2015992 (Refugee)

2015992 (Refugee) [2021] AATA 1856 (6 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2015992
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Nathan Goetz
DATE:6 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 January 2021 at 12:18pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – pressured by government to sell land – applicant or family members harassed, assaulted, detained and imprisoned – credibility – inconsistent claims and evidence – delay in applying for protection – applied only after parents applied on the same grounds and own student visa cancelled after criminal charges – convictions, imprisonment and immigration detention – protection-related bridging visa refused and affirmed – false or misleading information in application about travel and criminal history – no fear of harm expressed in different interviews or to agent – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 36, 65, 424AA
Migration Regulation 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
On 9 February 2015 the applicant was granted an electronic travel authority visa. He arrived in Australia [in] March 2015 holding this visa.
On 17 July 2015 the applicant was granted a vocational education and training sector visa. He departed Australia [in] October 2016 and returned to Australia [in] November 2016 holding this visa.
On 13 November 2017 the applicant was granted a student visa. He departed Australia [in] September 2018 and returned to Australia [in] September 2018.
[In] January 2019 the applicant was issued with a Notice of Intention to Consider Cancellation of the student visa as the applicant had been charged with supplying a prohibited drug in an indictable quantity by NSW Police. The applicant responded to this notice on 12 February 2019.
On 8 April 2019 the applicant was remanded into criminal custody.
[In] May 2019 a delegate cancelled the applicant’s student visa under s.116 of the Act. The applicant applied to the Tribunal for a review of the refusal decision. [In] September 2019 the Tribunal affirmed the cancellation decision in AAT case [number].
[In] May 2020 the applicant was convicted of supplying a prohibited drug in an indictable quantity, having goods in his custody that were suspected as being stolen, publishing false and misleading material to obtain advantage and assault occasioning actual bodily harm (domestic violence) and was sentenced to 2 years and 6 months imprisonment with a non-parole period of 1 year and 6 months. The applicant was released from criminal custody [in] October 2020. He was detained by Australian Border Force and placed into immigration detention by Australian Border Force as an unlawful non-citizen.
On 13 October 2020 the applicant applied for a protection visa. That same day, he applied for a bridging visa to regularise his migration status.
On 15 October 2020 the delegate refused to grant the bridging visa. On 18 October 2020 the applicant applied to the Tribunal for a review of the refusal decision.
On 22 October 2020 the delegate refused to grant the protection visa. On 29 October 2020 the applicant applied to the Tribunal for a review of the refusal decision. It is this decision that is currently being considered.
On 27 October 2020 the Tribunal affirmed the bridging visa refusal decision in AAT case 2015449. On 18 November 2020 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision: [case number]. The judicial review proceeding is listed [in] May 2021.
On 5 January 2021 the applicant appeared at a Tribunal hearing by audio-visual link from an immigration detention centre. The Tribunal hearing was to be conducted with the assistance of an interpreter in the English and Cantonese languages, as the applicant indicated in his review application form that he needed a Cantonese interpreter. However, at the hearing the applicant said that he did not speak Cantonese. He put that down by mistake. He spoke Mandarin. The Tribunal asked the applicant whether he wanted to have a Mandarin interpreter for the Tribunal hearing. The applicant told the Tribunal he did not need an interpreter. The applicant was not represented for the review application.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Protection visa application form
According to the protection visa application form completed by the applicant, he identifies as a [age]-year-old male citizen of Malaysia who was born in Sibu Sarawak, Malaysia. He has Malaysian citizen parents, a father named [Mr A] [DOB] and mother [Ms B] [DOB] who reside in Australia. They have lodged their own protection visa applications.
The applicant wrote that he left Malaysia ‘in the name of a visit’ in March 2015. His parents were powerless people. They had no money nor power. His family were treated as inhuman by the Malaysian local government and ‘they let me escape from poverty and hatred.’
He declared that he had experienced harm in Malaysia. He detailed that his father was detained and beaten by local policemen for ‘unreasonable disruption’ and his uncle was ‘imprisoned and persecuted in prison.’ His mother was ‘insulted by working in our own plant garden business.’ All these resulted in a ‘bad impact on [his] memory.’ He was ‘deeply hurt from young time psychologically by Malaysian social operation and it’s system…’
He wrote that he did seek help after the harm. His mother and the applicant sought help from a solicitor and the local authority, but they did not offer any help. He did not move or try to move to another part of that country to seek safety because ‘all government and official and social system are not favourite to us at all, they are corruption.’ They applicant thought if he returned to Malaysia he would be ‘looked down upon by others and by local government and I could not get medical help and I won’t have employment opportunity and education opportunity. I won’t survive in Malaysia. My parents are in Australia.’ He thought he would be harmed or mistreated because he wants to ‘get back our family’s assets and properties. Otherwise, I have no method to live.’
He did not think that the authorities of Malaysia could and would protect him. He held that viewed because ‘they will not offer any help to vulnerable people. They only help and support powerful people who can bribe them. I am very young and powerless. I have a lot of fear for them. I will find no means to live a life on.’ He did not believe that he could relocate within Malaysia because ‘the same system and management are applied all over Malaysia, local government officials carry the same tone to ordinary people.’
The applicant declared that he had not been convicted of an offence in any country and that he had not been associated with a person, group or organisation that has been involved in criminal conduct.
Oral evidence given to Tribunal hearing on 5 January 2020
The applicant told the Tribunal hearing that he realised he needed to claim protection when he first arrived in Australia in March 2015. This was because he ‘lost everything’ back home. The applicant was asked whether he had been in Australia the whole time. He said yes. He came to Australia on a holiday / tourist visa.
The Tribunal asked the applicant why he did not lodge a protection visa until October 2020 given that he said he realised he needed to claim protection in March 2015 after he arrived here. He said that he tried to stay in Australia on a student visa first. He used an Australian agent to apply for this visa. He said he did not know about protection visas. He did not tell the migration agent that he needed protection. He only told the agent that he needed to stay in Australia. When asked why the applicant did not tell the agent that he needed protection, the applicant said this was because he did not know anything about protection. The agent told him that he could apply for a student visa.
The applicant told the Tribunal that the student visa was cancelled because he went to jail. He walked on the ‘wrong path’ and did ‘the wrong thing.’ He completed the protection visa application form by himself. He was asked why he declared that he had not been convicted or any offence in the protection visa application form given that he had gone to jail. The applicant said that he must have misunderstood the question.
The Tribunal asked why the applicant did not lodge a protection visa application after his student visa was cancelled. The Tribunal notes that this occurred on 2 May 2019. The applicant said that he did not do so because he was in jail which meant that he could not apply for any visa. The Tribunal asked why being in jail meant he could not apply for any visa and he repeated that it was because he was in jail. The Tribunal asked why he had this belief. The applicant said that he tried Legal Aid and asked others for information and asked his agent.
The Tribunal asked the applicant when he discovered that there was such a thing as a protection visa. He said that this was in 2018 or 2019. The person who told him this was a friend who he worked with at a job. The Tribunal asked why the applicant did not apply for a protection visa when his friend told him this. He said it was because he was in jail in 2019. The Tribunal asked the applicant why he did not apply for a protection visa before he went to jail, if he was told about protection visas in 2018. He said that his agent told him that he could not change his visa as his student visa had not finished yet.
The Tribunal asked why the applicant could not return to Malaysia. The applicant said Malaysia does not have human rights like Australia. The Tribunal asked whether anything specifically happened to the applicant in Malaysia. He said it did. His family had a [farm] and the government tried to buy the family land. The family did not want to sell, police were called, and the family were harassed. The family were asked to go. The family kept protesting and the applicant’s father was bashed and detained for 3 days in jail. Only the applicant and his mother were at home. They could not do anything and had to sell their land to the government. The Tribunal asked the applicant when it was that the family sold the land to the government. He said this was in 2014 before the family came to Australia. They had no choice. They sold everything and came to Australia. He then said that the family did not receive any money for the land.
The Tribunal queried how the land could be sold without the family receiving money. The applicant said that the family did not agree with the sale and the authorities used force to destroy the farm. Police would come and tell the family to go every day. The family would keep protesting and the applicant’s father and uncle were bashed.
The applicant said that he was bashed by the authorities. He was assaulted more than 10 times. The assault happened at the family house. The police kicked, bashed and yelled at the family. The applicant said that he was not kicked because his father protected him. The applicant was not harmed, but he cannot live in a situation like that. Police did not take him away because he was under 18 years of age.
The Tribunal asked why the applicant would be harmed if he returned to Malaysia given that the authorities had seized the land. The applicant said that because the family were forced to sell the land, the applicant did not have anything to go back to. He pondered what he would do if he returned.
The applicant told the Tribunal that he did not know anyone in Australia prior to coming here. He studied and worked in Australia. The work was not organised prior to his arrival. He obtained employment once he was in Australia. Noting that the applicant was able to relocate to a foreign country where he knew no one, was able to obtain employment and find somewhere to live, the Tribunal found it curious that he would not be able to return to his own country and similarly find a place to live and find employment. The applicant said that it is different in Malaysia. The Tribunal asked how. The applicant said that in Australia he did not feel insulted and he had human rights. Stuff like what happened to his family does not happen in Australia. He wanted to stay in Australia.
The Tribunal asked the applicant who would harm him and why they would harm him if he returned to Malaysia. The applicant said it was because when the family signed to sell the land, the family tried to report this to the news, and the government was not happy with the family, and wanted to destroy their lives. Before the government let the family sign the paperwork, they offered a price for the land and the family did not want to sell the land. After that, the government kept harassing the family, disturbing them, and the family had no choice but to sell the land to the government. The applicant said money was offered, but the government destroyed the family. When the land was signed over the money was not given. The Tribunal asked whether a price was offered but not paid. The applicant said that is how the government works over there.
The Tribunal asked the applicant why the government would be interested in harming the applicant now. The applicant said that the family reported on them which the government did not want. The family were told that if the family dared to do this again the government would harass the applicant and his family and would make life very hard. He was asked what he would do if he went back to Malaysia and said that he was not even thinking about going back. He thought the authorities would put him in jail. The Tribunal asked why the authorities would do that and the applicant said that he did not know, but that is what he was thinking in his mind. For the sake of completeness, the Tribunal makes it clear that whether the applicant committed criminal offending was irrelevant to its task determining whether the applicant is owed protection obligations.
The applicant told the Tribunal that he came to Australia with his parents. He always lived with them when he was in Australia. He told the Tribunal that his parents are on bridging visas in connection with their own protection visa applications.
The Tribunal asked whether there was anything else that the applicant wished to say in support of his protection visa application. The applicant said that he could not express how cruel Malaysia was and how he was going to be treated. He could not explain this properly because in Australia, there were no such problems.
At the conclusion of the Tribunal’s questioning of the applicant, the Tribunal adopted the s.424AA procedure and raised with the applicant information that would be a reason or part of the reason for affirming the decision under review. The information was relevant because, in the Tribunal’s assessment, it undermined the applicant’s claims for protection. It suggested to the Tribunal that the applicant was not a witness of truth and not credible. The information and the applicant’s responses are noted below:
The Tribunal raised with the applicant the fact that he told the Tribunal that he had not departed Australia since his arrival in March 2015, when the records showed that this was not the case. He had in fact departed Australia twice since that time. The Tribunal put to the applicant that it suspected he had returned to Malaysia and did not want to tell the Tribunal about this because the fact he returned to a country he was now seeking protection from suggested that he had no fear of harm there. The applicant responded to this concern by disputing that he had not been truthful with the Tribunal. He told the Tribunal that he understood the question to be whether he returned to Malaysia since his arrival in Australia. He said that he had not. The trips he took were to [Country 1] and [Country 2]. He then told the Tribunal that he did go to Malaysia during these trips but was only in transit at the airport because the flight from Australia was not direct to his destination.
The Tribunal raised with the applicant what he had told the Tribunal at his review application hearing on 10 September 2019 when he sought review of the decision to cancel his student visa. The Tribunal read out to the applicant the passage in the decision record concerning the oral evidence the applicant gave at that hearing:
The Tribunal explored with the applicant the hardship that he will face if the visa remains cancelled and/or compelling reasons to remain in Australia. The applicant indicated that he wishes to continue his English studies. Further studying of English will improve his circumstances. The applicant indicated that Australia is a beautiful country and he wishes to continue to be able to stay. The applicant indicated that following the completion of his studies he would like to pursue other visa pathways to stay in Australia permanently. His inability to continue studies and to explore other future visa options to stay would be a hardship.
The applicant indicated that he does not fear persecution or significant harm on return to Malaysia

The applicant responded that when he was informed in 2019 that his review application concerning the student visa cancellation, he had little time to prepare. He was not able to explain his protection concerns with his lawyer who was acting for him in that review application. When the Tribunal advised the applicant that what was recorded in the decision record was not a repetition of any documents or submission that were sent, but a record of what the applicant had told the Tribunal in his oral evidence, the applicant told the Tribunal that he must not have understood the question.
The Tribunal raised with the applicant what he had told the Australian Border Force at his located person interview on 6 October 2020 when he was released from jail. The applicant was asked by the Australian Border Force whether there were any reasons why he could not return to Malaysia. He said there was. The reason was that his parents were in Australia. In response, the applicant said that the Australian Border Force officer lied to him and said he would get a visa that day if he cooperated.
The Tribunal raised with the applicant what he had told the Department on 7 October 2020 at his detention interview. He was asked why he left his country of nationality/residence. He said he came to Australia to study. He was asked if he had any reasons why he could not return to his country of nationality/residence. He said his parents were in Australia and he wanted to stay with them. In response, the applicant said that he wanted to keep what had occurred in Malaysia and his fear out of his mind.
The Tribunal also raised with the applicant information that, in the Tribunal’s view, undermined the applicant’s explanation about why he delayed applying for a protection visa. Remembering that the applicant told the Tribunal that he was not made aware of protection visas until 2018 or 2019, the Tribunal put to the applicant the fact that his parents applied for protection visas on 10 June 2015 which was two months after all the family arrived in Australia. Noting that the applicant had told the Tribunal that he lived with his parents while he was in Australia, it was curious to the Tribunal that the applicant would have no knowledge of protection visas until 2018 or 2019 despite his parents claiming protection when they did. In response, the applicant told the Tribunal that the migration agent said his parents were too old for student visas and suggested they apply for protection visas instead. They wanted to do this, so they did not overstay their visas.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a ‘refugee’ or a person who meets ‘complementary protection.’ The Tribunal must also consider whether the applicant is a member of the same family unit as a person who is a ‘refugee’ or meets ‘complementary protection.’
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
What is the identity of the applicant and his citizenship?
The Tribunal is satisfied that the applicant is who he says he is, and that he is a citizen of Malaysia with no right to enter and reside in a third country. The Tribunal is satisfied of these facts based on the Malaysian passport that was provided by the applicant with his protection visa application. There is no information to suggest that the applicant has another identity or is a citizen of any other country.
Is the applicant a witness of truth?
The Tribunal has ultimately concluded that the applicant is not a credible witness. The Tribunal’s view is that the applicant has a fluid approach to telling the truth and is prepared to give whatever evidence he believes will assist him to achieve a positive migration outcome, namely a visa that would allow the applicant to remain in Australia permanently. The Tribunal is not satisfied that the applicant’s family have ever been harmed in any way in Malaysia by the authorities or any person or group. The Tribunal is not satisfied that the applicant left Malaysia for any reason other than to study. The Tribunal is not satisfied that the applicant has a genuine fear of harm returning to Malaysia. The Tribunal is not satisfied that the applicant’s desire to remain in Australia has anything to do with a fear of harm.
Instead, the Tribunal concludes that the applicant planned to travel to Australia for educational purposes with a view to obtaining permanent residency. When those chances were dashed with the cancellation of his student visa, the applicant decided to fabricate his claims for protection to achieve permanent residency another way. The Tribunal comes to this conclusion for the following reasons.
Delay in protection visa application
It is incredulous for the Tribunal to accept the applicant’s explanation for the delay in applying for a protection visa. He told the Tribunal that he was fearful of returning to Malaysia since his arrival in Australia. Yet it took a period of almost four and a half years for the applicant to lodge a protection visa, despite him using the services of an agent to lodge the student visa, his parents applying for a protection visa soon after their arrival, knowing about protection visas since 2018 through a friend (if that was to be believed) and yet not lodging a protection visa until after he was released from prison and in immigration detention. The Tribunal found the applicant’s evidence about all of this bizarre and contradictory, especially when the applicant told the Tribunal that the reason his parents lodged a protection visa was because they were not likely to be successful applying for student visas which was the advice of the agent. Given this, it would be reasonable to expect that the applicant would have knowledge of protection visas no later than June 2015 when his parents applied for protection. It was also incredulous that the applicant would not express his fear of returning to Malaysia to his agent so that a protection visa could be lodged. The applicant provided no reasonable explanation for why he did not tell his agent about this fear, instead only saying that the agent told him about student visas. Further, it is incredulous for the Tribunal to believe that the applicant was advised that he could apply for no other visa while he was in prison. His evidence about this was very vague, only referring to Legal Aid advice, what others told him, and some curious claim that the agent told him he could not apply for another visa while his student visa was ongoing. The Tribunal does not accept that a migration agent would provide this misleading advice, and the applicant provided nothing more than his say so about such a claim that, if true, would raise serious concerns about the competency of the agent.
The Tribunal is not persuaded by the applicant’s explanation to account for the delay in applying for a protection visa. Rather, the Tribunal is satisfied that the applicant lodged a protection visa application as a means to remain in Australia as an alternative to the planned permanent residency which he hoped to achieve through visas that may result from a student visa.
Flexible approach about whether the applicant departed Australia after March 2015
The applicant’s evidence about whether he departed Australia after his initial arrival in March 2015 was also not persuasive. The Tribunal was quite clear in its question, which it asked a couple of times. The Tribunal did not ask about whether the applicant returned to Malaysia. The Tribunal asked whether the applicant had ever departed Australia. The applicant said no. He sought to account for this inconsistency by saying that he travelled to [Country 1] and [Country 2], but then curiously told the Tribunal that he had stopped over in Malaysia but remained at the airport. The Tribunal suspects that the applicant thought the Tribunal had information that the applicant had in fact travelled to Malaysia and sought to say that he was there only in transit. However, if it were true that the applicant was only in Malaysia in transit at the airport, then it is extremely odd that the applicant would not have told the Tribunal that when he thought the Tribunal had asked him whether he had ever returned to Malaysia.
In the Tribunal’s assessment, the applicant told the Tribunal that he had never departed Australia because he thought that his act in twice leaving Australia would suggest that he had no fear of harm, and he took a guess that the Tribunal was not aware that he had in fact left Australia twice since his first arrival. When it became apparent that the Tribunal was aware of his previous departures, the applicant then told the Tribunal that he misunderstood the question. The Tribunal is satisfied that it was at this point that the applicant suspected that the Tribunal may have information that demonstrated the applicant had actually returned to Malaysia, and it was for that reason that the applicant told the Tribunal that he was there but only in transit at the airport. To the Tribunal’s way of thinking, the applicant was prepared to be evasive in his oral evidence and when caught out in a mistruth, was prepared to persist with further untruths. Had the applicant misunderstood the question about his departure about being whether he had returned to Malaysia, the Tribunal is satisfied that the applicant would have told the Tribunal that he had returned to Malaysia but only in transit and remained at the airport. The Tribunal is satisfied that all of the above demonstrates that the applicant is flexible in his evidence and in fact has no fear of harm in Malaysia.
The applicant never expressed any fear of harm in Malaysia prior to lodging a protection visa, despite several opportunities to do so
The applicant has been provided numerous opportunities in which it would be reasonable to expect that he would express a fear of harm in Malaysia if such a fear was genuine. He did not do so. He did not tell his agent about this and could not provide an explanation about why he did not do so. He did not express any fear of harm to the Tribunal who conducted the review application concerning the cancellation of his student visa. He did not express any fear of harm in his located person interview on 6 October 2020, instead citing that his parents were in Australia as a reason why he could not return to Malaysia. Again, the following day on 7 October 2020 he did not express any fear of harm returning to Malaysia. The only time the applicant expressed any claimed fear of harm was when he lodged a protection visa some four and a half years after his initial arrival in Australia. The Tribunal does not accept that the applicant did not express any of this claimed fear because he had blocked it out of his mind and did not want to dwell on it. Nor does the Tribunal accept that the applicant did not express any fear of harm because of misunderstanding or because a Department officer suggested he may get a visa that day, rendering him raising his claimed fear of harm unnecessary. The Tribunal is satisfied that these explanations were fabrications put forward by the applicant in a poor attempt to explain something so obvious as to fundamentally undermine the applicant’s claimed fear of harm.
The applicant did not declare his previous criminal offending in his protection visa application form
The Tribunal has considered the fact that the applicant declared in his protection visa application form that he had not been convicted of any offence in any country. If this was the only concern that the Tribunal had about the applicant, then the Tribunal may be prepared to accept the applicant’s explanation about why he did not declare his imprisonment in the protection visa application form.
However, the Tribunal is not persuaded that the applicant misunderstood the question in the protection visa application form. The Tribunal is satisfied that the applicant probably thought that the person deciding the protection visa application may not be aware of his criminal history and the basis of his student visa being cancelled. The Tribunal is satisfied that the applicant sought to hide this information in his protection visa application form because he was worried that it may impact his protection visa application. To the Tribunal’s way of thinking, this demonstrates that the applicant is prepared to hide or withhold information that he believes will not assist him to achieve a migration outcome.
The Tribunal is satisfied that the applicant became aware of the likelihood that the Tribunal would soon become aware of his criminal history in the course of its discussion with him about the basis of his student visa being cancelled. It was for this reason that the applicant told the Tribunal that he had been in jail, and he pretended to misunderstand the question in the protection visa application form about whether he had been convicted of any criminal offence. The Tribunal suspects that had it not questioned the applicant about the basis of the cancellation of his student visa, the applicant would have persisted with his assertion that he had not been convicted of any criminal offence. The Tribunal concludes that the applicant is prepared to be less than honest if he believes that this will assist him to achieve a positive migration outcome.
CONCLUSION
The Tribunal considered all the information it had concerning the applicant, including what the applicant told the Tribunal is his oral evidence at the Tribunal hearing. The Tribunal ultimately concludes that the applicant is not a witness of truth and that he has fabricated his claims for protection in their entirety to achieve a positive migration outcome.
The Tribunal does not accept that the applicant’s family land has been appropriated by the government, that the applicant or his family have ever been threatened or harmed in the past, that the applicant left Malaysia because of this harm and refuses to return to Malaysia because of this fear, that the applicant will be destitute or believes that he will be harmed because of alleged corruption in Malaysia or that he will be harmed because the Malaysia is different to Australia in terms of human rights and freedoms (even if that were the case).
Instead, the Tribunal concludes that the applicant has no genuine fear of harm in Malaysia for any reason. The Tribunal is not satisfied that the applicant is of adverse interest to any person, group or authority in Malaysia because the applicant himself does not believe this to be the case. Instead, the applicant seeks to remain in Australia on a protection visa as an alternative migration pathway to permanent residency which could have been achieved through visas after student visa.
The applicant is not a witness of truth. The Tribunal rejects the applicant’s claims in their entirety.
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Malaysia on account of his race, religion, nationality, membership of a particular social group, or political opinion.
Accordingly, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
The Tribunal has considered the alternative basis on which the applicant may be owed protection obligations. However, for the same reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Malaysia, there is a real risk that the applicant will face significant harm.
According, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
The applicant has made his own application for protection. He was not included as a dependent on the protection visa application of his parents. The applicant’s parents have not been found to be owed protection obligations. There is no information to support a contention that the applicant is a member of the same family unit as a person who is either a refugee or meets the criteria for complementary protection and holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 1856

6 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness