1834472 (Refugee)

[2024] AATA 3046

1834472 (Refugee) [2024] AATA 3046 (30 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834472

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Jason Cabarrús

DATE:30 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 30 April 2024 at 2:09pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – supplying a restricted herbal substance – hiding from the police – fear of detention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 30 October 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 is a citizen of Malaysia as shown on his passport, applied for the visa on 1 June 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee or complementary protection criteria in the Act.

3. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he meets the complementary protection criterion. These criteria broadly require that a person face a real chance of persecution for specified reasons, or a real risk of significant harm, in their home country. The relevant law is set out in the attachment at the end of this decision.

4. For the following reasons, I have concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

5. The applicant was born in Kajang, Selangor, Malaysia in [specified year]. He came to Australia in March 2018 on a visitor visa and applied for the protection visa in June 2018. He gave the department a copy of his passport, his tourist visa and his Malaysian ‘MyKad’ identity card.

6. The delegate refused to grant the visa in October 2018 and the applicant applied to the Tribunal for a review of that decision in November 2018. He gave the Tribunal a copy of the delegate’s decision.

7. The applicant appeared before the Tribunal on 16 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

8. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.

   Summary of claims

9. The applicant claimed that he would face harm in Malaysia in relation to having sold [product 1] there. [Product 1] is a [herbal] substance derived from the [named] tree ([alternative name]), which has been used as a traditional medicine in Southeast Asia.[1] [Product 1] is listed as a controlled [substance] under Malaysia’s Poisons (Psychotropic Substances) Regulations 1989 under the Poisons Act 1952 [Act 366], which prohibits a person from, among other things, manufacturing, dispensing, selling, supplying, possessing or using such a substance, with penalties of up to a MYR 10,000 fine and/or imprisonment for up to 4 years.[2]

   [1] [Sources deleted].

   [2][Source deleted.].

10. The applicant’s claims can be broadly summarised as follows:

    a.when he was young he lived with his parents in Kajang, Selangor; his parents were strict and he didn’t have a good relationship with them and didn’t like school, so when he was around [age] years old, he went to live with his grandparents in [Town 1];

    b.he started working around this time as a parking boy; he had many jobs after that, including being a salesperson in a [shop] (from around [age] years old), [an occupation 1] (around [age range] years old), and [an occupation 2] (for two years after that);

    c.he attended school for only 2 or 3 weeks a year from ages [age range], and failed his [grade] exam at the end of that; he attended school for 2 or 3 months a year from ages [age range], and failed his [grade] exam at the end of that;

    d.a friend of his had stage 2 cancer, and used [product 1] as a medicine; a friend of his owned a [product 1] plantation, and in late 2016 the applicant began to buy [product 1] leaf directly from them, cook it and turn it into a drinkable liquid, and sell it to people;

    e.a friend told him that this activity was illegal, as [product 1] was like a drug, and police also came looking for him; the police looked for him at his parents’ house, because his ID card had his parents’ address not his grandparents’ address; his friend told him not to go back home as the police were looking for him, and his parents asked him to go to the police station; the applicant realised that what he was doing was illegal and stopped selling [product 1] around July or August 2017;

    f.after that, he lived off his savings and from the proceeds of the sale of one of his motorbikes which had sports rims; the police were hunting him down and he was hiding himself from the police; he went to hide at a friend’s place for 2 to 3 weeks around October or November 2017; he otherwise remained at his grandparents’ house until he came to Australia in March 2018;

11. The applicant told me that if he returned to Malaysia, he feared that he would face prosecution and imprisonment because he had done something illegal; that he didn’t know how long they’d jail him for but he could face a harsh penalty like life in prison, and his future would not be good after that; and that because he didn’t have any support, he’d be very lost, so he’d rather stay in Australia and live his life.

12. The applicant told me that his visa application was filled out by another person, and although he told that person his reasons for coming to Australia, he had no idea what they wrote in the form. He told me that he was happy for me to disregard what was written in the visa application form and rely on what he told me at hearing about his claims. I therefore have not given any further consideration to the claims as expressed in the visa application form (which differed in some respects from what he told me at hearing and made no reference to the applicant selling [product 1] in Malaysia).

    Hearing, findings and reasons

13. As noted above, the applicant told me that police had come to look for him at his parents’ house. I asked the applicant if the police had just visited his parents’ house the one time. He replied that he wasn’t sure how many times they had visited, but it was only once in uniform, because his friends only told him once, but sometimes police hunt down criminals without wearing a uniform, so he’s not sure. He told me that his friend [Friend A] told him the police had come. I asked him how [Friend A] knew that the police had gone to his parents’ house. He replied that he asked his friend to keep an eye on his family and on the house and see if any police came, and let him know if they saw anything.

14. I asked the applicant why he had asked [Friend A] to keep an eye on his parents’ house. He said that he had a [social media] group with friends, and asked them to keep an eye on his parents’ house in case something unusual happened; and that maybe [Friend A] had passed by and seen police at his parents’ place one day, and announced it in the [social media] group. I asked the applicant if he could show me these [social media] messages, and he said he no longer had this message history. I put to him that I was having difficulty understanding why he asked [Friend A] to keep an eye on his parents’ house, as this seemed like an unusual thing to do. He replied that when you are [an occupation 2], you [drive around] every day, and sometimes [Friend A] passed by the house, and maybe one day he passed by and saw police.

15. I put to the applicant that I was concerned that he had not reasonably explained why he had asked his friend [Friend A] to keep an eye on his parents’ house. He replied that he had to rely on his friends to get information, because he wasn’t close to his family, so he asked his friends to pass on information, and announced in his [social media] group to keep an eye on what’s happening around the family home, maybe for police or anything, but he didn’t ask them to look 24 hours a day.

16. I asked the applicant what made him think the police were looking for him that time when [Friend A] saw them there. He replied that his family are law-abiding people, all of his siblings are ordinary and he’s the only troublemaker, because of the people he hangs around, but he doesn’t want to bring shame or harm to his family members. He later told me that his dad told him in an angry voice that the police had been looking for him, and that he just hung up when he heard that.

17. I asked the applicant if he had any evidence that the police were looking for him in Malaysia. He said that he had no idea if any charges were sent to his address, because he didn’t go home. I asked him whether his parents or grandparents would have told him if police had brought something to their home (given that he had told me he had spoken with his parents and grandparents, including since coming to Australia). He said in his family, they traditionally respect each other’s privacy, so if mail arrived under somebody’s name, they wouldn’t open it; and that he had no idea of any charges or anything in a written form at his parents’ or grandparents’ house.

18. I asked him why his parents would not have given the police his grandparents’ address to find him there. He replied that his grandparents were also very strict and his whole family line can all lose their temper easily.

19. I put to the applicant that I was concerned that he had not reasonably explained how he knew that the police were interested in him in relation to selling [product 1]. He replied that Malaysia is a strict Muslim country and selling [product 1] is illegal and against the teachings of Islam; and his parents don’t care about him much, he doesn’t have a good relationship with them, so if there’s anything that concerns him, he normally gets the information from his friends, not his parents.

20. I put to the applicant that I was also finding it difficult to understand how, despite his claims that the police were hunting him, the police were unable to find him at his grandparents’ house, where he continued to live for several months before he came to Australia (after they visited his parents’ house); in circumstances where he had been living there for around a decade, and country information indicates that the Royal Malaysian Police is a professional and effective police force.[3] The applicant replied that he did not need to spend a lot of time at home, he was out most of the time, so maybe this is why they didn’t manage to find him at his grandparents’ place; and another reason may be because he was not the only one selling [product 1]; and he knows the police were taking actions against people selling [a related product], which he was also doing.

    [3] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – Malaysia’, 29 June 2021 at 5.5.

21. As noted above, the applicant told me that his ID card had his parents’ address, not his grandparents’ address. I put to the applicant that the ID card he had provided with his visa application listed an address in [Town 1], which is where he told me that his grandparents lived, as opposed to Kajang where his parents lived. In response, he told me that he actually had two ID cards, the first of which listed the address in [Town 1], the second of which had the address in Kajang. I put to the applicant that I was concerned that he had not reasonably explained why the police were unable to locate him at his grandparents’ house. He replied that he wasn’t sure why they didn’t find him, maybe he’s just lucky because he wasn’t home all the time.

    Applicant’s credibility and findings of fact

22. I consider that many aspects of the applicant’s account of the police looking for him in Malaysia in relation to selling [product 1] were vague and lacked reasonable explanations.

23. He initially told me that a friend told him that selling [product 1] was illegal and that the police looked for him at his parents’ house, because his ID card had his parents’ address not his grandparents’ address. When I asked him how he knew the police had looked for him there, he told me that he asked his friends to keep an eye out on his parents’ house, and that his friend [Friend A] told him that police had been there. However, he did not provide a reasonable explanation for why he had asked his friends to watch his parents’ house and keep an eye out for police ‘in case something unusual happened’. By his own account, he had not yet had any interactions with the police in relation to selling [product 1], and only became aware that they were looking for him after [Friend A] saw them at his parents’ house. He has given no other reasons as to why he would think the police might be looking for him at that time, and has not reasonably explained why he took the unusual step of asking his friends to monitor his parents’ house, before he had any reason to think the police were yet looking for him.

24. Nor did he reasonably explain how he knew that the police were interested in him in relation to selling [product 1]. Given that [Friend A] had only seen the police at his parents’ house (but not spoken to him), and his father had only told him the police were looking for him (after which he hung up), nothing in the applicant’s account explained how he knew the reasons why the police were allegedly looking for him. When I questioned him about this, his responses did not explain how he knew that the police were after him because he was selling [product 1], and instead focused on [product 1] being illegal in Malaysia.

25. Nor did he reasonably explain why his father would not have given the police his grandparents’ address to find him there, in circumstances where he indicated he does not have a good relationship with his father and is known for causing trouble for his family. His grandfather being strict and having a temper doesn’t explain why his father would not do this.

26. Nor did he reasonably explain how he managed to successfully hide at his grandparents’ house over the several months the police were allegedly hunting him down. His explanation that he was out a lot of the time does not explain how the police were unable to apprehend him there; nor does his claim that he hid at his friend’s house for 2 or 3 weeks, because that was only a short time out of many months; nor do his explanations about his ID having his parents’ address, noting that he later said that he had also held another ID card with his grandparents’ address. In light of the country information indicating that the Royal Malaysian Police is a professional and effective police force, it is reasonable to expect that if the police had been looking for the applicant they could have searched databases for alternative addresses listed in historical ID registrations for the applicant, and that they could have waited to apprehend him at his grandparents’ place when he returned there.

27. Because there were several issues with the applicant’s account, I find that the applicant is not a witness of truth and did not give truthful evidence about his claims.

28. I therefore do not accept:

    a.that the applicant ever bought, processed or sold [product 1] in Malaysia; or

    b.that police ever searched for the applicant in relation to this; or

    c.that the applicant ever went into hiding in Malaysia in relation to this.

29. Accordingly, I find that the applicant was of no interest to the authorities at the time he left Malaysia in 2018, and will be of no interest to the authorities if he returns to Malaysia in the reasonably foreseeable future.

30. I therefore find that there is no real chance that the applicant will face persecution, significant harm, or any other kind of harm in Malaysia in the reasonably foreseeable future, on the basis of these claimed events. The applicant did not provide any other reasons why he feared he might face persecution or significant harm in Malaysia. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).

31. 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

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

    Jason Cabarrús
    Member

    
    

    ATTACHMENT

    Criteria for a protection visa

    The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

    Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted below.

    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 below.

    Extracts from the 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.

    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.

    …