1828003 (Refugee)

[2024] AATA 3011

1828003 (Refugee) [2024] AATA 3011 (29 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1828003

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Frances Simmons

DATE:29 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 29 April 2024 at 6:10pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – non-practising Sunni Muslim – against religious radicalism – fear of harm by gangsters or radical Muslims – dob-in allegations – credibility concerns – lacking in consistency over time and meaningful detail – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 438, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [age]-year-old national of Malaysia. He arrived in Australia [in] October 2017 and applied for a protection visa on 2 January 2018. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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–5LA, which are extracted in the attachment to this decision.

7. 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

8. 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

9. 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.

10. 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].

11. 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.

12. In the list of evidence, the applicant states he cannot provide his membership card from the PAS party. He states that he ‘supported and participated’ in the party programs and demonstrations that were ‘organised to protest against the Government’s wrong policy’.

13. The delegate did not interview the applicant about his protection claims.

14. The delegate refused to grant the visa on the basis that the applicant was not owed protection obligations by Australia.

    Evidence before the Tribunal

15. On 31 January 2024, the Tribunal wrote to the applicant and invited him to complete a pre-hearing information form. The applicant was asked if he wanted to give any more information about his claims for protection and, if there were any other reasons why he feared returning to Malaysia. In the completed pre-hearing invitation form provided to the Tribunal on 4 February 2024 the applicant wrote ‘kill threat’. No further information was provided.

16. The applicant appeared before the Tribunal on 11 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant described his English language skills as ‘fine’, he can read and write in the English language. He confirmed that he can read, write and speak the Malay and English languages.

17. The applicant told the Tribunal that he had assistance completing his protection visa application. He thought the person who assisted him was a lawyer, but he had lost that person’s contact details. The applicant said he shared his story and the person who assisted with his protection visa application helped him write it down. He had read the protection claims in his protection visa application before he signed the application form. He told the Tribunal the information in his protection visa application was true and correct.

18. The Tribunal questioned the applicant about his experiences in Malaysia and his claims for protection. The Tribunal discussed with the applicant its concerns about the credibility of his claims to have faced harm in Malaysia in the past and his claims that he would be at risk of harm if he was to return to Malaysia now or in the reasonably foreseeable future. Where relevant the applicant’s evidence is considered below in the findings and reasons.

    Dob-in allegations

19. The Tribunal file contains a notice issued on 11 April 2019 notifying the Tribunal that s 438 of the Act applies to allegations concerning the applicant as the allegations were provided to an officer of the Department of Home Affairs in confidence. Documents or information may be subject to a non-disclosure notification pursuant to s 438(1)(b) if they were given to the Minister or an officer of the Department in circumstances imposing an obligation of confidence. Whether a document is impressed with the necessary quality of confidence required for s 438(1)(b) is a matter for the Tribunal to decide on its merits.[4] In this case, the Tribunal is satisfied that the allegations were made with the expectation that the material would be treated as confidential, that the anonymity of the source would be protected, and that the information given would not be made public or common knowledge.[5]

    [4] SZTYV v MIBP [2018] FCA 1076 (Steward J, 20 July 2018) at [42].

    [5] See SZTYV v MIBP [2018] FCA 1076 (Steward J, 20 July 2018) at [42].

20. At the hearing the Tribunal advised the applicant of the existence of the s 438(1)(b) notification and put to the applicant its view that the notification was valid. The Tribunal advised the applicant that it had decided to exercise its discretion to disclose the gist of the information covered by the s 438(1)(b) notification. Using the procedure under s 424AA of the Act the Tribunal invited the applicant to comment on or respond to the information, namely that the Tribunal has received allegations that the applicant is willing to provide false information to support his claims to be owed protection obligations by Australia. The Tribunal explained that this information was relevant to the review because if the Tribunal relied on this information, it would lead the Tribunal to conclude that he fabricated his claims to be at risk of harm. The Tribunal explained that, subject to his comments, this information would be the reason or part of the reason for affirming the decision under review. The applicant responded by stating his claims were truthful.

21. At the hearing the applicant confirmed his full name and that he had not been known by any other names. The Tribunal is not satisfied on the information before it that the allegations do, in fact, relate to the applicant. Furthermore, the Tribunal is not in a position to test the credibility of the dob-in allegations and therefore cannot be confident as to their veracity. Accordingly, the Tribunal therefore places no adverse weight on the dob-in allegations.

    FINDINGS AND REASONS

22. The issue in this case is whether the applicant is owed protection obligations by Australia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

23. The Tribunal is satisfied the applicant is a citizen of Malaysia. The applicant has submitted a copy of his Malaysian passport and his oral evidence is consistent with his claim to be a citizen of Malaysia. The Tribunal has assessed the applicant’s claims against Malaysia as his country of nationality and receiving country.

    Credibility assessment

24. 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

25. 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.

26. 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.

27. 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.

28. The applicant told the Tribunal he has never been involved in any political activity in Malaysia and that he is not, and never has been, a member of a political party. The Tribunal put to the applicant in his protection visa application he referred to being a member of the PAS – the Malaysian Islamic Party – and a supporter of the party, whereas he had told the Tribunal he was not a member of that party. In response, the applicant confirmed his earlier oral evidence that he was not involved in politics in Malaysia. The Tribunal accepts this evidence.

    Claims that the applicant has been harmed in Malaysia in the past

29. At the hearing the applicant was asked why he left Malaysia. He claimed he was ‘neither Sunni or Shia’, had debates about this matter and then ‘someone’ threatened and blackmailed him. When asked who threatened by one person or a group of people, he told the Tribunal he was threatened by a group, who he described as being ‘some sort of gangsters’ (the gangster group). He did not know the names of the members of this group. He gave evidence the last time he was threatened by the gangster group was when he worked at [Employer 1] he said he didn’t remember the date. He said he stopped working in [Employer 1] in early 2017. When asked for further details about the last time he was threatened in Malaysia, he said he was beaten after work at [Employer 1].  He did not report the incident to the police. Asked why he did not make a police report, he told the Tribunal the assailants were from a gangster group, and he did not want to involve the police.

1. The Tribunal was concerned that the applicant’s evidence at the hearing about the actions and motivations of the group that he claims assaulted and threatened him in Malaysia was confused, lacking in detail, and often bore little resemblance to his written claims.

2. First, key aspects of the applicant’s evidence to the Tribunal were inconsistent with the claims contained in his protection visa application. At an early stage in the hearing, the applicant gave evidence that he could read English and that the written claims in his protection visa application were true and correct. However, over the course of the hearing significant inconsistencies emerged between the applicant’s oral evidence to the Tribunal and the written claims that were submitted with his protection visa application. For example, in his written claims the applicant stated that he was working at [Employer 1] in 2012 when a group of ‘radical Muslim youths’ asked him to join their radical group and work for them and then, when he declined, they beat him badly. However, in oral evidence the applicant claimed the last year he was beaten by the group of gangsters was after work at [Employer 1] in around 2017. In response to the Tribunal’s concerns about the inconsistencies between his oral and written evidence, the applicant said he left [Employer 1] and then rejoined several times and that he had a weakness in remembering dates.

3. While the Tribunal recognises that it can be difficult to recall events that occurred many years ago, the Tribunal does not accept that the discrepancy between the applicant’s written claim and his evidence to the Tribunal can be explained by the applicant’s assertion that he ‘rejoined’ [Employer 1]. As discussed at the hearing, the applicant’s protection visa application stated he stopped working at [Employer 1] in 2013, and his written claims state he was assaulted at [Employer 1] in 2012. The Tribunal’s concerns are compounded by the fact that, while the applicant gave oral evidence to the Tribunal that the last time he was assaulted in Malaysia was after work at [Employer 1], according to his written claims he was mistreated a group of ‘radical Muslim youths’ in February 2017 at his mother’s place of business and told by them if he didn’t join their group he would be killed. However, as the Tribunal put to the applicant at the hearing he did not claim that he was threatened by radical muslim youths because he didn’t join their group. He also did not claim to have been assaulted at his mother’s place of business in 2017 or at any other time. Instead, he gave evidence to the Tribunal that his mother was a [Occupation 3] who did not have her own place of business. The applicant responded to the Tribunal’s concerns by confirming his mother did not have her own place of business.

4. Second, the Tribunal is concerned that the applicant’s account of why he was targeted for harm by a group of assailants in Malaysia has shifted over time. In contrast to the applicant’s written claims that he was targeted by ‘radical Muslim youths’ because he refused to donate to or join their radical group, the Tribunal found the applicant’s oral evidence about the identity and motivations of the group that he claims assaulted him to be vague and confused. When asked at the hearing to clarify why he believed he was targeted by this group, he said he was ‘not sure about that’ but probably they liked to bully him, but he was ‘not sure’ about their real intention. Asked whether he had any ideas about why he was targeted by the group, he referred to his earlier evidence about the ‘religion issue’. Asked why this group would care about his religious views, he said he was not sure about this but as far as he knew some of them were gangsters. Asked how the group knew about his religious views, the applicant indicated that it was ‘from friend to friend’. He then told the Tribunal that in Malaysia they hang around at night and drink coffee and this was how he got to know one member of the group although he did not know the person’s name.

5. Overall, the Tribunal considers the applicant’s oral evidence to the Tribunal did not support his written claims that he was targeted for harm in Malaysia because he refused to join or donate to a radical Muslim group and that he experienced difficulties in Malaysia because of his ‘moderate’ views about religion. According to his written claims the applicant is a ‘moderate’, who was a member of the PAS party but ‘totally against the radicalisation of Muslim youths’. However, the applicant’s evidence to the Tribunal was that he was never involved in political activity in Malaysia. The applicant told the Tribunal that his written claims that he was a member of PAS was incorrect; he has never been involved in political activity in Malaysia. As noted above, the applicant did not maintain his written claims that he was expelled from high school because he did not follow the religious instructions.

6. While the Tribunal is prepared to accept that the applicant is a non-practising Sunni Muslim but the Tribunal is drawn to the conclusion that the applicant has not experienced harm in Malaysia because of his religious beliefs or identity.  At the hearing, when asked how he would describe his religion, the applicant said he was not that strong in his religion. The Tribunal asked whether he would describe himself as a Sunni Muslim and the applicant said, ‘yes and no’. When asked to explain why he said, ‘yes and no’, he explained he said yes because he grew up as a Sunni Muslim and no because after he grew up, he had his own view about the religion, which was neither Sunni nor Shia. Later in the hearing, the applicant indicated it was fair to describe him as non-practising Sunni Muslim. When asked whether he had any difficulties in Malaysia because of his religious beliefs or religious identity, and he said no.

7. Third, the Tribunal was concerned that the applicant’s evidence to the Tribunal about his experiences of harm in Malaysia was less detailed than, and in important respects, inconsistent with, his written claims. At the hearing the applicant was asked whether he was harmed by the group of gangsters that he claimed beat and threatened him after work at [Employer 1] in 2017 on other occasions and he said yes. Asked on what other occasions the group had harmed him, he said when they met him. However, he did not refer to his written claims that he was targeted by this group at a warehouse in 2016 or at his mother’s place of business in 2017 or provide any other detail about when he claimed he was assaulted. The Tribunal put to the applicant that it was finding aspects of his evidence very vague and encouraged him to be as specific as possible in his evidence. However, the applicant’s responses often lacked any meaningful detail. For example, when asked on how many other occasions (other than the assault at [Employer 1]) he was physically assaulted by this group, he said he did not quite remember. When asked whether he was physically assaulted on more or less than five occasions, he said more than five. When asked how many people were in the group that targeted and threatened him, he said he was not sure how many members, as far as he knew there were five people, but he did not know how many people were in that group. Asked what threats the group made to him, he claimed that he had been beaten and the last time he was beaten one of the group members threatened to stab him. Asked whether he ever needed any medical treatment for any injuries he received, he indicated he did not.

8. Fourth, the Tribunal found the applicant’s evidence about his work and living arrangements immediately before he left Malaysia and travelled to Australia difficult to reconcile with his claims that he left Malaysia because he feared being killed or beaten. The applicant gave evidence that in the decade before he travelled to Australia he lived at the same address in Malaysia and, up until one or two weeks before he left Malaysia, he was working at a [store]. The Tribunal put to the applicant that the fact that he was able to continue living at the same address and working at the [same] store up until the time he travelled to Australia might lead the Tribunal to doubt that he left Malaysia because he feared being beaten, stabbed or killed. In response, the applicant reiterated he was afraid to return home because someone threatened to kill him. The Tribunal noted his evidence was that he had lived at the same address in Malaysia from [year] up until the time he travelled to Australia. The Tribunal asked why, if he was afraid of being harmed by the gangsters, he did not relocate to another part of Malaysia. He said that Malaysia was small and even if he moved to other places, they would be able to find him. The Tribunal put to him that Malaysia had a population of around 33 million people[8] and asked why he would not be able to relocate to another part of Malaysia and avoid the harm he feared from this group. The applicant said it would be better for him to avoid them rather than have something happen, but he did not offer any insight into why he believed the group would be able to find him wherever he went in Malaysia.

   [8] DFAT, Country Information Report: Malaysia, 29 June 2021,p.9.

9. Fifth, the applicant’s evidence was not otherwise credible by reason of corroborating documentation or persuasive detail. The applicant told the Tribunal that he did not report the assaults to the police as he did not want to involve the police in a matter involving gangsters. He did not require medical treatment for his injuries after being assaulted by the group. Having excluded the possibility that the applicant may have been able to provide a police report or medical evidence to corroborate his claims, the Tribunal has carefully considered the applicant’s oral and written testimony. Overall, the Tribunal found the applicant’s evidence about where and when he was assaulted and why he believed he was targeted to be lacking in both consistency over time and meaningful detail.

10. Finally, the applicant’s evidence about why he continues to fear harm in Malaysia was vague and, in important respects, was different from his written claims. The Tribunal put to him that he has been in Australia since 2017 and a long time had passed. The Tribunal asked why he was afraid that this group would target him if he returned to Malaysia now. The applicant said he was not sure about that, but he was afraid to return home so long as they were still there. While the applicant’s written claims suggest that he will face harm in Malaysia because he is ‘against religious radicalism’, as noted earlier his evidence to the Tribunal was that he was ‘not sure’ why the group targeted him. The Tribunal asked whether, other than the group of gangsters that threatened him, there was anyone else who the applicant feared might harm him in Malaysia. The applicant said no, he only feared harm from that group. The Tribunal asked whether, other than the problems he had with this group, there were any other reasons he had problems living in Malaysia. He said no. The Tribunal also asked whether, other than his fears this group would harm him if he returned to Malaysia, there were any other reasons he would face harm in Malaysia, and he said no.

11. In contrast to his written claims, in oral evidence the applicant did not claim that he would face serious harm or significant harm because of his religious beliefs, practices or because he was against religious radicalism. While the applicant’s protection visa application asserts that he was a member of the PAS party and ‘totally against the radicalisation of Muslim youths’ before the Tribunal the applicant gave evidence that he had never been involved in political activity in Malaysia and was not a member of any political party. When the Tribunal questioned the applicant about whether he had faced harm in Malaysia in the past because of his religious identity or beliefs, he responded no. When he was then asked whether he would face harm for reasons related to his religious beliefs or religious identity if he were to return to Malaysia he said no. In response to the Tribunal’s question, the applicant agreed it would be fair to describe him as a non-practising Muslim.

    Findings about claims of past harm

12. Given the Tribunal’s cumulative concerns about the credibility of the applicant’s evidence, the Tribunal is not satisfied that his claims to have experienced harm in Malaysia in the past are credible. The Tribunal does not accept that the applicant left Malaysia and travelled to Australia in response to threats that he would be killed, stabbed, or otherwise harmed. The Tribunal rejects, in their entirety, the applicant’s claims to have experienced harm in Malaysia in the past. Accordingly, the Tribunal does not accept that the applicant was ever beaten, harassed, threatened, or otherwise harmed or mistreated by a group of gangsters or a group of ‘radical Muslim youths’, ‘conservative radicals’ or any other group. The Tribunal does not accept that the applicant was assaulted after work at [Employer 1] or at his mother’s place of business or at any other location. The Tribunal does not accept that the applicant was beaten, threatened, blackmailed or otherwise harmed or mistreated by a group of gangsters or by a group of radical Muslims or by any other persons or groups.

13. The Tribunal does not accept that the applicant has experienced harm in Malaysia in the past related to his religious views or religious identity or for any other reason. The Tribunal accepts, based on the applicant’s oral evidence, that he is a non-practising Sunni Muslim. The Tribunal does not accept that the applicant has been targeted, harassed or otherwise mistreated by ‘radical Muslim youths or radical Muslim groups’ for any of the reasons claimed before the Tribunal or before the Department. The Tribunal does not accept that the applicant changed his workplace to avoid any clash with conservative radical Muslim leaders or that, while he was in Malaysia, he hid his views about religion to avoid being harmed or mistreated.

14. The applicant told the Tribunal that he has never been arrested or detained by the Malaysian authorities and that he had never had any difficulties with the Malaysian authorities for any reason. He said no. While the written claims that accompanied the applicant’s protection visa application suggest that the Malaysian authorities watch, arrest and question anyone going against Sharia law, the Tribunal finds, based on the applicant’s evidence at the hearing, that he has never been arrested or detained by the Malaysian authorities. The Tribunal finds that the applicant has not attracted the adverse interest of the Malaysian authorities and, at the time he left Malaysia, he was not of adverse interest to the authorities for any reason.

    Whether there is a real chance that the applicant will face serious harm or significant harm if he returns to Malaysia

15. The Tribunal has considered whether, having regard to its findings of fact about the applicant’s claims and his past experiences in Malaysia, there is a real chance that the applicant will face serious harm or significant harm if he returns to Malaysia now, or in the reasonably foreseeable future.

16. The Tribunal does not accept that the applicant is now, or was at the time he left Malaysia, of adverse interest to anyone in Malaysia. For the reasons given above, the Tribunal does not accept the applicant was ever harmed in Malaysia for reasons of his religion, youth or for any other reason. As noted above, the applicant’s evidence to the Tribunal was that other than his claims that he was beaten and threatened by a group of assailants, he did not have any problems living in Malaysia. Because the Tribunal does not accept that the applicant has been harmed in Malaysia in the past for any of the reasons claimed, the Tribunal does not accept that there is a real chance that he will be beaten, threatened or otherwise harmed by a group of gangsters, a group of radical Muslim youth or any other person or groups in Malaysia if he returns to Malaysia now, or in the reasonably foreseeable future.

17. The Tribunal has considered whether there is a real chance that the applicant will face serious harm for reasons related to his religious identity and expression. As noted above, the Tribunal accepts that the applicant is a non-practising Sunni Muslim. Having found the applicant has not experienced harm in Malaysia in the past for reasons related to his religion and having regard to what the Tribunal has accepted of his claims and profile, the Tribunal is not satisfied that, if the applicant were to return to Malaysia now, there is a real chance that he would face serious harm or significant harm for any reasons related to his religion.

18. The Tribunal has found that the applicant has never been a member of a political party in Malaysia or engaged in political activity and did not have any difficulties in Malaysia because of his religious beliefs and practices. The Tribunal does not accept the applicant expressed views about religious radicalism or that he was ever targeted for harm in Malaysia because of his religious identity or his views about religion. Looking forward and having regard to what it has accepted of his claims, the Tribunal does not accept that there is a real chance that the applicant will face serious harm or significant harm for reasons related to his political activity or his actual or imputed political opinion.

19. Having regard to its findings of fact and having considered all the evidence before it, the Tribunal finds that there is no real chance that the applicant will face serious harm or significant harm from a group of gangsters, or radical Muslim youth or the Malaysian authorities, or religious leaders or authorities, or any other person or group if he returns to Malaysia now or in the reasonably foreseeable future.

    Refugee assessment

20. The Tribunal has considered what it has accepted of the applicant’s claims singularly and cumulatively. The Tribunal is prepared to accept that the applicant is a non-practising Sunni Muslim. However, the Tribunal has also concluded that the applicant has not experienced harm in Malaysia in the past. In evidence to the Tribunal, the applicant did not identify any claims that he would face harm in the future because of his religious beliefs and practices. The Tribunal has found the applicant was not of adverse interest to anyone in Malaysia at the time he left Malaysia and travelled to Australia for any reason.

21. Having regard to all the evidence and its findings of fact, the Tribunal is not satisfied that there is a real chance the applicant would be of adverse interest to any person or group in Malaysia for reasons of his religion or political opinion or for any other reason set out in s 5J(1)(a) if he returned to Malaysia now or in the reasonably foreseeable future. The Tribunal finds that there is no real chance that the applicant will suffer serious harm for any reason set out in s 5J(1)(a) of the Act or for any other reason if he returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s 5H of the Act. Accordingly, he does not satisfy the criterion in s 36(2)(a) of the Act. The applicant is not a refugee.

    Complementary protection assessment

22. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the complementary protection criterion in s 36(2)(aa). In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[9] ‘Significant harm’ is exhaustively defined in s 36(2A) and s 5(1) of the Act, which are extracted in the attachment to this decision.

    [9] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

1. Having regard to its findings of fact, the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm as a necessary and foreseeable consequence of being removed from Australia and returned to Malaysia. For the reasons given above, the Tribunal has rejected the applicant’s claims that he left Malaysia because he was targeted, beaten and threatened or otherwise harmed by a group of assailants in the past. The Tribunal has also concluded that the applicant is not now, and was not in the past, of any adverse interest to the Malaysian authorities or to anyone else in Malaysia.

2. Having considered all the evidence before it and what it has accepted about the applicant’s claims and circumstances singularly and cumulatively, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk that he will suffer significant harm for any of the reasons claimed or for any other reason. Therefore, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under s 36(2)(aa).

   CONCLUSION

3. 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).

4. 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).

5. 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

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

   Frances Simmons
   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.

   …