1714302 (Refugee)

1714302 (Refugee) [2017] AATA 2959 (15 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714302
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Luke Hardy
DATE:15 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 November 2017 at 12:23pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Religion – Hindu – Ethnicity – Tamil – Vandalism of Hindu temple – Fear of violence – Harassment – Witness credibility – Internal relocation
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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] June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a Hindu Tamil citizen of Malaysia born in [year]. He arrived in Australia [in] January 2017 on a [temporary] visa. He lodged a protection visa application [in] March 2017. The delegate refused to grant the visa [in] June 2017. The applicant subsequently applied for review of that decision.
The applicant attended a hearing before the Tribunal on 17 October 2017. The hearing was facilitated by an interpreter in the Tamil-English medium.
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
The issues
The main issue in this case is whether the applicant is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
The applicant claims to come from Melaka on the west side of peninsular Malaysia. I note that Melaka has a population of around 800,000, of whom around 500,000 are ethnic Malay Muslims and some 50,000 are ethnic Indians, of whom most are likely Hindu.[1]
[1]
In a statement submitted with his protection visa application form, the applicant claimed he used to be a member of the committee governing a local temple in [District 1] named the [name] temple.[2] I note that Melaka has around [number] significant Hindu temples, [some] of them in [District 1].[3] The [temple’s] address appears to be the location of a “devotees society”[in] what appears to be a small venue. It [appears] to be still operating.[4]
[2] [Source deleted.]
[3] [Source deleted.]
[4] [Source deleted.]
The applicant claimed in his protection visa application that local Muslims hated him because he professed the Hindu religion. He claimed they threatened to kill him. He claimed he was able to continue doing what he was doing and not bother about the threats until, in October 2016, two or three months before he came to Australia, local Muslims vandalised the temple and also his car, which was parked nearby. He claimed the Muslims also threatened him while he was praying and damaged [other vehicles] parked nearby.
The applicant claimed he reported the matter to the local police. He claimed the police filed his report but took no action. He referred the Department to a copy of the police report, attached to his protection visa application. He claimed he took a short trip to [Country 1] in January 2017, before coming to Australia. He claimed he sought to follow-up his police report but was told by the police to desists from complaining about Muslims. He claimed the police themselves threatened him, saying they would file a false case against him and jail him. He claimed he fled Malaysia fearing the police and the local Muslims.
The applicant claimed fear of being tortured and killed by the police and/or the local Muslim gangs. He said Muslims are everywhere in Malaysia, implying that relocation is useless.
Overall, however, the applicant did not suggest that the gang continued to harass him after the vandalising of the temple. He did say, however, that he feared future harm from the local Muslims, and that he also feared the police persecuting him in the event of his pressing them to take action against the gang for its criminal destruction of property in and near the temple.
The applicant submitted photocopies of [a large number of] ethnic Indian Malaysians who he later identified as “fellow members” of the temple committee. The context in which these copies were collated is not clear and none of the documents are translated.
The applicant submitted some untranslated documents in which he is listed as a member of the devotees’ society for [the] temple. The applicant’s name appears next to the Malay word for “[senior official]”.[5] There are only [a small number of] (not [a large number of]) other names on the list.
[5] [Source deleted.]
The applicant also submitted an internet-generated document in Malay: purportedly a “certified copy” (salinan yang disarkhan) of a police report purportedly dated [in] October 2016, with not only the copy certification signed in ink but also the applicant’s signature which, logically, should appear photocopied on this “copy” of the original document. The document is not translated.
The applicant submitted colour facsimiles of certificates obtained in the course of his religious education and involvement with [the] temple.
Independent evidence
The DFAT Country Information Report: Malaysia, 19 July 2017, reports as follows:
3.11 Indian Malaysians constitute the third largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against Indian Malaysians.
3.12 Indian Malaysians predominantly live in major urban centres, including Kuala Lumpur, Penang, Negeri Sembilan, Selangor and Perak on Peninsular Malaysia. Most Indian Malaysians form part of the working classes but according to 2010 official figures they also represent a high proportion of professionals (15.5 per cent) including 38 per cent of the entire medical workforce. Access to primary and secondary education is high, with 524 state-based Tamil-language schools across Malaysia. However, access to state-based tertiary education remains low with approximately six per cent of student places at public universities offered to Indian applicants. The predominant use of the Malay language can be a major barrier to Indian employment in the civil service. However, in 2015 an Indian Malaysian was appointed as Chief of Police in Kuala Lumpur, the first non-Malay to hold this position.
3.13 While some belong to the upper-middle class, many Indian Malaysians remain poor, in contrast to increased prosperity in the Malay and Chinese communities. Gangs comprised of Indians make up the majority of street-level criminal gangs and Indian Malaysians comprise a disproportionately high number of incarcerated persons, with some figures suggesting they represent up to 48 per cent of the prison population.
3.14 Indian Malaysians freely participate in political life. The Malaysian Indian Congress is part of the ruling BN coalition but does not necessarily receive support from the bulk of the Malaysian Indian community, with many voting for the opposition in the 2013 elections. There are several members of parliament of ethnic Indian origin and three serving ministers within the current government as well as the current President of the Senate, appointed in April 2016.
3.15 DFAT assesses that while Indian Malaysians generally have a lower socio-economic position than bumiputera or Chinese Malaysians, they generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service...
3.50 Federal and state governments have supported the building of Hindu or Buddhist places of worship throughout Malaysia. Prime Minister Najib allocated RM 2 million (approximately AUD 660,533) for the building of a new Hindu complex in Selangor on 7 February 2013. A new Buddhist complex was also completed in 2013 in Selangor. However, following opposition to its initial central location, the complex was built in a more remote district, with no easy public transport routes. There are a number of Hindu and Buddhist advocacy organisations in Malaysia, including the Hindu Rights Action Force, an umbrella organisation of NGOs focused on addressing Malaysian Indian concerns.
3.51 DFAT assesses that Buddhists and Hindus are normally able to practise their religion without interference and do not face official or societal discrimination on a day-to-day basis.
Evidence to the delegate
For the purposes of this review, the applicant submitted a copy of the delegate’s decision on his protection visa application. The decision record contains a summary of the applicant’s evidence as well as reference to issues of concern raised and dealt with by the delegate, along with citations of independent country information, such as the above-quoted DFAT report, on which the delegate relied in her primary decision.
The applicant told the delegate there are [a small number of] members of the temple committee.
The applicant told the delegate that his family had not been harassed since his departure from Malaysia and that his family supports his wife and children while he is in Australia. He said his family had not been harmed as he had moved them to another house a week before he left for Australia. He said his family had moved to Selangor and was not facing harm there.
The delegate put the applicant on notice about the lack of any photographic evidence of the incident he described in his claims. He claimed to the delegate that when he reported the incident to the media he was told he was lying. He claimed that there was thus no reporting of the episode.
The applicant claimed to the delegate that he could not relocate because he did not like Malaysia any more and had no support in other parts of Malaysia. He did not suggest them or since that he has relied on support here in Australia, where he does not speak English. He indicated that it would be difficult for him tor relocate within Malaysia due to economic issues. He said he could not relocate and worship elsewhere in Malaysia as he preferred to do so where he grew up and is accustomed. I note, though, that his purported, overriding preference, as evidenced by his protection visa application, is to live and worship even farther from his home town.
Evidence to the Tribunal
In evidence at the Tribunal hearing, the applicant told me he had been [a senior official] of the temple committee for over three years before coming to Australia. This evidence differed from what he had told the delegate when he said he had been [a senior official] since 2015.
The applicant also provided to me a different version as to the motivation for the vandalising of the temple and [damaging] of vehicles nearby: whereas he had previously claimed in his protection visa application the harm was directed against him personally because of his profession of Hindu beliefs, he now claimed the local Muslims were unhappy about the temple being close, and to some extent hampering physical access, to a local mosque. He said the proximity to the mosque was the main reason why the temple had been vandalised.
The applicant also said that the damage occurred during a Hindu festival [in] October 2016 that local Muslims found disruptive to local peace and quiet. Further, the applicant said that nothing is happening there now and that the temple has been destroyed. I asked him if he could provide independent evidence of its destruction and he said he had left “everything” behind in Malaysia. He then said he had brought with him evidence of the identities of the [temple] committee members. It struck me as odd that he had been able to produce this evidence, which would have involved [a large number of] separate consultations and exercises in photocopying, and not one item of evidence of the destruction of a Hindu temple during a festival.
According to the applicant’s evidence at the Tribunal hearing, there was not a particularised intention to harm him personally until he tried to get the police to investigate the temple incident; in his evidence to the Department, the particularisation of him and his behaviour had been the impetus for mistreatment over time that then culminated in the temple attack.
Whereas in his protection visa application, the applicant did not cite any instances of ongoing harassment from the local Muslim “gang” after the temple incident, he told me that he feared they are still looking for him.
I asked the applicant to describe the circumstances of the [people] whose IDs were copied to his DIBP file. He said they were all members of the temple committee and all still living in Melaka attending other temples. I asked him why he could not do the same and he said it was because he used to do everything for the temple making all the arrangements. I asked him of the temple did not have its own priests and acolytes and he said it did not, and relied instead on visiting priests. By this and other evidence, he indicated that it was a small temple servicing a small, local community.
The applicant acknowledged that there are many Hindu temples in Melaka, and suggested that his colleagues from the committee are now attending those other temples. He said that no-one took over his [position at] the local temple because they were afraid to take responsibility for it. He then seemed to contradict himself when he explained that although the [colleagues] are all attending other temples, they still function together as the committee for [the] temple. By this evidence, it would seem that someone would have to be at least the acting [senior official].
The applicant confirmed that the only physical attack perpetrated on the temple and its followers took place [in] October 2016. Again I asked about what evidence there might be of the episode and the applicant said he used to have photographs but left them behind in Malaysia. Again it struck me as incongruous that he brought incomplete evidence as to the composition of the temple’s day-to-day committee but not one photograph to help provide evidence of the more central issue in the case: the damaging of the temple and of worshippers’ property, i.e., evidence of the harm that is the alleged basis of the present protection visa application.
I asked the applicant about Tamil media in Melaka. He said there is one Tamil newspaper. I asked him if there had been any media attention given to the damage to the temple and vehicles and he said there had not been because the police had refused to become involved. I put to the applicant that the destruction of the temple seemed capable of being sufficient injustice to motivate Tamil-language media to report the incident and that a failure on the part of the police to investigate the matter would seem like all the more reason for the media to get involved and demand answers. In reply, the applicant said that there simply was no attention given to the incident. When I asked him to explain how there could not have been, he said that no-one reported the incident to the Tamil news agency. I asked him why no-one had reported it and he said that no-one took the incident seriously. I indicated to him that this seemed a confounding answer, because, according to his claims about relations between the “races” in Malaysia, Tamil Hindus would seem likely to take such an incident seriously. In reply, he said everyone was scared. If this were the case, it seemed odd that the applicant took it upon himself unilaterally, and not once but twice, to report the matter to the police.
The applicant also told me he had been a full-time [occupation] for many years. He said he only did his temple work after 8:00am to 5:00pm working hours. I asked the applicant how he came to be appointed [to the senior position] of the temple committee and he said it happened because he was born and grew up in the area where the temple was situated. This explanation struck me as vague, not least because all the other purported members of the committee including many who were more senior to the applicant, purportedly were born and grew up in the same place.
I put to the applicant that as at [July] 2017 there was evidently a recommendation for his local temple on a Facebook page set up in the name of another temple in [District 1].[6] The applicant said he knew nothing about this.
[6] [Source deleted.]

I put to the applicant that when a [vehicle] gets [damaged] it seemed likely it would be the subject of some media attention in Malaysia. In reply, the applicant said that if the damage is caused by Malays no-one treats it as serious.
I put to the applicant that it seemed odd that the committee had not disbanded. In response, the applicant said the committee is “still there”; he said he needed to find out what the committee is doing.
Regarding the claim about the police taking no action, I put to him that according to his evidence they duly logged his report and then provided him with what he described as a copy of the report: this did not seem to be a case that the police were sweeping under the carpet, as it were. The applicant did not give a cogent response to this position.
I asked the applicant about his “holiday” in [Country 1] and he said it was merely a one-day pilgrimage.
I asked the applicant to tell me what the local Muslims wanted to do with the temple and he said they did not want the Hindu community to engage in worship there on Fridays. Here he seemed to describe an issue of local interreligious debate that made it harder to conceive that violence or vandalism on either side would have gone unreported in Malaysian media at any level whatsoever. I put to the applicant that, although the issue in contention seemed, from what he was saying, to be an ongoing one, the alleged attack [in] October 2016 seemed to be out of the blue. He then explained that the issue in contention was the temple being located next to a Muslim house. I asked the applicant if the problem was the Muslim house or, as he had said earlier, the Muslim mosque, as his claims now seemed inconsistent. In response, he said it was [number] kilometres from the temple to the mosque.
I asked the applicant to tell me, in his purported capacity as former [senior official] of the temple’s committee, what institution would normally be engaged to arbitrate in such an interreligious debate, but he was vague and very unimpressive in his reply: he merely said that the authorities ignore religious issues. I put to him that, on independent evidence (DFAT Country Information Report: Malaysia, cited above) this did not appear to be true.
The applicant said the local Muslim gang is still looking for him because he had tried to stop them. I put to him that, according to his evidence, he had been unsuccessful in stopping them: thanks to the police shutting everything down, the local Muslims had won, as it were. The applicant said he is “still going against them.” I asked him if he could not relocate within Malaysia, given what he described as the very local characteristics of the dispute he described. In response he said the reason why he came to Australia was that he was frustrated with the conditions he had been dealing with while he was involved with the temple. He also said there is no general respect for Tamils in Malaysia.
The applicant indicated he would like to have some time to follow up the July 2017 [recommendation] of his local temple. I indicated that I would consider any information before me up till the time of my decision. A month has passed since the hearing and I shall now make a decision in this matter on the material before me.
Findings in relation to s.36(2)(a) of the Act
I accept that the applicant is an ethnic Tamil Hindu citizen of Malaysia. I accept that he was a full time [occupation] in the Melaka area. I accept that he was a member of the committee of a small local Hindu temple [in] [District 1], Melaka. Beyond that I find the applicant’s claims muddled, vague, inconsistent and unsupported.
Whereas I can accept that there may have been an occasion on which local Muslims or a local Muslim gang tried to disrupt worship at the temple due to the perception that it was disturbing the Muslim Sabbath and Friday prayer, it is difficult to accept at face value the applicant’s claims about the temple having been seriously damaged or about his attracting a negative individual profile with the gang or with the police.
The applicant has given inconsistent evidence as to whether enmity with the local Muslims began over his individual practices or over the proximity of the temple to Muslim property. In addition, the applicant gave me inconsistent evidence about whether the local Muslims opposed the temple being too close to a nearby mosque or to a nearby Muslim house. I give some weight to this unresolved inconsistency. I have given some weight to these unresolved inconsistencies.
In addition, I am not impressed with the applicant’s vague and varying explanations as to why the alleged destruction of his temple would have attracted no media interest in Malaysia at all. Having regard to independent information, I do not accept the applicant’s suggestion that there is no institution or arbitrating body in which the local temple committee and local Muslims could argue their purportedly opposed positions. I am not impressed with the applicant’s suggestion that he has photographs of the destruction of the temple somewhere but was somehow unable to bring them with him, or have them sent to him, along with the other material he has submitted in the course of his protection visa application. I find it very odd in the claimed circumstances that the rest of the committee continues to exist and meet in [District 1]: they do not appear to be at all afraid of what the applicant claims has happened to him, whereas it is reasonable to expect that they would be. The applicant’s claims about the destruction of his local temple appear to be at odds with the July 2017 recommendation of the temple in the [internet] page of a neighbouring [District 1] temple. Whereas I might give only little weight to all of the factors discussed in this paragraph on their own, I do give them some cumulative weight.
Weighing the quality of the applicant’s evidence overall, I am not satisfied that he has been truthful about there having been an act of vandalism on property and vehicles that resulted in the closure of his temple. Overall, I do not accept that it occurred.
The applicant claims his documents help to argue that the attack on the mosque did occur. However, the two versions of lists of committee members (the single sheet at f.5 of the DIBP file and the photocopied IDs of various Tamil Malaysian citizens between ff. and 38 of the same) do not say anything significant on their own: they merely suggest the applicant was once part of a committee that still exists, without him, in the district where it has habitually operated. I give these documents little weight, and I have considered this factor cumulatively.
The certificates only attest to his association with the temple, saying nothing of the incident or of his negative profile with the police or with Muslims gangs. I find I am also unable to give these documents much weight on their own, and I have considered this factor cumulatively.
The “certified copy” of the police record is untranslated, but the applicant essentially describes it as an transcription of his verbal claims about an event he claims the police did not even verify. He is thus the source of the substantive information in the purported report. Seemingly oddly, the document is singed by the applicant and the purported certifying officer in biro ink in places where one would reasonably expect to see signatures copied in the same way as the rest of the original (copied) document. That is to say that the applicant and the purported police officer do not appear according to this evidence to have signed an original police report, but only this Internet-generated “copy”. It is not clear to me that this is a copy of a genuine police report. In any event, in view of the applicant’s inconsistent claims about the motivation for the attack, and his confused evidence as to why there was no media reporting of the attack and also as to why he could not present photographs of the damage, I give no weight to the purported police report.
I am not satisfied on the evidence overall that the applicant has relocated his family away from [District 1], let alone for the reasons claimed. In the event, though, that his family has recently moved, say, to Selangor, as claimed, I am not satisfied that it would be unsafe or impracticable for the applicant to relocate there as well.
I have considered the applicant’s claims about general discrimination against Tamils, Indians and Hindus in Malaysia. On the evidence before me I am not satisfied that there is a real chance the applicant would face a real chance of persecution in Malaysia in the reasonably foreseeable future for reasons of any of these factors.
Having considered all of the evidence in this matter in its entirety, I am not satisfied that the applicant faces a real chance of persecution in Malaysia in the reasonably foreseeable future for any of the five reasons cited in s.5J(1)(a) of the Act. His claimed fear of persecution in Malaysia is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
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). A person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. “Cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Essentially, the applicant’s complementary protection claims rely on the same facts as his refugee claims. Those claims generally failed for lack of credibility and for not meeting the “real chance” test. In view of my findings of fact above, the applicant’s refugee claims can no more succeed as complementary protection claims.
Having considered all of the evidence in this matter I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Luke Hardy
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 2959

15 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

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