1828449 (Refugee)

[2023] AATA 4678

1828449 (Refugee) [2023] AATA 4678 (11 December 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  

CASE NUMBER:  1828449

MEMBER:Peter Vlahos

DATE OF DECISION:  11 December 2023

DATE CORRIGENDUM

SIGNED:27 February 2024

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1.    That paragraph 15 of the Decision Record, should read as follows:

“15.     The Tribunal finds, on the evidence before it, that the applicant does not have a right       to enter or to reside in a country other than Malaysia. Therefore, the Tribunal      concludes and finds that section 36(3) of the Act does not apply to the applicant.”

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1828449

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Peter Vlahos

DATE:11 December 2023

PLACE OF DECISION:  Melbourne

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

This Statement was made on 11^th December 2023 at 8.00AM

CATCHWORDS
REFUGEE – protection visa – Malaysia – original claim on ground of political opinion abandonded at hearing – new claims on grounds of employment and financial hardship – low-ranking policeman denied promotion because of lack of personal connections and corruption – unable to find other employment – application prepared by third person without applicant’s knowledge of details – applied soon before temporary visa due to expire – no supporting statements – work and study – now married with two young adult step-children – lack of promotion not for refugee criteria reason – country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 7 February 2018. The delegate refused to grant the visa on the basis that it did not satisfy sub-section 36(2) of the Act.

3. The applicant appeared before the Tribunal on 1 November 2023 to give evidence and present arguments.  

4. The applicant did not provide any third party witness statements or informed the Tribunal that he had witnesses available for the hearing to be questioned by the Tribunal

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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

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

    Country of Nationality and Identity

13. There is no evidence before the Tribunal that any of the documents provided to the Tribunal is a bogus document as defined in section 5(1) of the Act.

14. Further, based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and the Tribunal on file, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Federation of Malaysia and has had his claims assessed against that country in relation to section 36(2)(a) and section 36(2)(aa) of the Act and on the basis of this evidence (currently, before the Tribunal), the Tribunal accepts and finds that the applicant’s identity as is claimed for the purposes of this decision.

    Protection available in another country assessed

15. The Tribunal finds, on the evidence before it, that the applicant does not have a right to enter or to reside in a country other than China. Therefore, the Tribunal concludes and finds that section 36(3) of the Act does not apply to the applicant.

    Department File accessed by the Tribunal

16. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s decision to the Tribunal with her application to review.

    Background – the Applicant’s migration and visa history

17. EVIDENCE AT THE SCHEDULED HEARING

    Background – the Applicant

18. The applicant was born on [Date], and is [Age]-years-of-age, in Melaka, Melaka Province, Malaysia. He speaks, writes, and understands ‘English’ and ‘Malay’ but conversed with the Tribunal at the hearing with the assistance of an interpreter. He declared his member of ‘Sunni’ or ‘Shi’a branches of the Islam. The applicant was a [Rank 1] in the Malaysian Police (RMP) but left the police force in [Year] and declared in his Application form (for Protection) as being “unemployed”. The applicant has parents living in Malaysia and [siblings]. The applicant completed his education to the [Year] level.

    The Applicant’s claims for Protection as submitted to the Department[1]

    [1] see, Department of Home Affairs File no. [number]_ Application Form_

19. The applicant’s claims for Protection as submitted to the Department are summarised as follows:

    ·The Applicant claims he is a member of Bersih, a political group whose objective is for Malaysia to have a ‘clean and fair’ election.

    ·The applicant left Malaysia because the government is looking for all members of Bersih. Many members have been imprisoned. The media has hidden the sensitive issue.

    ·The applicant did not experience harm in Malaysia.

    ·If the applicant returns to Malaysia, he will be caught by the police and imprisoned for his involvement with Bersih.

20. At the hearing, the applicant abandoned his original claims (in paragraph [19] above) and provided the Tribunal with a different set of claims which were set out in his ‘unsigned’ and ‘undated’ statutory declaration. In his statutory declaration the applicant stated the following as his new claims:

    “1.      In 2017, before moving to Australia, I served as a [Rank 2] in the police force in                   [Malaysia]. My career   lasted for nearly [Number] years. Despite my dedication and hard work, I did not   receive any promotions or advancement in rank. I found it incredibly   challenging to make progress in my career, regardless of my efforts and   commitment to the job.

    “2.      It seemed as though individuals with personal connections were given priority                 and found it much easier to climb the ranks. From my personal experience, I   observed that the Malaysian Police Force was damaged with corruption, influenced                    heavily by bribery and connections.

    “3.      After serving [Number]-years and witnessing these injustices, I found myself still   struggling financially. The financial strain, linked with the frustration of working in a                 corrupt           system, led me to make a significant decision. I chose to leave my position                as a [Rank 2] police officer and seek employment opportunities elsewhere.                  However, this proved to be a hard task as the economy was in a poor state,                 making job searching an even more challenging effort.

    “4.      After months of facing challenges and feeling stuck in my situation, I decided to                  take a bold step and go to [Country] in search of job opportunities. I had heard   from various sources that the pay in [Country] was relatively good, and this   motivated me to make the big decision to leave my home country and work   abroad….

    “7.      After enduring months of these challenges …[difficulties with language in [Country]], I                made decision to return to Malaysia.

    “8.      Upon returning to Malaysia, I dedicated the next few months to finding job,   hoping to find stable employment in my home country. However, much like my                  previous experience, the job market proved to be highly competitive and   challenging. Despite my best efforts, securing a job that met my needs and   expectations was difficult.

    During My time in Australia

    “9.      During this time, I came across information about Australia, similar to how I had                  learned about job opportunities in [Country]. I heard promising stories about the   employment prospects and the quality of life in Australia. Given the financial   strain I was experiencing at the moment, I felt compelled to consider this option             seriously.

    “10.     With limited choices and a pressing need for a stable income, I decided to take                 the shot. I began organising and planning my move to Australia, hopefully that             this new chapter would bring about positive change and better opportunities for   employment. It was a substantial decision.

    “11.     Upon my arrival in Australia, I quickly noticed the various positive aspects that                 the country had to offer, ranging from its lifestyle to various other aspect[s] of           daily life. The overall quality of life seemed significantly better compared to my              previous experiences. However, after three months of living and exploring Australia,           my visa was nearing its expiration date, I need to return to Malaysia….

    “13.     In my search for assistance, I encountered an individual who claimed to have the   expertise to help me with my application. Trusting his guidance, I proceeded with the                 process, despite not understanding the details of the application, including the                   fact that it was a protection visa. I was unaware of the reasons stated in the                 application; all I knew was that I needed to pay for his services.

    “14.     It was only later, after the visa was granted, that someone else took the time to                explain the description and implications of a protection visa to me.

    “15.     Every single detail and statement provided in the application was entirely false                and did not reflect to my true intention of coming to Australia….

    [the ‘bold’ is the Tribunal’s used to emphasis the applicant’s explanatory points concerning his actual       situation and circumstances]

21. The Tribunal questioned the applicant concerning his original claims (as were submitted to the Department) and applicant confirmed for the Tribunal that those claims were not in anyway related to his personal circumstances. The applicant confirmed that he had not left Malaysia because of being involved in politics or a particular political group (Bersih) or that the Malaysia government considered him a ‘person of interest’ because of any political activities he had been involved in while in Malaysia. The applicant told the Tribunal that, what was included in his application for Protection was the work of a ‘third person’, who he paid but was not provided with an explanation of what was written. The applicant said that the third person told him to just submit the application and that once submitted to the Department, he would be permitted to work in Australia. The Tribunal accepts the applicant’s admission. The Tribunal also accepts the applicant’s ‘unsigned’ and ‘undated’ statutory declaration submitted to the Tribunal at the hearing and its contents as the primary and actual claims of the applicant wishes the Tribunal to consider as the basis of this review. It is noted that in paragraph [20]above, the Tribunal has incorporated a number of paragraphs which appear in the applicant’s statutory declaration and the Tribunal will consider and determine the information in those paragraphs as the applicant’s actual and substantial claims. The applicant also (through the interpreter) informed the Tribunal that what was in his statutory declaration was the basis of his claims he wished the Tribunal to question him on and to determine. The Tribunal accepted the applicant’s statutory declaration as submitted to form the basis of the Tribunal’s review and the applicant’s explanation concerning his original application and original claims.

    (a)The applicant’s circumstances in Malaysia prior to his departure

22. The applicant said that he joined the Royal Malaysian Police in [Month, Year] and remained a member of that organisation for [Number] years.

23. The applicant said that when he joined the Police force, he had high expectations for himself but overtime those high expectation diminished.

24. The Tribunal asked the applicant to explain – why his high expectations diminished as far as it concerned his work as a police officer. The applicant told the Tribunal that his ‘superiors’ ‘did not recognise my work’ ‘my service and dedication’. The applicant said that he ‘worked for [Number] years but saw nothing’ with regards to his career prospects within the Police.

25. The Tribunal asked the applicant – were there any reasons he could tell the Tribunal which may have contributed in not allowing him to gain the promotion or advancement he wished for? The applicant said that ‘politics’ was not a factor in his lack of promotion. The applicant said there were other factor involved for example, ‘the pay was very low’ and for a period of time, the applicant was not paid ‘a salary for six(6) months’.

26. The Tribunal asked the applicant – was the reason or reasons for his lack of promotion in the Police due to ‘race, religion, nationality or being a member of a particular social group’ The applicant did ‘not think’ that was the case in his situation.

27. According to the applicant, he believed that the absence of promotion prospects was due to the fact that ‘his parents were not members of the Royal Malaysian Police’. The applicant went on to explain that, ‘at interviews [he noticed] that certain persons were called in who had fathers and mothers (former and current) members of the Police force’ and ‘others’ like the applicant (who had no family or relatives in the RMP) were left to wait or not considered for any promotion.

28. The applicant said that police officers were ‘treated differently’.

29. The applicant also made the comment that the Police in Malaysia had issues of corruption within its recruitment processes.

    (b) The applicant resigns from the RMP and goes to [Country] for employment and after

30. After, facing no prospects of promotion or better pay, the applicant left the Malaysia Police and decided to go to [Country] to search for better employment.

31. The applicant said that he stayed in [Country] for three months and tried to find employment but was unable to find any suitable employment  because he had an issue with the language.

32. After exploring for work in [Country], the applicant returned to Malaysia. While in Malaysia, the applicant searched for work, but the state of the economy was not good and after some months having passed by the applicant said that he decided to leave Malaysia for Australia.

33. The applicant was granted a Tourist visa (in 2017) and departed Malaysia for Australia. The applicant told the Tribunal that he was attracted to Australia from the information he had read concerning the employment and pay conditions in Australia and the offer of better style of living. Also, the applicant believed that by finding ‘good’ work in Australia, he would be able to service his financial commitments in Malaysia; for example, pay for his existing and on-going debts and living expenses.

34. The applicant told the Tribunal that he has not considered returning to Malaysia since his arrival in Australia. The applicant said that while in Australia, he has been working at various jobs which included – work on rural properties (in the beginning), later in a factory and currently working at a local [Workplace] as a ‘[Occupation]’. The applicant is also currently enrolled in [Subject] course at a local college (name provided) in [Suburb] and is expected to complete his tuition in 6-months.

35. The applicant also told the Tribunal that while in Australia, he has married and as part of that marital relationship, he has gained the added responsibility for two children (his wife’s from a previous marriage) aged [Ages]-years. The applicant and his family live together and care for each other as one would expect from a family unit.

    No issues in Malaysia preventing the Applicant’s return if necessary

36. The applicant was asked by the Tribunal – are there any issues in Malaysia, which prevent you from returning to Malaysia? The applicant answered, “no issues in Malaysia”.

1. At this stage of the proceedings the Tribunal discussed and made aware to the applicant the operation of the Protection visa application process and it proper use.

2. The Tribunal (through the interpreter) explained the operation and purposes of sections 5J(1) and 36(2)(a) and (aa) of Act and explained to the applicant the possible circumstances the Tribunal (after considering the evidence) and determining the applicant’s credibility in responding to the Tribunal’s questions concerning – the claims made, and submissions presented – how and what the Tribunal was obligated to do by operation of the Law.

3. The applicant (through the interpreter) indicated that the he understood his present circumstances.

4. The applicant asked the applicant about his visa options. The Tribunal explained that it was not in position nor permitted by LAW to provide advice to the applicant but recommended that the applicant settle his present circumstances when the Tribunal had delivered its reasons for decision and then, he should consult a proper migration legal practitioner concerning his wish to migrate to Australia in the near future.

5. The applicant understood the Tribunal’s comments.

   COUNTRY INFORMATION_ MALAYSIA_ THE ECONOMY AND ECONOMIC CIRCUMSTANCES

   The country information relevant to the applicant’s new claims is to be found in DFAT Country Information Report – Malaysia, June 2021 and is as follows:

   ECONOMIC OVERVIEW

   2.9      The World Bank classifies Malaysia as an upper middle-income, export-oriented   economy. In 2019 its real GDP growth was 4.3 per cent, while per capita GDP was                  USD11,418 (approx. AUD 15,000). Malaysia has transformed since independence              from a commodity-based economy, focused predominantly on producing rubber and           tin, to a leading producer of electronic parts and electrical products, oil and natural   gas, and a variety of other manufactured products. Malaysia is the world’s second           largest producer and exporter of palm oil. Manufactured goods comprised 86.5 per                   cent of Malaysia’s exports in 2020. Malaysia is the Association of South East Asian              Nations’ (ASEAN’s) largest energy exporter and income from oil and gas provides the                   government’s largest single revenue source.

   2.10      According to the World Bank, following the Asian financial crisis of 1997-98,   Malaysia’s economy was on an upward path (until COVID-19), averaging growth of                  5.4 per cent from 2010. Malaysia’s progression from an upper-middle income   economy to high-income status, according to the World Bank’s measure, had been                  anticipated to occur between 2024 and 2028. This may be delayed somewhat by the               effects of COVID-19, while some commentators have suggested Malaysia cannot           sustain the high levels of growth required to make this transition.

   2.11      Malaysia’s economic performance over several decades has led to a significant   reduction in poverty, with the share of households living below the national poverty                   line (MYR2,208 (AUD700) per month in 2020) falling from over 50 per cent in the   1960s to less than 1 per cent in 2021. However, persistent inequalities remain for                indigenous peoples and the poorest 40 per cent of the population, the so[1]called   ‘B40’ who are the recipients of government assistance. Poverty rates are higher in                 rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. Furthermore,   the UN Special Rapporteur on Extreme Poverty gave the view in 2019 that Malaysia’s                official poverty line is artificially low and that a more accurate measurement results in                a poverty rate of around 16-20 per cent. The UNDP’s Human Development Index                  ranked Malaysia 62 of 189 countries in 2020, placing it in the ‘very high human   development’ category.

   2.12      In 2020, Malaysia’s economy was hit with the dual shock of COVID-19 and a decline                 in oil prices. According to the Malaysian government, the Malaysian economy   contracted by 5.6 per cent in 2020 due to COVID-19. The economy is expected to                rebound in 2021, with Malaysia’s central bank forecasting growth between 6 and 7.5              per cent. The Malaysian government undertook robust measures to limit the impact of                  the pandemic on the economy, both through the 2021 Budget and through multiple   economic stimulus packages. Measures included wage subsidies for lower-paid   employees, a moratorium on loans by financial institutions, special grants of   MYR3,000 (AUD 950) to qualifying SMEs and direct cash grants to the poorest   Malaysians, as well as investment incentives and measures to protect Malaysia’s role             in global supply chains.

   Employment

   2.13      In February 2021, the Malaysian Department of Statistics reported a labour force   participation rate of 68.5 per cent and an overall unemployment rate of 4.8 per cent.                 Prior to the pandemic, Malaysia’s unemployment rate was 3.3 percent in 2019. In               November 2018, media reported the average unemployment rate for Indian   Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera, and 2.4 per                    cent for Chinese Malaysians. In 2018, 28.6 per cent of the Malaysian labour force had                  tertiary level education, 55.6 per cent had secondary level education, 13.1 per cent                  had primary level education and 2.7 per cent had no formal education.

   2.14      The International Labour Organization estimated in 2020 that around 3 million   migrants (including irregular migrants) worked in Malaysia, constituting up to 30 per                  cent of the country’s workforce. Of the migrant worker population, 1.7 million were             registered, and an estimated 1.9 million were undocumented (irregular) migrants, as                 at 2017. Recent years have witnessed a rise in increasingly virulent rhetoric against                migrants within the popular media, blaming migrants for a host of social problems   ranging from electoral fraud to increases in street crime. Scapegoating of migrants,   regardless of realities, has contributed to an environment where exploitation and   abuse are sometimes viewed as acceptable. In May 2020, during the COVID-19   pandemic, the government conducted mass arrests of undocumented migrants in                  coronavirus hotspots in order to prevent the spread of the disease to its own ‘innocent              citizens’, according to one government minister.

   2.15      Reports have documented serious labour rights abuses against migrant workers in                   Malaysia, including cases of forced labour and human trafficking (see Trafficking in                  Persons). These allegations have been corroborated by recent US Customs and   Border Protection findings that indicators of forced labour and other abuses were   evident in the production of rubber gloves and palm oil by two major Malaysian   companies, Top Glove and Sime Darby. The Global Detention Project reports that                 potential trafficking victims may be charged with immigration offences and detained in   the criminal justice system due to the lack of formal victim identification procedures.                 Migrant domestic workers employed in Malaysia lack protection under labour laws.                   Due to the physical isolation of workplaces, restrictions on movement and inadequate                   mechanisms established to ensure accountability of employers, a large number of              domestic workers are also exposed to abusive working conditions. Economic   migrants rarely obtain permanent residence status.

   2.16      Male undocumented migrant workers from the Philippines and Indonesia tend to be                  employed in the construction, palm oil and fishing industries in Sabah and Sarawak.                 DFAT is aware of reports of ethnic tensions in recent years between Indonesian and                 Filipino migrant workers working on plantations in Sabah, which have led in some   cases to fatalities. DFAT is also aware of reports of the children of undocumented           migrant workers working on plantations in Sabah. Undocumented workers have been                 particularly hard hit by COVID-19, due to cramped accommodation and unsanitary   conditions, poor access to healthcare, and the lack of legal protection.

   Corruption

   2.17      Transparency International’s 2020 Corruption Perceptions Index ranked Malaysia   57th out of 180 countries and territories, a fall of six places on 2019. According to                 international observers, procurement is subject to corruption, and bribes and irregular               payments are sometimes exchanged in return for favourable court decisions. One                 perceptions survey found that Malaysians regarded the police as the most corrupt               institution in the country (see Royal Malaysia Police (RMP)), while another found that               more than a third of Malaysians regarded Members of Parliament as corrupt, the   highest level for any institution. Transparency International’s Corruption Barometer               survey in 2020 found that 72 per cent of Malaysians consider corruption in the last                year. While this represents a significant concern about corruption, these levels are                 lower than in neighbouring Asian countries.

   2.18      The most prominent recent corruption case in Malaysia is that involving the   government investment fund, 1 Malaysia Development Berhad (1MDB), implicating                  Najib Razak, former Prime Minister and Chairman of the 1MDB Advisory Board. In                July 2020, in the first verdict of a series of trials, former Prime Minister Najib was   convicted on seven charges and sentenced to twelve years in prison. In April 2021,              Najib appealed these convictions. Further trials have been delayed by COVID-19.                 Former United Malays National Organisation (UMNO) President Seri Ahmad Zahid                   Hamidi’s trial for 47 corruption-related charges was held in March 2021 after   numerous postponements.

   2.19      The Malaysian Anti-Corruption Commission (MACC) has arrested hundreds of civil                  servants in recent years (467 in 2020, down from 525 in 2019). These arrests came                 from a variety of different areas within government, for example: in January 2021, five            officers from the Malaysian Quarantine and Inspection Services Department were              arrested as part of an alleged meat cartel; 27 Immigration Department officers were              arrested in November 2020 for their role in an alleged human trafficking syndicate;              former PH government finance Minister Lim Guan Eng was charged for alleged      bribery in connection with the construction of an undersea tunnel (though he   contends that the charge is politically motivated as he is now an outspoken opposition              figure); and a deputy public prosecutor was arrested on suspicion of accepting bribes.

   2.20      In 2020, several high-profile corruption trials of prominent political figures ended with                Discharge Not Amounting to Acquittal (DNAA) verdicts, including one trial of former                  Minister Tengku Adnan Tengku Mansor in his MYR1 million corruption trial (though                   he was convicted of a separate offence in another trial). In this case, the order was                granted after Deputy Public Prosecutor (DPP) Julia Ibrahim told the court she had                 received instructions from the Attorney-General’s Chambers (AGC) to seek the DNAA           order citing new developments in the case that warranted further investigation. While                a DNAA order does not prevent the prosecution from charging the accused again   based on the same facts, some commentators have suggested that ending such   cases without a definitive verdict and without hearing all the evidence delivers a form                 of impunity to those charged.

   FINDINGS AND REASONS FOR DECISION

6. The Tribunal accepts the applicant’s admissions and finds that his original claims (as submitted to the Department) are not relevant nor present the actual circumstances concerning the applicant’s desire to remain in Australia.

7. The Tribunal accepts the applicant’s amend or new claims as provided by the applicant in his ‘unsigned’ and ‘undated’ statutory declaration[2] which was submitted to the Tribunal at the hearing.

   [2] see, AAT File _ Applicant’s written submission and ‘attachments’

8. In doing so, the Tribunal accepts that the applicant while in Malaysia was faced with employment problems while working for RMP and also faced financial concerns not being able to meet cost of living issues and the servicing of ongoing financial commitments.

9. Although, the Tribunal accepts that the applicant had financial and employment issues awaiting him in Malaysia, the Tribunal for the reasons that follow considered that the applicant’s reasons did not present a situation of persecution or actual harm or the risk of harm and persecution for any reason or reasons provided by the Act.[3]

   [3] refer to the Migration Act (Cth) (as amended)_ in particular, section 5J(1)(a) et.al.

10. Nevertheless, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded”. In similar terms, an applicant that claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant: see, MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at [169]-[170].

11. A ‘refugee’ is a person who has, as defined in subsection 5J(1)(a), a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion.

12. The applicant in his amended claims claimed economic reasons for not wishing to return to Malaysia.

13. He told the Tribunal that he could not remain in the Royal Malaysian Police as a ‘[Rank 1]’ or ‘[Rank 2]’ because it was a ‘low paid profession’ and at times he had not received his wage ‘for six months’. Also, the applicant claimed, that though he was a ‘good constable’ and ‘dedicated to his job’ he was never recognised for this and was always sidelined when he applied for a promotion to a higher-paying position within the Royal Malaysian Police.

14. The applicant in his evidence before the Tribunal, did not provide any reasons for the lack of promotion opportunities in RMP being related to any of the reasons provided in section 5J(1)(a) of the Act. Indeed, the Tribunal specifically asked the applicant if this was the case and the applicant’s response was in the ‘negative’. According to the applicant, his lack of any opportunities in RMP was not because of any discrimination of his superiors for reason or reasons of ‘race, religion, nationality, membership of a particular social group or political opinion.’ In regard to the cause being his personal ‘political opinion’ the Tribunal specifically asked that question, but the applicant’s response was to categorically deny that ‘politics’ or any ‘political opinion’ held by him, had prevented him from receiving or being seriously considered as candidate for promotion.

15. Asked about the reason or reasons for his lack of promotion by the Tribunal, the applicant told the Tribunal that the RMP is ‘corrupt’ in its organisation. It was the applicant’s opinion, that those who were ear-marked so to speak for promotion (according to the applicant) were those candidates who came from ‘police families’ or had some extensive family ‘connection’ with the RMP. The applicant had no family connections with the RMP and therefore, even though, he (the applicant) was a ‘good and dedicated police officer’ the ‘corruption’ (as the applicant described it) the widespread preference of ‘command’ of the RMP for those candidates who had a longstanding connection with the RMP prevented the applicant achieving his ambitions. Though, the country information available[4] suggests that there is corruption within the RMP at present, and for a number of years, it has nevertheless, been the subject of government attention and action in order to curtail its negative effects on the RMP effectiveness in law enforcement work. Whether that ‘corruption’ is of the type suggested by the applicant – where individuals with strong links to RMP are promoted over others who have not such strong links, the Tribunal is not aware of such happenings and could not locate any up-to-date information. The country information provided by DFAT[5] reports the following:

    The RMP is based on the British constabulary model, and employs approximately 115,000         officers and operates over 800 police stations across Malaysia. The Inspector-General of     Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and         international sources consider the RMP to be a professional and effective police force,        although the quality of its members’ responses varies depending on levels of training,         capacity and engagement in corruption. RMP officers receive limited training, particularly       on human rights. SUHAKAM conducts some human rights training and workshops for         police…Police officers are among the lowest paid members of the Malaysian civil        service. The RMP is around 80 percent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians…

    [4] DFAT Country Information Report – Malaysia _ June 2021, at p. 58, see paragraph [5.5] to [5.9]

    [5] DFAT Country Information Report – Malaysia – June 2021 at p. 58 see paragraph [5.5]

16. The Tribunal accepts that the applicant was in a very low-paying civil service employment, the country information above, supports what he says but with regard to why he never received promotion, the country information reports very little.

17. Moreover, the applicant’s information as submitted to the Tribunal was only what he said to the Tribunal and provided no evidence to the Tribunal of (1) having made a written  application for promotion to a higher rank or (2) a confirmation in writing of an official refusal from his superiors in the RMP of such an application and the reasons for not considering the applicant for a promotion to a higher rank. The evidence was not forthcoming on the applicant’s part, and in the absence of any corroborative evidence the Tribunal does not accept the applicant claim that he was not promoted to a higher rank within RMP when he applied because of some sort of preference or discrimination for applicants which had longstanding/family connections to the RMP and the applicant not having this was passed-over for promotion. Therefore, the Tribunal does not accept or find that the applicant’s lack of promotion while a serving member of RMP was due to any discrimination or preference by force command for candidates with long-standing family connections to RMP or for any reason or reasons as provided for by s.5J(1)(a) of the Act.

1. Further, Furthermore, the applicant claimed that once he left the RMP he was unable to find proper paying work in Malaysia because the Malaysian economy did not provide him with worthwhile employment opportunities. The country information incorporated within this decision at paragraph [41] indicates[6] that ‘World Bank classifies Malaysia as an upper middle-income, export-orientated economy.’ It also notes, that ‘in 2019 its real GDP growth was 3.4 percent, while per capita CDP was USD$11,418 (approximately AUD$15,000).’ Also, the report stated that ‘Malaysia has transformed since independence from a commodity-based economy, focused predominately on producing rubber and tin, to a leading producer of electronic parts  and electrical products, oil and natural gas, and a variety of other manufactured products.’[7]

   [6] see, DFAT Country Information – Malaysia – June 2021 at p.10, see paragraph [2.9] et.al.

   [7] Ibid

2. DFAT also reports that ‘Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of household living below the national poverty line (MYR2,208 (AUD$700) per month in 2020) falling from over 50 percent in the 1960s to less than 1 percent in 2021.’[8] Though Covid-19 caused a shock to Malaysia’s economy as it did in other economies around the world, it has nevertheless ‘maintained a growth of 6.0 to 7.5 percent in 2021.[9] Also, the Malaysian government has ‘undertaken’ ‘robust measures to limit the impact of the pandemic on the economy’ both ‘through the 2021 Budget’ and ‘through multiple economic stimulus packages.’[10]

   [8] Ibid see, paragraph [2.11] at p.11

   [9] Ibid see, paragraph [2.12] at p. 11

   [10] Ibid

3. The applicant in his evidence did not provide the Tribunal with any convincing evidence to show that he was not able to access or find, any type of employment or any type of opportunities for employment that could be found in his own country, for any particular reason or reasons. It is accepted by the Tribunal, after referring to the country information, that the Malaysian economy had been dealt a severe because of Covid-19 but it had bounced back well since the end of pandemic due to a revival of its function and due to a sustained period of government stimulus packages that were designed to make the economy more engaging. Moreover, the applicant offered no evidence to suggest that he was unable or in some way or means, excluded from offering himself to be gainfully employed within his country’s national economy. The applicant had no reason or reasons as to why he could not find employment in Malaysia and the Tribunal does not accept nor find that the applicant was unable to so engage in the economy as to allow him to find suitable employment on an on-going basis enabling him to provide for himself and to meet his on-going debt commitments. Therefore, the Tribunal does not accept or find that the applicant was prevent by any reason or reasons from engaging within the Malaysian economy with the aim of securing for himself a suitable form employment to assist him with meeting cost of living expenses on a daily basis and to contribute to the repayment of his on-going loans. There is no reason or reasons pursuant to s.5J(1)(a) that would prevent him from working or from finding suitable employment in Malaysia.

4. For the reasons given in paragraphs [48] to [54] above, the Tribunal does not accept that the applicant was forced to leave Malaysia because of any issues with his remaining in RMP force. His decision to leave was his own and was for no other reason or reason except that he wished to find a better paying employment . Also, the Tribunal does dot accept that the applicant having left the RMP in 2017 was unable to find suitable employment or was prevent for some reason or reason s from finding suitable employment in Malaysia. His choice to leave Malaysia was his own and not a choice imposed on him by the actions of others or for any particular reason or series of reasons. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in section 5J of the Act

5. 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).

6. 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 complementary protection criterion. For the reasons provided in paragraphs [48] to [54] above, the Tribunal does not accept that the applicant was forced to leave the RMP for reasons of preference towards others with longstanding family ties to the RMP or that he was discriminated preventing him advancement within the ranks in RMP because of any particular reason or reasons which concerned his ‘race, nationality, religion, membership of a particular social group or political opinion’ nor that having chosen to leave the RMP – being his own decision, there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his country of reference, Malaysia, there is a risk he will suffer significant harm because he could not engage within the Malaysian economy with the aim of securing for himself suitable and ongoing employment in order to provide himself with the means of meeting his day-to-day cost of living expenses and servicing his ongoing debt commitments.

7. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

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

   DECISION

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

   Peter Vlahos
   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.

   …