1421191 (Refugee)

[2016] AATA 4019

1421191 (Refugee) [2016] AATA 4019 (20 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1421191

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sophia Panagiotidis

DATE:20 June 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 20 June 2016 at 1:41pm

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] December 2014.

3. The applicant appeared before the Tribunal on 6 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. However the applicant's migration agent did not attend the hearing.

   Background

5. The applicant first arrived in Australia under the name of [Alias 1] [in] November 2007 on a [visitor] visa which ceased [in] February 2008. He became unlawful on [the next day] and worked illegally until he was located and removed from Australia [in] August 2011.

6. The applicant changed his name legally in Malaysia and returned to Australia [in] December 2011 on [another visitor] visa which was valid until [date] March 2012. He applied for a [student] visa and this was granted [in] April 2012 but was cancelled [in] May 2014.

7. The applicant has claimed to be a gambling addict and he borrowed money from loan sharks and when the loan became repayable he embezzled money from the company he was working for. He claims he was working as a [Profession 1] for a company in Malaysia. Once his misconduct was discovered the company reported him to the police and hired gangsters to retrieve the money he had stolen. The applicant claims that he left Malaysia to escape arrest by the police and because he feared harm from gangsters. He has claimed he went into hiding after taking money from the company and they employed gangsters to recover the money. He claims the gangsters went after him for the money and have threatened him and his family. The applicant claims to fear for his life in Malaysia as he will be detained and harmed by the police and tortured by gangsters if he returns. He claims that the police in Malaysia cannot protect him as the police work for the gangster.

   The hearing

8. The applicant confirmed is date of birth and told the Tribunal that he is a citizen of Malaysia and comes from Penang. He speaks Mandarin, Cantonese, Malay, Hokkien and English. His parents live in Kuala Lumpur and he has [specified siblings]. The applicant told the Tribunal he is divorced and he has [specified children] who live with his ex-wife in Kuala Lumpur.

9. The applicant told the Tribunal he finished his education when he was about [age range] years old. He did a two year diploma in [subject] and after that he worked for a [Country 1] company selling [products]. He was there for [number] years from [year] to 2007.

10. The applicant was asked if he completed the application for the protection visa and whether he agreed with its contents. The applicant said that a migration agent had completed the application and had read the contents to him and he agrees with what was written.

11. The applicant was asked why he does not wish to return to Malaysia and he said that it is a Muslim country and whatever Chinese people do they are opposed. He was harmed and assaulted by underworld figures and when he reported this to the police they kicked him out and would not help him unless he paid them money. He told the Tribunal he is a member of an opposition party in Malaysia and during the election he voted for them.

12. The applicant said that another reason he does not wish to return to Malaysia is he took a large amount of money from a company he was working for. The senior management used underworld figures to harass him and he reported this to the police and they did not accept his case. He was working as a [Profession 1] and he sold products for them and he did not give the company all the money he received from sales. He was notified by the company he owed money and they alleged he had taken four or five times more than he owed.

13. The company was based in Kuala Lumpur and has branches in [several] states around the country. He began as a [profession] selling [products] and he was then responsible for [duties] in [several] states. Each of [these] branches he was responsible for had a chief and he had to ensure their performance. When he was in Kuala Lumpur he was responsible for the sale of [different products] to outlets. The sales he was responsible for were wholesale and in the main business was conducted in cash. The company started in Malaysia selling mainly [products], especially [product type] and after a while the company started to produce [different products] and they wanted to promote these and [related products]. He was responsible for the sales and promotion of these to retail outlets. He would give retain outlets incentives such as discounts of [percentage ranges] when they ordered bulk [purchases]. When these were delivered they had to pay cash up front. He told the Tribunal he withheld [amount] MYR which was around $40,000 AUD using the exchange rate at the time. 

14. The applicant said that the [Executive Officer] would send someone from [Country 1] to audit the company every two years. During the audit the shortfall in funds was discovered and the management of the company in Kuala Lumpur blamed him. He had reported himself to the [Executive Officer] of the office in Malaysia and he asked to be given a second chance because he did not believe he had taken the amount of money he had been accused of taking. He had also reported himself to the [Executive 1] and confessed he had sold stock and he did not pass all the money on to the company. The [Executive 1] checked the accounts and alleged that the applicant owed [larger amount] MYR based on the accounts and the customers he was responsible for. Everyone at the company had panicked when they heard about the audit because everyone was stealing money. When he confessed to the managers, they wanted to blame the entire shortfall on him.

15. The applicant said that because the management of the company wanted to blame him they sent someone to his house, some unknown men to try and get money out of him. The [Executive 1] showed him a spread sheet with the money that was owed and he forced the applicant to sign a document admitting to having taken the money. He was forced to sign the document otherwise he would not have been allowed to leave the room. He was dismissed from his employment and he went home. He had been told he would have to repay the money within one month or he would be prosecuted. The applicant was concerned he would be reported to the police so he left for Australia immediately. However the applicant believes that the [Executive 1] was also involved in stealing money and that is why the matter was not reported to the police.

16. The applicant said that he paid some money back to the company on two occasions, [amount] MYR each time. The applicant said that the first time someone came to his house was the day after he had signed the document which was in about October 2007. He was not at home and his wife told him the people who had come had looked very scary and told her that the applicant owed money and he had to pay it back. These people asked for him by name. He said they did not harass him or his family members. The applicant had to tell his wife that he had lost money gambling and she was very disappointed. The applicant said that the people who came to the house did not identify themselves and he believes that according to his wife they were working for loan sharks or the underworld and were hired by the company. They referred to him as “[another name]” which is the name he used only at the company so they must have been hired by them.

17. The applicant said that at the time he tried to borrow money from family and relatives and he managed to raise [amount] MYR, ([half each] on two occasions) and someone came to his house to collect it.

18. The applicant said that on the third day after he stopped work he went to the police to complain that these people had gone to his home to harass his wife. The applicant said that after he had signed the document admitting he owed the money to the company he did not go home but stayed somewhere else, visiting family to try and raise money because these people were looking for him and on the second day someone had gone to his house. The applicant was asked what he told the police. He said he had gone to the police on the third day and told them some people had gone to his home looking for him and threatened his wife if he did not repay the money. The police did not want to take on the case or make a report without any solid evidence and also they were not interested because these problems are common with Chinese people and he would need to bribe them to take on the case.

19. The applicant was asked why he came to Australia rather than moving elsewhere in Malaysia. He said he had friends who had been working in Australia and so he decided to run away from the problem. He said that Malaysia is not a big country and he would not be safe anywhere as the loan sharks are everywhere and the police would not be interested in his problems. He said that since he had signed the document confessing to having taken all the money, the company could sue him and they could have a warrant taken out for him and he would be chased by the authorities and the underworld wherever he went.

20. The applicant confirmed he first came to Australia in November 2007 and he was sent back in 2011. He changed his name two months after he returned to Malaysia and during that time he stayed with friends. His wife is living with her parents in Kuala Lumpur and she has told him that from time to time people would come looking for him. Prior to leaving Malaysia, they were living in their own house. The company he had worked for knew where he lived and he said they still have the house and it is rented out. His wife and children moved out after he left Malaysia.

21. The applicant was asked if he had made any attempt to repay any more of the debt and he said he has not. He was asked if he knew whether a warrant had been taken out against him and he said he did not know.

22. The Tribunal suggested that it may be possible that if there had been a warrant issued for his arrest he would have been detained at the airport when he was returned to Malaysia. The applicant agreed and said that in that case there may not have been a warrant issued. It looks like he has not been prosecuted and the company hired those loan sharks to get the money. Since everyone in the company was involved if they started any legal procedure against him they may have been discovered.

23. The total number of people who worked in the head office where he was working there were more than [number]. All were in management positions. There was [Executive Officer] and under him was a [Executive 1], then under him there [were various named departments]. He was in the [specified] department and in each of the departments there were people working. There were [number] managers. He thinks that most of these managers conspired against him. 

24. The applicant was asked when the last time to his knowledge someone had asked for him. He said according to his wife, there was one visit every fortnight. The last time she told him that was last year. All this had happened in 2007. The applicant was asked whether there had been any queries more recently. The applicant said that as time went on the visits became less frequent and last year his wife showed them the divorce documents they became even less frequent. He has not spoken to his wife for a long time. The applicant was asked if there people know that he is not in Malaysia. He said he is unsure if they know.

25. The applicant was asked if he experienced any problems when he returned to Malaysia. He said he had not.

26. The applicant said his wife applied for a divorce last year because she had been harassed by letters from the bank and debts for [accounts] for him. He owes about [larger amount] MYR. She considered that the best way to deal with that was to stop being related to him.

27. The applicant was asked if he had considered selling the property to pay off all his debts. He said that the house is in his wife’s name and she would oppose it. He cannot sell it and the income from the rent is used to look after the children. The title of the house is held by his wife and his father in law. It is in their name although he paid for everything but it is not in his name. He told the Tribunal that he has no legal interest in the property and does not have a right to a portion in the property and has no right to sell it.

28. The applicant was asked that since he has changed his name and the amount of time that had elapsed why did he think he would still be in danger if he returned to Malaysia. The applicant said that the company was still in operation and the same people are still working there. He knows this as his friends have told him. He believes they would still be looking for him.

29. In addition, although he has changed his name, his identification number is still the same and they will continue to look for him and they have records of where he lived. The applicant was asked that given he said the police are not looking for him how would these company people or people they hired will be able to look for him. He said they would not need his name because to the underworld figures they would be looking for him and not care if he had changed his name. He was asked how they would find him. He said the company has records of where he lived and they went there to look for him. He was asked if he were to return to Malaysia and lived elsewhere how he would be found. He said he was not sure.

30. The applicant was asked why he applied for a student visa and why this was cancelled. The applicant said the Department discovered he had changed his name and he was asked to go to an interview. The applicant was asked if he was a student at the time he was interviewed. He said he was. The applicant was asked what he was studying. He said he did not have to go to school as he made the application through an agent and he was granted the visa. The applicant said during the interview the questions were related to his old name and why he had changed his name. The Department had the documents about his old name. The applicant was asked if he had been involved in a course. The applicant said the agent did everything for him but he did not know which school or course he was supposed to do as he was not told. His friends told him he could get a student visa and stay in Australia and he just wanted to stay here and not return.

31. The applicant said that the first time he came to Australia he worked [in a business] for six years. Since his return in December 2011 he has also been working [in a business] and his friends told him to apply for a student visa. The applicant was asked why he had changed his name. He said the reason he changed his name was to return to Australia not to stay in Malaysia. While he was in Malaysia from August to December 2011 he worked a little bit at his relative’s place and the rest of the time he stayed in various places in hiding in different cities in Penang and Kuala Lumpur. He was asked if he had any problems in any of the cities. He said he did not experience any problems while he was there.

32. One of the other reasons he does not want to return to Malaysia is because he is Chinese. The applicant said that Chinese people generally have problems in Malaysia. It is the same as when white people were there and they treated non-white people badly. It is now a Muslim country and the prime minister has taken a lot of money for himself trouble free. As a Chinese person they are bullied and can be imprisoned without doing anything wrong. It is the only country to have an Internal Security Act. The applicant said recently an Australian journalist asked the Malaysian prime minister about the money he had taken and the prime minister ordered the journalist to be detained without any legal reasons. That is something that can happen. The applicant was asked if he had ever been detained without any reason. He said he has not.

33. The applicant said he has also supported an opposition party and therefore he suspects the police will not help him. The applicant was asked how they would know he is a member of the opposition party. He said he is not sure.

34. The applicant was asked as a person from a Chinese ethnicity if he had ever had any problems personally. He said that before 2007 he had gone to the market to buy pork and was fined because people are not allowed to carry pork in a public place. This happened once. People can only buy pork in certain places and at certain times. He had bought pork and had left it in his car and he was driving the car to visit friends. As a Chinese he can be stopped and arrested for no legitimate reason. He said he has been stopped numerous times just driving for no legitimate reason but has never been arrested but always had to pay fines. The applicant was asked if he had ever been arrested by being taken to the police station and locked up. He said no because he has always paid money. The applicant was asked if he had anything to do with the police. He said when he went to report the harassment to the police they would not help him. He also went to the police about a missing identity document and for other small matters but they would only help him if he paid money. The applicant was asked to clarify what he meant by this, he said he had to pay money before they accept a claim and then they would accept his claim. He said that Malay people do not have to pay. He has to pay because he is Chinese. The applicant was asked whether this was the case even though the Malaysian Constitution forbids discrimination on the basis of race. He said that is so.

35. The Tribunal noted that Malaysia has an ethnic Chinese population of 24.6%, an Indian population of 7.3% and an ethnic Malay population is 67.4% and that ethnic Malays are given special privileges under the law “bumiputera”. Otherwise there are supposed laws that forbids discrimination because of gender, religion and race. The applicant said that is what the law says. The Tribunal also noted country information put together by the DFAT which refers to Malaysian Chinese as one of the largest communities and the second largest ethnic groups in Malaysia and they make up a high percentage of the professional and education class and dominate business and commerce sectors. There are also ethnic Chinese in the current government and in opposition and therefore it appears that Chinese Malaysians participate in a large part of Malaysian society. DFAT assesses 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 applicant agreed this is the case and in law they are not allowed to discriminate but that is not the case in real life. He said in the last few years there have been very big riots where ethnic Chinese people opposed the government and the authorities, particularly the current prime minister. He said many non-Muslim Malaysians have been involved as well.

1. The applicant said he is a member of the DAP, (the Democratic Action Party) which has a majority of ethnic Chinese members but also has some Indians and ethnic Malays. The applicant was asked what this party stands for. He said he was not sure. The Tribunal said that country information indicates that the DAP has increased its seats in parliament and is becoming more important. The applicant said yes, however the current government want to crack down on this party. The applicant said he joined the party ten years ago but has not been involved since he has come to Australia and is not sure if he is still a member.

2. The applicant was asked if he has had any problems being a member of this party. The applicant said everything was alright ten years ago but he had some problems claiming some an allowance from the government for his [child] which was rejected. There is an association called the Malaysian Chinese Association which is closely related to the current government and if he applies through them it is easier. The allowance was for a scholarship that is distributed each year to different students. If he wanted to apply for his [child] he could not get it because every Malay student is entitled to it, but as a Chinese person they have to go through this association to get a grant. His father is a member of the association and it is very complicated. He would get the allowance if he went through the association. The applicant was asked how this is discriminatory to him. The applicant said that the point is people are treated differently and the younger generation find that the members of the MCA are very corrupted and just follow the government without having their own independent thinking. If there are government projects, individuals are unable to apply or tender unless they go through the MCA. A person has to belong to a particular party to get work. The applicant was asked if people are free to join whichever party they want. He said they were.

3. The Tribunal referred to information from the DFAT which refers to the Royal Malaysian Police as being professional and effective. However, corruption has been recognised as a concern by the government and there have been steps taken to identify and battle corruption within the police. There has been the establishment of an Integrity and Standard Compliance Department set up in 2014 to enhance police integrity and image. The applicant was asked to respond to this comment. The applicant said that two years ago a very senior officer from this integrity department was murdered and one went missing because they were investigating the corruption allegations of the current prime minister.

4. The applicant was asked why he thinks, given there has been so much time since the incidents with his former company, he is unable to return to Malaysia and be safe. He said it would be very hard because he would have to continue hiding and if he wants to work he will have to be very cautious. He was asked if this is the case considering he had changed his name. The applicant said his wife is still concerned about her safety and has divorced him.

5. The applicant was asked if he had ever seen any of the people who have come around to get money. He said he had not.

6. The applicant was asked about his religion. He said he is officially a Buddhist but is no practicing. His family are either Buddhist or Taoists. 

7. The Tribunal said a major issue for the Department was that the applicant had been deported; he then changed his name and did not disclose he had been in Australia before. The applicant said that his friends told him he could get a student visa to stay and did not think about anything else and he did not want to return to Malaysia because he could not go back. The applicant told the Tribunal that he would have applied for a protection visa a long time ago, as soon as he arrived in Australia had he known there was such a visa. He applied two years ago after he learned about it. Prior to that he was only aware he could apply for a student visa. He was taking advice of others and he paid to get a student visa. The applicant was asked if he knew that student visas were not permanent visas. He said that for him it was about whatever visa he could apply for to stay longer. People who advised him were people from Malaysia and who used agents to get their visas. The agents are in Australia. Someone referred him to his agent to help him to apply for a protection visa. He has not met him and has only spoken to him on the telephone. The agent who helped him to apply for a student visa was a Chinese lady who he met once. He paid her money $[amount] for the application fee plus tuition fee and she provided him with a health check-up he was granted a visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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).

10. 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.

11. 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’).

12. 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.

13. The primary issue in this review is whether there is a real chance that, if he returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

14. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims.  This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

15. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

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

    Country of nationality

17. The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Tribunal. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s country of nationality for the purposes of s.36(2)(a) and receiving country for the purposes of the complementary protection assessment, s.36(2)(aa).

    Third country protection

18. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Embezzlement

19. The applicant's main claim relates to his embezzlement of money from is employer and that in 2007 an audit of the company was ordered by the head office in [Country 1]. The applicant therefore decided to confess before he was found out and when he admitted his theft to the [Executive 1] of the company, the [Executive 1] and others from senior management who the applicant believes had also been guilty of skimming money used him as a scapegoat and blamed him for the theft of a significant amount of money, only part of which he was responsible for taking. He claims that the [Executive 1] forced him to sign a confession and he and other senior managers hired underworld figures to recover the money after that.

20. The applicant told the Tribunal he has never personally seen the people who had come to his house to recover the money but from his wife’s description he has assumed they are gangsters or underworld figures. His evidence is that he left home straight away to try to raise money to repay the company and ended up repaying [amount] MYR before leaving Malaysia. His evidence is essentially that people have been going to his home and later to his wife to try and recover the money. In an effort to try and avoid this harassment his wife has divorced him in order to distance herself from him. He later added that it was also because he had left a significant number of [debts] and the bank was also trying to recover this money.

21. The Tribunal questioned the applicant as to whether he believed the police were ever informed about the theft. He initially thought so but he does not know. If there had been any warrants issued he may not have been able to enter and depart Malaysia in 2011.

22. The applicant believes that in order for these senior managers to hide their culpability, including the applicant's role in the theft, they forced him to sign a confession and then hired people to collect money from him. The applicant was asked why he thought they were gangsters or underworld figures and he told the Tribunal this belief was based on his wife’s description of them. The applicant told the Tribunal that he had never seen these people.

23. The Tribunal considered whether the fact that the applicant claims to be wanted in Malaysia for a theft, which he has admitted to is a grounds for claiming protection under the Refugee’s Convention.

24. The Tribunal accepts that the applicant’s claim as plausible that he was employed by a [Country 1] company in Malaysia as a [Profession 1] and also accepts his evidence that he confessed to having stolen money. The applicant was able to provide a great deal of detail about the structure of the company and his role in it as well as the way in which he appropriated funds which he did not pass on to his employer. In relation to the applicant's evidence that he had signed a confession admitting to having stolen money, the Tribunal accepts that the applicant did so in anticipation of an audit that had been ordered by the owners of the company in [Country 1] and that he knew his theft would be discovered. However, in relation to the company having decided not to prosecute the applicant, the Tribunal gives the applicant the benefit of the doubt that instead of taking legal action against him, he was asked to sign a confession and an undertaking that he would repay the money and he would be dismissed. In relation to the applicant’s claim that the company then undertook to cover-up the theft and to hire underworld figures to recover the money, the Tribunal does not accept this to be the case. It appears implausible to the Tribunal that instead of pursuing legal means of recovery that an international company such as the one the applicant had been working for would hire criminals to recover money from him, when the obvious course would have been to prosecute him, especially since they had a signed confession. The Tribunal rejects the applicant's claims that others in the company had also been guilty of stealing funds and that they conspired in a cover up to blame him for all missing funds which others had been responsible for. The applicant's evidence was that he agreed to repay the money he had stolen and that he made two repayments but has not made any further attempt at repaying the money. The Tribunal also notes that the applicant has never personally seen any of the people who came to recover any of the money and he has not provided any evidence that these people are criminals, just that he believed they are.

25. The Tribunal has also noted the applicant's evidence that he has a property in Malaysia, the former matrimonial home and that this is currently being rented. He told the Tribunal that he had contributed towards the mortgage and upkeep of the property but he could not sell it as it was in his wife’s name and she did not agree to sell it. The applicant told the Tribunal that his wife had divorced him because of the money he owed to the company as well as a number of other debts to a bank ([specified] debts) which had arisen due to his gambling. The applicant also told the Tribunal he had been working in Australia since arriving in 2007 and again in 2011 but had not made any attempt at repaying the money to the company or to the bank.

26. The Tribunal concludes that the applicant’s actions demonstrate that he does not intend to repay any of debts he has in Malaysia and he does not intend to repay money stolen from his former employer. The Tribunal accepts that the bank and his former employer have attempted to take recovery action for his debts and in the circumstances considers this is reasonable. The Tribunal finds that the applicant's actions since arriving in Australia in 2007 and again in 2011 have been inconsistent with the predicament he claims to be in, having made no attempt to use his earnings in Australia to repay his debts and alleviate his situation. Instead, the applicant has been seeking to avoid repaying his debts by leaving Malaysia. To this end, after his deportation in August 2011 to Malaysia, he changed his name and returned to Australia in December 2011 in order to continue to avoid his creditors. The applicant's evidence was that while he was in Malaysia he did not experience any problems, either by the police or anyone else.

27. The applicant has also claimed that he would be able to be located by his creditors in Malaysia because although he has changed his name, his identity number has not changed. The Tribunal considers this is a civil matter for the bank and his former employer and at the most, the applicant would be pursued through the courts in order for his creditors to recover money he owes. This, in the Tribunal’s view does not constitute the basis for fearing persecution for a Convention reason.

28. The applicant has also claimed that he tried to report harassment by criminals or members of a gang to the police but they would not take on the case without any solid evidence. The applicant's evidence was that he had tried to report this once. The evidence before the Tribunal is that the applicant did not pursue this further. The Tribunal’s view the country information referred to during the hearing that DFAT has assessed that the police in Malaysia are considered to be professional and effective and accepts this assessment and considers that if serious threats had been made towards the applicant’s wife, the police would at least have taken a report or investigated the matter. The does not accept that the applicant complained to the police because the people who were pursuing the applicant were not criminals but representatives from the applicant's employer seeking to recover money he had agreed to repay.

    Chinese ethnicity

29. The applicant has raised claims in relation to his Chinese ethnicity. The Tribunal put to the applicant information from the DFAT Country Report on Malaysia dated 3 December 2014 which provides that Malaysian Chinese constitute one of the largest overseas Chinese communities in the world and are the second largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against ethnic Chinese 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. 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. The Tribunal put to the applicant that DFAT assessed 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. In response to this information, the applicant maintained he had experienced difficulties as described during the hearing and that Chinese generally are discriminated against by the authorities.

30. The applicant referred to the Malaysian Chinese Association (MCA) of which his father is a member and said he could have gone through them in order to get his [child] an allowance or a scholarship. The Tribunal notes DFAT’s advice in relation to this organisation and notes that the MCA is the 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) which the applicant has claimed to support and was a member. DFAT advises this is one of the three key opposition parties of the Pakatan Rakyat (People’s Alliance) coalition and it won 38 seats at the 2013 election, a significant increase from the 28 seats in 2008. This indicates to the Tribunal that ethnic Chinese in Malaysia are fully engaged in and represented in a variety of ways in government.

1. The Tribunal acknowledges that the independent country information supported the applicant’s claims about the positive discrimination in favour of ethnic Malays in terms of accessing tertiary education and civil service employment. In this respect the Tribunal acknowledges the applicant may not have been able to obtain a scholarship or allowance for his [child] in relation to [the child’s] education on the basis he was not a member of the Bumiputera. The Tribunal finds that access to education at any level, basic services and the capacity to earn a livelihood was previously available to the applicant and there is no reason why this should not be so in the future. The applicant’s evidence was that he was employed for some years when he lived in Malaysia and he did not claim to have had difficulties obtaining work. While in Australia the applicant was able to find work as well and when he was forced to return to Malaysia his evidence was that he did some work prior to returning to Australia. The Tribunal does not accept that he would not be able to obtain work upon return to support himself.

2. The applicant has also claimed that as a member of the Chinese ethnic group he has had to pay bribes or fines to authorities when stopped in public. Independent country information confirms that corruption in Malaysia is endemic. The Tribunal accepts that the applicant may have had to pay bribes to the police in order to get cooperation to replace documents or when caught with pork in public but finds that this behaviour is directed at the community at large and not specifically at him. The Tribunal finds that the requests for bribes by public officials and the police is not systematic and discriminatory conduct directed at the applicant but rather a way of life that affects all members of the community.

3. In relation to the applicant's claims regarding the benefits that ethnic Malays in Malaysia receive, as compared to minority groups in the country, the Tribunal accepts that there is discrimination against other ethnic groups in Malaysia, including Chinese, given the operation of Bumiputera policy which favours ethnic Malays, particularly in relation to education, government employment and ownership of land. However, the Tribunal does not accept that the discrimination the applicants referred to constitutes serious harm for the purposes of section 91R(1) of the Act. The Tribunal notes that the applicant was able to obtain an education and access government services; he was continuously employed or been able to earn an income until he left Malaysia, which suggests that they have not been denied either education or employment in the past because of his ethnicity. Whilst the Tribunal appreciates that the applicant may encounter difficulty finding employment on his return, the Tribunal does not accept that he will be denied employment or accommodation or access to government services or benefits because of his Chinese ethnicity or for any other Convention reason.

4. Considering the applicants’ individual circumstances and the totality of the country information, the Tribunal finds that he does not face a real chance of persecution for reason of his Chinese race.

5. Also considering the independent information before it and the applicant’s own evidence regarding his personal experiences in Malaysia, the Tribunal does not accept that he faces a real chance of serious harm, now or in the reasonably foreseeable future, for reason of his Chinese ethnicity, if he returns to Malaysia.

   Political opinion

6. The applicant has essentially claimed to be a member of a political party and that his opinion is against the government who he considers is corrupt and does not act in the interests of the ethnic Chinese population.

7. As noted above country information confirms that the DAP has attracted increasing support from ethnic Chinese. According to DFAT this party is now one of the three key opposition parties of the Pakatan Rakyat (People’s Alliance) coalition and has increased its share of parliamentary seats since the 2008 election.

8. However, based on the applicant's evidence, although he may have been a member of the DAP party previously he has been absent from Malaysia for a significant period of time. He came to Australia in November 2007 and he was removed in August 2011 and returned again in December 2011. He has therefore not had the opportunity to have established a political profile with the party or with the authorities and was not in Malaysia for the 2008 or 2013 elections. The applicant has not claimed that he had been threatened or harmed in the past because of his support for the DAP. There is no evidence before the Tribunal that people such as the applicant who choose to cast a vote for their local DAP candidates in elections are in any way threatened, intimidated or harmed. The applicant has not provided any evidence to the Tribunal that he has done or said anything publicly in support of the DAP or has been critical of the Malaysian government while he has been in Australia, where he has had complete freedom of speech.

9. Considering the applicants’ individual circumstances and the totality of the country information, the Tribunal finds that he does not face a real chance of persecution for reason of his political opinion.

10. Also considering the independent information before it and the applicant’s own evidence regarding his personal experiences in Malaysia, the Tribunal does not accept that he faces a real chance of serious harm, now or in the reasonably foreseeable future, for reason of his political opinion, if he returns to Malaysia.

11. For the above reasons the Tribunal finds the essential and significant motivation for the persecution claimed is that the applicant fears being pursued for repayment of his debts by his former employer and to some extent by the bank. There is no Convention nexus. The Tribunal also finds there is also no withholding of state protection for a Convention reason. The applicant therefore does not meet s.36(2)(a).

    Complementary protection

12. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal proceeded to consider the alternative criterion in s.26(2)(aa) where a person who is found not to meet the refugee criterion 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 obligation because there are 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.

13. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

14. Essentially the applicant's complementary protection claims rely on the same facts as his refugee claims. Aside from having no Convention nexus, which is not an issue in the context of s.36(2)(aa), the applicant's claims are essentially that he fears harm because he will be pursued by men hired by his former employer who are criminals to recover money he has admitted to stealing. The applicant has provided no credible evidence that he is still being pursued by criminals hired by his former employer. His evidence is that he has never personally seen them and he has not claimed that he or anyone else in his family have been harassed or threatened by these people. His evidence is that people have approached his wife asking for him and wanting money but has not claimed that his wife or other members of his family have been threatened or harmed.

15. There is no evidence that the applicant has been charged with any criminal offences or that there is a real risk that he will be considering the amount of time that has elapsed.

16. In MIAC v SZQRB, the Full Federal Court held that the “real risk’ test in the complementary protection provisions imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugees Convention definition.[1] A “real chance” in the context of refugee assessment has been interpreted by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility[2].

    [1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342] The Court was considering an international treaties obligation assessment conducted by an officer of the Department of Immigration and Citizenship which had applied a test of ‘more likely than not’ when assessing ‘real risk’. Although that assessment did not directly apply s.36(2)(aa), the issue before the Court centred on the interpretation of ‘real risk’ for the purpose of the obligations codified in that provision. See also MZYXS v MIAC [2013] FMCA 13 (Riethmuller FM, 31 January 2013).

    [2] Chan v MIEA (1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559

17. In order for a “real risk” of the harm feared by the main applicant - mistreatment by underworld figures seeking to recover money on behalf of his former employer. In the Tribunal’s view a real risk of this occurring has not been established as there is no evidence that the people pursuing the applicant are underworld figures, that they have threatened or harmed him or anyone else in his family. On the basis of the available evidence in this case, which at its highest indicates that the applicant's former employer seeks to recover money stolen by the applicant, and which he has agreed to repay, the Tribunal is not satisfied that this is sufficient to establish a real risk that the applicant will face significant harm and is in the Tribunal’s opinion remote and speculative, and not real.

18. Nor does the Tribunal accept on the evidence before it, including the independent information put to the applicant in the hearing, that the applicant will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture or to cruel or inhuman treatment or punishment or degrading treatment or punishment on the basis of his Chinese ethnicity or political opinion. While the Tribunal notes the applicant’s claims regarding discrimination against ethnic Chinese within Malaysia and the information put to the applicant in the hearing from DFAT regarding low levels of discrimination against ethnic Chinese when attempting to gain entry into the state tertiary system or the civil service, the Tribunal finds that such discrimination does not amount to significant harm as defined in s.5(1) of the Act.

19. Having regard to the available evidence the Tribunal 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 a receiving country, Malaysia, there is a real risk that he will face significant harm for the reasons claimed and he therefore does not satisfy the requirements of s.36(2)(aa).

20. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not the criterion set out in s.36(2)(a).

21. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

22. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Sophia Panagiotidis
    Member