1717054 (Refugee)

1717054 (Refugee) [2017] AATA 2734 (8 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717054
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Luke Hardy
DATE:8 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 08 November 2017 at 2:54pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Religion – Christian – Race – Indian Tamil – Member of the same family unit – First applicant – Imputed political opinion – Member of the People’s Justice Party (Parti Keadilan Rakyat ) – Bersih rally demonstrator – Inconsistent evidence – No real chance of persecution
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J, 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A)-(2B), 65, 424AA, 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] July 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants are all Christian, ethnic Tamil Indian citizens of Malaysia. [The first named applicant] arrived in Australia [in] December 2016 and the rest of the family arrived here [in] March 2017. All arrived here on [temporary] visas.
The applicants jointly applied for protection visas [in] March 2017. The delegate refused to grant the visas [in] July 2017.
The applicants all appeared before the Tribunal on 17 October 2017. [The first named applicant] and his wife told me that [the first named applicant] is the only person in this matter making substantive claims, with [the second named applicant] and the [children] included in the application as dependents. This advice indicates that all applicants in this matter beside [the first named applicant] are “Part D” or dependent applicants, although each member of the family was the subject of a “Part C” application form in the original protection visa application. Confirming the intention to be regarded as dependent applicants, the family indicated to me that it was only [the first named applicant] and [the second named applicant] who wished to give evidence in this matter. I invited [the second named applicant] to give evidence on behalf of herself and the [children], with particular attention to their “race” and “religion”. The Tribunal 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 applicants are entitled to protection in Australia as refugees or, in the event that they are not, on complementary protection grounds. Another issue in this case is [the first applicant]’s reliability as a witness.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
[The first named applicant] was the only applicant in this matter who included a statement of claims along with an individual “Part C” application form. All [of] the other applicants made no individual claims at all.
In his statement of claims, [the first named applicant] said that he was a [occupation] in [Town 1], [in] Negeri Sembilan state, some [distance] from Kuala Lumpur (KL). [The first applicant], [age] at the time of the Tribunal hearing, claimed he became interested in politics in Malaysia in 2012, when he would have been around [age]. He claimed that around this time he “realized” that ethnic Indians in Malaysia are exploited by the ethnic Malay majority. He claimed he joined the People’s Justice Party (Parti Keadilan Rakyat; PKR) around that time and “actively participated [in] demonstration[s] against the government.” He claimed he was elected PKR youth leader in 2014 and participated in the Bersih 4.0 demonstration in in August 2015. He also claimed to have actively organised the Bersih 5.0 rally in [Town 1].
[The first named applicant] claimed that because he was openly critical of the corrupt practices of Prime Minister Najib, police monitoring the rally threatened and intimidated him. He claimed that police and pro-government hooligans ransacked and damaged his [shop].
[The first named applicant] claimed he could no longer stay in [Town 1]. He claimed he sold the [shop] for a “throw away price” and then fled to Kuala Lumpur where he was “detained, warned and let off” by police on several occasions. He claimed he was traced to KL and threatened by police and hooligans there. He claimed the police threatened to file a false case against him. He claimed he could not obtain state protection as it was the state that was persecuting him in Malaysia. He claimed that Malays teased him for being a Tamil. He claimed, “They also forced us to conver[t] to Muslim [sic] if we want to live peacefully in the country.”
[The first named applicant] claimed that his children were forced to change schools twice in the course of a month. He claimed his family was harassed after he left Malaysia. He evidently left Malaysia legally. He claimed his family came later as it was not safe.
[The first named applicant] claimed he will be tortured, placed on a “wanted list” and killed by the authorities in the event of his return to Malaysia. He did not suggest that he undertook any special measures in order to be able to depart Malaysia with the authorities’ blessing, as it were, in December 2016.
[The first named applicant] submitted a copy of a December 2014 tenancy agreement in the matter of his [shop] in which he and his wife were named as the tenants. He also submitted a copy of a [date] November 2011 acknowledgement of payment for disposal of assets including furniture. Neither of these documents provide evidence of the sale of the [shop] in 2016.
Independent country information
I have had regard to the DFAT Country Information Report: Malaysia, dated 19 July 2016:
3.6 Chinese Malaysians freely participate in political life, represented by ministers in the current cabinet and participation in opposition parties. The largest Chinese party was traditionally the Malaysian Chinese Association (MCA), a component of the Barisan Nasional (BN) coalition. The MCA won seven seats at the 2013 election, down from 15 in 2008. An increasing number of Chinese support the Democratic Action Party (DAP), one of three opposition parties of the Pakatan Harapan coalition. The DAP won 38 seats at the 2013 election, a significant increase from 28 seats in 2008. The DAP is often portrayed in pro-government media as ‘anti-Malay’. Chinese Malaysian community members told DFAT that, while they believed this was mostly a political tactic, it did contribute to a sense of ethnic division and isolation from mainstream Malaysian society. They also commented that the 1MDB corruption scandal had galvanised anti-government support amongst Chinese Malaysians and had led to greater political engagement. For example, Chinese Malaysians were prominent in and helped contribute to the higher overall turnout at the 2015 Bersih 4 rallies throughout Malaysia compared to earlier protests in 2007, 2011 and 2012. All four Bersih protests have called for transparent government and strengthened parliamentary democracy in Malaysia…
3.53 A small number of high-profile opposition leaders or organisers have faced official harassment through the application of Malaysian law, particularly the Peaceful Assembly Act (PAA), Sedition Act, Criminal Code and occasionally, sodomy or corruption charges…
3.55 The PAA was used to charge eight individuals involved in the 28 February, 21 March and 28 March 2015 ‘#KitaLawan’ protests held in support of Anwar Ibrahim. Those arrested included members of the opposition People’s Justice Party (PKR) and organisers of the Bersih rallies (see ‘Political Rallies’ below). In February 2014, Karpal Singh, Anwar’s lawyer and former National Chairperson of the opposition Democratic Action Party (DAP), was convicted of sedition for a second time…
Political Rallies
3.60 The constitution states that all citizens have ‘the right to assemble peaceably and without arms’, however, in practice the government closely administers political assemblies and rallies under the Peaceful Assembly Act (PAA) and the Criminal Code. Permits can be difficult to obtain and can be restrictive in their application. The PAA requires organisers to submit notice of a rally to authorities ten days in advance.
3.61 Individuals have been arrested for organising or engaging in rallies in contradiction with the law and the Royal Malaysian Police have on occasion used excessive force to control crowds. Bersih, a coalition of 62 NGOs, organised a series of rallies calling for improved government transparency free and fair elections in 2007 (Bersih 1), 2011 (Bersih 2), 2012 (Bersih 3) and 2015 (Bersih 4). The rallies attracted thousands of protesters and were supported by opposition parties.
3.62 The Bersih 4 rallies on 29 to 30 August 2015 saw approximately 100,000 people, mostly opposition parties and their supporters, civil society activists and Chinese Malaysians, take to the streets in Kuala Lumpur to call for the resignation of Prime Minister Najib in light of 1MDB corruption claims. The protest was peaceful and no violence was reported, despite the government declaring the protest illegal and banning the yellow t-shirts with ‘Bersih’ print that were worn by the protestors. Smaller rallies were also held in Melacca, Penang, Kuching, Kota Kinabalu with a small number of arrests. This was an improvement on the July 2011 Bersih 2 protest where the police used tear gas and water cannons to break up the protest and made approximately 1,500 arrests.
3.63 In response to Bersih 4. UMNO-linked NGOs, known as the ‘red shirts’, held a government approved rally in Kuala Lumpur on 16 September 2015. The protest messages were pro-Najib, pro-Malay and slogans and banners were ethnically charged. There were a few arrests and police used water cannons to disperse the crowd when it attempted to enter the Chinatown district.
3.64 In May 2013, the opposition PKR organised nationwide demonstrations known as the ‘Black 505’ rallies, disputing the results of the May 2013 general elections. The rallies attracted thousands of people and took place with little interference from authorities. However, police subsequently arrested and charged a number of alleged organisers under the PAA for failing to provide the required ten days’ notice for public assemblies. Reports on the number of organisers arrested range from between six to forty individuals.
3.65 DFAT assesses that protesters face a low risk of arrest when engaged in political rallies. Such individuals have commonly been released on bail shortly following their arrest. High-profile organisers of political rallies face a moderate risk of official discrimination and could be charged under the Peaceful Assembly Act or the Criminal Code…
I have had regard to the following summary relating to Bersih in The Straits Times[1]:
[1] ‘What you need to know about Malaysia's Bersih movement’, The Straits Times, 27 August 2015,
1. What is Bersih?
Bersih, which means "clean" in Malay, refers to the Coalition of Free and Fair Elections. It is a civil society movement consisting of 84 non-government organisations calling for a thorough reform of the electoral process in Malaysia. It is led by Maria Chin Abdullah from the Women's Development Collective (WDC). Its previous chief was former Bar Council president Datuk S. Ambiga.
Bersih was first launched in November 2006 as a political party-driven movement with members consisting of opposition political leaders and representatives from the civil society. In April 2010, the movement was re-named Bersih 2.0 as a fully non-partisan movement free from political influences.
2. What are its demands?
Bersih has eight demands. These include the updating of the electoral roll to remove "phantom voters" - deceased persons, multiple persons registered under a single address or non-existent addresses, and reform of postal ballot to allow voting not only for Malaysian citizens living abroad, but also those within the country who cannot vote in their constituency on polling day.
The group also demands the use of indelible ink to prevent voter fraud and a minimum 21 days for campaigning to allow voters more time to gather information and deliberate on their choices.
3. What happened in past rallies?
Nov 10, 2007:
The first rally by Bersih at Dataran Merdeka in Kuala Lumpur was sparked by allegations of corruption and discrepancies in the Malaysian election system that favoured the ruling Barisan Nasional (BN) coalition. Supporters were urged to wear yellow T-shirts as a symbol of protest. Organisers estimated that between 30,000 and 40,000 people from various races and all walks of life took part in the rally.
The protest was credited for the shift in political landscape in Malaysia's 2008 general election, when the BN failed to obtain a two-thirds majority for the first time since 1969.
July 9, 2011:
The second rally, known as the Walk for Democracy, was organised to protest alleged vote rigging and other electoral abuses in the Sarawak state election in April 2011. An estimated 50,000 people took part in the rally. Malaysians living in 32 cities overseas also rallied in solidarity with the Kuala Lumpur protesters.
Police fired tear gas and used water cannons with chemical-laced water at the demonstrators to stop the march. More than 1,000 people were reportedly arrested.
April 28, 2012:
In early April 2012, the Public Select Committee released a report of its findings on electoral reform and it was passed in the House of Representatives with no debate between the opposition and ruling parties. An opposition minority report was not included in the final report and none of Bersih's demands were met. This led to Bersih calling for a third rally on April 28 that year.
The protest was peaceful as the participants marched from various locations towards Dataran Merdeka. But scuffles broke out when some protesters broke through a police barricade, with police riot units responding with chemical-laced water cannons and tear gas. Hundreds of protesters were arrested.
Opposition leader Anwar Ibrahim and five others were charged with participating in a street protest but a Sessions Court later ordered a discharge not amounting to an acquittal…
I have had regard to the following information for Bersih 4.0 rally participants[2], which clearly advises the latter as to where the Bersih 4.0 events were to be held in Malaysia in that year what they should do in the event of arrest:
[2] “What You Need to Know About Bersih 4.0: What to bring, where to meet and who to call if you get arrested,”
The movement for clean and fair elections have been going on strong since its first rally back in 2007. Thousands of people have come out in the past years to join the rally in Kuala Lumpur and various other locations globally, many dressed in yellow as a symbol of protest.
Here are a few things you should know as Bersih 4.0 approaches in a few days.
How is this year’s Bersih 4.0 different than Bersih 2.0 and 3.0?
Unlike the previous years where the rally was only held for a day, Bersih 4.0 is an overnight rally (29 and 30 August) in Kuala Lumpur, Kuching and Kota Kinabalu simultaneously. On top of demanding Prime Minister Najib’s resignation, the coalition are also rallying to press for four demands: clean elections, clean government, the right to protest and saving Malaysia’s economy.
Where will the rallies take place?
Before the march towards Dataran Merdeka, five locations [in KL] have been set as meeting points by Bersih 2.0’s chairperson Maria Chin Abdullah: Sogo, Pasar Seni KL, Dataran Maybank, Brickfields and Masjid Negara.
In East Malaysia, the rallies will be held at Padang Merdeka in Kuching and Tanjung Lipat in Kota Kinabalu. However, there will be no marching held here as people are only expected to assemble for the rally.
Is the rally illegal?
The police have declared the rally illegal, because they claim the organisers did not provide a detailed plan of the rally. However, PKR’s Latheefa Koya has said the rally is not illegal because there is no breach of the Peaceful Assembly Act of 2012.
What should I bring?
1) It is possible that tear gas will be fired. Bring sunglasses or goggles for your eye protection and a damp cloth to cover your mouth and nose. A small packet of salt will also help to neutralise the effects.
2) Bring your medications or medical aid equipment that you might need at the rally (for example, inhalers). Be especially careful if you have a preexisting heart disease.
3) It is also very important to bring your I/C in case you get stopped by the police. Besides that, bring just enough cash to last you for the two-day rally so you would not have to carry your wallet with you.
4) In order to combat the heat and fatigue that you will face, don’t forget to prepare at least a bottle of water for the rally. Aside from plain water, it is also recommended to bring isotonic drinks as they will restore energy in your body and avoid dehydration.
5) Since it is an overnight rally that begins from 2pm on the 29 August (Saturday) all the way until 11:59pm on 30 August (Sunday), do not forget to bring sleeping bags or foldable chairs if you plan to stay overnight.
What happens if I get arrested?
1) Remember your legal rights. If you are questioned by the police at the rally, you are actually only obliged to give your name, I/C number and address. You are not obliged to answer any further questions, but if he/she persists, you could ask if you are under arrest.
2) If the answer is no, you may refuse to follow them to the station if they ask you to. However, if the answer is yes, you should ask which station will they be taking you to, because they should only take you to the nearest station instead of any others. Besides that, remember to ask why you are under arrest, because an arrest without an informed reason is unlawful.
3) The moment you arrive at the station, you have the right to call two people: A relative or a friend, as well as a lawyer for legal assistance. If the police questions you at the station, remember that you actually have the right to remain silent. The duration of detention can only go up to 24 hours, as further detention can only be done by the Magistrate under a remand order.
For more information on your legal rights, visit The Malaysian Bar’s website and download the legal rights handbook. For additional sources, check out this guide at says.my.
What phone numbers do I need?
Be sure to keep the numbers of Legal Aid Centres (LAC) so you could call them should you end up in this situation. In the event of an arrest, you can call 018-321-1506 or 011-1214-0877 for help. Provide details such as name, MyKad number, telephone number and the police station where you are held.
Aside from Polis Diraja Malaysia (PDRM), what other bodies will be present at the rallies to provide assistance?
Since a much larger turnout is expected for this year’s rallies, possibly exceeding tens of thousands Malaysians who had participated in Bersih 3.0 in 2012, new party Gerakan Harapan Baru has stepped forward to provide volunteers to help with crowd control. The volunteer corp, called Amal Relief (ARiF), can be spotted in orange t-shirts with black sleeves, according to Johari Osman, head of ARiF Malaysia. Besides that, Bersih 2.0 is also mobilizing 2,000 volunteers to ensure security and manage the crowd.
The Human Rights Commission of Malaysia (SUHAKAM) will also be present to monitor the conduct of both the participants as well as the authorities during the rally.
For more information, read Bersih 4.0’s FAQs here …

Bersih’s own website[3] provides the following information relevant to the conduct of Bersih 4.0:
[3]
You claim to be apolitical. Why then are you calling for the Prime Minister to resign?
A Google search for “define apolitical” returns the result “not interested or involved in politics.” We are not apolitical, since much of what we do involves politicians and the political process. However, we strive to be non-partisan. This means we do not align ourselves to any political party.
Initially we called for the Prime Minister to take leave while he was investigated for allegations that he received over 2.6 billion Ringgit in donations in order to retain a majority in parliament. We think what the PM did is morally wrong, as the government will be beholden to the donors. When the Prime Minister ignored our demands and instead took steps to stifle the investigation, we asked him to resign. We changed our demand from “take leave” to “resign” because we demand moral uprightness in leaders.
In previous rallies Unit Amal were crucial for crowd-control. Will PAS join Bersih 4?
We have invited all political parties, and those who are in the process of forming political parties, to join Bersih 4. PAS has indicated they will not mobilize their members to join Bersih 4. We are grateful for the support PAS and Unit Amal have provided for past rallies.
Your FB page is called “Bersih official” because many others claim to be Bersih. This shows people can easily be fooled. How will you ensure protesters get accurate information?
We cannot prevent people from claiming to represent us. We know that some unprincipled persons even clone phone numbers and send messages purporting to be from us. As a countermeasure, we are disseminating links to our official pages. Also, our leaders have social media accounts which the public know about. Therefore, we are confident that confusion arising from provocateurs will be minimal…
What makes you confident protesters will follow Bersih’s instructions and not do their own thing? Firecrackers have been set off during recent rallies, and caused those present to panic. How will you respond to such disruptions?
In any mass gathering there will be people with their own agenda and low tolerance for leadership. We ask all groups, including the government, not to incite people to deviate from Bersih’s stated aim of a peaceful assembly. We ask all participants to ignore those who have an alternative agenda. Our experience from previous rallies is that goodwill prevails, especially if the authorities play their lawful role.
Previous rallies occupied about half a day. Bersih 4 occupies 34 hours. Why?
We expect attendance to peak between 2 and 8 pm on the 29th. We chose 34 hours as a response to requests to provide more opportunity for deeper interaction between participants. 34 hours is sufficient to share each other’s struggles, goals, strategies and techniques. We have organized programs to help foster this interaction, and to centre it around Bersih 4’s demands.
What time should I come?
We urge you to come at 2 pm.
Bersih 4 is to be held in KL, KK and Kuching. Where will people sleep overnight? What toilet and bathroom facilities will be available to them?
Demanding reforms involves struggle. Struggle involves hardship. Just as in fasting, there is value in personally experiencing the hardships faced by others.
Those who choose to stay overnight and continue the next day have been asked to bring sleeping bags. They are also free to stay with friends, book hotels or sleep out.
They will be able to use toilets in many restaurants in the cities. We have made arrangements for portable toilets and for water for drinking and washing (for prayers). Our ability to make these arrangements a reality depends upon co-operation by the authorities. Also, if the authorities respect the people and the constitution, they will arrange to keep public facilities open during the period. We are willing to pay reasonable charges.
What are the contents of the program over 34 hours? How will you keep people from boredom? Will there be speeches? Who has been invited?
Due to the history of interference and harassment by the authorities, we have chosen to withhold information about the program. We can however reveal that a group of people have worked and continue to work vigorously on it, and it will include a variety of events.
In previous rallies politicians gave speeches and incited the crowds – a barrier was breached. What’s to prevent politicians from doing the same during Bersih 4?
Politicians will be politicians. We have invited politicians from all sides to join us. We have told them that they must follow our rules – which means their speeches must be short, their topics must be relevant and they must focus on peaceful, lawful actions. Bersih will control the microphones and guide the people.
You released your demands for institutional reforms several weeks ago. Who has responded to you? How will Bersih 4 change their response?
NGOs have been very positive. Many have applauded us for crystallizing what needs to be done, including the establishment of a transitional government. No political party has criticized our proposals. Neither has any political party offered to take up any of our proposals and add them to their current action plans and manifestos. Bersih 4 will help the parties take the pulse of the people and respond appropriately to our demands.
A major problem during rallies is the Public Address system. Often people can’t hear what the leaders are saying. What measures have you taken to address this problem?
The authorities continue to treat the exercise of the constitutional freedom to speak or assemble as something to be curbed rather than facilitated. Therefore rally organizers have to find creative means to address crowds. Since we do not wish to make it easier for the authorities to harass the people, we have chosen not to reveal details. We can however say that we have incorporated lessons learned from previous rallies into the planning of Bersih 4. We expect the problems with the PA systems to be less than in previous rallies.
How will the public identify Bersih organizers during the rally? How many people will you have doing security duty? How will people identify them? How have they been trained? hundreds of thousands of people show up, how will Bersih manage the crowd? Who are the experienced professionals in your crowd management team?
The organizers and volunteers will be identified by distinctive markings.
Security arrangements are being handled by a committee comprised of those who have experience in crowd management. We will have over a thousand trained crowd managers. They are organized wand have clear lines of authority and communication.
What lessons have you learned from previous rallies which you think will make Bersih 4 safer, more orderly and more effective?
The biggest lesson we have learned is that we can be more confident of the goodwill of the people than of the authorities. We have learned to be prepared for surprises designed to wreak havoc with our plans. Therefore we have developed contingency plans to anticipate last minute changes. We believe we are better prepared.
How will people feed themselves during the night when shops are closed?
We expect 24 hour restaurants located near the protest areas will do a booming business. Some who intend to participate have informed us that they will bring their own food and water.
Have you booked any hotel rooms at the venues?
We have made arrangements for rest areas for volunteers who will provide medical aid, security, and program events.
What medical support have you arranged?
Each venue will have a team of trained medical professionals on standby for the entire duration of the rally.
What communication have you had with the authorities and what’s your assessment of their response to-date?
We have spoken with the police. We have reminded them of their obligations under law and their previous failings. We have called their bluff on various points they raised. We have also discussed with Malaysia’s National Human Rights Association, Suhakam, and others. They have agreed to arrange for independent observers to document all potential issues and intervene as appropriate.
Many who’ve attended previous Bersih rallies have said they will not attend Bersih 4. What message do you have for them?
We are grateful for their previous support. We understand and even share some of their frustrations. We remind them that change is never easy requires persistence and flexibility. We try not to be dismissive of others. We try not to belittle others. We ask them to share our values.
What if I get tear-gassed? …
If the authorities fire tear-gas, you should do the following:
1.Hold your breath.
2.Do not touch tear gas canisters, as they can be very hot.
3.Close your eyes if possible (or put on goggles/sunglasses if you have them).
4.Leave the area as quickly as possible; move to high ground if possible.
5.Don’t panic – breathe as little as possible, close your eyes, leave the area.
6.Take out your contact lenses or wash your glasses if you wear either.
7.You may need to rinse your eyes – use LOTS of bottled water.
8.Air out your clothes – walk with your hands outstretched; change clothes if you can.
9.Wash your hands.
10.Keep your clothes dry.
11.Take a shower as quickly as possible.
12.Wash your clothes separately.
…
What if I am exposed to water from a water cannon?
Wash yourself, including your clothing, as quickly as you can in any water source. Change into fresh clothes as soon as you can.
What if I get arrested?
The Bar Council has some excellent materials you can review by clicking here. The following is a quick summary (click here for a printable one page pamphlet):
•Police stop you.
•Only a uniformed police officer or someone with a police authority card can stop you.
•Note the officer’s ID number and his/her vehicle number plate if applicable.
•Police question you when stopped
•Only give your name, ID number and address.
•Politely ask if you are under arrest.
•You are under arrest if he/she answers “yes,” refuses to let you go or handcuffs you.
•The police cannot arrest you just because you are a potential witness and they want you to give a 112/Witness statement.
•Questioning by police without arrest
•If the police think you can provide information useful to a case they are investigating, they may examine you and take down your answers (112 statement).
•If they informally ask you to make a 112 statement and the time is convenient, cooperate. If not, tell them you will do so at a convenient place and time.
•You are advised to ask a lawyer to accompany you when giving a 112 statement.
•You can remain silent if you think answering any question may expose you to a criminal offence. Make sure you understand questions carefully before answering. Take your time.
•Read carefully before signing the 112 statement. Don’t sign if it is not accurate. You have the right to make corrections.
•Police arrest you
•Ask why you are under arrest.
•Do not resist arrest.
•Ask which police station they will take you to.
•You have the right to make a phone call to a relative/friend and a lawyer.
•SMS your FULL NAME, NRIC no and location of police station taken to (if known) to Bersih’s Urgent Arrest no. 018-3160 214, 018-3907 780, 018-3135 988 OR Bar Council/LAC Urgent Arrest Numbers 018-3211506 and 011-12140877
•You may be detained for up to 24 hours in a police lock-up to “assist” in investigations.
•Your rights after arrest and during detention
•Exercise your right to consult a lawyer.
•You are allowed to have one set of clothing with you in the lockup.
•The police will record and keep all your personal belongings for return to you later.
•You are allowed 2 baths a day, medical attention and food/water.
•The police can only detain you for 24 hours. A Magistrate must approve longer detention.
I note from the following report[4] that the Bersih 5.0 rally took place in KL, in spite of the arrests, the day before, of Bersih and pro-government Red Shirt leaders[5]:
About 15,500 protesters from Malaysian pro-democracy group Bersih turned up for their fifth mass demonstration in the capital city on Saturday (Nov 19), according to estimates from the police.
The critics of the Malaysian government came together to send a clear message that they wanted change, a clean administration and free and fair elections.
Thousands gathered at the starting point of the rally in Jalan Bangsar on Saturday morning, despite the arrests of Bersih leaders including co-chairperson Maria Chin Abdullah the day before.
Many were angry that she was being held under the country's anti-terror law that allows preemptive detention for up to 28 days.
Earlier in the day, tensions rose as Bersih protesters looked set to breach the barricades in Jalan Bangsar, which prompted hundreds of riot police to be on standby. Water cannon trucks were also deployed, although Bersih co-chairperson Ambiga Sreenevasan quickly intervened and negotiated with the police.
In the end the crowd stayed put, resulting in some unhappiness. Still, Bersih co-chairperson Ambiga claimed the rally was a success.
She said: "People have shown us that this country is worth fighting for and they are prepared to fight for their country. I think that’s the message they are giving with their presence today."
[4] “More than 15,000 turn up for Bersih 5 rally in KL,” ChannelNewsAsia, 19 November 2016,
[5] “Malaysian police arrest Bersih 2.0 chairperson, 'Red shirts' leader ahead of rally
I note from the following report[6] that there was a pre-rally convoy organised to pass through various towns and cities of Peninsular Malaysia prior to the 19 November rally date:
[6] “Bersih 5 rally set for Nov 19,” The Sun Daily, 14 September 2016,
PETALING JAYA: The next Bersih street rally will be held on Nov 19, said its chairman Maria Chin Abdullah.
She said Bersih … will launch a nationwide Bersih convoy on Oct 1, which will lead to the Bersih 5 rally on Nov 19.
The flag-off for the convoy will take place simultaneously at Kangar, Johor Baru, Kota Baru, Lumut, Sandakan and Miri on Oct 1," she announced at a media conference today.
The convoy is organised to create a "nationwide conversation" on the issues the country is facing with the current administration.
"The Bersih convoy is estimated to cover 246 cities, towns and villages across Peninsular Malaysia, Sabah and Sarawak, and will culminate in the one-day Bersih 5 rally on Nov 19.
"We understand the frustration of Malaysians who have passionately worked for change for many years. We must not give up but continue the struggle for reform, justice and human rights," she said.
When asked if former prime minister Tun Dr Mahathir Mohamad would participate in the event, Maria said it is open to all political parties.
Maria added that other parties are free to pursue their own causes as long as it does not disrupt Bersih's stance.
"Other people may have other agendas, but we are unbiased and principled," she said.
Bersih 2.0's tagline this time, "Combine our energy – New Malaysia", also marks the 10th anniversary of the coalition's formation as a people's movement.
Evidence to the Tribunal
Prior to the Tribunal hearing, [the first named applicant] submitted photocopies of photographs of the exterior of his [shop]. He also submitted a photocopy of a typed agreement to sell the [shop] to a named buyer.
At the Tribunal hearing, [the first named applicant] and [the second named applicant] indicated that they would speak on behalf of their [children] who they had only cited in the hearing record as observers.
On the day of the hearing, [the first named applicant] submitted photocopies of images of his family’s involvement with a [church] in [Australia]. He also submitted copies of letters attesting to his children’s progress at school in [Australia].
[The first named applicant] claimed he and his wife first discussed the desire to travel to Australia in a conversation they had in mid-November 2016. [The first named applicant] said it could have been around [date] November 2016, but when I asked him if he had the conversation before or after Bersih 5.0, he said it was after the rally. I asked him to give me the date of the Bersih 5.0 rally and he said it was in the beginning of November, around the [date] or [date]. I put to him that this was not correct (it was the 19^th) but this did not help him to recall the right date. He indicated, in any event, that the desire to move to Australia preceded the move to KL.
[The first named applicant] confirmed that he was in [Town 1] when he attended both the Bersih 4.0 and Bersih 5.0 rallies. I asked him why he did not travel the short distance to KL for those two rallies and he said he could not spare more than a day off from his [business].
[The first named applicant] said that in the run-up to the Bersih 5.0 rally some police supported the rally whereas some did not. I asked him to explain how, in the context of a degree of police support in [Town 1], he was so mistreated by the police. In reply, he said [Town 1] is a small town where he is well known. He then digressed to say that gangs also tried to stop him from being involved in the Bersih 5.0 rally. I asked him about whether the police communicated with him prior to the Bersih 5.0 rally to prevent a situation they might be obliged to oppose and he said they did not because he was not well known in [Town 1]. I put to him that he had just directly contradicted himself and in reply he simply said that it was easy for the police to stop him.
I asked [the first named applicant] if he could provide me with any material to support his claim about engaging in two Bersih rallies in [Town 1] and, in reply, he said he was still working with his PKR leader to obtain some. He seemed to indicate that he had encountered so difficulty, so I asked him why it was so hard to obtain evidence of his involvement in the PKR and the Bersih rallies. In response, he said that he did not know. I asked him if there might be evidence of local PKR emails discussing the rallies in their planning stages and he said there would have been n emails, just telephone calls made using a mobile telephone that he had left in Malaysia.
I asked [the first named applicant] if he had had his mobile telephone with him at the Bersih rallies; he said he did. I asked him if he took any photographs of himself at the rallies and he said he did not, because he had most of his face covered. I asked him if he had any photographs evidencing his attendance at the rallies at all and he said that he had once had some but not since his [shop] had been ransacked.
I asked [the first named applicant] to confirm to me that there had been a Bersih 4.0 rally in [Town 1] in August 2015 and he said there had been. I put to him that I could find no evidence of any rally in [Town 1], the evidence of the locations of the respective Bersih rallies having been quite widely published, with [Town 1] not included in any reports seen; in reply, [the first named applicant] said, “That’s why the problem comes to me.”
I asked [the first named applicant] why he did not take his groups the short distance to KL on the days of the rallies under discussion in this matter; in reply, he said his PKR leader had asked him to organise a group to rally in [Town 1]. I put to him that it seemed odd he did not heed Bersih’s evident call for supporters swell the crowd in KL; in reply, he modified his evidence somewhat, saying that the PKR sent another group to KL on the occasions of the rallies there.
I put to [the first named applicant] that I had engaged the Google application to see if I could find images of rallies, protests and demonstrations in [Town 1] and had found no images of Bersih rallies there in any year at all; I invited him to comment on this but he gave no cogent rely.

I asked [the first named applicant] about his claims regarding the police having detained him on numerous occasions and in response he said that they never detained him but just “pulled me over” once in 2016 after the rally. I asked him to explain why he had declared in the statement accompanying his protection visa application form that he had been detained on “several occasions”; he did not respond cogently to resolve this concern.
I asked [the first named applicant] to explain why the authorities let him leave Malaysia if, according to him, he faces jailing, or worse, on return. In reply, he said that he comes from a small town; then he said that gangsters used to come to him under directions from “government people”. He provided no evidence in support of this claim. I asked [the first named applicant] to tell me how long he resided in KL before coming to Australia and he said he stayed there for one week. I asked him why he thought the Malaysian authorities let him depart Malaysia after the KL police threatened to jail him; in reply, he said that the threats had not been made formally
I invited [the first named applicant] to comment on the photographs of his shop, submitted just prior to the Tribunal hearing. He said these were images taken from an “App” available to him via the Internet. He said he had accessed these images after coming to Australia. He confirmed that the images did not show any evidence of attack on the [shop] which, he said, only suffered interior damage.
I asked [the first named applicant] why he left his family in [Town 1] when he did and he said he had not originally thought to bring his family to Australia and only did so after his wife reported “cars coming around” in his absence.
Under the protocols of s.424AA of the Act, I put to [the second named applicant] that [the first named applicant] had not been able to provide any evidence in support of his claimed participation in the Bersih rallies of 2015 and 2016, or any evidence of vandalism of the hair [shop], or any evidence in support of his claims about harassment from police or gangsters. I put to her that this information, or lack thereof, in support of her husband’s claims about himself, was relevant as it called into question the credibility of his claims overall. I put to her that subject comments and responses she might provide, this lack of supporting information would be a reason for refusing the protection visas for which she and her family were applying. I asked her if she wanted to respond immediately or to ask for additional time, which request I would duly consider. In reply, [the second named applicant] said she had nothing to say in the matter.
I then turned to [the first named applicant] and invited him to raise any matters he might wish to raise. In response, he said he had been trying to obtain evidence to support his oral and written claims and did not know why there was a delay in obtaining such material. He claimed his contact in Malaysia had told him that he would send material as soon as possible.
I asked the applicants if they had any claims relating to “race” or “religion”; I specifically invited [the first named applicant] and [the second named applicant] to speak on behalf of their children. In response, [the second named applicant] said that Muslim children in her children’s state school class had verbally pressed them on occasions to become a Muslim. She indicated no collateral harm apart from the verbal taunting. She and [the first named applicant] seemed aware that her children were not in any danger of any kind of forcible conversion. [The second named applicant] simply indicated that the treatment described had been irritating to her and her children. She said that distance and expense prevented her and [the first named applicant] from sending their children to non-state schools.
Findings in relation to s.36(2)(a) of the Act
I accept that [the first named applicant] and his family are all Christian, ethnic Tamil Indian citizens of Malaysia. I accept that they all live in [Town 1], Negeri Sembilan. I accept that [the first named applicant] ran a [business] in [Town 1]. I accept that due to haste he has sold this shop. I accept that he did not get the price he would have preferred. As to the reason for the haste, [the first named applicant] claims he was under pressure to flee Malaysia due to his political profile. I have serious concerns as to the credibility of his claims to such effect.
On the evidence before me, I am not satisfied that [the first named applicant] has ever had any substantial or potentially significant relationship with the PKR or any party, or that he was elected a local youth leader. Even if I am wrong about [the first named applicant] having no substantial or significant involvement in the PKR, I give weight to the lack of any evidence in support of [the first named applicant]’s claimed involvement in the two Bersih rallies he claims to have helped to organise. I consider it implausible that [the first named applicant] has to date been unable to provide any material in support of his involvement in the PKR or Bersih movement. I find his explanations as to his “leader”’s failure to send him any supporting very unsatisfactory in the claimed circumstances. I find that [the first named applicant]’s explanations as to why he has no evidence of communications with the PKR, and no photographic evidence of the rallies he attended, were improvised. I give weight to the independent evidence that indicates there were no Bersih 4.0 rallies outside of KL, Kuching and Kota Kinabalu and no Bersih 5.0 rallies outside of KL. On the evidence overall, I do not accept that there were any Bersih rallies in [Town 1] for [the first named applicant] to organise. It is clear from [the first named applicant]’s evidence that he was not talking about organising a group to welcome a Bersih convoy, so I am not satisfied that this was what he was discussing in his claims.
Since I do not accept that [the first named applicant] attended either of the two Bersih rallies identified in this protection visa application, and since it is only in regard to these two Bersih rallies that [the first named applicant] claims to have met with trouble from the police and state-sanctioned gangs, I do not accept that he suffered the mistreatment and threats he claims to have suffered. In coming to this conclusion, I have given some weight to the contradictions in [the first named applicant]’s evidence about having been detained by police on several occasions and his having merely been pulled aside (rather than being detained) on only one occasion. I find that [the first named applicant]’s claimed reasons for not going to the rallies in KL with his groups were inconsistent, although only somewhat so, but I have given these inconsistencies some cumulative weight in this matter.
I am not satisfied on the evidence before me that [the first named applicant]’s [shop] was attacked or ransacked. I am not satisfied on the evidence before me that the police or any gangs or anyone else has threatened [the applicant]’s life or liberty, as claimed. I give no weigh to the claim about “cars coming around” to the [family] home after [the first named applicant]’s departure.
However, I give no weight to seeming discrepancies regarding when [the first named applicant] and [the second named applicant] first discussed his or their leaving Malaysia for Australia, as it can be difficult for one person (let alone two, in total agreement) to recall accurately when the germ of an idea was first discussed in the context of contemporaneous dates and events.
On the evidence before me overall, I am not satisfied that [the first named applicant] faces a real chance of persecution in Malaysia in the reasonably foreseeable future in relation to the “political opinion” claims he has made about the PKR or Bersih or even broader opposition to the government of PM Najib or anything else. I am not satisfied that his claims about threats from the police and gangs are truthful claims. Additionally, I am not satisfied that he and [the second named applicant] face a real chance of persecution in Malaysia in the reasonably foreseeable future for any other reasons cited in s.5J(1)(a) of the Act.
I accept that [the first named applicant]’s and [the second named applicant]’s children have received some verbal taunting from other children at school about race and religion and have been verbally pressed on occasions to convert to Islam; however, on the evidence before me, I am not satisfied that this gives rise to a real chance of persecution of the children or their parents in Malaysia the reasonably foreseeable future.
For the reasons given above, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore they do not satisfy the criterion set out in s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that the applicants not meet the refugee criterion in s.36(2)(a), I have 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 applicants’ complementary protection claims rely on the same facts as their refugee claims. Those claims generally failed for lack of credibility and for not meeting the “real chance” test. In particular, the claims about the children being taunted to change their religion involve harm that does not rise to such a level as to merit regard as significant harm.
In view of my findings of fact above, the applicants’ 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 applicants will suffer significant harm.
Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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.
…

Read more at ChannelNewsAsia, 18 November 2016

[2017] AATA 2734

8 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies