1702427 (Refugee)

1702427 (Refugee) [2018] AATA 1523 (17 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702427
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Michael Hawkins
DATE:17 April 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 April 2018 at 3:47pm

CATCHWORDS
Refugee – Protection Visa – Malaysia – Imputed political opinion – Anti-government opinions – Bersih – Low level protestor – Whether the applicant has a genuine fear of harm – Witness credibility – Vague and evasive evidence – Returns to home country
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA [1998] FCA 305
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423
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 5 January 2017 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 23 August 2016. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
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.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is [a particular age] year old man from Johor, Malaysia.
The applicant is of the Muslim faith, is of Malay ethnicity, and speaks Bahasa Malay and English.
The applicant is unmarried. His parents and [a number of] siblings live in Malaysia.
The applicant completed his education in Kuala Lumpur in Malaysia from [a range of certain dates]. He completed qualifications in [a particular field] from January 2009 to January 2015.
The applicant worked in Malaysia as a [particular occupation] from January 2009 till January 2016. He then worked as [a different occupation] with [a particular company] from February 2016 until he came to Australia. He stated in his application that he has been unemployed in Australia.
The applicant had travelled to Australia previously on holidays from [March] 2016 to [May] 2016.
The applicant arrived in Australia [in] June 2016, under [a particular passport number], issued [in] 2016 and expiring [in] 2021 pursuant to a subclass 601 (Electronic Travel Authority) visa granted [in] June 2016 and expiring [in] September 2016.
The applicant applied for a protection visa [in] August 2016.
The applicant did not attend an interview with the delegate, or provide additional information in support of his claims prior to the decision by the delegate.
Claims:
The applicant claims that he left Malaysia because the Malaysian Government is tracking members of Bersih.
The applicant claims he was hit but was lucky and avoided being caught by the police.
The applicant claims that he is a Bersih member. He claims that Bersih activists are campaigning for clean and fair elections and members of the movement were urged to wear yellow shirts as a symbol of protest.
The applicant decided to seek refuge and safety in Australia.
The applicant claims that if he returns to Malaysia, he will be apprehended by the police and he will be fined for his political involvement. He claims the police are searching for group members and the authorities are unable to protect him.
The applicant claims he has tried to relocate in Malaysia but the situation is the same throughout the country.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application forms completed and signed on 19 August 2016, lodged [in] August 2016 (“visa application”);
·The applicant’s identity documents being a certified copy of passport;
·The protection visa decision record (‘delegate’s decision record’) of [January] 2017;
·The review application form which did include a copy of the delegate’s decision record;
·Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Malaysia, published on 19 July 2016.
Country of reference / receiving country
The applicant claims to be a Malaysian national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Malaysia is his country of nationality and also his receiving country for the purposes of s.5H(1) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).
Hearing:
The applicant attended the hearing on 26 March 2018. He was unaccompanied. The hearing was conducted in the English language with a Malay interpreter on standby in the event of need.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Malaysia. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Malaysia. The harm must be directed at him for one of the following reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Malaysia.
The Tribunal asked the applicant whether he had completed the application form himself. He said that he had completed the form himself and it was in his handwriting. The applicant stated that he had signed the form himself.
The Tribunal noted that the applicant had visited Australia for a period of nearly three months just three weeks before he came to Australia again.
The Tribunal confirmed that the applicant arrived in Australia most recently [in] June 2016. It confirmed that the applicant arrived on a Tourist Visa. The Tribunal asked which airport he had departed from. He stated he departed from Kuala Lumpur. The Tribunal asked whether he had experienced any issues or difficulties at the airport on departure. The applicant said he had not on the first visit. He had experienced no problems at immigration upon arrival in Australia either. But in relation to the second visit, he said he knew he was on a blacklist but he had asked a friend of his to lift his name off the list for a short time. He had no problems leaving the country then.
The Tribunal asked the applicant about the blacklist. The applicant said he thought he might be on a blacklist because of his political views, and put his name into a website and it confirmed that he was on the blacklist and that he may have trouble leaving Malaysia. The Tribunal asked the applicant for more information about the blacklist. He said the website, which he couldn’t remember, but confirmed was a government website, had him on it. He didn’t know what the blacklist was about or how or why it exists, but he believes he is on it because of the issues he has had in the past.
The Tribunal read to the applicant his claims as referenced in paragraphs 19 to 24 above. The Tribunal asked whether those claims were accurate. The applicant responded that they were accurate.
The Tribunal then asked the applicant why he did leave Malaysia. The applicant proceeded to tell the Tribunal about his business background. He said that while he was studying in 2011, he opened a [particular kind of] club at the college he was staying at. [Details of business removed].
In 2012, he opened a new club in Johor, having left the old one to a friend of his at the college. He said the club started to improve and he was [in a particular position]. He said he [participated in particular activities as part of the club].
In 2014/15, he learned that a political organisation ran his society. UMNO asked him to be a committee member, representing [a particular field]. The UMNO was an NGO. He attended meetings of UMNO. The applicant said that he learned things on the committee that wasn’t reported on the TV news. He began to tell [others] about this information.
He said he brought Bersih to his town in Johor for a street demonstration. The Tribunal asked him about this – how did he bring Bersih to town. He explained that he brought [a number of people] to the Bersih rally. The Tribunal confirmed that he did not himself bring the Bersih rally to his town – he attended the rally that was happening. The Tribunal extracted from the applicant that there were [a particular number of] people at the rally. He couldn’t remember the date of the protest, except that he thought it was [in] 2015. He confirmed that he wore a yellow shirt, as did some of the parents that he took with him.
The Tribunal asked the applicant whether he had suffered any harm at the rally, was there the tear gas. He said he had not. He had received no threats of harm, he had not been arrested and he had not been hurt in any way.
The applicant stated that this was the only rally he had attended.
The applicant then said that a few days after that rally, he realised that the government was not happy with what he was doing. The Tribunal asked how he came to realise that. He said a friend of his who worked for the government got sacked from the government and he told him that the government were talking about the applicant. The Tribunal asked could he be more specific. He said he couldn’t. The Tribunal noted the implausibility of a discussion within government about him, being one of [a large number] who had attended a peaceful rally, and it being observed by someone who was then sacked.
After that, the applicant stayed away from all meetings of the UMNO.
After this, the applicant noticed that he was having problems [undertaking the activities of the club]. He said he also had problems with the funding his club was receiving. Asked to explain the funding, the applicant said that he received [a particular amount] from the government for [a number of] months and after that, it began to reduce without notice. He said he tried to find out why it was reducing, but he couldn’t get any response from the government.
The applicant said that the government began to boycott the applicant’s club and any other clubs he was associated with. The Tribunal asked him to explain what he meant by boycott. He said that he was no longer receiving invitations for [particular events]. He said he then started attending unofficial [events], but then found he was barred from them. He said he then realised that [members of the club] couldn’t go to any [events]. The applicant believes that this happened because of his political views.
The applicant said that when he went to the government, they got annoyed with him and started sending him notices, for example, that he couldn’t renew [a particular kind of] licence.
The Tribunal asked the applicant whether he had a membership card for the UMNO. He said he didn’t – he was just a committee member representing [a particular field].
The Tribunal asked the applicant about the protest or rally. What did they do? He said they walked around the city for about one kilometre and then stayed the afternoon, and then went home. The Tribunal asked about police involvement. He said the police did turn up and asked everyone to go home, so they did. The Tribunal confirmed again that the applicant had no issue with the police at all. He confirmed that was the case.
The Tribunal asked then was it because of his political opinion that he came to Australia. That he came to Australia after attending the rally. He said it was.
The Tribunal referred to the applicant’s very specific claim that he had been hit. The Tribunal reminded the applicant that he had said that there was no issue with the police after the rally. The applicant then told the Tribunal about a visit from the police a few weeks after the rally. He stated that the police went to his house. He was not home, but one of his siblings told him that the police had been there looking for him. So he went to his parents’ house. He said that as he was leaving his parents’ house, the police arrived and locked his motorcycle. He said he was pushed off the bike, but not injured. He said the police took him to the police [station]. He said he waited for two to three hours before a policeman (whom he didn’t know – the applicant said he knew all the police) came out to talk to him. He asked him about his political opinion. The applicant claims that he told the policeman about his views, that he was against corruption in [his particular field]. He said that the policeman then told him not to spread his views to others, otherwise there would be trouble for him, trouble for [members of the club] and trouble for his clubs.
The Tribunal asked whether he complained about being pushed off his bike. The applicant states that he did, but the police ignored his complaint.
The applicant said that he then tried to rebrand his clubs, using the names of [others]. He said that worked for only a few weeks, then the [members of the club] were stopped again from [attending events].
The Tribunal confirmed with the applicant that he believes this only happened to him because of his actions in telling the families of [club members] about his anti-corruption views and attending the rally. The applicant said that was correct.
He went on to say that it wouldn’t be a problem for him if he wasn’t a member of a UMNO committee.
The Tribunal reminded the applicant that he had said he stopped being a member. The applicant responded by saying that he stopped when he came to Australia. The Tribunal reminded the applicant that he said he stopped attending meetings when his friend told him he was being talked about in government, which was a few days after attending the rally. The applicant agreed that was the case. The Tribunal asked then if he was no longer a member, why was there still a problem. He said he had political views.
The Tribunal asked the applicant about his claim that he had tried to relocate but his problem followed him. The Tribunal asked the applicant where he had relocated to. The Tribunal wanted the applicant to provide some detail about relative dates.
The applicant said he joined the UMNO committee in [2014]. He said he attended the Bersih rally in [Johor] in [2015]. He said that [a certain period of time] after the rally, he moved to [another location] which was [a particular distance] by car away from [where he was staying previously]. He then moved to [another location] at the end of 2015, which was a further [distance] away. He moved to [another location] in February 2016. [This location] was a further [distance] away.
The applicant said that every time he moved, he tried to open a new club. He said he could not get permission from [a particular organisation when] he would try to open the club. He said in [one of the locations], he opened the club in the name of a friend, but he still couldn’t get a permit.
The Tribunal referred the applicant to his application form for protection visa, and specifically to the section where he was asked to list the addresses of all the residences he has lived in in the past thirty years, including temporary addresses. The Tribunal noted that his form said that from January 2013, he had lived at [a particular location in] Johor, until he left for Australia. The Tribunal noted that this was not consistent with what the applicant had told the Tribunal and could he explain those inconsistencies. The applicant replied that he could not remember the names of all of his temporary addresses as he just used to rent a [room] at which he set up clubs. He said he used to use the [same] address as the address for the new clubs he would set up. The Tribunal asked whether that was his problem – that when he asked for a permit the authority would data match his address. The applicant said that was not the case.

The Tribunal asked the applicant whether it was his claim that because he had attended the rally he could be imputed with a political opinion. The applicant said he was anti-corruption. The Tribunal confirmed again that he had not been arrested or harmed in any way, nor that any threats had been made to him at any time since he attended the rally and the police station and the time he came to Australia.
The Tribunal discussed with the applicant a summary of the following country information contained in the DFAT Report.
A small number of high-profile opposition leaders or organisers have faced official harassment through the application of Malaysian law, particularly the Peaceful Assembly Act (PAA), Sedition Act, Criminal Code and occasionally, sodomy or corruption charges.
DFAT assesses that political opposition and dissent, particularly direct criticism of the government, can result in legal harassment, detention and even prosecution. While opposition party members are able to undertake political activities on a day-to-day basis they do report an increase in self-censorship and DFAT assesses that they face a low level risk of official discrimination. High-profile opposition leaders face a moderate level of official discrimination. While a spike in interparty and societal violence occurred in connection with the 2013 elections, such incidents are not a common occurrence and individuals with political affiliations do not live in fear of violence on a day-to-day basis.
The constitution states that all citizens have ‘the right to assemble peaceably and without arms’, however, in practice the government closely administers political assemblies and rallies under the Peaceful Assembly Act (PAA) and the Criminal Code. Permits can be difficult to obtain and can be restrictive in their application. The PAA requires organisers to submit notice of a rally to authorities ten days in advance.
Individuals have been arrested for organising or engaging in rallies in contradiction with the law and the Royal Malaysian Police have on occasion used excessive force to control crowds. Bersih, a coalition of 62 NGOs, organised a series of rallies calling for improved government transparency free and fair elections in 2007 (Bersih 1), 2011 (Bersih 2), 2012 (Bersih 3) and 2015 (Bersih 4). The rallies attracted thousands of protesters and were supported by opposition parties.
The Bersih 4 rallies on 29 to 30 August 2015 saw approximately 100,000 people, mostly opposition parties and their supporters, civil society activists and Chinese Malaysians; take to the streets in Kuala Lumpur to call for the resignation of Prime Minister Najib in light of 1MDB corruption claims. The protest was peaceful and no violence was reported, despite the government declaring the protest illegal and banning the yellow t-shirts with ‘Bersih’ print that were worn by the protestors. Smaller rallies were also held in Melacca, Penang, Kuching, Kota Kinabalu with a small number of arrests. This was an improvement on the July 2011 Bersih 2 protest where the police used tear gas and water cannons to break up the protest and made approximately 1,500 arrests.
In response to Bersih 4. UMNO-linked NGOs, known as the ‘red shirts’, held a government approved rally in Kuala Lumpur on 16 September 2015. The protest messages were pro-Najib, pro-Malay and slogans and banners were ethnically charged. There were a few arrests and police used water cannons to disperse the crowd when it attempted to enter the Chinatown district.
The Tribunal clarified with the applicant whether he participated in the yellow shirt protest or the red shirt protest. The Tribunal noted that the applicant claimed he was on the committee of the UMNO, which appeared to be pro-government. On that basis, how was he anti-government?
The applicant said he is not anti-government. He said he is anti-corruption, especially in relation to [a particular field].
The Tribunal took a moment to review the applicant’s claims. The Tribunal had discussed with the applicant that he was not a member of a political party. He was not anti-government. He was anti-corruption within [a particular field]. He claimed he attended the Bersih rally in Johor. He stated that he was not arrested. He stated there was no violence. There was no police violence. The police asked everyone to go home and they did. The applicant stated that he was detained a few weeks later. He was questioned by the police. He was told not to espouse political views – the views that he held about anti-corruption. After a short time, he was released. The applicant agreed.
DFAT assesses that protesters face a low risk of arrest when engaged in political rallies. Such individuals have commonly been released on bail shortly following their arrest. High-profile organisers of political rallies face a moderate risk of official discrimination and could be charged under the Peaceful Assembly Act or the Criminal Code.
The Tribunal indicated that it was his claim that he had been released shortly after being detained. He had not been arrested and he was not released on bail.
The Tribunal noted particularly the DFAT assessment that protestors faced a low risk of arrest for attending political rallies which seemed to be consistent with the applicant’s own experiences – that he attended a rally in 2015 and that by the time he left Malaysia in 2016, he had not been arrested nor had he been threatened with arrest.
The Tribunal asked the applicant about his first visit to Australia. It noted that he went back to Malaysia just three weeks before he returned to Australia again. The Tribunal asked the applicant why it was that he could travel to Australia for nearly three months, then return for three weeks, then return to Australia again. He claims to have held the fears he had since 2015. The Tribunal asked why it was that he didn’t seek protection when he was first in Australia. The applicant replied that when he went back to Malaysia he thought he could carry on as he had before he left Malaysia – that he could set up another club. But then he discovered he was on a blacklist.
The Tribunal queried how the applicant could re-enter Malaysia as he had done, and then within three weeks, think that he was on a blacklist. Why would he think he was on a blacklist. The applicant replied that there was a lot of social media talk about Bersih participants being blacklisted and being prevented from leaving Malaysia.
The Tribunal noted that there was no reference to any blacklist in his claims.
The Tribunal discussed the following country information with the applicant.
Many thousands of Malaysians enter and leave the country every day. People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return on account of their absence. Malaysians who over-stayed their work or tourist visas, or breached visa conditions in other countries are regularly returned to Malaysia with no attention paid to them by authorities. Likewise, failed asylum seekers would be unlikely to face adverse attention as the Malaysian government would not typically know the individual was a failed asylum seeker, although it is possible that some individuals might be questioned upon entry or have their entry delayed particularly if their passport has expired while abroad. The International Organization for Migration (IOM) assists voluntary returnees and Malaysian authorities cooperate with the IOM in these arrangements.
There are over 130 formal entry and exit points in Malaysia. The Immigration Department is responsible for conducting exit and entry checks. Malaysia keeps records of entries and exits, but details of arrival/departure ports and destination are not always captured. In accordance with the Constitution, individuals facing serious criminal charges can be prevented from leaving Malaysia. All travellers are checked against a Travel Status Inquiry (SSPI) system maintained by the Immigration Department prior to departing from an airport or port.
The Tribunal noted that the applicant was not facing serious criminal charges, so he was not likely to be one prevented from leaving Malaysia.
The applicant said that he had spoken to a friend who got his name lifted from the blacklist for long enough for him to leave the country. The Tribunal asked the applicant to detail how this happened. The Tribunal asked whether this friend worked for the government. He said he didn’t know where he worked. But his friend knew someone who could help him – someone who could have his name lifted off the blacklist for a short period. The Tribunal asked how such a person could interfere in Malaysia’s immigration processes. The applicant said they could. The Tribunal asked whether he paid a fee for this service – had he paid a bribe. He said he hadn’t. The Tribunal noted that it seemed even more implausible that someone whom he didn’t know would go out of their way and take such a risk to help him for no reward.
The Tribunal reminded the applicant of Australia’s DFAT information – that people who faced serious charges could be prevented from leaving Malaysia. That people like him faced a low risk of arrest for simply attending a rally. There was no reference to any blacklist in the DFAT report or in any other country information the Tribunal had reviewed. And it was somewhat implausible that a friend of his could see to it that his name could be removed from a blacklist. The Tribunal asked the applicant what his friend’s name was. He said he didn’t know his name. The Tribunal asked the applicant whether he had a response to Australia’s country information. He stated that he thought the DFAT report was not true, that it was not clear and not transparent.
The Tribunal queried the applicant as to whether there might be another reason why he could not obtain permits for his clubs. Was he behind in the payment of fees, or had a [member] suffered an injury. He replied that he had paid all of his fees, and that he was insured for injuries suffered by [members]. He could not think of any other reason why he could not obtain a permit for his clubs. He believed it was only because of his political views that he could not obtain his permits.
The applicant stated that he had a strong belief that a blacklist exists and that he was on that blacklist because of his political views.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 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 or herself, 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 or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal has significant concerns about the genuineness of the applicant’s claims. He has made significant claims in evidence in addition to those contained in his application forms. He was evasive in providing detail about particular circumstances and events and much of his claims are based on views and beliefs that he holds, and he was unable to provide any basis or justification for those beliefs or views being held. When questioned, it became apparent to the Tribunal that the applicant was pinning his primary claim on his being on an alleged blacklist – it was the claim he emphasised the most, yet the one that he had the least detail about – he could not tell the Tribunal the name of the website or the name of the friend who had the authority to temporarily lift his name from that blacklist to enable him to leave the country. The Tribunal found the applicant not to be a credible witness in any respect.
The Tribunal further doubts the genuineness of his claims by virtue of the fact that he stayed in Australia for three months without making any claim for protection, then he returned to Malaysia where it is alleged he feared to return, then returned to Australia and made a protection claim some two months after his second arrival.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The applicant claimed to fear harm from a date that was just a few days after he attended a Bersih rally that he initially said that he organised, but then said he took people to. He claims he had issues with the funding of his clubs and then obtaining [permissions] to open new clubs. He claims he went to Australia for a holiday. He then claims he went back to Malaysia with the intention of returning to his plan of opening new clubs as before – clubs that he was unable to obtain consents for. He stayed in Malaysia for three weeks and then returns to Australia, claiming to fear the same things he feared before he left Malaysia on the first occasion. He took over two months to apply for a protection visa. The Tribunal is of the view that a person who holds genuine fears of returning to his country would have sought protection at the first opportunity after leaving Malaysia, would not return voluntarily to his country in the first place, and then upon returning again, would be expected, after having been in Australia already for three months, and having some understanding of its visa requirements and opportunities, make application for protection very shortly after arriving back. The Tribunal finds that the applicant has no fear of persecution. It accepts that he has not suffered any form of harm in the past and does not fear suffering any form of harm in the future.
The Tribunal finds that the applicant suffered no harm whilst he lived in Malaysia. He has not been physically harmed or injured. The Tribunal discussed with the applicant that Bersih was a movement involving many NGO’s, it was not a party. It accepts that he is not a member of any political party. Whilst the applicant did not specifically explain how he had not included his attendance at the 2015 rally in his written application forms other than to say that he was urged to wear yellow shirts as a symbol of protest and that his evidence was inconsistent and unconvincing, the Tribunal accepts that the applicant may have attended the 2015 rally in Johor. But the Tribunal accepts that such rally was peaceful, there was no violence and he was not harmed at that rally in any way.
The Tribunal noted that he had not made any written claims about espousing his political views to [people] whilst he was in Malaysia. In fact, he made no written claims of having political opinions outside of his political involvement in Bersih. He claims that he no longer attends meetings of the committee of the UMNO and stopped attending shortly after attending the rally. When queried by the Tribunal, the applicant could not state what the political views were that he had or what views he was putting to the [individuals] he referred to, other than a vague comment about corruption in [his field]. When pressed, he could not explain what he meant by his view about corruption. The Tribunal finds that the applicant did not have any political views to espouse, did not pass on political views to [others] and did not arrange for them to attend the rally as he vaguely claimed. The Tribunal has given the applicant the benefit of very considerable doubt in finding that he attended any committee meeting of a UMNO, but does not accept that he ceased attending committee meetings because of his attendance at a rally that was peaceful in every respect. The Tribunal has again given the applicant the benefit of very considerable doubt in finding that the applicant ran multiple businesses, given that he stated just the one residential address on his application form, but does not accept, given its finding that he had no political views, that his inability to obtain permits for those businesses was by reason of his holding or expressing political views.
However, the Tribunal also accepts that the applicant has not been arrested or threatened with arrest at any time since attending the said rally in 2015 and leaving Malaysia in 2016.
The Tribunal accepts the applicant’s evidence that he is not anti-government and does not have anti-government views. It accepts that he may have a view about being anti-corruption but that does not mean that it is anti-government.
The applicant claimed he was hit but was lucky and avoided being caught by the police. This claim is completely inconsistent with his evidence that the rally was peaceful and that when the police asked everyone to go home in the afternoon, they all did so peacefully. The applicant was asked a number of times whether he had been harmed and he had said no. It was when the Tribunal reminded him of his claim to having been hit, that he recalled that that he was caught outside his parents’ place (after he was advised by a sibling that the police had visited his place) and asked to accompany the police to the station. He claims he had his bike clamped and that he was pushed off his bike. The applicant did not connect that event to the rally, other than to say in a rather vague and evasive way, that a friend who had been sacked from the government told him that the government was talking about him. In any event, he was not threatened or physically harmed and after giving the policemen his political views, was asked not to express them to others. He did not explain how the police came to be looking for him. The Tribunal does not accept that the applicant had any dealings with the police. He made no specific claims in his written application form to having been apprehended by the police. Instead he specifically claimed in his written claims that he avoided being caught by the police. The Tribunal finds that the applicant fabricated the evidence as to learning that the government was unhappy with him and to being pushed off his bike and being apprehended by the police.
The applicant claimed that his business of starting up [clubs] was being impacted by [certain organisations] not giving him permission to operate. He believed the government was behind this because of his political views. The applicant could not explain or justify his belief that the government was interfering in the approval process. The Tribunal suggested there may be one of many different reasons why [the organisations] weren’t approving of his applications. He rejected them all. He could not clarify what anti-government views he actually had, other than that he was anti-corruption in funding for [his field]. At no time did he claim that he was suggesting the government was corrupt in its funding [his field]. He alleged that the government stopped funding of one of his [clubs] but said that the government did not respond to his inquiry. For the reasons stated earlier and in this paragraph, the Tribunal has found that the applicant did not have any political views and accordingly, it finds that the government was not interfering in the applicant’s businesses or in the granting of permits.

The applicant claimed he was on a blacklist which had the consequence that he may not be able to leave the country. He could not explain where the blacklist was, or why it existed. He could not recall the website on which he said it existed. He could not recall the name of the friend who told him he was on a blacklist, or the name of the person who was the contact of the friend who had the power to lift his name from the blacklist. The Tribunal found his explanation that he was able to re-enter the country [in] May 2016 without incident, but then discover the blacklist within one month of his departing again implausible. The Tribunal found his explanation that someone who was a contact of a friend whom he couldn’t name could, without knowing him, and for no reward, interfere with the country’s immigration processes to lift his name from such a list for the short time it took him to leave the country was also so implausible as to be far-fetched. The Tribunal referred to the fact that it could find no country information that referenced any such blacklist. The Tribunal does not accept that any such blacklist exists, or that his name is on any such list. The Tribunal further doubts the genuineness of this claim by the fact that it had not been referred to in the applicant’s written claims.
The Tribunal finds that the applicant was of no adverse interest to the Malaysian authorities when he left and returned from Australia or again when he departed Malaysia for Australia the second time. The Tribunal further accepts that the applicant has not suffered any harm of any description while he lived in Malaysia for any reason, including for attending any rallies, having anti-corruption beliefs, or being a committee member of a UMNO, or being on any blacklist. The Tribunal does not accept that there is a real chance that he will face serious harm for any of those reasons.
On the evidence before it, the Tribunal is satisfied that the applicant was not otherwise politically active in Malaysia in the past, has no political views, had not attended any rallies prior to the single rally in 2015, did not attend any other rally after that, and that consequently, is satisfied that he would not attend political rallies or involve himself in the Bersih movement if he returned to Malaysia. Furthermore, while the Tribunal does not accept that the applicant would be likely to attend any political rallies in Malaysia in the future, it finds that, even if he does so, there is no real chance that he will face serious harm or significant harm as a result of doing so. In reaching this conclusion, the Tribunal has had regard to DFAT’s assessment that protestors face a low risk of arrest when engaged in political rallies and that if he was arrested, such individuals have commonly been released on bail shortly after their arrest.[1] The Tribunal finds that there is no real chance that the applicant will be persecuted if he returns to Malaysia now or in the reasonably foreseeable future at the hands of the Malaysian authorities, police or any persons or groups acting on behalf of the authorities due to his claimed attendance at a Bersih rally or presence on a blacklist or for any reason related to any political opinion.
[1] DFAT Country Information Report – Malaysia, 19 July 2016, p.16.
For the reasons stated above, the Tribunal finds that the applicant has no fear of persecution. It accepts that he has not suffered any form of harm in the past and does not fear suffering any form of harm in the future.
The Tribunal is not satisfied that there is a real chance that the applicant will be at risk of serious harm for reason of race, religion, nationality, membership of a particular social group or political opinion if he returns to Malaysia now or in the reasonably foreseeable future.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Malaysia. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Malaysia now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and country information, as well as having considered the personal circumstances of the applicant as contained in his application, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Malaysia now or in the reasonably foreseeable future.
Accordingly, and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, the Tribunal is not satisfied 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 s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Hawkins
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 1523

17 April 2018

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Statutory Interpretation

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