1706896 (Refugee)

[2020] AATA 3296

1706896 (Refugee) [2020] AATA 3296 (20 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706896

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Nora Lamont

DATE:20 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 20 July 2020 at 9:19am

CATCHWORDS

REFUGEE – protection visa – Malaysia – political opinion – ‘blacklisted’ for participation in protest rally – general political and economic conditions – country information – change of government – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 65

Migration Regulations 1994 (Cth), 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 dependants.

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 and Border Protection on 9 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 on 2 December 2016.

3. The applicant appeared before the Tribunal via teleconference due to COVID 19 on 16 July 2020 at 9:30 am to give evidence and present arguments. The Tribunal was conducted with the assistance of an interpreter in the Malay and English languages.  

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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 themselves 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).

7. 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.

8. 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

9. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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

10. The applicant was born on [date] and first arrived in Australia [in] April 2016. He comes from a large family of [a number of] girls and [a number of] boys including himself. The applicant was working in [work sector] and a [workplace] prior to leaving Malaysia.

11. The applicants claims as presented in his protection visa application and summarised accurately by the delegate is as follows: [1]

    ·The applicant states he left Malaysia because the government is seeking his as part of the Bersih group. The applicant states that many of the group were persecuted and so he fled to Australia to seek refuge. He fears he will be arrested or imprisoned. (sic)

    [1] Protection Visa Decision Record [number]

12. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk that he will suffer significant harm.

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

14. The applicant travelled to Australia on a valid Malaysian passport and states that he is a national of Malaysia. The delegate had no concerns about the applicant’s identity. Therefore, the Tribunal has assessed the applicant’s claims against Malaysia as his country of nationality and receiving country.

    Tribunal Hearing

15. The applicant said he came to Australia as he was told that there were better opportunities in Australia than Malaysia as he couldn’t support his life. He said a friend from his village who had been to Australia told him that there were better opportunities.

16. The applicant then said I will be honest I took part in Bersih 4.0 and to that extent he was blacklisted. The applicant said he became involved in Bersih in August of 2015. When asked when the rally was held the applicant said 29 August 2015. The applicant said he was not involved with the group prior to this event. He said he was protesting for the country.

17. The applicant then said he was a youth member of the National Justice Party, and he was directly involved in the organisation of the protest. He stated he campaigned for the protest; he informed the masses. When asked what he meant he said he called his friends to get them involved.

18. The Tribunal asked if he came from a political family and he said at the time it was a well know fact that the government was corrupt. He said he came to Australia because of Bersih 4.0 there was no jobs because of it. The Tribunal asked the applicant what the points were that 4.0 was making to the country and he said to change the government, to eradicate corruption and demanding job opportunities for Malaysia.

19. The applicant said he was arrested at the rally. The applicant said that a group of people were arrested, and the police told him that his name would now be blacklisted. He was detained for two days for the violence that took place at the rally. The Tribunal asked the applicant if he had any documentation related to his arrest and imprisonment to which he said no.

20. The Tribunal pointed to country information that states at the Bersih 4.0 rally the police did not use tear gas as they had in the past. The applicant said but there were scuffles and a fight, and he was arrested for fighting.

21. The Tribunal asked if when he was detained was, he able to let his family know by calling them and he said no he was not allowed. He told his family after he had been released. The applicant said he was told while he was in gaol that he was to be blacklisted. The Tribunal asked him to explain why he would be blacklisted but the actual organisers of the rally and those who are working for Bersih were not blacklisted? The applicant said it was because he was involved in a fight.

22. The Tribunal asked the applicant why he became violent and he said there was a misunderstanding with an opposing party, and it turned into a fight. The Tribunal asked him if the Bersih movement helped him out after he was in gaol and he said he wasn’t involved with the movement he wasn’t an organiser he just did it out of his own willingness.

23. The Tribunal asked if he still followed the Bersih movement and he said there was no reason for him to care now. He said he was in Australia now and was able to work. The Tribunal read a portion of the DFAT report on Malaysia that says that since the change of government in Malaysia in 2018 there is increased space for political opposition and dissent as follows: [2]

    3.92 DFAT assesses that since Malaysia’s first change of Government in 2018, there is increased space for political opposition and dissent. This space has not been formalised through changes in policy or legislation, however, and enforcement authorities retain the option of using what the Government previously called (when in opposition) ‘oppressive laws.’ Political party members can undertake political activities on a day-today basis and face a low risk of official discrimination. Individuals do not face societal violence on the grounds of their political affiliations.

    [2] DFAT Country Information Report Malaysia December 2019 page 35

24. The applicant responded to the country information by saying he is comfortable here in Australia and happy to live here, he doesn’t know what he would do if he went back.

25. The applicant said he didn’t know what would happen to him if he was returned to Malaysia, he doesn’t know what he would do.

    Findings

26. The Tribunal has a number of concerns with the applicant’s claims for protection. For the following reasons the Tribunal does not accept the applicant’s claims to have been actively involved in the Bersih rally 4.0, that he was arrested and blacklisted. Whilst the applicant was able to tell the Tribunal a little about the rally the date and details are easily accessed on the internet.

27. When first asked why he came to Australia he told the Tribunal that a friend of his had come to Australia and had told him that there were greater opportunities. It was after this he said he was involved in the Bersih rally 4.0.

28. The applicant said he was arrested at the rally and that he was gaoled for two days and then “blacklisted” so he won’t be able to work. However, when the Tribunal put to the applicant that the rally went ahead without incident that is when the applicant then said he was in a violent confrontation with some opposing party people. [3] Country information which was discussed with the applicant indicates that the rally was peaceful, and the police did not use tear gas or water cannons.

    [3] >

    When asked if the applicant asked for assistance from the Bersih community when he was arrested the applicant said no, he did not. However, the Bar Council of Malaysia did offer support for anyone arrested by police at the rally. [4] The applicant said he wasn’t arrested for being at the rally but rather because of the violence. The Tribunal was unable to find any news reports or documentation related to arrests at the Bersih 4.0 rally. Further, the applicant did not have any documentation in relation to his arrest and subsequent detainment. The Tribunal considers if the applicant was arrested and detained for two days then blacklisted there would be some documentation around this.

    [4] >

    The applicant claims he is blacklisted. However, he told the Tribunal he was working for the three months prior to coming to Australia, and he was able to get a passport and visa and exit Malaysia without and problems. If the applicant was blacklisted it would have affected his ability to leave the country. [5] Further, the Tribunal is not satisfied that the applicant’s claims to have had a minor involvement with the Bersih rally 4.0 would cause the applicant to be blacklisted.

    [5] >

    Finally, as above, current country information indicates that with the change of government in 2018 there is a change in the attitude of the government and politics, allowing for more discourse in society. [6]

    Conclusion

    [6] DFAT Country Information Malaysia December 2019 page 35

29. For these reasons, the Tribunal does not accept the applicant’s claims to have participated in the Bersih 4.0 rally and to have been arrested and gaoled due to his involvement or due to a violent confrontation. It follows that it does not accept that the applicant has been blacklisted.

30. Based on the above, the Tribunal does not accept that the applicant was harmed by the government or police in the past due to his political involvement or that they blacklisted him. Therefore, it does not accept that if he returns to Malaysia, he faces a real chance of persecution. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).

31. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from Bersih, the police or authorities. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

32. 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).

33. 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

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

    Nora Lamont
    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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 the 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.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …