1715280 (Refugee)

[2018] AATA 5985

1715280 (Refugee) [2018] AATA 5985 (29 October 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1715280

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:  Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:          29 October 2018 at 11:35 am (WA time)

DATE OF WRITTEN RECORD:                17 February 2021

PLACE OF DECISION:  Perth

DECISION:  The Tribunal affirms the decision under review.

Statement made on 17 February 2021 at 11:02am

CATCHWORDS

REFUGEE – protection visa – Malaysia – political opinion – ‘Bersih’ rallies in replacing the Najib Government – Bersih 2.0 rally – particular social group – returnees – credibility assessment – claims lacked sufficient clarity – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5J, 5LA, 36
Migration Regulations 1994 (Cth), 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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 July 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

1. At the hearing on 29 October 2018 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

1. Attached to this decision record is a corrected transcript of the oral reasons for decision delivered to the applicant at the time of their delivery in person.

DECISION

1. The Tribunal affirms the decision under review.

Dr Colin Huntly Member

Corrected Transcript

ORAL DECISION OF MEMBER HUNTLY  [11.03 am]

INTRODUCTION

1. The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994. The applicant must either be a person in respect of whom Australia has protection obligations under the refugee criterion or under complementary protection grounds. Where relevant the Tribunal has taken into account the policy guidelines prepared by the Department of Immigration on refugee law and on complementary protection grounds together with any country information assessment prepared by DFAT as is required by Ministerial Direction No.56.

1. The applicant applied for a Protection visa on 13 March 2017. The delegate refused to grant that visa by decision dated 11 July 2017. The applicant applied to this Tribunal for a review of that decision.

1. The applicant appeared before the Tribunal on two occasions; firstly, on 17 April 2018. A second hearing scheduled for 21 August 2018 was re-scheduled to, and completed on, 29 October 2018. The Tribunal was assisted at both hearings with the services of an interpreter, fluent in both the English and Malay languages. The applicant was not represented by a registered migration agent.

IDENTITY

1. The applicant claims to be a national of Malaysia. He was born in Kelantan on [date]. The Tribunal has had regard to Departmental files on which the decision of the delegate relating to identity was based.

1. The Tribunal has also had the advantage of interviewing the applicant in person. The applicant’s Malaysian passport, which was issued in Kuala Lumpur [in] 2016, bears the same identifiers as the applicant.

1. Accordingly, on this basis, I find that the applicant is a national of Malaysia. I further find that the receiving country with respect to the applicant is Malaysia.

BACKGROUND

1. The applicant arrived in Australia [in] December 2016, travelling on a UD-601 ETA Visitor’s visa.

1. The applicant is the head of a household, the members of which are currently resident in Australia. According to the applicant, the applicant’s wife and eldest child joined him in Australia around 5 months after his own arrival in Australia. The applicant has presented the Tribunal with a copy of a West Australian birth certificate dated [date] (No. [number]; Registration [number]) relating to a child, born in [City 1] on [date]. The child’s given names are [Child A].

1. The applicant states that his wife and eldest child are currently applicants for protection. The youngest child does not appear to be an applicant for protection. The youngest child’s migration status in Australia is, therefore, unknown. I am satisfied that the current application for review refers only to the applicant.Having had the opportunity to review the Departmental file, and the Tribunal’s files relating to this application, I find that my jurisdiction with respect to the present application for review extends only to the applicant.

STATEMENT OF DECISION AND REASONS

1. The applicant provided the Tribunal with a copy of the decision which was made by the delegate of the Minister. The applicant’s claims for protection relate to membership of a social-political group.

1. The applicant’s claims for protection are summarised in Part four of the delegate’s record of decision.

1. I have considered whether or not there is a real chance of persecution to the applicant now, or in the recently foreseeable future if the applicant was to be returned to Malaysia for the essential and significant reason of his membership – or perceived membership – of a particular social-political group. In addition, I have also considered the applicant’s membership of the particular social group ‘Returnees’.

1. I have also considered the possibility of complementary protection claims being made by the applicant in the alternative. I discussed the delegate’s summary of country information with the applicant at the hearings, particularly with respect to ‘Bersih’ rallies; allegations of corruption within the Najib Government; law enforcement in Malaysia; the assessment of corruption in the enforcement of the criminal law; and, the nature and adequacy of criminal law and the judicial system within Malaysia.

1. I also referred the applicant to more current country information produced by both the Department and DFAT in 2018, and country information highlighting the subsequent success of the ‘Bersih’ rallies in replacing the Najib Government. I note in particular that the DFAT country information report for 2018 makes reference to the treatment of returnees:[1]

   People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return because of their absence.

   [1] At [5.22].

1. I note that if I make findings that an applicant’s claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant had a genuinely subjective fear of harm. Judicial authority provides that, in such cases the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.

1. I note also that it will not be sufficient that a person has a real chance of being persecuted only in a particular part of a receiving country. Under s.5J(1)(a) of the Act, the real chance of persecution must relate to all areas of the receiving country.

1. Finally, a person will not be taken to have a well-founded fear of persecution if effective protection measures are available to the person in the receiving country. The circumstances in which effective protection measures are available to a person are set out in s.5LA of the Act.

APPLICANT CLAIMS

1. I discussed with you at the hearing the fact that your claims lacked sufficient clarity and specifics to satisfy the delegate that you had a well-founded fear of persecution in Malaysia, and that the vagueness and lack of clarity of your claims were the principle reason why the delegate refused to accept that you faced any real chance of harm in Malaysia now, or in the

reasonably foreseeable future. During the hearing, you expanded on your claims by suggesting that you had been [an associate] for a VIP; that you had been paid to disrupt Bersih rallies; that you had worked for this VIP for 2 years (between 2015 and 2017). You stated that you had resisted the request of this VIP to join those rallies, and that you had been harassed by this VIP since that time because of your non-participation at his behest.

1. I asked you the identity of this VIP. After considerable effort on your part, you named a ‘[Mr B]’. I asked you which particular social-political group this person belonged to. You were unable to tell me the identity of the particular social-political group. I asked you in which Bersih rally you had been involved. Initially you said you had been involved in Bersih 2.0 later in the hearing you stated you did not know in which Bersih rally you had been involved. I asked you for the details of your involvement and you were unable to provide any details. I asked if you had been arrested by police for your involvement with the Bersih rallies. Your first response was that you had been arrested. Shortly after this, you said that you had not been arrested.

1. I asked you what it was that you feared from this person. You stated that this person was involved in the mafia. I asked you if you had ever reported the harassment that you had experienced from this person to the Malaysian police. You said no, because this person was a VIP in a high position. You were unable to explain what you meant by this person being in a high position.

1. You were unable to identify any problems you had experienced as a result of official harassment in Malaysia. I note you made no attempt to relocate within Malaysia before coming to Australia. I note that you made no reports about harassment to police while you were in Malaysia. I also note that you claimed that your wife had been harassed by these people while you were in Australia, after leaving Malaysia, but she had not reported any of this harassment to police either.

1. I also note that although you were issued a passport [in] 2016, you remained in Malaysia [until] December of that year, and that your wife and youngest child at that point remained in Malaysia for a further 5 months. None of this suggests a flight from Malaysia on your part, or the part of your family.

1. On the basis of the foregoing inquiries, I do not accept that your claims are credible, or that you have a genuinely well-founded fear of persecution on account of any political membership that you might have or have had, or otherwise on the basis of your actual or perceived political association or beliefs from any person for any reason. There is no suggestion on the basis of what you have said at the hearings that you are under any threat from the Malaysian state, or that the Malaysian state would deny you protection if you were to seek it in that country for any reason discussed with the Tribunal.

1. I have raised my credibility concerns with you about the evidence at the hearings. Accordingly, on the basis of the foregoing, I place very little weight on your claims for protection as stated in your application for protection.

1. I also note that country information referred to above about the treatment of returnees suggests that you would receive no adverse attention on return to that country, now or in the reasonably foreseeable future, for the essential and significant reason of membership of a particular social group of returnees.

1. In light of these considerations, I have considered each of the integers of your claims individually and cumulatively. Based on these considerations, I find that taken at their highest, your claims and evidence do not reach a level that demonstrates you face either a

real chance of serious harm, or a real risk of significant harm now or in the reasonably foreseeable future, from any person or for any reason if you were to return to Malaysia.

Findings

1. On the basis of the foregoing factual findings and country information, the Tribunal finds the applicant has not demonstrated that there is a real chance that if the applicant were returned to Malaysia he would be persecuted for the essential and significant reason of membership of a particular social group; membership of political groups; or, returnees, now or in the reasonably foreseeable future, for the purposes of s.36(2)(a) of the Act, the refugee criterion.

1. The Tribunal has also considered the applicant’s claims in light of the complementary protection criteria in s.36(2)(aa) of the Act. On the basis of the foregoing, the Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, that there is a real risk that the applicant would face significant harm now or in the reasonably foreseeable future.

1. Accordingly, there’s not a real risk the applicant will suffer significant harm and the Tribunal finds the applicant is not a person in respect of whom Australia has protection obligations, by virtue of s.36(2)(aa) of the Act. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under the complementary protection criteria.

CONCLUSIONS

1. For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

1. Having concluded that you do not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative, complementary protection criteria in s.36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations on complementary protection grounds.

1. There’s no suggestion before the Tribunal that the applicant satisfies s.36(2) of the Act on the basis that he is a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act, and who holds a Protection visa.

1. Accordingly, the applicant does not satisfy the criteria in s.36(2) of the Act.

DECISION

1. The Tribunal affirms the decision under review.

END OF ORAL DECISION  [11.35 am]