2313463 (Refugee)

[2024] AATA 4441

2313463 (Refugee) [2024] AATA 4441 (2 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2313463

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Denny Hughes

DATE:2 October 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 02 October 2024 at 5:11pm

CATCHWORDS

REFUGEE – Protection Visa – Malaysia – race – Kadazan (native Bornean) ethnicity – religion – Christian – political opinion – a volunteer for Sabah Sarawak Union-United Kingdom – claims copied verbatim from another source – came to Australia to work and support his family – not an active member of SSUUK/SSKM – state protection available –  credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 19 December 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criteria for grant of a protection visa.  

3. The Tribunal, differently constituted, affirmed the delegate’s decision on 19 August 2022. The Tribunal’s decision was set aside by the Federal Circuit and Family Court of Australia (Division 2) on 23 August 2023. The matter is now before the Tribunal pursuant to consent orders of the Court.

4. The applicant appeared before the current Tribunal on 25 July 2024 and 6 September 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of interpreters in the Malay and English languages.

   CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL

   Visa application

5. In the protection visa application, the applicant included his answers for why he was seeking protection. His answers were handwritten, and in response to the question asking why he left his country (Malaysia) the applicant answered as follows:

   I’m a volunteer for Sabah Sarawak Union-United Kingdom, trying to claim Sabah Sarawak rights by collecting sign petition to United Nation, and get the British Government to review the validation of the ‘Malaysia Agreement 1963’. But to do this voluntarily job being part of the secessionist, but all we want is justice. We are seeking international law, that Malaya has breached the contract of "Malaysia Agreement 1963”, and caused the Singapore left the Federation in 1965. Long-term human rights abuses happened in North Borneo Sabah and Sarawak, after Malaya violated the 'Malaysia Agreement 1963’. Our dignity has been injured and we’ve been struggling for justice.
   
   As a volunteers for Sabah Sarawak Union-United Kingdom (SSU-UK), we’ve been threatened and some of the volunteers has been charged and with sedition act for collecting sign petition from the people, for Sabah Sarawak rights. The Malaysia Government threatened us but they still refused to obey or to review the “Malaysia Agreement 1963”, and we still being discriminated and neglected from the right that we supposed to have according to the agreement made before the formation of Malaysia signed in 1963.
   
   Criminal issues in Sabah increased since the Malaysia government doing ethnic cleansing on the natives people in North Borneo Sabah by giving citizenship to the illegal immigrants from Philippines as long as they’re willing to convert to Islam and they must vote for the Malaysian government political benefits. Sabah are no longer safe because, most local people experienced criminal issues such as robbing fighting and sexual abused, and it is become pattern that we can hear every week most Sabahan including my self experienced harmed from the demographic structure.

   Every time there’s criminal incident happened caused by the illegal immigrants, a police report will be lodge, hoping that the illegal immigrants from Sulu stop causing

   troubles but instead the number of illegal immigrants has increased. They’ve been give fake citizenship ID for the government of Malaysia too get vote during election day, for their political benefits.

   There in no way that I can move to Malaya because the racist public environment in Malay is the wort and depressing. They discriminate other race because the priority only been given to the Malays Race, since Malaysia practicing, “System Ketuanan Melayu (Malays the Boss/Top rank). It is against human for discriminating other people just because of their race and religion and that is what happened in Malaysia.
   
   We’ve been threatened and accused if we become part of SSU-UK volunteers to collect sign petition for Sabah Sarawak rights. The Malaysia government ignored the human rights. That we claimed according to the agreement agreed during the formation of Malaysia in 1963. The “Malaysia Agreement 1963” is VOID, after Singapore left the Federation, and SSU-UK try to get the ‘Malaysia Agreement 1963” to be review. But fighting for our rights and knowing what the Malaysia. We are democracy country but we don’t have freedom of speech, expression, freedom of write and read.
   
   The authority in Malaysia will never protect those who against the Malaysia agreement over though the Malaysia government know that they are doing wrong and against human right. Especially when it come to “Malaysia Agreement 1963” being threatened for knowing the truth behind Malaysia lies.
   
   Part of the integrity of human rights is not just a civil and political right. It also includes economic, social and cultural rights: - The rights to food, to education, to health, extreme poverty is the worst violation of human right happened in Sabah and Sarawak, where the land is rich with oil and gas resources, but the Natives people still Living in the right poverty it is not safe to be volunteers to collect sign petition in Malaysia.

6. The applicant provided articles in support of his claimed political opinion, the relevant political entities, and issues arising in relation to Sabah and Sarawak.[1]

   [1] SSUUK, The twenty points and the deviations in in implementations, undated (Source: United Varsity Students of Borneo, Blogspot, August 2008); SSUUK, 100 members of NGOs to gather and demand release of activists, February 2015 (Source: Borneo Post Online); SSUUK, SSKM volunteers’ cases adjourned, September 2015; SSUUK, Malaysia is not one country, August 2015; SSUUK, Fulfil Malaysia Agreement or let Borneo states free, says Jeffrey Kitingan, (Source: Desmond Davidson, The Malaysian Insider, 6 March 2014); SSUUK, Free Sabah from Malaya’s Domination and Occupation, undated (Source: Dr. Jeffrey, Borneo Heritage Foundation, 15 September 2014); SSUUK, Anifah, Jeffrey deserve total support for raising Sabah rights and issues – ex CM, (Source: Kinabalu Today, undated); SSUUK, Sarawak is a partner in formation of Malaysia, not a step child, undated (Wiki Sabah, Blogspot, June 2015).

7. In addition to these protection claims, the applicant provided evidence of his identity, and detailed his past travel, residential history, employment history ([details deleted]), and his education, including his completion of a diploma [at] a [university].

8. The delegate did not interview the applicant.

   Tribunal review

9. The applicant lodged his application for review on 2 July 2017. He provided the Tribunal with a copy of the delegate’s decision.

10. In the previous review (1714127) the applicant appeared before Member Lindsay on 15 August 2022. He also provided submissions ahead of that hearing.[2]

    [2] SSUUK, We’re in  the process of claiming our Rights through United Nation, April 2016 (Source; Elvera Edward); SSUUK, Call for Sabah and Sarawak rights!, July 2016 (Source: Doris Jones (UK) and Elvera Edward (Australia); Uncited document, ‘The issue of autonomy’, undated

11. The applicant was invited to a hearing before the current Tribunal scheduled for 30 May 2024. On 24 May 2024, the applicant requested a postponement of the hearing due to his work scheduling. He claimed he missed the hearing email due to his duties organising [Event 1 in] April 2024. The Tribunal agreed to postpone the hearing.

12. The applicant appeared before the Tribunal on 25 July 2024 to give evidence. That hearing was adjourned for a further hearing due to time constraints.

13. A rescheduled hearing was scheduled for 23 August 2024. On 17 August 2024, the applicant requested that the hearing be postponed due to issues at his workplace and his transfer to a new department. The Tribunal agreed to postpone the hearing.

14. The applicant again appeared before the Tribunal on 6 September 2024 to give evidence. He also provided written submissions (articles) at the time of the second hearing.[3]

    [3] Joint Press Statement, End 61 Years of Humiliation in Malaysia, 5 September 2024; James Chin, Commentary: Sabah and Sarawak are proving to be a political headache for Anwar, CNA (News), 3 September 2024

15. To the extent relevant to the matters under review, the applicant’s evidence is considered in further detail below.

    CRITERIA FOR A PROTECTION VISA

16. 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.

17. 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.

18. 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).

19. 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.

20. 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

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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this case is whether the applicant meets the criteria for grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. 

    Identity and background

23. The applicant provided the Department with a copy of the biodata page from his Malaysian passport, as well as other Malaysian identity documentation. He has consistently claimed to be from Malaysia. There are no apparent concerns with the applicant’s identity. I am satisfied that the applicant is a national/citizen of Malaysia.

24. There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that he has any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Malaysia is his receiving country and has assessed his claims against that country.

25. The applicant’s evidence was that he had only ever lived with his family in their home in Penampang in the north of Sabah. The applicant’s family are still in Sabah. His father had run a [company], which the applicant also had worked for in the past, but he no longer has it and now is on a pension. His siblings work in the government and private sectors. He indicated his family are well.

26. The applicant is married and his wife is in Australia. He confirmed she has applied for protection and has similar claims to his own, but there is nothing additional from her profile relevant to his claims.  He has not provided any specifics of her claims.

27. According to his written and oral evidence, the applicant is well educated. He completed his secondary schooling, as well as a [diploma] at a Malaysian university. He also indicated in the course of this review that he undertook some further short [study].

28. The applicant was consistently employed while in Malaysia, working in [fields], most recently as [a role] for [a company].  He confirmed he was working until he left Malaysia. He had previously travelled to Australia for a few days as part of his [work], but he had returned to Malaysia after this.  

29. The applicant claims to be a Christian and of Kadazan (native Bornean) ethnicity, an indigenous group from Sabah. The evidence before me confirms he is from Sabah and he has consistently claimed to be Christian and Kadazan. I accept his religious and ethnic profile.

30. The Tribunal found the applicant’s evidence about his background to be consistent across his written and oral evidence and freely given. I accept these claims.

31. While I am satisfied of the applicant’s identity and background, I have a number of concerns with his credibility and the credibility of his claims. In the assessment below, I conclude that the applicant has not been credible in terms of his protection claims, in particular as they pertain to his political opinion and his political involvement in Malaysia and Australia.

    Claims related to political opinion and political involvement

32. The applicant claims to have been a volunteer for Sabah Sarawak Union-United Kingdom (SSUUK) – an NGO he claims he is seeking to enforce Sabah and Sarawak rights, and the obligations under the Malaysia Agreement 1963 (MA63). In his evidence to the Tribunal, the applicant expanded on his involvement and support for SSUUK, as well as a related entity, Sabah Sarawak Keluar Malaysia (SSKM), and a new political NGO in Australia, Republic of Sabah North Borneo (RSNB).

33. The Tribunal has considered the reports and written documents provided by the applicant throughout the course of his application. They provide a thorough account of the issues arising in Sabah and Sarawak, concerns over the treatment of these areas by the Malaysian Government and peninsula Malaysia, the issues being agitated for, as well as the political goals of groups such as SSUUK and SSKM. The applicant also provided evidence of the Australian based NGO RSNB.

34. DFAT states the following about these issues:

    While there is significant discontent in Sabah and Sarawak regarding perceived failure of Peninsular Malaysia to honour the 1963 Malaysia Agreement (known as MA63), Malaysia does not have significant separatist sentiment. In-country sources told DFAT that ‘real’ separatist intent regarding Sabah was confined to overseas diaspora. While there is debate on the topic, it is focused on achieving greater autonomy and restoration of perceived entitlements under MA63 rather than independence.[4]

    [4] DFAT, Country Information Report – Malaysia, 24 June 2024

35. The applicant has been in a general sense consistent in his claim to have been politically involved in these matters. He has provided credible country information about the issues facing Sabah and Sarawak, the people and groups politically advocating for these concerns to be addressed (particularly within the diaspora), and the issues some people and groups have faced because of this political activism, including prosecution by the Malaysian Government.[5]

    [5] For example: SSUUK, SSKM volunteers’ cases adjourned, September 2015; SSUUK, In Sabah assembly even mention of secession now banned, August 2018 (Source: Malay Mail Online)

36. While the Tribunal accepts these issues are genuine and ongoing, for the reasons that follow the Tribunal does not accept the applicant’s claimed political involvement with these groups is credible.

37. Firstly, I have serious concerns about the applicant’s claims as expressed in his written visa application and whether they reflect in any sense his own claims or experiences. The evidence before me appears to indicate that the applicant has copied those claims verbatim from another source, that they are not his own claims and they are not credible.

38. In the first hearing, I asked the applicant whether he completed his own visa application. The applicant responded ‘yes.’ He said after two months in Australia, he met a few other people and followed the latest news about SSKM, so his protection visa application was about that. I asked if he completed the visa application in his own words. He said it was his words, but it is a combination of other people’s words too. He appeared to indicate this was a ‘copy paste claim,’ because these issues are not solved yet. I asked him to clarify what he meant by a “copy paste claim.” The applicant said other people had voiced out about these issues and used the same thing. I again asked him to confirm these were the applicant’s own words. The applicant said ‘yes.’

39. The applicant applied for a protection visa on 19 December 2016. In his protection visa application, the applicant included his answers for why he was seeking protection (as detailed above). His answers were handwritten, and in response to the question asking why he left his country (Malaysia) the applicant answered as follows:

    I’m a volunteer for Sabah Sarawak Union-United Kingdom, trying to claim Sabah Sarawak rights by collecting sign petition to United Nation, and get the British Government to review the validation of the ‘Malaysia Agreement 1963’. But to do this voluntarily job being part of the secessionist, but all we want is justice. We are seeking international law, that Malaya has breached the contract of "Malaysia Agreement 1963”, and caused the Singapore left the Federation in 1965. Long-term human rights abuses happened in North Borneo Sabah and Sarawak, after Malaya violated the 'Malaysia Agreement 1963’. Our dignity has been injured and we’ve been struggling for justice.

1. In undertaking this review, I identified an earlier Tribunal matter that contained identical or near identical claims to those advanced by the applicant. This visa application was also lodged six days before the applicant’s own protection visa application. In that review, the claims from his visa application were advanced as follows:

   I am a volunteer for Sabah Sarawak Union-United Kingdom, trying to claim Sabah Sarawak rights by collecting sign petition to United Nation and get the British government to review the validation of the Malaysia agreement 1963. But to do this voluntarily job being part of the secessionist, but all we want is justice. We are seeking international law, that Malaya has breached the contract of “Malaysia agreement 1963” and caused the Singapore left the Federation in 1965. Long-term human rights abuses happened in North Borneo Sabah and Sarawak. After Malaya violated the Malaysia agreement 1963. Our dignity has been injured, and we’ve been struggling for justice.

2. This claim, and the remaining protection claims in this review are identical or near identical to the applicant’s own claims as advanced in his own protection visa application. Those identical claims, which were included in a visa application submitted before that of the applicant in the current matter, raised significant doubts for the Tribunal about the credibility of the applicant’s claims and his credibility overall.

3. In the first and second hearings, I put these concerns to the applicant for comment. In the first hearing, the applicant indicated he would prefer to have time to comment. I accepted that and indicated to him that we could discuss those issues at a further hearing.

4. At the second hearing, I again put that information to him for comment or response. The applicant provided his response after a further short adjournment.

5. The applicant contends that while he had said the words in his visa application were his own and that he had done it himself, he was not alone when he prepared the application. He explained that the answers given were by people from Sabah, and these were the words from his mouth and others combined. He claimed this was how they wanted to apply for protection. He said the words were similar because all Sabahans are voicing to have their rights respected. He said that since that time, his determination to fight for justice for Sabahans has not abated. He also discussed their political activity over the years, and the risks to him on return because of his involvement.

6. When I again noted that the claims were identical, and that he had not contended that he worked with others to come up with general answers for the application, the applicant responded that maybe it was a ‘copycat’ group thing. He wished to stress that what was written down is proof that they are all fighting for the people.

7. I found the applicant’s explanation unsatisfactory and contradictive of his earlier evidence. He had contended the claims were his own, and only varied that evidence when it was apparent that the information before the Tribunal contradicted those contentions. He had not previously suggested these were collective claims or representative of all Sabahans. I am not satisfied these are his claims or experiences and consider he has copied these claims from other sources. His evidence leaves me with significant concerns about the credibility of these claims and his overall credibility.

8. Secondly, on a related basis, I have concerns about the timing of the applicant’s application for a protection visa and his reasons for applying for protection.  

9. In the first hearing, I asked the applicant why he came to Australia. The applicant stated that he came to Australia to work and support his family. He confirmed that the second time he left Malaysia and came to Australia he did not fear anything. He was only worried about his family’s socio-economic condition and whether they could survive or not.

10. According to the decision record, the applicant first arrived in Australia on [date] February 2015, before departing on [date] February 2015. He then arrived in Australia again on [date] October 2016, before applying for a protection visa on 19 December 2016.

11. Before the Tribunal, the applicant indicated some political involvement in Malaysia prior to coming to Australia, but initially indicated this was not directly with SSUUK or SSKM, although he was aware of these groups. The applicant’s evidence instead was that he supported the political group Warisan from 2015, and attended talks and helped out at elections, spreading awareness. The applicant suggested there was indirect support from Warisan for SSKM.

12. The Tribunal noted country advice indicated Warisan was not founded until October 2016,[6] after he applied for protection. The applicant said during the 2015 elections it was called Harapan. When I put to him that Harapan was a different party entity, the applicant said that he had followed the leader, who was previously from Parti Keadilan. The applicant said he was not a member of Warisan. He was aware of SSKM at this time, had attended a talk (or talks) during the election, and triggered an interest for him in the issues of Sabah. He then suggested he gave out pamphlets for them (SSKM).

    [6] New Straits Times, Shafie's party name, logo approved, to be called 'Parti Warisan Sabah', 17 October 2016.

13. When asked if he had any issues with the police, he said they were detained once by the police and let go during a talk. He was not harmed and they told them to go back home. When I put to him his visa application indicated that he had been harmed, he said harm has a lot of meanings, including unfair treatment and discrimination.

14. The applicant contended that he became involved with SSUUK after he came to Australia the second time. It was his evidence that after he joined SSUUK he was worried his name would be blacklisted. He confirmed he was only with the group for a short period and within that two months he applied for protection.

15. The applicant confirmed in the second hearing that he has never been contacted by the Malaysian authorities, and has never been at threat.

16. While his evidence was limited and somewhat inconsistent with timelines about the formation of Warisan, the Tribunal is prepared to accept the applicant supported Warisan (or its predecessor party) and its leader.  It does not appear that he had any role of significance with this party. His evidence that he came to hand out pamphlets for SSKM was more unconvincing. It is not clear to me how he would come to hand out pamphlets for SSKM if he were supporting Warisan/Parti Keadilan at the time. I found his evidence shifting and unreliable. I do not accept he was involved or supported SSKM at this time, however I am prepared to accept he became aware of SSKM at this time.

17. The applicant’s claims about his involvement with SSUUK in Australia was superficial and, if accepted, occurred over a short period between arriving in Australia and applying for protection (around two months). During this period, he had never been contacted or threatened by the Malaysian authorities, whether in Australia or Malaysia. The applicant confirmed this was the case, yet within two months of arriving in Australia and the commencement of his claimed involvement with this group, he applied for protection.

18. At the first hearing, I asked what changed that made him apply for a protection visa. The applicant indicated that he wanted to remain in Australia and people told him if he wants to stay legally, he had to apply for a protection visa. I asked him if he feared returning to Malaysia at that time. The applicant said he had joined the group and if he returned home he feared he would be blacklisted. When I asked why he became so concerned during that short window of time, he said he had no plans to go back home once he applied for the visa. He indicated he loved Sabah and he was worried for his family and the public.

19. Separate from my concerns about the applicant’s limited claimed involvement with these groups, it is not evident to the Tribunal why he would have felt the need to apply for protection at this early stage. His claimed involvement with the group was recent, limited and he had faced no threat due to his involvement. His claimed political involvement in Malaysia was also limited and did not indicate he had any risk profile when he left. Indeed, he did not give this as a reason he left Malaysia initially. At the point of the visa application, it does not appear he was at any obvious threat of harm.

20. I do not find the applicant’s reasons for applying for protection, or the circumstances in which he applied for protection, to be credible. This raises further concerns for the Tribunal about his protection claims, and his overall credibility.

21. Thirdly, his evidence about his support for these issues while in Australia was limited. Beyond the period prior to his visa application in which he claims to have been involved asking for people to sign petitions, it was his evidence that he was not an active member of SSUUK/SSKM in the years after he lodged his visa application, although he claimed he still discussed the issues of Sabah and MA63 with others. He has not provided evidence of ongoing support for this group in the period after lodging his application.

22. In terms of his recent claimed involvement with a new entity, RSNB, it appears he only recently became involved with this group, shortly around the time of the hearings. And, as discussed below, again only in a limited sense.

23. In the second hearing, the applicant provided some insight into his limited political activity, referring to the issues faced by the Sabahan community in Australia and the need to move to other parts of Australia for work. I accept that could be a barrier, but the lack of evidence of other political involvement with these issues across several years raises further concerns for the Tribunal about the genuineness of his claimed political involvement.

24. I did find the applicant’s evidence of his support for Sabahan issues and the Sabahan community to be more persuasive. He indicated that he plays a central role in [Event 1] in his home area, indeed this was one of the reasons he requested that an initial hearing be postponed. I accept that evidence. The applicant was also persuasive in his broader support for Sabah and his desire to see his home area be treated more fairly. In the first hearing, he talked about the Malaysian Government honouring MA65 and obtaining what Sabah was supposed to get, particularly given what it provides Malaysia in terms of natural resources and income. Rather than advocating for secession, the applicant indicated he believed in working towards one Malaysia.

25. While I found his community involvement and general support for Sabahan issues to be credible, I found his evidence about his lack of membership or political involvement with SSUUK/SSKM over the last few years, or evidence of any political activity in these years, raises further concerns for me about the credibility of his protection claims.

26. Lastly, the Tribunal found the applicant’s evidence about his political involvement with a new entity (Republic of Sabah North Borneo or RSNB) to be superficial and unpersuasive. The applicant indicated that he had recently (at the time of the first hearing) become involved in a new political group (RSNB) in Australia and had attended 3 to 4 meetings via Zoom and in [person]. He said they planned to have a protest on 15 September 2024 at Parliament House in Melbourne.  He said the RSNB Facebook page contains articles about MA63 and the problems faced by people of Sarawak and Sabah. He said this proves these NGOs are not just made up.

27. The applicant said RSNB is the same people from SSUUK/SSKM with a new name. He said he is active with the movement. He said the leader of RSNB is wanted and his name is blacklisted. He said while it is a new entity, he has been active with it and he might also be caught if he goes home. When I asked what he had done actively aside from attend these meetings, he said the group would soon hold a peaceful rally.

28. At the second hearing, I asked the applicant to confirm whether RSNB advocated for secession from Malaysia. The applicant indicated that RSNB had a ten year plan for Sabah and Sarawak to secede from Malaysia. When I asked why he would attend a protest in support of such a group if he did not support secession himself, he said the people in the group hold differing views and he needs to join it to advocate for Sabahan rights. I again asked why he would join a protest of a group advocating for secession when that could potentially put him at risk. He said when they formed the group they championed the rights of Sabah, but after several meetings he came to understand they had other agendas to fight to secede from Malaysia. He said he did not want that, but the group wants to champion rights for Sabah. I again put to him that if the group had a political position he was opposed to, my concern was why he would continue to participate with that group, and protests if that could potentially put him at threat of harm on return to Malaysia. The applicant said his fight does not end here and that he sees a need for this group to exist as he is not able to form another NGO on his own. He wants to fight alongside them.

29. I asked if he had any other involvement with the group. He said it was a new organisation. He said word is spread through meetings and big events. He said he recently organised [Event 1], which was led by him in May. He said it is celebrated every May in Sabah. He said it shows the people of Sabah are united. When asked, he confirmed this was a cultural event, not a political event.

30. The applicant’s evidence of his involvement with RSNB was limited. He claimed he attended a handful of meetings in the period before the hearings, mostly through Zoom. He has provided no corroborative evidence of his membership, involvement or support for the group or attendance at any meetings or events, whether in person or online. He referred to the group’s social media activity, but did not provide any evidence of his interactions or support for the group in its social media.

31. Beyond his limited evidence of his involvement, I found his reasons for becoming involved with the group, and his intentions to attend protests, at odds with his other evidence. The applicant’s evidence was that he was not a secessionist, however he confirmed at the hearing that RSNB advocates for secession from Malaysia. I acknowledge his contention at the hearing that political groups are often composed of many views within its membership, however I consider his moderate position in support of Sabahan rights, is not consistent with support for a group that advocates for a more extremist secessionist position, particularly where that involvement could potentially put him at risk, as may have been the case if he had attended such protests.

32. I am conscious that people are not always consistent or coherent in their support for political movements, and that it is not implausible a person could support some political agendas and not others, however I again found the applicant’s evidence of his involvement limited and unpersuasive.

33. Given my concerns as discussed above, I am not satisfied and do not accept that the applicant ever supported or was a member of SSUUK or SSKM, whether in Australia or Malaysia. I do not accept he worked as a volunteer, collected petitions, gave out pamphlets, or was ever active with these groups in any sense. I am also not satisfied and do not accept that the applicant has supported or been a member of RSNB. I do not accept he was ever active with this group in any sense, nor would he be in the future.

34. The applicant’s family live in Sabah, he has a long history in the area, working in various fields, and it is reasonable to accept that he wants Sabah and its local peoples to be put first. I found his evidence on these issues credible. I accept the applicant holds moderate views in support of Sabah, and to some extent MA63, and that he desires to see the region and its people treated more fairly in a national sense. That is consistent with country advice.[7] It also appears that there is greater recognition of these issues within the Malaysian Government and public sphere, and a recognition among Sabah and Sarawak elites that secession is not an option.[8]

    [7] DFAT, Country Information Report – Malaysia, 24 June 2024

    [8] James Chin, Commentary: Sabah and Sarawak are proving to be a political headache for Anwar, CNA, 3 September 2024

35. I also accept he politically supports Warisan, however given the errors in his evidence, I consider he has exaggerated his political activity with this party. Had he actively supported the party at elections as he contends, I do not accept he would confuse the name or when it became a party. I consider at most he is a supporter and voter for the party, but he is not politically active. I am not satisfied and do not accept he was ever politically active in Malaysia in any sense beyond that, and I do not accept he had any involvement with SSKM (or SSUUK) at this time.

36. If he returned to Sabah, I consider he would continue to support Sabahan issues and vote in elections along those lines, but I do not accept he would be politically active in any sense beyond that. For clarity, I find he would in no sense support secession of Sabah from Malaysia or engage in politically sensitive issues.

37. I consider for those genuinely and actively involved in groups such as SSUUK or SSKM and advocating for secession for Sabah or Sarawak, there are potential risks in Malaysia. I consider that evident from some of the articles the applicant provided.[9] The applicant also referred to the Malaysian Security Offences (Special Measures) Act 2012 (SOSMA). While not specific to SSKM or SSUUK, the advice before me indicates that SOSMA has been used as a means of suppressing political dissent in Malaysia.[10] However, the extent of that usage is unclear. Advice cited in DFAT (from SUARAM) suggests that while 249 people were detained under SOSMA (and the Prevention of Crime Act 1959) in 2022 for suspected trafficking and organised crime, none were detained for political offences.

    [9] SSUUK, SSKM volunteers’ cases adjourned, September 2015; SSUUK, 100 members of NGOs to gather and demand release of activists, February 2015 (Source: Borneo Post Online); SSUUK, In Sabah assembly even mention of secession now banned, August 2018 (Source: Malay Mail Online)

    [10] HRW, Malaysia: Repeal Abusive Security Law - SOSMA Denies Right to Fair Trial, 31 October 2019; Soo Wern Jun, Justify Sosma controversies before taking ‘no review’ stand, pressure groups tell home minister, Malay Mail, 14 January 2023

38. Ultimately, I am satisfied the applicant has no such profile, nor is there any reason to consider he would be imputed with such a profile on his return to Malaysia. As I do not accept he has been politically active in Australia or Malaysia, whether in support of SSUUK, SSKM or RSNB or in any other sense, it follows that I am satisfied he has and will have no adverse profile with the Malaysian authorities or security services if he returns to Malaysia. I am not satisfied and do not accept he would be on any blacklist. I am not satisfied and do not accept he would be prevented from finding work or accessing services. I am not satisfied and do not accept he would be prosecuted, detained or investigated under SOSMA or face any such issues on return to Malaysia. As I do not accept his claimed political profile, I find he would not face any chance or risk of harm for these reasons if he returned to Malaysia, now or in the reasonably foreseeable future.

39. As I accept he supports Warisan (and its predecessor) and Sabahan issues, I have considered that aspect of his profile. In terms of political opinion and activity more broadly, DFAT’s assessment is as follows:

    [I]ndividuals who criticise the government generally face a low risk of official discrimination in the form of legal action by authorities and a moderate risk where they broach politically sensitive topics (the ‘3Rs’)[11] or where their criticism is especially prominent. DFAT assessed that individuals are generally not at risk of violence on the grounds of their political affiliations.[12]

    [11] Race, Religion, and Royalty

    [12] DFAT, Country Information Report – Malaysia, 24 June 2024

1. When I put this to the applicant, he said the information came from DFAT. He said no government would inform DFAT of its dirty secrets. I noted that the Malaysian Government is not the only source of information for the report.[13] The applicant said the content of the DFAT report relates to the whole of Malaysia, it is not specific to states. He said it may say he would not face a high risk, and he asked what if he returned and did face those risks. I asked him why he thinks the DFAT report is wrong, the applicant said his claims are his answers and this is what he is fighting for.

   [13] DFAT, Country Information Report – Malaysia, 24 June 2024

2. DFAT states the following in terms of its sources:

   This report is based on DFAT’s on-the-ground knowledge and discussions with a range of sources in  Malaysia. It also takes into account relevant information from government and non-government sources, including but not limited to: those produced by the Malaysian government and the US Department of State; relevant UN bodies and international organisations such as the Asian Development Bank, the World Bank, the International Organization for Migration, the Office of the UN High Commissioner for Refugees and the World Health Organization; leading human rights organisations and international non-governmental organisations such as Human Rights Watch, Amnesty International, Transparency International and Freedom House; Malaysian non-governmental organisations; and reputable Malaysian and international news organisations. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.

3. I accept the Tribunal should take a balanced approach when considering country advice. In this instance, I consider the DFAT report is appropriately sourced, and I do not accept the applicant’s submission that it relies only on the advice of the Malaysian Government. I consider the advice from DFAT is consistent with other country advice before me, that private political discussion is robust in Malaysia, but political expression on sensitive political and religious issues can result in adverse attention from the authorities.[14]

   [14] Freedom House, Freedom in the World Report 2024 – Malaysia, 2024

4. In terms of his political opinion more generally, which I do accept is genuine to some degree, I do not consider he advocates for independence or secession, rather he supports better treatment for Sabah and its people. On return to Malaysia, I do not consider he would be politically active or outspoken, that he would broach politically sensitive topics, or be prominent in his criticism of the government. In view of DFAT’s advice, I am not satisfied he would face a real chance or risk of harm or discrimination for these reasons.

5. In all the circumstances, I find there is no real chance of the applicant facing harm or serious harm, and no real risk of the applicant facing harm or significant harm, for any reason connected to his political claims or profile, or on any related basis, if he returned to Malaysia now or in the reasonably foreseeable future.

   Religion

6. In the first hearing, I asked the applicant if he had ever faced issues because of his religion. The applicant said if he went to Peninsula Malaysia for work or holiday, or he met ethnic Malays in Sabah, they would invite him to change his religion. He said they would ask him to marry a Muslim woman, and he would have to change his religion.

7. The applicant confirmed he is married to a Christian. I asked if he has any fears of being forced to marry a Muslim if he returned to Malaysia. The applicant said he is worried that if someone wants to manipulate things, if they caught him alone with a lady, or in connection with his work for political groups, they might do bad things to him related to religion.

8. I asked him to confirm these fears were separate from his political claims, noting the country information does not indicate Malaysian Muslims are seeking to forcibly convert non-Muslims to Islam or force them to marry Muslims. The applicant agreed this was correct and said there are no issues in terms of forced marriage.

9. The Tribunal noted there is a large number of Christians in Sabah, and suggested in that context there may be no real risk of him being discriminated or harmed on the basis of his religion. The applicant agreed. The applicant confirmed that his religious concerns related to his claimed political profile.

10. According to DFAT, rural areas, especially on the east coast of peninsular Malaysia, are predominantly Muslim, while Sabah and Sarawak are predominantly non-Muslim. Approximately 75 percent of Malaysian Christians live in Sabah and Sarawak, around 65 percent of whom are indigenous.[15]

    [15] DFAT, Country Information Report – Malaysia, 24 June 2024

11. While the Malaysian Constitution provides for religious freedom, in practice there are some legal restrictions. For example, Malaysian law prohibits speech insulting of religion, and is enforced most often in relation to speech regarding Islam.[16]    

    [16] US Department of State, 2023 Report on International Religious Freedom: Malaysia', June 2024

12. While the country information does not indicate non-Muslims are being forced to convert to Islam, there is some degree of pressure and incentivised conversion among certain disadvantaged indigenous and migrant groups, albeit it is not clear to what extent:

    In-country sources reported that Islamic religious and political NGOs financed by JAKIM have paid staff to attempt to convert poor people to Islam, incentivising potential converts with money, food and government welfare available to Muslims. However, it is not clear how widespread this practice is. In 2018, in-country sources told DFAT that Christians from the southern Philippines and Indonesia had been approached to convert to Islam in return for residency in Sabah (red identification card), with a view to applying for citizenship (blue identification card, only available to Bumiputera). Also in 2018, in-country sources told DFAT that some university students conducted home stays with Orang Asli to teach them about Islam and encourage them to convert, incentivising them with financial benefits, the promise of housing, and welfare available to Muslims. … In-country sources told DFAT some Christians felt pressure to convert to Islam.[17]

    [17] DFAT, Country Information Report – Malaysia, 24 June 2024

13. Freedom House does not suggest any specific threat to Christians. It states that non-Muslims in Malaysia are not able to build houses of worship as easily as Muslims, and the state retains the right to demolish unregistered religious statues and houses of worship.[18]

    [18] Freedom House, Freedom in the World Report 2024 – Malaysia, 2024

14. DFAT notes some restrictions on Christian publications, and reports of Christian pastors being abducted because of proselytisation. It states it is not aware of any disappearances of Malaysian Christians since these events in 2017, however it assessed there is a moderate risk of harassment, potentially including violence or abduction, by state authorities for those proselytise or promote Christianity. DFAT assesses that Christians are generally not at risk of societal discrimination.[19]  

    [19] DFAT, Country Information Report – Malaysia, 24 June 2024

15. I accept for some ordinary Christians in Malaysia, there can be official or societal pressure to convert to Islam. I accept the applicant may have experienced Malaysian Muslims who encouraged him to convert to Islam or marry a Muslim woman (which would necessitate conversion to Islam). While I accept some groups are facing pressure to convert, the country information does not indicate the applicant would be at threat of forced conversion or marriage, or other harm related to these issues. I note the applicant is already married. Marriages in Malaysia are based on mutual consent[20] and polygamy is against the law.[21]

    [20] OECD, Social Institutions and Gender Index 2014 – Malaysia, 1 January 2014

    [21] Section 494, Penal Code (Malaysia), Act 574

16. On the information before me, I am not satisfied there is any chance of the applicant being forced to convert to Islam or marry a Muslim, or that he was or would be at any chance or risk of harm for these reasons.  

17. I accept that for Christians that engage in promoting Christianity or proselytisation, or who are critical of Islam, there are risks in Malaysia. However, there is no claim or suggestion the applicant would engage in proselytisation or promotion of Christianity, or that he would speak out against Islam. I am satisfied the applicant would not do any of these things. I find he would face no real chance or risk of harm for these reasons if he returned to Malaysia.  

18. Ultimately, I accept DFAT’s assessment that as a Christian he is not at risk of societal discrimination, and find that in the context of Sabah, which has a more significant Christian population, any such risks are even further reduced. I have not accepted that the applicant has any adverse political profile. It follows that I do not accept he is at any additional chance or risk of harm in terms of his religion because of such a political profile.

19. In all the circumstances, I find there is no real chance of the applicant facing harm or serious harm, and no real risk of the applicant facing harm or significant harm, for any reason connected to his religion, if he returned to Malaysia now or in the reasonably foreseeable future.

    Claims related to ethnic profile and situation in Sabah

20. Beyond his political claims, the applicant’s claims also relate to his ethnic profile as an ethnic Kadazan (native Bornean) and indigenous person from Sabah. On a related basis, he claims to fear harm in connection with immigration in Sabah and Sarawak.

21. In the written application, it states that the native people of North Borneo (now Sabah and Sarawak) are facing ethnic cleansing from the Malaysian Government by giving citizenship to illegal immigrants from the Philippines if they are willing to convert to Islam and vote for the Malaysian Government. It states the people of Sabah are no longer safe because local people are experiencing criminal issues because of this migration. These migrants have also been given fake citizenship documents by the government of Malaysia to vote in elections.

100.   It states he cannot relocate, because they would face discrimination because of their religion and race, the priority given to ethnic Malays under ‘System Ketuanan’[22]. They require not only civil and political rights, but economic, social and cultural rights – the right to food, education and health. The people of Sabah and Sarawak are living in extreme poverty.

[22] ‘Malay supremacy’

101.   At the hearing, the applicant said in the 1980s they faced issues because of his ethnicity. He said at the time, the Government took the land from them. In order to have the land returned people needed to convert to Islam. I noted it was his evidence that he continued to live in his family home throughout his life. He confirmed this was the case. I asked if they were forced to convert to Islam. He said the issue did not affect them directly, but it did affect other extended family members.

102.   I asked if he ever faced any other issues because of his ethnic profile. The applicant said at work. He said in the government sector, the quota for local people is lower even if they have a good education, and that is why local people have no jobs. I asked if he was ever directly affected. He said he saw a lot of this with his own eyes, and he tried to apply (for work in the government sector) but was unsuccessful.

103.   The Tribunal noted that it appeared from his employment history that he was never unemployed. He confirmed he found jobs in the private sector. He had applied in the government sector, but did not find employment. I put to him that his evidence was that some of his siblings worked in the public sector. The applicant confirmed this was the case.

104.   I asked him if he had any other past or future fears in terms of his ethnicity. He said he would find it difficult to get a job, and the unfairness of the government sector system. Although it was also his evidence that he could get a job in the private sector easily.

105.   When asked what he fears, the applicant said when migrants enter a village and set up their own settlement, they take all the jobs. I asked if this happened in his area. The applicant said they enter a village, make their own settlement and shops, which attracts more of their people into the village. Once they are strong in number they have more power, and can do as they please. He claims they burgle houses, harass children and young girls, and there have been rapes. I asked if he was personally impacted by the crime. He said he was not, but it did happen in his village.

106.   At the hearing, I noted the country advice indicated there was legal and illegal migration to Sabah from the Philippines and Indonesia, but the advice about criminality did not suggest he would face a real chance or risk of harm, and that the risks were faced by people throughout Malaysia.

107.   The applicant said that when there are too many foreigners in Sabah, there are many cases that the government would not publicise or post, about what was actually happening to local people, including land grabs. If they do not leave, they will become violent towards them. And the police cannot do anything because these people are protected by one of the political parties. When asked what political party protects them, he said it was Barisan National. I asked him who was in power now. The applicant said it was a coalition, but he could not specify which parties were a part of the coalition. When asked if this coalition was doing enough to combat crime in Sabah, the applicant said no government will admit it supports migration into the country, and they would try to cover it up. 

108.   The country advice speaks in some detail about the situation in Sabah, as well as the situation for the country’s indigenous peoples, including the Kadazan in Sabah.

109.   DFAT states the following about the special status given to ethnic Malays and indigenous Malay groups (‘Bumiputera’) in Malaysia:

Under Article 153 of the Constitution, ethnic Malays and other indigenous groups are given special status. These groups are collectively known as ‘Bumiputera’ although the term is not defined in the Federal Constitution or any statute. The term is typically used in Malaysia, including by the government, to refer to Malaysian citizens who are either ethnic Malay, ‘Anak Negeri’ (indigenous peoples of Sabah and Sarawak), or ‘Orang Asli’ (indigenous peoples of peninsular Malaysia). While the term Bumiputera includes Indigenous Malaysians, it is often used colloquially to refer to ethnic Malays alone.

Government regulations and policies have included numerous affirmative action style preferential programs to boost the economic position of Bumiputera. Such programs promote increased opportunities for Bumiputera to access higher education, careers within the Civil Service, commercial opportunities, and housing.  

… While ethnic Malays, Anak Negeri and Orang Asli are all categorised as Bumiputera, in practice they are treated quite differently from one another, with indigenous Malaysians much more likely to be marginalised. [23]

110.   The country advice indicates significant advantages for Malaysia’s Bumiputera, particularly in terms of higher education and government employment. Consistent with that, other ethnic groups (for example Malaysia’s ethnic Chinese and Indian populations) experience barriers in accessing education and employment in the civil service.[24]

111.   While the Kadazan are indigenous to Sabah and constitute part of the Bumiputera,[25] they do not share the same profile and privileges as ethnic Malays. DFAT states the following about Sabah’s indigenous populations:

Many indigenous people in Sabah and Sarawak live outside urban areas and have limited access to schooling and healthcare. Some Indigenous people in Sabah and Sarawak have experienced land grabs by property developers because they do not have formal title over their land. According to the US Department of State, although the Orang Asli have rights to their customary lands under the constitution, NGOs allege the government has failed to recognize these rights in practice. The government may seize customary land if it provides compensation. There have been confrontations between indigenous communities and logging companies over land, and uncertainty over land tenure has made indigenous people vulnerable to exploitation.

DFAT assesses that the indigenous peoples of Malaysia face a low risk of official discrimination in the form of inadequate service provision, and failure to uphold and protect customary land rights.

[23] DFAT, Country Information Report – Malaysia, 24 June 2024

[24] DFAT, Country Information Report – Malaysia, 24 June 2024

[25] Minorities at Risk, Assessment for Kadazans in Malaysia, December 2006

112.   DFAT highlights some of the additional issues in Sabah (and Sarawak) including higher poverty rates in rural areas. While Malaysia has a well-established universal health care system which is accessible to most of the population, it states that healthcare is less available outside major cities, especially in Sabah and Sarawak.[26]

[26] DFAT, Country Information Report – Malaysia, 24 June 2024

113.   Advice from Minority Rights Group confirms the issue of refugees and illegal immigration (from the Philippines and Indonesia) in Sabah and the impact that this has had on Sabah’s ethnic (and religious) population, suggesting this further marginalises indigenous peoples politically (through giving voting rights to Muslim migrants), as well as rights related to land ownership and resource allocation.[27]

[27] Minority Rights Group, Indigenous peoples and ethnic minorities in Sabah, January 2018

114.   Consistent with the applicant’s claims, DFAT indicates that some indigenous people in Sabah and Sarawak have experienced land grabs by property developers because they do not have formal title over their land.[28]

[28] DFAT, Country Information Report – Malaysia, 24 June 2024

115.   While the advice talks about the political, economic and resources issues in Sabah, it does not suggest the Malaysian Government is involved in ethnic cleansing within Sabah or Sarawak. DFAT’s ultimate assessment is that the indigenous peoples of Malaysia face a low risk of official discrimination in the form of inadequate service provision, and failure to uphold and protect customary land rights. [29]

[29] DFAT, Country Information Report – Malaysia, 24 June 2024

116.   Related to his concerns about Sabah, was the impact of immigration in his home area in terms of crime. The applicant claims this happened because the political leaders needed support of migrants from the Philippines. He claims they were given national identity cards so that they would vote. He said when there are too many immigrants, crime starts to rise. 

117.   Country advice confirms significant immigration to Sabah (both formal and informal), informal migrant settlements in the region, with migrants making up around a quarter of the population in Sabah – due in part to its proximity to Indonesia and the Philippines. The advice before me indicates a range of issues in terms of migration and these settlements, as well as concerns about crime within Sabah, but some analysis suggests concerns about crime by migrant communities in Malaysia and Sabah may be overstated.[30] The advice before me also indicates the authorities are taking significant steps to address issues with illegal migrant populations and settlements in Sabah.[31]

[30] Minority Rights Group, Indigenous peoples and ethnic minorities in Sabah, January 2018; Malay Mail, Illegal immigrants, crime shattering peace in Sabah’s villages, state reps say, 10 November 2014; Vibes, Illegal migrant crisis: Sabah communities urged to help find trespassers for mass repatriation, 17 February 2024; C Ozden, M Testaverde, and M Wagner, How and Why Does Immigration Affect Crime?

[31] The Straits Times, Over 8,600 immigrants deported in 2023 from Sabah depots, 29 January 2024; Borneo Post Online, Over 1,500 squatter homes demolished during multiple operations across Sabah says CP, 31 July 2024

118.   DFAT advice is that the security situation in Malaysia is generally stable, but petty crime is relatively common. It indicates the Malaysian Police force is professional and effective, although it notes the quality of its members’ responses varies depending on levels of training, capacity, and engagement in corruption. [32]

[32] DFAT, Country Information Report – Malaysia, 24 June 2024

119.   Consistent with the applicant’s claims, there is some indication of additional crime in Sabah. DFAT states that there is an ‘ongoing high risk of kidnapping in the coastal areas of eastern Sabah’ by suspected Philippines-based militant groups and crime syndicates. However, it provides no further context or explanation about that risk or the groups at risk.[33]

[33] DFAT, Country Information Report – Malaysia, 24 June 2024

120.   An earlier DFAT report relied on by the delegate states that Eastern Sabah is a designated security zone and the Eastern Sabah Security Command coordinates the Malaysian government’s response to terrorist threats, such as kidnapping for ransom, in this region. Threats in Eastern Sabah, especially its coastal regions, generally originate from the southern Philippines, mainly from the Abu Sayyaf Group.[34]

[34] DFAT, Country Information Report – Malaysia, 19 July 2016

121.   More recently, a Malaysian news report from 2023 suggests there have been no kidnap cases in the Eastern Sabah Safety Zone since 2020.[35]

[35] The Star, No kidnap cases since 2020, nokidnap-cases-since-2020, 8 November 2023

122.   I accept the applicant’s concerns about the situation in Sabah are genuinely held. I accept he considers the indigenous populations in Sabah (and Sarawak) have been disadvantaged. I also accept his evidence that he has known extended family and others that have been impacted by migration and crime, and he has concerns about the political implications of migration to Sabah, in terms of political representation and land issues. To some extent, I consider those concerns are fairly held.

123.   Equally, it was clearly his evidence that he had not been impacted by land issues or crime or poverty. His family had maintained a stable home in his home area, where he had lived his whole life. He has been able to complete his education, including tertiary [studies]. He was employed consistently throughout his post schooling life, in a range of fields, and had even travelled to Australia as part of his [work]. His father had owned his own business, and his siblings were employed in the private and public sectors, notwithstanding the barriers faced by non-Malays. He made no contentions his family faced poverty or he was unable to access the services he needed to live in Malaysia.

124.   Given my concerns with his written application, I have some doubts as to whether the applicant has any of the fears expressed in the application form. However, I have accepted he is from the Kadazan (native Bornean) ethnic group and an indigenous person from Sabah. For that reason, I have considered his oral and written claims.

125.   I accept as a Kadazan and indigenous person in Sabah, the applicant may face a low risk of official discrimination as indicated in the DFAT report.  

126.   I accept that there are barriers to education for ethnic groups that are not Malay, but I am satisfied he has not faced those barriers given the extent of his past education. I accept there are barriers to work in the public sector for non-Malays, and that he may have been unsuccessful in applying for public sector employment in the past, but I find it significant that some of his siblings have been able to find work in the public sector, and he was consistently employed in the private sector throughout his time in Malaysia.

127.   As discussed with the applicant at hearing, country information indicates the economic situation in Malaysia has been challenging, particularly during the pandemic, but more recent advice indicates the Malaysian Government has been successful in steering the country to an economic recovery, and unemployment rates have reduced to the lowest levels since the pandemic.[36]

[36] DFAT, Country Information Report – Malaysia, 24 June 2024; Malaysian Economic Monitor, Raising the Tide - Lifting all Boats, World Bank, October 2023

128.   Given his strong education and past work experience, and the recovery within the Malaysian economy, I consider he is well placed to find work again on return to Malaysia. Indeed, the applicant appeared to concede it would be easy to do so. While I accept he may not be able to find public sector work if he returned to Malaysia, I am satisfied he would not face discrimination or other barriers for these reasons in finding work in the private sector. I am satisfied the applicant would be able to find meaningful employment again in Malaysia that would enable him to far more than subsist.

129.   I consider the applicant would also be able to find accommodation (whether with his family or not) and access the services he requires, notwithstanding that there may be some limits to the services available (for example in terms of health care) when compared against Peninsula Malaysia. While there are issues with land rights, I am not satisfied the applicant would be personally affected by these issues.

130.   For clarity, I am not satisfied and do not accept he would be denied civil, political, economic, social and cultural rights – or access to food, education and health. I do not consider any considerations to the contrary are supported in the country advice.

131.   In view of the information before the Tribunal, if the applicant were to return to Malaysia, I consider he would again be able to find work and accommodation in Sabah, travel freely within and outside the country, access the services he requires, and make a living.

132.   I accept there are issues facing persons of the Kadazan ethnic group and other indigenous populations in Sabah (and Sarawak). However, I do not accept that the Kadazan or indigenous populations in Sabah are being ethnically cleansed as is contended in the written application. While I accept there are disadvantages and barriers for these communities, based on the information before me, I am not satisfied that the Kadazans or indigenous populations in Sabah are at threat or risk of harm or serious harm or significant harm.

133.   Further, when considering the applicant’s individual circumstances, I am not satisfied there is a real chance of the applicant facing harm or serious harm for reasons of his profile as a Kadazan (ethnic Bornean), or indigenous person from Sabah, or on any related basis, if he were to return to Malaysia now or in the reasonably foreseeable future. I am also not satisfied there is a real risk of the applicant facing harm or significant harm for reasons of his profile as a Kadazan, or indigenous person from Sabah, or on any related basis, if he were returned from Australia to Malaysia, whether now or in the reasonably foreseeable future.

134.   As I have not accepted that the applicant has any adverse political profile, it follows that I do not accept he is at any additional chance or risk of harm for these reasons because of such a profile. For clarity, I find there is no real chance or real risk of the applicant facing harm or serious harm or significant harm for any of these combined reasons.

135.   I have also considered the applicant’s claims relating to the threat of criminality in Sabah. I accept there is crime in Sabah, but I also accept DFAT’s overall assessment of the stable security situation in Sabah and Malaysia more broadly.

136.   Given the levels of formal and informal migration to Sabah, and disadvantage within those communities, I am prepared to accept that migration has had some impact on crime in Sabah. However, beyond the assessment provided for eastern Sabah, I am not satisfied it suggests crime is at a level where the applicant would be at threat of harm. I also consider the Malaysian police are effective, and that the authorities are taking clear steps to address informal migration and settlements in Sabah. The country advice does not suggest Sabahans are being denied protection from the police.

137.   In terms of the specific risks within Sabah identified by DFAT, the applicant did not contend he feared kidnapping. I also note he lives in northern Sabah, well away from the incidence of kidnapping in the eastern part of Sabah. However, most significantly, I do not accept that this kidnapping continues to occur with any frequency in Sabah.

138.   While I have considered DFAT’s assessment, based on what information is before me, I am not satisfied that the applicant is at threat from kidnapping by these groups, and I find there is not a real chance or risk of him facing harm in this way.

139.   In terms of criminality in a broader sense, I again accept DFAT’s assessment. I do not consider the applicant has any specific vulnerability or proximity to crime. I have not accepted he has any additional political profile that would put him at risk. And I am not satisfied that crime is at a level in Sabah or Malaysia where he would be at a credible chance or risk of harm.

140.   In all the circumstances, I find there is not a real chance or risk of the applicant facing harm or serious harm or significant harm from criminality in Sabah or Malaysia more broadly, whether connected with immigration or on any other basis, if he returned to Malaysia, now or in the reasonably foreseeable future.  

Conclusion

141.   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 s 36(2)(a).

142.   The Tribunal is also not satisfied there is a real risk of the applicant facing significant harm for these reasons, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

1. The applicant’s wife is in Australia, but he did not claim or provide evidence that he satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Tribunal is also not satisfied the applicant meets the alternative criteria in s 36(2)(b) or (c).

   DECISION

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

Denny Hughes
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.

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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.

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36     Protection visas – criteria provided for by this Act

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(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.

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Evidence from Malaysia, The World Bank Economic Review, 32(1), 8 August 2019; SI Anwar and H Gunggut, Immigrants' Crimes Involvement in Sabah, UITM (Malaysia), November 2012;