1714188 (Refugee)

[2019] AATA 6932

1714188 (Refugee) [2019] AATA 6932 (25 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1714188

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Christopher Smolicz

DATE AND TIME OF

ORAL DECISION AND REASONS:         25 October 2019 at 10:48 am (SA time)

DATE OF WRITTEN RECORD:                17 March 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 March 2021 at 1:58pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – political opinion – opposition to the government’s economic management – yellow shirt protests – fear of arrest – economic conditions – change of government in Malaysia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 June 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 25 October 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. [Applicant’s name], what I would like to do is make an oral decision this morning, so I am going to make a decision and give you reasons, so please do not interrupt me when I am speaking.  I am going to speak slowly so the interpreter can interpret accurately what I am saying.

4. This is an application for review of a decision made by a delegate of the minister to refuse to grant you, the applicant, a Protection visa.  The delegate made that decision on 29 June 2017.  You applied for the Protection visa on 13 December 2016.  You submitted an application form and you made the following claims for protection.  In that form it is stated that:

   The applicant left Malaysia because he disapproves of the government’s economic management of the country.  He participated in anti-government yellow shirt protests because the Malaysian economy worsened and because the pressures of living increased.  The applicant declared that he fears that everyone who joined the ‘yellow shirts’ shall be prosecuted.  He does not want to be imprisoned and he came to Australia to be free.  He fears he will be imprisoned if he returns to Malaysia.  He declared he did not believe the authorities will be able to protect him, and that he can not relocate. 

5. The claims were very brief. The delegate found the applicant’s claims lacked detail and supporting evidence and refused the visa.  The applicant took part in a hearing before this tribunal today on 25 October 2019, and the tribunal questioned the applicant about why he left his country and travelled to Australia. 

6. The applicant told the tribunal when he arrived in Australia in May 2016, the political and economic situation was not good in his country.  He said he was too young to get involved in politics in Malaysia.  His family was struggling financially to make money. He was the only male child, and he asked permission from his mother whether he could come to Australia, because his family was in a difficult financial situation.  His mother gave him permission, and the applicant arrived in Australia on a three-month visa in May 2016. 

7. The applicant conceded at the hearing that he came here for economic reasons.  The applicant told the tribunal that he has been working as a farm worker since he arrived in Australia, and he has managed to send some money back to his family.  The tribunal referred the applicant to his Protection visa application and observed that what he wrote in the claim form was different, inconsistent with the evidence that he provided at the hearing.

8. The applicant explained to the tribunal that his English is not good, and he asked a friend to help him fill in the form and translate.  The applicant said it appears that his friend put different information in the form than what he told him.  The tribunal asked the applicant whether he did, in fact, take part in ‘yellow shirt’ university protests in Malaysia.  The applicant said that he was asked to take part, but he refused.  The tribunal asked the applicant whether he was involved in politics in Malaysia.  The applicant said he was not involved in politics.  He has never taken part in any protests.  He has never had any trouble with the authorities or the police.  The applicant also said that he has never been arrested or detained. 

9. The tribunal referred the applicant to country information that confirms that the government in Malaysia has changed since he arrived in Australia, and now there is a new ruling coalition.  The tribunal asked the applicant, given that the government has changed, why he does not want to return to Malaysia.  The tribunal also asked, what does he think would happen to him if he returned to Malaysia? 

10. The applicant said he was not sure because the current government was not stable.  The tribunal has had regard to the applicant’s evidence and finds that he did not at any time claim to fear serious harm, or significant harm, in Malaysia.

11. The tribunal explained to the applicant that it must assess his evidence, his claims, against the criteria in the Migration Act 1958 (the Act).  In particular, the tribunal referred the applicant to section 5J(1)(a) of the Act and that he has to have a well-founded fear of persecution for one of the following five reasons: of race, religion, nationality, membership of a particular social group, or political opinion, and that there has to be a real chance that he would be persecuted for one or more of those reasons. 

12. The Tribunal finds applicant has not claimed to fear harm for any of those reasons, and he does not claim to fear that he will suffer any harm in Malaysia if he returns

13. The applicant said that he is from the majority Islamic religion in Malaysia, and he has some concerns about the current political government’s policies, which may be weakening the Islamic religion in Malaysia.  The tribunal has assessed this applicant’s evidence, the tribunal referred the applicant to country information, and noted that Islam is the majority religion in Malaysia, and that there were laws in place in Malaysia regulating the propagation of non-Islamic religions.  There is the Non-Islamic Religions Control of Propagation Among Muslims Act, that controls and restricts the propagation of other religions. 

14. The tribunal found that the applicant did not articulate this into a claim, it was merely a statement.  He conceded that he does not fear any harm in Malaysia and that he came to Australia for economic reasons. 

15. In the circumstances the tribunal finds that there is not a real chance that the applicant will face serious harm if he returns to Malaysia in the foreseeable future. 

16. The tribunal finds that the applicant is not a refugee and the tribunal is not satisfied that the applicant is a person with respect to whom Australia has protection obligations under section 36(2)(a).  The tribunal has also considered the applicant’s claims under the complementary protection criteria.  For the reasons given above the tribunal is also not satisfied that the applicant meets the alternative criteria in section 36(2)(aa). 

17. There is no suggestion the applicant satisfies section 36(2) on the basis of being a member of the same family unit as a person who was granted a Refugee visa or satisfied the complementary protection criteria.

18. The tribunal again confirms its decision that it affirms the decision not to grant the applicant a Protection visa and that is the conclusion of the tribunal’s reasons. 

    DECISION

19. The Tribunal affirms the decision under review.

    Christopher Smolicz
    Member