Australian Complimentary Protection Visa available for M’sians at risk

Joseph Francis

joseph@asklegal.my

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 a protection visa if he or she is a non-citizen in Australia.

NEWS UPDATE Malaysians who have a genuine fear of being abused by authorities, by denial of procedural fairness that lead to losing their personal liberties, places them in harm’s way, or could be abused in prison, among others, may be entitled to Australian protection under the Australian Complimentary Protection Visa, said Immigration Manager Robert K. Chelliah in an email.

He cited the case of de facto Hindraf Makkal Sakthi Chief P. Uthayakumar who, in his opinion, “has certainly documented his experience of cruelty while incarcerated under the Sedition Act” not so long ago. Uthayakumar had allegedly written to then British Prime Minister Gordon Brown and claimed that “there was ethnic cleansing in Malaysia”, a reference to the government sector not reflecting the demography of the nation.

“Even if you are a convicted criminal of murdering a mistress of well-known personalities, for example, you may well be entitled to run to Australia and seek protection under the law,” said Chelliah who has been appointed Immigration Manager for fugitive Altantuya Shaariibuu (see pix) killer Sirul Azhar Umar who is currently under detention in Sydney, Australia.

He was also commenting on the case of two SRC International directors, Nik Faisal Ariff Kamil and Suboh Md Yassin ,being on the run and wanted by the Malaysian Anti Corruption Commission (MACC).

The construction of the following words, he said in his email, explains who would be entitled to Protection Visa:

Complementary Protection Criterion

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 a protection 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 the applicant 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’).

“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1).

A person will suffer significant harm if he or she will be arbitrarily deprived of life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment”, and “torture”, are further defined in s.5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.

These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Picture Credit: the Sydney Morning Herald