1417639 (Refugee)

[2016] AATA 3809

1417639 (Refugee) [2016] AATA 3809 (5 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417639

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:James Jolliffe

DATE:5 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 05 May 2016 at 3:27pm

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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Malaysia , applied for the visas [in] December 2013 and the delegate refused to grant the visas [in] October 2014.

3. The first named applicant appeared before the Tribunal on 26 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The second named applicant did not attend before the Tribunal.

4. The applicants were represented in relation to the review by their registered migration agent. The registered migration agent did not attend the Tribunal hearing stop

   Relevant Law

5. 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, the applicant 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.

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

   CLAIMS AND EVIDENCE

10. The Tribunal has before it the Department and Tribunal files relating to the applicants together with information from a variety of sources

11. The issue in this case is the applicant claims to fear harm if he returned to Malaysia on the basis of his Chinese ethnic extraction. The first named applicant has applied for protection on the basis of his Chinese ethnic extraction. The second named applicant has made no separate claims for protection and seeks protection on the basis of being a member of the same family unit as the first named applicant. In those circumstances the first named applicant will be referred to as “the applicant” in these reasons.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

13. In his protection Visa application which was received in December 2013 the applicant claimed that he was born in Malaysia on [date] in Kuala Lumpur. He claimed to belong to the ethnic Han group. He claimed that he had married in [2004] and he claimed to have no right to enter or reside temporarily or permanently in any other country apart from Malaysia. He claimed to have arrived in Australia [in] January 2013. He claimed to have had a Malaysian passport issued to him [in] 2012. He had previously visited [Country 1] for about one month between December 2012 and January 2013 before he came to Australia. He claimed to have lived in an address [in] Malaysia between 2003 in January 2013. He claimed to have been educated for [number] years in Malaysia. He claimed to have been self-employed between October 2006 and September 2012. In documentation in support of his application the applicant claimed that he had [children] in Malaysia. The applicants provided a copy of their passports in support of their protection Visa applications

14. The applicant provided a statement in support of his protection Visa application. In that statement the applicant claimed in summary that in Malaysia Chinese people are not treated equally to their Malay counterparts. He claimed that Malays were first-class citizens and Chinese were treated as second-class citizens who had low political status. He claimed that the different treatment included arrangements in relation to the birth of children and the Chinese people had to pay hospital fees and get no assistance from the government. He claimed as well the Chinese people when purchasing a property had to pay an extra 10% and that Malay people operating businesses receive preferential treatment. He claimed the Chinese people had to pay Malay people so that they could operate businesses in the names of Malay people. He claimed that Malay people often bully Chinese people depending on their social status. He claimed in summary that many Chinese people operate small businesses in Malaysia but are subject to corrupt Malay officials who try to extort money from them.

15. The applicant claimed that in October 2006 he and his wife had set up a business selling [goods] and other items. He claimed that along the road where the business was set up there was [number] or [number] vendor’s doing business. He claimed he and his wife worked very hard but did not earn a lot of money. He claimed that in conducting the business he was subject to extortion by officials of the health office. He claimed that they were accused by the officials of unsanitary conditions in conducting the business. The applicant claimed that he tried to improve the sanitary conditions. He claimed that other vendors said that the officials wanted money and that he should pay them in order for him to conduct his business. He claimed that he paid the officials but had to pay them more money in order for them to leave his business. He claimed that the officials also took away goods from the business and that the vendor is also had to give the officials “lucky money for holidays”. That was usually a payment of Rm[amount]. He claimed that [in] September 2012 two officials from the health office came to him and asked for money. He claimed that he gave them [amount] Rm “as usual” but they demanded [more]. The applicant claimed that he told the officials  it was difficult for him to make money but he claimed the officials said his business would be closed if he did not pay them. The applicant claimed he became angry and argued with the officials. He claimed he got support from other vendors and the officials left but the officials returned a few days later and closed down [a number] of the businesses including the applicant’s.

16. He claimed he and some of the other vendors went to complain to the police about the actions of the corrupt officials. He claimed the police made a record of their complaints but [in] October he was called to the police station with two other vendors. He claimed the police told them that they could not find corruption and that he and the other vendors had been involved in “slandering officials”. He claimed that the police said they could either go to jail for six months or pay Rm [amount] for bail. The applicant claimed he argued with the police and said that only a judge could send he and the others to jail but he claimed he was mocked by the police and told that he could be detained for six months. He claimed that they paid bail and were released and asked for a bail receipt but that was not given to them. He claimed because of this his business was stopped and his wife and he lost work. He claimed Malaysia was not an equal country and he came to Australia because it is a democratic country and has a good legal system and there was no racial discrimination. He said he wanted to remain in Australia.

17. The applicant was interviewed by a department delegate who declined to grant the applicant a protection Visa.

    TRIBUNAL HEARING

18. The first named applicant appeared before the Tribunal on 26 April 2016 to give evidence and present arguments. The first named applicant appeared by himself before the Tribunal and no representative was in attendance. The second named applicant did not attend before the Tribunal. The first named applicant confirmed that he was seeking protection in Australia on the basis of his Chinese ethnic extraction and feared harm on that basis if he returned to Malaysia. He told the Tribunal that his wife, the second named applicant, did not have any separate claims for protection but was claiming protection on the basis of being a member of the same family unit as the first named applicant. In those circumstances ,as indicated elsewhere in these reasons, the first named applicant will be referred to as the applicant in these reasons. The applicant's wife had arrived in Australia the first time in April 2013.

19. The applicant produced his Malaysian passport. He produced no other documents to the Tribunal. He told the Tribunal that he had previously produced his marriage certificate to the Department. He told the Tribunal that he remained in touch with his children in Malaysia and speaks to them every week and sends money back to Malaysia to support his family. His children live with his mother in Malaysia. The applicant and his wife both work in Australia. He told the Tribunal he feared harm if he returned to Malaysia because the Malaysian government targets ethnic Chinese and he feared harm from the Malaysian government and Malaysian government authorities and agencies

20. The Tribunal asked the applicant about his delay in applying for a protection Visa in Australia. He had arrived in Australia in January 2013 but did not lodge a protection Visa until December 2013. He initially told the Tribunal that he did not have enough money to apply for a protection Visa. In some respects the applicant gave vague evidence about his reasons for not having lodged a protection Visa earlier after he came to Australia. He told the Tribunal that he only found out about the protection Visa process after he came to Australia and that he had been advised by his solicitor that he had to wait until his wife had come to Australia in around April 2013 before a protection Visa application could be lodged and then they could apply jointly. He claimed he was given this advice around February or March 2013. The Tribunal noted that his wife had arrived in April 2013 and the application had not been lodged until December 2013. The applicant said that he had given his documents to his solicitor but was told that they were not sufficient and he needed more documents to support his case and those documents needed to come from Malaysia. The Tribunal asked about the nature of the documents that he needed from Malaysia to support his application. He said it was his marriage certificate and his children's birth certificates. The Tribunal enquired as to why it would have taken about eight months to obtain his actual marriage certificate and his children's birth certificate from Malaysia. He claimed that there had been difficulties in finding the documents in Malaysia.

21. The Tribunal noted the comments in the delegate's record of decision (see page 11 of the delegate's record of decision) regarding the delay in applying for a protection Visa. The delegate had referred to the applicant saying that he had been staying at a friend's home and the friend did not understand that the applicant could make an application for a protection. The Tribunal noted that the delegate's record did not indicate that the applicant had made any mention of getting advice from his solicitor or that his application was delayed because he needed additional documents from Malaysia when the delegate had asked about the delay. The applicant was invited to comment by the Tribunal. The applicant said he had not told the delegate about those issues and claimed that the delegate had asked a different question. He told the Tribunal that he had not told the delegate about getting advice from his solicitor or about the documents issue when the question of delay had been raised. The Tribunal raised its concern about an inconsistency by the applicant in explaining the delay between his evidence to the Tribunal and his explanation to the delegate. The applicant said in responding to the Tribunal that the delegate had asked a specific question about the applicant's knowledge of the protection Visa application process when he arrived in Australia. The applicant claimed he had responded to that question from the delegate.

22. The applicant said that his wife had returned to Malaysia in December 2013 because one of their children had been injured and he claimed that his wife had then obtained the original of the marriage certificate. The Tribunal noted that it was unable to find the marriage certificate or his children's birth certificate on the Department file. The applicant in responding to a Tribunal question said that he had received copies of those documents before his wife went to Malaysia and he thought he had received those documents in September or October 2013. The Tribunal noted that in that case there was still a delay until December 2013 before the applicant applied for a protection Visa. The Tribunal raised a concern that on the applicant's evidence it took eight months from around April 2013 until December 2013 to lodge the protection Visa and that was on the basis that the applicant needed the marriage certificate and his children's birth certificate from Malaysia. The applicant claimed that he had provided the documents to his solicitor when he received them. The Tribunal raised a concern that the delay by the applicant in lodging a protection Visa did not suggest that he feared harm if he returned to Malaysia.

23. The Tribunal asked the applicant about obtaining his passport in Malaysia. He said he had not had any difficulty in obtaining his passport. The Tribunal noted that there had been a six-week delay after the applicant obtained his passport before he came to Australia. The applicant said he had not been able to leave Malaysia sooner because he needed to make arrangements for his children in Malaysia. The Tribunal noted that the applicant's wife was still in Malaysia and did not come to Australia until April 2013 and in those circumstances the Tribunal queried why the applicant would have delayed coming to Australia (or leaving Malaysia) given that his wife could have looked after the children. The applicant said that his wife did not have the skills to be able to make arrangements for the children and the applicant claimed he needed to speak to his mother about that issue.

24. He was asked why he chose to come to Australia. The Tribunal had asked the applicant about his travel to [Country 1] before he came to Australia. He had travelled twice to [Country 1] after he obtained his Malaysian passport and before he came to Australia and he remained there for a few days on each occasion. He said he visited a friend in [Country 1] and drove there and back. He said coming to Australia was a random decision and that he had visited a travel agent who had indicated he could travel to [countries] or Australia and the applicant chose Australia. In essence he told the Tribunal that he came to Australia to see what would happen in terms of prospects and he thought he would "try Australia". He told the Tribunal that he knew that he had remained unlawfully in Australia after his [temporary] Visa had expired and he had not approached the Immigration Department to make enquiries about obtaining a protection Visa. The Tribunal asked the applicant if he was worried at all about having to return to Malaysia from [Country 1] on the two occasions. He responded by saying" what worries". The Tribunal said that it was concerned that the applicant travelling in and out of Malaysia to [Country 1] and returning was not consistent with the applicant fearing harm in Malaysia.

25. He was asked about his financial arrangements in coming to Australia. He said he had about AU$[amount] when he arrived and that he had borrowed about half of that from a friend. He had initially landed in [a city] and stayed there for a few days before travelling to [City 1] where he remained for between four and five months and had then come to [City 2] in around June 2013. The Tribunal asked the applicant about his earlier claim that he had obtained advice about his protection Visa application from a solicitor in [City 2] and he claimed that occurred in around February or March 2013. The Tribunal noted that the applicant's evidence indicated that he was in [City 1] at that time. The applicant said that he had met a person called [name] in [City 1] who was an associate of the solicitor in [City 2] and that's when he had obtained the advice about lodging the protection Visa. The Tribunal found the applicant's evidence and explanation about the issue of obtaining advice and the delay in applying for a protection Visa to be overall very confusing. The applicant referred to Chinese people being discriminated against in Malaysia but also referred to religion in that context. The Tribunal asked whether he was claiming that he had been discriminated against on the basis of his Buddhist religion in Malaysia. He said he had not been discriminated against on the basis of his religion and in essence the applicant was claiming that Malay people (all of whom were essentially Muslim) obtained preferential treatment in Malaysia. He confirmed that the basis of his claim for protection was that he feared harm on the basis of his Chinese ethnic extraction if he returned to Malaysia. He told the Tribunal that he was afraid if he returned that his concerns were related to financial issues and that he was afraid of extortion attempts if he was running a business and that it was hard to survive financially in Malaysia. He confirmed to the Tribunal in responding to a question that his concerns were essentially financial and economic if he returned to Malaysia.

1. He told the Tribunal that he had never been harmed in Malaysia in terms of any dealings with authorities. He said he had been arrested in Malaysia in relation to his claims about having gone to the police to complain about extortion activities by health officials. He said that had occurred in 2012 but he could not remember when in 2012. He said he had never been taken before a court in Malaysia. The Tribunal referred to the claims in his statement in support of his protection Visa application. He claimed that he and his wife had been conducting a small stall business and that he had been forced to pay money to health officials in order to keep the business running. The Tribunal found it difficult to get details from the applicant about these claimed payments in terms of their frequency and regularity. He claimed that the money was paid occasionally to these health officials but said that it was on festivals and public holidays and that there were four or five Islamic festivals festivals each year year but then said the payments might be made once a fortnight or once a week. He could not give the Tribunal an estimate of how much money might be paid to the officials each year. He had commenced operating the business in October 2006.

2. The Tribunal asked him about the events [in] September 2012 that he had referred to in his statement. He initially said that he thought "they" had suspended his business license on that day. He was asked what happened in he said that "they" had asked him for money and he had said he did not have any and he said he argued with them but then told the Tribunal it was too long ago to remember the details as to what had happened. He claimed that "they" said the business had to stop. The Tribunal understood the reference to "they" to be a reference to the health officials. The Tribunal asked if all these events happened on one day [in] September 2012 and the applicant said he thought they did. The Tribunal referred the applicant to his claims in his statement in terms of the sequence of events occurring over a few days. The applicant's evidence to the Tribunal was inconsistent in relation to the sequence of events that he had outlined in his statement .The applicant said it was too long ago to remember the details. The Tribunal responded by saying that it would have thought given the serious nature of the claimed events and their importance to his protection Visa claims that the applicant would be clear in terms of the events. The applicant said that the events were fresh in his mind when he made his statement and he had more time then but he said that the general content of his claims in his statement were consistent with his evidence to the Tribunal.

3. The Tribunal asked the applicant about his other claims in his statement regarding discrimination against people of Chinese ethnic extraction or favouritism given to people of Malay extraction. The applicant said that situation was reported in the newspapers. He was asked if he had paid more for property or cars in Malaysia because of his Chinese extraction. He said he did not own property and he had bought a second hand car and he had not been affected. The Tribunal asked whether the applicant was claiming that this was Malaysian government law in terms of favouritism being provided to Malay people or Chinese people being discriminated against. He said he was not sure that it was the law  but he claimed that property was offered at a different price to Muslim people as opposed to non-Muslim people. The Tribunal again raised the issue as to whether the applicant was claiming any fear on the basis of religion but he again confirmed that his reference to religion was really a reference to Malay people and the fact that they were nearly all Muslim. He claimed his family had to pay more in relation to medical costs associated with the birth of his children and he claimed that occurred because he was not a Muslim.

4. He was asked about the claims in his statement regarding extortion claims and his claim that he had been required to pay health officials. He had claimed that he was one of a number of vendors and that the vendors included Malay people. He was asked if Malay vendors had to pay the health officials. He said that he had "heard" Malay vendors did not have to pay and that it was mostly Chinese and Indian street vendors who were paying the health officials extortion payments as far as he knew. He was asked if he could name the other vendors who went with him to the police to complain about the extortion payments. The Tribunal notes that the applicant referred specifically by name to other vendors in his statement. He told the Tribunal that he could not remember the names of the other vendors. He was asked what happened to those other vendors. He said they had gone to the police with him and had given statements. He claimed that he had been detained for one week in jail when he and the others had been called back to the police station and told that they had made false accusations in relation to the health officials. He claimed he did not know what happened to the other vendors as they were separated from him and he claimed he never saw them again because his businesses stopped and he no longer saw the vendors after he got out of jail. He claimed that he had been told by the police that he could go to jail for six months or pay [amount] Malaysian dollars as bail to the police to be released. He told the Tribunal that the reference to bail in his statement was a reference to "black money' 'or in essence a bribe to pay the police to get released. The Tribunal noted that the applicant in his statement in support of his protection Visa application had suggested that all the events in relation to the police occurred on one day [in] October 2012 and that he had been released by 6 PM on that day but he had told the Tribunal that in fact he had been detained in jail for one week and was only released after the payment of the 10,000 Malaysian dollars. The Tribunal asked the applicant for his comments in relation to the apparent inconsistencies between his statement and the evidence that he provided to the Tribunal about these events. He claimed that he could not get the money by 6 PM and that he was detained for one week and that his statement was wrong in relation to that issue. He claimed the police told him he would be released by 6 PM if the money was paid but that did not occur as his family could not raise the money. The Tribunal raised its concerns about these inconsistencies in his evidence and his claims between his statement and his evidence to the Tribunal. He told the Tribunal that he had written his statement in support of his protection Visa application in Chinese and he thought it had been explained to him when it had been prepared in the English language. He did not suggest that he had misunderstood anything in his statement in terms of the claimed explanation. The Tribunal also noted that there was no suggestion in his statement that the money that had been paid to the police was bribe money or "black money" and it had been referred to as "bail". He was also asked about his claim in his statement that he had asked for a receipt when the money had been paid. He told the Tribunal that he did not asked for a receipt as was claimed in his statement. In terms of the inconsistencies the applicant said he may have forgotten "small" details but he confirmed that he did not get a receipt.

5. The Tribunal raised with the applicant the findings by the Department delegate in relation to the applicant's protection Visa application. The applicant told the Tribunal that his solicitor had briefly gone through that report with him. The Tribunal referred the applicant to the delegate’s findings in the report and that the delegate did not accept that the applicant would face a real chance of persecution because of his Chinese ethnic extraction if he returned to Malaysia and that the applicant, if he faced difficulty, could rely on state protection. The delegate had also found that the applicant’s delay in seeking a protection Visa and in departing Malaysia were not consistent with the applicant claiming to have a well-founded fear of persecution in Malaysia. The delegate had found the applicant was not entitled to protection in Australia. The applicant in response said that if he did complain to Malaysian authorities nothing would happen in terms of investigating his complaints. He told the Tribunal that he had explained the reasons for the delays in leaving Malaysia and in applying for a protection Visa. The Tribunal again referred to its concerns about inconsistencies by the applicant in relation to his evidence and his claims about the delay issues generally.

6. The Tribunal asked the applicant about his employment history in Malaysia. He told the Tribunal that he had owned a franchise before he took on the vendors stall. The franchise was [name]. He said it was hard to get business and the business was involved in [details deleted] and he claimed he had to pay officials to get things “going” in terms of business projects. He said that business closed and that was when he decided to open the street stall. He told the Tribunal that if he had to return to Malaysia that it would be hard to survive and he feared facing economic and financial difficulty and believed he would be unable to find employment.

7. He told the Tribunal he was not taking medication and had last seen a doctor in Malaysia before he came to Australia. He told the Tribunal he had nothing further to raise with the Tribunal about his claims.

8. The Tribunal raised with the applicant pursuant to section 424AA of the Act information it had that would be a reason or part of a reason to affirmed the decision under review. That information was contained in the Department delegates record of decision. The Tribunal told the applicant the information in the decision record was relevant because the applicant had provided inconsistent evidence in relation to the reasons about his delay in applying for a protection Visa in terms of the evidence to the delegate and to the evidence provided to the Tribunal. The Tribunal told the applicant that those inconsistencies, which had been raised with the applicant during the Tribunal hearing, could cause the Tribunal to not accept that the applicant was telling the truth in relation to his claims and in those circumstances the Tribunal may not believe the applicant. The applicant was asked if he wished to comment or respond in relation to that information and he told the Tribunal that he had nothing further to add.

9. The Tribunal referred to country information contained in the DFAT country report for Malaysia dated December 2014. The Tribunal noted that the report indicated that Malaysia was ranked 53rd out of 177 countries and territories on transparency International’s 2013 corruption perception index. The Tribunal noted that the report indicated that the threat of crime and terrorism in Malaysia is relatively low and the security situation is generally stable. Protests and demonstrations occur from time to time but are not frequent. The report referred to Chinese Malaysians. The report notes that ethnic Chinese have traditionally dominated the private economy and that Malaysian Chinese constitute one of the largest overseas Chinese communities in the world and are the second largest ethnic group in Malaysia. Malaysian Chinese make up a high percentage of the professional and educated class and dominate business and commerce sectors. Malaysian Chinese freely participate in political life and are represented by ministers in the current cabinet and in opposition parties. The Department assessment is that ethnic Chinese generally do not experience discrimination or violence on a day-to-day basis however they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service. The report refers to political opinion in Malaysia and notes that instances of interparty and societal violence were reported in the run-up to the May 2013 national elections. The Department assessment is that high profile opposition leaders are at risk of official discrimination however general opposition party members are able to undertake political activities and are not at risk of official discrimination on a day-to-day basis.

10. The report notes that the government closely administers political rallies and issues permits in relation to those rallies. The report notes that many political rallies are held within Malaysia without incident or interference from law enforcement agencies. The report refers to rallies that were held in relation to calling for free and fair elections. The report refers to a rally in 2007 which is described as Bersih 1 and rallies in 2011 and 2012 (Bersih 2 and 3 respectively). Those rallies attracted thousands of protesters. The government declared the July 2011 protest to be illegal but many thousands still participated. The protest was broken up by the police and approximately 1500 people arrested. Government approval was granted for the 2012 rally and again police were involved in breaking up the rally when the protesters moved beyond the approved protest site. Approximately 500 people were arrested on that occasion. The Department assessment is that protesters face a low risk of arrest when engaged in political rallies. The Department assessment is also that human rights defenders critical of the government may be subjected to legal harassment or surveillance by law enforcement authorities. The report notes that credible sources have informed the Department that more often than not when human rights defenders were arrested the charges were dropped and individuals were released within short timeframes. The report notes that harassment at the individual level was commonly targeted at activists with a public profile but not always at the highest level of an organisation.

11. The report notes that the Royal Malaysian police is considered by credible local sources to be an effective force with reasonable capacity levels. However the force has also had a demonstrated history of using excessive force. The report notes that the Department assessment is that the Royal Malaysian police generally observe legal requirements attached to pre-trial detention. The report notes that credible local and international sources consider the Royal Malaysian police to be a professional and effective police force and that it is responsible for law-enforcement nationwide. However the quality of the police response varies depending on levels of training, capacity or engagement in corruption. The report refers to a number of initiatives that have been introduced in Malaysia in an effort to deal with an identified perception of widespread corruption within the police.

12. The report notes that the Department assessment is that Malaysians can and do freely relocate internally within Malaysia and that the Constitution provides for freedom of internal movement but that the eastern states of Sabah and Sarawak have autonomy over their own immigration controls. The Tribunal noted that the department assessment was that Buddhists and Hindus are normally able to practice their religion without interference and do not post discrimination on a day-to-day basis in Malaysia. The applicant had told the Tribunal that he was of the Buddhist faith but that he did not have any difficulties practising his religion in Malaysia. The Tribunal also noted the Department delegate in the decision record had also referred to relevant country information in relation to considering the applicant’s claims. The applicant in response to the country information raised by the Tribunal said that the DFAT country information was general and was Internet based. The Tribunal responded by saying that the information in the country report was not Internet-based. The applicant said that the situation regarding the police in Malaysia had changed since that report. The Tribunal in response referred the applicant specifically to paragraphs 5.5 to 5.7 of the report regarding initiatives undertaken in recent years in Malaysia in an effort to improve police integrity and the image of the Malaysian police.

13. The Tribunal raised with the applicant concerns it had about his evidence and his claims. The Tribunal noted that the applicant had travelled to [Country 1] twice and returned to Malaysia after got his passport and before he came to Australia. He had obtained his passport and travelled without difficulty in and out of Malaysia. The Tribunal raised its concern about the applicant’s delay in applying for a protection Visa in Australia and indicated that the delay was not consistent with the applicant’s claims to fear harm if he returned to Malaysia. The Tribunal raised its concerns that aspects of the applicant’s evidence were vague and that he had also provided inconsistent evidence in relation to some aspects in relation to his claims. The Tribunal indicated overall that it had a concern that the applicant had a well-founded fear of harm if he returned to Malaysia on the basis of his claims. The Tribunal noted that much of the DFAT country information that had been referred to was not supportive of a number of the applicants claims and particularly in relation to state protection and relocation issues within Malaysia. The Tribunal noted the applicant’s inconsistent evidence in relation to his explanation for the delay in applying for his protection Visa in terms of the information provided to the delegate and the evidence he gave to the Tribunal. The Tribunal noted the difficulty the applicant had in recalling the events that he claimed occurred on and around [date] September 2012 in Malaysia. The Tribunal raised its concern about the credibility of the applicant’s claims regarding the delay of almost 8 months in obtaining documents in support of his protection Visa application and which he said were needed to bring that application. As indicated elsewhere in these reasons the documents were his marriage certificate and his children’s birth certificates. The Tribunal raised its concern that the applicant’s evidence about his claims relating to bribe payments to the health officials was vague in relation to some aspects. The Tribunal also noted the inconsistencies between the applicant’s statement in support of his application and the evidence given to the Tribunal about the payment of the bail money to police which he claimed was in fact a bribe and that he had also not referred to having been detained in custody for one week by the police in his statement.

14. The applicant provided no comments in relation to the issues of concern raised by the Tribunal. The Tribunal allowed the applicant until 3 May 2016 to provide any further comments or responses or further information to the Tribunal. In responding to a question from the applicant the Tribunal indicated that it was a matter for the applicant and his solicitor/agent to decide what further information or materials might be provided to the Tribunal in support of the applicant’s claims. The Tribunal received no further comments or responses or further information from the applicant by 3 May 2016.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. On the basis of the materials and information provided to the Department and to the Tribunal the Tribunal accepts that the applicants are Malaysian citizens and that their identities are as they claimed them to be. The Tribunal accepts, without any evidence to the contrary, that on the basis of the information and materials provided that the applicants do not have a right to enter or reside temporarily or permanently in any other country apart from Malaysia. The Tribunal accepts that Malaysia is the applicants country of nationality for Convention purposes and is the receiving country for complementary protection purposes.

16. The Tribunal is not satisfied as to the first named applicant’s claims that he has a well-founded fear of persecution if he returned to Malaysia based on his claims and his evidence to the Tribunal. The Tribunal is also not satisfied as to the first named applicant’s credibility in relation to some aspects of his evidence and see some aspects of his claims.

1. As indicated elsewhere in these reasons the second named applicant has made no separate claims for protection and seeks protection in Australia on the basis of being a member of the same family unit as the first named applicant.

2. The first named applicant’s claims to fear harm are referred to elsewhere in these reasons. The Tribunal has considered the applicant’s claims that he fears harm if he returned to Malaysia on the basis of his Chinese ethnic extraction. In summary the applicant claimed that people of Chinese ethnic extraction were either treated as second-class citizens or had to pay more in terms of access to some health services and also had to pay more to acquire property or purchase motor vehicles or to obtain other services. He claimed that preferential treatment was provided by the government in Malaysia to ethnic Malay people. He claimed that when he had been conducting a business as a street vendor he had been forced to pay bribes to health officials in order to operate the business. He claimed that when he had complained about these extortion activities to the police that they had accused him of making false accusations and that in essence he had been required to pay [amount] Malaysian dollars as a bribe to be released. In his statement in support of his protection Visa application he had referred to the payment of this money as bail money (and did not explicitly suggest it was a bribe) and he also did not mention his claim that he made at the Tribunal hearing that he had been detained in custody for one week until this money was paid. He eventually came to Australia in January 2013 but did not make a protection Visa application until December 2013.

3. The Tribunal has referred to some inconsistencies surrounding the applicant’s evidence in relation to his claims. Those inconsistencies have been referred to in these reasons and they include his explanation for the delay in seeking a protection VISA in Australia and inconsistencies and vague evidence in relation to his claims surrounding the payment of bribes to health officials and to his subsequent dealings with the Malaysian police.

4. The Tribunal has referred to the DFAT country report for Malaysia dated December 2014 and notes that report indicates that ethnic Chinese generally do not experience discrimination and violence on a day-to-day basis in Malaysia but they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service. The report indicates that Malaysian Chinese constitute one of the largest overseas Chinese communities in the world and the people of that ethnic extraction constitute close to 25% of the total population of Malaysia. The report indicates that Malaysian Chinese make up a high percentage of the professional and educated class and dominate business and commerce sectors in Malaysia. The applicant in his evidence to the Tribunal essentially made fairly general  claims about people of Chinese ethnic extraction being treated as second-class citizens and referred, as he had done, in his statement in support of his application to fairly general claims about having to pay more at hospital or when purchasing property or buying a car or that people of Chinese ethnic extraction had to pay money to Malay people in order to operate a business in Malaysia. The Tribunal’s overall assessment was that the applicant was very general and vague in discussing these particular claims during the Tribunal hearing. Other than his claim that he had to pay bribes to health officials and that he had also suggested that he had had difficulties when he was operating an earlier business with officials the applicant provided very little detail about any particular incident where he claimed he had been disadvantaged because of his Chinese ethnic extraction. The Tribunal notes that the Department delegate decision record report refers to country information that indicates that in 2005 the Malaysian government renewed an affirmative action policy which had been initially instituted in 1969 and that under that policy ethnic Malays and other indigenous people are given advantages concerning property ownership, civil service work and access to higher education and other benefits. The delegate noted that the purpose of that policy was intended to lift the economic condition of ethnic Malays which suggests that the policy was not intended to discriminate against or persecute people of other ethnic extraction (see page 9 of the delegate’s record of decision).

5. The Tribunal accepts that the information contained in the DFAT country report provides credible information in relation to a number of issues relevant to the applicant’s claims.

6. The Tribunal’s overall assessment of the country information is that it does not support the applicant’s claims that he has a well-founded fear of harm if he returned to Malaysia on the basis of his Chinese ethnic extraction

7. The Tribunal has referred to its concerns about the applicant’s credibility in relation to aspects of his claims. The Tribunal has referred to its concerns about aspects of the applicant’s evidence where he was both vague and inconsistent in discussing issues associated with his claims. The Tribunal believes that given the critical importance to his claim that he fears harm if he returns to Malaysia about the events where he claimed that he had been arrested by the police for reporting extortion activities by health officials that the applicant would have been able to provide more detailed evidence to the Tribunal about these events and particularly in relation to the extortion activities and the sequence of those events. As indicated elsewhere in these reasons the applicant overall gave vague evidence in relation to the details surrounding the extortion activities. His evidence and his claim to the Tribunal that he had been detained by the police for one week because he could not raise the [amount] Malaysian dollar bail money was not consistent with his claims in his statement in support of his protection Visa application. That statement suggested that all the relevant events in relation to the police activity had occurred [in] October 2012 and that he had been released by 6 PM that day after the money had been paid. He did not directly suggest that the payment of that money was a bribe in order to secure his release and he referred to the payment in his statement as payment of “bail”. He did not claim in that statement that he had been detained by the police for one week as he claimed to the Tribunal. That statement was dated [in] December 2013 and the applicant claimed that these events had occurred between September and October 2012. In those circumstances the Tribunal believes that it is reasonable for it to assume that the applicant would have provided full details in his statement in support of his protection Visa application at that time if in fact the events that the applicant claimed to the Tribunal had occurred. The applicant in his statement claimed that “we asked for bail receipt but our request was refused”. He told the Tribunal that he had never asked for a receipt for the payment of the money to the police. He told the Tribunal he regarded the payment to the police as a bribe or the payment of “black money”. He was not able to name at the hearing the other vendors who he claimed had accompanied him to the police station and complained about the extortion activities and he claimed he did not know what happened to those people. The Tribunal’s overall assessment of the applicant’s evidence about the extortion attempts and about his claims to have paid the police in order to be released is that it was vague and inconsistent and overall unconvincing.

8. The Tribunal has also referred to the applicant’s evidence about the delay in applying for a protection VISA in Australia. The applicant also provided evidence in relation to that issue that the Tribunal found to be inconsistent in terms of information that the applicant had provided to the Department delegate about that issue. The Tribunal has referred to those inconsistencies elsewhere in these reasons. The Tribunal found the applicant’s evidence in seeking to explain the variations and inconsistencies to be unconvincing and also found his explanation for not applying for a protection Visa application sooner in Australia to be unconvincing and overall not credible. The Tribunal finds that the delay in applying for a protection Visa by the applicant is not consistent with the applicant’s claims that he has a well-founded fear of harm if he returned to Malaysia on the basis of his Chinese ethnic extraction. The Tribunal also finds that the applicant’s two trips to [Country 1] and his return to Malaysia within a period of about six weeks before he came to Australia to be not consistent with his claim that he feared harm in Malaysia. The Tribunal finds that the applicant’s evidence to the Tribunal indicates that the applicant is concerned about economic and financial and employment issues if he returned to Malaysia rather than being concerned that he faces a real chance of serious harm on the basis of his Chinese ethnic extraction if he returned to Malaysia either now or in the reasonably foreseeable future.

9. The Tribunal after considering the totality of the applicant’s evidence in relation to his claims and after having considered credible and available and relevant country information does not accept that the applicant is a truthful or credible witness. The Tribunal’s assessment of the applicant’s credibility is based on its assessment of the totality of the applicant’s evidence in relation to his claims.

10. The Tribunal after having considered the totality of the evidence and its assessment of the applicant’s credibility does not accept that the applicant suffered any discrimination or persecution or harm in Malaysia as a result of his Chinese ethnic extraction. The Tribunal after having considered the evidence and its assessment of the applicant’s credibility does not accept that the applicant was required to pay extortion monies to Malaysian health officials in order to operate his business as he claimed or that he previously provided payments to officials in order to operate an earlier business in Malaysia or that his business license had been cancelled because he would not pay a bribe to Malaysian health officials. The Tribunal found the applicant’s evidence about the earlier business and his dealings with authorities in Malaysia in relation to that business to be overall vague and lacking in any real details as to his claimed interaction with Malaysian officials in relation to that business. The Tribunal in those circumstances also does not accept that the applicant lodged a complaint with the Malaysian police in relation to the claimed extortion activities and in those circumstances does not accept that the Malaysian police accused him and others of having fabricated false complaints against Malaysian health officials. The Tribunal in those circumstances does not accept that the applicant was required to pay either bail or bribe money to the police in order to be released or that he was detained for one week by the police before that money was paid. The Tribunal notes that the applicant did not claim that he was charged or taken before a court in Malaysia and did not claim that he had any documentation in relation to the circumstances surrounding his detention by the police for one week.

11. The Tribunal has considered the applicant’s claims and the evidence in support of his claims both individually and cumulatively. Those claims and the evidence have been considered and discussed elsewhere in these reasons. The Tribunal has also considered and discussed relevant country information in these reasons. The Tribunal has also referred to its assessment of the applicant’s credibility. In those circumstances and after having considered the totality of the issues and the evidence the Tribunal does not accept that the applicant has a well-founded fear of persecution if he returned to Malaysia either now or in the reasonably foreseeable future on the basis of his Chinese ethnic extraction. The evidence and country information that has been referred to does not support the applicant’s claims in this regard. The Tribunal does not accept that the applicant faces a real chance of serious harm on the basis of this claim should he return to Malaysia either now or in the reasonably foreseeable future. The Tribunal finds that if the applicant returns to Malaysia that any difficulties the applicant may have in the future in obtaining employment or conducting a business or in dealing with financial difficulties would not be because of his Chinese ethnic extraction. The country information that has been referred to does not indicate or suggest to the Tribunal that the applicant faces a real risk of serious harm on that basis.

12. The Tribunal has considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that he faces a real risk of significant harm. The Tribunal has considered the applicant’s claims and the evidence and available and relevant country information in relation to the applicant’s claims. It has also considered its assessment of the applicant’s credibility. The Tribunal has referred elsewhere in these reasons to its assessment of the applicant’s claims and the evidence and the available and relevant country information. The Tribunal has considered the definition of significant harm contained in the Act as well as the relevant definitions contained in s.5(1) of the Act. The Tribunal after considering the evidence that has been referred to elsewhere in these reasons and the country information and its assessment of the applicant’s credibility in relation to his claims and for the same reasons that have been referred to is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will face significant harm. The Tribunal does not accept that he will be arbitrarily deprived of his life or that the death penalty will be carried out on him. The Tribunal is also not satisfied that the applicant will be subjected to torture or that he would be subjected to cruel or inhuman treatment or punishment or that he would be subjected to degrading treatment or punishment as defined in the Act. The Tribunal finds that any difficulties the applicant might have if he returned to Malaysia in terms of obtaining employment or conducting a business or dealing with financial or economic difficulties would be difficulties faced by the Malaysian population generally and not faced by the applicant personally.

    Overall Summary

13. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants Protection visas.

    James Jolliffe
    Member