1705387 (Refugee)

[2017] AATA 2964

1705387 (Refugee) [2017] AATA 2964 (27 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705387

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Mila Foster

DATE:27 November 2017

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 November 2017 at 10:12am

CATCHWORDS

Refugee – Protection Visa – Malaysia – Imputed political opinion – Anti-government views – Anti-government protests – Bersih rally – Fear of persecution – Witness credibility – Conflicting evidence in claims

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] May 2016. The delegate refused to grant the visa on the basis that the applicant was neither a refugee nor owed complementary protection.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT produced such an assessment in relation to Malaysia, hereafter the DFAT Report.[1]

   [1] DFAT Country Information Report – Malaysia, 19 July 2016 (DFAT Report).

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant’s claims and evidence have been provided in his protection visa application and during a Tribunal hearing held by telephone (at the applicant’s request) on 3 November 2017. The hearing was conducted with the assistance of a Malay-speaking interpreter.

10. According to his protection visa application, the applicant is a [age] year old Malaysian national who arrived in Australia on a [temporary] visa [in] March 2016. He had resided at one address in Kedah state (Malaysia) since October 1992. He had a secondary education and retired in February 2003 having worked in [occupation].

11. He stated the main reason he left Malaysia involved the political situation in Malaysia. He said he was against the current government and involved in ‘many demonstration, assembly and revolution’ held by the opposition to make changes for a better government. He said he had been harmed in the past in Kedah and went to Penang (another state in Malaysia) to seek safety but the situation remained the same. He indicated he did not seek help from the authorities within Malaysia because the situation would be the same. He said that if he returned to Malaysia he thought it would be hard for him to live in terms of the economy. He said the political environment was not stable which affected the economy, it would be impossible for him to get a job to support his family and the worst part was he might be caught and gaoled by the Malaysian authorities as he is against the government. He would not be protected by the Malaysian authorities if he returned nor could he relocate within Malaysia.

12. Although the applicant stated in his protection visa application that he had not received any assistance to complete the form, he testified at the hearing that a friend completed the form on his instructions. He also testified that he could speak, read and write both Malay and English. This indicates he would be aware of the contents of his protection visa application. Yet there were several aspects of the applicant’s testimony which were not consistent with his protection visa application and otherwise flawed.

13. For example, despite indicating in his protection visa application that he was involved in demonstrations, assemblies and revolution organised by the opposition in Malaysia, in response to being asked at the hearing whether he was involved in any opposition group or party, the applicant stated that he was not involved in any political party but he opposed the government if it was not doing the right thing. Further, when asked how he opposed the government, his response was vague. He replied, ‘by supporting and following and talking’ about increased prices for oil, gas and goods.

14. In response to being asked at the hearing what serious harm or significant harm he would face if he returned to Malaysia, the applicant responded he could be arrested adding that he was involved in a group called Bersih and whoever is involved with them is detained or arrested and thus he decided to come to Australia. Later in the hearing he also claimed to fear being harmed by a group called the red shirts which opposed Bersih. He stated that Bersih is not a political party. He said it was a body involving people seeking clean and just elections and while all opposition parties were involved, Bersih was not a political party. According to the DFAT Report, Bersih is a coalition of NGOs which has organised rallies calling for improved government transparency and free and fair elections in Malaysia.[2] Despite testifying that he had been involved with Bersih for three to four years and being most active in 2015, the applicant was vague and evasive about the nature of his activity with Bersih. Asked about his activities in 2015, he referred to only one Bersih rally in August 2015 which he said was the biggest demonstration in Kuala Lumpur. He said that prior to that he was involved in Kedah but did not specify was activity he was involved in. Asked about the nature of his activity in Kedah, he simply stated that he opposed the government on their decision. Asked what decision he was referring to, the applicant replied, ‘regarding people, so everything, whatever they did’. Asked about the nature of his other activities in 2015 besides the rally he replied his only activities with Bersih were in Kedah. Had the applicant been involved in Bersih for several years and especially active for a year prior to his departure from Malaysia as he initially claimed then I expect that he would have been able to provide more precise and forthcoming details about the nature of his activity. 

    [2] DFAT Report, [3.61].

15. When I noted that contrary to the claim in his protection visa application that he was involved in many demonstrations, assemblies or revolution held by the opposition, his testimony indicated that he was not that active and that his activity was with Bersih not the opposition, the applicant responded that it was true that Bersih was not a political party and that he was involved in Bersih because of the injustice caused to people by the government. This does not explain the difference between the nature of the anti-government activity the applicant claimed to have involved in his protection visa application and at the hearing.

16. When I asked the applicant to explain why there was no mention in his protection visa application of Bersih if, as he testified, he had been involved in Bersih for several years, he left Malaysia because he feared being arrested and detained due to his involvement in the 2015 Bersih rally, and he feared returning to Malaysia because he may be arrested and harmed for being involved with Bersih, he replied that he believed his application mentioned that he feared returning to Malaysia because he might be arrested for demonstrating against the government. This does not explain why his protection visa application did not specifically refer to Bersih given his claimed activity with Bersih. I expect that the applicant would have referred to Bersih in his protection visa application if the claims he made at the hearing were true.

17. I also questioned the credibility of the applicant’s claim that he left Malaysia because he feared being arrested for his involvement in the Bersih rally given that according to his testimony he had not faced any harm in the seven months after the rally and given his seven month delay in departing Malaysia. Furthermore, information before me indicated that protesters face a low risk of arrest, are commonly released on bail shortly following their arrest and it was high-profile organisers of political rallies who faced a moderate risk of discrimination and arrest.[3] The applicant responded that he was involved in the rally, four or five people who were caught were not leaders and may have been involved in fights, and he was very scared during the seven months because people were caught and arrested. This does not explain the applicant’s delay in departing Malaysia if he had a genuine fear of arrest and detention.

    [3] DFAT Report, [3.65].

18. Despite claiming at the beginning of the hearing that as far as he knew everyone involved in Bersih was arrested or detained, when the applicant was asked why he believed he would be arrested if he returned to Malaysia, he said he knew five or six people involved in the Bersih demonstration in 2015 were arrested afterwards. Asked to explain this apparent shift and given information before me that over 100,000 people attended the rally,[4] the applicant replied that as far as he was aware five or six people were arrested but he did not know how many more of the 100,000 were arrested. The reply does not explain the shift in his testimony from everyone involved in Bersih being arrested or detained to merely five or six being arrested after the August 2015 Kuala Lumpur rally.

    [4] DFAT Report, [3.62].

19. Finally, despite claiming in his protection visa application that he retired in 2003, the applicant testified that he had his own [business] for 10 years preceding his departure from Malaysia. Noting this testimony, I asked the applicant about the information in his protection visa application that he had retired in 2003, and the written claim that it would be difficult for him economically if he returned to Malaysia. The applicant did not explain why he had not referred to his 10 year business in his protection visa application. Instead he said the pension he received after retiring from [his previous occupation] was not enough so he started his small business but that went down in 2013 or 2014 because of insufficient work from the government and so he had to go work in Penang. This is contrary to the testimony he gave at the beginning of the hearing when asked what his last job in Malaysia was before he came to Australia, to which he replied he had a [business] for 10 years and gave no indication that he had other jobs from 2013 or 2014.  I also put to the applicant that his testimony did not indicate, as suggested in his protection visa application, that he had difficulty finding a job because of the effects of the unstable political environment on the economy and I put to him that according to information before me the Malaysian economy was doing well.[5] The applicant replied that anyone who lives in Malaysia knows what it is like; he said he moved to Penang because of the injustice and increased prices and difficulties with work. If he had moved to Penang because of what he vaguely referred to as ‘the injustice’ or the effect of the political environment I expect he would have referred to that when he first mentioned that he moved there. Instead it appeared he only claimed he moved to Penang due to injustice when I noted the suggestion in his protection visa application that he moved to Penang due to the consequences of the political environment.

    [5] DFAT Report, [2.7] and [2.9].

20. Having considered the evidence before me I make the following findings on the applicant’s claims.

21. I accept on the basis of the passport and identity documents the applicant submitted with his protection visa application that he is a national of Malaysia. However, the flaws in his testimony which I have outlined above lead me to find that he was not a credible witness and reject his protection claims. I thus do not accept that the applicant participated in a Bersih rally in Kuala Lumpur in August 2015 or that he was involved with Bersih in any way in Malaysia. Nor do I accept that the applicant was involved in any demonstrations, assemblies, revolution or any other activity organised by any person or groups opposed to the Malaysian government including any activity in relation to increased prices. It is plausible that the applicant expressed dissatisfaction about price increases in day-to-day conversation with family, friends or acquaintances. However, I am not satisfied on the evidence before me that the applicant expressed any opinion about prices, the Malaysian government or any other matters either publicly or privately that resulted in him suffering serious harm or significant harm in the past or would give rise to him being subjected to serious harm or significant harm in the reasonably foreseeable future. I thus find that the applicant does not face a real chance of arrest, detention or any other serious harm or significant harm from the government, red shirts or anyone else if he returns to Malaysia for reasons of his participation in actual or imputed political activity or opinion, or any other opinion or activity.

22. Further, I find that the applicant has not been truthful about his employment circumstances in Malaysia as evidenced by his failure to refer in his protection visa application to the business he claims to have had for 10 years after his retired from [his previous occupation]. For that reason and given the information about the good state of the Malaysian economy[6] I do not accept that the applicant has not been able to or will not be able to find work to support himself and his family or that he faces employment or economic difficulties in Malaysia that amount to serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion nor significant harm as defined in s.36(2A).

    [6] Ibid.

23. On the basis of my preceding findings, I conclude that there is not a real chance that the applicant will face serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion if he returns to Malaysia. He thus does not have a well-founded fear of persecution as defined in s.5J in Malaysia and is not a refugee as defined in s.5H(1)(a). I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

24. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(a). Having regard to the findings I have made above in [21] and [22], I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined in s.36(2A). I am thus not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

25. 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

26. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Mila Foster
    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.

    …