1708569 (Refugee)

1708569 (Refugee) [2017] AATA 2813 (6 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708569
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Rosa Gagliardi
DATE:6 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 November 2017 at 4:01pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Political opinion – Member of Bersih – Claims vague and general – No political profile – Credibility concern
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MZZIA v MIBP [2014] FCCA 717
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

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).
The applicant who claims to be a citizen of Malaysia, applied for the visa [in] January 2017. The delegate refused to grant the visa on the basis that he/she did not accept that the applicant had any political opinion that would lead to a real chance of persecution for one or more of the reasons mentioned in s5J of the Act in the receiving country. The delegate also found that the applicant did not meet s.36(2)(aa).
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s evidence in his application form was vague and general. His claims were:
I left my own country because the government of Malaysia is seeking the group member of Bersih. I’m the one of Bersih member (Group the caution for clean and fair election). Our Minister of Home Affair Ahmad Zahid Hamidi said, ‘Malaysian who are unhappy with this country political system should leave this country (Malaysia)’. This statement was after series of street demonstration led by opposition parties. Many group prissioned (sic). Media hidden this sensitive issue. I decide to seek refuge and safely life matter. Thank you to Australian government.
Asked what the applicant thought would happen to him if he returned to his home country the applicant wrote that the police would catch him and put him in gaol so his life was in danger and that “For long term it will effect me and my family. Due to this political issue, I will be questioned and mostly all of the Bersih will be detained because of this sensitive issue (politic)”.
The applicant further claimed in his application that the authorities could not protect him because the Bersih were opposed to the government. He stated that he could not relocate within Malaysia because it is a small country and his only option was to move as the Bersih members were all over Malaysia trying to migrate and seek protection.
Given the paucity of detail provided by the applicant in his application, the Tribunal at hearing gave him the opportunity to explain why he had been motivated to join the Bersih movement and what the movement hopes to achieve. The applicant could only recite very general statements about members of Bersih wanting a clean government and other general statements consistent with him having read cursorily about the movement. Consequently, the applicant’s evidence at hearing persuaded the Tribunal that the applicant was ever a member of Bersih or that he attended Bersih 4.0.
Furthermore, the Tribunal found the applicant’s account of how and when he decided to become a member of the movement vague, unconvincing and confusing.
The applicant’s claims that he joined the Bersih movement because he was a Malaysian national and he wanted to ask to push to refresh the government so that it would be free from corruption, not particularly well thought out. His claims that he joined the movement on 28/29 August 2015 on the day or before the Bersih 4.0 rally took place adds to the general implausibility of his account given the little information provided about how he came to want to be a part of the movement.
The Tribunal encouraged the applicant to discuss who he might have gone to see to join the movement and who in particular he had spoken on that day he decided to join. The applicant stated that first he checked on the social [web]. The Tribunal attempted to gauge further details from the applicant, for example, whether he had checked the Bersih webpage. The applicant stated that he had. Asked if he had connected to the page, he gave a general response stating he was looking at [social media] and following friends, without specifying who in particular. Asked to provide the details of the persons he was following, he stated, “[Mr A]” but could not provide details to the Tribunal about what [Mr A’s] [social media] page had stated that day. Nor could he provide [Mr A’s] surname. The Tribunal would have expected that the applicant would have been able to provide the surname of a person who had led him onto a path which might have entailed consequences for the applicant by following an opposition movement in Malaysia.
Without significant prompting the applicant was unable to give a free flowing narrative about what had occurred after he saw the “[social media] page” that drove him to join the movement. He stated that after he saw the [social media] page they went to the protest. The Tribunal had to prompt the applicant about where the rally was being attended, how he got to the rally and with whom, the applicant finally stating that he attended Bersih 4.0 in Kuala Lumpur with [Mr A] and that they rode motorbikes over 200 kilometres to attend the protest with stops on the way.
The strength of the Bersih movement is that is relies on numbers for strength. The Tribunal rejects that had the applicant had a genuine interest in the movement he would only have (given social media was involved) interacted with other person, [Mr A] about his views and the need to bring about change in the government. The Tribunal would have expected that the applicant would have been in contact with a good range of young people who were interested in the movement, had he indeed ever been interested in joining and had joined. The Tribunal does not accept that persons involved in such a movement join in a vacuum (discounting [Mr A] involvement).
This is particularly so as the Tribunal asked the applicant whether he was able to provide [social media] evidence that he had communicated with [Mr A] or others in the Bersih movement and the applicant responded that he did not because he just followed the web and then went to the rally. The applicant’s details about when he actually joined the movement were quite sketchy and appeared to coalesce with the day he attended the Bersih 4.0 rally which would indicate that the applicant had not given the level of thought to joining such an opposition group that one would expect. It is plausible that at that age a [person] might be motivated by a general opposition to institutions and rebelliousness, notions of freedom, a need for adventure, or a need to belong to a group. The applicant was unable to articulate any such views. This limited insight into his own reasons for joining the movement leads the Tribunal to find that the applicant had no reasons for joining Bersih and that he never joined the movement or attended a rally.
The applicant’s inability to be able to provide a spontaneous and flowing narrative about how he had made a decision to join the movement based on any clear reasoning leading up to the Bersih 4.0 rally leads the Tribunal to find that the applicant was never interested in the Bersih movement, that he had never met a person called [Mr A] and that he never attended the Bersih 4.0 rally, leading the Tribunal to have serious concerns about the applicant’s credibility overall.
The Tribunal for example asked the applicant whether he had discussed the matter of joining the Bersih movement with his parents. When he stated that he had not discussed it with his family he was not able to provide a credible explanation for why he had not done so. For example, the Tribunal would have expected that he might have been able to say that his parents’ might have had concerns about him doing so or were conservative and supportive of the government. But the applicant could not provide any such realistic explanation.
The Tribunal would not expect the applicant to have an encyclopaedic knowledge of the Bersih movement’s origins. [It] is claimed he was only [age] when he attended the Bersih 4.0 rally. Nonetheless, the applicant’s very limited knowledge of even basic matters related to the Bersih 4.0 movement reinforces the Tribunal’s findings that the applicant was never a member and never participated in any Bersih rallies.
The Tribunal pressed the applicant to provide details about what the Bersih 4.0 was all about and to discuss the demands being made by the movement. The applicant remarked that it was to change the way “they” govern. Asked how, he responded, “To change the election system”. Asked in what way, the applicant stated that it was to decrease prices to make it easier because salaries were low and prices high. Asked precisely what sparked the rally, the applicant was unable to clearly say. He stated that the Bersih 4.0 rally and other rallies happened because the government took money from other countries then made the people of Malaysia to pay it back.
DFAT’S Country Information Report, Malaysia, 19 July 2016 provides material on how protests in Malaysia are viewed by the authorities generally, as well as Bersih in particular:
Political Rallies
3.60 The constitution states that all citizens have ‘the right to assemble peaceably and without arms’, however, in practice the government closely administers political assemblies and rallies under the Peaceful Assembly Act (PAA) and the Criminal Code. Permits can be difficult to obtain and can be restrictive in their application. The PAA requires organisers to submit notice of a rally to authorities ten days in advance.
3.61 Individuals have been arrested for organising or engaging in rallies in contradiction with the law and the Royal Malaysian Police have on occasion used excessive force to control crowds. Bersih, a coalition of 62 NGOs, organised a series of rallies calling for improved government transparency free and fair elections in 2007 (Bersih 1), 2011 (Bersih 2), 2012 (Bersih 3) and 2015 (Bersih 4). The rallies attracted thousands of protesters and were supported by opposition parties.
3.62 The Bersih 4 rallies on 29 to 30 August 2015 saw approximately 100,000 people, mostly opposition parties and their supporters, civil society activists and Chinese Malaysians, take to the streets in Kuala Lumpur to call for the resignation of Prime Minister Najib in light of 1MDB corruption claims. The protest was peaceful and no violence was reported, despite the government declaring the protest illegal and banning the yellow t-shirts with ‘Bersih’ print that were worn by the protestors. Smaller rallies were also held in Melacca, Penang, Kuching, Kota Kinabalu with a small number of arrests. This was an improvement on the July 2011 Bersih 2 protest where the police used tear gas and water cannons to break up the protest and made approximately 1,500 arrests.
3.63 In response to Bersih 4. UMNO-linked NGOs, known as the ‘red shirts’, held a government approved rally in Kuala Lumpur on 16 September 2015. The protest messages were pro-Najib, pro-Malay and slogans and banners were ethnically charged. There were a few arrests and police used water cannons to disperse the crowd when it attempted to enter the Chinatown district.
3.64 In May 2013, the opposition PKR organised nationwide demonstrations known as the ‘Black 505’ rallies, disputing the results of the May 2013 general elections. The rallies attracted thousands of people and took place with little interference from authorities. However, police subsequently arrested and charged a number of alleged organisers under the PAA for failing to provide the required ten days’ notice for public assemblies. Reports on the number of organisers arrested range from between six to forty individuals.
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.[1]
[1] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report, Malaysia, 19 July 2016, accessed on 6 November 2017.
The following article which appeared The Straits Times on 27 August 2015, gives an simplified outline of the Bersih movement:
WHAT IS BERSIH?
Bersih, which means "clean" in Malay, refers to the Coalition of Free and Fair Elections. It is a civil society movement consisting of 84 non-government organisations calling for a thorough reform of the electoral process in Malaysia. It is led by Maria Chin Abdullah from the Women's Development Collective (WDC). Its previous chief was former Bar Council president Datuk S. Ambiga.
Bersih was first launched in November 2006 as a political party-driven movement with members consisting of opposition political leaders and representatives from the civil society. In April 2010, the movement was re-named Bersih 2.0 as a fully non-partisan movement free from political influences.
WHAT ARE ITS DEMANDS?
Bersih has eight demands. These include the updating of the electoral roll to remove "phantom voters" - deceased persons, multiple persons registered under a single address or non-existent addresses, and reform of postal ballot to allow voting not only for Malaysian citizens living abroad, but also those within the country who cannot vote in their constituency on polling day.
The group also demands the use of indelible ink to prevent voter fraud and a minimum 21 days for campaigning to allow voters more time to gather information and deliberate on their choices.
WHAT HAPPENED IN PAST RALLIES
Nov 10, 2007:
The first rally by Bersih at Dataran Merdeka in Kuala Lumpur was sparked by allegations of corruption and discrepancies in the Malaysian election system that favoured the ruling Barisan Nasional (BN) coalition. Supporters were urged to wear yellow T-shirts as a symbol of protest. Organisers estimated that between 30,000 and 40,000 people from various races and all walks of life took part in the rally.
The protest was credited for the shift in political landscape in Malaysia's 2008 general election, when the BN failed to obtain a two-thirds majority for the first time since 1969.
July 9, 2011:
The second rally, known as the Walk for Democracy, was organised to protest alleged vote rigging and other electoral abuses in the Sarawak state election in April 2011. An estimated 50,000 people took part in the rally. Malaysians living in 32 cities overseas also rallied in solidarity with the Kuala Lumpur protesters.
Police fired tear gas and used water cannons with chemical-laced water at the demonstrators to stop the march. More than 1,000 people were reportedly arrested.
April 28, 2012:
In early April 2012, the Public Select Committee released a report of its findings on electoral reform and it was passed in the House of Representatives with no debate between the opposition and ruling parties. An opposition minority report was not included in the final report and none of Bersih's demands were met. This led to Bersih calling for a third rally on April 28 that year.
The protest was peaceful as the participants marched from various locations towards Dataran Merdeka. But scuffles broke out when some protesters broke through a police barricade, with police riot units responding with chemical-laced water cannons and tear gas. Hundreds of protesters were arrested.
Opposition leader Anwar Ibrahim and five others were charged with participating in a street protest but a Sessions Court later ordered a discharge not amounting to an acquittal.
WHAT IS BERSIH 4.0?
Bersih 4.0 is the fourth rally planned for three cities on Aug 29-30 to push for Prime Minister Najib Razak's resignation as well as institutional reforms to prevent prime ministerial corruption. The rally comes amid allegations in the Wall Street Journal that US$700 million (S$981 million) in state funds was deposited into Mr Najib's personal bank accounts and alleged mismanagement of debt-ridden state investor 1Malaysia Development Berhad (1MDB).
Bersih says recent events in Malaysia, including the removal of Abdul Gani Patail as Attorney-General and the removal of ministers who had spoken out on the 1MDB issue, have triggered the call for the rally.[2]
[2] The Straits Times, What you need to know about Malaysia’s Bersih movement, 27 August 2015, accessed on 6 November 2017.

The applicant was also unaware as to who the red shirts were. Given that the ‘red shirts’, were the participants of a government approved rally in Kuala Lumpur organised specifically in response to Bersih 4.0, the Tribunal would have expected the applicant to be aware of such an important detail. A limited knowledge of such basic matters also leads the Tribunal to reject any participation by the applicant in the movement.
The applicant’s weak claims continued when the Tribunal asked him to explain what had happened to him at the Bersih 4.0 rally. The applicant stated that they were walking slowly and carrying a banner and marching. There were loud noises and “the chief” made a speech. Asked who the chief was, the applicant stated he was unsure as to who that might have been. Asked who the leader of the movement was in 2015, the applicant was unable to say.
The applicant continued that there had been a little scuffle along the way otherwise it was peaceful. He stated that he also saw people being caught by police as the police were seeking them. Asked where precisely police were seeking people, the applicant was unable to say, except that it was “At that place where many people were” and the police were in disguise. He stated that no one from the police had approached him.
The Tribunal asked the applicant to explain how the police would know that he was at the rally and his identity. The applicant stated that on “that day” he found people took photos and he saw many cameras. The Tribunal asked whether anything had happened to Mr A] and the applicant stated that nothing had happened to his friend but that many other people had been caught by the police.
The Tribunal considers that it is significant that the applicant could not say where precisely in Kuala Lumpur the rally was held, leading the Tribunal to find that the applicant was never actually at Bersih 4.0.
The fact that the applicant at hearing stated that he was no longer following the Bersih movement in Australia is also consistent with someone who was never interested in the movement and its goals.
The Tribunal also highlighted at hearing that the Bersih rally had occurred on
28/29 August 2017, yet he had told the Tribunal that he had arrived in Australia [in] October 2016, meaning that he waited over a year to leave the country. The Tribunal queried why, if the police were searching for him and he feared the police and persecution, he had waited over a year to flee the country. The applicant stated that he used that time to collect money. The Tribunal does not find the applicant’s explanation plausible as the Tribunal finds that had the applicant genuinely held a fear of being caught by the police he would have left Malaysia earlier than he did. The fact that he appears to have had no difficulty leaving Malaysia on his passport also leads the Tribunal not to be satisfied that the police are looking for the applicant or intend to detain him.
Having considered the applicant’s claims about his involvement in the Bersih movement and his attendance at the Bersih 4.0 rally, the Tribunal rejects the claims made by the applicant at the time of application and at hearing in their totality. It follows that the Tribunal is not satisfied that there is a real chance that on return to Malaysia, the applicant will be persecuted for his actual or imputed political opinion, in opposition to the government of Malaysia or for any other of the reasons in the refugee definition, now or in the reasonably foreseeable future.
The Tribunal has also had regard to the applicant’s claims at hearing that he was afraid because the prices of good were high and salaries were low in Malaysia and his imputed claims to have a real chance of serious harm arising from his economic destitution for the reasons mentioned in s.5J(1)(a), if he were to return to Malaysia in the foreseeable future, mainly that it is difficult to subsist.
The applicant at hearing stated that his father had a small farm or land holding in Malaysia and that while the applicant studied he had worked part-time in a [workplace]. His [sibling] was an [occupation] and the farm was not particularly profitable but it was also not unprofitable.
The Tribunal acknowledges that the applicant’s experience in the workforce overseas is limited but the applicant has had the initiative to travel to Australia where the applicant stated that it was his intention to find work.
During the hearing the Tribunal posited that the economy in the applicant’s country of nationality generally enjoyed economic growth, and specifically in relation to Perak, the area appeared to hold significant prospects for the applicant in terms of employment. In particular, the Tribunal summarised the following information to the applicant about plans to develop Perak’s economy as reported in the New Straits Times on 28 July 2017:
THE Northern Corridor Implementation Authority (NCIA) unveiled specific development plans for Perak under the Northern Corridor Economic Region (NCER) Development Blueprint 2016-2025 (Blueprint 2.0) yesterday.
…..
Blueprint 2.0, with its theme of ‘Growth with Social Equity', aspires to spur the inclusive and sustainable economic development in Perak by establishing new industries, attracting investment in human resources development as well as creating a vibrant environment for work and entrepreneurial activities.
It is expected to positively impact the people of Perak by improving job opportunities, income, skills and lifestyle.
NCIA chief executive Datuk Redza Rafiq said the players in the economic regions needed to adapt to the changes in the current world. At the same time, the aspects of community welfare, social equality, as well as nature conservation need to be included in all development programmes.
“The rapid global changes require all regions to move promptly in a creative and firm manner, to cater to the current economic demand. This includes expanding the network with stakeholders, including the community, state governments, local authorities, industries and non-governmental organisations,” he said.
Redza said in line with the theme of ‘Growth with Social Equity', the developments need to take into consideration the aspects of universal access to education and health, social inclusivity, as well as high-income economic activities.
“It does not stop there. As a body responsible in planning and executing policies, we need to get closer to the community. Their inputs are crucial in the process of drafting the action plans” he said.
He said it was also in line with the approach by the government throughout the 11th Malaysia Plan which is to reaffirm and strengthen the economy of the people.
Blueprint 2.0 is in alignment with National Plans i.e. RMK-11, Economic Transformation Programme, Government Transformation Programme and New Economic Model. It covers more than 80 strategic projects that will spearhead the economic development across four states in the north of Peninsular Malaysia which are Kedah, Perlis, Perak and Penang by 2030.
It aims to outline the future directions and strategies to expand growth and reduce regional imbalances.
…..
These initiatives will expand the economic benefits to targeted areas in Perak by driving the growth of Gross Domestic Product as well as increasing economic sustainability through physical and socioeconomic components.
The first growth node, GKC, aims to develop and advance a key economic centre in the north of Perak, while enhancing inclusiveness through equitable distribution of income and wealth.
Another growth node, the Manjung-Aman Jaya Maritime City, will open the economic potential in the districts through eight main clusters which are Manufacturing, Agriculture, Fisheries and Aquaculture, Tourism, Infrastructure, Halal Hub as well as Human Resources and Maritime.
One of the strategic thrusts in Blueprint 2.0 is to develop NCER‘s economy and to focus on liveability to support the local community as well as to attract and retain the workforce in the region.[3]
[3] New Straits Times, Blueprint 2.0 to develop Perak’s economy, 28 July 2017, accessed on 6 November 2017.
Noting that the Tribunal has made an earlier finding that it does not accept the applicant will face a real chance of serious harm based on the applicant’s political opinion, actual or imputed, the Tribunal is not satisfied that the applicant will suffer any economic hardship for reasons mentioned in s.5J(1)(a) based on the applicant’s own written and oral testimony. This is because the Tribunal has found that the applicant has never held a political profile in Malaysia.
The Tribunal also notes that the applicant is living in a household in Malaysia in which several males are working and that the applicant has been able to find work in a [workplace] part-time whilst studying. The applicant is a fit young male and there is little before the Tribunal that would indicate the applicant would not be able to find any work anywhere in Malaysia. The Tribunal is therefore not satisfied that the applicant will suffer serious harm for any of the reasons mentioned in s.5(J)(5).
Complementary protection
The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa).
In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'.
The Tribunal has made earlier findings that the applicant does not face a real risk of serious harm arising from the applicant’s political claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, it follows that the Tribunal does not accept that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of significant harm, including the torture, being subjected to cruel or inhuman treatment or punishment or being subjected to degrading, for reasons based on the applicant’s political opinion or membership or that of his father or a combination of these claims.
The Tribunal has considered if there are any reasons to substantial reasons to believe, the applicant will face a real risk of significant harm arising from the applicant’s economic circumstances as contemplated by s.36(2)(aa). Significant harm is different from the concept of serious harm as required by 91R(1)(b) in the context of s.36(2)(a).[4]
[4] In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller, 16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g. a risk of being killed is sufficient to fulfil both: at [34].
The Tribunal has already made a finding that the applicant has the capacity and inclination to find work anywhere in Malaysia and does not face a real chance of serious harm based on these specific claims. The Tribunal does not accept the applicant will not be able to access paid employment anywhere in Malaysia, given he has some education and experience in a work place, as a necessary and foreseeable consequence of being removed from Australia or that any challenges amount to significant harm as required by s36(2A).
Furthermore the Tribunal finds there is no intention on the part of the governing of the Malaysian economy in combination with market forces, to inflict significant harm, including subjecting the applicant to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to the applicant’s country of reference. The Tribunal, accordingly, does not have substantial reasons for believing the applicant faces a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, because he will be arbitrarily deprived of his life; he will be subjected to torture or cruel or inhuman treatment or punishment or degrading treatment or punishment or for any other reason set out in 36(2A).
Having considered the applicant’s claims, both individually and cumulatively, and 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).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi

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.
…

[2017] AATA 2813

6 November 2017

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