1708175 (Refugee)

[2021] AATA 1004

1708175 (Refugee) [2021] AATA 1004 (30 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708175

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Dr Colin Huntly

DATE:30 March 2021

PLACE OF DECISION:  Perth

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

Statement made on 30 March 2021 at 9:50am

CATCHWORDS
REFUGEE – protection visa – Malaysia – transcription error in the delegate’s decision record – validity of decision not affected – political opinion – involvement with the Bersih opposition political movement – failed to provide any relevant supporting evidence – lack of engagement in the review process – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 67, 104
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

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 and Border Protection dated 20 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   APPLICANT IDENTITY

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 7 March 2017, and the delegate notified the applicant that the application had been refused by letter dated 13 April 2017.[1] 

   [1]There has clearly been a transcription error in the delegate’s decision record for the refusal decision in this application.  A visa application which was lodged with the Department on 7 March 2017 could not have been decided on 20 February of the same year.  Given the saving provision at s.67(5) of the Act, this transcription error ‘does not affect the validity of the decision’.

3. The applicant arrived in Australia [in] December 2016 as the holder of a UD-601 Visitor’s ETA visa.  The Tribunal has had regard to the Departmental files and the information on which the decision of the delegate, relating to identity, was based. 

4. Accordingly, on the basis of the foregoing evidence, the Tribunal finds that the applicant is a national of Malaysia.  Having established the applicant’s identity to the Tribunal’s satisfaction, the Tribunal finds that the receiving country with respect to the applicant is Malaysia. 

   RELEVANT LAW

5. The law relevant to this application for review is discussed at ‘Attachment - Extract from Migration Act 1958’.

   PRESIDENT’S DIRECTION

6. I have had regard to the President’s Direction COVID-19 Special Measures Practice Direction, Migration and Refugee Division 27 April 2020.  I have also had regard to the President’s Direction Conducting Migration and Refugee Reviews 1 August 2018.  In particular:

   ·     That Members are to take all reasonable steps to complete cases allocated to them as quickly as possible;[2] and

   ·     That generally, in reviewing a decision to refuse the grant of a protection visa, Members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.[3]

   [2]Consistent with the Administrative Appeals Tribunal Act 1975, s.33(1)(b) at [2.1].

   [3]At [8.1]

   NEW CLAIMS AND EVIDENCE

7. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  On this view, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim, or to establish or assist in establishing a claim.  This is consistent with the well-settled proposition that it is for an applicant to make their own case.[4]  Applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. 

   [4]Prasad v MIEA (1985) 6 FCR 155 at 169-70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

8. Two obligations here are particularly relevant.  First, the ongoing requirement under s.104 of an Act for an applicant to ensure their relevant details are correct and to change any incorrect information at the first reasonable opportunity. 

   CRITERIA FOR A PROTECTION VISA

9. The criteria for a protection visa are set out in s.36 of the Act and Sch.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) of the Act. 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.

10. 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.

11. 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.[5] 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.[6]

    [5]Section 5H(1)(a) of the Act.

    [6]Section 5H(1)(b) of the Act.

12. Under s.5J(1) of the Act, 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 s.5J(2)–(6) and ss.5K–5LA of the Act, which are extracted in the attachment to this decision.

13. If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, he or she may nevertheless meet the criterion for the grant of the visa at s.36(2)(aa) of the Act 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 (‘the complementary protection criterion’).

14. 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 s.36(2A) and (2B) of the Act, which are extracted in the attachment to this decision.

    Findings relating to applicant credibility

15. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[7]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

    [7]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

16. In Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton,[8] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’[9] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

    [8](1996) 40 ALD 445.

    [9]At 482.

17. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[10] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[11]

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.

    [10](1996) 185 CLR 259.

    [11]At [25].

18. The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that ‘where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.’[12] Nevertheless, as Burchett J counselled,[13] it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

    [12][1997] FCA 1198 ( accessed 15 February 2017).

    [13]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

19. The Full Court of the Federal Court noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[14] On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84–86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[15] Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[16] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[17] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[18]

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

    [14]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 ( accessed 15 February 2017).

    [15]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.

    [16]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

    [17]MIMA v Rajalingam (1999) 93 FCR 220.

    [18](1999) 197 CLR 510 at [191].

20. The Tribunal notes, however, that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.

21. If the decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied. The Tribunal notes that in Iyer,[19] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[20]

    [19]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].

    [20]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

    Mandatory considerations

22. In accordance with Ministerial Direction No.84, 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.

    ISSUES TO BE DETERMINED AND DECISION SUMMARY

23. The delegate refused to grant the applicant the visa on the basis that he did not face either a real chance of serious harm or a real risk of significant harm in Malaysia now, or in the reasonably foreseeable future, for the essential and significant reason he was involved with the ‘Bersih’ opposition political movement in that country prior to his departure in December 2016.  This finding was based in part upon the lack of particulars in the applicant’s claims for protection and also on his regular and lawful departure from Malaysia prior to his arrival in Australia.

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

    BACKGROUND

25. The applicant was invited to appear before the Tribunal (as initially constituted) to give evidence and present arguments at a hearing on 25 May 2018 (the first fearing).  Following reallocation of the application for review to the Tribunal as presently constituted, the applicant was once again invited to appear before the Tribunal to give evidence and present arguments at a hearing on 17 March 2021 (the declined hearing).

26. The applicant was not represented in this application by a registered migration agent.  

27. The applicant attended the first hearing and the Tribunal was assisted at this hearing by an interpreter, fluent in both the English and Malaysian languages. 

28. The Tribunal’s 2 March 2021 invitation to attend the hearing scheduled for 17 March 2021 advised the applicant as follows:

    We have considered the material before us but we are unable to make a favourable decision on this information alone.

    You are invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case.  We are arranging for you to appear by telephone.

29. Attached to this invitation was a blank ‘Response to hearing invitation’ form which contained the following first question at Part 1(A):

    Will you take part in the hearing scheduled for 17 March 2021?

    (Please indicate ‘Yes’ or ‘No’ for each review applicant.)

    [Applicant’s name redacted]

    ☐       Yes

    ☐No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear

30. By email dated 10 March 2021 at 11:16am, the applicant returned his completed blank ‘Response to hearing invitation’ form including the following responses:

    [Applicant’s name redacted]

    ☐       Yes

    ⊠No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear

    Your telephone number (preferably landline): [Telephone number redacted]

    Your email: [Email address redacted]

31. Accordingly, the Tribunal has proceeded to determine this application without taking further steps to take evidence from the applicant.

    CONSIDERATION OF CLAIMS

32. The following summary of the applicant’s claims for protection is included at Part 4 of the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant when he applied for a review of the delegate’s decision:

    ·     The applicant claims he was involved with a group called ‘Bersih’ that was claiming the general election must be clean and fair. The government was very angry and hated this group. The government decided to catch and imprison members of this group. He came to Australia to run away from Malaysian government;

    ·     He claims he was attacked by acid gas and water;

    ·     He thinks if he returns to Malaysia, he will be imprisoned;

    ·     He did not seek help in the country because the authority supported the government;

    ·     He did not try to relocate elsewhere in Malaysia because it is the ‘authority’ and they are everywhere. They had a lot of connection in the country and that should not be a problem for them to find him.

1. At the first hearing with the Tribunal on 25 May 2018, the following exchange took place between the applicant and the Tribunal as previously constituted:

   MEMBER:Do you think there’s any documents you will want the Tribunal to look at?

   INTERPRETER:  I don’t have it on me but I've got something on my phone.

   MEMBER:All right, it’s pretty hard for the Tribunal to deal with electronic information on phones.  Can you download that and email it to the Tribunal?

   INTERPRETER:  Yes.

   MEMBER:Thank you for that.  Now, can you tell me why is it that you’re seeking the protection of Australia?

   INTERPRETER:  Because in Malaysia because of political reasons and because of Bersih.

   MEMBER:When you Bersih what do you mean?

   INTERPRETER:  Bersih is there to defend the people from a cruel government.

   MEMBER:You told me a little while ago that you’re seeking protection in Malaysia because of Bersih.  What did you mean because of Bersih?

   INTERPRETER:  Before this, prior to this the ruling coalition party were just (indistinct).  They wanted to arrest everyone that was involved in Bersih.

   MEMBER:What you’re telling me is important, that’s why I'm taking the time to write it down.  Were you involved in Bersih?

   INTERPRETER:  Yes, I was before.

   MEMBER:How long were you involved for?

   INTERPRETER:  Three years.

2. Following this first hearing, the applicant made no further written submissions to the Tribunal.

   Evidence

3. In support of his claims for protection, the applicant stated to the Tribunal as previously constituted at the first hearing on 25 May 2018 that he had evidence relevant to his claims for protection which was accessible on his personal mobile phone.  The applicant was then advised to forward this material to the Tribunal electronically.  Nothing was subsequently provided by the applicant to the Tribunal.

4. The applicant was also on notice of the adverse credibility findings made against him by the delegate in the first instance in April 2017 referred to above, namely, that the applicant’s claims were insufficiently particularised and that he appeared to have left Malaysia in a lawful and orderly manner prior to arrival in Australia.

5. I note that the applicant’s evidence to the Tribunal as previously constituted was that he had a personal involvement with the Bersih opposition political movement of three years in duration. 

6. I note the most recent DFAT ‘Country Information Report Malaysia’ dated 13 December 2019 states as follows:

   Electoral reform NGO, Bersih, published a report in March 2014 condemning the Election Commission’s lack of independence. The report claimed that Malaysia’s electoral system failed to meet international standards. The report led to backlash against Bersih and its followers. Following the 2018 election, the Government commenced a process of electoral system reform, with a first significant reform being to lower the voting age to 18. Many Bersih members currently hold positions in the new government or its agencies.[21]  …

   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.[22]

   [21]At [2.34].

   [22]At [3.92].

   ANALYSIS

7. The applicant claims to have had a three year involvement in the Bersih movement which had the ultimate effect of transforming the Malaysian political system and resulted in the former Najib government being replaced and criminal corruption charges being brought against many senior government officials, including the former Prime Minister himself.

8. The applicant was on notice from at least April 2017 that his claims for protection lacked sufficient particularity and credibility to warrant the granting of a protection visa.  Before the Tribunal as previously constituted and while under oath, the applicant claimed in May 2018 that he had evidence of his three year involvement in the Bersih movement in Malaysia, prior to his arrival in Australia, that might be relevant to his claims to hold a well-founded fear of persecution in that country. 

9. I note that the applicant failed at the first reasonable opportunity (and then subsequently) to provide any relevant supporting evidence of the sort that one might reasonably be expected to be provided by an applicant with a genuinely subjective fear of persecution in Malaysia, including witness statements, media reports, photographs or emails. 

10. Also, when advised by the Tribunal that a favourable decision could not be made on his application based on information received as at 2 March 2021 and invited to attend a hearing to give further evidence and present arguments, the applicant affirmatively responded that ‘I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear’.  In the event, the applicant did not, in fact, appear before the Tribunal at the scheduled time and date set down for the hearing.

11. It is acknowledged that it is the right of an applicant to choose not to attend a hearing and opt to consent to the matter being decided on the papers without further hearing.  However, the applicant has been clearly placed on notice that the nature of the evidence before the Tribunal was open to an adverse inference as to the credibility of the applicant’s core claims for protection.  The applicant was also given ample opportunity to present relevant evidence and was put on notice that, without further evidence, the application was not capable of favourable resolution.

12. The forgoing considerations and evidence, together with the applicant’s lack of engagement in the review process, leads the Tribunal to draw the conclusion that the applicant does not  hold a genuinely subjective fear of persecution in Malaysia from any person, for the essential and significant reason of his political beliefs or past protesting activities, or for any other reason, now or in the reasonably foreseeable future.[23]  Judicial authority provides that, in such cases, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.[24] 

    [23]Emiantor v MIMA (1998) 98 ALD 635. In that case, the Court concluded that the Tribunal had assumed that the applicants had a subjective fear and therefore did not err. On appeal, the Full Federal Court (Emiantor v MIMA, unreported, Federal Court of Australia, Olney, Sundberg and Marshall JJ, 20 July 1998) found that although there was no express finding, in disbelieving the applicants’ evidence, the Tribunal must have concluded that they did not have a subjective fear.

    [24]See SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]. In Iyer, the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.  The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it needed to go no further in its analysis of the basis of the claim.  On appeal, the Full Federal Court affirmed that once the Tribunal rejects an applicant’s claim that there is a subjective fear, it is not necessary to determine whether the non-existent fear was well-founded: Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMIA (2003) 129 FCR 137 in which Cooper J, at [19], found that the question of objective fear does not even arise if no subjective fear arises on the facts of the case.

13. On this basis, I find that the applicant does not subjectively hold a genuinely well-founded fear of persecution in Malaysia, now or in the reasonably foreseeable future for the essential and significant reason of his political beliefs or past protesting activities, or for any other reason, if the applicant were to be returned to Malaysia now or in the reasonably foreseeable future. 

14. I further find, on the basis of available country information, including that which was surveyed by the delegate in their record of decision, that the applicant’s unremarkable and lawful departure from Malaysia is inconsistent with what relevant country information suggests would be the case if the applicant were genuinely viewed as a political activist by the Malaysian government, as is claimed by the applicant. 

15. In light of these considerations, I have considered each of the integers of the applicant’s claims for protection individually and then cumulatively.  On the basis of these considerations, I find that, taken at its highest, the applicant’s claims and evidence lack credibility, are vague, incomplete and lack an appropriate level of corroboration as discussed above, and do not reach a level that demonstrates the applicant faces either a real chance of serious harm, or a real risk of significant harm, now or for the foreseeable future from any person, for any reason if he were returned to Malaysia.

    COVID-19

16. I acknowledge that the international public health crisis arising from the current COVID-19 pandemic is a factor weighing heavily on decisions for visa applicants in Australia however, I note that this decision is not a decision on return.  That being said, I am though mindful, that this decision has the potential to give rise to such a decision in the reasonably foreseeable future

17. I find that whatever measures may be applicable to the population of Malaysia generally, in response to the present COVID-19 crisis do not, in the absence of additional considerations, constitute an intentional act or omission for the purposes of the refugee or complimentary Findings as to claims considered in this review

    Refugee Criteria

18. The Tribunal's finding on the refugee criterion at s.36(2)(a) of the Act with respect to the applicant, based on the foregoing, is that the Tribunal is not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act due to the absence of a genuinely subjective well-founded fear of persecution in Malaysia from any person, for any reason.

19. Accordingly, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations as outlined at s.36(2)(a) of the Act.  As the Tribunal has found that the applicant is not a refugee as defined by s.5H(1) of the Act, no further assessment is required in that regard. 

    Complimentary Protection Criteria

20. The Tribunal has considered the applicant's eligibility for protection under s.36(2)(aa) of the Act, which applies where a decision-maker is satisfied that an applicant is a non-citizen in respect of whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to the receiving country, there is a real risk that the non-citizen will suffer significant harm. 

21. As discussed above in this decision, the Tribunal finds that the applicant does not subjectively hold a genuinely well-founded fear of persecution if he were to return to Malaysia now, or in the reasonably foreseeable future from any person for any reason.  The Tribunal notes that s.36(2)(aa) of the Act refers to a real risk of the applicant suffering significant harm.  The Tribunal notes that the real risk test imposes the same standard as that adopted in the real chance test for the purposes of assessing a well-founded fear.

22. For the reasons canvassed above, the Tribunal finds, that with respect to the applicant, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia that there is a real risk he will suffer significant harm now, or in the reasonably foreseeable future from any person, for any reason.  Therefore, the applicant is not a person in respect of whom Australia has protection obligations as provided at s.36(2)(aa) of the Act. 

    CONCLUSIONS

23. For the reasons given above, the Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations by virtue of s.36(2)(a) of the Act.

24. Having concluded that the applicant is not a person in respect of whom Australia has protection obligations by virtue of s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion at s.36(2)(aa) of the Act.  The Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations, by virtue of s.36(2)(aa) of the Act

25. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act, and who holds a Protection visa.  Accordingly, the applicant does not satisfy any of the criteria in s.36(2) of the Act.

    DECISION

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

    Dr Colin Huntly
    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.

    …