1500358 (Refugee)
[2015] AATA 3979
•11 November 2015
1500358 (Refugee) [2015] AATA 3979 (11 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1500358
COUNTRY OF REFERENCE: Malaysia
MEMBER:Robert Titterton
DATE:11 November 2015
PLACE OF DECISION: Sydney
DECISION: The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 11 November 2015 at 9:39am
CATCHWORDS
Refugee – Protection visa – Malaysia – Ethnicity – Chinese – Religion – Christian – Forced closure of applicant’s shop – Suffered discrimination by neighbours – Credibility issues – Form of discrimination not identified – Evidence superficial and lacks detail – Decision under review affirmed
Practice and procedure – Further application on complementary protection grounds
LEGISLATION
Migration Act 1958 (Cth), ss 36, 48A, 65, 499
CASES
Chan v MIEA (1989) 169 CLR 379
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71
SZTQP v MIBP [2015] FCCA 423.
WZASD v MIBP [2013] FCCA 1940
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
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).
The applicant who claims to be a citizen of Malaysia applied for the visa on 12 May 2014 and the delegate refused to grant the visa on 5 December 2014.
The applicant was invited to attend a hearing to be held on 10 November 2010. He responded to that invitation, indicating that he would be attending. However, he did not appear on the day of the hearing. No request for an adjournment was made.
CONSIDERATION OF CLAIMS AND EVIDENCE
4.Section 48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. In SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 the Full Court of the Federal Court of Australia determined that s 48A does not prevent a person from making another application for a protection visa on complementary protection grounds where the first application was made (and refused) before the commencement of the complementary protection provisions of the Act on 24 March 2012. The applicant had previously made an application for protection on 25 February 2010. This was refused on 30 March 2010. On 30 March 2010 the Tribunal (differently constituted) affirmed the Department’s decision. Accordingly, the applicant was not prevented by the decision of SZGIZ from lodging his current application for protection. Therefore, his application will be considered only on complementary protection grounds.
The issue in this case is whether 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: s.36(2)(aa) of the Act.
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.
THE APPLICANT’S EVIDENCE
The evidence before the Tribunal included the following.
First, the applicant’s application for protection dated 12 May 2014. The application states that the applicant was born [date] in Sitiawan, Prak Province, Malaysia. He was educated to Middle School level at [School 1]. He held a Malaysian passport which was issued on [date] 2012 and expired five years later. For details of his claim for protection the reader is referred to “my statement”.
Secondly, the applicant’s statement. The statement is undated. Relevantly it states he suffered racial discrimination and persecution in Malaysia since he was born. He says that he experienced discrimination from neighbours. His parents owned a [shop] in which he worked. It was close to a Muslim residential area. He says that Muslim neighbour shops were unhappy and jealous at the success of his work. He says local Muslims regarded him “as evil”, and rumours were spread that they used bad quality [products] and cheap [produce]. Because of this customers started to leave and the [shop] had to be closed. He also says he has been blackmailed and threatened a number of times. He says that “being as a honest Chinese in this multiple ethnic society, I felt lonely in heart and depressed”.
That is the totality of the evidence before the Tribunal.
The applicant was invited to attend an interview with the Department, to be held on 5 December 2014. The delegate found that the degree of harm feared by the applicant did not amount to persecution, and was not satisfied that Australia owed him protection obligations. Nor was the delegate satisfied that Australia had protection obligations to the applicant under the complementary protection criteria.
CONSIDERATION
Is the applicant a citizen of Malaysia
The Tribunal is satisfied that the applicant is a citizen of Malaysia. Accordingly, the Tribunal finds that Malaysia is the receiving country for the purpose of his complementary protection claims.
Does the applicant have the right to enter and reside in any other country?
There is nothing in the evidence to suggest that the applicant has a right to enter or reside in any other country other than Malaysia. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by s.36(3) of the Act as the Tribunal has found that he is a citizen of Malaysia.
Are there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk the applicant will suffer significant harm?
To paraphrase the Tribunal’s Guide to Refugee Law in Australia, the assessment of the level of risk which must be established to meet the criterion in s 36(2)(aa) is made up of three components: the Minister (or the Tribunal on review) must have substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen being removed from Australia, there is a real risk that the non-citizen will suffer significant harm.
The test under s 36(2)(aa) is a forward-looking one of reasonable foreseeability.[1]
[1] In WZASD v MIBP [2013] FCCA 1940 ; SZTQP v MIBP [2015] FCCA 423.
The threshold for the ‘real risk’ element in the complementary protection criterion in s 36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a). A fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted.[2] A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility.
[2] Chan v MIEA (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9.
The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[3]
[3] Chan v MIEA (1989) 169 CLR 379.
The requirement in s 36(2)(aa) that there be both ‘substantial grounds’ and ‘a real risk’ suggests that ‘substantial grounds’ imposes an evidentiary standard, and ‘real risk’ an assessment of the probability of the applicant suffering significant harm.
The criterion in s 36(2)(aa) also requires that the risk of harm be a ‘necessary and foreseeable consequence’ of the removal of the applicant from Australia to the receiving country.
Finally, the Tribunal notes that significant harm is defined in s 36(2A) of the Act in the following terms:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
Findings
The evidence in the applicant’s statement is generalised, superficial and lacks corroborative detail. To take two examples, the applicant claims to have suffered discrimination from neighbours, but he does not identify what the form of that discrimination was, why it was undertaken, that is to say, he does not say if he was discriminated against because he is a Chinese Malaysian, because he is a Christian, because he was a successful business man of if it as for some other (and unstated). He also says that he was blackmailed and threatened, but he provides not details such as who threatened or blackmailed him, when this occurred or why this occurred.
Given the evidence before the Tribunal the Tribunal considers that the only findings it can make are as follows.
The applicant was born [date]in Sitiawan, Prak Province, Malaysia.
He was educated to Middle School level at [School 1].
He held a Malaysian passport which was issued on [date] 2012 and expired five years later.
The applciant’s parents used to own a [shop].
The applicant perceives that he was discriminated against on the grounds of his Chinese ethnicity.
Given those findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm: s 36(2)(aa), or that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal has come to this view for the following reasons.
First, the harm the applicant fears does not appear to be, and is not claimed to be, harm amounting to “significant harm”, as defined in the Migration Act and set out above. The closest criteria the evidence potentially addresses are the “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” components of the definition, but the generalised, superficial and unexplained nature of the evidence in the statement does not allow this conclusion.
Secondly, the applicant has not referred to any country information to support his claims.
Thirdly, the DFAT Country Report for Malaysia dated 3 December 2014, which the Tribunal must take into account, does not support his claims. That report states:
Chinese Malaysians
3.5 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.
3.6 Malaysian Chinese make up a high percentage of the professional and educated class and dominate business and commerce sectors. The majority of ethnic Chinese are concentrated in the west coast states of Peninsula Malaysia with significant percentages (30 per cent and above) living in the large urban centres, including Kuala Lumpur, Penang, Johor, Perak and Selangor.
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. Malaysia’s matriculation programs favour bumiputera students applying for entrance to state universities. 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.
3.9 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.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations s 39(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
R. C. Titterton
Member
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