1714713 (Refugee)

1714713 (Refugee) [2017] AATA 2678 (3 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714713
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Tania Flood
DATE:3 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 November 2017 at 2:16pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Race – Ethnic Indian – Political opinion – Participant at Bersih rallies – HINDRAF – Fears harm from business competitor – Relocation available – Credibility concerns

LEGISLATION
Migration Act 1958, ss 5(1), 5J-5LA, 36, 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

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, who claims to be a citizen of Malaysia, applied for the visa [in] October 2016. The delegate refused to grant the visa on the basis that the evidence does not support that there is a real chance the applicant will be persecuted in Malaysia for one or more of the reasons mentioned in s.5J(1)(a) of the Act and because in the absence of him establishing his case it appears he would be able to access effective protection from the Malaysian authorities in the event it is required.
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 issue in this case is whether there is a real chance the applicant will suffer serious harm on return to Malaysia for reason of his race, religion, nationality, membership of a particular social group or political opinion, or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Malaysia that there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s written claims
In his application for a Protection visa the applicant provides the following information and claims:
He was born on [date] In Serehban Negeri Sembilan, Negeri Sembilan, Malaysia. He married on [date] but is separated. His wife has custody of their children.
He arrived in Australia [in] July 2016 as the holder of a [temporary] visa.
He is an ethnic Tamil from India.
He became interested in politics and realised that persons of Indian ethnic origin are discriminated against and exploited by the majority Malay community.
He joined the HINDRAF demonstration and was detained, then warned and let off.
Bumiputera physically assaulted him at his trading place in 2007 because they were jealous that his business was doing well. He complained to the police who let them off with a warning.
In early 2016 he joined protests to condemn the corrupt practices of the Prime Minister and he was critical about the government and its current corrupt practices.
Two police repeatedly threatened and intimidated him as he was critical of the ruling party because of its corrupt practices including the recent funds transferred to the personal bank account of the Prime Minister.
The ruling party threatened to file false cases against him with an intention to silence him from expressing his views against the government.
He fears he will be tortured and might be killed by the police or hooligans hired by people in power in the government. The police will not protect him and will act according to the ruling political party directives.
The Government is the one instigating police to file false cases against him, hence he will not be safe anywhere in the country.
Tribunal hearing
The applicant appeared before the Tribunal on 5 October 2017. By way of background he testified that he was born in Negeri Sembilan in Malaysia. His last address in Malaysia was in Klang, Selangor where he lived with his wife and [children]. His wife and children continue living in the house in Klang but sometimes also stay with relatives. Currently, his children are not attending school because they do not feel safe. The applicant stated that he has a [qualification in occupation 1] and he worked for an [international] company for [number of] years. In [year] he took a voluntary redundancy and started his own [business] in 2005. Later he opened a bigger [business] in the same area followed by other ventures in the [same] industry.
The applicant testified that he left Malaysia because he encountered many problems with a Malay trader who was jealous of his success. While running his first business in Negeri Sembilan he was assaulted by the Malay trader who was backed up by other Malays. His wife made a report to the police because the [business] was registered in her name. The applicant claims the police only took the report because his wife was visibly upset and crying. The following day two police inspectors came to the [market] and made an arrest but the perpetrators were bailed out the following day and nothing further happened.
The applicant stated that he then opened a slightly bigger [business] nearby to his former business. He said the same Malay person came to cause problems at the [new business] and interrupted his business. He said he ran the [new business] for two years but due to all the problems he had with the Malay trader it went broke. He said that when he sought help from the police they did nothing because he had no proof. He said he eventually moved and continued trying to do business in other areas. He said he had two businesses in Selangor which were interrupted in the same way. Again he went to the police but they didn’t take a report; just issued a warning. Lastly, he said he moved to Klang, which is a typical Indian town, but he was even disturbed there and his children don’t feel safe there. The applicant stated that it is his belief the police may have been behind the problems he encountered running his businesses because of his political involvement.
As to his political activities the applicant testified that he joined a Hindraf rally in Kuala Lumpur in 2007 although he couldn’t say exactly where the rally took place. He said the rally was called to push for the rights of Hindus in Malaysia. He said that Hindraf stands for Hindu Action Rights. He was not a leader, just a participant at the rally, but the police detained him and took him to the police station where he was bashed but later released. He said that he is not directly involved with Hindraf at present but because the police took down his name when he was detained he will definitely be assaulted again if he returns to Malaysia. The applicant testified that he attended another Hindraf rally in 2016 but he stated he was not arrested on that occasion.
The applicant testified that he also attended a Bersih rally in 2016 to protest against the Prime Ministers involvement in corruption. He said he was arrested again in 2016, held for a few hours and then released. He said the police threatened to kill him. Thereafter he said his family did not feel safe. He said that when his wife was taking the children to school someone crashed into her car. He said that if they went to the police they would simply say it was an accident.
The applicant stated that people, supported by the police, have been going after him for years. He said if he returns to Malaysia he will be tortured by the police or their paid hooligans.
FINDINGS AND REASONS
Country of reference
At the Tribunal hearing the applicant produced his Malaysian passport which verifies his claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts the applicant is a national of Malaysia and has assessed his claims against Malaysia.
Past problems with Malay trader/s
The employment history outlined by the applicant in his Protection visa application form is broadly consistent with his verbal account of his efforts to operate various [businesses] in Negeri Sembilan, Selangor and Klang. At the hearing his evidence in respect of his employment history was given spontaneously and in sufficient detail to satisfy the Tribunal that he did undertake these claimed business ventures. Similarly, his written and verbal evidence in respect of the claimed assault he suffered at the hands of a Malay trader was consistent and is supported by a police report made by his wife in 2007.
Based on the available evidence the Tribunal accepts the applicant opened a [business] in a [market] in Negeri Sembilan around 2005. The Tribunal accepts the applicant encountered problems from a neighbouring Malay [business operator] who was jealous of his success. The Tribunal accepts the applicant was assaulted by the Malay [operator] and that the matter was reported to the police. The Tribunal accepts the Malay [business operator] was taken into custody but was later released on bail and that no further action was taken against the Malay [operator].
The Tribunal also accepts the applicant moved to a neighbouring area and opened a bigger [business]. While there is no evidence, other than the applicant’s own testimony, to support that the same Malay trader interfered with his [newer] business, given the close proximity of their businesses and the accepted history of assault and intimidation, the Tribunal is prepared to accept that problems continued between the applicant and the Malay trader which caused the applicant to close his [business] and move to Selangor, some 50 kilometres away.
The applicant claims that he continued to experience problems in Selangor and in Klang, where he subsequently moved to, and maintains that the same person and/or the police or paid hooligans were behind it. The Tribunal found the applicant’s evidence as to what transpired in these locations and why to be vague and lacking in the detail he provided in respect of his two earlier businesses. When asked what occurred in Selangor he said that at first his neighbours were nice to him but that afterwards they started disrupting him. Similarly he said that when he moved to Klang he was disturbed again and his children didn’t feel safe. He referred to an incident in which somebody ran into his wife’s car when she was taking the children to school but provided no detail about the persons involved or how it could be assumed it was anything other than an accident. Similarly, the applicant provided no further detail about how, when or in what way his businesses were disrupted or his family intimidated in these locations. He intimated that police or their paid hooligans might have been behind it because of his opposition to the government but for reasons which follow the Tribunal is not satisfied this was the case. The Tribunal also notes and finds it significant that the applicant’s written claims make no mention of these ongoing problems he claims to have had running subsequent businesses in Selangor and Klang and with only his vague oral evidence about the claimed circumstances to rely on, the Tribunal is not prepared to accept that the same Malay trader or the police or paid hooligans harassed or interfered with the applicant’s businesses when he moved to Selangor and Klang. Nor is the Tribunal persuaded that the applicant’s family were targeted for harm or that his children are not attending school out of fear for their safety.
Past political involvement
The applicant claims he became interested in politics because Indians are discriminated against in Malaysia. He claims he participated in two Hindraf rallies in 2007 and 2016. He claims to maintain an interest in Hindraf but is not directly involved at the moment.
According to sources,[1] Hindraf, or Hindu Rights Action Force, was formed in 2005 but only came to prominence in August 2007 when a class action was filed against the UK Government on Malaysia’s 50^th anniversary of independence in respect of claimed marginalisation of the Indian community. Hindraf comprised a coalition of thirty Hindu non-governmental organisations committed to preservation of Hindu community rights and heritage in Malaysia. In August 2007 Hindraf staged a rally and several prominent members were arrested in August and November 2007. The purpose of the rally was to hand over a 100,000 signature memorandum to the British Embassy in Kuala Lumpur.
[1] >
At the Tribunal hearing the applicant displayed very little knowledge of Hindraf. He incorrectly named the organisation Hindu Action Rights and when asked about the purpose of the rally in 2007 he provided only a general response about it being to ask for the rights of Hindus. Nevertheless the Tribunal acknowledges the applicant has not claimed to have played a prominent role in Hindraf; only to have attended two rallies. Notwithstanding this, and more significantly, the applicant’s evidence in respect of the 2007 rally has not been consistent. In his written claims he stated that when he was arrested he was just warned and let go. At the Tribunal hearing he indicated he was physically assaulted while held in detention for a full day. Furthermore, his written claims omit to mention that he attended a Hindraf rally in 2016. While he claims the police have taken down his details in respect of these circumstances and that he will be detained and assaulted on return to Malaysia for this reason he informed the Tribunal that he encountered no difficulties exiting the country through the normal channels.
In his written claims the applicant states that he joined a rally in 2016 to condemn the corrupt practices of the Prime Minister and that he was critical about the government’s practices. At the Tribunal hearing he stated that it was a Bersih rally that he attended in 2016 and he was arrested and held for a few hours before being let go. The Tribunal put it to the applicant that it is surprising his written claims failed to mention the significant fact that he was detained again in 2016. He responded that it is possible he left out this detail.
The Tribunal notes that the applicant’s written claims state it was in early 2016 that he attended the Bersih rally and the Delegates decision which is before the Tribunal indicates he arrived in Australia [in] July 2016. Information sources[2] indicate that there have been a series of Bersih rallies since 2007. Relevantly, Bersih 4 rallies were held on 29 and 30 August 2015 and Bersih 5 was held on 19 November 2016 in Kuala Lumpur and other locations. While there were some arrests reported in 2016 the rally was still considered to be relatively peaceful.
[2] What you need to know about Malaysia’s Bersih movement, The Strait Times, 27 August 2015; DFAT Country Information Report, Malaysia, 19 July 2016
When discussing his arrest at the Bersih rally the Tribunal asked whether he was sure the rally he attended was in 2016 and not 2015 and he reiterated that he was arrested in 2016 at the rally. In view of the above information the Tribunal considers the applicant cannot have attended the Bersih rally in 2016 because he arrived in Australia [in] July 2016 and the rally took place on 19 November 2016.
The Tribunal also finds it problematic that the applicant’s written claims state that after his attendance at the 2016 rally two police officers repeatedly threatened and intimidated him and he was threatened with having false cases filed against him. At the Tribunal hearing, when the applicant was asked what happened after his release in 2016 he stated that nothing further happened but that he and his family felt unsafe. When the Tribunal pointed out that he had failed to mention the serious claims he has made in respect of the two police officers and the threat of false cases being filed against him he responded that this was due to nervousness. The Tribunal did not form the impression the applicant was nervous during the hearing. He spoke in length and in detail about his employment history and the problems he encountered running his [two businesses] in Negeri Sembilan and about his reporting of the matter to the police in 2007.
In view of the above the Tribunal is unable to accept with any certainty the applicant’s claims in respect of his political involvement in Malaysia. The Tribunal is not persuaded that the applicant was ever politically active in Malaysia either with Hindraf or as a participant at Bersih rallies. The Tribunal does not accept the applicant has ever been arrested as a result of any political activity or monitored, threatened, harassed or intimidated with the threat of false court action over his political activity. It follows that the Tribunal does not accept the cause of any problems the applicant encountered running his businesses was in any way connected with his political activity. The applicant has claimed no political activity in Australia to cause the Tribunal to believe he would become politically active on return to Malaysia.

For the above reasons the Tribunal finds there is not a real chance or a real risk the applicant will suffer serious or significant harm on return to Malaysia for reason of his political opinion or activity.
Claimed discrimination against Indian Malaysians
Although without any specific details, the applicant states in his written claims that people of Indian ethnic origin are discriminated against and exploited by the majority Malay community. At the hearing, the Tribunal put it to the applicant that it nevertheless appears he was educated in Malaysia and was able to secure and maintain long term employment and to operate various private businesses in Malaysia despite being of Tamil/Indian background. The Tribunal suggested that his personal experiences do not appear to support his claim and nor does credible country information. Relevantly, the Tribunal discussed with the applicant DFAT’s reporting on the situation for Indian Malaysians including:
Indian Malaysians constitute the third largest ethnic group in the country. There are no laws or constitutional provisions that directly discriminate against Indian Malaysians. Most Indians Malaysians form part of the working classes but according to 2010 official figures they also represent a high proportion of professionals including 38% of the entire medical workforce. Access to primary and secondary education is high. However, access to state-based tertiary education remains low. The predominant use of the Malay language can be a major barrier to Indian employment in the civil service. In 2015 an Indian Malaysian was appointed as Chief of Police in Kuala Lumpur. Indian Malaysians freely participate in political life. The Malaysian Indian Congress is part of the ruling BN coalition. There are several members of parliament of ethnic Indian origin and three serving ministers in the current government as well as the current President of the Senate. 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.
In response, the applicant maintained that Indians always have problems in Malaysia and he restated that this was the cause for his involvement with Hindraf. In discussing his former [number] year long career with [an occupation 1] company he said that the human resources department was run by Malays and if there was ever a problem the human resources team sided with the Malay employees.
The Tribunal has had regard to the applicant’s responses and to DFAT’s reporting. The Tribunal accepts that the Malaysian Constitution gives ethnic Malays and other indigenous groups, collectively known as bumiputera, special status and that government regulations and policies have resulted in preferential programs to boost the economic position of bumiputera. Against this background the Tribunal accepts the applicant and other Indian Malaysians may encounter some low level official and societal discrimination in Malaysia. However, as discussed with the applicant, his own personal achievements together with DFAT’s advice, does not persuade the Tribunal that any discrimination he may encounter on return to Malaysia on account of his race/ethnicity would be so severe as to amount to serious harm as explained at 5J(5)(a-f) of the Act or significant harm as defined in s.36(2A) and s.5(1) of the Act. The Tribunal is satisfied that there is not a real chance or a real risk that the applicant will suffer serious or significant harm on return to Malaysia because of his race/ethnicity.
Noting the findings above in relation to his past encounters with a Malay trader in Negeri Sembilan the Tribunal has considered whether there is a real chance or a real risk he will suffer any serious or significant harm on return to Malaysia for this reason. Based on the available evidence and given the Tribunal’s above findings, the applicant’s problems with the Malay trader occurred in Negeri Sembilan approximately in the years between 2007 and 2009 before he moved to Selangor and later to Klang whereupon in the Tribunal’s view the situation with the Malay trader did not continue. As the problems occurred approximately eight to ten years ago the Tribunal finds that there is only a remote possibility the applicant would face serious or significant harm at the hands of the Malay trader and certainly not in all areas of the country as evidenced by his ability to live and work in Selangor and Klang previously. The Tribunal is satisfied the applicant could return to Selangor or Klang or to an entirely different part of the country where he would be safe from harm at the hands of the Malay trader. Accordingly, the Tribunal is not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm on return to Malaysia for this reason.
Lastly, during the hearing the applicant claimed to fear harm from the Malaysian authorities on account of the fact that he has applied for protection from the Australian government. As discussed with the applicant at hearing the Tribunal is not aware of any information which supports this claim. Relevantly, the Tribunal notes the following information on the treatment of returnees as outlined in DFAT’s report:
Many thousands of Malaysians enter and leave the country every day. People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return on account of their absence. Malaysians who over-stayed their work or tourist visas, or breached visa conditions in other countries are regularly returned to Malaysia with no attention paid to them by authorities. Likewise, failed asylum seekers would be unlikely to face adverse attention as the Malaysian government would not typically know the individual was a failed asylum seeker, although it is possible that some individuals might be questioned upon entry or have their entry delayed particularly if their passport has expired while abroad.
The Tribunal notes that the applicant’s Malaysian passport is valid until 2020 and it is not accepted that the applicant is a person of interest to the Malaysian authorities for reason of his political opinions or activity. This together with DFAT’s advice satisfies the Tribunal that there is not a real chance or a real risk the applicant will suffer any serious or significant harm on return to Malaysia on account of him applying for protection in Australia.
Conclusions
The Tribunal has considered the applicants claims individually and cumulatively but for all the above reasons does not accept that there is a real chance the applicant would face serious harm for the reasons claimed if he returns to Malaysia now or in the reasonably foreseeable future. Therefore the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
The Tribunal has also considered whether the applicant is eligible for complementary protection and notes that the provisions provide that there is taken not to be a real risk of significant harm if 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. As noted in the above findings the Tribunal is of the view that the applicant will not be at risk of harm from the Malay trader if he returns to reside in Selangor, Klang or an entirely different part of the country. As to whether it would be reasonable for the applicant to do so the Tribunal finds it significant he was previously able to live and work in Selangor and Klang and indeed his family remain living in Klang. As discussed with him at hearing, he has a long career in [occupation 1] to fall back on if he returns to Malaysia. The applicant responded that his age will work against him and it won’t be possible for him to return to his previous company. Even if this was true the Tribunal can see no reason why the applicant will not be able to return to Selangor, Klang or elsewhere in Malaysia and re-establish a [similar] business given his many years of experience in the industry. The Tribunal considers it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk of him suffering any significant harm. Accordingly, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, that there is a real risk he will suffer significant harm for the reasons claimed or for any other reason. Therefore the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
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.
…

The Asian Forum for Human Rights and Development (FORUM-ASIA); Asia Pacific Forum on Women, Law and Development (APWLD), Fortify Rights; Human Rights Watch; the International Commission of Jurists (ICJ) and Southeast Asian Press Alliance (SEAPA), Joint Statement, Malaysia: Drop Charges and Release Bersih Organisations and Supporters, 21 November 2016, Kuala Lumpur;
Khoo Ying Hooi, After Bersih 5, Fear and Repression Continue in Malaysia, November 23 2016

[2017] AATA 2678

3 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction