1705825 (Refugee)

[2017] AATA 1983

1705825 (Refugee) [2017] AATA 1983 (7 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705825

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Angela Cranston

DATE:7 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 07 August 2017 at 2:10pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Political opinion – Member of a political party – Bersih protestor – Anti-government opinion – Unable to meet refugee criterion

LEGISLATION

Migration Act 1958, ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6), .5K-LA, 36, 36(2)(a)-(c), 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] July 2016. In his application, the applicant stated:

   I left Malaysia because I feel myself to be unsafe if it is still in Malaysia, a few months earlier I had spoken with political party the government of Malaysia to date, related to the government problem is now in a state of corruption and political uprisings. From the day that I always receiving threats by politicians who do not responsible would trouble me if I speak out against the government’s political party current in Malaysia government and there are also friends and Malaysians others participated expression, there is a threatened and killed without evidence by certain parties that are not in the know therefore I fear the matter, the same will happen to me, and I make decision to flee.

   I think if I return to Malaysia maybe the harm will happen to me because now there are many cases that occurred in Malaysia those who speak out against political parties, government Malaysia now, they will arrest to prison and tortured or shoot dead without any advance, such things are happening, without coming out in the news or social media.

   Yes I suffered in Malaysia after my speech with political parties kingdom Malaysia now, always threatened by the political parties, those who speak out and oppose the government of Malaysia and is still in the country, will be in the capture and interrogation including prisons, by because I am not convinced my safety.

3. The delegate refused to grant the visa and the applicant applied for review.

4. The applicant appeared before the Tribunal on 28 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

5. The applicant stated he came to Australia in May 2016. The applicant stated his agent asked him the protection visa application form questions in Malay and wrote down his answers in English. He translated what had been written in English back to him in Malay and the answers were correct and he did not want to change or add anything.

6. The applicant stated he came to Australia because of political problems. He stated he didn’t like the government and the economy had gone down. He stated he criticised the government and joined a party and received a threat. The Tribunal asked when he first criticised the government and he stated in August /September 2015. He stated he went to Bersih and tried to put the government down and criticise them. The Tribunal asked about the party that he had joined and he stated it was Bersih. The applicant stated the government’s reaction to Bersih was bad, that is they tried to stop Bersih by blocking the street and not allowing people to demonstrate. They also created the Red party.

7. The Tribunal put to the applicant that its information suggested that Bersih in 2015 was peaceful. He stated there was violence. The Tribunal also put to him that DFAT said protesters faced a low risk of arrest when engaged in political rallies.

8. The Tribunal asked if he had done anything else other than protest at Bersih and he stated no. The Tribunal then put to him that in his application he stated he had spoken with a political party and that from that day, he had received threats by politicians and that seemed different from his evidence at hearing which was that he had joined Bersih. He stated he had spoken to a political party but when asked why he had not said that earlier, he did not comment.

9. The applicant stated that there were economic problems in Malaysia. He also stated he had not worked in [Malaysia]. In Australia he worked in a [certain role]. He was not sure if he could find work in Malaysia.  The Tribunal put to him that according to DFAT the most recent survey in 2014 stated that the male labour force participation rate was 80.4% and that the applicant had shown himself to be resourceful in coming to Australia and finding work and it may find that he could find work in Malaysia. He stated maybe but the economy was not very good and he still had his family to take care of including his [parents].

Country Information

1. According to DFAT Country Information Report Malaysia 19 July 2016:

   Employment

   2.15 In December 2015, the Malaysian Department of Statistics reported a labour force participation rate of 67.8 per cent and an unemployment rate of 3.3 per cent. The most recent national survey (2014) reported that the male labour force participation rate was 80.4 per cent and the female participation rate was 53.6 per cent..…

   Protests
   2.30 Protests and demonstrations occur from time to time, including the peaceful ‘Bersih 4’ (Coalition for Clean and Fair Election) rallies in August 2015. The pro-government ‘red shirt’ rally held in response to Bersih 4 was aggressive but police quelled the protest with water cannons before it became violent….

   3.65 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.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Definition in Malaysia and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

3. The applicant claimed in his protection visa application that he left Malaysia because he spoke with a political party and that he subsequently received threats by politicians, but at hearing he stated he joined the Bersih demonstration however that was not in his written statement and he chose not to comment on its omission. The Tribunal finds the applicant’s evidence in relation to his alleged political involvement has changed. In addition, even though the applicant stated that the government response to Bersih 2015 was bad and people were not allowed to demonstrate, the country information before the Tribunal suggests that the Bersih protests were peaceful and no violence was reported.

4. The Tribunal finds that the applicant was unable to repeat his written claims unprompted at hearing where he also produced new claims. In addition, the applicant’s description of Bersih 2015 at hearing is not consistent with the country information before the Tribunal.  The Tribunal does not accept that the applicant did join a political party or that he subsequently received threats by politicians, or that he joined Bersih, or that he attended demonstrations, or that he holds an anti-government political opinion consistent with the Bersih ideology, or that he will express anti-government opinions in the future. The Tribunal does not accept that the applicant faces a real chance of serious harm including being arrested and imprisoned on his return to Malaysia for reasons of his alleged political involvement.

5. The applicant has stated that he is unsure about finding work in Malaysia. However, he has worked as a [occupation] in Australia and the country information suggests the male labour force participation rate was 80.4% in 2014 and there is nothing in the applicant's past as presented at hearing that suggests that he will be denied employment commensurate with his experience. In these circumstances, the Tribunal is not satisfied that the applicant will be denied employment let alone employment for a refugee reason.

6. The Tribunal is therefore not satisfied that the applicant on return to Malaysia now, or in the foreseeable future, faces a real chance of serious harm for reasons of his race, religion, nationality, membership of a particular social group or his political opinion.

7. The Tribunal is not satisfied that the applicant on return to Malaysia now, or in the foreseeable future, faces a real chance of serious harm for a refugee reason.

8. 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).

9. 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).

10. The Tribunal has rejected the entirety of the applicant’s claims. The Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, that is the Tribunal is not satisfied he 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. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

11. 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

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

Angela Cranston
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.

…