1925998 (Refugee)
[2024] ARTA 523
•4 November 2024
1925998 (REFUGEE) [2024] ARTA 523 (4 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 1925998
Tribunal:General Member J Kotsifas
Date:4 November 2024
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 04 November 2024 at 2:09pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Malaysian Indian – religion – Hinduism – fears harm from Muslim gangsters – attendance at the temple – evidence was vague – claims do not have a credible basis – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old man[1] who claims to be a national of Malaysia. He first arrived in Australia on [date] February 2019 holding an Electronic Travel Authority Subclass 601 (Class UD) visa and has not departed since his arrival. He applied for his protection visa on 23 April 2019.
[1] Department File: [deleted], AAT File: 1925998
On 12 September 2019, the delegate refused to grant the applicant’s visa on the basis that he is not a person to whom Australia has protection obligations.
The applicant applied to the Tribunal for a review of the delegate's decision on 16 September 2019.
The applicant appeared before the Tribunal on 27 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Malaysian) and English languages. The applicant was not represented at the hearing.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The applicant’s personal background
The applicant was born in [George] Town, Penang, Malaysia. The applicant was not married when he lodged his application but is now in a de facto relationship. The applicant and his partner have one child born in Australia on [date]. The applicant’s ethnicity is Malaysian Indian, and his religion is Hinduism.
His parents reside in Malaysia, and he has four siblings who also reside in Malaysia.
Prior to his arrival in Australia, the applicant was employed in a variety of employment settings consisting of [deleted].
The applicant’s work experience in Australia has predominantly been in [specified industry], however his current employment has been as a [occupation]. He has been working for the same employer for the last one and a half years and he earns approximately $750 per week from his current employment. The applicant’s partner looks after their child and does not currently work.
The Tribunal accepts the above matters to be true.
Evidence before the Department
The applicant’s initial claims for protection
The applicant’s initial claims can be summarised as follows:
·There was an incident in November 2018 at a Hindu temple between Hindu devotees and Muslims. The applicant was at the temple when this occurred.
·There was violent action, and a Muslim man was killed.
·The Muslim community wanted to take revenge and believed that the applicant was one of the people responsible for the death of the Muslim man.
·They applicant was hunted by Malay Muslim gangsters, and he feels insecure in Malaysia.
·If he returns to Malaysia, he may be killed.
·The Muslim gangsters will be looking to take revenge by killing the applicant.
·The applicant is unable to relocate to another area of Malaysia because the gangs have nationwide influence.
·The applicant is not sure if the authorities will be able to provide them protection.
The interview
Department records indicate that the applicant was not invited to attend a protection visa interview.
The delegate’s decision
The delegate found that the Malaysian authorities can provide protection to the applicant, and they are willing and able to offer such protection. In addition, the delegate found that the applicant can access the protection, the protection is durable, and the protection consists of an appropriate criminal law, a reasonably effective police force and impartial judicial system. The delegate was satisfied that there are effective protection measures available to the applicant in the receiving country and that the applicant does not have a well-founded fear of persecution. The delegate found that the applicant is not a refugee as defined in s 5H of the Act and the criterion in s 36(2)(a) of the Act was not satisfied for this reason.
With respect to complementary protection, the delegate found that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm as outlined in s 36(2B)(b).The delegate found that there was not a real risk that the applicant will suffer significant harm and the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(aa) of the Act.
Evidence before the Tribunal
The Tribunal asked the applicant whether he had prepared his own protection application. He indicated that he had assistance from an agent who had been recommended to him by friends. The Tribunal asked the applicant whether his original claims were true and correct and the applicant confirmed that they were.
The applicant told the Tribunal that his initial intention was to get away from his problem in Malaysia and he was only intending to stay in Australia for a while but not permanently.
The Tribunal asked the applicant to describe the circumstances that formed the basis of his protection application. The applicant told the Tribunal that the incident took place on 26 November 2018. He was at a friend’s house, and he noticed that many Muslims had come to the Hindu Temple which was close. Whilst the applicant lived more than 400 kilometres away in George Town, Penang, he was staying with a friend and his family for four days to participate in the Hindu festival that was occurring at the time.
The applicant stated that the temple was close to his friend’s house and his friend’s parents and family members were at the temple that night along with many other devotees. He and his friend went to the temple to make sure his friend’s family members were safe. The applicant stated that there were many people at the temple, and some were trying to destroy the temple. He stated that a vehicle was set alight, there was damage to property and there was fighting between Hindus and Muslims. The applicant told the Tribunal that he subsequently became aware that a fire brigade officer that had attended to deal with fires after cars were set alight, died at the scene.
The applicant stated that he subsequently returned home but after about three days some Muslim people came to his family home looking for him when he was not present. The applicant’s brother, who was home at the time, was shown a picture of the applicant and asked if the applicant lived there. His brother told them that he did not live there. The applicant stated that the same Muslim people went to other houses in the same village to inquire about other people.
The Tribunal asked the applicant if the people who came to his home had returned to his home at any subsequent stage and he stated that they did not come back to his home, but they came to the village on motorbikes and cars driving erratically and making threatening noises. The applicant stated that only he and his sister lived with their parents and on one occasion a car came very close to his sister in a threatening manner whilst she was on her motorbike, and she believed it was the same Muslim people that had previously come to the applicant’s village. The Tribunal asked the applicant if his sister was harmed in any way, and he confirmed that she was not harmed and that he and his sister went to the police to report the matter. The applicant stated that the police told them that they would not assist them because they were part of a group. The applicant stated that the police wanted to arrest him and his sister. The Tribunal asked the applicant whether he and his sister were arrested, and he stated that they were not arrested as the police changed their mind. The Tribunal asked the applicant why the police would want to arrest him, and his sister and he stated that he did not know. The Tribunal asked the applicant if his sister had been harmed on any other occasion and he stated that she had been harassed on five occasions. He stated that a group of Muslims would sit at a café near his house and when they saw Hindus, they would harass them and abuse them. He stated that there was a lot of racism by Muslims against Hindus where he lived. The applicant reiterated that apart from being verbally abused and harassed, his sister was never harmed.
The Tribunal asked the applicant if there were any further incidents, and he stated that on another occasion when he was not at home, a person came to his house looking for him. He told the Tribunal that the person spoke to his brother and told him that he was a police officer, but he was not wearing a police uniform. His brother told this person to go away and then called the police who told him that no one from the police station had been sent to look for the applicant.
The applicant stated that his Muslim friends told him that a picture of him was being distributed amongst the Muslim members of the community and in mosques and people were looking for the applicant to harm him. The applicant told the Tribunal that he then decided to stay at different locations, and he did this for three months so as not to be noticed.
The applicant told the Tribunal that his brother thought it best that the applicant leaves Malaysia to get away for a while. His brother tried to apply for an Indian visa for the applicant, but they were unable to have the visa approved so the applicant’s brother decided to send the applicant to Australia instead.
The Tribunal referred the applicant to his initial claims and observed that the applicant had not claimed that he had been harmed at any stage. The Tribunal put to the applicant that in answer to a question in his application form about whether he had experienced any harm in Malaysia he answered “no”. The Tribunal asked the applicant to confirm that he had never been harmed. The applicant responded by indicating that he had been beaten by some people in the temple that were fighting. The Tribunal asked the applicant to elaborate on what had occurred and he stated that the Muslim people that were present had sticks and that they were hitting many of the Tamils that were present, and he also was hit with a stick but suffered no injuries.
The Tribunal asked the applicant why he would be the focus of attention from Muslim groups and why he would be targeted given that there were many people at the temple site. The Tribunal also asked the applicant how his photograph had been obtained by the people who were looking for him. The applicant stated that someone in the crowd that had gathered outside the temple must have taken a video of what was occurring, and he may be in the video as an observer and that is how they may have obtained an image of him.
As to why he would be targeted by Muslim the applicant stated that he believes that people have misunderstood the tattoo on his neck as a sign that he is a thug or a member of some gang and that he is anti‑Muslim. The applicant told the Tribunal that he believes this is the reason why people have concluded that he was somehow involved in the fireman’s death.
The Tribunal asked the applicant why he would fear any harm if returned to Malaysia given that he has lived in Australia since February 2019, a period of more than five years. The applicant stated that if he is returned to Malaysia he may be questioned by the police as his tattoos will make him a target for questioning and harassment. The Tribunal asked the applicant when he had his tattoos done and he said that it was in 2014 when he was [age] years of age. The Tribunal asked the applicant if he was ever targeted by the police because of his tattoos. The applicant stated that he has been stopped many times by the police at roadblocks and that he was questioned about any involvement with gangs. The applicant stated that this was nothing new as many people with tattoos are presumed to have gang connections.
The Tribunal asked the applicant if any member of his family had been harmed or threatened in any way since November 2018 when the riot at the temple occurred. The applicant confirmed that no member of his family had been harmed in any way or threatened with harm but one month before he came to Australia some people came to his house asking about his whereabouts. The applicant stated that he was not home and that he does not know who they were and why they were looking for him.
The Tribunal asked the applicant about the possibility of relocating to another part of Malaysia in order to avoid any future harassment or threats. The applicant stated that Indian Tamils are a minority in all parts of Malaysia and that he can easily be identified no matter where he chooses to live.
The Tribunal asked the applicant if there was any other reason, he fears harm if returned to Malaysia apart from the reasons he has given to the Tribunal. The applicant indicated that there were no other reasons.
Country information
Reports[2] of the violence that broke out at a Hindu temple in November 2018 highlight the following:
Malaysian police said they arrested 17 suspects Monday after violence broke out at a Hindu temple near Kuala Lumpur, in what authorities described as an escalation of a dispute over the relocation of the house of worship. Seven people suffered injuries after a group of men attacked devotees at the Sri Maha Mariamman temple in Subang Jaya township, said police. Eighteen cars and two motorcycles were smashed or torched during Monday’s incident, authorities said.
“It has nothing to do with racism. This is related to the transfer of the temple to a new location nearby,” Police Inspector-General Mohamad Fuzi Harun told reporters in Kuala Lumpur. “As for those arrested, they are all locals.”
Despite its multicultural make-up and civil liberties that are enshrined in the country’s federal constitution, Malaysia has experienced racial violence, including rioting that occurred in the aftermath of the 1969 general election. The Sri Maha Mariamman temple sits on private land belonging to property developer One City Development. Four years ago, a court ruled in favor of One City and ordered the temple to be relocated more than 3 km (almost 2 miles) away. The developer denied any involvement in Monday’s violence.
“Allegations that One City orchestrated the incident are malicious lies. One City condemns any acts of violence or any insinuations that would resort to such despicable acts,” it said in a statement. Meanwhile, a group of Malaysian Indian parliamentarians condemned what they called an “unprovoked attack on the temple.” “We call for a full and independent inquiry by the police to establish who is behind this serious attack on the temple and the motive for it. Those responsible for this violence must be caught and punished”, said a statement signed by four MPs.
[2] Malaysia: 17 Suspects Arrested in Violence at Hindu Temple – BenarNews – 26 November 2018
Other reports[3] of the incident highlight the following:
Vehicles were set ablaze when violence broke out near the Seafield Sri Maha Mariamman temple in Selangor’s Subang Jaya in the wee hours of Monday (Nov 26). The fight between two groups was sparked by a disagreement over the relocation of the Hindu temple, Subang Jaya district police said in a Facebook post. Hindu devotees were reportedly protesting the relocation of the 100-year-old Hindu house of worship when they were attacked by another group of Muslim people, news portal Malaysiakini said.
“Eighteen cars and two motorcycles were torched in the incident. A police patrol car was also damaged by stones thrown during the incident,” said Selangor police chief Mazlan Mansor.
“About 50 men were in the compound of the temple and a group of men was outside. They traded insults that led to the riot,” he added.
In a Malaysiakini video, it is clearly seen that Jihadi people came out in streets with Allha-o-Akbar slogans to chase the Hindus to stranded them from their demand to save the dignity of the 100 years old Sri Maha Mariamman temple in the seafield area of Selangor’s Subang Jaya.
[3] After Islamic insult on Hindu temple in Malaysia, Violence breaks out, Vehicles set ablaze. | Struggle for Hindu Existence – 27 November 2018
In another report about this incident,[4] the following was reported:
Police have denied that they had wrongfully arrested anyone asked to provide their statement for investigations into the riots at the Sri Maha Mariamman Devasthanam temple in Subang Jaya.Selangor police chief Commissioner Datuk Mazlan Mansor said so far, the arrest of suspects was based on standard operating procedures, where there were reasonable grounds to detain individuals suspected of involvement for questioning.
“We are just doing our job. If there’s a valid reason to believe that the individual is involved with the temple fracas, then we will have to execute our duty,” he told reporters at the Selangor police headquarters here today. Mazlan pointed out that not all individuals who were arrested will necessarily lead to prosecution, clarifying that the Attorney-General’s Chambers will decide on the next course of action. He was responding to a faction of the Hindu temple led by S. Ramaji who reportedly claimed that the police had wrongfully detained some worshipers during the riots that broke out over a land dispute. However, Mazlan assured that if the public feels that there were wrongful arrests, then a police report can be lodged, and the police will look into it.
Mazlan said that to date, 102 people have been arrested in connection with the incident. Earlier this week, police disclosed 66 individuals who were being sought to assist the probe in the riot. Meanwhile, Mazlan also added that the lawyer and development director of MCT Bhd, who were detained in connection with the riot at the temple, have been released on police bail. The duo were released on a RM10,000 bond on Wednesday.
The riots which took place on Nov 26 and 27 following disagreements over the relocation of the temple to a new site had resulted in several people being injured as well as vehicle and property damage. Several policemen were injured in the clashes in which 23 vehicles either torched or damaged and business premises vandalised. Firefighter Muhammad Adib Mohd Kassim was also seriously injured by attackers and is now warded at the National Heart Institute.
[4] – 6 December 2018
Reports of the firefighter’s death during the temple riots[5] observed the following:
Malaysia's Coroner’s Court announced on Friday (Sept 27) that fireman Muhammad Adib Mohd Kassim’s death from injuries sustained during a riot in Subang Jaya last year was the result of a crime. Coroner Rofiah Mohamad said Adib’s wounds were likely the result of an assault by several individuals during the incident. “The death is caused by a criminal impact by two or more unidentified people,” she said. The inquest was called following conflicting accounts of the events leading to Adib’s injuries, which include him being accidentally hit by his own emergency vehicle or being attacked by people who pulled him out of it. Ms Rofiah also said omission on the part of the authorities were a contributing factor to his death. “I am also of the view that the police and the FRU had failed to control the riot, and this had contributed to Adib’s death,” Ms Rofiah said when delivering her conclusion.
“It is very unfortunate when two FRU teams with hundreds of personnel and seven types of various vehicles, including water cannons, merely watched the protestors attack the firefighters without doing anything. “They were only on standby with their weapons, because they did not receive any orders to act, despite the tense situation,” Ms Rofiah added.
[5] Malaysian fireman's death in Selangor temple riot a result of crime: Coroner's Court – TODAY – 27 September 2019
The Tribunal shared with the applicant the above reports about the incident and additional country information which it considered relevant to the applicant’s case. The Tribunal also summarised and canvassed with the applicant country information, including both from the Department of Foreign Affairs and Trade (DFAT)[6] and an open source,[7] suggesting that state protection is available for him if he returns to Malaysia. Whilst acknowledging that the DFAT report highlights concern about police corruption, the police are generally regarded as a professional and effective police force and relevant information would also indicate that the Malaysian police have been active in taking action against gang activity. According to DFAT:[8]
The RMP is based on the British constabulary model, employs approximately 115,000 officers, and operates over 800 police stations across Malaysia. Multiple local and international sources consider the RMP to be a professional and effective police force, although note the quality of its members’ responses varies depending on levels of training, capacity, and engagement in corruption. RMP officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians, and Indian Malaysians.
According to Transparency International’s 2017 Global Corruption Barometer for the Asia‑Pacific region (the latest available), Malaysians perceive the police as one of the most corrupt institutions in the country. External investigations into allegations of police misconduct were previously conducted by the Enforcement Agency Integrity Commission, which was not well‑regarded by complainants. From July 2023, such investigations have been carried out by the Independent Police Conduct Commission (IPCC). The establishment of the IPCC was recommended by a Royal Commission in 2005. Due to the number of deaths in police custody and impunity in detention centres, the incoming government pledged to establish such an agency during the 2018 election campaign. In 2020, the then-government re‑introduced what observers described as a ‘weakened’ bill, proposing the creation of the IPCC, which came into force in July 2023. SUARAM stated in April 2023 that the body has ‘too many restrictions which will hinder its investigations’ and that it is effectively ‘toothless’.
[6] DFAT Country Information Report Malaysia, 24 June 2024 at 5.5–5.8
[7] Selangor police cripple 10 Ah Long syndicates | Malay Mail,[8] DFAT Country Information Report Malaysia, 24 June 2024 at 5.5
According to DFAT, Indian Malaysians constitute the third-largest ethnic group in Malaysia and face moderate levels of discrimination:[9]
Department of Statistics Malaysia estimates their population at 2.02 million, approximately 6 per cent of the population. Most are Tamil speakers, whose ancestors migrated as agricultural labourers for the British prior to independence. Many Indian Malaysians are relatively poor. Historically Indian Malaysians had a higher average income than Malays, however Malays have made significant gains due to the benefits of the Bumiputera system, which Indian Malaysians are excluded from. Indian Malaysians also reportedly suffer discrimination in obtaining rental accommodation. Indian Malaysians are predominantly Hindu, though some are Muslim, Christian, or Sikh.
There are publicly funded Tamil-language primary schools; however, Indian Malaysian students must attend Malay-language public high schools, where some reportedly struggle to make the linguistic adjustment. Indian Malaysians often struggle to access state-based tertiary education. In-country sources reported clear discrimination for university entry in favour of Malays, to the detriment of Indian Malaysian students. In-country sources reported that some students with ‘Flat A’ marks (a perfect GPA of 4.0) were awarded their 6 or 7th preferred course, while Malay students with lower marks received their first choices.
A significant number of Indian Malaysians are either stateless or lack citizenship papers. Historically, many lived on self-contained agricultural estates and never received birth certificates or other forms of documentation, and some newly urbanised Indian Malaysians still lack documentation. These undocumented individuals are not able to access health care and other government services on the same affordable terms as citizens (see Health). Many undocumented Indian Malaysians reportedly work in informal labour sectors or drift into gangsterism. Indian Malaysian in-country sources reported that authorities have arrested many undocumented ethnic Indians when registering at hospitals to access health services, resulting in a reluctance to access services within the community.
DFAT assesses that Indian Malaysians face moderate levels of official discrimination, including when attempting to gain entry into the state tertiary system or civil service.
[9] Ibid at 3.16–3.22
The DFAT report provides the following in relation to Hindu places of worship[10]:
According to the US State Department, Hindus make up around 6.1 per cent of the Malaysian population and most Hindus in Malaysia are Indian Malaysians.
In recent decades, many Hindu places of worship in Malaysia have been destroyed or relocated against the wishes of their communities. In 2020, the PAS-led government of the state of Kedah destroyed five Hindu shrines, stating their construction had occurred without appropriate permission. At least one of these shrines was built in colonial times and was constructed legally. In-country sources told DFAT that Hindu temples were sometimes destroyed if they were on the ‘wrong land’ (that is incorrectly zoned). Demolitions of Hindu places of worship have taken place as recently as 2020 in Kedah. In 2021, an Indian Malaysian politician, Malaysian Indian Congress (MIC) President S Vigneswaran, reported some temples had been destroyed because they were ‘illegally constructed’. Like other non‑Muslims, Hindus struggle to access land zoned as ‘religious to build temples (see Places of Worship).
DFAT is not aware of cancellations or restraints placed upon Hindu festivals or holidays since 2021. DFAT assesses that Hindus are generally not at risk of societal discrimination. They face a moderate risk of official discrimination in the form of demolition or removal of certain places of worship, although in most cases alternative places of worship are available.
[10] Ibid at 3.80 – 3.83
The applicant was invited to respond to the DFAT report and other country information about gang activity, the effectiveness of the police in combating such gangs, access to police protection and DFAT information about Indian Tamils living in Malaysia. He stated that he did not agree with the DFAT report regarding police protection and that the police discriminate against Indian Tamils and will not protect them. He stated that it is generally accepted by Indian Tamils living in Malaysia that the police will not offer any protection to them because of their ethnicity.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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 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.
The most recent report from DFAT at the time of hearing was the Country Information Report for Malaysia dated 29 June 2021[11]. The Tribunal has considered this report, together with the DFAT report issued on 24 June 2024[12] as well as other relevant country information referenced in this decision.
[11] DFAT Country Information Report Malaysia, 29 June 2021
[12] DFAT Country Information Report Malaysia, 24 June 2024
REASONS AND FINDINGS
The issue in this case is whether there is a real chance that if the applicant returns to Malaysia they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Based on the evidence before the Tribunal, the Tribunal accepts and finds that the applicant does not have a right to enter and reside in a country other than his own country of origin – Malaysia. Therefore, the Tribunal accepts that s 36(3) of the Act does not apply to the applicant’s circumstances.
The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained in his Departmental file.[13] He has at all times stated that he is a citizen of Malaysia and has been assessed on that basis by the Department. Accordingly, the Tribunal finds that the applicant is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.
[13] Department File: Department File: [deleted]
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’ or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[14]
[14] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, and nervousness and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is taken into account in these findings.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.[15]
[15] Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J, Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
Applicant’s fear of harm from Muslim gangs
The Tribunal accepts that the applicant attended a Hindu Temple in November 2018 when a riot erupted between Hindu devotees and Muslims which, according to relevant reports, occurred over the proposed relocation of the temple.
The Tribunal accepts that the applicant was staying at a friend’s house located close to the temple and that the applicant and his friend attended the temple when they realised that a large group of Muslims protestors had attended the temple. The Tribunal accepts that the applicant and his friend were concerned about his friend’s family that had attended the temple that evening, and they attended in order to make sure they were safe.
Relevant reports that have been referred to in this decision confirm that Hindu devotees were reportedly protesting the relocation of the 100-year-old Hindu house of worship when they were attacked by another group of Muslim people.
The Tribunal does not accept that the applicant was seriously harmed in any way during the protest. The initial claim lodged by the applicant made no mention of him being harmed in any way, and in answer to a specific question on his application form, he answered “no” when asked if he had been harmed in any way. It was not until the Tribunal raised this issue with the applicant during the course of the hearing that he remembered that he was beaten during the riot that took place. The applicant’s evidence of the assault was vague and lacking in detail other than stating that he and others that were present were hit with sticks. Other than being hit by a stick during the riot and unrest that took place in November 2018, the applicant has never been harmed by Malaysian gangs or any other person. The Tribunal finds that the applicant was hit with a stick during the November 2018 riot that took place but was otherwise not injured.
The Tribunal does not accept that the applicant was or will be specifically targeted by Muslims groups as a result of his attendance at the temple or because they assumed that the applicant was somehow involved in the violent clash that resulted in a fireman, who attended the riot, being killed. The Tribunal does not accept as credible the applicant’s evidence that he was targeted by Muslim gangs following the riot that took place because of his tattoos which were viewed as being anti-Muslim. The applicant gave evidence that he was not involved in harming any other person during the riot and that he was not actively involved in any of the protests that took place.
The reports confirm that a number of people were arrested following the riot and that the applicant was not one of those people. There is no evidence before the Tribunal that the applicant was or is wanted by the police in relation to the riot that took place. Neither the applicant nor his family have been contacted by the police about this matter and this would confirm that the applicant is not a person of interest to the police.
The applicant’s evidence was that neither he nor any of his family members have been harmed by any Malaysian gang members. The applicant left Malaysia in February 2019 some five years ago, and there is no evidence before the Tribunal to suggest that there are Muslim gangs that are still looking for the applicant to harm him. Apart from the three occasions where someone has come to the applicants home to enquire about him when he was not there, the evidence before the Tribunal confirms that he has never personally been threatened with harm by anyone following the riot.
The Tribunal has concerns about the reliability of the applicant’s evidence about Muslim gangs looking for him to harm him and does not accept as credible any evidence that there were Muslims gangs searching for the applicant to harm him because they believe that the applicant was somehow to blame for the death of a fireman who attended the riot.
The Tribunals credibility concerns are based on a number of factors. Firstly, the applicant has never been confronted directly by any Muslim groups wishing to harm him. The applicant’s evidence was that he fears harm because other people have told him Muslim gangs are looking for him. Consequently, any information about being wanted by Muslim gangs has been communicated to the applicant by third parties and not the Muslim gangs directly. Secondly, there is no connection between the applicant’s attendance at the temple when the riot occurred and the death of a fireman that was sent to the scene to deal with fires. There was no evidence of the applicant harming any other persons at the temple or directly being involved in any fighting or protest that took place. Reports about the riot that have been referred to in this decision suggest that those responsible for any harm or damage caused have been arrested by the police or are being investigated by the police. The applicant is not wanted by the police in connection with the riot and is not a person of interest to the police. Thirdly, the applicant has not been able to provide clear evidence about how his photo came to be in the hands of Muslim groups that were looking for him. The applicant stated that he resides in Georgetown Penang which is more than 400 kilometres away from the temple where the riot occurred, and he was therefore not a local resident who was known to anyone. The only explanation the applicant could provide as to how a photo of him could have been obtained by Muslims groups is that someone may have taken a video of the riot and that his image appears in the video. The Tribunal does not accept this explanation as plausible because the applicant was not involved in any fighting or actively involved in the protests and there would be no reason for the applicant to be the focus of attention.
The Tribunal finds that the applicant does not have a genuine fear of being harmed by Malaysian gangs or any other persons should he be returned to Malaysia. Based on the evidence before the Tribunal, the Tribunal does not accept that there is a real chance that the applicant will be seriously harmed by Malaysian gangs upon his return to Malaysia.
Even if the Tribunal were to accept, which it does not, that there is a real chance that the applicant will be subjected to serious harm by Malaysian gangs upon being removed from Australia to Malaysia, the Tribunal is not satisfied that the applicant’s fear of harm is essentially and significantly for any of the reasons outlined in s 5J(1)(a), namely his race, religion, nationality, political opinion or membership of a particular social group as defined under s 5K of the Act. The applicant’s evidence was that he is being targeted because Muslim gangs wrongly assumed that he was somehow responsible for the death of the fireman who attended the riot and not for any other reason.
The Tribunal acknowledges that while the DFAT report identifies some problems with corruption in the Malaysian police force, there is no indication that assistance from the police would be withheld from the applicant if incidents or threats of harm were reported to the police. The Tribunal accepts that the police and the courts would be willing and able to offer protection to the applicant and could provide such protection, if he was to return to Malaysia, by the relevant state through its courts or by the police.
Moreover, there is nothing to suggest that the applicant could not access such protection, which is clearly durable, and which consists of appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2). Accordingly, the Tribunal finds that effective protection measures, as set out in s 5LA, would be available to the applicant if he returned to Malaysia, so that he does not have a well-founded fear of persecution as required by s 5J(2).
Does the applicant satisfy the complementary protection criterion?
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 considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm.
In this case, the Tribunal has found that the applicant is a national of Malaysia, and the Tribunal therefore finds that Malaysia is his ‘receiving country’ for the purposes of s 5(1).
‘Significant harm’ is exclusively defined in s 36(2A) as follows:
(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.
The Tribunal asked the applicant whether there was any other reason, apart from what he had already told the Tribunal, why he would fear harm if he returned to Malaysia. The applicant indicated that there was no other reason apart from the reasons he had already explained to the Tribunal.
For the reasons set out above, the Tribunal has found that there is no real chance of the applicant suffering serious harm if returned to Malaysia. In Minister for Immigration andCitizenship v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well‑founded fear’ in the Refugee Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows that the Tribunal does not accept that there is a real risk that the applicant would face significant harm if returned to Malaysia on account of his fear of harm from gang members or the Malaysian police.
The Tribunal is not satisfied that the applicant meets the requirements of s 36(2)(aa).
Family unit member assessment
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.
Date of hearing: 27 May 2024
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.
…
Bukit Aman team rounds up over 100 suspected gang members in Klang | The Star – Free Malaysia Today, 30 January 2021, Ah Long ‘call centres’ silenced, 200 phones seized in police blitz in Johor | Free Malaysia Today (FMT) , 10 July 2024 – 'Ninja Turtle Gang' members held in Malaysia | The Standard 6 September 2014 – Police take down African-led robbery gang, two shot dead [WATCH] (nst.com.my) 27 June 2024 – KL police chief: Eight members of Latin American house-breaking gang arrested, over RM4m in stolen goods recovered | Malay Mail 2 May 2024 – 2 men charged for Bukit Timah armed gang robbery; over S$4.3 million in valuables stolen – CNA (channelnewsasia.com) 29 May 2024 – Cops say tracking down 10 more members of organised crime syndicate in Selangor | Malay Mail
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