1707502 (Refugee)

[2021] AATA 1541

1707502 (Refugee) [2021] AATA 1541 (7 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707502

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         7 April 2021 at 2:39 pm (WA time)

DATE OF WRITTEN RECORD:                23 April 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 23 April 2021 at 8:09am

CATCHWORDS
REFUGEE – protection visa – Malaysia – imputed political opinion – member of anti-government organisation – Bersih – participation in one protest – obtained and departed on genuine passport – credibility concerns – vague claims and evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 36
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 dependant.

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 22 March 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 7 April 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

   STATEMENT OF DECISION AND REASONS

3. Attached to this decision record is a corrected transcript of the oral reasons for decision delivered to the applicant at the time of their delivery in person.

   DECISION

4. The Tribunal affirms the decision under review.

   Dr Colin Huntly
   Member

   
   

   Corrected Transcript

   ORAL DECISION OF MEMBER HUNTLY  [2.08 PM]

   INTRODUCTION

5. The criteria for a Protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994.  An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criterion (at s.36(2)(a) of the Act), or on complementary protection grounds (at s.36(2)(aa) of the Act). 

6. Where relevant, the Tribunal has taken into account the policy guidelines prepared by the department relating to refugee law and complementary protection, together with any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT), as is required by Ministerial Direction No.84.

   CREDIBILITY

7. Before looking at my findings, I note that on questions of credit, I need to give the benefit of the doubt, but that it is for an applicant to make their own case in as much detail as possible.  Greater weight may be given to one piece of evidence against another, and there is no rule that I must hold a positive state of disbelief before making adverse assessments.  I also note that a decision-maker is entitled to consider whether or not an applicant subjectively holds a genuine fear of persecution before considering whether such a fear is objectively held.

8. If a refugee decision-maker finds on the evidence that an applicant does not subjectively hold a genuine fear of persecution, there is no need to consider whether or not there is an objective basis for the claim, or indeed whether aspects of the claim are satisfied. 

9. In this respect, I have had regard to Migration and Refugee Division guidelines on the assessment of credibility, issued in July 2015, which provides:[1]

   It is in the nature of an application for protection that determinations are made, at least in part, on an assessment of the applicant’s credibility, and on the credibility of claims themselves.

   [1] At [8].

10. I also note:[2]

    In relation to protection visa applications made on or after 14 April 2015, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, and the Tribunal is satisfied that the applicant does not have a reasonable explanation why their claim was not raised, or the evidence was not presented before the primary decision was made, the Tribunal must rule an inference unfavourable to the credibility of the claim or evidence.  This refers to the requirements of section 4.3.2A of the act.

    [2] At [13].

11. Further:[3]

    Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case.  The Tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal. 

    A member should maintain, and be seen to have, an open mind when conducting a hearing.  There is a duty to clearly and unambiguously raise with the applicant critical issues on which his or her application may depend. 

    An applicant may be favourably fronted with matters that would be adversely on his or her credit, or which bring his or her account into question.  However, the Tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.

    [3]         At [17]-[19].

12. With respect to contradictions, inconsistencies and omissions:[4]

    Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. 

    The Tribunal will consider all of the evidence before it recesses, whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.

    [4]         At [27]-[28].

    BACKGROUND

13. According to the applicant’s movement record, he arrived in Australia [in] June 2016, travelling on a [Visitor’s] visa.  The applicant thereafter applied for a Protection visa in Australia on 21 August 2016. 

14. A delegate of the Minister for Immigration refused to grant a Protection visa to the applicant in a written decision dated 22 March 2017.  The applicant provided the Tribunal with a copy of this decision and seeks a review of that decision. 

15. The applicant appeared before the Tribunal on two occasions to give evidence and present arguments, firstly, on 17 March 2021, and second, on 7 April 2021.  The applicant was not represented in this application by a registered migration agent.  The Tribunal was assisted in this review by the services of an interpreter, fluent in both Malay and English languages.

    IDENTITY.

16. The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Department with his application for protection. 

17. I have had an opportunity to review the departmental information relating to the applicant’s identification and I have had the opportunity to interview him on two occasions. 

18. After considering this information and evidence, I find the applicant is a citizen of Malaysia, which is also his receiving country for the purposes of the refugee and complementary protection assessments.

    COUNTRY INFORMATION

19. In addition to the country information referred to in the delegate’s decision record, I have had regard to the most recent DFAT country information for Malaysia (dated 13 December 2019).  In particular, the discussion in this publication relating to the treatment of returnees. 

20. I note that this publication provides as follows:[5]

    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.

    [5]         At [5.35].

21. I have also had regard to the Department of Home Affairs publication, Malaysia, Common Claims, COISS 3 July 2018. 

    FIRST HEARING

    Claims

22. At the first hearing on 17 March 2021, I explained to you the documents I have in my possession.  I read you the summary of your claims contained at Part 4 of the delegate’s decision record which was as follows:

    ·     The applicant claims he left Malaysia because he was involved in a group called Bersih.  They were attacked with acid, gas and water.  The government decided to catch members of this group.

    ·     If he returns to Malaysia, he will be imprisoned.  The authorities will be able to find him.

23. I then asked you a number of questions.  Firstly, I asked you if this was a fair and accurate summary of your claims for protection made in your original Form 866C.  You said ‘Yes’.  I asked you if there was any information in the documents I had before me that you needed to change, and you said ‘No’.  I asked if there was anything you would like to add to your claims for protection, and you said ‘No’.  I asked if you were happy for me to proceed on the basis of the information I had before me, and you said ‘Yes’.  I pointed out to you that the delegate found that your claims were vague and lacking in an appropriate level of detail.

24. I asked you if you had read the document, and you said ‘No’.  I was surprised at this, given that you had provided the Tribunal with a copy of the document, seeking us to review it. 

25. I asked you why you had not read the document.  You said that you don’t remember.  I pointed out to you that the delegate’s findings about your claims lacking clarity and appropriate detail appear to be reasonable based on my review of the files, and indicated that we would need to discuss this further at the next hearing. 

26. Following the first hearing with the Tribunal, I received no further written submissions from you.

    SECOND HEARING

27. At the second hearing on 7 April 2021, I started by reminding you about our discussion at the first hearing.  You confirmed to me what your answers were at the previous hearing as recorded above.  I asked you if there was anything you would like to say about that and you said ‘No’. 

    Personal history

28. Following this, I asked you some questions about your life in Malaysia before you came to Australia.  You are the youngest of [number] children born to your mother and father.  Your father died earlier this year, in January 2021, at a reasonably advanced age of [age] years.

29. For a long period of time, he was retired, living on a [pension], having been an [employee] in the [government].  Your mother, who is still alive, lived for many years in [Town 1] in Perak.  Your mother is an elderly person, suffering from some invalidity.  A number of your sisters live near your mother.  You are the only member of your immediate family who lives outside of Malaysia.  You told me that you struggled with tertiary education and dropped out, having tried–but being unable to complete–a [Qualification 1] from [Institution 1].

30. I asked you why you decided to come to Australia, given that you had not travelled outside of Malaysia before then.  You indicated that you believed your economic opportunity would be greater in Australia, based on advice given to you by friends and research that you had done for yourself.  You said it was a sudden decision to come to Australia, and that when you discussed it with your own family, you explained to them that you would have a better opportunity for yourself in Australia than in Malaysia.  You said that you hoped to change the course of your life.

31. When I asked you if that had indeed been the case, you said ‘Yes’.  You said that it had been a good financial decision to move to Australia.  I asked you why it was not possible for you to continue your life in Malaysia.  You said that there was too much competition and you were poorly qualified. 

32. I asked you what life would be like if you had to return to Malaysia in the near future.  You said you would have to hide yourself.  I asked you why this would be the case.  You said that you would need to hide yourself from political obsessives in that country.

33. When I asked you what this meant, you referred to Bersih.  This was the first mention you had made in our hearings about Bersih.  I asked you what your involvement with Bersih had been.  You said that you were involved in a protest in the [Suburb 1] area of Kuala Lumpur in 2015.  I asked you when in 2015 this had occurred, but you could not tell me.  I note that you did not refer to any month, nor did you seek to link it to any cultural festivals or observances, such as Ramadan.  I asked you where in the [Suburb 1] area you were when the events you claimed occurred had taken place.  You said you were not sure what the place was called.

34. You said that, at a Bersih rally, friends of yours had become aggressive with police.  It was a chaotic situation.  You and your friends tried to diffuse it.  When police retaliated, the group ran away.  Some of your friends were detained or arrested, and you believe that if the authorities identified you, there would be a problem for you.  I pointed out to you that country information suggests that the Bersih 4.0 protest in Kuala Lumpur was not violent.  You responded that reporting was not complete outside of Malaysia, that you knew what you saw.  I asked you if you were happy that the government had since changed.  You asked me ‘Which government?’

35. We discussed the fact that there had, in fact, been three governments since the Najib government was overturned as a result of the Bersih protests (two of these governments being led by former Prime Minister Mahathir), following the overthrow of the Najib government.  At this point, your responses reduced in detail. 

36. I pointed out to you that your narrative was problematic.  I said that it was strange to suggest that the Najib government had been searching for you, given that the same government issued you with a passport in Malaysia [in] 2016.  You made no comment in response to this observation. 

37. I suggested to you that your evidence relating to your involvement with Bersih did not appear credible, given that it lacked so much important detail and did not appear to be supported by appropriate country information.  You made no comment when I invited you to respond to this.

    FINDINGS

38. I have carefully considered the claims contained in your original application for protection which you have effectively repeated before the Tribunal.  As I have expressed to you in the hearings, I have considerable doubts about the credibility of your evidence as it relates to any involvement you might have had with Bersih or, in fact, any political movement, ideology or opinion in Malaysia at any time in your life. 

39. I should note that, when it related to matters about yourself, your personal and family circumstances in Malaysia and Australia, your evidence to me at the hearings was in every respect credible, detailed and straightforward.

40. By comparison, with respect to any involvement you might have had with the Bersih movement in Malaysia, your evidence was vague, illogical and lacking in appropriate detail.  When I put my concerns to you about your unsatisfactory evidence relating to these core claims for protection, you made no comment. 

41. Accordingly, I find that your claims to have been involved in a Bersih rally in the [Suburb 1] area of Kuala Lumpur in 2015 are not credible.  I further find that you have not pursued any form of political protest in Malaysia at any time.  On this basis, I find that you have no credible basis to claim to hold a well-founded fear of harm in Malaysia at any time from any person.  Rather, I find that your real reason for coming to Australia was, as you indicated at the second hearing, to find work.  Given this, I find you have no credible basis to claim protection in Australia. 

42. Now, I note that generalised concerns about economic political disadvantage in and of themselves are not recognised grounds to support a well-founded fear of persecution for the purposes of a protection visa in Australia under either the refugee grounds or the alternative complementary protection grounds, in the absence of other considerations.

43. In particular, I note that at no time has your evidence identified any agent of harm in Malaysia who would have the means or opportunity to pursue you on your return, given the replacement of the Najib government in 2018 in that country. 

44. On this basis, I find you would not face any chance of serious harm if returned from Australia to Malaysia, from any person, for any reason, now or in the reasonably foreseeable future in that country for the purposes of s.36(2)(a) of the Act (the refugee criterion). 

45. The real risk test imposes the same standard as a real chance test.  Given my findings relating to factual matters that I have already detailed above as they touch on the credibility of your claims, it follows that I am not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of you being removed from Australia to Malaysia, that there is a real risk that you would suffer significant harm as described at s.36(2)(aa) of the Act (the complementary protection criteria), now or in the reasonably foreseeable future, from any person, for any reason. 

46. Taking your claims at their highest, first individually and then cumulatively, they are unsatisfactory, inconsistent and lacking in appropriate corroboration.

    SUMMARY

47. For the forgoing reasons, I am not satisfied that you are a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

48. Having concluded that you do not meet the refugee criterion, I have considered the alternative criteria and I am not satisfied you are a person in respect of whom Australia has protection obligations by virtue of s.36(2)(aa) of the Act.

49. There is no suggestion that you are a member of the same family unit as a person who meets either of those criteria.  Accordingly, the criteria in s.36(2) of the Act are not met.

    DECISION

50. The Tribunal affirms the decision under review.

    END OF ORAL DECISION  [2.39 PM]