1829092 (Refugee)

1829092 (Refugee) [2024] AATA 2741 (18 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1829092
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Scott Collins
DATE:18 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 June 2024 at 4:01pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – political opinion – member of Sabah/Sarawak separatist group and opponent of illegal immigration and Islamisation – fear of harm from government and Filipino individuals and groups – organised and spoke at meetings – arrested after protests, detained overnight and warned/threatened – lived in hiding until departing – vague, inconsistent, contradictory and uncorroborated claims and evidence – group never formally organised and now defunct – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (4), 5LA, 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 18 May 2018. The delegate refused to grant the visa on the basis that he was not a person to whom Australia owes protection obligations as outlined in s 36(2)(a) and s 36(2)(aa) of the Act.
The applicant wrote in his application form that his languages are Malay and English and he indicated that he did not require a Malay language interpreter at his hearings. The Tribunal found the applicant to have very good English language skills.
The first hearing, on 28 March 2024, could not be completed in time because the applicant arrived late for the hearing. The second hearing took place on 9 May 2024. There was a third hearing on 6 June 2024, at which the Tribunal put to the applicant some inconsistencies in his evidence for his comments and to confirm with him finally the grounds of his application.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory Considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant said he was born in [Year] in Keningau, Sabah, Malaysia. He wrote in his protection visa application that his last address was in [Town 1], Sabah (near the capital Kota Kinabalu), and he lived there from 2011 to 2018. However, at his hearings, he told the Tribunal that he lived in remote areas of Sabah from April 2016 until he left for Australia in May 2018 (aside from a few months during which he said he was in hiding at his girlfriend’s house in Kota Kinabalu).
At the first hearing, the applicant said his last job in Malaysia was as [an occupation]. He also said at that hearing that his ethnic background was Dusun. He was raised as a Christian and, in his application form, he wrote that he was a Catholic.
At the first hearing, the applicant said that his highest level of education was a diploma in [subject] from [University] but, in his application form, he only mentioned his high school education. At the third hearing, the applicant said that he did not refer to his diploma in [subject] because he did not think it was important enough to note.
The applicant said at the first hearing that he had parents in Malaysia and [siblings], of which he was the [birth order]. However, in his application, he referred only to one person as a member of his family, a sister. At the third hearing, the applicant said that he did not disclose all of his family members in his application because he was estranged from all of them, apart from his sister.
He said at his first hearing that he was divorced, and he had a [Age]-year-old daughter in Malaysia, but there is no reference to his ex-wife or his daughter in his visa application form, nor did he indicate in the form that he was married or divorced. At the third hearing, the applicant said that he did not mention his ex-wife or his daughter in the application form because he was not in contact with either of them.
The applicant arrived in Australia under an ETA tourist visa in May 2018. He applied for a protection visa a few days later. His application was rejected by the delegate in October 2018. In Australia, he said he lived in the [City] area initially and now lives near [Town 2] in Victoria. He said that he works for a [company].
Application Grounds
Because he had good English language skills when he arrived here, the applicant said that he did not receive any assistance with his application for the visa. These were the written grounds for protection:
I joined a society called SSKM [Sabah Sarawak Exit Malaysia] in Sabah. The main purpose of this organisation is to bring Sabah and Sarawak out of Malaysia. However, this organization is disliked by Suluk people from the Philippines as they also make claims on Sabah and the government of Malaysia does not recognize the SSKM organisation.
I believe if I return to Malaysia I will have problems with the Suluk people from Philippines and the Malaysian authorities themselves.
I have been visited by some Suluk people from Philippines who have lived in Sabah and they have threatened me. Their threats are not just talks they are willing to take the [unclear] of anyone who is a member of SSKM.
I have not the authorities in Sabah. However, they cannot help me because the SSKM establishment is not recognized by the government of Malaysia.
I have moved many places. I once moved to the remote areas of the city or town. However, when the local authority knows I am a member of the SSKM they instruct me to move elsewhere.
Suluks from the Philippines until now claim that Sabah is theirs and the sultanate of Sulu. They know about SSKM and they are very disliking and hating this organization. They are threatened to any individual who joins SSKM. They threatened to hurt and will take the life of anyone who is SSKM member.
The authorities in Sabah will not assist individuals who join SSKM establishment. In fact, the authorities will detain those who join SSKM. There are some members of the SSKM feared missing and never found.
Pre-Hearing Information Form Statement
In a statement in his response to the Pre-Hearing Information Form, the applicant wrote:
I am one of the members of the group Sabah Sarawak Kelaur Malaysia (SSKM) and I am also outspoken. This group is banned by the Malaysian Government and any members of the group are under the observation of the authorities to be arrested to be charge and sentence. What more worrying with Malaysia’s new law which is the Security Offences (Special Measures) Act (SOSMA) 2012 which can detain suspects for up to 28 days without trial. This law is widely used to arrest activists.
Member of the SSKM group are not liked by the illegal immigrants because we fight for the rights of native people of Sabah and Sarawak. Illegal immigrants especially from the Philippines who are Suluk, hate the move to take Sabah out from Malaysia because until this day they still admit that Sabah is theirs. These people, the Suluk’s illegal immigrants, once shouted a warning to the SSKM group that they are willing to go to fight. For both reasons I am afraid to return to my home country.
Written Submissions
The applicant provided the Tribunal with submissions in writing shortly before the hearing:
Reasons why I left Malaysia and apply for protection in Australia
I left Malaysia because I was one of the members who established the group who wanted to bring Sabah and Sarawak out of the Malaysian coalition.
Chronology of the establishment of the group Sabah Sarawak Keluar Malaysia (SSKM)
The establishment of the first SSKM group was in the interior of Sabah. The group has no connection to the SSKM group in the East Coast (Lahad Datu) or the West Coast (Kota Kinabalu) part of Sabah. In other words, the group in the interior has nothing to do with Doris Jones @ Doris Yapp Kim Youn or any political party in Sabah. The first group was first established in 2007 in Keningau district, Sabah. The establishment of this group is based in the interior of Sabah; however, this group is not registered.
The establishment of this group is because we want to demand several things from the federal and state governments. The claims from our group and the SSKM group set up by Doris Jones are not the same.
SSKM Interior group claims
1. A thorough re-investigation into the Double Six tragedy; an air accident involving Chief Minister Tun Fuad Stephens and several ministers has been killed. We believe that our group’s proposal to re-investigate the incident had a strong message because at the time, we found out there were eyewitnesses still alive. At that very time, we believed that the eyewitnesses we met were telling the truth. In addition to eyewitnesses, we also received very reliable information from several former police officers who were on duty at the communications branch during the Double Six tragedy.
The eyewitness who saw the Double Six incident was a Bajau fisherman and on the day of the incident he and his brother were fishing near the crash site. He was then 16 years old, and his brother was 19 years old. They saw the plane passing in the air and some time they heard an explosion and as they looked towards the plane, the propeller on the right side of the wing emitted smoke. Soon after, the plane crashed. Seeing the incident, they tried to get to the area where the plane crashed but took time as they were just using the boat and rowing. It took them about an hour of rowing to get to where the plane crashed. When they approached the ship area, they saw that there were already many people near the airplane.
The witness, who is a former police officer in charge of the communications department, said that on the day of the crash, news sent to top police officers said the plane boarded by the Chief Minister and several ministers ‘fell because of the explosion’. He said, telling us, leaking government secrets related to the Double Six crash was an offence. However, he feels sorry for the families of the crash victims. We know him because some of our group members are former members of the Sabah Border Scout (a branch of the police department that is only available in Sabah. Their job is more about guarding the border).
2. Our second claim is related to Oath Stone in the District of Keningau in interior division in Sabah. The following is the contents of the Oath and Promise of Sabahans in the interior written in Oath Stone.
The Oath Stone of Remembrance According to the Constitution
1. Free religion in Sabah
2. Sabah lands are controlled by the Sabah Government
3.The ceremonies of Sabahans are respected and preserved by the Government
On the other hand, Sabahans in the interior swear allegiance to the Government of Malaysia
Religion is free in the state of Sabah, however, giving a life allowance to those who convert to Islam is something that is not acceptable. This claim is not an allegation, it is not only happening in Sabah, but throughout the state in Malaysia.
Land in Sabah is no longer controlled by the Sabah State Government. Much of the land in Sabah is owned by non-natives of Sabah. In fact, many politicians from Malaya have gained land in Sabah.
The customs of Sabah’s indigenous people are no longer respected. Sabah’s indigenous people are insulted and likened to demons for still practicing customs.
The promises and oaths of allegiance to the Malaysian government made at that time are not applicable at the present time (‘present time’ means at the time our group made the draft of claims)
3. The third claim of our group is related to the death of the Rev. Father De Wit. The late was a Catholic priest at St Peter’s church in Kudat, Sabah. The incident occurred on August 28, 1983. The death of the Rev. Fr De Wit is very cruel. His body was found with scars and according to the post-mortem, the scars were caused by a sharp object like a machete. Our claim is to want an investigation to be carried out to find the killers or those responsible.
4. The increasing arrival of illegal migrants in rural areas is our fourth claim. At the time our claim was drafted, in the interior of Sabah at that time, 35% of the population of the entire rural area were illegal migrants who were from the Philippines and Indonesia. In the draft, we demand the Government of Malaysia at that time to deport those who entered illegally. As a result of the arrival of illegal immigrants, criminal cases are increasing, and the incidence of homicides is also increasing.
There were a few more claims that our group had drafted at that point and bookended. However, the book was confiscated on February 1, 2015, by police.
Detained
[In January], 2015, I and 4 friends who were members of the SSKM group from the interior went to Kota Kinabalu. Our intention to Kota Kinabalu was to send a book on our claims to the SSKM group there. While in Kota Kinabalu, we were invited to join Doris Jones’ SSKM group to distribute leaflets related to claims to get out of the Malaysian establishment in [Town], Sabah. [In February] 2015, together with my other friends, we went to [Town] to join the SSKM Doris Jones group. Although the claims are different, our purpose is the same. Exiting the establishment of Malaysia.
On that day, while distributing leaflets related to claims for the establishment of Malaysia, I and four of my friends were arrested and taken to the [Town] Police Station. When I was in the hall, I saw that there were 4 people from Doris Jones group already been detained. While in custody, we were isolated and questioned by different officers. We were released at 5 p.m. the same day. I don’t know who has vouched for me and my friends, but when we came out of the police station, there were a lot of people outside the station compound. All our mobile phones, except the sim cards have been confiscated for investigation purposes. All books and tracts have also been confiscated. After been release, me and friends have returned to our homes.
After my release, I was called again to [Town] Police Station [in February] 2015, at 10.00 am. I was photographed by officers from the Special Branch. After that, they have returned my mobile phone. Some of the document files in my mobile phone have been deleted.
After that day, my daily life began to change. I was often followed by police officers from a special branch. I know this because in 2016, in April, I was detained again. I was arrested while I was in Penampang, Sabah. While in custody, I was questioned again about the claims contained in the draft book seized in [Town].
I was detained overnight at the time. The next day when I wanted to be released, a police officer came to see me. He has given me a warning not to meet or contact any member of the SSKM interior group or any other group. The officer also warned me not to try to make any claims if I wanted to be safe. He also said my movements would be monitored and they could detain me at any time.
I felt very distressed and scared when I heard the warning from the officer. For me, what the officer said was not a warning, but a threat. Therefore, I asked one of my friends to assist me in applying for an international passport online. I also asked him to help me buy a plane ticket to Australia. In 2018, after obtaining visa approval, I came to Australia. With what happened to me, I have applied for a Protection Visa in Australia.
The Applicant’s Case at the Hearings
The Tribunal confirmed with the applicant at the third hearing that his case, based on the written material and what he said at his hearings, was that he had a well-founded fear of persecution if he returned to Malaysia because there was a real chance that he would suffer serious harm from two sources:
-illegal immigrants in Sabah, especially those from Suluk, who objected to his political activities drawing attention to illegal immigration; and
-Malaysian government authorities (i.e., the police) because of his active involvement in, and advocacy for, his SSKM organisation and its objectives, particularly criticising the his view of increasing ‘Islamisation’ of Sabah and condemning what he saw as government tolerance and encouragement of illegal immigration of Suluk people into Sabah.
The serious harm from illegal immigrants that he feared would be threats of violence and actual violence, and, from the Malaysian government authorities, the serious harm would be harassment, including surveillance, arrest, detention and prosecutions. In support of his case, he referred to what he claimed were particular instances of harm from both of those sources in Malaysia before he came to Australia.
The Applicant and SSKM Activity

The applicant wrote in his written submissions that he was a founder of SSKM in 2007. He said at the first hearing that his group was effectively disbanded when he came to Australia. However, he said in his response to the Pre-Hearing Information Form that the group had been banned.
The Tribunal asked him if he was aware of other groups in and outside of Sabah that called themselves “SSKM” or “Sabah Sarawak Keluar Malaysia”. He said that there were many such groups that used that name, but these other groups were more interested in promoting Sabah’s autonomy such as SSU-UK, the group headed by Doris Jones. Despite what he wrote in his application about actively supporting Sabah autonomy, he said at the second hearing that his SSKM group was more interested in advocating for the issues set out in his written submissions, mainly illegal Suluk immigration and the increasing “Islamisation” of Sabah.
At the first hearing, the applicant said that the main activity of his SSKM group was raising awareness of the following issues, as set out in the document he prepared for the hearing:
-the “Double 6” airplane crash in the 1960s,
-the apparent murder of Father De Wit,
-the importance of the Oath Stone, and
-illegal immigration into Sabah, especially from the Philippines.
At the second hearing, the applicant said another purpose of his SSKM group was to draw attention to, and criticise, what he described as the “Islamisation” of Sabah. The applicant said at the first hearing that he had advocated publicly against the payment of money to Sabahan residents to convert to Islam. He said that because he condemned it publicly, he attracted the adverse attention of Malaysian government authorities, i.e., the police, including the Special Branch.
The applicant said that his support for these objectives in practical terms included organising and speaking at meetings in different parts of Sabah at which the above issues would be discussed and handing out leaflets containing information about these issues in public areas in towns and villages in Sabah. The applicant at all the hearings maintained that, if he returned to Sabah or any part of Malaysia, he would experience further threats from illegal immigrants and the authorities because of his activities in the past, and also because he would continue to express publicly his views again.
Serious Harm
Under s 5(J)(4) of the Act, if a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a), then: (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. The Tribunal finds that the kind of harm relied upon by the applicant is serious harm, it would be the essential and significant reason for the persecution and it involves significant and discriminatory conduct.
The Tribunal also finds that the applicant’s claim of persecution is persecution for political opinion within the meaning of s 5(J)(1)(a) of the Act.
Real Chance of Serious Harm
The main issue in this application is whether, as required by s 5(J)(1)(b) of the Act, there is a real chance that, if the applicant was returned to Malaysia, he would be persecuted for his political opinion.
To show that he would experience serious in the future he returned to Malaysia, the applicant relied extensively on what he asserted were particular instances of harm from these two sources when he last lived in Malaysia. This evidence was uncorroborated and it contained a number of serious inconsistencies and difficulties.
SSKM
The applicant said at the first hearing that his own SSKM group was never a registered organisation but more a name that was given to his group of like-minded friends who were interested in promoting awareness of the issues raised in his written submissions. He said at his first hearing that, contrary to what was written in his application and in his much more recent response to the Pre-Hearing Information Form, SSKM was not in fact banned by the Malaysian government.
Contrary to what he wrote in his application - that there are some members of SSKM feared missing and never found - he applicant said at his first hearing that he was only aware of one former SSKM associate who was still missing and he does not know who that person is or what happened to them. He also said that he did not know if members of his now defunct organisation were in fact still under surveillance or had since been arrested or otherwise harassed by the Malaysian police or threatened by illegal immigrants. He said at the first hearing that he was aware of only one other political associate who had been detained after 2015.
The Applicant’s First Arrest
The applicant wrote in his written submissions that he was arrested [in] January 2015 in [Town], Sabah, along with 4 other members of his group. He said, at this first hearing, that he has handing out leaflets in a market. He said that while he and his associates were at the police station, he noticed that four members of the Doris Jones group, SSUK, had also been arrested. He did not know why the SSUK members had been arrested but he said that he and his associates had been arrested for unlawful assembly offences. He said his and they were released the next day and neither he nor his associates were prosecuted.
In his written submissions, he wrote that he returned to the local police station [in] February 2015 at 10.00 am, when he was photographed by officers from the Special Branch, and they examined and confiscated his mobile phone.
First Threats From Suluk Immigrants
The applicant said at his first hearing that after his arrest, when he was released from the police station the next day, he was in a car park when a group of Suluk people confronted him and made threats to kill him if he continued with his activism. At the second hearing, he said there were about 20 people in a group, and he said that they were fairly quiet and did not yell or shout at him.
In his first hearing, he said that members of the group had damaged his car and left a note containing a warning about would happen if he persisted. He said that he reported this to police for insurance purposes. However, at the second hearing, he said he did not complain to the police about it because he did not think they would help him as they knew about, and did not approve of, his activism about Sabah’s Islamisation.
Second Arrest and Further Threats from Suluk People
In his written material and at all three hearings, he discussed the second time he was arrested, in April 2016. At the first hearing, the applicant said he had been protesting outside the home of a local politician who was the son of someone who he believed was a key player in the “Double 6” plane crash set out in his written submissions.
However, at the second hearing, he said that he was protesting about the “Islamisation” of Sabah in a public place in the centre of town.
At the third hearing, when this apparent inconsistency was put to him, he explained that he was doing all of the above because the son of the local politician was also a proponent of the Islamisation of Sabah.
It is not clear exactly how and why he was arrested on this second occasion. He said this in his written submissions:
After that day, my daily life began to change. I was often followed by police officers from a special branch. I know this because in 2016, in April, I was detained again. I was arrested while I was in Penampang, Sabah. While in custody, I was questioned again about the claims contained in the draft book seized in [Town].
At his first hearing, he said that he was arrested in this way: he was confronted in the town centre by a group of illegal immigrants who again made threats of violence towards him; a plainclothes police officer stepped out of the crowd and arrested him; and he was detained overnight at the police station.
Warning from the Special Branch
In his written submissions he wrote this about what happened after his second arrest:
I was detained overnight at the time. The next day when I wanted to be released, a police officer came to see me. He has given me a warning not to meet or contact any member of the SSKM interior group or any other group. The officer also warned me not to try to make any claims if I wanted to be safe. He also said my movements would be monitored and they could detain me at any time.
I felt very distressed and scared when I heard the warning from the officer. For me, what the officer said was not a warning, but a threat. Therefore, I asked one of my friends to assist me in applying for an international passport online. I also asked him to help me buy a plane ticket to Australia. In 2018, after obtaining visa approval, I came to Australia. With what happened to me, I have applied for a Protection Visa in Australia.
Yet, at the second hearing, he said that, after April 2016, he believed that he was under surveillance by the police because a friend who had been arrested was told this by a police officer.
The applicant also said at that hearing that he did not receive any further threats from Suluk or other illegal immigrants after 2016; nor was he ever arrested or harassed by the police again.
Further Activism and the Decision to Leave Malaysia
At the second hearing, the Tribunal asked him what he did between his second arrest in April 2016 and his departure from Malaysia for Australia more than 2 years later. He said that he continued with his political activism up until the end of 2017 and stopped because his friend told him the police were still interested in him. In his third hearing, he said he continued with political activism until well into 2018. The Tribunal asked him why it was that he was not arrested by Malaysian police or assaulted by illegal immigrants between April 2016 and the end of 2017/2018 if he was still politically active in Sabah. He replied that he took extra precautions such as protesting in remote areas. He said that he was also hiding for several months with his girlfriend in Kota Kinabalu.
At the third hearing, the applicant was asked about his activism in Sabah after the arrest and warning from the police officer. In particular, he was asked why, if he was “very distressed and scared” because of the threat from the police officer (whom he believed was a Special Branch officer), he waited for another 2 years before coming to Australia. The applicant said that he needed time to get the money together for the airfare. He said that because he was still politically active, he was only working part time. The Tribunal asked the applicant why, in the light of this threat from the Special Branch officer, he continued his political activities when he could have worked full time and saved up the money to leave Malaysia much sooner. The applicant said that he believed that if he continued his political activities in remote areas, away from the capital, he would be safe, and he could work part time.
At the third hearing, the Tribunal asked the applicant what he meant in his written statement when he stated:
For me, what the officer said was not a warning, but a threat. Therefore, I asked one of my friends to assist me in applying for an international passport online. I also asked him to help me buy a plane ticket to Australia.
This statement appeared to the Tribunal to mean that the applicant received financial help from a friend for his airfare; if that was the case, the Tribunal asked the applicant why he waited another 2 years before leaving for Australia. The applicant explained that he did not in fact borrow or receive any funds from his friend; what he meant was that he sent money to his friend to buy the ticket for him. He was asked by the Tribunal why he could not buy a ticket for himself in person or online. He replied that he was hiding in remote areas of Sabah where the internet was poor or did not exist. It was pointed out to him by the Tribunal that, even so, he wrote in his submissions that he applied for a passport online. He replied that he did that in the Sabah capital from his girlfriend’s house and stayed there only for a few days.
The applicant confirmed at the third hearing that he was fearful of the police, and he took the threat he received very seriously and that is why he stayed away from the capital as much as possible. So fearful was he, he said, that he had his friend purchase his ticket for him at the airline offices at the airport in the capital. The Tribunal asked him whether he believed a normal airline would sell an international plane ticket to someone who was not the traveller and who did not have a passport for the traveller. The applicant said that he gave his friend written authorisation and that this was enough for the airline.
The Tribunal put to the applicant that if he applied for a passport online, he would still need to present himself in person with documents for an interview with a passport issuing officer in the capital, yet he said that he was so fearful of the warning from the Special Branch officer that he would not go to the capital even to buy a plane ticket. The applicant said that he was willing to go to the capital for a few days and run the risk of encountering police officers in order to complete the application process, in stark contrast to the case of his purchase of the ticket.
The Tribunal asked the applicant why he continued his political activism for the next 2 years in small towns in remote parts of Sabah if he believed the Special Branch’s officer’s warning/threat. The Tribunal suggested to him that he would stick out in a small town in a remote place, and highly trained specialist officers such as Special Branch officers would almost certainly hear about his activities, even in remote areas, sooner or later. He explained that he believed he was safe there to pursue his political activities in those areas.
The Tribunal reminded the applicant that he said at his second hearing that he lived in hiding for a few months with his girlfriend in the capital and this seemed at odds with what he said about spending as little time as possible in the capital because he was fearful of the police and the Special Branch. He replied that he did in fact live with her for a few months and he believed he was safe from surveillance because, he said, she did not live in the capital after all but actually in a suburb of it (much like Penampang which, he wrote in his application form, had been his address from 2011 to 2018).
The applicant confirmed at the third hearing that he continued his political activities in the regions almost right up to the time he left for Australia. The Tribunal put to the applicant that he said at the second hearing he lived with his girlfriend for a few months immediately before coming to Australia. The applicant explained that his memory was faulty.
Nationality and Receiving Country
According to the protection visa application, the applicant claims to be a citizen of Malaysia and provided a copy of the biodata page of his Malaysian passport to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of Malaysia. Malaysia is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Findings about Well-Founded Fear
Under s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his claim and to provide sufficient evidence to establish the claim. The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim. The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. This is consistent with the established proposition that it is for the applicant to make his or her own case.
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant 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. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.
On the other hand, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims. A similar approach is taken in the Department’s Refugee Law Guidelines and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, which both provide useful guidance for this Tribunal.
The Tribunal finds that the applicant’s account of his activities and the harm he experienced in Malaysia before he came to Australia to be vague, unsupported by any corroborating evidence and, crucially, incoherent and inconsistent on a number of important issues. The Tribunal finds that the level of vagueness, inconsistency and incoherence is so substantial that given the extraordinary nature of his claims and the lack of corroboration, the Tribunal finds that the applicant was not able to provide the Tribunal with sufficient credible and/or reliable evidence as to his activities in Sabah before he came to Australia, nor about the harm that he claims he experienced from the police or illegal Suluk immigrants.
The main inconsistencies in his evidence are as follows:
(1) His evidence about SSKM is confusing and contradictory. In his written submissions he said of the difference between his group and SSU‑UK that “although the claims are different, our purpose is the same. Exiting the establishment of Malaysia”; yet at the second and third hearings, he said the main objective of his group was not about Sabah’s autonomy but about the particular issues in his written submissions such as the “Double 6” plane crash, the Islamisation of Sabah, and illegal immigration of Suluks.
(2) In his written material, he wrote that SSKM was a banned group; yet at his hearings, he accepted that he was wrong, that it was not banned and that it never existed as a discrete, formal entity.
(3) In his written material, he wrote that several SSKM members had gone missing; yet at the hearings, he said that he could only think of one person who was missing, and he was only aware of one person who was detained by the police after his second arrest in 2016.
(4) He wrote in his written material that he did not complain to the police about threats from illegal immigrants such as the Suluk immigrants; yet at the first hearing he said that, after the first time they threatened him, they damaged his car and left a threatening note, and he complained to the police, who told him it was not a serious matter. Yet, at his second hearing, he also said that he did not complain to the police because he did not think they would assist him due to his political activities.
(5) He said at the first hearing that he was arrested on the second occasion for protesting outside the house of a politician who was related to someone he believed was involved in the “Double 6” crash; yet at his second hearing he said he was protesting in a public space in the centre of town about Sabah Islamisation. The Tribunal does not accept the applicant’s explanation that he was doing all of the above at the same time.
(6) In his written material he wrote that, after his second arrest in April 2016, he was warned by a police officer about continuing his activism and he was “distressed and asked one of [his] friends to assist [him] in applying for an international passport online and to buy a plane ticket to Australia.” Yet he said at the second hearing that he continued his activism until the end of 2017 (or 2018) and managed to avoid further trouble by taking precautions, protesting in remote areas, and hiding at his girlfriend’s house. However:
(i) The Tribunal does not accept the applicant’s explanation that what he meant was that he sent the friend money to buy the ticket for him because the internet was poor in regional areas. The Tribunal finds that it is not credible that an airline would sell an international ticket to someone who was not the traveller and who did not have the traveller’s passport.
(ii) He said that he would not come down even for a few days to the capital to buy a ticket because he was fearful of the police, yet he would go the capital to apply for and/or complete the process for a passport. The Tribunal does not accept the applicant’s explanation that he applied for a passport online from a regional area or that he did so while staying for a few days in the capital, but he would not travel there when it came to purchasing the ticket from the airline.
(iii) The Tribunal does not accept the applicant’s explanation that, even though he was fearful of the warning/threat from the Special Branch, he continued his political activities in regional areas because he did not think these highly trained specialist officers would find him there.
(iv) The Tribunal does not accept the applicant’s evidence about having to hide at his girlfriend’s house for a few months before coming to Australia, as he maintained at the second hearing, or immediately after the warning back in 2016, as he claimed in the third hearing.
(v) The different accounts in the written and oral evidence about his location and address between his apparent arrest in April 2016 and his departure from Malaysia in May 2018 undermines substantially the overall credibility of the applicant’s evidence.

The Tribunal finds all of these inconsistencies, as between his oral evidence and the written material, and also as between the different hearings, to be so substantial that they undermine the applicant’s credibility and reliability on the issue of a real chance of serious harm.
There are also aspects of his evidence which lack sufficient coherence to be credible and reliable:
(1) The Tribunal is unable to accept the applicant’s account of the first threats from the “quiet” group of 20 or so Suluk people. The applicant said that these people made threats to kill him in a public area of the capital; yet, quite redundantly, they also left a note further threatening him when he said they damaged his car.
(2) The Tribunal is unable to accept the account of the second threat from Suluk people after he was released by the police in 2016. In particular, the Tribunal does not accept that a police officer in a crowd, plainclothes or otherwise, would arrest the applicant for no apparent reason – and again after, it seemed, he had just been released from custody – when the officer would have observed a group of Suluk people making threats in public against the same person.
(3) The Tribunal is unable to accept the applicant’s account of a threat from an officer who he assumed was a Special Branch officer for several reasons. It is not clear why he was in custody again. The applicant’s account of distress and fear because of the threat from the officer is at odds with the applicant’s decision to continue political activities, albeit in remote areas. The Tribunal does not accept the applicant’s evidence that he believed he was safe from Special Branch officers in these remote areas where he would have stood out so obtrusively.
(4) The Tribunal is unable to accept the applicant’s evidence that, even though he was distressed and fearful of the warning of the Special Branch officer, he waited 2 years to save up for a plane ticket before deciding to come to Australia. The applicant’s explanations for this delay – saving money, getting a friend to buy the ticket for him and so on – lack believability.
Accordingly, the Tribunal is not able to accept the applicant’s claims about past serious harm. The lack of overall credibility affects the Tribunal’s assessment of the credibility as regards other parts of his evidence. While the Tribunal accepts that the applicant is interested in and knowledgeable about Sabah politics and history, the Tribunal is unable, on this evidence, to accept that he was involved in SSKM or any other political group while he lived in Malaysia as he claims. Nor is the Tribunal able to accept, on this evidence, that, even if he was politically active in some way, through his SSKM group or otherwise, he attracted any kind of hostility from Suluk people or the police. Given that the Tribunal does not find that the applicant experienced the harm as he claims, the Tribunal does not accept that he would experience harm in Malaysia now or in the foreseeable future. Finally, the Tribunal is unable to accept, on this evidence, that the applicant came to Australia for reasons connected to his political views and activism and for protection from the threats he received because of it.
It may be that the applicant holds genuine views about the issues in the written and oral evidence, including Sabah’s autonomy. However, given the Tribunal’s conclusions above, the Tribunal’s overall conclusion is that the applicant did not have a genuine fear of persecution at the time of his departure and nor does he have a genuine fear now. Further, the Tribunal concludes that there is no objective basis to a fear of persecution at the time he left for Australia or now.
Future Political Activity
The protection visa process is forward-looking and the fundamental issue is what would happen to the applicant if he were to return to Malaysia. What happened in the past is a guide as to what might happen in the future.
Leaving aside the difficulties in the applicant’s evidence about his activities in Malaysia and the harm he experienced, the applicant said that he could become politically active again if returned to Malaysia and as regards the topics he referred to in his oral and written evidence. As to the real chance of serious harm were he to become politically active again over these issues, the Tribunal makes these conclusions:
(1) The “Double 6” airline crash and the death of Father De Wit were accepted by the applicant to be matters of some importance historically but unlikely in themselves, if the applicant publicly advocated about them, to be controversial enough to attract threats and violence.
(2) The applicant also accepted that the Oath Stone issue is not itself controversial enough to attract threats and violence (although it is related to the wider issues of Islamisation, Sabah’s autonomy, and illegal immigration).
(3) The applicant wrote in his application that “the main purpose of this organisation is to bring Sabah and Sarawak out of Malaysia”; yet he said at the hearing his organisation was more about Islamisation of Sabah and illegal immigration. Even so, at the hearings, the applicant accepted that Sabah’s autonomy is now a mainstream political opinion with the 1963 Agreement being accepted at the state and federal level, Jeffrey Kitangan as Deputy Chief Minister in Sabah, the STAR political party being a junior coalition party in the Sabah state, and there being government and national policies directed at the development of Sabah, including the handing over of mining and oil revenues as per the 1963 Agreement. Therefore, if the applicant expressed his views about Sabah’s autonomy again, the likelihood that government officials such as police would cause him any harm over it would be too remote to amount to a real chance of serious harm.
(4) As to the issue of illegal immigration, while there is a substantial number of illegal immigrants in Sabah, the Tribunal finds this has much to do with traditional border crossings and the difficulties associated with policing and enforcing border controls in remote areas. Additionally, the border between the Philippines and Malaysia is a very sensitive one for Malaysia in geopolitical terms. There have been several violent incursions into Sabah from the Philippines over the past 50 years in pursuit of irredentist claims on Sabah. The issue has led to international legal proceedings including international arbitration and asset seizures[1] and special military operations in the region.[2] Additionally, there are press reports of numerous illegal Suluk immigrants being deported back to the Philippines.[3]
Therefore, the applicant’s views about illegal immigrants tend to fall in line with government policy, so the possibility that he would suffer harm from government officials because of them is too remote to amount to a real chance of serious harm were he to express his views actively.
It is possible that Suluk residents might object to him publicly expressing his opinions but, were they to make threats against him, the Tribunal finds that the police would be ready, willing and able to take any such complaint from the applicant seriously. Within the meaning of s 5LA of the Act, the Tribunal finds that, were the applicant a victim of threats of violence or actual violence from Suluk immigrants, there is protection available to the applicant from the police, it would be durable protection, and it would consist of appropriate criminal law, a reasonably effective police force and an impartial judicial system. Therefore, the Tribunal concludes that any chance of serious harm would be too remote to amount to a real chance.
(5) As to increasing Islamisation of Sabah, the Tribunal accepts that, in the 1970s, Islam became the dominant religion in Sabah as a result of proselytising by Muslim political parties in Sabah but there are also other causes of the increase, such as the granting of citizenship by the federal government to Muslims from the restive southern Philippines and Indonesia, those who convert to Islam for their own personal reasons, and slowly increasing numbers of Malays immigrating to Sabah from the peninsula.[4] The Tribunal accepts that Islamic proselytising involved occasionally paying money to converts in the past and that it may still go on. Those payments could be for any number of reasons including simple charity. There would be also be instances of conversions taking place without payment. While there may have been tacit support by some politicians over the years for the practice, the Tribunal finds that it is not the result of an official government program, nor is it clear the extent to which it happens today.[5] It also seems that there is a long history of Christian evangelical missions operating throughout Sarawak and Sabah, to the ire of the local Muslim population.[6] Further, since the 1960s, the numbers of both Muslims (40%) and Christians (16%) have increased and has held steady since the 1970s at about 70% Muslim and 25% Christian.[7]
Muslim numbers in Sabah may also have been increased because of the granting of ID cards and nationality to them. The Tribunal drew the applicant’s attention to the 2013 Royal Commission into the issue which found, after hearing over 200 days of evidence, that while it did happen in the past, the practice had ceased, and that it had more to do with corrupt local officials than anything organised and formal to do with politics or Islamic conversion.
It is not necessary for the Tribunal to make a finding about whether there is in fact Islamisation going on in Sabah as the applicant claims or its extent. The applicant said at the hearing that he did not object to Islam per se and would not criticise it; rather his objection was to the tactics he believed had been used by some of these proselytising groups to convert people in remote areas to Islam, such as paying converts money.
The applicant was not able to provide any evidence to suggest that this was going on 2024 or its extent. The Tribunal finds that, were the applicant to return to Malaysia and make respectful criticisms of what he describes as the Islamisation of Sabah involving the untoward payment of money on conversions, there is not enough information for the Tribunal to conclude that there would be a real chance that the applicant would experience serious harm over it from either government officials or Suluk immigrants.
[1]
[2]
[4] ‘Islam and Politics in Malaysia: The Realisation of Islam as a State Religion in Sabah’, May 2019, Journal of Islam in Asia (E-ISSN 2289-8077) 16(2): 254–272, Hamid and Akhmetova.
[5] ‘Christianization in Sabah and the Development of Indigenous Communities’, Mat Zin Maty Ki, Journal of the Malaysian Branch of the Royal Asiatic Society, Vol. 77, No. 1 (286) (2004), pp. 53–65; ‘Patronage Power and Prowess, Barisan Nasional’s Equilibrium Dominance in East Malaysia’ F. Hazis, Kajian Malaysia, Vol. 33, No. 2, 2015, 1–24
Conclusion
The Tribunal finds that the evidence of what the applicant complains of having happened to him in the past – threats, violence, property damage, arrest, and detention – could be serious harm, and that harm would be directed at him because of his political activism.
However, the Tribunal finds that, given the unusual nature of the applicant’s claims and the total lack of corroboration, there is insufficient credible and reliable evidence for it to find that the applicant was involved in political activism in the first place, or, if he was, that he experienced any harm, serious or otherwise, because of it. The Tribunal concludes that, on the evidence, the applicant, at the time of his departure from Malaysia, lacked a genuine belief that he would experience persecution in Malaysia. The Tribunal also concludes, on this evidence, that he today lacks a genuine belief that he would experience persecution over it now or in the foreseeable future were he to return.
Were the applicant to return to Malaysia and become politically active in some way as regards the political issues set out in his written and oral evidence, then the Tribunal finds that the claim that he would experience serious harm because of it from government officials or Suluk immigrants is too remote and speculative. The Tribunal further finds that, even if he experienced serious harm of the kind he claimed had happened to him in the past from Suluk people, for whatever reason, there would be effective state protection available to him.
Therefore, the Tribunal finds that there is no real chance that the applicant would suffer serious harm in the future for the reasons he advanced in his application and hearings were he to return to Malaysia and become involved in political activism. The applicant did not indicate that he feared harm for any other reason. Therefore, the Tribunal’s ultimate conclusion is that the applicant does not have a well-founded fear of persecution.
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).
COMPLEMENTARY PROTECTION
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).
In MIAC v SZQRB [2013] FCAFC 33 the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal found that there is not a real chance that the applicant would experience serious harm if he returned to Malaysia. The applicant did not claim to fear harm on return to Malaysia for any reason other than those above. It follows that the Tribunal does not accept that there is a real risk the applicant will suffer significant harm from any person or for any of the reasons set out above or for any other reason evident on the claims or material as a necessary and foreseeable consequence of his being removed from Australia to Malaysia. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Scott Collins
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.
…

US State Dept Report ‘2022 Report on International Religious Freedom: Malaysia’,

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Citations

1829092 (Refugee) [2024] AATA 2741

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

MIEA v Guo [1997] FCA 22

[2024] AATA 2741

18 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice