want to involve the authorities as he has been released and is worried for his safety if he reports to them.
At the hearing held on 20 March 2017, the applicant indicated that he completed high school and achieved a [Diploma]. He claims his father and [sisters] continue to live in the family home he has always lived in situated in Shah Alam. He claims he lived in that home from his birth until he departed. He confirmed he travelled from this home to the airport to depart for Australia.
The applicant outlined his work history and indicated he worked as a [Job 1] in [a certain industry] from February 2015 to [May] 2016. He said he lost his job when he was locked up. The Tribunal asked why that position is not mentioned in his protection visa application, rather it notes him working as [another occupation] at [a company] and the job stopping in March 2016. He said that was his part-time job. When asked why he did not refer to [Job 1] when he now claims it as his main job; he said it was because he was not fully certified to work in that job. He confirmed he was paid in [Job 1]. He confirmed he did not mention it as he was not fully competent. The Tribunal referred to the question in the protection visa application as to his employment and again questioned why he would not mention it if he worked there; he said that maybe he missed it.
As to why he applied to come to Australia; he said he was running away from his problems. He confirmed he departed legally and was out on bail on a drug and weapon charge. He then said he was released as a witness for the police and he was not charged. The Tribunal raised with him that the independent information indicates that a person is released on bail after they are charged. He said as a police witness he had to come again. He said he was released as a witness of police. He said he was not charged and then the Tribunal asked why he was sacked from his company as he had claimed. He said as he was not able to go to work for almost two weeks. The Tribunal raised with him that this was not consistent with what he said before. He said the police called the employer and said he had been caught in a case and was still under investigation so after two weeks he came to know that they already had sacked him. He said because he could not go to work for two weeks he was sacked and they found someone else.
As to what he fears on his return; he said he is facing problem from the police and gangsters. He said the cops are getting money from these gangster groups.
As to what happened, he claims [in] May 2016 he went to his friend’s house for dinner and on the way picked up two friends and went to his other friend’s house. He claims after having dinner suddenly the police ambushed the house without a warrant, made them sit and started searching the house. He claims the police found drugs, as in pills and marijuana. He said they then started asking questions of each of them and one of the officers said he wanted to check the applicant’s car so he handed over the keys and they searched the car and found a gun with no bullets. He said he told them it was not his gun. He said they took all four of them into police custody at around 4am. He said the next day; three of them were brought to court, including the applicant, to remain in remand and were given 12 to 14 days. He said when he returned from court; Police Officer [name deleted] came and said he needed to inform his parents and the applicant told them of his problems. After that the applicant said he did not know what was going on. The applicant said at this stage he was not charged but he was still under investigation and did not know what was happening. He said after two weeks when his remand ended he was brought to the court alone and the officer read the case in front of the judge. He said the officer claimed he was being released as a witness for the police. The applicant said that shocked him. The applicant said he was not given bail, not asked to pay money to the court and was released.
He said and confirmed he only came to know he had no pending charges against him when he then spoke to his father. He said he was released and went home and the police said as the case is still running he will have to present himself when required. He said his car was seized. He said he spoke to his father who told him what had happened and the applicant said the cops played the game pretty well by pressuring his father. The applicant then told the Tribunal how the police contacted his father while the applicant was in remand and said that they will charge all of them, including the applicant with the penalty of death by hanging. He said his father was so scared and his father told the police officer the applicant was not involved. The officer said no one was admitting it and they had to charge all four together. The police kept calling his father to come to the police station to talk about it. The applicant said they did not talk to him, meaning himself. He said his father went to a lawyer and exactly 8 days after the applicant was arrested the inspector called his dad and told him to come down to the station and his father went there. The applicant said the police told his father that the only way to help his son (the applicant) was to pay the police a bribe of 30,000 RM, which his father did.
He then said he was released as he was a witness for the case.
The Tribunal raised with him that his evidence to the Tribunal is very different to the claims outlined in his protection visa application. It raised with him that there was no mention of his father in his application, although it is now his evidence he played a central role. It raised with him the inconsistency in his application where he claimed he was released 8 days after his arrest and given bail requiring him to pay 30,000RMB whereas today he said he was released without charge after 14 days and his father secretly paid a bribe of the 30,000RM. He said he mistakenly mixed the word bailed and release. The Tribunal questioned this as he reads, speaks and writes fluently and is well educated having achieved a tertiary diploma and completed high school.
He said he first thought he was released on bail and then came to know he was a witness. He said he did not know the meaning and difference of bail and release until he came to Australia. He said his father was too scared to tell him the story of what happened. He said after he came to Australia he realized he was released and not on bail. When asked when he realized he was released and was not out on bail with a charge pending; he said after he applied for the protection visa. He said he talked to his father again after he applied for protection. He confirmed he thought he was charged with a crime and released on bail initially and only found out he was released as a witness after he applied for protection in Australia. He said he did not know he was released and not charged until after he applied for protection as his father said the case is still under his name and he had to present when required.
When asked what crime he thought he had been charged with; he said two, one for the weapon case and the other for the drugs case. The Tribunal questioned why in his application he ticked in his protection visa application that he had never been charged in a case when it is his evidence that at the time he believed he had been charged with a crime. He said as there was no punishment. The Tribunal raised with him his evidence in his application was that he went in front of a court and was released on bail. He said it was not clear and he did not understand how he could be a witness on a suspect basis.
He said he was released around [date] May 2016. He said he then received a call from the police officer as his car was in their custody. He said the officer called him and he met him and he was taken to a room and told if he wanted his car back he needed to pay more money. He said while in custody he noticed he had never been investigated as to the gun so the story of the gun went to nothing. He said he went down to the station the next day after he was released and he had to pay 2000RM to obtain his car and that took a few days. Before that he said he did not have any money and the reply he received from the police was a slap and a few punches, and the police said “are you playing a fool?” and said “if you want to be safe pay the money”. He said he was slapped and punched when he initially refused to pay the money. He then went back and paid 2000RM because he did not want to go to the police station every day.

The Tribunal questioned why there was no mention in his application to the Department about this and he confirmed that was the case. He said he has evidence for that and he asked for time. The Tribunal questioned why he had not obtained the evidence previously as he applied for the visa 7 months prior in August 2016. He said he has now asked his father. He said his father asked for the documents one or two months ago. The Tribunal questioned why he would only seek the documents recently when it is his claim he fled in fear. He said the cops do not want to give the documents as the case has been settled under bribe. The Tribunal asked why then there would be documents if it was a bribe; he said there are and his father is obtaining them.
As to what happened next after the car was released and he returned home, he said he thought everything was done. The Tribunal questioned this as it was his evidence that he believed at that time he was on bail for a serious charge. He said for the time being he thought he was ok and he waited for a call from the police.
He said a new threat came to him from the gangsters. He said he was called by the leader of the gang who said he had to bear any loss they had. The applicant said he told him that it had nothing to do with him and they questioned how come he was released as a witness. The Tribunal questioned why he had said previously he did not know he was released as a witness if the gangster had said this to him. He said the gangsters already knew about this. He said he does not know how they got his number and details. He said he did not know what to do. He said they started to harass and threaten him and threw paint on his car. He said he wanted to go to the cops but another friend said the gangsters have links to the cops and they are getting money.
As to how he was harassed; he said they kept calling him, threw paint on his car and let the air out of his tyres. He said he thought of going to the police but his father said it was not a good idea because the gangsters have connections to the police. He said he was depressed and had lost his dignity and did not know what to do and that is when he made a decision to run from them. He said there was no chance to be protected as he knows Malaysia is fully corrupted.
The Tribunal raised with him independent information as to the effectiveness of the police force and judiciary, and questioned why he would not have gone back to the police.
The Tribunal questioned why he thought he would be harmed. He said they were threatening his life and they came to the house. The Tribunal questioned why if he was in fear of his life he lived at home until he departed. He said he was not home all the time. He said he came home for a short nap but would go to relatives’ houses. The Tribunal raised with him that he did not say that before rather that he lived at home until he departed.
It raised with him that it had credibility concerns as to his claims and referred to the previous inconsistencies and concerns in evidence raised. As to why his father’s role was not mentioned in his claims outlined in his application; he said he was new to Australia and he did not want to bring his father into it. He said there are no guidelines on how to apply and he did his best. The Tribunal raised again that he said he was released after 8 days in his application and released on bail by paying 30,000RM but said at hearing he was released after 12 to 14 days/ two weeks as a witness when his father paid a bribe secretly of 30,000RM to have him released. It raised with him his inconsistency in evidence as to whether he was released as a witness or charged and released on bail, and its concerns as to how it was possible he only found out he was not charged and released as a witness after he arrived and applied. It raised with him that this was particularly so as when he was released he was living with his father. He said he had no idea and did not know what was going on. He said at application time he thought he was still on bail.
As to how the gang knew his address he said he did not know how. The Tribunal questioned why he said in the application that a member of the gang was his friend’s cousin who was caught with him. It referred to his application in which he said it was his friend’s cousin who was seeking revenge whereas today said it was because of the lost drugs. The applicant said the cousin of the friend is the main dealer but he had never seen him before and has no idea of his name. He said he did not know how the guy got his number and details.
The applicant confirmed he had read the delegate’s decision that was made on 23 November 2016 and one of the reasons he was refused was that there was no evidence to substantiate the claims. The Tribunal asked why then he only tried to obtain further evidence one or two months ago.
The Tribunal raised with him the high prevalence of document fraud in Malaysia.
The Tribunal raised with him independent information from the DFAT report on Malaysia as to the treatment of Indian Malaysians and Tamils and that this may lead it to find he will not face a real chance of serious harm or real risk of significant harm as an Indian or Tamil in Malaysia. It raised with him it appeared there was no evidence that he worked in the civil service or was seeking to further his tertiary studies. He said yesterday there was an article in Facebook where an Indian girl got 10As and the Muslim got 2As and the Muslim got into the tertiary institute. He referred to evidence of the police killing Indians in custody. He referred to Kevin Anthony Morais and that even though he was head of the anti-corruption body he was found dead in a concrete job. He said if a person like that can be killed; he could as well.
The Tribunal questioned why he did not talk about being hit by the police in his application; he said he was not confident and he was in a new country and wanted to be safe. The Tribunal again raised with him that it appeared his claims have evolved over time.
The Tribunal asked about the situation of his family. He said his father has spoken to his friend who is a police officer and they took care of it. The Tribunal questioned why he would not have spoken to this police officer who is a friend before when the gangs were harassing and threatening him, the applicant. He said the gangs were not coming for his father. He said the gangs threatened him, the applicant, once that if he did not pay for the loss they would hurt his family. He said to make the family safe his father spoke to a few of his cop friends. The Tribunal questioned the plausibility of this and why his father would not speak to his cop friends when he, the applicant, was being threatened with his life. He said he was scared the applicant might be locked up again. He said the gangs and the police are linked.
The Tribunal asked him which court he attended. He said it is in [Town 1]. He said he did not know the name or level of the court. When asked where it is; he said [Town 1]. He then said he didn’t know. He said it is the only court in [Town 1]. He said he did not know the judge’s name but it was a Malay lady. He said he was released from the court as a witness.
It asked why the police want to harm him; and he said as they are working with the gangsters. The Tribunal questioned if the police are working with the gangsters why he was released. He said he has no idea and he thinks it is because of the money his father gave them.
Assessment of Claims
On the basis of the applicant’s identity documents, including his passport and evidence provided at hearing the Tribunal accepts that the applicant is a national of Malaysia. Therefore for the purposes of s.36(2)(a) the Tribunal accepts that Malaysia is the country of nationality and for the purposes of s.36(2)(aa) the Tribunal accepts that Malaysia is the receiving country.
As to the applicant fearing return for the reasons he claims, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness. His account as to the difficulties he faced in Malaysia and why he fears return was inconsistent between the Department and Tribunal. It follows that it finds the applicant was never arrested or detained by police for drug or weapons charges, held in remand, charged, released on bail by paying 30,000RM or released as a witness. It follows it does not accept he was ever harassed or threatened by police or gangsters or his father secretly paid a bribe to have him released. It finds the applicant’s testimony inconsistent and a fabrication for the reasons set out below. This leads the Tribunal to find that the applicant is not a witness of truth.
Firstly, he has provided inconsistent evidence as to whether he was charged and released on bail or not. In his protection visa application he claims he departed Malaysia as he was charged and accused of crimes he did not commit. He claims 8 days after he was arrested he was bailed out for RM 30,000. However, in contrast at the hearing he said and confirmed he was not charged, there are no pending charges against him, there was no bail rather he was released as a witness for the police. When the inconsistency was raised with the applicant he gave a number of reasons for the inconsistency. He referred to his ignorance as to the terms of being released, released on bail and released as a witness and said he only came to know he was not charged and not released on bail and released as a witness after he applied for his protection visa application when he talked further with his father. He said the confusion arose as his father had told him the case was still under his name and he had to present when required. He said he had no idea what was going on and thought he was released on bail. The Tribunal does not accept the applicant’s reasons for the inconsistency. Firstly, as he is well educated having completed high school and obtained a Diploma the Tribunal expects he would know after being detained for over a week whether he was charged and released on bail or released as a witness at or close to the time it occurred, not after August 2016 when he applied for protection. Further, it is his evidence he was living with his father after his release and the Tribunal is of the view he would have clarified with him the details of the release, as it is his claim at hearing his father was centrally involved. Further, his earlier evidence to the Tribunal at hearing is inconsistent with this latter claim as to the reason for the inconsistency, in that he stated that when the police officer read the case to the court after his time in remand, he heard the officer state that he was being released as a witness of police, he was not given bail or charged nor asked to pay money. The inconsistency in evidence between his claims in his application and internal inconsistency as to whether he was charged and released on bail, adds to the finding the applicant is not a credible witness.
Further, the applicant has been inconsistent between his claims in his protection visa application and at hearing as to his father’s involvement and why he had to pay 30,000RM as a bribe for his release. In his application for a protection visa the applicant claims that he paid 30,000RM to be released on bail. There is no mention in the application of the involvement of his father. However, in contrast at the hearing before me the applicant claims he did not know what was going on after he was initially arrested, and his father later told him that the police had contacted him. He said his father told him that the police had told him that the applicant would be charged for the drug crime with death by hanging unless he paid 30,000RM. He said as a result his father paid a bribe to the police of 30,000RM and then the applicant was released. He said at hearing he was not released on bail and did not refer to having to pay money to be released on bail. When the inconsistency in evidence was raised with the applicant he indicated that he is new to Australia and he did not want to bring his father into it. He said there are no guidelines on how to apply and he did his best. He said he was unsure what to include. The Tribunal does not accept these responses as explaining the inconsistency and omission in evidence. The applicant has provided contradictory evidence between the Department and Tribunal as to why he had to pay the 30,000RM. It is also of the view the role of his father in having to pay the bribe and negotiating his release is so significant that he would have included it in the application if true, even if there are no guidelines on how to apply. It has difficulty accepting he would not want to bring his father into it when the process of applying is confidential. These inconsistencies add to the finding the applicant is not a credible witness.
The applicant has also provided inconsistent evidence as to how long he was detained. In his application for a protection visa he claims it was for 8 days and in his evidence to the Tribunal at hearing he said it was for 12 to 14 days or two weeks. He said his father was called to the station after 8 days but said he was not released for two weeks. When raised with him he said he felt confident in his new country and felt safe. The Tribunal is of the view if the applicant was detained in May 2016, being less than a year before the hearing that he would due to its significance be able to recall for how long he was detained consistently between his application and the hearing, even if new to the country and felt confident. This adds to the finding he is not a credible witness.
The Tribunal also views as of concern that the applicant omitted to refer to the police harming him by slapping and hitting him in his protection visa application, as he claimed at hearing, when he went to collect his vehicle. The Tribunal is of the view if the applicant was hit by the police, due to its seriousness, he would have referred to it in his application if true. This adds to the finding he is not a credible witness.
The Tribunal also views as of concern that despite claiming he went to court and was released, his complete lack of knowledge as to the court. While he knew it was located in [Town 1] he did not know the name of the court, the level or where in [Town 1] it was situated. He could not name the judge only saying it was a Malay lady. The Tribunal is of the view that a person with the level of education that the applicant had achieved would be able to provide more detail as to his court he attended than that which he provided. While not solely determinative his lack of detail in this regard adds to the finding he is not a credible witness.
The Tribunal also views as inconsistent with his claim he fled in fear of his life and faced the difficulties he claims from the gangsters and police, his evidence at the hearing that he lived at home with his family until his departure. He said he travelled from his home to the airport and had lived there since he was young. Only later in the hearing when the Tribunal raised its concern in this regard did he claim that he only went home for short naps and would go and stay at relatives’ houses. The Tribunal does not accept this response and is of the view if this was the case he would have raised it earlier not only when the concern was raised, especially as it asked him whether he lived at his home until his departure. Further, it is of the view if he faced the difficulties he claims from the gangs/gangsters, his life was threatened as he claims and the gangs had come to his house, therefore knowing where he lived, that he would not return home for short naps. His continued stay at his home until his departure undermines the credibility of his claim to have faced the difficulties he claims at the hands of the gangs/gangsters and to fear return on that basis. It adds to the finding he is not a credible witness.
The Tribunal views the above internal inconsistencies and concerns to be significant and as outlined above does not accept the applicant’s responses for the inconsistencies. These matters cumulatively lead the Tribunal to find the applicant is not a credible witness.
Credibility Summary
For all the above reasons, considered cumulatively the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
In making this finding the Tribunal accepts that some information has been consistent over time, such that he was with friends at another friend’s house when the police came and detained them for possessing drugs [in] May 2016, a gun was found in his car and he fears return from the gangsters who threw paint at his house and threatened him. However the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.
In making this finding the Tribunal has also considered the two police reports submitted by the applicant after the hearing but on the basis of the applicant’s complete lack of credibility and on the prevalence of document fraud in Malaysia[2] places no weight on these documents as evidence of his claims.
[2] The DFAT Malaysia Report states, at paragraph 5.28, that it is possible for individuals to ‘rent’ or ‘buy’ another person’s identity and to then utilise that person’s MyKad card to obtain other documents fraudulently, including passports. While it would be possible to fraudulently obtain a MyKad card, DFAT assesses it is relatively rare given personal identity and other records are cross-checked by the Ministry for Home Affairs. Instances of fraud are investigated by the Royal Malaysian Police. However, the Tribunal also notes the prevalence of passport and other document fraud throughout Malaysia. The use of false Malaysian passports is frequent, including both the use of falsely created passports and of Malaysian passports genuinely issued to applicants who have provided fraudulent supporting documentation with their passport application (see, for example, intellasia.net, 27 August 2008, "More Malaysians with fake passports arrested in Thailand", accessed via United States Embassy Kuala Lumpur, 2 March 2009, "Malaysia Fraud Summary (Sept 2008 – Feb 2009), accessed via & The New Zealand Herald, 9 July 2012, "Malaysian passport scam tests NZ border", accessed via
As the Tribunal has found on the basis of the cumulative evidence before it that the applicant is not a witness of truth, it follows it does not accept he was with friends at another friend’s house in May 2016 when the police arrested them for having in their possession cannabis, amphetamines and other drugs. It follows it does not accept his car was searched and a gun, bullets or anything else was found it. It follows it does not accept as true he was taken to court or held in remand for any period in May 2016, he was charged and accused of a crime he did not commit, released on bail of 30,000RM. It follows it does not accept his father was contacted while the applicant was in detention, and told the applicant could be charged with a crime with the penalty of death by hanging so paid the police a bribe of 30,000RM to have him released. It follows it does not accept he was released as a witness of police. It follows it does not accept he was later called by the police, hurt, harmed or threatened by them and had to pay 200RM to have his care released or that his car is still required under court order.

It follows it does not accept he was unable to go to work and lost his employment as he was held by the police on remand.
It follows it does not accept that after his release the gangs or gangsters contacted him and threatened him as they wanted the drugs or because they were or one of them was the cousin of one of his friends who had also been arrested and they thought he had dobbed them in or blew off everything to the police or as they lost their drugs or as they believed he had to bear the loss of losing the drugs. It follows it does not accept they threw liquid paint on his car, let down his tyres, came to his home and threatened he and his family with any harm and made chaos. It follows it does not accept that they threatened him that if he did not pay for the loss they would harm him and his family. It follows it does not accept as true that he did not seek the protection of the police as they are linked with the gangsters and as they are corrupt.
It follows it does not accept as true, based on his lack of credibility that to avoid the harm he went and stayed at the houses of relatives and only returned to his home for short naps.
It follows it does not accept he cannot move elsewhere as the gangs are all over Malaysia and if he returns the gangs will harm him as they continue to hold a grudge against him and as they think he blew them off to the cops. It follows it does not accept he did not want to involve the authorities as he has been released and is worried for his safety if he reports to them. It follows it does not accept he fears return from the police as they receive money from the gangs/gangsters or work with them or as they are corrupt. It follows it does not accept as true his father had friends in the police which ensured his family’s safety.
The Tribunal rejects the applicant’s claims in their entirety and does not accept he has a profile with or is known by the police, authorities, gangs or anyone else for the reasons he claims. It follows it does not accept he came to Australia in June 2016 in fear for the reasons he claims or to protect his dignity, save himself from harm or as he was traumatised or as he could not go anywhere in Malaysia as the police and gangsters would find him.
Does the applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Migration Act and meet the protection obligations under the complementary protection provisions of the Migration Act?
On the basis of the credibility findings above, it follows the Tribunal does not accept were the applicant to return to Malaysia now or in the reasonably foreseeable future he will face any of the difficulties he claims for the reasons he claims at the hands of the police, authorities, gangs or gangsters or anyone else. It follows it does not accept the applicant will be imprisoned, sentenced, assaulted, killed, threatened, physically or verbally harmed, traumatised, his family will be threatened or harmed or face any of the difficulties he claims in any manner whatsoever for the reasons he claims.
As a result the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm were he to return to Malaysia in the reasonably foreseeable future at the hands of the police, gangs, gangsters, family of those arrested, authorities, anyone acting on their behalf or anyone else, as he was charged and accused of a crime including a drug crime and weapon crime, as he was released on bail, as a witness to the police, as his vehicle was involved in the crime, as his father paid a bribe to have him released, as the gangsters believe he is working with police, or as they believe he dobbed in their cousin, or they believe he told the police about the drugs or as they believe he is working with the police or as they want him to pay for the loss of the money from the drugs, or as the police are corrupt or as the police are working with the gang or gangsters or as he is Indian or Tamil ethnicity for any of the reasons he claims.
Similarly based on my findings above and on the information before me I am therefore not satisfied on the basis of the evidence before me that there is a real risk that he will suffer significant harm on his return to Malaysia at the hands of the police, gangs, gangsters, family of those arrested authorities, anyone acting on their behalf or anyone else, as he was charged and accused of a crime including a drug and weapon crime, as he was released on bail, as a witness to the police, as his vehicle was involved in the crime, as his father paid a bribe to have him released, as the gangsters believe he is working with police, or as they believe he dobbed their cousin in or they believe he told the police about the drugs or as they believe he is working with the police or as they want him to pay for the loss of the money from the drugs or as the police are corrupt or as the police are working with the gang or gangsters or as he is Indian or Tamil ethnicity for any of the reasons he claims.
Notwithstanding the above, the Tribunal accepts the applicant is ethnically Tamil and viewed as an Indian Malaysian. Information, from the July 2016 DFAT Report on Malaysia indicates the following.
Indian Malaysians
3.11 Indian Malaysians constitute the third largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against Indian Malaysians.
3.12 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.
3.13 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 up to 48 per cent of the prison population.
3.14 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.
3.15 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.
When raised with the applicant he referred to discrimination against Indians in obtaining positions at tertiary institutions. He referred to evidence of police killings in custody of Indians and discrimination of Indians. He referred to Kevin Anthony Morais and that even though he was head of the anti-corruption body he was found dead in a concrete job. He said if a person like that can be killed; he could as well.
The Tribunal has considered the applicant’s response and the independent information he has submitted however on the basis of the evidence before it, including the DFAT Malaysia Report, noted above, and as the applicant has never sought to work in the civil service or there is no evidence he wishes to gain further entry to tertiary level education and it has rejected the credibility of his claims above, it does not accept that the applicant faces a real chance of persecution involving serious harm were he to return to Malaysia in the reasonably foreseeable future as he is a Tamil or a Malaysian of Indian ethnicity or an Indian Malaysian or as he belongs to a minority group in Malaysia.
Similarly based on my findings above and on the information before me I am therefore not satisfied on the basis of the evidence before me that there is a real risk that he will suffer significant harm on his return to Malaysia as he is a Tamil or a Malaysian of Indian ethnicity or as an Indian Malaysian or as he belongs to a minority group in Malaysia.
Conclusions regarding the Refugees Convention
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Malaysia in the reasonably foreseeable future. As the Tribunal has rejected the applicant’s claims in their entirety, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future.
For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
The Tribunal has also considered whether the applicant is eligible for complementary protection. The Tribunal has above rejected the credibility of the applicant’s claims in their entirety. The Tribunal therefore does not accept that 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 he will suffer significant harm as defined in subsection 36(2A).
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.
Gabrielle Cullen
Member

ATTACHMENT ONE - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 3137

7 June 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction