1933043 (Refugee)
[2024] ARTA 949
•4 December 2024
1933043 (REFUGEE) [2024] ARTA 949 (4 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1933043
Tribunal:General Member R Timms
Date:4 December 2024
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 4 December 2024 at 12:46 pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – political opinion – organising protests – economic conditions – corruption – fear of self-harm – conviction – detention – escaping a mental institution – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
EZC18 v MHA [2019] FCA 2143
Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151; (1996) 40 ALD 445
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
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 November 2019 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 national of Malaysia, applied for the visa on 19 March 2019. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
3. The applicant lodged his review application on 20 November 2019, and he then appeared before the Tribunal on 13 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
4. 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.
Evidence before the Department
5. The Tribunal has before it Departmental file [number], which contains a number of file items including but not limited to the following:
· Protection visa application form.
· Passport copy.
· The delegate’s decision.
Evidence before the Tribunal
6. The Tribunal also has before it the online Tribunal file (Tribunal online reference number 20191120-88952) which contains a number of file items including but not limited to the following:
· Review application form.
· The hearing recording.
BACKGROUND
The applicant’s personal background
7. The applicant is [an age]-year-old male of Malaysian-Chinese ethnicity and Buddhist religion who was born and raised in Johor state in Malaysia. He is unmarried, with no children, and he is currently in a relationship with a girlfriend who is a Malaysian national and student in Australia.
8. The applicant is also one of [number], and [a] sister is currently living and working in Johor state. His father has retired from running his own small [business], while his mother passed away in 2022.
9. The applicant finished his education at [age] in around [specified year] in the state of Johor, before then entering the workforce and working in a number of different jobs including in [specified jobs], and running his own online businesses.
10. While in Malaysia, the applicant was never a member of any political party or organisation.
11. The applicant departed legally from Malaysia to come to Australia, and he arrived in Australia [in] March 2019.
12. The applicant prepared and lodged his own protection visa application soon after arriving in Australia. He did this by himself, without assistance.
13. The Tribunal accepts the above matters to be true.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
14. 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.
15. 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.
Section 5AAA of the Act
19. Pursuant to s 5AAA of the Migration Act, it is for the review applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
20. The Tribunal has applied this provision when considering the applicant's claims and evidence.
Mandatory considerations
21. 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.
22. The Tribunal notes that it discussed with the applicant at the hearing what was then the current Department of Foreign Affairs and Trade (DFAT) Country Information Report for Malaysia dated 29 June 2021, in considering the claims raised in the application. On 24 June 2024, DFAT released an updated Country Information Report for Malaysia. The Tribunal has considered the content of that report with respect to the applicant’s claims. The Tribunal considers that the general content of the report as it relates to the applicant’s claims is generally consistent with the DFAT 2021 Report and that the new report did not raise any new substantive issues for consideration.
REASONS AND FINDINGS
23. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or instead under the ‘complementary protection’ criterion, or is a member of the same family unit of such a person and that person holds a protection visa of the same class.
24. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
25. The applicant arrived in Australia on a Malaysian passport, a copy of which is contained on the departmental file. He has at all times stated that he is a citizen of Malaysia, and has been assessed on that basis by the Department. At hearing, the applicant also confirmed that he holds Malaysian citizenship, and only Malaysian citizenship.
26. The Tribunal finds that the applicant is a Malaysian citizen, and the Tribunal has assessed his claims against Malaysia as the country of nationality and the receiving country.
The applicant’s claims for protection
27. In his protection visa application, in relation to his reasons for claiming Australia’s protection, the applicant has claimed as follows:
His situation at the time of leaving Malaysia
· he left Malaysia because of the severe economic situation under the government of Najib Tun Razak, and because of corruption in Malaysia. There was a hike in oil prices (the highest in 10 years), GST, and the 1 Malaysia Development Scandal (1MDB). all Malaysians were depressed, and suicides had increased.
· he also was distressed and stressed by this situation. He could not control himself, and he had tried so many times to kill himself because of his distress over this situation.
· possibly would have managed to kill himself if he continued to live in Malaysia.
· he also tried to see a psychologist to help with his distress, but the situation still remained the same for him.
· he wished to avoid drift in his life, because of this stressful situation, and he seeks Australia’s protection as a step to his survival.
· he did not experience harm in Malaysia, and nor did he try to move within Malaysia to avoid any harm because Malaysia is a small country.
If he is to return to Malaysia
· he fears he will not be able to control himself, and that he will kill himself.
· he does not think authorities would be able to help him because he has already tried to see a psychologist which did not help him.
· if he was to try to move to a different part of Malaysia, the situation would remain the same.
28. The delegate refused to grant the applicant a protection visa, not being satisfied that there was a real chance that the applicant would be persecuted on his return to Malaysia for any of the five Convention reasons of his race, religion, nationality, political opinion, or his membership of a particular social group. The delegate also found that Australia’s protection obligations do not extend to protecting an individual from any self-harm. The delegate was also not satisfied that any harm which the applicant might suffer on his return to Malaysia would amount to significant harm.
Oral evidence provided by the applicant
29. At hearing on 13 June 24, the applicant gave further evidence about his claims for Australia’s protection which the Tribunal relevantly summarises as follows:
· at the time he lodged his protection visa application, he was happy that his claims in his protection visa application were true and correct.
· he borrowed money from his mother’s father to fund his ticket to Australia.
· in May 2018 he tried to commit suicide, after which time he stopped the business he had been owning and managing at that time. He then rested at home after trying to commit suicide, at the same time trying to hide from police. Then, in March 2019 he travelled to Australia.
· immediately before coming to Australia, he was staying at his friend’s house in Kuala Lumpur. He had been staying there for approximately two months before arriving in Australia.
· after he had tried to commit suicide, he was committed to a psychiatric institution for four months, and he then escaped from the psychiatric institution and went to his hometown for approximately one month where he was living in hiding in a greenhouse on the property of his [Relative A] who was [an occupation 1], after which he went to his friend’s house in Kuala Lumpur where he stayed in hiding also. He was in hiding for fear of being found by police and sent back to the psychiatric institution.
· he came to Australia in March 2019 with the intention of staying in Australia as long as possible, because of the situation which he had been facing in Malaysia.
· while he has never been a formal member of any political party or organisation, he did organise protests of locals from his hometown during general elections.
· [in] May 2013, he organised a protest by locals from his hometown against the then Prime Minister Najib Razak. He organised the travel of approximately [number] busloads of locals to Kuala Lumpur for this protest. He was arrested by the police in Kuala Lumpur after this protest, and then taken by police to a police station, where he was held for 24 hours and warned not to protest again, before being released without charge.
· on 29 August 2015, he organised another protest by locals from his hometown, this time to protest for fair elections. He organised for [several] busloads of locals to travel to Kuala Lumpur from his hometown for this protest. After this second protest, he was again arrested by police, and who then charged him with the offence of common assault. He was the only protester that the police arrested, and they had arrested him because he was the organiser of the protest.
o The Tribunal asked the applicant why he had been charged with the offence of common assault, and who had he assaulted. He stated that he had assaulted the public in a public area.
o The Tribunal asked the applicant how long he had been kept there by police. He said he had been kept there for three days before being charged to appear before the court. He was released on bail, pending the court hearing, and the official hearing at the court was held more than one year later.
· while he was awaiting his court hearing, he was then harassed repeatedly by police both at work and at home. They tried to force him to plead guilty, and he had no choice but to plead guilty. He pled guilty, and he was convicted, and he was fined [amount] ringgit.
o The Tribunal asked the applicant to confirm what charge he was convicted with. The applicant then stated that his conviction was related to disturbing public order, and he stated that he had previously used wrong words when he had stated that he had been charged with common assault.
· in response to a question from the Tribunal about when it was that he had been convicted, he stated that it was in 2017, six months before his attempted suicide.
o The Tribunal asked the applicant whether his conviction would appear on any police criminal records check. The applicant responded by stating that he did not know if his conviction would be publicly accessible, and that he had never tried to see if he had a formal criminal record in Malaysia, and that he anyway had paid the fine to the police not to the court. He then further stated that he suspected that this had all been set up to extort money from him, and that he did not know if it had been a real conviction after all, and that while he had told the Tribunal previously that he had been convicted by a court, there had been no court involved. This had instead all been carried out in an interrogation room at the police station in front of someone who had claimed to be a judge, and he had regarded that specific room to be the court.
o The Tribunal responded by stating that it did not understand why he was now saying that no court had been involved, when he had previously been referring to a court. The applicant responded by stating that he had never been to a court, and that while the police had told him that he would be appearing in a court, instead everything had happened at the police station in a room to which he had been taken twice. He had been told that the court had had a full listing and that it had had no capacity to hear his matter, so the court had instead allocated a judge to hold his hearing at the police station. He further stated that he was taken to the police station on [a day in] September 2015, where as far as he can remember he was locked up for about one week, and then he was taken to the room where the person claiming to be a judge had said that he needed to pay [an amount] ringgit bond so that he could be released on bail. He then paid the bond, and he was then released. That was the first time he was taken to that room. In the next year, in around March or April, he was telephoned and told to go back to that room for the second time, where he was then warned by that judge not to spread news about him having been caught and being beaten up by the police, or else the judge would punish him more severely. He was there only for a few hours that second time when he had received the warning before being released.
o The Tribunal then asked the applicant when he had been beaten by the police. The applicant responded by stating that he had been beaten up at the police station during the time when he had been arrested and then let out on bail. Then, when they had later called him back to attend the police station again for his warning by the so-called judge, at that time he had been trying to contact the media to let them know what had happened so that the media could use their powers to remove the threat of him being convicted. However, the police had somehow heard that he was contacting the media, and they had then called him in to warn him not to tell anything to the media.
o Further to this, the applicant later told the Tribunal that he had tried to get help by contacting the PH party which at that time was the opposition party. The opposition party had tried to help him by arranging a media press conference, but while the press conference was being organised the applicant had received a telephone call from a police officer telling him that there would be trouble for him if the media conference proceeded. He does not know how the police had received the tip off, but this threat from the police then caused the applicant to have the pending media conference cancelled for fear of what would happen to him and his family. The applicant then also separately contacted a police officer at a police station in his hometown to seek help, but that police officer had told him that they could be of no assistance because Kuala Lumpur was not within their operational territory. The applicant stated that was also going to reach out to the Malaysian Chinese Association (MCA) to enquire whether they could assist him, but somehow the police also knew that he was going to do this, and the police had also warned him against proceeding with any MCA assistance.
· in around mid-2017, he was again called back to the police station and told that he must pay [amount] ringgit in punishment for his conviction on the charges. He was then held at the police station for around 10 hours while he arranged to borrow this money from his friend and his family, and as soon he had paid the money he was then released.
· after this, the police continued repeatedly to come to his workplace and his house to harass him. This repeated harassment affected him severely mentally, and it caused him to be unable to work.
· he had started his own business in 2016 or 2017 selling [product 1], and he had borrowed money from family and friends to start the business, and then he had also needed to borrow money from family and friends to pay the [amount] ringgit fine. Being unable to work meant he had no income coming in, and that he was then unable also to pay these debts. He became suicidal because of this, and he attempted suicide, after which he was committed to a psychiatric unit where he then remained for three or four months before he managed to escape from the psychiatric institution.
· he had been committed to this psychiatric institution not because of his mental health, but because he was set up by the police who deliberately wanted to get him admitted to that institution. While committing suicide is a crime in Malaysia, people would not usually be kept in a psychiatric institution for the time that he was kept there.
· the police had been arranging for him to continue to be kept at the mental institution, and he had had to escape in order to be able to leave the institution, and since that time he has been on the run from the police.
· he had to leave Malaysia in order to continue to avoid the police, and his trying to avoid being re-arrested by police and being re-committed by them to a psychiatric institution, was only reason he had left Malaysia.
o The Tribunal asked the applicant to confirm its understanding that police had regarded him to have such a profile that in addition to fining him, they had also needed to try to make sure that he continued remaining in a psychiatric institution. The applicant responded that this was correct, because the police feared that if he successfully divulged the information about what they had done, this would have created big trouble for them.
· the police have been searching for him since he escaped from the psychiatric institution, regularly visiting his family and harassing them.
· if he ever goes back to Malaysia, the police will either send him to prison or back into a psychiatric institution which would drive him insane because he is a normal person. He fears that they will not let him live well and that they will continue with this until he dies. This is the only reason why he cannot now return to Malaysia.
o The Tribunal then discussed with the applicant that this all happened a long time ago, and it asked the applicant why he cannot now go back. The applicant responded by stating that the police have continued to go to his house looking for him, and that the last time they visited his family to look for him was just six months ago, which he had been told about by his father. His family have been feeling harassed by the police through these visits which have caused them to move, but the police have been able to find his family even though his family has moved.
o The Tribunal then further discussed with the applicant that it some concerns about the credibility of his oral evidence to the Tribunal, including for the reason that in his original protection visa application he had made no mention of having been chased by the police, or of not being able to go back to Malaysia because of the police, or of having experienced any harm from the police in Malaysia. Instead, he had stated that he had not experienced any harm while he was in Malaysia, and that the reason that he had left Malaysia was due to the severe economic situation in Malaysia and because of general corruption in Malaysia, which together had made him distressed and suicidal and had caused him to try many times to kill himself. The Tribunal further discussed with the applicant that the Tribunal regarded his claims relating to the police to be new claims, and that under the Migration Act the Tribunal is required to draw an inference unfavourable to the credibility of any new claims provided after the time of the delegate’s decision, unless the Tribunal is satisfied that the applicant has a reasonable explanation for providing the new claims after the delegate’s decision. The Tribunal invited the applicant to tell the Tribunal his reason for his delay in raising these new claims. The applicant responded by stating that he had been concerned that if he told the true story in his protection visa application, the Australian government would then have tried to verify his claims with the Malaysian police, which would then have placed his family members in Malaysia into trouble.
o The Tribunal then shared with the applicant the following extracts from the DFAT Country Information Report on Malaysia, about expression of political opinion in Malaysia:
o Article 10 of the Constitution guarantees citizens the right to freedom of speech, freedom of assembly, and freedom of expression, but allows these rights to be restricted by law in the interest of security.
o Although the Constitution states all citizens have ‘the right to assemble peacefully and without arms’, authorities have traditionally closely administered political assemblies and rallies under the Peaceful Assembly Act (2012; PAA) and the Criminal Code. Permits can be difficult to obtain and can be restrictive in their application. Authorities may arrest individuals for organising or engaging in rallies, such as the arrest in early 2020 of protest organiser Fadiah Nadwa Fikri and others in protests against the end of the PH government. Authorities have occasionally used force to control crowds.
o DFAT assesses that space for political opposition and dissent has decreased since early 2020. The option of using what have been referred to by some opposition members as ‘oppressive laws’ remains and there are increasing signs they are being used. DFAT assesses the political instability may create a less open environment for dissent. DFAT assesses political party members can currently undertake political activities on a day-to-day basis without significant interference but face a low risk of official discrimination, including from politically motivated police investigations. Individuals do not face societal violence on the grounds of their political affiliations[1].
[1] DFAT Country Information Report on Malaysia, 29 June 2021, paged 34 to 36.
o After sharing these extracts, the Tribunal then discussed with the applicant that while it acknowledged that this DFAT report states that authorities may arrest individuals for organising or arranging protests, the Tribunal also noted in particular that the report further states that ‘political party members can currently undertake political activities on a day-to-day basis without significant interference but face a low risk of official discrimination, including from politically motivated police investigations. The Tribunal discussed with the applicant that this DFAT information might make it difficult for the Tribunal to believe that police could be so concerned about a person who had only arranged several busloads of protestors on two occasions, that it would go to the lengths of trying to imprison him, and to run fake court hearings, and to extort money from him, and then try to keep him held in a mental institution. The Tribunal discussed with the applicant that it might consider that through his protest activities he would not have the political profile for police to be so concerned about him that they had to try to keep him locked up, and to keep on pursuing him even now. The applicant responded by stating that he believed that the police had actually wanted to extort money from him, and had organised random charges and a fake court for this, and that they know that he will not easily succumb to their tactics and that he would go to the media to spread news of their actions, which would cause an issue for police unless either he died or the officers died, and that otherwise their pursuit of him would continue without ceasing.
o The Tribunal also asked the applicant whether he had any paperwork to support his new claims, including for example relating to him having been arrested by the police. The applicant responded by stating that he believed that he might be able to find a medical certificate relating to his attempted suicide, which would state that he suffers from anxiety and that he had had to be kept in hospital for observation. The Tribunal asked the applicant to provide the Tribunal with a copy of that medical certificate by 21 June 2024, or else instead to let the Tribunal know by 21 June 2024 that he was unable to locate it. The applicant agreed to this request.
o The Tribunal notes that as at the time of its decision, no medical certificate, or communication about the medical certificate, has yet been received from the applicant.
· in response to a question from the Tribunal about whether his claim was true in his original protection visa application that he had left Malaysia because of the general economy in Malaysia and because of corruption in Malaysia, the applicant responded by stating that this was all true because at that time he had left Malaysia he had many debts, and because the economy and corruption had all made it difficult for him to pay those debts off. However, he has now paid his debts off.
o The Tribunal then put to the applicant that in relation to any harm which he might experience from the general economy and the general situation in Malaysia including corruption, if he must return to Malaysia, the Tribunal might consider that any such harm he experienced would not be harm being directed at him for reasons of his race, religion, nationality, political opinion or membership of a particular social group. The applicant responded by stating that he fears harm on his return to Malaysia because of the general economic situation in Malaysia and because of the corruption situation in Malaysia, only in relation to his fears of harm from the police. He fears that if he must return to Malaysia, the police set him up again and try to collect further money from him, and then it will be more difficult for him in such an economy. Otherwise, he does not generally fear harm from the economy or corruption in Malaysia.
o The Tribunal also discussed with the applicant that it might consider that any harm which he might suffer because of the general economic and crime situation in Malaysia, if he return to Malaysia, would not be at the level of serious harm, and it invited the applicant’s comment on this. The applicant declined to comment.
· the Tribunal further put to the applicant that while he had stated in his original protection visa application that he could not control himself and that he had tried many times to kill himself, he had instead told the Tribunal about only one episode of attempted suicide. The applicant responded by stating that the last time he had attempted suicide, he was found by a neighbour unconscious and in a coma after having burned charcoal in the car for several hours. He had then woken up in the psychiatric institution.
· the Tribunal then asked the applicant about his statement in his protection visa application that he feared self-harm from suicide on his return to Malaysia, and whether it was a claim that he wished to Tribunal to consider as part of his protection visa application. The applicant responded by stating that it was not a claim that he wished the Tribunal to consider.
· the Tribunal also put to the applicant that it might consider that the Royal Malaysian Police force would not generally engage in the type of corruption that he was now claiming, when considering his new claims in light of information contained about the Royal Malaysian Police (RMP) force in DFAT’s Country Information Report on Malaysia. When considering that information, while the Tribunal might consider that the Royal Malaysian Police might sometimes engage in low level corruption, it might also consider that there is generally now a culture of police behaviour reform and that it is not likely that police would generally engage in the type of high-level corruption against him which he is claiming, including where police would keep a person incarcerated in a mental institution potentially for years. The Tribunal read this DFAT country information to the applicant and invited his comment on this information and on these possible considerations by the Tribunal:
o The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates over 800 police stations across Malaysia…
o Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption…
o External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission, which was created in 2009 as part of the government’s response to police corruption, which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts. Perceptions of the EAIC’s ineffectiveness contributed to calls for a new police accountability body…
o The then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department in July 2014 to enhance police integrity and image. It sits within the RMP. SUHAKAM also receives complaints against the RMP, and has investigated police behaviour. The government is not formally required to consider SUHAKAM’s reports or recommendations.
o The applicant responded by stating that everyone in Malaysia knows that corruption prevails in the police force, and that the police receive money from everyone, and for example that every police officer would accept bribery money in the situation where they had caught someone speeding and that person was trying to avoid a speeding fine. He further told the Tribunal about a case which had occurred in Malaysia in around 2000, involving a large amount of the drug ice where the drug dealer was not charged, and where the police had made the evidence against the drug dealer just disappear.
· the Tribunal then asked the applicant about email communications contained on his protection visa application file, which related to complaints about the activities of unregistered migration agents. He responded by stating that those communications had not been made by him, but had been made by someone else with whom he had shared his application details with. He further told the Tribunal that they were not relevant to the Tribunal’s assessment of his protection visa claims and that they could be ignored by the Tribunal.
Findings
Credibility
30. When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the evidence, and the Tribunal acknowledges the importance of adopting a reasonable approach in its findings in relation to the credibility of evidence. In Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151; (1996) 40 ALD 445, the Full Federal Court made comments about determining credibility, and the Tribunal takes particular note of the following comments provided by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
31. The Tribunal further acknowledges that difficulties are often faced by genuine asylum seekers in being able to support their claims by documentary evidence or other proof, and it acknowledges the importance of giving the benefit of the doubt to asylum seekers whose account appears generally credible but who are unable to substantiate all of their claims. In relation to this, the Tribunal accepts and applies in its findings process the credibility-related guidance provided by the United Nations High Commissioner for Refugees:
…if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts[2].
Fear of harm by the police
[2]The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at paragraphs 196 and 204).
32. In his oral evidence before the Tribunal, the applicant has claimed that while he was still in Malaysia, after organising some political protests in Kuala Lumpur, some Kuala Lumpur police officers had arrested and beat him, charged him, held fake judicial proceedings leading to a fake conviction, extorted money from him, continued to harass him and beat him, caused him severe mental suffering so that he could no longer work, caused him to try to commit suicide because he was no longer able to repay his debts by working, set him up so that he would be admitted to a psychiatric institution, and then had arranged for his ongoing remand in that psychiatric institution. After he had then managed to escape from that psychiatric institution in late 2018, he has since been on the run from those police officers who have continued to search for him, most recently having visited his family in Malaysia to look for him just six months prior to his Tribunal hearing.
33. The applicant has further claimed in his oral evidence before the Tribunal that he cannot now return to Malaysia because those police officers are pursuing him because of what he knows about their past actions against him, which they fear he will expose. If they find him, they will either send him to prison or back into a psychiatric institution which would drive him insane. They will continue to pursue him until either he is dead or the officers concerned are dead.
34. In order for the applicant to qualify for a protection visa under the refugee criterion because of this harm which the applicant claims to fear on his return to Malaysia, among other requirements the Tribunal must be satisfied that that this harm is genuinely feared by the applicant: s5J(1)(a) of the Act refers.
35. In order for the applicant to qualify for a protection visa under the complementary protection criterion because of this same harm which the applicant claims to fear on his return to Malaysia, among other requirements the Tribunal must be satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm: s36(2)(aa) of the Act refers.
36. The Tribunal is prepared to accept the applicant’s oral claims that he tried to commit suicide in May 2018 while he was in Malaysia, and that he spent time in a hospital afterwards, and that the hospital might have been a psychiatric hospital. The Tribunal is prepared to accept these claims, despite the applicant not having complied with the Tribunal’s request to either provide medical evidence of his attempted suicide or let the Tribunal know he is unable to provide such evidence, because it finds that they are generally consistent with applicant’s original written claims in his protection visa application, and because on balance the Tribunal also accepts the applicant’s oral evidence to the Tribunal that he might be able to find and provide the Tribunal with a medical certificate confirming that he suffers from anxiety and that he had had to be kept in hospital for observation.
37. However, the Tribunal has significant difficulties in accepting as credible any of the applicant’s other claims in relation to his fear of harm from the police. These other police-related claims which the Tribunal has significant difficulties in accepting include that he had organised two political protests, and that he was then arrested and released without charge after the first protest, and that he was then detained and arrested and beaten and charged by police after the second protest, and then released on bail of [amount] ringgit after fake court proceedings were held by police, and that he tried to organise a media conference through the main opposition party to expose this police behaviour, and that police then heard about this intended media conference and organised further fake court proceedings to warn him off holding that media conference, and that they then also organised fake court proceedings and a fake conviction to extort [amount] ringgit in further money from him, and that they then continued to harass and beat him to the extent that he could no longer work in his business, and that they then arranged for his indefinite stay in a psychiatric institution so that he would not divulge to the media what they had done, and that the police now continue to look for him more than five years later in order to place him back into a psychiatric institution again or into a prison, and that they will continue with this persecution of him until either he is dead, or until they are all dead.
38. The Tribunal has significant difficulties in accepting these other police-related claims as being credible for several main reasons, including firstly because the Tribunal finds that the applicant significantly changed an important part of his testimony without a credible excuse after the Tribunal had tested and exposed a potential flaw in that part of his testimony, and secondly because the Tribunal finds his testimony to be implausible in some aspects which the Tribunal finds to be key aspects, and also thirdly because the Tribunal finds that the applicant had never mentioned any of these claims in his original protection visa application and the Tribunal rejects the applicant’s excuse for not having mentioned those claims in his protection visa application.
39. In relation to the first reason why the Tribunal has significant difficulties in accepting these other police-related claims as being credible, the Tribunal finds that while the applicant initially told the Tribunal that court proceedings had been involved when he had pled guilty to and been convicted of an offence relating to his protest involvement, the applicant then later changed his testimony to state that he believes that no court had been involved, and that instead he believes that he had been before a fake court with a fake judge, and that he had then been given a fake conviction by that fake court. The Tribunal finds that this change in testimony relates to a key aspect of the applicant’s evidence, and that it occurred only after the Tribunal had tried testing his evidence through asking the applicant whether he would be able to provide the Tribunal with evidence of his conviction through a criminal records check. The Tribunal rejects as not being credible the applicant’s excuse that he had initially described the fake proceedings as ‘court’ proceedings to the Tribunal because he had regarded the police interrogation room where these fake court proceedings had taken place to be like a court room.
40. In relation to the second reason why the Tribunal has significant difficulties in accepting these other police-related claims as being credible, the Tribunal finds it to be generally implausible that after the police had become aware that the applicant might expose their activities through such high profile and effective way as a media press conference organised by the main political opposition party, which exposure the police fear enough so that they continue to pursue him to today, the police nevertheless then proceeded to continue with and to ramp-up their criminality and their harassment of the applicant, including through further beatings of the applicant, through holding further fake court proceedings against him with a fake conviction and fake fine of the applicant, and then through also arranging for him to admitted to and be kept indefinitely in a psychiatric institution, and all also to ensure that those several officers have safely been able to net a mere [amount] ringgit [approximately AUD[amount]] between them which the applicant paid upon his fake conviction, or a mere [amount] ringgit if the bail money is also included.
41. Also in relation to this second reason why the Tribunal has significant difficulties in accepting these other police-related claims as being credible, the Tribunal has no evidence before it of any history of involvement of the applicant in any political activity prior to his 2013 and 2015 protests. In this absence, and given also that the applicant has never been a member of any political party or any political organisation in Malaysia, the Tribunal finds it generally implausible that the applicant would nevertheless have gone to the lengths of organising a political protest in Kuala Lumpur in May 2013, and then also - after having been arrested and detained by police after that first protest, and after having also been specifically warned-off by police from any further protest activity - to have gone to the lengths and risks of organising a second political protest in Kuala Lumpur in August 2015.
42. In relation to the third reason why the Tribunal has significant difficulties in accepting these other police-related claims as being credible, as above the Tribunal has found that the applicant had never mentioned any of these claims in his original protection visa application. While the applicant has stated that he deliberately did not mention any police-related claims in his protection visa application because he feared that the Australian government would have tried to verify his claims with the Malaysian police which would then have placed his family members in Malaysia in trouble, the Tribunal however rejects this excuse for not previously having mentioned those claims. The Tribunal rejects this excuse because it finds that the applicant anyway shared this information with the Tribunal, and he sought no pre-assurances from the Tribunal that his information would not be checked with Malaysian authorities by the Tribunal or by other government entities.
43. In all these circumstances, the Tribunal rejects as not being credible all these other police-related claims as summarised at paragraph 37 above, and the Tribunal is not satisfied that the applicant is at risk of any harm from police, or that he subjectively fears any harm from the police, because of his knowledge of their past actions against him.
44. Accordingly, the Tribunal finds that s5J(1)(a) of the Act is not met in relation to any harm from police, and also that s36(2)(aa) of the Act is not met in relation to any such harm.
Fear of harm through self-harm
45. In his protection visa application form, the applicant has claimed that he had tried to commit suicide many times in Malaysia because of his distress about the general economic and corruption situation in Malaysia, and that if he must return to Malaysia he fears that he will again not be able to control himself and that he will kill himself.
46. However, at hearing the applicant gave evidence that his claim that he would commit suicide on his return to Malaysia was not a claim that he wished the Tribunal to consider as part of his protection visa application.
47. In these circumstances, and without more evidence from the applicant relating to his fear of killing himself if he must return to Malaysia, the Tribunal is not satisfied that the applicant genuinely fears suicide or attempting suicide if he must return to Malaysia, or that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm if he must return to Malaysia in relation to any feared suicide or attempted suicide. Accordingly, the Tribunal is not satisfied that s5J(1)(a) of the Act or s36(2)(aa) of the Act is met in relation to suicide or attempted suicide.
Fear of harm because of the economy and corruption
48. In his protection visa application form, the applicant claimed that he left Malaysia because of the severe economic situation under the government of Najib Tun Razak, and because of corruption in Malaysia, which had caused him to attempt suicide, and which makes him fear he will suicide in Malaysia if he must return to Malaysia.
49. At hearing, in relation to these claims, the applicant’s oral evidence was these original claims in his protection visa application that he had left Malaysia because of the economy and corruption were true, because he had had debts in Malaysia and the general economic and corruption situation there had made it much more difficult for him to repay his debts. He further stated to the Tribunal that he has now repaid his debts, and that in relation to the harm that he would experience if he must return to Malaysia from the general economic and corruption situation, he now only fears this harm in relation to his fears of harm from the police. That is, he fears that if he must return to Malaysia, the police will set him up again and try to collect further money from him, and then it will be more difficult for him in such an economy. Otherwise, he does not generally fear harm from the economic or criminal situation in Malaysia.
50. In order for the applicant to qualify for a protection visa under the refugee criterion, because of any harm feared by the applicant from the general economic and corruption situation in Malaysia if he must return to Malaysia, among other requirements the Tribunal must be satisfied that the applicant subjectively fears this harm at the level of serious harm: sections 5J(1)(a) and 5J(4)(b) refer.
51. While the Act does not exhaustively define or limit what might constitute serious harm, at s5J(5) it instead provides the following six instances in guidance as to the degree or level of harm required to constitute serious harm for the purposes of the Act:
(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.
52. In order for the applicant instead to qualify for a protection visa under the complementary protection visa criterion, because of any harm feared by the applicant from the general economic and corruption situation in Malaysia if he must return to Malaysia, among other requirements the Tribunal must be satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm: section 36(2)(aa) of the Act refers.
53. Significant harm is exclusively defined in s36(2A) of the Act as harm involving any one of the following five grounds:
(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.
54. An intention to inflict the relevant harm is specifically required by the Act under further legislative definitions of ‘torture’, of ‘cruel or inhuman treatment or punishment’, and of ‘degrading treatment or punishment’. Additionally, the Australian courts have found that an intentional act or omission is required for an arbitrary deprivation of life[3].
[3] EZC18 v MHA [2019] FCA 2143
55. The Tribunal is prepared to accept the applicant’s oral claims at hearing that it was true that he had left Malaysia because of the general economic and corruption situation there, which are generally consistent with his claims in his original protection visa application. The Tribunal is also prepared to accept the applicant’s oral evidence before the Tribunal that he had had debts when he was in Malaysia which the general economic and corruption situation had made harder for him to repay, and also that he has now repaid those debts and that he does not generally fear harm from the economic and corruption situation in Malaysia. However, the Tribunal is not prepared to accept that the applicant fears harm in relation to the economic and corruption situation in Malaysia because this situation will make it more difficult for him when police will again set him up and extort money from him. The Tribunal is not prepared to accept this because it has already found that the applicant does not fear such harm from police.
56. In these circumstances, the Tribunal is not satisfied that the applicant subjectively fears harm from the general economic and corruption situation in Malaysia, at the level of serious harm, if he must return to Malaysia. Accordingly, the Tribunal is not satisfied s5(J)(1)(a) of the Act is met in relation to this harm.
57. In these circumstances, and given also that the Tribunal has found that the applicant is not at risk of any harm from police relating to his knowledge of their past actions, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm if he must return to Malaysia. Accordingly, the Tribunal is not satisfied that s36(2)(aa) of the Act is met for the applicant in relation to general economic and corruption harm.
CONCLUSIONS
58. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(a).
59. Having concluded that the applicant does not meet the refugee criterion in s36(2)(a), the Tribunal has considered the alternative criterion in s36(2)(aa). For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).
60. There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Tribunal finds that the applicant does not satisfy the criteria in s36(2).
DECISION
61. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 13 June 2024.
Representative for the applicant: Not represented.
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
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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.
…
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