1601793 (Refugee)
[2016] AATA 4894
•25 June 2016
1601793 (Refugee) [2016] AATA 4894 (25 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1601793
COUNTRY OF REFERENCE: Malaysia
MEMBER:Robert Titterton
DATE:25 June 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 25 June 2016 at 4:25pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Complementary protection grounds – Federal Circuit Court remittal – Ethnicity – Chinese – Discrimination from Muslims – Not significant harm – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 36, 65, 48A, 499
Migration Regulations 1994, Schedule 2
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 claims to be a citizen of Malaysia. Relevantly, he applied for the protection visa on 12 May 2014. He was invited to attend a hearing to be held on 5 December 2014. He did not attend the hearing. The delegate refused to grant the protection visa.
The applicant sought a review of that decision. He was invited to attend a hearing to be held on 10 November 20105. He responded to that invitation, indicating that he would be attending. However, he did not appear on the day of the hearing.
On 11 November 2015, the Tribunal (as presently constituted) published its decision to affirm the delegate’s decision not to grant the applicant a protection visa.
Subsequently, the applicant appealed to the Federal Circuit Court. [In] February 2016, the court allowed the applicant’s appeal and remitted the matter to the Tribunal. The Tribunal as originally constituted was again constituted to hear the applicant’s application for review of the delegate’s decision.
The hearing was conducted on 15 June 2016. The applicant appeared before the Tribunal and gave evidence and presented arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
RELEVANT LAW
7.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. 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.
(1)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 [a certain] level at [a] School. He held a Malaysian passport which was issued [in] 2012 and expired five years later. For details of his claim for protection the reader is referred to “my statement”.
(2)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 coffee 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 coffee and cheap coffee beans. Because of this customers started to leave and the coffee 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”.
The applicant appeared at the hearing. What follows is a summary of his evidence and the discussion between the applicant and the Tribunal.
The applicant confirmed that his statement was true and correct. A friend prepared it, but he told his friend what had happened.
The application was lodged on 14 May 2015. He did not attend at interview with the delegate because he was scared. He then appealed to the Tribunal. He did not attend that hearing either. He told the Tribunal that he made a mistake about the hearing date.
The applicant confirmed that he was born in [date]. He is [age] years old. He was born in Malaysia, and lived his whole life there until he came to Australia. He lived in Ipoh, Perak.[1]
[1] Country information suggests that Ipoh is one of Malaysia's largest cities. It is the fourth largest city in Malaysia. As of 2010, it has a population of 757,892. It ranks as the seventh most populous urban centre in Malaysia (2010).
His family is not religious. They do not identify as part of any religion. The family is Chinese Malaysian. He speaks Mandarin, a little Malay, and a some English.
He attended school until the age of around [age]. He has three siblings, two brothers, one sister. He is [details deleted]. One sister and one brother are still living in Malaysia, in Ipoh. The other brother lives in [Australia]. He lives with the applicant, and is [age] years of age. He is a student and studying English. His student visa is valid for about three years.
The applicant said that in Australia he does [a certain type of] work, working for various people. He works in [a certain industry].
His parents are still alive. They are not presently working.
When the applicant left school he started working with his parents in their coffee shop. The parents had established the shop when he started high school. Before this, his father worked [doing another job], and his mother worked [in another job]. They were not a rich family. Prior to working fulltime in the coffee shop, he had not worked at all.
The applicant’s [brother] had a similar experience, although he attended high school for [a number of] years. He too worked in the coffee shop. The applicant agreed that it was very much a family business. He worked there for three to four years, his duties included waiting on tables. In December 2007 he went to [Country 1] to look for work. The coffee shop was having problems. Originally the coffee shop was going well, but coffee shops opened, run by Muslims, and when they saw your business was going well, they started spreading rumours about dirty coffee, and trade dropped off. Some of his friends heard the rumours and told the family. Eventually, the applicant went to [Country 1] to look for work. He wanted to help his family. He received his passport [in] 2007, and travelled to [Country 1] the following day. He chose [Country 1] because there are not too many Muslims, and jobs were stable. He was not able to get a job. Eventually he rang his parents and told him where he was. They told him to come home, that he was too young. He returned to Malaysia on 5 January 2008.
He confirmed that he travelled to [Country 1] because the coffee shop business was going badly, and to help his family financially. On his return, he worked again in the coffee shop.
He returned to [Country 1] on 3 May 2008 to have a break. He remained for two days. He had already decided to go Australia. He travelled to Australia on 14 May 2008. The business in the coffee shop was continuing to go badly, and was about to be closed as they had no customers at all. He chose Australia because his friends said that wages were high and stable. His experience has been that he has been able to find work when he was permitted to work. The applicant now supports his [brother] who arrived in October 2015. They live together [in] a house they share with others.
The Tribunal suggested that it appeared that the main reason that he came to Australia was to find work to support his family. The applicant agreed.
The Tribunal asked him if there were any other reasons why he left. He said that when he was young he was bullied by Muslims. This was in primary school. He had occasional problems at high school and when he was working in the coffee shop. He would be asked for money, and got beaten up when he did not give them money. The applicant said that this happened many times. He never went to the police to report them, because he was scared of repercussions. He said that this also happened to his two brothers.
The Tribunal asked if it was the same people, or different people who threatened him. He said that they were Muslims from nearby villages of about his own age. The applicant said that the last time that he was threatened was when he was [age] or [age].
The applicant arrived in Australia on a visitors visa, which was valid for three months to 14 August 2008. He did not lodge any further visa application until 25 February 2010 when he applied for a protection visa. The Tribunal asked why he did not do anything about his immigration status. He said that he was scared of being arrested. He looked through newspapers, and went to [another city] to pick fruit. He was scared, and did not go to a migration agent or lawyer for advice. He applied for a protection visa in February 2010 because he was having problems getting a job. He said that he applied for a protection visa because other people told him that the Australian Government granted protection visas and would then protect people.
The Tribunal asked the applicant to explain why he needed protection. The applicant said “because I am no longer young, and the two old people at home they lost their jobs, and the dependent [siblings]; my younger brother I still young”.This matter was further discussed. The Tribunal indicated that it understood the applicant’s financial concerns, but asked again what it was the applicant needed protection from. It was this point the applicant said that if he returned to Malaysia “those Muslims will bully me again”.
The Tribunal suggested to the applicant that he had not been bullied since about 2004, when he was [age]or [age], and asked why he would bullied now if he returned. He said that that when the family had the coffee shop the Mulims used to bully him. The Tribunal explained that, since there was no longer a coffee shop, he would not be bullied for that reason. The Tribunal reminded the applicant that he had told it that the bulling had stopped about four years before he left Malaysia. The applicant said that this was because he stayed in the coffee shop. The Tribunal suggested to him that he must have had left the coffee shop from time to time. The applicant did not agree, and said that he slept on a camp bed inside the coffee shop. The Tribunal said that, even so, and assuming that that was correct, why would he be bullied if he returned now. The applicant said that he “had the feeling” that Muslims in Malaysia liked to bully Chinese Malaysians, that it was a form of discrimination. He said that if you watched the news in Malaysia you would see that Muslims rob Chinese girls.
The Tribunal asked the applicant what form this bullying would take. He said that the Muslims would ask for money, and possibly beat him up. The Tribunal asked him if he would be killed. The applicant replied that on one occasion when he had been threatened he was told that if he told the police, “his life would not be easy”. The Tribunal notes that, even giving the applicant the benefit of the doubt, and finding that this was a form of death threat, this threat was made no later than 2004, that is 12 years ago. The Tribunal asked the applicant the question again. He said that since he had been in a straight eight years would not know, but he expected it would face the same situation again.
The Tribunal then asked the applicant if he thought he might be tortured. The applicant did not think so.
Finally, the Tribunal discussed two more matters with the applicant. The first was the issue of relocation. As noted, the applicant’s family still lived in Ipoh. If he returned to Malaysia he would live with them. He did not consider that he would be safe in another part of Malaysia, or would be protected by the police. He said the police would ignore him because he was Chinese.
The final matter was the relevant parts of the DFAT Country Report for Malaysia dated 3 December 2014 with the applicant. The Tribunal noted that par [2.17] of the Country Report stated that the threat of crime and terrorism in Malaysia is relatively low and the security situation is generally stable. Protests and demonstrations occur from time to time but are not frequent.
The Tribunal noted that the Country Report also stated[2] that about 70% of the population were Malay, and 25% were ethnic Chinese, that Islam was the official religion and Muslims represented 61.3% of the population.
[2] Par [2.19]
The Tribunal noted that the Country Report[3] also stated that Malays hold a majority of the positions in politics, and that ethnic Chinese have traditionally dominated the private economy.
[3] Par [3.1]
The Tribunal noted that the Country Report[4] also stated that Malaysian Chinese constituted one of the largest overseas Chinese communities in the world, were the second largest ethnic group in Malaysia, and that there are no laws or constitutional provisions that directly discriminate against ethnic Chinese in Malaysia. The Tribunal asked the applicant if he accepted this information. He said that he did.
[4] Par [3.5]
The Tribunal then noted that the report also stated that Malaysian Chinese make up a high percentage of the professional and educated class and dominate business and commerce sectors, that generally Malaysian Chinese generally have no problems in accessing public primary or high school education, but that university admissions remain heavily biased towards ethnic Malays.
Then Tribunal then read to the applicant what it described as an important paragraph:
3.9[The Department of Foreign Affairs and Trade] 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 Tribunal explained to the applicant that it had to take this information into account, that it did not have to follow it, but that it had to take it into account. The Tribunal asked him if he would like to say anything about this information. The applicant said that he did not know what to say.
At the conclusion of the hearing the Tribunal asked the applicant if there was any other matter he wished to put forward for the Tribunal to take into consideration in assessing his claim for protection. The applicant said there was not.
The Tribunal reminded the applicant that it had said at the commencement of the hearing that relevant legal test was whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk he would suffer significant harm.
The Tribunal indicated that it had concerns that the real risk reason the applicant was seeking protection was that he wanted to stay in Australia to work so as to support his family. The Tribunal indicated that he understood his motives in doing so. The Tribunal was concerned that it did not appear that the applicant was staying in Australia because he believed that he would suffer significant harm when he returned to Malaysia after being in Australia for eight years. The Tribunal told the applicant that it was raising these concerns so that he had every opportunity to put any further matters to the Tribunal that it wished the Tribunal to consider. The Tribunal indicated that even if he were threatened by Muslims if he returned to Malaysia, given that he was an older person now, the Tribunal suggested that he would go to the police. The applicant said that he would be threatened by Muslims if he returned, and even if he did go to the police, the police would ignore him. The Tribunal noted that it understood that this is what the applicant thought, but there was no information before it to accept that suggestion given the matters stated in the Country Report.
CONSIDERATION
Is the applicant a citizen of Malaysia
The Tribunal sighted the applicant’s original passport issued by the Government of Malaysia [in] 2011. Accordingly the Tribunal is satisfied that the applicant is a citizen of Malaysia. The Tribunal finds that Malaysia is the receiving country for the purpose of assessing 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?
As the Tribunal noted in the Tribunal’s first decision:
(1)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.
(2)The test under s 36(2)(aa) is a forward-looking one of reasonable foreseeability.[5]
(3)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.[6] A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility.
(4)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.[7]
(5)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.
(6)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.
[5] In WZASD v MIBP [2013] FCCA 1940 ; SZTQP v MIBP [2015] FCCA 423.
[6] 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.
[7] Chan v MIEA (1989) 169 CLR 379.
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 Tribunal considered that the applicant’s evidence was broadly consistent with what appeared in his undated statement. Broadly speaking, the Tribunal considered that the applicant attempted to give his evidence honestly. The Tribunal makes the following findings.
The applicant was born [date] in Sitiawan, Prak Province, Malaysia.
He was educated to [a certain] level at [a] School.
He held a Malaysian passport which was issued [in] 2012 and expired five years later.
The applicant’s parents used to own a coffee shop in which he worked.
The applicant came to Australia to assist his family financially.
The applicant perceives that he was discriminated against on the grounds of his Chinese ethnicity.
The applicant has not suffered significant harm (as defined) in Malaysia, for any reason, including at the hands of “Muslims”, or any other persons, because he was a Chinese Malaysian and his parents owned and operated a coffee shop, nor will he be in the future. The last occasion that the applicant suffered what he described as bullying was when he was [age] or [age], that is about 12 years ago.
The harm the applicant fears does not appear to be, and is not in fact claimed to be, harm amounting to “significant harm”, as defined in the 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 Tribunal does not accept or find that the harm feared by the applicant if he returns to Malaysia amounts to significant harm of that kind.
This conclusion is supported by the DFAT Country Report for Malaysia dated 3 December 2014, which the Tribunal must take into account, does not support his claims, in so far as they are based on being a Christian, and that puts him at risk of being harmed by Muslims. That report relevantly 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.
Given these factual findings, the Tribunal does not consider 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 he will suffer significant harm.
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 36(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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