Background
Background to the litigation
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This, in turn, requires the Tribunal to assess whether the applicant’s claims are credible. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[6] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[7][6] MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220.[7] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 (Heerey J); and Kopalapillai v MIMA (1998) 86 FCR 547.Background The applicant told the Tribunal he is a citizen of Malaysia who was born into a family of Sunni Muslim faith. In the decade before he left Malaysia in 2017 and travelled to Australia, the applicant lived in an apartment ([Address 1]) in Malaysia with his mother, sister and brother. His father passed away in around 2007. At the time the applicant departed Malaysia, the applicant’s mother, sister and brother were also living at [Address 1]. His mother and sister now reside at a different address in Selangor, Malaysia; his brother is now deceased. He is still in contact with his family in Malaysia. He lives in share accommodation in Sydney. He is not currently working but while in Australia he has worked as a [Occupation 2] and in the construction industry. The Tribunal accepts this evidence. The applicant told the Tribunal that he completed high school in Malaysia in 2010. The Tribunal put to the applicant that in his written claims he stated he was expelled from school because of his religious beliefs. He gave evidence that what he had said to the Tribunal was true. The Tribunal accepts the applicant’s oral evidence that he has completed high school. The applicant did not maintain his claims that he was expelled from high school after the religious teacher complained to his parents that he did not follow their directions. The Tribunal finds the applicant completed high school and does not accept his written claims that he was expelled from school. The applicant told the Tribunal that after finishing school, he worked at [Employer 1] as well as in food delivery. The last job he had in Malaysia before he travelled to Australia was at [Employer 2]; he worked there for about three months. He stopped work at this store one or two weeks before he travelled to Australia. The applicant told the Tribunal that he had travelled to [Country 1] twice, once in around 2007 and once in 2016. The Tribunal put to him that his protection visa application states he travelled to [Country 1] for two weeks in 2017. The applicant could not recall whether he travelled to [Country 1] in 2016 or 2017. For the purpose of this decision, it is unnecessary to resolve whether the travel occurred in 2016 or 2017. The Tribunal accepts that the applicant has travelled to [Country 1] on two occasions, most recently in 2016 or 2017.
Evidence
Evidence Before The Court
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.[1]CONSIDERATION OF CLAIMS AND EVIDENCE [1] DFAT, Country Information Report: Malaysia, 29 June 2021.Evidence before the Department The applicant is a Malaysian citizen who was born in [year] in Kuala Lumpur, Malaysia. According to his protection visa application, he speaks, reads and writes Malay and English. He describes his religion as Islam and his occupation as [Occupation 1]. His parents were born in [Country 1] and are citizens of Malaysia. His two siblings are resident in Malaysia. He calls his mother every week. Between [year] and September 2017 he lived at the same apartment in Petaling Jaya Selangor in Malaysia. Between 2010 and 2017 he worked at a [Employer 1] as a [Occupation 1], in a warehouse and as a [Occupation 1] in ‘[Employer 2]’. He completed secondary school in 2010. The applicant arrived in Australia [in] October 2017 travelling on a valid Malaysian passport issued [in] 2017. He previously held a passport that was cancelled and returned. According to his protection visa application, between [date] April 2017 and [date] April 2017 he visited a relative in [Country 1]. In his protection visa application, the applicant made the following claims (‘the written claims’):(a)The applicant was born and educated in the city of Petaling Jaya, which is famous for teaching the Islamic religion to Muslim youths all over the world and runs under the Government’s strict direction. (b)Whatever differences there may be between UMNO[2] and PAS[3] both parties believe in a very conservative Islamic way of life and work for the strong Islamic state. [2] United Malays National Organisation (UNMNO) was the party of government until its defeat in 2018. [3] Pan-Malaysian Islamic Party.(c)The applicant’s family is a supporter of the PAS party, and he is also a supporter of the PAS party but ‘totally against the radicalisation of Muslim youths’. He never agreed that all non-Muslims are kafir. He spoke against them at PAS party meetings. (d)Malaysian youths do not enjoy freedom of speech compared with youth in other parts of the world. The applicant is a moderate. Conservative Muslim groups threatened to kill him. This is why he left Malaysia. If he returns to Malaysia ‘radical Muslim groups’ will kill, harm and mistreat him. (e)The applicant was ‘expelled’ from high school in 2010. The religious teacher complained to his parents that he did not follow directions and comply with dress codes. He was branded a rotten fruit in a basket, and he did not receive good marks in any subjects of the course. (f)In March 2012 he was working at [Employer 1] as a [Occupation 1] and a group of radical Muslim youths asked him to join their radical group and work for them. The group demanded a donation from him. When he declined, they beat him badly. (g)In July 2016 he was working in a warehouse and a group of radical Muslim youths asked him for a donation and to join his group. When he declined, they threatened and harassed him. (h)In February 2017 the applicant stated he was tackled and mistreated by a group of radical Muslim youths at his mother’s place of business, and he was told that if he did not join their group he would be killed. His mother was very scared and organised a ticket for him. (i)The applicant did not seek help within Malaysia because on the recommendation of Muslim clerics the authorities can arrest anybody. Anybody going against Sharia law is watched, arrested and questioned by the authorities. (j)The applicant wanted to complain against some of the extremist Muslim leaders who harassed him and wanted to harm him, but he did not do so because his mother always stopped him from taking action against radical leaders who targeted him. (k)To avoid any clash with the conservative radical Muslim leaders he changed his workplace and avoided making any arguments with them. (l)The applicant is against religious radicalism. One group of conservative radicals are after him. They were forcing him to join, and he refused to follow them and because of that he is scared. They can kill him and harass him and do whatever they like. (m)The applicant does not believe the Malaysian authorities will protect him. He claims that the authorities have started many programs to reduce the radicalism in Malaysia, but it has not stopped and is increasing day by day. He is young and these radicals target people like him. (n)Religious radicals are spread throughout the country. Using internet or mobiles they can find him anywhere and relocation is unreasonable.
Decision
Reasons for decision
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 any of the criteria in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Frances SimmonsMemberATTACHMENT – Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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.[1]CONSIDERATION OF CLAIMS AND EVIDENCE [1] DFAT, Country Information Report: Malaysia, 29 June 2021.Evidence before the Department The applicant is a Malaysian citizen who was born in [year] in Kuala Lumpur, Malaysia. According to his protection visa application, he speaks, reads and writes Malay and English. He describes his religion as Islam and his occupation as [Occupation 1]. His parents were born in [Country 1] and are citizens of Malaysia. His two siblings are resident in Malaysia. He calls his mother every week. Between [year] and September 2017 he lived at the same apartment in Petaling Jaya Selangor in Malaysia. Between 2010 and 2017 he worked at a [Employer 1] as a [Occupation 1], in a warehouse and as a [Occupation 1] in ‘[Employer 2]’. He completed secondary school in 2010. The applicant arrived in Australia [in] October 2017 travelling on a valid Malaysian passport issued [in] 2017. He previously held a passport that was cancelled and returned. According to his protection visa application, between [date] April 2017 and [date] April 2017 he visited a relative in [Country 1]. In his protection visa application, the applicant made the following claims (‘the written claims’):(a)The applicant was born and educated in the city of Petaling Jaya, which is famous for teaching the Islamic religion to Muslim youths all over the world and runs under the Government’s strict direction. (b)Whatever differences there may be between UMNO[2] and PAS[3] both parties believe in a very conservative Islamic way of life and work for the strong Islamic state. [2] United Malays National Organisation (UNMNO) was the party of government until its defeat in 2018. [3] Pan-Malaysian Islamic Party.(c)The applicant’s family is a supporter of the PAS party, and he is also a supporter of the PAS party but ‘totally against the radicalisation of Muslim youths’. He never agreed that all non-Muslims are kafir. He spoke against them at PAS party meetings. (d)Malaysian youths do not enjoy freedom of speech compared with youth in other parts of the world. The applicant is a moderate. Conservative Muslim groups threatened to kill him. This is why he left Malaysia. If he returns to Malaysia ‘radical Muslim groups’ will kill, harm and mistreat him. (e)The applicant was ‘expelled’ from high school in 2010. The religious teacher complained to his parents that he did not follow directions and comply with dress codes. He was branded a rotten fruit in a basket, and he did not receive good marks in any subjects of the course. (f)In March 2012 he was working at [Employer 1] as a [Occupation 1] and a group of radical Muslim youths asked him to join their radical group and work for them. The group demanded a donation from him. When he declined, they beat him badly. (g)In July 2016 he was working in a warehouse and a group of radical Muslim youths asked him for a donation and to join his group. When he declined, they threatened and harassed him. (h)In February 2017 the applicant stated he was tackled and mistreated by a group of radical Muslim youths at his mother’s place of business, and he was told that if he did not join their group he would be killed. His mother was very scared and organised a ticket for him. (i)The applicant did not seek help within Malaysia because on the recommendation of Muslim clerics the authorities can arrest anybody. Anybody going against Sharia law is watched, arrested and questioned by the authorities. (j)The applicant wanted to complain against some of the extremist Muslim leaders who harassed him and wanted to harm him, but he did not do so because his mother always stopped him from taking action against radical leaders who targeted him. (k)To avoid any clash with the conservative radical Muslim leaders he changed his workplace and avoided making any arguments with them. (l)The applicant is against religious radicalism. One group of conservative radicals are after him. They were forcing him to join, and he refused to follow them and because of that he is scared. They can kill him and harass him and do whatever they like. (m)The applicant does not believe the Malaysian authorities will protect him. He claims that the authorities have started many programs to reduce the radicalism in Malaysia, but it has not stopped and is increasing day by day. He is young and these radicals target people like him. (n)Religious radicals are spread throughout the country. Using internet or mobiles they can find him anywhere and relocation is unreasonable.