1709660 (Refugee)

[2017] AATA 2374

1709660 (Refugee) [2017] AATA 2374 (31 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709660

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Nicole Burns

DATE:31 July 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 31 July 2017 at 4:12pm

CATCHWORDS
Refugee – Protection visa – Imputed political opinion – Member of Bersih group – No real chance of persecution

LEGISLATION
Migration Act 1958, ss 5H(1)(a)-(b), 5J(1),5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A),36(2B), 65, 499
Migration Regulations 1994 Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in]April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa [in]October 2016. The delegate refused to grant the visa [in] April 2017.

3. On 31 July 2017 the applicant gave oral evidence to the Tribunal via video [link] .  The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.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

10. According to information on the Departmental file and confirmed at hearing, the applicant is [age] old man from Kelantan, Malaysia.  The applicant presented his initial claims for protection in his visa application as follows,

    Why did you leave that country?

    I leave the country because the government now is seeking and chasing me.  They are looking for me because I’m one of the “Bersih” group member.  This assembly group exists as Malaysia’s electoral system is unfair, which being caused by the government it self.  Malaysian government does not provide space for Malaysian to speak or enforcing right.  As citizens, in addition “bersih” group also denied numbers of laws that are enforced by the government of Malaysia, which make the group to be known as national threat.

    What do you think will happen to you if you return to that country?

    If I go back to Malaysia, I would be arrested by the authorities.  Now the police are looking for anyone who joins the “Bersih” group.  The Malaysian government does not like those who oppose their ideas or change legislation tribunal hat has been set by them.  The government wants people who join this group gatherings, imprison and to pay a fine which is a very high cost.

    
    Did you experience harm in that country?

    Yes.  Riot by protester considered illegal in Malaysia. I being treated as criminal back in Malaysia.

    Did you seek help within the country after the harm?

    No.  Because “Bersih” group being treated as criminal in Malaysia.

    Did you move, or try to move, to another part of the country to seek safety?

    No.  Although in any way, I still cannot run anywhere else in Malaysia as part of this case has been known throughout the country, including the publication in newspapers.  Of course the government is still able to find me, no matter where I was in Malaysia. 

    Do you think you will be harmed or mistreated if you return to that country?

    Yes.  As per mentions, the government will imprison and fine me on the offense.  This scares me, not only very high fines but also had to undergo painful imprisonment. 

    
    Do you think the authorities of that country can and will protect you if you go back?

    No. This is because the authorities themselves who seek the “Bersih” group members.  So under the direction of his own government, the authorities of my country will not tolerate with anyone who join the “Bersih” group. 

    Do you think you would be able to relocate within that country?

    No. This is because if I was still in Malaysia, I had to serve a sentence that has been set by the government.  Not only I lose to pay a very high fines, but also I will have a bad record after I finished serving the prison sentence in the future.  To your knowledge, if in Malaysia, a former prisoner will have difficulties to live like normal person. 

    [errors in original]

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

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

13. At the Tribunal hearing the applicant said he left Malaysia in August 2016 because the police were looking for him to arrest him because of his participation in a rally [in]August 2015 calling for the resignation of the Prime Minister called Bersih 4.0.  He said Bersih is a political movement concerned about the current economic situation in Malaysia. He became involved when he was an undergraduate by participating in the Bersih 4.0 rally because he was angry about government corruption and that there are thousands of graduates in Malaysia who are unable to find jobs. 

14. At the Bersih 4.0 rally – held [in] Kuala Lumpur – the applicant said he put up banners and chanted slogans calling for the resignation of the prime minister, along with others.  However members of the ‘red shirt’ movement came to the rally and started a big fight.  The applicant said he damaged some public property as part of the protest but was not involved in the fight.  He was injured following items (he said like bricks) being thrown at him.  Soon after the police arrived and he ran off.  After the rally had ended and the applicant had returned to his house in Kelantan he said members of the ‘red shirt’ movement visited, blaming him because some of their members were injured at the rally.  He told them he only chanted and destroyed property, but was not involved in the fighting.  They then went to the police station and gave them his name and address.  Thereafter the police visited the applicant seven times over the next three months, in an attempt to arrest him for his involvement in the Bersih rally.  However the applicant said he was either not at home or ran away when they came.  For these reasons he decided to leave Malaysia.  After he left his mother told him the police visited her house twice looking for the applicant, prompting her and his [sibling]to move to [another country].

15. The applicant said he is afraid if he returns to Malaysia the authorities will arrest him because of his involvement in the Bersih 4.0 rally. He has seen on the internet that the Malaysian government are getting stricter in their approach to those they believed were involved.  He is also concerned of being harmed by ‘red shirt’ movement members who know who he is and might take matters into their own hands.     

16. As discussed with the applicant at hearing, the Tribunal has a number of concerns with his claims that he was involved with Bersih and experienced problems from the authorities and ‘red shirt’ members as a result in Malaysia for the following reasons.

    a.The applicant raised a new claim at the Tribunal hearing that the police visited his home in Malaysia seven times after his participation in the Bersih 4.0 rally on [date] August 2015 in an attempt to arrest him which was not mentioned at all in his visa application.  The Tribunal is not persuaded by the applicant’s explanation at hearing that he wanted to keep his application brief and simple given being wanted for arrest by the police forms a core part of his protection claims.

    b.Furthermore, the fact that the applicant departed Malaysia on his own passport issued in his own name with no issues indicates to the Tribunal that he did not have an outstanding arrest warrant in relation to his involvement with Bersih or for any other reason. 

    c.In his oral evidence to the Tribunal the applicant displayed limited knowledge of Bersih and what knowledge he did display was vague and general.  For example, he said the aim of Bersih 4.0 was to call for the resignation of the prime minister, which is accurate.  However he did not know when Bersih was founded, or when the earlier rallies took place or what their objectives were, which casts doubts as to his motivation to join the movement in the first place.  At hearing he said he merely joined the [date]August 2015 rally. 

    d.The applicant’s claims about their being a “big fight” at the Bersih 4.0 rally between ‘red shirt’ movement members and Bersih supporters is not supported by country information which indicates that the protest was peaceful and no violence was reported.[1]  When this information from DFAT was pointed out at hearing, the applicant said he promises that there was a fight and that social media may have taken it from another angle. 

    [1] DFAT Country Information Report Malaysia, 19 July 2016 at 3.62

17. Given these concerns the Tribunal does not accept the applicant’s claims to have joined Bersih or to have participated in the Bersih 4.0 rally on [date] August 2015.  It follows that the Tribunal does not accept red shirt movement members visited his house thereafter, reported him to the police or that the police looked for him on seven occasions because of his involvement in Bersih or issued a warrant for his arrest.  It follows that the Tribunal does not accept that the applicant has been harmed, wanted for arrest, threatened or of any interest to the police, red shirt members or anyone else in relation to his alleged support to Bersih. 

18. The Tribunal notes at hearing the applicant said he has an outstanding student loan (of RM [amount]) to a government owned group called PTPTN.  He said he has been told by a friend that his name has been ‘blacklisted’ by PTPTN because he has faulted on his loan and as soon as he returns he will be asked to pay the loan back.  Although not mentioned in his visa application the Tribunal is willing to accept the applicant has an outstanding student loan as claimed at hearing, noting this is not uncommon.  However on his own evidence he borrowed the loan from a government owned group who will allow him to pay it back in instalments.  His oral evidence about being blacklisted (and fearing being unable to find a job on return as a result) was vague and lacking in detail (for instance he was unable to state how his friend found out he was blacklisted except to say in general terms that he checked a database) and the Tribunal does not accept his claims in this respect.  Given these considerations the Tribunal finds remote the chance the applicant would face serious harm or significant harm from PTPTN or anyone else on the basis of his outstanding student loan on return to Malaysia. 

19. For reasons above, the Tribunal does not accept that the applicant was ever involved in Bersih in the past or any other political groups or activities.  Given this and his limited knowledge of Bersih, it does not accept that if he returns to Malaysia he will engage in any activities associated with this organisation or movement or any other.  The Tribunal does not accept that the applicant faces a real chance of persecution, now or in the reasonably foreseeable future, including being arrested and imprisoned and fined, from the police or anyone else including red shirt members because of his political opinion based on his alleged association with Bersih or with any other movement, political group or party. The Tribunal is not satisfied the applicant has a well-founded fear of persecution as required by s.5J of the Act and therefore finds the applicant is not a refugee within the meaning of s.5H.

20. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from the Malaysian authorities or from anyone else (including red shirt members) for the reasons advanced in relation to his alleged Bersih involvement.  The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

21. There is no suggestion that the applicant satisfies.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

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

    Nicole Burns
    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.

    …