1418087 (Refugee)

[2016] AATA 3218

1418087 (Refugee) [2016] AATA 3218 (29 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418087

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Frances Simmons

DATE:29 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 29 January 2016 at 4:58pm

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. The applicants are citizens of Malaysia. They are of the Chinese ethnicity. Before the Department only the primary applicant, [(‘Ms C’)], made claims for protection. Ms C first arrived in Australia [in] September 2009 with her [husband]. Their first [child] was born in Australia on [date].

2. The applicants applied for protection visas [in] March 2014. Ms C states she is Chinese Malaysian and that Chinese Malaysians suffer discrimination in Malaysia. She claims that ethnic Malaysians have always discriminated against the Chinese, in some way or another, and that the discrimination is reflected in every detail of our life, making it difficult to survive. She claims it is difficult, almost impossible, for Chinese children to enter schools and that the standard required for Chinese students to enter university is higher than that for ethnic Malaysians. She claims that their family business was always disturbed by the local government; she believes that this was because they were ethnic Chinese. Due to threats and blackmail, the shop had to be closed down. She and her husband did not have a sense of belonging in Malaysia so they travelled to Australia.

3. The delegate of the Minister for Immigration refused to grant the applicants protection visas [in] October 2014. The applicants applied to the Tribunal for review of the decision of the delegate. Ms C appeared before the Tribunal on 19 January 2016. Their registered migration agent also did not attend the hearing. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  

4. At the hearing Ms C claimed she would face harm if she returned to Malaysia because of her Chinese ethnicity; she said she had experienced discrimination and persecution for this reason. She claimed that she was afraid that her infant [child] would suffer discrimination in Malaysia because [he/she] was ethnic Chinese and this situation would be worse because [he/she] was born overseas in Australia. She also expressed concern that she might be a victim of crime in Malaysia. She confirmed her husband did not have his own claims for protection. During the hearing Ms C was invited to comment on DFAT’s assessment that while ethnic Chinese in Malaysia may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service, generally they do not experience discrimination or violence on a day-to-day basis.[1] Where relevant Ms C’s evidence and the country information about the situation of ethnic Chinese in Malaysia is discussed further below.

   [1] DFAT, Country Information Report – Malaysia , 3 December 2014.

5. The issues for consideration in this review are whether any of the applicants have a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention. If the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for a Convention reason it must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia there is a real risk they will suffer significant harm.

   RELEVANT LAW

6. 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.

   Refugee criterion

7. 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).

8. 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.

   Complementary protection criterion

9. 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’).

10. 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.

    Section 499 Ministerial Direction

11. 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. In this case, the Tribunal has considered the DFAT Malaysia Country Information Report issued on 3 December 2014.

    Member of the same family unit

12. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse and a dependent child.

    CLAIMS AND EVIDENCE

13. In considering the applicants’ claims for protection I have considered all the evidence contained on the Departmental file and the Tribunal file. The Departmental file contains the applicants’ application for a protection visa, a personal statement by Ms C, an audio  recording of the interview Ms C undertook with the delegate (which I have listened to), documentation Ms C provided to the delegate in support of her claims[2], and a copy of the delegate’s decision to refuse the applicants protection visas.

    [2] A media statement from Tersa Kok Suh Sim, Democractic Action Party (DAP) National Vice Chairman, released on 27/05/2014.This media statement asked for a retraction of a racially offensive comment made by Zahid Hamid of the Barisan Nasional (BN) party; A media statement from Lim Guang Eng, Democratic Action Party (DAP) Secretary General ; Censure motion in Parliament against Zahid for ‘migrate elsewhere’ statement. This is a media statement issued by Lim Kit Siang Mp for Felad Patah issued on 17/05/2013. In this media statement, the author seeks a response to Zahid Hamid’s comment that Malaysians who do like the country’s electoral system should leave the country; Extract from an article published in the Kwongah Daily dated May 27 2013. This article states that the immigration department has warned Malaysians who are overseas  that Malaysians who violate laws and damage the national image will have their passports cancelled for three to five years.

14. Ms C is a Malaysian of Chinese ethnicity. In her personal statement she says that although most Chinese Malaysians have become citizens, it is often the case that they are not treated equally. She continues:

    Chinese being bullied can be seen everywhere. In Malaysia, the People’s Justice Party (PKR), Democratic Action Party (DAP) and Pan Malaysian Islamic Party (PAS) are mostly Malaysian Muslim. Chinese People have taken up 24.6% of Malaysian, and Malaysian has taken up to 68 %. Malayan has always discriminated against Chinese people in some way or another. The discrimination is reflected in every detail of our life, which can make me barely breathe or survive.

    … Although the position of Chinese Malaysian [people] is relatively higher than Chinese people living in other South East Asian countries, Chinese Malaysian is still inferior to Malaysian. For example, in Malaysian law and politics, political leaders like the head of the state, deputy head of State cannot be Chinese …there are also different restrictions in Chinese education and economics

    We are living like a dog, in the past, the Malaysian government kept watch on all the Chinese, if the Chinese children want to enter public school, it would be a very difficult thing almost impossible. The standard of getting a place in the university is much higher, the welfare for Malayan is out of reach for the Chinese, the Malaysian political field only trusts Malayan, not completely trust Chinese, the government does not care about us, the Chinese Malaysian is mainly engaged in commercial activities, however, the business activities is also very difficult under the management of the Malaysian government, Chinese is very hard to enter in the political areas. And once government seize the handle, the business will be terminated. The Chinese are leading a low key life and very humble to Malayan.

15. Ms C continues that the second generation of Chinese Malaysians cannot accept the discrimination against Chinese Malaysians as they feel they are all Malaysians and should not be treated differently. Ms C’s written claims continue:

    Our family business was always disturbed by local government, our shop was searched and questioned all the time, we could not be convinced, we did not pay of the so called “fines”, but at the end, our family was threatened, blackmailed, we had to close our business, it was out family business, we are living on it, we could not survive with out it. I have been fired from my work only because I am Chinese, my boss treated us very unfairly.

    My husband and I finally decided to leave Malaysia, this country is not my motherland, we got the [temporary] visa to Australia, my husband applied for a [another] visa afterwards, we had a baby in Australia, it is a very stable life for us …

16. In her interview with the delegate Ms C said she travelled to Australia to keep her husband [company]. She has hated Malaysia since a young age. Now she is a mother, she does not want her child to experience racial discrimination in Malaysia. She said if she returned to Malaysia she would be treated in a discriminatory manner because she is ethnic Chinese. She also did not want her child to receive a poor education or be discriminated against. The discrimination her child will experience will be greater because [he/she] was born in Australia.

17. Ms C was asked about her experiences of racial discrimination in Malaysia. She told the delegate she had heard stories of the May 13 incident of Chinese people being killed by Malaysia.[3] When she was [a child] Malaysian people set fire to her grandmother’s house. She was asked about her experiences of discrimination after she became a teenager and beyond. She stated when she was at school she was verbally abused and her wallet was stolen. When this was reported to the teacher, no action was taken as ‘Malaysians protect each other’. She told the delegate she did not receive a good education and was employed in low income work with Malaysians. She said Malaysian colleagues made false accusations that she was stealing, resulting in deductions from her pay. She also said she was required to work longer hours than her Malaysian colleagues for less pay. She claimed that this discrimination led her to resign from her job in 2010.

    [3] The May 13 incident occurred in 1969. On that day, many hundreds of ethnic Chinese were killed and thousands of businesses were damaged or destroyed, purportedly fuelled by Malay anger in the disparities in wealth between the two ethnic groups. Refugee Review Tribunal, Country Advice Malaysia – MYS37180 – Ethnic Chinese – UMNO – Discrimination – Unemployment – Income Disparity – Violence 31 August 2010

18. Ms C was asked to explain how her family’s business was always disturbed by the local government. She said that her husband ran a [business] with business partners. She said that the local police went to the business premises and informed her husband that the [products] being sold were stolen. She stated that those [products] were sold to the business by an ethnic Malay person. The local police arrested one of the business partners and asked for a large sum of money in order for him to be bailed. Ms C said that the goods were bought unwittingly from the supplier. Asked who was threatening and blackmailing her family, she replied that it was Malaysian police who told the family to close the business down. She stated that her husband quit the business as business was down and the police always interfered. 

19. Ms C told the delegate that Malays rob ethnic Chinese and that on one occasion she was followed by two ethnic Malays on motorbikes. She reported her concerns to the police and they asked if she could recognise them. When she indicated she could not, the case was not registered by the police. She told the delegate she didn’t really go out in Malaysia because she was afraid of robbery so she has not been robbed.

20. At the Tribunal hearing Ms C essentially reiterated the claims for protection she made before the Department. She was advised that the Tribunal would consider the claims she had made on behalf of her infant [child] against the refugee and complementary protection criteria.  Ms C was asked about her experiences of discrimination, whether she personally had been harmed in Malaysia, and why she was afraid she would be harmed if she returned. She was also asked about her experiences of discrimination in the workplace and the problems that her family business had before she left Malaysia.  Ms C was also asked about her travel in and out of Malaysia and her delay in applying for protection (she told the Tribunal she did not know she could apply for a protection visa until 2014).

21. Ms C was invited to comment on DFAT’s assessment of the treatment of ethnic Chinese in Malaysia, the rate of crime in Malaysia, and the capacity of the Malaysian police to respond to reports of criminal activity. Where relevant this country information and Ms C’s evidence are referred to below in the assessment of claims and evidence. 

    ASSESSMENT OF CLAIMS AND EVIDENCE

22. The applicants have said they are citizens of Malaysia and the evidence before the Tribunal indicates that they are.  Their infant child was born in Australia but, because [his/her] parents are not permanent residents of Australia or Australian citizens, [he/she] is not entitled to permanent residence or citizenship. On the evidence before me, I find that the applicants are citizens of Malaysia, that Malaysia is the applicants' country of nationality for the purposes of the Refugees Convention, and that Malaysia is their receiving country for the purposes of complementary protection.

23. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.  In assessing the credibility of the applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[4]  However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant.

    [4] MIMA v Rajalingam (1999) 93 FCR 220

24. I have also considered the Tribunal’s guidelines on the assessment of credibility in protection visa cases, which state, in part:

    The tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims [footnotes omitted].

    Whether Ms C will be persecuted or subject to significant harm because of her ethnicity

25. I accept that the applicants are of Chinese ethnicity. However, Ms C’s claims that she and her [child] will be subject to discrimination amounting to serious harm or significant harm because of their Chinese ethnicity are not supported by the country information about the treatment of ethnic Chinese in Malaysia. Ethnic Chinese are the second largest ethnic group in Malaysia comprising 24.6 per cent of the population of the population of 29.8 million (ethnic Malays comprise 67.4 per cent of the population) and, as Ms C acknowledged, the business sector is dominated by ethnic Chinese. At the hearing I put to Ms C that DFAT has assessed that while ethnic Chinese may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service, generally they do not experience discrimination or violence on a day-to-day basis.[5]  I put to Ms C that DFAT assessed that ethnic Chinese are the second largest ethnic group in Malaysia, make up a high percentage of professional and educated classes, freely participate in political life in Malaysia, and generally had no problem accessing public primary school or high school education. I noted that DFAT reported that there are ‘no laws or constitutional provisions that discriminate against ethnic Chinese in Malaysia’.

    [5] DFAT, Country Report – Malaysia , 3 December 2014, [3.9]; see also [3.6]-[3.8] (stating 3.6 Malaysian Chinese make up a high percentage of the professional and educated class and dominate business and commerce sectors…3.7 Malaysian Chinese freely participate in political life and are represented by ministers in the current cabinet and in opposition parties. The largest Chinese party was traditionally the Malaysian Chinese Association (MCA), a component of the Barisan Nasional (BN) coalition. The MCA won seven seats at the 2013 election, down from 15 in 2008. An increasing number of Chinese support the Democratic Action Party (DAP), one of three key opposition parties of the Pakatan Rakyat (People’s Alliance) coalition. The DAP won 38 seats at the 2013 election, a significant increase from the 28 seats in 2008. There are comparatively fewer ethnic Chinese in the Malaysian civil service. The exclusive use of the Malay language may be a restriction in this regard …3.8 Malaysian Chinese generally have no problems in accessing public primary or high school education. However, despite the removal of government-sanctioned ethnic quotas for public universities in 2002, admission decisions remain heavily biased towards ethnic Malays…Some ethnic Chinese are not awarded a place in public universities despite having perfect high school matriculation scores. Since the formation of private universities in Malaysia, ethnic Chinese have consistently formed the bulk of the students within Malaysia’s non-government universities.

1. Ms C told the Tribunal that she did not agree with DFAT’s assessment of the situation of Chinese Malaysians in Malaysia. Asked why she referred to the discrimination that Chinese Malaysians face accessing university; no matter how good your marks were as a Malaysian Chinese you could not have access to tertiary education, but for Malay Malaysians no matter how bad their marks were they could get to university. Malay Malaysians were subsidised by the government if they wanted to buy property but not the Chinese Malaysians. With respect to information that Chinese Malaysians dominate the business sector in Malaysia that was because the Chinese Malaysians had to work really hard to be rich so they could have a certain social status in Malaysia. She gave evidence that people of Chinese ethnicity face discrimination because of their skin tone; she grew up in Malaysia and she knew this. Towards the end of the hearing she also referred to watching Malaysian news reports which indicated the situation was getting worse but when asked whether there were any reports she wanted to refer the Tribunal to she said no. 

2. I accept that there were some government policies and regulations that gave preferential treatment to ethnic Malays. However, as I explained to Ms C, the question I need to consider is whether there is a real chance she will face serious harm or significant harm if she returned to Malaysia. As I put to Ms C she attended high school in Malaysia, she was employed for ten years for a company that she indicated facilitated her travel in and out of Malaysia on multiple occasions. It was put to Ms C that it didn’t sound like she had suffered serious harm or significant harm in Malaysia in the past because of her Chinese ethnicity. It was also put to Ms C that, based on the country information available to the Tribunal the treatment of ethnic Chinese in Malaysia, it was difficult to accept that she would face any harm because of her ethnicity if she returned to Malaysia now.

3. At the hearing Ms C asked whether her experiences in Malaysia could count as persecution. I have considered Ms C’s evidence about her past experiences in Malaysia but I am not satisfied that she has ever experienced serious harm of significant harm in Malaysia for reasons of her ethnicity. While I accept that Ms C feels aggrieved that Chinese Malaysians suffer discrimination in accessing certain services and institutions such as public universities, I have formed the view that she is prepared to exaggerate the extent of her concerns about discrimination against ethnic Chinese in Malaysia in the hope of securing a favourable immigration outcome. In particular, I consider her written claims occasionally engage in hyperbole about the situation of ethnic Chinese in Malaysia which is not supported by the country information or her own oral evidence: for example, her personal statement claims the discrimination against ethnic Chinese is such that she can barely breathe or survive whereas her oral evidence indicates that after she finished high school she worked for ten years as an officer worker in Malaysia and, during this period travelled in and out of the country on multiple occasions.

4. Before the Tribunal when asked about her experiences of harm and discrimination Ms C recounted an incident that occurred whilst she was a high school student where her wallet was stolen. She said she complained but the teacher protected the ethnic Malay students and a fellow student hit her with a stone and warned her against complaining to the teacher again. She also referred to watching her grandmother’s house burn down when she was [a child].  Even if I accept that these incidents occurred as Ms C has described them, they occurred over a decade before she left Malaysia and, as I explained to her, the Tribunal must consider whether there is a real chance she would face serious harm or significant harm if she returns to Malaysia. Ms C said it is the same reason for all these years: Chinese Malaysian people suffer a lot. It was put to Ms C that I had to consider her particular circumstances. I asked what she thought would happen to her if she returned to Malaysia. She referred to problems with social security. She said she might be robbed or even raped. Asked why she was afraid this might happen to her, she said when she was at school she saw her mother was beaten and robbed and her aunt had also been robbed.

5. When asked about the last occasion she had been harmed in Malaysia she referred to an incident when she was driving and Malaysian people followed her on the motorcycles, knocked on her window and asked her to pull over. She was frightened and drove directly to the police station. She could not identify the people other than to say they were Malaysian. When asked what the police did when she went to the police station, she said they lacked any concrete evidence so they couldn’t do anything. As I put to Ms C at the hearing it was not clear that the men on the two bikes followed her because she was ethnic Chinese or that the police declined to investigate because she was ethnic Chinese. Therefore, while I accept this incident occurred, I find it was an isolated event. It does not support the conclusion that Ms C has suffered serious harm or significant harm because of her Chinese ethnicity and nor does it support her claims that she will suffer serious harm or significant harm for this reason if she returns to Malaysia now. 

6. In my view, Ms C’s own account of her past experiences in Malaysia does not indicate that she has suffered serious harm or significant harm in the past for reasons relating to her Chinese ethnicity. After finishing high school, Ms C was able to secure an office job, which she told the Tribunal she had for ten years, and travel in and out of Malaysia on multiple occasions – according to her own evidence she went to [four specified countries] and, most recently returned from Australia to Malaysia in 2010.  I have considered her evidence that she had family in Malaysia and, with respect to her travel from Australia to Malaysia on a return ticket, so she had no choice but to return to Malaysia, but I do not find it persuasive. In my view, Ms C’s conduct in travelling in and out of Malaysia on multiple occasions indicates that she was not, at these times, in fear of being persecuted in Malaysia.

7. I have considered Ms C’s evidence that she experienced discrimination at work because of her ethnicity and this led her to quit her job. Ms C advised the Tribunal she worked at the same company for about ten years; there were both ethnic Chinese and Malay employees.  Asked whether she ever suffered harm at work because of her ethnicity, she claimed that whenever anything went missing Chinese workers who were considered responsible. I put to Ms C that notwithstanding these issues she worked as an office clerk for the same company ten years. She said wherever there are Malay Malaysians things like this happen. Ms C told the Tribunal she did not have a university degree and she was afraid she would not be able to find another job if she quit this position as many jobs require a university degree. Asked why she quit the position, Ms C said after so many years she still felt bullied by these Malay people and the salary was not very good and, since her husband was coming to Australia, she came with him. When it was put to her that it sounded like she quit the job she held for ten years to travel to Australia, she did not respond.

8. On the evidence before me, I accept that Ms C quit her job shortly before she travelled to Australia. However, I am not satisfied that she did so because she suffered race-based discrimination and I consider that Ms C has embellished this aspect of her evidence. I have considered the possibility that Ms C may have felt that discriminatory remarks and aspersions were sometimes made against ethnic Chinese in her workplace and that ethnic Malays received preferential treatment in the workplace. However, even this were to be accepted, I do not accept that her evidence about her treatment at work supports the conclusion that she has been systematically targeted because of her ethnicity as required to s.91R(1)(c)) or that her experiences at work in Malaysia amount to serious harm as that term is defined in s. 91R(2). Nor do I accept Ms C’s  evidence about her treatment at work suggest that that she suffered torture or cruel inhumane treatment or punishment or degrading treatment of punishment as these terms are defined in s. 5(1) of the Act.

9. When prompted to tell the Tribunal about the problems experienced by her family business, Ms C told the Tribunal that there was a Malay customer who brought [products] to her husband’s [business] for repair but it turned out this [product] was stolen. The police keep coming to her husband’s store so it was difficult for him to run his business. Since the police kept coming to the store, the business was not running smoothly, the store was not making much money and her husband finished the business. I asked whether her husband closed the business because of the problems with the police or because he was planning on coming to Australia. Ms C said he wanted to come to Australia after these issues happened. Asked why she would have any problems if she went back to Malaysia now because of the problems with the family business, Ms C said she didn’t want to go back now to experience all this again, especially since they had a child now; she did not want her child to experience this.

10. While I am prepared to accept her husband’s business was visited by police investigating stolen [products], I am not satisfied that her husband’s business was unfairly targeted by the local authorities because of their Chinese ethnicity. When I put to Ms C that it sounded like the police were investigating stolen [products] rather than discriminating against or targeting the [business] because the applicants were ethnic Chinese, Ms C did not respond. On the evidence before me, I am not satisfied that the applicants’ business was targeted by the local authorities because the applicants’ were ethnic Chinese or that the applicants’ were subject to threats and blackmail because of their ethnicity or that the business was forced to close for this reason.  I do not accept that the applicants have ever been denied the capacity to earn a livelihood because of their Chinese ethnicity or for any other reason.

11. I have considered Ms C’s claims that she will suffer harm if she returns to Malaysia because of her ethnicity and the news reports she provided to the Department with her protection visa application. The country information does indicate that longstanding preferential policies for ethnic Malays continue to exist in many areas.[6] However, with respect to the treatment of ethnic Chinese in Malaysia, the county information before the Tribunal does not support the conclusion that ethnic Chinese are persecuted because of their ethnicity or that ethnic Chinese are targeted for significant harm. On the evidence before me, I am not satisfied that there is a real chance that Ms C will suffer serious harm or significant harm because of her Chinese ethnicity if she returns to Malaysia.

    Fears that she will be a victim of crime

    [6] DFAT, Country Report – Malaysia , 3 December 2014 [3.6]-[3.9]; US Department of State 2015, Country Reports on Human Rights Practices for 2014 – Malaysia, 25 June, Executive Summary, p.1 

12. Ms C has claimed that she fears that if she returns to Malaysia she will be a victim of crime; she told the Tribunal she might be robbed or even raped if she returns to Malaysia and she claimed both her mother and her aunt had been victims of crime in the past (she said her mother was robbed and beaten and her aunty was also robbed of her annual bonus by two Malay persons). Ms C has also suggested that the Malaysian police did not assist her or her family members when they reported these matters to the police because they were of Chinese ethnicity.

13. In my assessment, Ms C claims that she fears being targeted by criminals upon return to Malaysia were vague and speculative.  When asked why she thought she would be a victim of crime in Malaysia, Ms C said she had experienced these things before. However, as I put to her, the only experience she had told the Tribunal about was when she followed by two men on motorcycles. As noted above, I do not accept that the police declined to assist her because of her Chinese ethnicity. When it was put to Ms C, that the risk of being a victim of crime is a risk that exists in every society and it was not apparent to the Tribunal why she would be at greater risk than anyone else in Malaysia, Ms C did not respond. When it was put to her that the prospect of her being the target of criminal activity in Malaysia might be said to be remote, she indicated she had nothing to say about this.

14. As I discussed with Ms C, the country information available to the Tribunal that the threat of crime in Malaysia is relatively low.[7]  While I am prepared to accept that her mother and her aunt have been victims of crime in the past, however these incidents occurred some years ago and do not support the conclusion that there is a real chance that Ms C will be targeted by criminals and subject to serious harm or significant harm. On the evidence before me, I do not accept that Ms C’s past experiences in Malaysia establish that she has been systematically targeted by criminals as required to s.91R(1)(c)) or that her own experience of criminal activity amount to serious harm as that term is defined in s. 91R(2). On the evidence before me, I am not satisfied that there is a real chance that Ms C will be subject to systematic targeting by criminals if she returns to Malaysia.

    [7] DFAT 2014, Country Report: Malaysia, 3 December 2014, pp.20 to 21.

15. I note that Ms C has previously suggested that she might be denied police protection because of her ethnicity. However, as I put to her at the hearing, DFAT reports that ‘credible local and international sources consider the Royal Malaysian Police to be a professional and effective police force’, although DFAT acknowledges the quality of RMP’s responses can vary depending on levels of training, capacity or engagement in corruption. Further, while DFAT notes that the RMP is 80-85 per cent ethnic Malay, in 2014 the Government commenced a campaign to increase the number of women, ethnic Chinese and Indians in the RMP.[8] In response to this information Ms C gave evidence that after he parents were robbed the police arrested a suspect but then he was released. She said she didn’t know whether this was corruption or because the police were trying to protect the ethnic Malay. I found her evidence in this respect to be speculative and, when I put to Ms C that there could be a number of reasons that police don’t have enough information to charge a suspect with an offence, she did not respond. On the evidence before me, I am not satisfied that the police tolerate the actions of criminals or that the authorities would fail to protect Ms C if she sought assistance or that any assistance would be denied because she is ethnically Chinese.

    [8] DFAT 2014, Country Report: Malaysia, 3 December 2014, pp.20 to 21.

16. On the evidence before me, I do not accept that there is a real chance that Ms C will be targeted for criminal activity amounting to serious harm because she is ethnically Chinese or for any other reason if she returns to Malaysia now or in the reasonably foreseeable future. Nor am I satisfied that there is a real risk that Ms C will be the target of criminal activity amounting to significant harm because she is ethnically Chinese or for any other reason.

    Fears for her child

17. Ms C has claimed that her child will suffer discrimination in Malaysia because of [his/her] Chinese ethnicity. As discussed above, I accept that there continues to be discrimination against ethnic Chinese in Malaysia, but the country information indicates that ethnic Chinese generally have no problem accessing public primary or high school education. Further, while there is preferential treatment afforded to ethnic Malays in terms of access to higher education and public employment, the situation is not quite as dire as Ms C has suggested. As I put to her at the hearing:

    With respect to the public universities, Malaysia has 18 state-funded universities, 37 private universities, 20 private university colleges and seven foreign university branch campuses. The Government officially removed ethnic quotas for state-funded universities in 2002, however Malaysia’s ethnic minorities continue to be underrepresented in public universities. Of the available university places in 2012, nineteen per cent were awarded to ethnic Chinese, four per cent to ethnic Indians, and the remaining 77 per cent to bumiputera (ethnic malys).[9]

    [9] DFAT 2014, Country Report: Malaysia, 3 December 2014, pp.20 to 21

18. Ms C maintained that Chinese students are underrepresented at public universities and reiterated this was discriminatory. I put to Ms C that while I accept that there is a degree of discrimination against ethnic Chinese in relation to access to certain services in Malaysia, the problems she described did not seem to amount to serious harm for the purpose of the refugee criteria or significant harm for the purpose of the complementary protection criteria. Ms C reiterated that she did not want her child to experience this discrimination because she had already experienced this herself. She referred to businesses being run by Chinese getting robbed and beaten and reiterated that ethnic Chinese suffer discrimination.

19. When I put to Ms C that I needed to consider whether there was a real chance - not a remote chance -- that she or her [child] would suffer serious harm or significant harm if she returned to Malaysia, she said the chances were very high; she added she didn’t even know whether [he/she] could get into school because [he/she] was born in Australia. She also referred to difficulties she had experienced when she tried to obtain a passport for her [child] and suggested this occurred because they were discriminated against by the Malaysian consulate.  As noted below, I accept Ms C experienced difficulty obtaining a passport for her [child] from the Malaysian High Commission however her own evidence indicates that this occurred because of her immigration status in Australia, not because of discrimination against Chinese Malaysians.

20. I have considered Ms C’s concerns that her [child] will experience discrimination because of [his/her] ethnicity if they return to Malaysia. However, as noted above, DFAT reports that the Malaysian Constitution prohibits discrimination against its ethnic groups and that Chinese Malaysians, who comprise a significant proportion of the Malaysian population, are well represented in senior positions and various areas of Malaysian society, particularly in business and commerce.[10] With respect to the applicant’s concerns about her [child], DFAT indicates that ethnic Chinese in Malaysia generally have no problems accessing public primary schools or high school.

    [10] DFAT 2014, Country Report: Malaysia, 3 December 2014, pp.8-9.

21. While I accept there are low levels of discrimination against ethnic Chinese, in my assessment the country information does not support the conclusion that there is a real chance the infant applicant will serious harm or significant harm in Malaysia because of [his/her] ethnicity. Nor, on the evidence before me and having regard to the fact her [child] is a Malaysian citizen by birth, am I satisfied her [child] would have any problems accessing school in Malaysia or any other type of harm because [he/she] was born in Australia.

22. I accept that Ms C is anxious to secure the best future for her child and would prefer to raise her child in Australia rather than Malaysia. On the evidence before me and, having regard to the country information about the treatment of ethnic Chinese in Malaysia, I am not satisfied that there is a real chance that any discrimination that the infant applicant may experience if [he/she] travels to Malaysia with [his/her] parents will amount to serious harm as that term is defined in s.91R(2) of the Act or significant harm as it is defined in s.36(2A) and s.5(1) of the Act. 

    Other matters

1. Ms C told the Tribunal that she and her family had travelled to the Malaysian High Commission in Canberra in 2011 to obtain a Malaysian birth certificate and passport for their infant [child]. She said they were able to obtain a Malaysian birth certificate for their [child], but not a passport. I accept that there was a problem with the documentation provided to the Malaysian High Commission in 2011 and, as a result, her [child]’s application for a passport and her husband’s application to renew his passport were not granted. Ms C referred to having received a rejection letter that she had provided with her protection visa application but she subsequently clarified she had not received any documentation from the Malaysian High Commission in relation to the passport application.

2. I do not accept Ms C’s suggestion that the problem they encountered obtaining a passport for her [child] and renewing her husband’s passport occurred because of their Chinese ethnicity; as I put to Ms C many Malaysian Chinese, including herself, travel in and out of Malaysia. In any event, Ms C’s own evidence indicates that they were able to register their [child]’s birth with the Malaysian authorities and the problem in relation to the passport appears to have been related to the fact that they held a bridging visa. I am of the view that, as the applicants are Malaysian citizens, they should ultimately be able to obtain the necessary travel documentation to enable them to return to Malaysia.

3. During the hearing Ms C expressed distress because she said she had been denied visas enabling her to work in Australia and this had made it difficult for her to support her family. While it is understandable that Ms C would want to relieve financial pressure on her family by working in Australia, as I explained to her the only issue I can consider is whether the applicants meet the refugee or complementary protection criteria.

   Conclusions with respect to the adult applicants

4. I am not satisfied that Ms C is a refugee. Having considered all the evidence before me, including the advice from DFAT about the treatment of ethnic Chinese in Malaysia and her evidence about her past experiences in Malaysia, I am not satisfied that there is a real chance she will suffer serious harm because of her Chinese ethnicity or because she will be targeted by criminals or for any other reason. On the evidence before me, I am not satisfied that there is a real chance that Ms C will suffer serious harm, when her claims are considered both individually and cumulatively, if she returns to Malaysia now or in the reasonably foreseeable future. I am not satisfied, therefore, that she has a well-founded fear of persecution in Malaysia for the reasons claimed.

5. I am not satisfied that Ms C meets the complementary protection criteria.  I do not accept that she faces a real risk of significant harm because of her Chinese ethnicity. Nor am I satisfied that there is a real risk that she will be a target of criminal activity which amounts to significant harm. On the evidence before me, I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of Ms C being removed from Australia to Malaysia, there is a real risk that she will be subjected to any form of harm that would constitute significant harm for the purposes of the complementary protection criteria: s.36(2A): s.5(1). Specifically, I am not satisfied that there is a real risk that she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment as defined  in s.5(1) of the Act. There is no suggestion on the evidence before me that there is a real risk the death penalty will be carried out on Ms C or that she will be arbitrarily deprived of her life.

6. As noted above, the second named adult applicant has not made his own claims for protection. At the hearing, which the second named applicant elected not to attend, Ms C confirmed her husband did not have his own claims for protection. I note Ms C has presented evidence that the family [business] was targeted because both she and her husband were ethnic Chinese and made other claims about the treatment of ethnic Chinese in Malaysia. On the evidence before me and having regard to my findings set out above, I am not satisfied that the second named applicant has a well-founded fear of persecution for any Convention reason. Nor, on the evidence before me, am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second named applicant being removed from Australia to Malaysia, there is a real risk that he will be subjected to any form of harm that would constitute significant harm for the purposes of the complementary protection criteria: s.36(2A): s.5(1). On the evidence before me, the second named applicant does not satisfy s.36(2)(a) or s.36(2)(aa).

   Conclusions with respect to the child applicant

7. Having considered all of the evidence before me, I am not satisfied that there is a real chance that the child applicant will suffer serious harm or significant harm in Malaysia because [he/she] is ethnically Chinese or because [he/she] is ethnically Chinese and born in Australia. I am not satisfied that the child applicant has a well-founded fear of persecution in Malaysia for any of the reasons claimed. The child applicant does not satisfied the criterion in s. 36(2)(a). Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the child applicant being removed from Australia to Malaysia, there is a real risk that [he/she] will be subjected to any form of harm that would constitute significant harm for the purposes of the complementary protection criteria: s.36(2A): s.5(1).

   CONCLUSION

8. 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

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

   Frances Simmons
   Member