1505085 (Refugee)

[2016] AATA 3063

1505085 (Refugee) [2016] AATA 3063 (5 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505085

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sean Baker

DATE:5 January 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 05 January 2016 at 3:13pm

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] September 2014 and the delegate refused to grant the visa [in] March 2015.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. 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.

4. 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).

5. 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.

6. 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’).

7. 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.

8. The issue in this case is whether the applicant’s claims are made out. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

9. The applicant provided a photocopy of her Malaysian identity card and birth certificate.

10. In her application she states she was born in Penang, Malaysia, and is [an age] year old female of the Buddhist faith. She did not indicate an ethnicity but stated that she speaks, reads and writes mandarin. The applicant’s claims are contained in her application for protection:

    ·The applicant states that she left Malaysia because she was a Buddhist. She was born in a traditional Malaysian Chinese family and their family religion was Buddhism. In 2000 she was persuaded by her friends to join Islam. They told her that if she joined she would get a lot of benefits and money every week. Later she found that there was no such thing, the Muslims just asked them to join Islam, and also she could not accept the requirements of being a Muslim. The applicant decided to quit the religion, they didn’t accept her request and sent Muslim members to detain her and force her to join the religion. She tried to beg the Muslim members but they still caught her and took her to the Muslim temple.

    ·The applicant claimed to have experienced harm and said that the Muslim members detained her in temple, for 5 days, on that time she was very scared, because she just stayed in an empty room and they only gave her water and a little food every day, just enough to survive. After the detention they still tried to push her to formally register as a Muslim member. She tried to escape but unfortunately she was caught and suffered a terrible mistreatment again. She tried to go to another city but there was no point because all of the cities have Muslims, and once they discovered her location they would catch her and take her back.

    ·The applicant claims that she was a traditional Buddhist and her behaviour would not be accepted by Muslims. She stated that after living in Australia for over 13 years she had no confidence to return to Malaysia. She claims to have lost contact with her parents and other people and to have made problems for her family. She claims that if she returns the Muslims will harm and persecute her again.

    ·She claims to fear harm from police officers, Muslim members and organisation and government authorities. She fears harm because Malaysia is a Malay country and those who decided to quit the religion were harmed and mistreated in Malaysia. Her parents and relatives were harassed and asked about her location. They will try and catch her and force her to join in to Muslim. This is what occurs in her country.

    ·The applicant does not believe that the authorities will protect her. She suffered harm and mistreatment from Muslims for a long time. She tried to report this to a police officer to get help but they did not accept her application and the police officer detained her in the police station for a few days. All the police are also Muslims and will only protect Muslims and Malaysian Chinese get treated unfairly and are second residents in Malaysia.

11. The delegate refused the application and the applicant applied for review.

12. On 18 November 2015 the Tribunal wrote to the applicant inviting her to give oral evidence and present arguments at a hearing on 7 December 2015. SMS hearing reminders were sent to her prior to the hearing and on 4 December 2015 the applicant contacted the Tribunal. She noted that she had moved to Queensland and on being told that it was her responsibility to inform the Tribunal of any change of address (as she had done for a previous change of address) she apologised. She requested an adjournment. I considered the reasons for the adjournment and decided that I would not grant an adjournment but would hold the hearing by telephone. The applicant was informed of this and provided her telephone contact details and noted she needed a Mandarin interpreter.

13. The applicant appeared before the Tribunal via telephone on 7 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

    Identity and nationality

14. The applicant claims to be a citizen of Malaysia, and has provided a Malaysian identity card and birth certificate to the Department. On the basis of this evidence and with no evidence to the contrary, I find that the applicant is a citizen of Malaysia, her country of nationality, and her receiving country. At hearing the applicant stated she did not have permission to reside in any third country and there is no evidence before me to suggest that the applicant has the right to enter and reside in any safe third country, accordingly I find that she does not have such a right.

    Credibility

15. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed.  A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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 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 her or him. 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. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. 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.

17. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

18. The Tribunal has significant concerns regarding the claims of the applicant.

    Inconsistencies in claims of detention and mistreatment

19. The applicant’s claims in her application for protection are brief, but contain significant instances of harm. At the hearing she indicated that these claims were true and that she did not wish to amend anything. She claims to have been born into a traditional Malay Chinese family and to have been a Buddhist, but in 2000 to have been persuaded by her friends to join Islam. She could not accept the requirements so she decided to quit the religion. The Muslim members did not accept this and detained her in an effort to force her to join the religion. She was detained in temple for 5 days in an empty room with only enough food and water to survive. After this detention they still tried to push her to register as a Muslim member. She tried to escape but was caught and suffered terrible mistreatment again. She tried to relocate to another city but feared she would be caught again. Her parents and relatives were harassed in an attempt to locate her. On attempting to report her mistreatment to the police, she was instead detained in the police station for a few days.

20. I asked her about these claims at the hearing. She said that she was forced to become a Muslim, and that she was born a Buddhist. I asked why she had become a Muslim and she said that they locked her in a place and forced her to believe in their religion, and after she escaped they found her and brought her back. I asked who ‘they’ were and she said they are Muslims with white hats. I asked if she knew these people and she said that they all lived in that village. I asked if she was speaking about Penang and she said she was. I asked again if she knew them and she said she did. I asked her who it was that locked her up, and she said that initially they had told her that if you become a Muslim we will pay you 300 a month. I asked her again who specifically it was that locked her up. She said it was the head of religion in their village. i asked for this person’s name and she said that they have Malay names which are long. I asked her again if she could tell me this person’s name and she said she forgot.

21. She said that they took her to an empty room and told her to look at the wall and it was Muslims but she doesn’t know who they were. I asked her when this happened. She said that it was in the 1990s, 1997 or 1996. I asked what happened after they put her in the room. She said that they gave her meals and at 2pm she needed to worship but did not know this. She said that she then broke the door and escaped but was too afraid to go home and so went to her [friend’s] place for 2-3 days. She said she then went to her family and they told her people had come for her again, her family did not know who as they spoke Malay. I asked how long she had been in the empty room and she said for about 3 months. She said that then when they caught her again and put her back, the second time was for around 7 months. I asked if she had converted to Islam at any stage and she said she had not. I asked if she knew why these people who she said she didn’t know had done this to her. She said she did not know why but there were other people there as well. When I asked her to explain this she said that she was not sure how many, there were females and males and she could hear them screaming. I asked if she was sure that this had happened in 1996 or 1997 and she said she was.

22. I asked how she had got out the second time. She said that one night they knocked down the door and managed to get out and escape with her neighbour. I asked how they had managed this and she said it was not hard to escape but whenever you escape they will find you. I asked if she had been detained any other times after this second time. she said that after this she went to Ipoh. I asked when she had gone to Ipoh and she said it was in the 1990’s, she forgot which year. I asked how long she was in Ipoh for and she said for a week but she had no money to she went back to Penang and met her family. I asked if she had stayed in Penang and she said no, she had gone to the police station. I asked what had happened then and she said that she told the police they should not treat like that but the police did not believe. She said she then realised that she could not live like that and begged her family to get out from Malaysia. I noted her date of arrival in Australia and asked if this meant she had been in Penang for 3-4 years after she came back from Ipoh. She said no, she had gone to Butterworth (in Seberang Perai). I asked how long she had been there and she said a few months, less than 2 months. I asked if she had then gone back to Penang and she said she had been working in a very rural area there. I asked how long she had been in Penang before coming to Australia and she said about 12-18 months. I asked how she had been able to remain there for that period of time and had not been caught again by the Muslim people. she said she did not go home, there was no home for her to go back to.

23. I noted to the applicant that there were a number of significant inconsistencies between her statements in her protection application and at the hearing. I noted that she had claimed she was detained in or after 2000, whereas today she had claimed this happened in 2006 or 2007. I noted that in her protection claims she had said she was persuaded by her friends, whereas today she had been unable to tell me who had detained her in any detail, nor had she identified that they were friends. She said that she had not been detained in 2000, but it was true that they captured her. I noted that she had claimed in her statement to have been detained for 5 days and today she had claimed she was detained for 3 months and then for a further 7 months. She said that she had just told this to her friend who helped her prepare the application and they wrote it. I noted that there were significant differences and I was not sure I accepted her explanations. I noted that of further concern her description of these significant events was vague and lacking in detail, despite me attempting to elicit information and detail during the hearing. For example she was unable to tell me who detained her, whether friends or others, or who the leader of the Muslim community was. Her descriptions of her detention were undetailed. I noted that these concerns led me to doubt that these things had happened to her. She said that she understood but that she did not do wrong.

24. I have considered the inconsistencies and the lack of detail and vague evidence of the applicant about these events. I accept that these are claimed to have occurred some time ago, and that as traumatic and stressful events they may be painful to recall, but I do not accept that these factors, or the inadequate explanations of the applicant, explain the inconsistencies. I do not accept that the inconsistencies can be explained by the applicant having given information to a friend who helped her to write it down. She was asked early in the hearing if everything was correct and she wished to make any changes. But more significantly, the inconsistencies are significant – the detention in particular, from 5 days to 3 months, is a significant difference in time periods and I do not accept on the evidence before me that this can be explained in the manner the applicant attempted to.

25. I find that the inconsistencies, but equally and significantly the lack of detail and vagueness of her evidence leads me to find that the applicant has not experienced these events and she has not been detained, been forcibly converted or had an attempt on her to do so, has not escaped, been detained for a further period, had her parents and relatives harassed or has had to hide or relocate to avoid the her feared harm. I find that the applicant has manufactured these claims.

    Delay

26. The applicant said that she had arrived in Australia in September 2001 or 2002. She said she had travelled to Australia on a tourist visa valid for 3 months. I asked what she had done when the visa ceased. She said she was too concerned to go back, she just looked around and worked. I asked if this had been in Victoria or Queensland and she said she had been in Queensland for a few years. I noted she had arrived in Australia more than 10 years ago and asked why she had waited until 2014 to apply for protection. She said she was worried to be caught by the Department and also to work, but if she did not work she did not have money to eat and this is why she applied in September 2014. When later in the hearing I again raised my concern with her delay in applying for protection she claimed that she had no knowledge earlier that she could apply for protection. I noted to her that I understood that information on protection was readily available in a range of community languages including Mandarin, she said she was shaking at the thought of having to go back.

27. I have considered the applicant’s explanations for her considerable delay in applying for protection, but I find them unconvincing. She has claimed to have been detained by Muslims who wished to forcibly convert her to Islam, and to have been detained at a police station. The applicant was clearly aware that the visa she travelled to Australia on had ceased three months after arrival. She claims to have departed for Australia because she could no longer remain in Malaysia. If these claims are true, I do not accept that the applicant could not have taken steps to find information, which is provided in her language, about seeking protection. I do not accept that she did not know, or that, not knowing, she could not have sought information from others in the more than 10 years between her visitor visa ceasing and her applying for protection. I find that the delay in this case is unexplained by the applicant’s reasons. I find that the delay indicates to me that the applicant did not, and does not, fear return to Malaysia for the reasons she claims, because if she did then she would, I consider, have lodged an application for protection earlier than she did. When I consider this with my other concerns above this leads me to doubt the applicant’s credibility.

    Will the applicant be harmed on return?

1. On the basis of my findings above, I do not accept that the applicant was persuaded by her friends, or by Muslim members to join Islam. I do not accept that she could not accept the requirements of the religion and decided to quit the religion but was not allowed to. I do not accept that she was detained in temple or anywhere else by friends or Muslim members or the leader of the Muslim community or anyone else. I do not accept that she was able to escape but was then recaptured and returned to the temple for a further period. I do not accept that at any time she was pushed to formally register as a Muslim member. I do not accept that she suffered a terrible mistreatment. I do not accept that the Muslim members or anyone else has come to her house at any stage, either while she was in Malaysia or in the period she has spent in Australia. I do not accept that anyone has harassed her family in an attempt to find her or for any other reason claimed.

2. The applicant claimed in her protection application that she was detained by the police in the police station for a few days. At hearing, despite me asking her repeatedly how the police had treated her she claimed she had complained to them about her detention by the Muslim members and they had not believed her. On asking why she claimed to fear the authorities she said because they speak Malay and she cannot understand, and the do not protect Malay Chinese. Her claim about this is general and undetailed in her protection application. I do not accept that the applicant was detained by the police in the police station at any stage.

3. I asked the applicant at hearing if she had suffered any other harm in Malaysia and she said she had not. I asked what she feared on return and she said these people had come looking for her some 2-3 years after she had come to Australia. She was unable to explain how she knew they were the same people, how her mother would have known, saying only that her mother does not understand Malaysian. For reason of my findings above I do not accept that these people came looking for her 2-3 years after she had come to Australia.

4. I asked who would harm her and she said she was not sure. She said that it was easy for them to recognise her as her face is half-female, half-male. I asked what she meant about this and she said she is female but looks male. I asked why this would make her easy to be recognised and she did not answer directly but said that she grew up in that city and really did not know what they want her to do. I do not accept that she will be recognised because she is female and looks male. I do not accept on the evidence before me that she will face any harm because she claims she looks male. I do not accept that this would make her easy to recognise, nor that she has explained who would recognise her.

5. I asked about her claims in her application form that she feared harm from police officers. She did not mention the claimed detention at the police station, but instead said this was because she reported to the police but was ignored. She said this is different to being harmed, it was because they don’t help Chinese. I asked about her claim to fear harm from Muslim members and Muslim organisation and she said that because she was locked for too long she was afraid of them. I asked about her claimed fear of harm from government authorities and she said that government authorities speak Malay and she cannot understand, the authorities do not protect Malay Chinese. I do not accept that the applicant fears harm from any of these people or organisations for the reasons she claims. I do not accept that she reported these events to the police but was ignored as I have found these events did not occur. As I do not accept that she was locked or detained by her friends, Muslim members or Muslim organisation I do not accept she fears harm from these people or groups for this reason. I accept that the Malay authorities speak Malay, and that she does not, but on the information before me I do not accept that this leads to any chance of harm to the applicant. I do not accept, on the evidence before me, that the authorities do not protect Malay Chinese. I have discussed this in more detail below.

6. Whilst I accept that the applicant may have spent some time in Ipoh and in Butterworth, I do not accept that this was for the reasons she claims, because she was trying to hide from anyone or relocate to avoid the claimed harm.

7. I accept that the applicant is Chinese Malaysian, and comes from a Chinese Malay family. I accept that she speaks Mandarin and am willing to accept that she may not speak much Malaysian. I accept that the applicant is a Buddhist.

8. At hearing I discussed with the applicant country information about the situation for Chinese Malaysians and Buddhists. I note that ethnic Chinese are a significant minority, comprising 24.6 percent of the Malaysian population, and Buddhists make up 19.8 percent.[1]

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

9. The situation for Chinese Malaysians is sufficiently set out in the relevant DFAT report:

   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.[2]

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

10. I have considered the applicant’s claims to face harm, discrimination and harassment as a Chinese Malaysian, but I do not accept these claims on the basis of the country information before me. I give greater weight to the assessment of DFAT. Whilst I accept that the applicant may face some low level discrimination and barriers to the state tertiary system or the civil service she has not expressed any desire to enter these areas, nor do I assess that such barriers reach the level of serious or significant harm in the case of the applicant. I accept that she may have encountered, and may encounter, some difficulties dealing with officialdom if she does not speak Malay, but she has not claimed, and I do not accept, that this reaches the level of serious or significant harm. I do not accept, on the basis of the DFAT assessment, her claim that the authorities do not protect Chinese Malaysians.

11. I discussed with her the situation for Buddhists as set out in the DFAT report:

    3.36 Buddhists represent 19.8 per cent and Hindus represent 6.3 per cent of the total population of Malaysia.

    3.37 Hindus and Buddhists have faced compulsory acquisition of places of worship and some community backlash in response to relocated temples. Fifty Muslim residents protested the relocation of a Hindu temple into their residential area by placing a severed cow’s head at the front gate of the Selangor State Government office in 2009. A mixed Buddhist/Taoist temple and a Hindu temple near Bandar Puteri Jaya were compulsorily acquired by the state government on 16 March 2013.

    3.38 Federal and state governments have supported the building of Hindu or Buddhist places of worship throughout Malaysia. Prime Minister Najib allocated RM 2 million (approximately AUD 660,533) for the building of a new Hindu complex in Selangor on 7 February 2013. There are a number of Hindu and Buddhist advocacy organisations in Malaysia, including the Hindu Rights Action Force (HINDRAF), an umbrella organisation of NGOs focused on addressing ethnic Indian concerns.

    3.39 Overall, DFAT assesses that Buddhists and Hindus are normally able to practice their religion without interference and do not face discrimination on a day-to-day basis in Malaysia.[3]

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

12. On the basis of this assessment, I do not accept that the applicant will not be able to practice as a Buddhist on return. Given my findings above and this finding, I do not accept that anyone will try and catch her and force her to become a Muslim as this is what occurs in her country. On the country information I do not accept that her behaviour as a traditional Buddhist would not be accepted by Muslims.

13. I accept that the applicant may have lost contact with relatives and other people, but I do not accept that this leads to any chance of harm. I accept that the applicant has been in Australia for a considerable period of time. She claims to fear harm because she is getting old. I do not accept on the evidence before me and my findings above that the applicant will be harmed for any reason because she is getting old.

14. On the basis of my findings above, I do not accept that the applicant faces harm for the reasons claimed or any other reasons from Muslim members, her friends, Muslim organisation, the leader of the Muslim community in her village, the police, government authorities or anyone else if she returns to her home in Malaysia, now or in the reasonably foreseeable future.

15. I have considered the claims of the applicant that I do accept. I do not accept, on the evidence before me, that the applicant faces a real chance of harm for any of these reasons, or cumulatively.

16. Having considered the applicant's claims, individually and cumulatively, I find that there is no real chance that the applicant will face persecution for any Convention reason or reasons if she returns to Malaysia now or in the reasonably foreseeable future. I find that the applicant does not have a well-founded fear of persecution for any of the reasons claimed or any other reasons. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations because the person is a refugee as defined in the Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

17. The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether it 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 the applicant will suffer significant harm.

18. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from Muslim members, her friends, Muslim organisation, the leader of the Muslim community in her village, the police, government authorities or anyone else if she returns to her home in Malaysia, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that 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. It follows that 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 Malaysia, there is a real risk that the applicant will suffer significant harm.

19. 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 satisfy the criterion set out in s.36(2)(a).

20. 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).

21. 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

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

    Sean Baker
    Member