1719471 (Refugee)

[2018] AATA 563

1719471 (Refugee) [2018] AATA 563 (27 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1719471

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:James Silva

DATE:27 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 February 2018 at 11:24am

CATCHWORDS

Refugee – Protection visa – Malaysia – Gang violence – Witness credibility – Evidence vague, changeable, and lacking detail

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 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

1. The applicant is a man [of approximate age] from Kelantan, Malaysia.

2. The applicant arrived in Australia [in] March 2017, as the holder of an [temporary] visa. He applied for a Protection (Class XA) visa [in] June 2017. [In] August 2017, the delegate of the Minister for Immigration and Border Protection (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

3. This is an application for review of that decision.

4. The applicant attended a Tribunal hearing held over two sessions, on 19 January 2018 and 23 January 2018.

5. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant claims to fear gang violence if he returns to Malaysia, after some young associates had an argument with a notorious Malaysian gang, during which he injured a gang members. He believes the rival gang is looking for him, and will harm him anywhere in Malaysia.

   Background

8. The applicant is a [man] from [Town 1, Kelantan State], in north-eastern Malaysia. He is a Malay Muslim, and his only language is Malay.

9. The applicant’s protection visa application contained few background details. He provided more information at the hearing, sometimes in a piecemeal way or not in chronological order. The Tribunal’s summary represents its attempt to give a brief overview.

10. The applicant lived in [Town 1] until at least March 2017. He told the Tribunal that he visited many other places in Malaysia and [travelled to] [Country 1].

11. The applicant attended school for about [number] years. He provided no details of employment in his protection visa application, but told the Tribunal that he worked in a [certain] factory in Selangor four about five years, until about 2014. (This is about [number] km [from Town 1]. As noted above, the applicant had previously stated that he had lived only in [Town 1].) The applicant claims that he then returned to his home area. He initially opened [Business 1]. That business did not do well, so he closed it after a year or so. He then set up [Business 2], drawing on his savings and his parents’ funds. This also closed after one year, following a robbery.

12. In 2016, the applicant declared himself bankrupt. His parents supported him from that time. He said that he during this period he used to help his parents [work].

13. The applicant’s parents continue to live in the village. His father is a labourer. The applicant is the oldest of [number] children.

14. The applicant holds a Malaysian passport issued in [month] 2017. He indicated on his protection visa application that he had a ‘holiday’ in [Country 1]) for two weeks. At hearing, the applicant said that the purpose of his travel to [Country 1] was to protection himself from the other mafia members. 

15. Although the applicant stated on his application form that he never held, or used, any other passport or travel document, his evidence about prior (frequent) travel to [Country 1] indicates that he in fact had held and used a previous passport. As noted above, he arrived in Australia [in] March 2017, and lodged his protection visa application [in] June 2017.

    Evidence

16. The evidence before the Tribunal includes the following relevant material: -

    §  The applicant’s protection visa application form, lodged [in] June 2017.

    §  Identity documents that the applicant provided to the Department: - partial photocopy (biodata page only) of current Malaysian passport; copy of Malaysian ID card; copy of Malaysian driver’s licence; and a copy of his Australian visa grant, showing that that it was approved [in] March 2017.

    §  The applicant’s protection claims are set out in brief handwritten comments on the application form.

    §  There was no protection visa interview (‘Department interview’) in this matter.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) [in] August 2017.

    §  Review application form lodged [in] August 2017.

17. The applicant appeared before the Tribunal on 19 January 2018 and 23 January 2018, to give evidence and present arguments. The Tribunal initially invited the applicant to appear at a hearing at its Sydney office, but at his request, rescheduled the hearing to be conducted via video link between its Sydney office and [location], where he now resides. The hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant is not represented in this matter, and did not present any witnesses.

    Receiving country

18. The applicant claims that he is a national of Malaysia. He provided his Malaysian passport; he speaks Malay; and he demonstrated his familiarity with that country. The Tribunal is satisfied that the applicant is a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing his claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicant’s claims and evidence

19. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The applicant did not appear to have strong presentational skills, and the Tribunal has taken this into account in assessing his oral evidence. Even so, it found much of his evidence to be vague, changeable, and lacking the kind of detail that he would know or have enquired about, if he was drawing on personal experience. This raises significant doubts about the entirety of his claims and evidence. The Tribunal’s detailed assessment follows.

    Gang membership

20. The applicant’s brief summary of his protection claims refers only to his membership of a ‘mafia [group]’, without further insight.

21. At the two hearing sessions, the applicant told the Tribunal that he belongs to a ‘mafia group’ called ‘[Gang 1], some men who help each other. The Tribunal had great difficulty eliciting any further details about the group, its rules and any symbols, its composition and its activities, as the applicant’s responses to its questions were brief, repetitive and mostly uninformative. The following points emerged:

    §   The applicant said that [Gang 1] has a presence in his home area of [Town 1], and other localities in Kelantan. It is an informal group of young men who help each other. The group invites members by word of mouth, and its members are of various ethnicities.

    §   The group has a leader named [Mr A][1]. [Mr A] had invited him to be the local leader, because of his character – he had noticed that the applicant was not a trouble-maker. The applicant said that his role was to ‘look after’ the young member. He suggested that he had some kind of role as mentor or group leader. Asked for details of the [number] men in his group, the applicant initially replied that does not know their ages or activities. In later evidence, however, he said that they were in their twenties and thirties; some were labourers or businessmen, he thought. He added that he only took over the function from [Mr A] around 2016. Throughout, the applicant’s evidence was uncertain and open to suggestion.

    -   The applicant said that group members help each other, for instance, if they are having difficulty in business. Pressed for any example, he said that, if someone were to rob his shop, gang members would try to find out what had happened and then approach the culprits to get them to pay compensation (rather than go to the police). The Tribunal queried if that is what happened when his [Business 2] was robbed in 2016; the applicant replied that was not the case.

    -   The applicant said that, if there was a major problem, he would refer it to [Mr A].

    §  The applicant said that, since leaving Malaysia, he has lost contact with [Mr A] and with the members of his group. He said that he does not feel able to stay in touch with them, as he fears that members of the other gang would discover his whereabouts.

    §  The applicant said, in response to the Tribunal’s questions, that the ‘gang’ or group was secretive, in the sense that they were there to help each other informally, without government involvement. The Tribunal put to him that terms such as ‘gang’ or ‘mafia’ often imply groups that have a strong group identity; that they are engaged in illegal activities; that they have particular rules or obligations placed on members; and/or that may ‘protect’ members by menacing or threatening people outside the gang. The applicant said that none of those things applied to his group.

    [1] The applicant pronounced the name ‘[Mr A]’, but did not provide it in written form. According to the interpreter, the applicant also used an archaic Malaysian word for ‘father’, in apparent reference to [Mr A]. It emerged during the course of the discussion that he was not referring to his biological father, but rather a kind of ‘leader’.

22. The Tribunal found the applicant’s evidence very vague and uncertain. The Tribunal considers it possible that the applicant was drawing on some experiences with a local group of friends who regard themselves as a kind of ‘gang’. The Tribunal does not accept that the applicant had any formal or informal role as the ‘leader’ of such a gang, or that he deputised for a local leader ([Mr A]). The Tribunal bases this conclusion particularly on the applicant’s vague evidence about the group’s members and their profiles, and their activities.

    Problems from a rival gang

23. The applicant wrote in his protection visa application that there was a fight between his mafia gang and another gang; that they threatened him; that they are still looking for him; and that he is consequently in danger. He also wrote that he only sought help from members of his own gang (not the police). He claimed that police protection would not be available, because the mafia is illegal.

24. At hearing, the applicant claimed to fear harm from the rival gang, but the back-story emerged only during the course of the discussion, in a piecemeal manner.

    §   The applicant said that, to his knowledge, there had been conversation between members of his ‘gang’, and members of [Gang 2]. The applicant did not know what the discussion was about, only that it led to a misunderstanding and conflict.

    §   The applicant was drawn into this problem because he is the ‘leader’ of his gang. He met up with [Gang 2] members in order to try to find out what the problem was, and resolve it. They failed to do so. Instead, fighting broke out.

    §   The applicant fears harm from members of [Gang 2], as they were unable to reach agreement with his gang members. They will target him because he is the leader.

    -   Towards the end of the hearing, the Tribunal signalled its puzzlement at why [Gang 2] or others would continue to be motivated to pursue him throughout Malaysia (especially given the small size of his ‘gang’, his lack of contact with any of the parties now, and the passage of time).

    -   The applicant then added that he physically fought with them and [seriously injured] one of their members. He suffered [an injury] in the clash. Asked whether he has evidence of his injuries, the applicant replied that he has some evidence back home in his village.

25. The Tribunal asked the applicant if he had any information about his alleged persecutors, ‘[Gang 2]’, and whether he thought that there was a parallel between his group and [Gang 2]. It drew on [country information][2]. This described [Gang 2], one of Malaysia’s largest gangs, in the following terms: ‘Number of members: [number]. Formed [number] years ago, majority of the gang members are Malays with businesses in [certain] sector. The group is active in Peninsular Malaysia’. The applicant said that he was not sure whether [Gang 2] is like his own group, or different.

    [2] [source deleted]

26. The applicant said that [Gang 2] members are now looking for him. In response to the Tribunal’s questions, he acknowledged that he met them only briefly, has minimal information about them, and no contact with either them or his own group. However, he said that he is at risk because he [seriously injured] one of their members’ [body parts] during a fight. He believes that they can look for, and find him, anywhere in Malaysia, because it is a small country.

27. The Tribunal has significant concerns about this claim.

    §   First, it does not accept that the applicant was the ‘leader’ of a gang. This raises broad questions about the reliability of his claims as a whole. Furthermore, it leads the Tribunal to also doubt that his group of friends had any dealings with the well-known [Gang 2] gang, or any other criminal group.

    §   Second, the Tribunal found the applicant’s evidence to be uncertain and vague. For instance, his lack of knowledge (or enquiry) about his group members’ ‘misunderstanding’ with [Gang 2] members makes it difficult to believe that he actually approached them to try and sort out the problem. Similarly, the applicant’s apparent failure to find out more about [Gang 2] – his alleged pursuers – adds to doubts that he fears harm from them.

    §   Finally, although the applicant referred in his brief written claims to a ‘fight’ between him and the rival gang, the Tribunal formed the impression that he was adding to his oral evidence in an ad hoc way, and exaggerating and misrepresenting tensions between local men, to bolster his protection claims.

28. The applicant said that he obtained his passport in late 2016, briefly went to [Country 1] and, on realising that it was not a safe option, came to Australia. In response to the Tribunal’s questions as to whether he explored other options in Malaysia, he said that after his trip to [Country 1] he went to Pataling Jaya (near Kuala Lumpur) for two or three days. He agreed with the Tribunal’s observation that that brief visit could be consistent with his making plans to depart Malaysia for Australia, rather than seeking a safe place to live in Malaysia.

29. The applicant said that, to his knowledge, [Mr A] is now in charge of his gang. However, he has no contact with or current knowledge about [Mr A] or the gang members. The Tribunal got no sense that the applicant was genuinely engaged in or curious about these matters.

30. The Tribunal discussed with the applicant his future conduct if he returns to Malaysia. He stressed that he is scared for his safety if he returns, as [Gang 2] can find him anywhere. The applicant said that he was also worried that [Gang 2] members might harm his family. In response to the Tribunal’s questions, he said that they have not done this so far, but he was still worried.

    Closure of the applicant’s [Business 2]

31. The applicant told the Tribunal that his [Business 2] closed in about mid-2016, following a robbery. Thieves ransacked it, and took all the valuable items. The applicant said that he did not have any photographic or other evidence to support this. He did not go to the police, because he had no evidence. There was also no insurance. As noted above, after this he claims to have been declared bankrupt, and to have occasionally helped his parents [work].

32. The applicant did not expressly claim, and there is nothing in his written or oral evidence, to establish a link between any such robbery, and the applicant’s claimed links with gang violence. Although he initially implied that his friends ‘helped’ in this kind of situation (in putting pressure on people to pay compensation where they have been involved in a robbery), he quickly added that that is not what happened in his case. Rather, he implied that his involvement with the gang, and the subsequent problems, began after the [Business 2] closure, and for unrelated reasons.

    Summary of findings

33. The Tribunal does not accept that the applicant is the leader of a local gang of [number] young men, or that he deputises for any local gang leader. The Tribunal accepts that the applicant may have based some of his protection claims on observations or direct experiences of tensions between young men in [Town 1]. However, it does not accept that the applicant ‘looks after’ or is perceived to be the leader of any such group; that the group had a ‘misunderstanding’ with members of the well-known [Gang 2], or any other group; that the applicant was responsible for trying to resolve the dispute; or that, in the course of meeting the other gang, a fight broke out in which the applicant [seriously injured] a rival, and suffered [an injury] himself.

34. The Tribunal does not accept that [Gang 2] members, or any other gang-like groups, are looking for the applicant – whether as ‘leader’ of his group, or because he injured one or more of their members in a fight. It does not accept that he is afraid for his safety, in [Town 1] or elsewhere in Malaysia. It also does not accept that he is fearful for his family’s safety. The Tribunal does not accept that the applicant went into ‘hiding’ anywhere in Malaysia, or that he needed police protection but was unable to access it because of his group’s illegal profile or activities.

35. The Tribunal accepts that the applicant has had an unsettled employment record; that his small local businesses failed; that he was robbed in mid-2016; and that he declared himself bankrupt. He has not claimed that any of these factors are linked with his protection claims, and the Tribunal finds that they are indeed unrelated.

36. The Tribunal finds that the applicant left Malaysia for reasons unrelated to his protection claims.

    ASSESSMENT: REFUGEE CRITERION

37. The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to any other relevant factors, there is a real chance of the applicant experiencing serious harm amounting to persecution for any reason enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Malaysia.

38. The Tribunal has found above that the applicant was not a ‘leader’ of a gang or other group; did not fight with another gang (including the well-known [Gang 2]); and did not depart Malaysia fearing retaliation after such a fight, or fearing serious harm amounting to persecution for any other reason. Since arriving in Australia, the applicant has had no further contact with any individuals in such ‘groups’, and there have been no further developments of note. The Tribunal finds that there is no real chance of the applicant suffering serious harm amounting to persecution if he returns to his home area of [Town 1], from [Gang 2] members or anyone else. (In these circumstances, it is unnecessary for the Tribunal to assess whether the essential and significant reason(s) for the feared harm is one or more of the five grounds set out in s.5J(1) of the Act.)  

39. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Malaysia.

1. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   ASSESSMENT: COMPLEMENTARY PROTECTION

2. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.

3. The Tribunal takes into account the above findings of fact, and its view that the applicant does not genuinely fear serious or significant harm from [Gang 2] members or others. While general country information indicates that gang activity is a concern in Malaysia, the applicant’s personal circumstances indicate that he was not involved in organised criminal activity at that level, and that he is not at risk of being targeted by a rival criminal gang. 

4. The Tribunal concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of their life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Malaysia.    

5. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm: s.36(2)(aa).

   CONCLUSION

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

7. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

8. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

9. The Tribunal affirms the decision not to grant the applicant a protection visa.

   James Silva
   Member

   
   

   ATTACHMENT A – RELEVANT LAW

   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.