1900017 (Refugee)

[2024] AATA 3447

1900017 (Refugee) [2024] AATA 3447 (22 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1900017

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Scott Collins

DATE:22 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 22 May 2024 at 10:26am

CATCHWORDS
REFUGEE – protection visa – Malaysia – political corruption, infrastructure and economic conditions and ethnic and religious tensions – application completed by friend with some knowledge of contents by applicant – no claim of harm – limited knowledge of state news and politics – country information – financial hardship not serious harm – applicant’s trade and employment – capacity to subsist – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (5)(d)-(f), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 May 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 14 March 2017. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act.

3. The applicant appeared before the Tribunal on 30 April 2024 and 13 May 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Malay and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

10. The applicant was born in [Year] in [District], Sabah. He said he was of Dusun ethnic background and a Christian. The applicant said he spoke Dusun and Malay and that he had “zero English” before he arrived in Australia. Before he came to Australia in 2017, he was living in [District]. He completed high school. He worked as [an occupation] and, at nights, he worked [in a workplace] in [District]. He said that he had tried living in Kuala Lumpur for a time but found the cost of living there too high. His parents, he said, lived on a plantation in Sabah and he was one of [siblings]. He said he had no savings or property in Malaysia and he did not have any funds in his Malaysian national insurance account because he always worked for cash in hand.

11. The applicant arrived in Australia in 2017. He said that he currently works part time in the [City] area. He earns about AUD $400 per week on average. He said he sent his parents an average of RM 500 per week.

12. The applicant said that one of his brothers lives in Australia. Like the applicant, his brother applied for a protection visa, and the application was unsuccessful. The applicant did not know much about his brother’s application, but he said he knew he applied for a review of the decision by the Tribunal and that it was unsuccessful. (His brother’s application was in fact determined by the Tribunal on 1 September 2022, affirming the delegate’s decision. The applicant said his brother has since set down an application for an appeal of the decision.)

13. The applicant relied on a Malay interpreter throughout the entire hearing. Having no English at the time of his arrival in Australia, he said that he paid someone AUD $150 to draft his application for a protection visa. He said that the person who filled in his brother’s application was the same person who filled in his application. Even though he signed the application, the applicant said he did not keep a copy of it, and he did not recall if his friend read it back to him. He said he had “some idea” of what the application contained. At the hearing, the Tribunal read to the applicant the ground in the application and the applicant said he relied on it at his hearings.

    Application ground

14. In the application for the visa, this was entered as his claim for protection:

    I leaved Malaysia because of the political and economical status of my country became worst and down. Our country currency decrease dramatically. The price more higher and its not parallel to basic salary. I became unaffordable and poor[.]

    Statement – pre-hearing response form

15. In the applicant’s pre-hearing information form, the following points are set out in a passage under the heading “Claims for Protection”:

    I came from a very poor family in Malaysia where they called it Sabah or North Borneo. I am the backbone of my family, we live in a very far village from the city, a place very short of water and electricity. Sabah Malaysia is a very poor country, even every 5 years government an election for a new Prime Minister, and asking for the village people to vote for them to win, and makes a good promise to poor people like me for a better place and economy, but still, after winning the election they are gone with their promise. Bad politics in Sabah, Malaysia, has been a persistent issue, characterized by corruption, power struggles, and manipulation. Corruption scandals involving politicians have plagued the state, undermining public trust and diverting resources from essential services. Ethnic and religious tensions have also been exploited for political gain, leading to divisions within the diverse Sabah community. Additionally, allegations of vote-buying and electoral fraud have cast doubts on the legitimacy of election outcomes, further eroding confidence in the political process. Addressing these challenges requires transparency, accountability, and genuine commitment to serving the people of Sabah.

    Many rural areas in Sabah lack basic infrastructure such as roads, electricity, and clean water, hindering economic development and access to essential services. The inadequate infrastructure contributes to social isolation, limits economic opportunities, and perpetuates poverty in these communities.

    I am scared to return to my country where political instability and economic challenges make it difficult to afford a decent life for myself and family.

16. The applicant said that he did not write this statement. He said it was written by a friend called ‘[Ms A]’ who lives in Malaysia. He did not have a copy of the statement at the hearing. The Tribunal read it to him and asked him to explain a few of the phrases and terms used in the statement. The Tribunal found that he was not able to do so. The Tribunal  suggested to the applicant that he did not have an real understanding of much of what had been written for him, given his current level of English, even today. The applicant replied that he was aware of what his friend wrote for him and that she had “refined” his ideas for him. Overall, the Tribunal’s conclusion is that the applicant has only a vague and generalised understanding of the issues raised in the statement. Throughout the hearings, the Tribunal found that the applicant was not able to provide much information in support of the submissions drafted for him in this statement.

17. The Tribunal concludes that the statement is no more than a set of political opinions ranging over a wide variety of issues, expressed in simple and general terms, covering corruption, ethnic tensions, vote-buying and electoral fraud and lack of infrastructure and written largely by someone other than the applicant. The Tribunal finds that the statement lacks specific information as to the nature and extent of issues raised in the statement and, critically, it did not explain how the applicant is said to have experienced harm, serious or otherwise, because of these issues or would experience it in the foreseeable future if he returned to Malaysia.

18. Even though the application and the statement were his documents, the applicant did not have a copy of the statement at the time of the first hearing. Since he claimed that he did not have copies of his own documents, and he was not very familiar with the contents of either of them and nor did he have a clear understanding of them (and also because the first hearing was interrupted by a technical fault), the Tribunal decided that there should be a further hearing. Ahead of the second hearing, the applicant was provided with copies of his application and the statement. He was also invited to submit further material in support of what was written for him.

19. The applicant at the first hearing said that he had not returned to Malaysia since his arrival in Australia. He said that he did not read Malaysian newspapers or other Malaysian news sources online or otherwise. The applicant said he kept up to date with news and politics in Sabah by reading Facebook posts and talking to his parents. The Tribunal asked the applicant about politics in Sabah but the applicant’s knowledge of this was very limited. For example, he did not know the identity of the current Chief Minister or Deputy Chief Minister of Sabah (the latter being a leading proponent of Sabah autonomy and the 1963 Agreement). He said that he did not know about recent Federal and Sabah State government policies promoting the return of resource revenues back to Sabah according to the 1963 Agreement.

    Nationality and receiving country

20. The applicant’s evidence regarding his nationality, place of birth, family composition, ethnicity and religion has been consistent throughout the primary and merits review processes. The applicant has been consistent in his evidence that he is a national of Malaysia and no other country. The Tribunal finds that Malaysia is the receiving country for the purpose of assessing his claim for protection under the refugee criterion and the complementary protection criterion.

    Consideration of the applicant’s grounds – refugee criterion

21. Under s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his claim to be such a person 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.

22. 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.

23. 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.

24. Before the second hearing, the applicant provided the Tribunal with three articles from Malaysian newspapers or journals which dealt with some of the issues set out in the statement.

25. At the second hearing, the applicant agreed with the Tribunal’s assessment that he had six main grounds. These grounds were based on what was written for him in his application and in the statement, and there was also a new ground he raised at the hearings:

    (1)Economic hardship (referred to in his application);

    (2)Corruption (“Bad politics characterized by corruption, power struggles, and manipulation. Corruption scandals involving politicians have plagued the state, undermining public trust and diverting resources from essential services.”);

    (3)Ethnic and religious tensions (“Ethnic and religious tensions have also been exploited for political gain, leading to divisions within the diverse Sabah community.”);

    (4)Vote-buying and electoral fraud (“Additionally, allegations of vote-buying and electoral fraud have cast doubts on the legitimacy of election outcomes, further eroding confidence in the political process. Addressing these challenges requires transparency, accountability, and genuine commitment to serving the people of Sabah.”);

    (5)Lack of infrastructure in part of Sabah (“Many rural areas in Sabah lack basic infrastructure such as roads, electricity, and clean water, hindering economic development and access to essential services. The inadequate infrastructure contributes to social isolation, limits economic opportunities, and perpetuates poverty in these communities.”);

    (6)Failure to recognise customary land title (The applicant raised this as a ground at the second hearing in relation to land disputes. It was not clear whether the applicant saw this as related to the ground based on ethnic tensions or if it was an independent ground. The Tribunal decided it was better treated as a new independent ground.)

26. The newspaper/journal articles were translated for the Tribunal from Malay into English. The translated copies did not say from which newspaper or journal they came from and nor did the applicant know where they came from. All the same, the Tribunal accepted them as newspaper or journal articles that the applicant provided because he believed (or was informed) that they were relevant to some of the issues in the statement and to the customary land recognition issue.

    Economic and financial hardship

27. The applicant said that what he meant in this ground was that Malaysia had a high cost of living and wages were low, especially compared to Australia. Also, he would experience unemployment if he returned to Malaysia. The Tribunal referred him to country information about Malaysia from DFAT and the World Bank – that Malaysia’s economic growth was good, and unemployment was between 3 and 4 per cent across Malaysia. The applicant said that he was unaware of this information, and he believed that the cost of living was high and wages too low.

28. At the first hearing, the Tribunal read to the applicant a news report from the New Strait Times citing a speech by the Sabah Finance Minister that the Sabah finance ministry expects an overall economic growth rate of about 4 per cent next year in Sabah.[1] The unemployment rate in Sabah had decreased from 8.5 per cent to 7.5 percent in one year, and new investments worth RM9 billion and a 2024 Budget’s allocation of RM6.6 billion to Sabah from the Federal government were all part, the minister said, of the government's efforts to fulfill the Malaysia Agreement 1963. In that article, the Minister said:

    As of mid-2023, Sabah has successfully secured investments worth RM9 billion, predominantly in the manufacturing and services industries. In a strategic move to sustain and enhance this growth trajectory, the state government has committed RM124.06 million towards operational and development initiatives. Additionally, there is a strong emphasis on the oil and gas sector, recognising its potential as a key driver of the state's revenue and as a substantial source of employment opportunities.

    The Minister also said this financial support is part of the government’s efforts to fulfill the Malaysia Agreement 1963 and was welcomed by Sabah. The applicant’s response was that politicians could change their minds and it would make no difference for ordinary Sabahan people.

    [1] >

    The Tribunal relies on DFAT and World Bank information about Malaysia’s economy, unemployment levels and economic growth:

    -     It is moving from an upper-middle-income economy to high-income status, anticipated to occur between 2024 and 2028;[2]

    -     Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (RM2,208 (AUD700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021;[3]

    -     In February 2021, the Malaysian Department of Statistics reported an overall unemployment rate of 4.8 per cent; prior to the pandemic, Malaysia’s unemployment rate was 3.3 percent in 2024;[4]

    -     Malaysia has a universal health care system and a relatively well-developed social welfare system.

    [2] DFAT Country Report, para. 2.11.

    [4] type="1">

    World Bank information is that income inequality in Malaysia remains high relative to other East Asian countries but is gradually declining. While income growth for the bottom 40 per cent has outpaced the top 60 per cent over much of the last decade, the World Bank states that the absolute gap across income groups has increased, contributing to widespread perceptions of the poor being left behind. Following the removal of broad-based subsidies, the Malaysian government has gradually moved toward more targeted measures to support the poor and vulnerable, mainly in the form of cash transfers to low-income households.[5]

    [5]

    The Tribunal finds that this ground does not raise persecution. The Tribunal finds that this kind of economic and financial harm the applicant referred to is unrelated to any of the ‘Convention Grounds’ set out in s 5J(1)(a).

    Secondly, while the Tribunal accepts that the applicant might experience economic and financial challenges on returning to Malaysia, it is not ‘serious’ harm, as defined in s 5J(5) of the Act. The applicant has a trade ([occupation]) and a good employment record. The economic issues he refers to apply to all Malaysians. It is not harm that falls within any of the categories set out in that section. In particular, per s 5J(15)(d)–(f), it is not significant economic hardship that threatens the person’s capacity to subsist, or a denial of access to basic services, where the denial threatens the person’s capacity to subsist or a denial of capacity to earn a livelihood of any kind, and nor does the denial threaten the person’s capacity to subsist. Section 5J(5) is not an exhaustive definition. Taking into account the country information about Malaysia’s economy and the applicant’s personal circumstances, the Tribunal finds that the harm the applicant relied on is not otherwise so serious, as indicated by the examples in s 5J(5)(d)–(f), that it reaches the threshold required by the Act.

    Corruption

    At the first hearing, the Tribunal asked him what he meant by corruption and how was it that it would cause him serious harm if he returned to Malaysia. He responded by referring to a corruption scandal in Sabah in 2015/2016 involving officers of a Sabah water agency. The Tribunal pointed out that these allegations were investigated by the Malaysian Anti-Corruption Commission and the investigation led to dismissals, prosecution and convictions, and that, if anything, this was tended to show that Malaysia was taking steps to deal effectively with corruption.[6] The applicant said he was not aware of that.

    [6] E.g., >

    At the second hearing, the applicant relied on one of the newspaper articles to illustrate his point. This was an article entitled “Corruption practices in elections are worrying”, dated 26 September 2023. The article concerns findings of the Election Court following an investigation into corrupt election practices in the election for the Kuala Terengganu Parliamentary seat. The Tribunal suggested to the applicant that election commissions and election courts are common in democratic countries and this article indicates that in Malaysia these institutions are effective. The applicant responded that politicians in Malaysia were corrupt.

    The Tribunal referred the applicant to the opinions of international organisations such as Transparency International[7] and the World Bank[8] about corruption problems in Malaysia, namely, that there was a corruption problem in Malaysia but international opinion was that Malaysia was by no means amongst the most corrupt countries in the world, and that its anti‑corruption reputation was slowly improving. The applicant said he did not know anything about that.

    [7] See also para. 2.17 of the 2021 DFAT Country Report.

    The Tribunal also referred the applicant to the Malaysian Anti-Corruption Commission (MACC) and its numerous corruption investigations and prosecutions which included a former Prime Minister. The Tribunal suggested to the applicant that the MACC had a good reputation internationally as an effective anti-corruption institution.[9] The applicant said he did not know anything about that.

    [9] See World Bank report, ibid and also >

    The Tribunal finds that the applicant has not provided sufficient information as to the extent and nature of corruption in Malaysia and how it caused him serious harm in the past or would do so if he returned to Malaysia in the foreseeable future. Therefore, the Tribunal finds that there is not a real chance of serious harm as a result of corruption in Malaysia. Therefore, the Tribunal concludes that the applicant does not have a well-founded fear of persecution on this ground.

    Ethnic and religious tensions

    At the first hearing, the applicant said what he meant by this was the arrival of immigrants into Sabah and being permitted to vote in Malaysian elections. He was not able to provide any further information. The Tribunal assumed that he meant that these immigrants increased crime in Sabah and/or that he was referring to the practice in the 1980s and 1990s in Sabah of immigrants being given ID cards so that they could vote for the UNMO political party. If it is the former, there is no evidence that the presence of immigrants increases crime in Sabah; in fact, academic opinion is that immigration into Sabah, illegal or otherwise, had no effect on increasing crime rates.[10]

    [10] ‘Immigrant Crimes Involvement in Sabah’ Suzyneta Izziyani Anwar and Haijon Gunggut, Proceedings of International Conference on Public Policy and Social Science, UiTM Melaka Malaysia, November 2012; ‘How and Why Does Immigration Affect Crime? Evidence from Malaysia’, Caglar Ozden, Mauro Testaverde, and Mathis Wagner, The World Bank Economic Review, 32(1), 2018, 183–20

    Further, because of irredentist claims from political sources in the Philippines, the border between Malaysia and the Philippines is a sensitive geopolitical issue for the Malaysian government, to the point where it has established a special military command in the area,[11] and there are many news reports of the Malaysian government actively and routinely deporting large numbers of illegal immigrants from Sabah.[12]

    [11] E.g.,

    [12] >

    The Tribunal referred the applicant to the 2013 Royal Commission into this issue in Malaysia which involved hundreds of witnesses and days of evidence, the conclusions of which were that some immigrants may have been given ID cards so they could vote but this was because of corrupt local officials, not for political reasons, and the practice had ceased. The applicant said he was not aware of this Commission.[13]

    [13] ‘This is no conspiracy theory’, Malaysia Today, 18 January 2013; 39;

    At the second hearing, the applicant referred to one of the newspaper articles that had been provided to the Tribunal, “Sanusi Issue, 3R Heats Up in the Lead Up to the PRN”, 19 July 2023. The article appears to be more comment or opinion than news and discussed the investigation by the Malaysian Police into allegations that Chief Minister of Kedah gave an apparently inflammatory speech about the Sultan of Selangor, leading to charges or a prosecution. The Tribunal finds the article is so vague and general that it is impossible to determine how this was relevant to this ground or how it went to show the applicant would suffer harm.

    The Tribunal finds that the applicant is not able to provide sufficient information as to the extent and nature of ethnic religious tensions in Sabah or in Malaysia generally and how it caused him serious harm in the past or would do so if he returned to Malaysia in the foreseeable future. Therefore, the Tribunal finds that there is not a real chance of serious harm as a result of ethnic and religious tensions in Sabah or in Malaysia generally. Therefore, the Tribunal concludes that the applicant does not have a well-founded fear of persecution on this ground.

    Vote-buying and electoral fraud

    The applicant at the first hearing was not able to provide sufficient information about this ground or how it was persecutory or how it caused him serious harm in the past or would do so in the future. At the second hearing he relied on the same news item referred to above under corruption, about the Election Court proceedings in another state. The applicant said he has no other material relevant to this ground. The Tribunal finds that this article, if anything, tends to show that Malaysia is able to deal effectively with allegations of corrupt election practices.

    The Tribunal finds that the applicant has not provided sufficient information as to the extent and nature of vote-buying and election fraud in Sabah or in Malaysia generally or how it caused him serious harm in the past or would do so if he returned to Malaysia in the foreseeable future. Therefore, the Tribunal finds that there is not a real chance of serious harm as a result of vote‑buying and election corruption in Sabah or in Malaysia generally. Therefore, the Tribunal concludes that the applicant does not have a well-founded fear of persecution on this ground.

    Lack of infrastructure

    The applicant agreed that Sabah had adequate infrastructure in some areas. The Tribunal accepted that there were large parts of Sabah which were under-developed, and that infrastructure was no doubt poorer in regional places compared to other parts of Sabah and Malaysia. The Tribunal at both hearings questioned the applicant about whether he was aware of Federal and State policies expressly directed at the promotion of the development of Sabah.[14] The applicant said he was not aware of them.

    [14] E.g., >

    The Tribunal raised with the applicant that he came from the [District] which he agreed had relatively good infrastructure and that he has lived in other parts of Malaysia in the past and could do so again.

    The Tribunal finds that the applicant has not provided sufficient information as to the extent and nature of the lack of infrastructure in Sabah or Malaysia generally and how it caused him serious harm in the past or would do so if he returned to Malaysia in the foreseeable future. Therefore, the Tribunal finds that there is not a real chance of serious harm as a result of a lack of infrastructure in Sabah or Malaysia. Therefore, the Tribunal concludes that the applicant does not have a well-founded fear of persecution on this ground.

    Customary land title disputes

    This ground was largely advanced by the applicant at his second hearing. This was about the failure of the government to recognise and enforce customary land ownership. At the second hearing, the applicant relied on the third news item, “The People of Sabah Ask the PM to Intervene in the Issue of Confiscation of Customary Land”, 26 June 2023. This article concerned a conference of Sabah customary leaders demanding that the current Prime Minister take steps to prevent the seizure of customary land title. The Tribunal is unable to determine how this article assists the applicant. It is not clear if the applicant was relying on it as evidence of the acquisition by way of the compulsory purchase of land for public purposes by the state or as evidence of the exploitation of customary land by private entities for commercial purposes. If the former, then, the Tribunal put to the applicant that the compulsory acquisition of land for public purposes is about the only way to develop an under-developed region and provide it with the infrastructure the applicant said was wanting in Sabah. It might be different if there was clear evidence of corruption involved in the compulsory acquisition process but the Tribunal notes there is a reference in the news item to complaints by customary owners to the Malaysian Anti‑Corruption Commission.

    If it is the latter, the exploitation of customary land for commercial purposes, the Tribunal referred the applicant to DFAT information:

    3.5 Control of non-native acquisition of native land has led to tension between developers and indigenous groups across the country, especially in Sabah and Sarawak. Native title cannot be sold to a non-native person; however, sources report native titles have been converted to national titles and then on-sold for development. Sources claim government and private sector joint ventures are put forward under ‘poverty eradication’ mandates, especially in poorer rural areas, after which land can be purchased from native land holders in preparation for development, and profit dividends are not shared. Sources report there is no legal recourse for indigenous people who have lost their native title. However, in 2019, the Land Code was amended by the Sarawak State Assembly to make it easier for indigenous Sarawakians to claim Native Customary Rights over their traditional lands. Conflict over native land continues. In June 2020, Orang Asli communities near Kuala Lumpur set up blockades to prevent loggers from resuming logging activities on their traditional lands.

    3.6 Sources report that, prior to the 2018 election, under the former BN government, ‘communal titles’ were awarded to village communities in Sabah to guarantee rights to small acreages as a temporary measure while legal cases over land rights were pending. While a communal title is in place, no one is permitted to develop or sell the land. Sources claim the previous Sabah government intended to abolish communal titles as part of its anti-corruption campaign. DFAT is not aware of any action to revoke communal titles to date. Sources also report many Orang Asli were paid by the Department of Orang Asli Development to convert to Islam in the 1990s. Those Orang Asli unwilling to convert were reportedly told that, if they did not do so, their native land rights would be taken away (for conversion of Orang Asli, see State Islamic Religious Departments).

    The applicant said he was not aware of the existence of recognition of communal titles as set out in the DFAT report; in fact, he said there was no such thing and said that the DFAT information is wrong. The Tribunal prefers the opinions expressed in the DFAT report.

    The applicant then referred to Chinese people buying land in Sabah and using it for palm oil plantations in [District]. He was not able to provide any further information. The Tribunal asked him if he could describe how this would cause him serious harm, given that he said his parents live and work on a [plantation] in Sabah and that he is [an occupation] who had lived in [District] and Kuala Lumpur. He was not able to explain any further except he accepted the Tribunal’s proposition that the issue of customary land use in underdeveloped areas is complex and has many sides to it.

    The Tribunal finds that the applicant has not provided sufficient information as to the extent and nature of the alleged failure to recognise customary land title in Sabah or Malaysia generally and how it caused him serious harm in the past or would do so if he returned to Malaysia in the foreseeable future. Therefore, the Tribunal finds that there is not a real chance of serious harm as a result of the lack of recognition of customary land rights in Sabah or Malaysia generally. Therefore, the applicant does not have a well-founded fear of persecution on this ground.

    The applicant said at the hearings that there were no other grounds or relevant harms.

    Conclusion

    The Tribunal finds that none of the applicant’s grounds establish that the applicant has a well‑founded fear of persecution. The Tribunal accepts that he may have genuine opinions about these issues but his opinions are not so deep or well-developed that he is able to explain why he claims he has a well-founded fear of persecution; nor, if they are persecutory, whether there is a real chance that the applicant would experience serious harm; and nor how he would experience serious harm from them if he returned to Malaysia. For the reasons given above, the Tribunal is satisfied that the applicant is not 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). The Tribunal has found that the there is no real chance that the applicant would suffer serious harm under the refugee criterion, and the Tribunal for the same reasons finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he would suffer significant harm as defined in the Act. Accordingly, the Tribunal is satisfied that the applicant is not 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.

    …