1726077 (Refugee)

1726077 (Refugee) [2022] AATA 4745 (10 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1726077
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Nathan Goetz
DATE:10 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 February 2022 at 2:15pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – activism opposing drug peddling – Tamil Hindu – land appropriation – false criminal charges – credibility concerns – delay in seeking protection – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant identifies as [age]-year-old male citizen of Malaysia. He arrived in Australia [in] April 2017 on an Electronic Travel Authority (Class UD) (Subclass 601) visa that had been granted on 17 April 2017. That visa expired on 25 July 2017.
On 22 June 2017 the applicant applied for the Protection (XA 866) visa that is the subject of this review. The applicant was granted a Bridging Visa A on 3 July 2017 in connection with the protection visa application. The protection visa was refused by the delegate on 4 October 2017 on the basis that the applicant did not satisfy ss 36(2)(a), (aa), (b) or (c) of the Act. The applicant applied to the Tribunal to review the decision to refuse to grant the protection visa on 24 October 2017.
On 26 November 2019 a delegate commenced a cancellation of the applicant’s bridging visa on s 116 grounds. The visa was not cancelled on 31 May 2021.
On 30 April 2021 a delegate commenced a cancellation of the applicant’s bridging visa on s 501 grounds. On 25 May 2021 the applicant’s visa was cancelled and the applicant became an unlawful non-citizen. On 22 June 2021 the applicant commenced an application for revocation of the cancellation which has not been finalised. The applicant was placed into an immigration detention centre on 4 December 2021.
On 31 January 2022 the Tribunal wrote to the applicant under s 425(1) of the Act and invited him to appear at a Tribunal hearing commencing at 10:30am on 8 February 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because it was not able to make a decision favourable to the applicant on the material it had.
On 8 February 2022 the applicant appeared at the Tribunal hearing by telephone. The Tribunal was satisfied that a telephone hearing was appropriate as the applicant was in any immigration detention centre and there continues to be a high number of COVID-19 infections. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Tamil languages.
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 (Cth) (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 themselves 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.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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 applicant had requested that the Tribunal take oral evidence at the Tribunal hearing from [Mr A] and [Mr B] when he returned the completed ‘Response to hearing invitation’ form. The applicant also included their written statements dated 12 June 2021 and 11 June 2021 respectively. The applicant did not identify how the witnesses’ oral evidence related to the applicant’s protection claims or demonstrate how the applicant met the statutory requirements of s 36(2)(a), (aa), (b) or (c) of the Act. The Tribunal read the statements and they disclose no relevance to Australia’s protection claims. The Tribunal declined the request to take oral evidence from those witnesses for these reasons.
The applicant declared that he had not received assistance by any person to complete the protection visa application form. This was different to what the applicant told the Tribunal hearing. He said that the applicant was assisted in the protection visa application by a lawyer named ‘[Mr C]’ and attended that person’s office in [Suburb 1], New South Wales where the protection visa application form was completed. The applicant and ‘[Mr C]’ spoke in Tamil and completed the form. The applicant said his answers were read back to him. The applicant said he did not know why ‘[Mr C]’ did not declare in the protection visa application form that ‘[Mr C]’ had assisted the applicant.
He provided a Malaysian passport issued [in] 2013 and expiring [in] 2018. He provided what was described in the document index of his protection visa application form at Question 97 as ‘cases papers’ which appeared to be four photographs of documents. The photographs were not accompanied by an English translation by an accredited translator, and the Tribunal can give those documents no weight as the Tribunal does not know the contents of those documents. The form also indicated that ‘other documents will be produced at the time of interview’ but no further documents were provided to the department.
The applicant detailed that he was born in Perak, Malaysia and that he has no right to enter or reside in any other country. He identified as ‘Indian-Tamil’ and described his relationship status as ‘never married or in a de facto relationship.’ He did not claim to be a member of the family unit of a person who is a ‘refugee’ or a person who meets ‘complementary protection.’ He has [number] sisters and one brother. His brother resides in [Country 1] and his sisters reside in Malaysia.
He disclosed the following travel during the past 30 years:
·     5 May 2005 to 7 May 2005 he was in [Country 2]
·     14 September 2004 to 23 March 2006 he was in [Country 3]
·     23 January 2007 to 26 December 2007 he was in [Country 1]
·     28 April 2009 to 5 May 2009 he was in [Country 4]
At the Tribunal hearing the applicant said that he returned to Malaysia after that travel because in 2009 he did not have any issues. He said the ‘issues’ occurred in 2013, 2014 and 2015. The applicant confirmed at the Tribunal hearing that he had no issues prior to 2013. This was curious to the Tribunal given the applicant’s written statement, where he claimed that he was implicated in ‘false cases’ by police in 2008 and 2011.
The applicant declared one residential address where he lived in Malaysia. This address was [Address 1], Malaysia. He resided there from April 1985 (which are the month and year of his birth) until April 2017, which is the month and year he departed Malaysia for Australia. At the Tribunal hearing, the Tribunal noted that the applicant had declared that he lived at that one address for his whole time in Malaysia and asked why the applicant would remain living at that address if he had had problems in Malaysia. The applicant said that the address in the protection visa application form was his ‘last address’ in Malaysia. He said he stopped living at that address in August 2015 and went into hiding and had no known address after that time. He said that the address in the form was a rental address and he lived there by himself. The Tribunal noted that the applicant had declared that he lived at that address from April 1985 and queried how he could live by himself at a rental address from birth. The applicant said that he was living in a different district and could not explain why the person assisting him to complete the form would not detail his residential history.
The protection visa application form asked whether the applicant was making his own claims for protection (Question 87) and asked for the applicant’s reasons for claiming protection (Questions 89 to 96). The applicant indicated he was making his own protection claims so he did not have to return to Malaysia. The applicant directed the reader to refer to a written statement for his response to Questions 89 to 96.
The written statement raised that the applicant was a member of the Tamil Hindu minority. He wrote that he was a social activist and that he and a friend in his village formed a group to prevent peddling of drugs and other substances in their locality, which he noted consisted of about 500 Tamil Hindu houses. He noted that he strongly opposed the discrimination against Tamil Hindus by the government, which he described as corrupt. He wrote that his activities were not liked by the drug peddlers. The peddlers bribed police to initiative action against the applicant. He detailed that he was falsely implicated in an assault case in 2008 and a murder case in 2011. He wrote that he was discharged in both cases without trial and that police were unhappy with the court findings.
In 2015 the applicant was once again falsely implicated in multiple criminal cases along with a friend, whom he named. This happened while the applicant was a [Occupation 1]. The applicant and his friend were detailed on a charge of robbery and other offences and were remanded for investigation for 30 days from 20 June to 20 July 2015. He detailed solidary confinement in a police station, where he was beaten, tortured and coerced into confessing to the crimes. He was taken to a the Ipoh Perah Court where the judge ordered the applicant’s release on all cases because as no evidence was produced to the court.
The applicant wrote that after he was released, he went to Pahang to [work] but found out the police were collecting information to catch him once again. He shifted to a plantation in Perak where he worked for some time. While working on the farm, he came to know that he was being monitored by police with the intention to implicate the applicant in another false case to avenge his discharge on the earlier cases. He did not use his identification card in Perak for fear being caught by police as the police seemed to have intelligence about the applicant’s whereabouts. The applicant said that his friends, whom he named, were informed by the police in March 2017 that the police were going to ‘do an encounter death’ in relation to the applicant. The applicant fled Malaysia as soon as possible in April 2017.
After the applicant’s departure, a friend of his whom he named was killed by police in May 2017 in a stage-managed encounter. This friend belonged to the applicant’s neighbouring village. A higher police officer, whom the applicant named, sent the applicant a Whatsapp message informing the applicant that his friend had died and wrote words to the effect that the applicant was to ‘wait for his turn to be wrapped in a black plastic bag.’ The applicant did not provide a copy of the claimed Whatsapp message.
The applicant wrote that he did not seek help within Malaysia because it was the law enforcement agency that who was targeting the applicant. He tired to relocate within Malaysia to seek safety but wrote that police were able to trace him wherever he went, and he was not safe anywhere in Malaysia. The applicant wrote that he would be apprehended, imprisoned, tortured and possibly killed by the police either on their own initiative or at the request of the ‘ruling party.’ The applicant did not think the authorities in Malaysia would protect him if he returned to Malaysia as police perpetrate the violence against him, and he would not be able to relocate within Malaysia to a place where he would not be harmed as it was the Malaysian Government authorities who perpetrate the atrocities against him so no were is safe in that country.
The above ‘reasons for claiming protection’ were very different to the applicant’s oral evidence that was given to the Tribunal concerning those reasons. At the Tribunal hearing the applicant said that in Malaysia he was a farmer, and the authorities were trying to possess his lands because he was a Tamil. He claimed to live on the farming land. The authorities wanted to give the lands to Malays. The applicant said he opposed that and was arrested and detained and that after his release, police officers planned to shoot and kill the applicant. The land was taken by the police in July 2015 and after that time the applicant no longer lived on the farm. He first became aware that the police were going to take his land in April 2015.
Noting the applicant said he had ‘issues’ in 2013 and 2014, but had told the Tribunal that he first became aware that his property was going to be taken was in April 2015, the Tribunal asked the applicant to explain the trouble starting in 2013. The applicant said that the Malays started making problems and wanted lands that Tamils had. The Tribunal asked whether the applicant was taking about problems that he personally experienced in 2013 and 2014, or whether he was taking about general country conditions where there was a push by Malaysians to be given lands that were owned by Tamils. The applicant did not directly answer the question, but said it was not only the applicant who faced problems. It was a wider issue between the Tamils and Malays.
The applicant said he opposed his land being overtaken by police in April 2015 when police came to his farmland. He was told he had 24 hours to vacate the property. There was a verbal argument between the applicant and the police. The applicant was told by police that they planned to distribute his farmland to Malays on the basis of three acres each. The applicant said that in June 2015 police tried to put Malays on his property and in July 2015 he was arrested and spent one month in detention, during which time he was beaten and mistreated by police. He was arrested at his farmland. He was held in one location. He was charged with affray related to a brawl where a person was injured with a knife.
He told the Tribunal about the circumstances of his release. The applicant was taken to a court weekly during his detention. A lawyer secured his release after two weeks because a lawyer argued to the court that there was insufficient evidence. The applicant said that he was then charged with murder. He said he was given the murder charge while he was still detained. He was charged with the second charge so he could continue to be held in detention following the dismissal of the first charge. Again, after two weeks, a lawyer argued that there was insufficient evidence against the applicant, and he was released. The applicant said that he was released after 30 days.
After his release, the applicant went to see a doctor for his injuries. He said he never returned to his home. He stayed with a friend for a month and provided the residential address of [Address 2], Perak. The applicant said that after staying with the friend for one month, he went to a Malaysian state that was four hours away.
Noting that the applicant told the Tribunal that his farmland had been taken by the police in July 2015 and that he was detained for 30 days and that those proceedings had concluded, the Tribunal queried why authorities in Malaysia would still be interested in causing the applicant harm. The applicant said the authorities were shamed by the fact that the cases against him had been dismissed and that their plan did not work. They were embarrassed and started pursuing the applicant. The Tribunal asked the applicant whether the police ever found him after his release following the 30 days detention in July 2015. The applicant refused to say ‘no’ and instead repeated in various combinations that the police were searching for him to kill him, and that he was in hiding and they could not find him.
At the Tribunal hearing, the Tribunal raised with the applicant its concern that his claims may be manufactured given the inconsistency between his written claims and oral evidence. The Tribunal noted that he made no mention of the land acquisition in his written protection claims as the basis of his problems with the Malaysian authorities, and instead wrote that he had problems with the police for another reason. The applicant responded to the Tribunal’s concern that he was not proficient in English and did not know what was included on not included in his written protection claims.
The Tribunal also raised with the applicant its concern about the applicant claiming in his written protection visa application form that he was charged by police in 2008 and 2011. It was the dismissal of these charges, which the applicant said were laid by the police at the behest of drug peddlers because of his advocacy work against them, that caused the police to lodge charges against the applicant and detain him in 2015. The applicant made no mention of the charges in 2008 and 2011 at the Tribunal hearing, and specifically said he had no troubles until 2013. The inconsistency in the applicant’s written and oral evidence suggested to the Tribunal that the applicant’s claims had been fabricated. The applicant responded to the Tribunal’s concern saying that the charges he had in 2008 and 2011 were minor and that his real issue started in 2015. The Tribunal found this curious, as there is nothing ‘minor’ about a grievous bodily assault case or a murder case, which is how the applicant described the cases for which he was implicated in 2008 and 2011.

The Tribunal was also concerned about the delay in the applicant applying for the protection visa as this may demonstrate that the applicant lodged the protection visa not because he feared harm in Malaysia but because he wanted to remain in Australia for some other reason. The applicant entered Australia [in] April 2017 but did not lodge the protection visa application until almost two months later. Given the applicant came to Australia on a temporary visa which required him to depart Australia no later than three months after his arrival, the Tribunal found it curious that the applicant would not lodge a protection visa shortly after his arrival in April 2017 if his claims were true. The applicant told the Tribunal hearing that he came to Australia seeking refugee because his life was in danger in Malaysia. He said that he came to Australia with an expectation that that Australia would grant him protection, but later said that he did not know that Australia granted protection until after he arrived in Australia. The Tribunal asked how the applicant could expect that Australia would grant him protection if he was not aware that it did so. The applicant said that he met with a lawyer who told him that Australia offered protection when he was looking for a way to save his life.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a ‘refugee’ or a person who meets the requirements for ‘complementary protection’ or whether the applicant is a member of the same family unit as a person who is a ‘refugee’ or who meets the requirements of ‘complementary protection.’
Tribunal has concluded that the decision under review should be affirmed because the Tribunal is not satisfied that there is any truth to the applicant’s claims. The Tribunal is satisfied that the applicant’s protection claims were manufactured in their entirety and rejects them for the following reasons.
Country of reference
The Tribunal is satisfied that the applicant is a citizen of Malaysia and has no right to enter and reside in another country. The Tribunal is satisfied as to the applicant’s country of reference on the basis of the applicant’s Malaysian passport.
Delay applying for protection visa
First, the Tribunal is not persuaded by the applicant’s explanation about his reason for the timing of the protection visa application. The applicant’s initial oral evidence to the Tribunal was clearly suggestive that the applicant planned to remain in Australia permanently because it was his intention that Australia offer him protection. This claimed belief was inconsistent with the applicant’s claim that he did not know that Australia offered protection until after he arrived in Australia. The Tribunal is satisfied that the applicant later suggested in his oral evidence that he was unaware that Australia offered protection until after his arrival in Australia because he sought to provide reasons for the delay in applying for the protection visa. The Tribunal is not satisfied that if the applicant was aware that he could claim protection in Australia while he was in Malaysia as he appeared to suggest initially in his evidence, that he would delaying applying for a protection visa for approximately two months after his arrival in Australia. Even if the Tribunal were to be satisfied that the applicant was not aware while he was in Malaysia that he could claim protection in Australia, it is incredulous that the applicant would leave Malaysia for Australia because he feared harm in Malaysia and then wait approximately two months before he lodged a protection visa.
When the Tribunal assesses the other concerns it has about the applicant’s credibility in light of the applicant’s delay in applying for a protection visa, it comes to the conclusion that the delay is evidence that the applicant’s protection claims have been manufactured and that he lodged the protection visa for reasons other than Australia’s protection obligations.
Inconsistent evidence about the genesis of the antipathy of the Malaysian police towards the applicant
Second, the applicant gave fundamentally different evidence about why the Malaysian police were interested in harming the applicant. In his written statement, it was because the Malaysian police were bribed to file charges against the applicant because drug peddlers were angered by the applicant’s advocacy against the drug peddlers. This differed to the applicant’s oral evidence where he told the Tribunal the antipathy from the Malaysian police was due to his opposition to the acquisition of his farmland for distribution to Malays. The Tribunal does not accept that there would be such an inconsistency if either of these narratives were true, especially when the applicant claimed that he spoke to the person who claimed to have assisted him complete the form and that ‘[Mr C]’ spoke in Tamil and went through the questions with the applicant and read them back to him. The Tribunal also notes that the applicant made this claim despite the protection visa application form declaring no such assistance.
The Tribunal can infer a number of things from this inconsistency. One possibility is that the applicant did not use a person named ‘[Mr C]’ or anyone else to make the claims in his protection visa application form and wrote down the claims himself and, due to the passage of time, forgot the genesis of the antipathy, and made up the genesis at the Tribunal hearing. The Tribunal is not satisfied that if applicant would forget the genesis of the claim if there was any truth in it. Another possibility is that the applicant did detail his claims to ‘[Mr C]’ or someone else and those claims were repeated in the protection visa application form, but those claims were fabricated by the applicant and the reason he provided inconsistent oral evidence to the Tribunal was due to the time that had passed between the lodging of the protection visa application and the Tribunal hearing. Alternatively, the claims in the protection visa application form may have been generated my another person, feed to the applicant, and the applicant forgot the genesis of the antipathy when he came to the Tribunal to give oral evidence.
The Tribunal is unable to determine which of the above possibilities occurred in the context of the applicant lodging his protection visa application form, but it is unnecessary to do so because on any of these possibilities, they lead to the conclusion that the reason for the inconsistency is due to the fact that the claims were fabricated. Likewise, if the applicant’s claim that his farmland was forcibly taken because of he was identified as a Tamil Hindu, that claim would have been made plain in the protection visa application form. The Tribunal comes to the conclusion that the applicant’s claims related to his activism about drug peddlers or opposition to his farmland being forcibly taken were fabricated in order to be granted a protection visa. The Tribunal makes this finding when it also assesses the other concerns it has about the applicant’s credibility.
Inconsistent evidence about the ‘false cases’ against the applicant
Third, in the applicant’s oral evidence to the Tribunal were the only evidence he provided in support of his protection claims, it would appear that the applicant faced two charges only, namely those charges related to affray and, two weeks later, a murder charge. He was remanded in July 2015 in connection with the first charge. He said he had no issues prior to 2013. The police were looking for him because they were variously embarrassed and annoyed that the applicant had been discharged of those two charges by a court in 2015.
However, in the applicant’s written statement, he wrote that he had been charged with an assault with grievous harm in 2008 and a murder charge in 2011. The Tribunal is satisfied that the applicant either forgot that he had made those claims with the passage of time, or that he decided to not repeat those claims because he was attuned to the fact that the Tribunal would find it very odd that the applicant would return to Malaysia from [Country 4] in May 2009 if he had been falsely charged in 2008 as he claimed in his written material. The Tribunal is satisfied that this demonstrates that the applicant has a flexible approach to the truth and is prepared to say, or not say, whatever he thinks will assist him to be granted a visa to remain in Australia.
The Tribunal also notes that the applicant claimed to the Tribunal initially that he had no issues prior to 2013. The Tribunal struggles to accept being false implicated in 2008 and 2011 in criminal cases is consistent with a person having no issues in Malaysia. The Tribunal also notes that when the inconsistency was highlighted to the applicant, he responded by suggesting that the cases in 2008 and 2011 were minor. The Tribunal cannot accept that either of those cases, as described in the applicant’s written protection visa form as an assault with grievous harm and murder, could ever be characterised as minor. The Tribunal is satisfied that the applicant sought to suggest that these cases were minor in character to account for the fact that he had forgotten that he had claimed he faced those charges. The Tribunal does not accept that the applicant would forget about those cases if he had been implicated in those cases as he claimed, particularly when the applicant claimed in the protection visa application form that he was charged in 2015 because the police were unhappy with the earlier court findings where the applicant had been discharged without trial. The Tribunal is satisfied that the deficiencies in the applicant’s evidence is attributed to the fact that the applicant’s claims were manufactured.
Vague details about whether the applicant relocated within Malaysia to seek safety
The Tribunal also found the applicant’s evidence about his movements in Malaysia to be far from satisfactory. The Tribunal notes that the applicant did not provide his residential history in the protection visa application form, despite being directed to do so. If a person was to only read the applicant’s residential history as detailed in the form, it suggested that the applicant had one address in Perak for the entire time he was in Malaysia. The Tribunal acknowledges that the applicant wrote in his written statement that “after release (from the 30-day period of detention) I went to Pahang” and that the applicant wrote that “shifted to a plantation Perak” (after finding out the police were collecting information to catch the applicant) but those details were very broad and lacking in the specificity which would be reasonable to expect to accompany a person recounting their living arrangements in Malaysia.
If the applicant relocated as he appeared to claim following the acquisition of his farming property in July 2015 after he was released from detention, it is reasonable for the applicant to detail the specifics of where he lived in the almost two-year period between that time and his departure from Malaysia in April 2017.
The Tribunal is satisfied that there is a lack of specificity regarding the variously claimed places where the applicant lived in Malaysia because the applicant did not relocate within Malaysia to avoid harm. The Tribunal is satisfied that the applicant did not relocate within Malaysia to avoid harm because the Tribunal does not accept that the applicant’s farmland taken from him, or that he was targeted via false criminal cases as a result of his opposition to the acquisition or for any other reason.
The Tribunal makes this finding when it also assesses the other concerns it has about the applicant’s credibility.
CONCLUSION
Across both the written material and the applicant’s oral evidence, he has variously claimed that he faces a risk of harm in Malaysia because of his activism opposing drug peddling in his local region (through the police acting at the behest of the drug peddlers), that he is a part of a Tamil Hindu minority and that he opposes their discrimination by the government, that the government are corrupt, and that the police are targeting the applicant because he is a Tamil Hindu whose farmland has been identified for distribution to Malays.
The Tribunal does not accept that the applicant is a witness of truth for the reasons outlined in this decision.
Accordingly, the Tribunal does not accept that the applicant has experienced any of the past harm he has claimed, or that he is genuine when he claims that he will face harm upon his return to Malaysia.
The Tribunal is satisfied that the applicant fabricated his protection claims. There is no truth to the applicant’s claims and the Tribunal rejects them in their entirety.
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Malaysia due to his race, religion, nationality, membership of a particular social group or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Malaysia, there is a real risk the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit as a person who meets s 36(2)(a) or (aa) of the Act
There is no evidence, and the applicant has not claimed, that he is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2022] AATA 4745

10 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies