1605180 (Refugee)

1605180 (Refugee) [2017] AATA 3061 (14 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605180
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:R Homan
DATE:14 March 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 14 March 2017 at 11:19am
CATCHWORDS
Refugee – Protection visa – Malaysia – Ethnically Chinese – Discriminated on the basis of ethnicity – Accused of farming on Forestry land – Farm bulldozed by authorities – Detained – Limited evidence of claims
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65,499
Migration Regulations 1994, Schedule 2
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 on [date] March 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who the Tribunal accepts are citizens of Malaysia, applied for the visas on [date] September 2015.
The issues in the review are whether the applicants have a well-founded fear of persecution in Malaysia; and, if not, whether 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 that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Visa application
According to information provided in their visa application, the applicants are a couple who were married in May 2005.
The first named applicant was born in Perak, Malaysia and stated that she belonged to the Chinese ethnic group and Buddhist religion. The first applicant provided details of a brother residing in Australia and parents residing in Malaysia. The applicant claimed that she had been employed as a farmer in [Area 1] in Malaysia between January 1998 and April 2015. The applicant arrived in Australia in June 2015 as the holder of a visitor visa. Prior to her arrival in Australia, the applicant travelled to [Country 1] in December 2014 and [another country] in June 2013.
The second applicant was also born in Perak in [year] and claimed to belong to the Chinese ethnic group and Buddhist religion. The second applicant provided details of parents residing in Malaysia and stated that he had also been employed as a farmer in Malaysia. The second applicant gave the same travel history as the first applicant.
Submitted with the application were certified copies of the applicants’ passports, both of which were issued to them in [2013], as well as a translated marriage register extract.
Written statement
The applicants’ claims for protection were set out in an unsigned and undated, typed statement in the English language.
According to the statement, the applicants were farmers before coming to Australia. They planted 2 acres of [crops] in greenhouses and worked with the first applicant’s brother. On [date] April 2015, an officer from the Forest Authority said that they were illegally using forest reserve land and wanted to demolish the greenhouses by force. At 1pm the next day, four bulldozers and more than 100 soldiers with guns arrived. The villagers tried to stop them but failed. Some villagers were hurt and their farms destroyed. The applicants were pushed to the ground by soldiers and kicked violently. The farm land and crops were destroyed.
The first applicant claimed that since the 1960s her father and other Chinese had been planting [crops] in [Area 1]. The farmers had been applying for land certificates for decades and had never been prohibited from planting the crops. The government regarded illegal cultivation as the main cause of a [natural disaster] at the end of 2014, and destroyed their farms. The farmers had been submitting land tax every year for decades without realising that the Forest Authority had granted approval for their land to be classified as forest reserve land. As a consequence, the Land Bureau had been collecting land tax illegally. The first applicant recalled that in July 1974, a provisional land certificate had been granted to her family but no further certificates issued after 1997.
After the farms were cleared, the applicants engaged a lawyer to seek compensation from the government but their application was disregarded by the court. Some other farmers made complaints to the Anti-Corruption Bureau but did not get any response and were instead threatened. The first applicant’s younger brother posted photos of the demolition of their farm on the Internet and criticised what he called the government’s abuse of power. This caused a stir in society and the posts were deleted. The applicants and the first applicant’s younger brother were arrested on [date] May 2015 on the grounds that they had defamed the government. They were released after three days of detention.
The applicants claimed generally that Chinese are discriminated against by the Malaysian government. The applicants claimed that their parents were living in hardship and had no income. The applicants claimed they were unable to go back to Malaysia because Chinese have no human rights and their life and property cannot be guaranteed.
Delegate’s decision
In considering the application, the delegate relied on country information and found that it did not support the applicants’ claims that they would be targeted because of their ethnicity. The delegate also found that the country information did not support the applicants’ claim that the authorities were forcing Chinese people from their land in Malaysia. The delegate was not satisfied that the applicants faced a real chance of persecution or that there was a real risk that they would suffer significant harm if returned to Malaysia.
Review application
The applicants appeared at a pre-hearing conference on 27 September 2016, at which they submitted to the Tribunal five photographs depicting [crops] growing in greenhouses as well as a field of destroyed greenhouses. Amongst the photos is one depicting the first applicant sitting in a field of demolished greenhouses apparently being interviewed. No other evidence was presented prior to the Tribunal hearing.
Tribunal hearing
The applicants appeared before the Tribunal to give evidence and present arguments on 25 November 2016. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicants’ representative did not appear at the hearing and the applicants indicated that they were happy to proceed in her absence.
The first applicant told the Tribunal that her parents and two children, [age years] and [age] years, reside in Ipoh, Malaysia. The first applicant’s parents had been living in Ipoh for about 5 or 6 years for the warmer climate and the children had been living with them since the applicants’ departure from Malaysia. The second applicant stated that his parents and two siblings were living in [Area 1].
The first applicant gave evidence that she had completed her high school education and had studied [at] college for two years. Prior to her marriage, the first applicant was employed as an [occupation] for a [business] in [Area 1]. When the Tribunal noted that the first applicant had indicated in her visa application form that she had only been employed as a farmer between 1998 and 2015, the applicant responded that she had helped her father in his farming business whenever she could during the period that she was employed as an [occupation]. The second applicant told the Tribunal that he had only ever been employed as a farmer.
The first applicant told the Tribunal that she and her husband left Malaysia because they had been doing farming for a long time and had always paid for a license. Suddenly, without notice, they were told that their farm was illegal and, on [date] April 2015, the farm was demolished. The first applicant told the Tribunal that they had been given verbal notice that they would be required to move three days earlier. The first applicant stated that they were never given any written notice and, although they had requested extra time, the request had been denied. The applicants’ greenhouses were heavy and had been dug into the ground using a machine. The crops were ready to be harvested and they did not have the means to harvest the crops or dismantle the greenhouses within the period allowed. By noon on [date] April 2015, the bulldozers had arrived. The applicants were unwilling to leave but there were around one hundred soldiers so they had no option.
The first applicant gave evidence that she and her husband had grown [crops] on 2 acres of land. The [crops] were sold according to market value, which was usually around $3.50 per box. The [crops] were sold to a middle man who exported them to [Country 1]. The second applicant would use his truck to take the [crops] to a wharf near their home where a lorry would pick them up and drop them off at a central location for export.
The Tribunal noted that the account of the demolition provided in the written statement which was submitted with the visa application differed from the oral evidence. The Tribunal noted that the written statement indicated that the applicants had received notice that their farm was illegal on [date] April and by 1pm the next day bulldozers and soldiers with guns arrived to demolish it. In contrast, the first applicant’s oral evidence had been that they were given three days’ notice before the farm was demolished on [date] April 2015. The Tribunal explained that the inconsistency caused it to question whether the evidence presented was truthful. In response, the first applicant said that she may not have looked at the statement clearly and the dates set out in it were wrong. The first applicant said that the incident had occurred some time ago. The first applicant also commented that she was not feeling very well although she clarified that she was well enough to proceed with the hearing.
The Tribunal asked the applicants how the written statement had been prepared. The first applicant responded that she told her story to her agent who wrote it out. The first applicant indicated that the agent had read the statement back to her in order for her to confirm that it was correct. Asked if she could provide any other explanation for the discrepancy in the evidence, the first applicant again commented that she hadn’t looked at the statement clearly.
The Tribunal asked the first applicant if she could provide a detailed account of what occurred on the day the farm was demolished. The first applicant gave evidence that they were unwilling to leave the farm but there was nothing that they could do because the soldiers had guns. They were threatened and sought help from the media. They hoped that their story would be told but the newspaper was worried that it would get into trouble and didn’t report the truth. They were pressured by the government not to tell the truth about the event or something adverse would happen to them.
The Tribunal asked for a more detailed account of the sequence of events occurring on the day of farm was demolished. The first applicant stated that in the early afternoon the bulldozers had not yet arrived but the soldiers were there. The applicants were begging the soldiers not to demolish the farm but they insisted. The soldiers told the applicants that they should not talk to anyone about what was happening. They were locked up for three days with the first applicant’s younger brother.
The Tribunal asked the first applicant if she could talk in more detail about what happened on the afternoon when the soldiers arrived. The first applicant said they forced them to leave. They were not allowed to stay because they had to start their work. The applicants’ family and workers were forced to leave. Some were beaten up and injured. They were not allowed to take anything.
The Tribunal asked the applicants whether they had been able to salvage any of their equipment given that they had received three days’ notice of the demolition. The applicant responded that they weren’t able to dismantle the greenhouses because they were too big. They were only able to remove the covers. The frames were all broken. The Tribunal asked the applicants whether they were hurt during the demolition. The first applicant said she was. Asked to tell the Tribunal in more detail what happened, the applicant said there was pushing and pulling, they were injured, got scratches and fell.
The Tribunal indicated that it was still having some difficulty gaining a clear understanding of the sequence of events on the day in question. The Tribunal asked the second applicant whether he was able to provide any more details. The second applicant responded that the first applicant had told the Tribunal everything.
The Tribunal put to the applicants that their evidence appeared quite brief and they seemed to be just repeating the information in the written statement. The Tribunal explained to the applicants that the more detail they could provide the easier it would be for the Tribunal to understand what happened. The Tribunal suggested that information about the sequence of events, how there came to be pushing and pulling, how they left, and what equipment they were able to take might be useful. The first applicant responded that the situation was very chaotic and there were lots of soldiers. There was no opportunity to pack thinks up.
The Tribunal asked the applicants what happened after the farm was demolished. The first applicant told the Tribunal that they went to their home which was about 20 minutes away and waited for the soldiers to finish. When they went back, they found everything was destroyed. The entire crop had been destroyed and nothing was left whole. It was like a tsunami had happened.
The first applicant told the Tribunal that they had nothing and their only source of income had been the farm. They approached a friend who worked for a newspaper and hoped that friend would let everyone know what had happened. They put something on ‘We Chat’ and hoped that people would be concerned about their situation but then they were threatened by the government.
The Tribunal asked the first applicant how they were threatened by the government. The first applicant responded that there was no freedom of speech in Malaysia and the news was censored by the government. Any news which was not favourable to the government was not allowed to be broadcast. The applicants were not willing to compromise and engaged lawyers to try to get compensation but the government would not give them a cent.
The Tribunal again asked what threat the applicants received from the government. The first applicant responded that they were threatened that they were not supposed to say these things to other people. They were locked up in gaol for a few days. The Tribunal put to the applicant that it would like some details that were not in the written statement about who threatened them, where they were threatened and what exactly happened. The first applicant responded that they went back to their farm. By chance, someone had been sent to check whether they had returned to the farm. That person said they should not make a scene. The Tribunal asked the applicant who this person was. The first applicant said they were from the Forest Authority. The first applicant could not recall exactly when this happened but said it happened a few days afterwards.
The Tribunal asked the applicants for more detail about what happened. The first applicant said that they went back to the farm to see if there was anything that could be salvaged. A person from the forest protection authority said that the land belonged to the government and they had no authority to be there. The person said that if they went there again they may be arrested or fined. The Tribunal asked the first applicant who had threatened her not to talk. The first applicant said it was the same official. The Tribunal asked the first applicant if she could explain in more detail what was said. The first applicant said that all the neighbouring lands had been affected and the neighbouring farmers had been treated the same way. They were told that if they went to the newspaper they would have bigger problems.

The Tribunal noted that the applicants had claimed to have spoken to a friend who worked in the newspaper and asked what happened. The first applicant said the friend wrote about the incident but the story was not published.
The Tribunal asked the applicants about their attempt to seek compensation. The first applicant told the Tribunal that her source of income was destroyed by the government but the lawyer said that her chance of winning the case was very low. The lawyer made an application but they never heard anything afterwards. The Tribunal asked the first applicant whether she had any documents from her lawyer or a copy of the application for compensation. The first applicant said that they did not bring any documents to Australia. After the lawyer submitted the application, the lawyer charged a fee and chased up the case but then told them the appeal was unsuccessful. The Tribunal asked the first applicant whether she had any legal documents. The first applicant said that all of her communication with the lawyer was done verbally. The Tribunal asked the first applicant whether she could contact the lawyer to obtain any documents. The first applicant said she had tried to contact the lawyer in Malaysia but she was not sure why he could not provide any documents. The first applicant said she called and asked her father to contact the lawyer to request documents. The lawyer said that because the appeal failed, he had closed the file and did not keep the documents. The Tribunal put to the applicants that lawyers in Australia and elsewhere were required to keep files for a period of time after cases were closed. If, as the first applicant had stated, their application had been unsuccessful, it seemed that an order or decision from the relevant court or Tribunal should be available. The first applicant said she had not seen any documents saying the appeal was unsuccessful. All communication with the lawyer was verbal and she trusted the lawyer to do everything.
The Tribunal asked whether the case had been finalised whilst the applicants were still in Malaysia. The first applicant said it was. The Tribunal asked the applicants whether it was correct to say that the lawyer had been engaged, an application lodged and the application finalised within two months of the incident. The first applicant responded that she engaged the lawyer, he said he would lodge the appeal and everything happened within that period. The first applicant said she believed the lawyer did the paperwork but didn’t take further steps to help her recover the money because the case was sensitive.
The Tribunal noted that the first applicant had claimed that her brother had posted images on a website and asked which website. After hesitating, the applicant said it was [Social media website 1]. Asked whether she could provide any evidence of the post, the first applicant said she might be able to access a copy on her phone if she looked on [Social media website 1]. The first applicant said a friend made a recording of the scene after the government officials left and had destroyed everything. The recording showed that the farm was transformed from its original state to a scene resembling the aftermath of a tsunami. The Tribunal sought to clarify whether the first applicant’s brother or his friend made the video. The first applicant said her brother recorded the video and her friend put it on the Internet for him.
The Tribunal noted that in the written statement the first applicant had claimed that her brother put some photos on the Internet and criticised the government’s actions and noted that this seemed to be different to what she was now saying. The first applicant said she did not understand. The Tribunal explained that the written statement said that the first applicant’s brother put some photos on the Internet whereas the applicant was now telling the Tribunal that he had made a video which a friend posted on [Social media website 1]. The first applicant responded that there were photos and videos put on the Internet at the same time but the government quickly discovered them and blocked them. The Tribunal noted that the first applicant’s earlier evidence suggested that she might still be able to access the video on [Social media website 1]. The first applicant told the Tribunal that she had not seen the images for a long time but she had seen the video on [Social media website 2], although when they tried to access the video it was blocked. Asked when she saw the video on [Social media website 2], the first applicant said it was at the end of 2015. The Tribunal asked the first applicant why, if she had seen the video on [Social media website 2] at the end of 2015, she had not provided a copy to the Department. The first applicant said she saw the image but when she clicked on it was not able to watch the video. The Tribunal asked the first applicant how she knew that it was her brother’s video. The first applicant said she could see that it was her farm and the video was in three parts, which was the same as her brother’s video. The Tribunal asked the first applicant where her brother posted the photographs. The first applicant said she could not recall.
The Tribunal noted that the applicants had claimed in their written statement that they were arrested and asked if they could say more. The first applicant said they came and arrested the three of them. They were not beaten but were threatened. They were kept in a room with poor air quality and just given bread and water. The Tribunal asked the applicants why they were arrested. The first applicant said they were arrested because they had sought the help of a journalist and the media and had put up a banner and protested against their treatment by the government. They were arrested and locked up for three days. The Tribunal asked the applicant when the protest took place. The first applicant said it was about two weeks after the farm was demolished. Asked where the protest took place, the first applicant said they protested in a street near where they lived. The first applicant said they put up banners and the three of them were acting as representatives for the other farmers. A lot of the other farmers who affected were present.
The Tribunal noted that the applicants’ written statement had not mentioned that they had attended a protest or put up banners. The first applicant said the protest only lasted 10 minutes before the police came very quickly and took them away. Asked where they were taken, the applicant said they were arrested and taken to the police station. Asked which police station, the applicant said it was near [Area 1]. The applicant said they were told not to make a big deal of things and warned that if it happened again they would be charged with obstructing the street and fined. The Tribunal asked the first applicant if she was charged with any offence, the first applicant said no. The Tribunal asked the applicants whether they were detained together. The first applicant said they were in separate rooms. The Tribunal asked the applicants whether they had any documents from the police or any record of the arrest. The first applicant said there were no documents and that they were just detained for three days.
The Tribunal asked whether the applicants had any further problems after being released from detention. The first applicant asked what kind of problems the Tribunal was talking about. The Tribunal asked the first applicant whether anything happened between the time of her release from detention and her departure from Malaysia. The applicant said that every now and then the police would come and question them. Asked what they were questioned about, the first applicant said twice after they were arrested, the police came to their home to question them. The Tribunal again asked what they were questioned about. The first applicant said they came and wanted bribery. They asked for money and warned the applicants not to say anything or else they would be arrested again. The Tribunal noted that the applicants had not mentioned being questioned or blackmailed by the police in their written statement. The first applicant said her agent had not written down her claims in detail.
The Tribunal asked the applicants why they decided to come to Australia rather than going to some other part of Malaysia. The first applicant said she did not feel she would be protected in any part of Malaysia and may be subjected to unfair treatment at any time. The Tribunal asked the first applicant what kind of unfair treatment she expected. The first applicant responded that the police in Malaysia take bribes. The first applicant said she did not want to be asked for money or bribes and did not want to be arrested without reason. In addition, they no longer had their farm. The Tribunal asked the first applicant why she thought she might be arrested again. The first applicant suggested that it might be a psychological thing but she did not feel safe.
The Tribunal explained to the applicants that it had to decide whether there was a real chance or real risk of them being seriously or significantly harmed if they were to go back to Malaysia. The Tribunal noted that the applicants no longer had their farm and 18 months had now passed. The first applicant’s parents lived in another part of Malaysia with the applicants' children and it seemed likely that was where the applicants would return. The Tribunal explained that it was having difficulty seeing how there was now a real chance or real risk of them being harmed if the applicants were to go back. The first applicant said if she were to return to Malaysia she would have to work and as they had been farmers for such a long time, the only solution was for them to return home and continue farming. If they were to return, officials may not allow them to farm.
The Tribunal put to the applicants that it seemed that if they were to return to their old farm and engage in farming, they would be engaging in illegal conduct. The first applicant said she felt that the government was not good and acted unfairly towards the Chinese. The first applicant said that the important point was that they no longer have the means to live or a clear direction or path. The Tribunal noted that the first applicant had qualifications as an [occupation] and had previously worked in that field. The first applicant responded that she had not worked as an [occupation] since her marriage more than 10 years ago. At her age, it would be difficult to find employment. The Tribunal put to the applicants that it had difficulty accepting that there was no other way for them to earn an income or subsist in Malaysia.
The Tribunal discussed with the applicants information set out in the DFAT Country Information Report on Malaysia. The information indicated that Chinese constituted the second largest ethnic group in Malaysia. Chinese Malaysians made up a high percentage of the professional and educated classes and dominated the business sector. The first applicant responded that the information contained in the report was superficial and that foreign officials could not gain an in-depth understanding of what was really going on in Malaysia. The first applicant suggested that if life was so good for Chinese Malaysians there would not be riots or protests. The Tribunal discussed with the applicants information set out in the DFAT report with regard to recent racial riots. The first applicant told the Tribunal that the Chinese do not have freedom of speech in Malaysia and did not receive fair treatment. Local universities are reserved for ethnic Malays. The Tribunal asked the first applicant whether she wished to attend university should she return to Malaysia. The first applicant said she did not as she was married with children.
The Tribunal asked the applicants how they had obtained the photographs that were submitted to the Tribunal at the case conference. The first applicant stated that her husband had taken photographs of their farm. One of the photographs showed the first applicant being interviewed by the friend who was going to publish the story in the newspaper but this did not eventuate.
The Tribunal explained to the applicants that it was still having difficulty seeing how there was now a real chance or risk of them suffering serious or significant harm. The Tribunal explained that the applicants no longer had a farm and had no documentary evidence regarding their request for compensation, arrest, or the photos or videos allegedly posted on the Internet. The applicants were able to leave Malaysia without any difficulty and the first applicant’s parents now lived in an urban area, in Ipoh. The first applicant had training and experience in a field other than farming. The Tribunal had difficulty accepting that the government would be interested in the applicants if they were to return to Malaysia. The Tribunal also had difficulty accepting that the applicants would suffer any economic difficulties that would rise to the level of serious or significant harm. The Tribunal asked the applicants whether there was anything more they wished to say in relation to the Tribunal’s concerns. The applicants indicated that there was nothing further they wished to say.
The Tribunal asked the applicants whether they had given all of their evidence or wished to have further time to submit additional evidence. The first applicant told Tribunal that she did not think they would be able to provide any relevant documents.
Findings and reasons
The Tribunal is not satisfied that the applicants have provided completely truthful evidence as to their personal circumstances or experiences in Malaysia.
The applicants’ oral evidence was vague and, at times, confused. Despite repeated prompting from the Tribunal, the oral evidence lacked contextual or circumstantial detail. The Tribunal did not form the impression that the first applicant was recalling her actual personal experiences but rather trying to recall the contents of the written statement.
There were some inconsistencies between the oral evidence presented to the Tribunal and the written statement given to the Department. For example, different evidence was given with regard to the timing of the demolition of the applicants’ farm. The written statement indicated that the applicants had received notice that their farm was illegal on [date] April 2015 and by 1pm the next day bulldozers and soldiers with guns arrived to demolish it. In contrast, the oral evidence was that they were given three days’ notice before the farm was demolished on [date] April 2015. When the inconsistency was noted by the Tribunal, the first applicant responded by suggesting that the written statement may have been incorrect. Her evidence had, however, been that she told her story to her agent who wrote it out. The agent then read the statement back to her in order to confirm that it was correct. The applicant also suggested that she was feeling unwell and it had been a long time since the events in question, suggesting instead that the oral evidence may have been unreliable. The Tribunal found these explanations to be contradictory in themselves and unconvincing.
The applicants’ written statement indicated that they were arrested on [date] May 2015 on the grounds that they had defamed the government. Contextually, the written statement implied that the arrest occurred after the first applicant’s brother had published photographs and statements critical of the government on the Internet. At hearing, however, the first applicant told the Tribunal that they were arrested after protesting in a street near where they lived. When the Tribunal noted that the applicants’ written statement had not mentioned that they had attended a protest or put up banners, the first applicant said the protest only lasted 10 minutes before the police came very quickly and took them away. Given the claim that it was in the context of a protest that the applicants were arrested, the Tribunal finds the omission from the written statement unusual.
The first applicant also raised for the first time at hearing, a claim that after their arrest, the police questioned the applicants and asked for bribes on two further occasions. When the omission of this claim from the written statement was noted, the first applicant suggested that her agent had not written everything down in detail. The Tribunal has difficulty reconciling this explanation with the first applicant’s evidence as to how the statement was prepared. The claim is also significant in that it suggests the police had an ongoing interest in the applicants up until the time of their departure. In these circumstances, the Tribunal remains troubled by the omission.
The evidence with regard to the first applicant’s brother’s posting of material critical of the Malaysian government on the Internet was also inconsistent and confused. The written statement indicated that the first applicant’s brother had posted photographs and made comments critical of the Malaysian government on the Internet. At hearing, the first applicant told the Tribunal that her brother had posted material on [Social media website 1]. Initially, the first applicant suggested she might still be able to view the posts on [Social media website 1], but later said they had been deleted. When this inconsistency in the first applicant’s evidence was put to her, she stated that she had seen the video on [Social media website 2]. When asked why she had not provided evidence of the video, the applicant then that she was unable to watch the video on [Social media website 2]. The first applicant also initially told the Tribunal that a friend had made the video which was posted on [Social media website 1] but later said her brother recorded the video and a friend put it on the Internet for him. When the Tribunal noted that the written statement had suggested that photographs, not video, were posted on the Internet, the first applicant stated that photos and videos were posted on the Internet. The applicant was unable to recall, however, where the photographs had been posted on the Internet.
Aspects of the evidence appeared to lack plausibility. The Tribunal has difficulty accepting that the applicants were able to engage a lawyer, file a case for compensation in court and have the proceedings finalised all within the two months between the demolition of the farm and their departure from Malaysia. Asked whether any paperwork might be available as evidence of the compensation case, the applicant initially suggested that all communications with the lawyer had been verbal but later suggested that the lawyer had destroyed their file. The Tribunal has great difficulty accepting that if an application for compensation had in fact been filed, and the services of a lawyer engaged, no documentary evidence, or even a letter from the lawyer confirming his appointment and the nature of the application, would be available to the applicants.
The lack of documentary evidence in support of the applicants’ claims generally is concerning. The applicants told the Tribunal that they had received no written notice that their farm was to be demolished despite having farmed the land in question for decades. No licenses, tax returns or other business documents were submitted as evidence. The applicants also claimed to have no documentary evidence of their arrest or detention or the legal proceedings in which they were engaged. Although the applicants claim to have been interviewed by newspaper, the story was never published. The applicants have not provided evidence of the publication of any material on the Internet, claiming that it has all been deleted, blocked or is no longer accessible. The applicants suggested at hearing that they were unlikely to be able to access any relevant documentary evidence and declined the Tribunal’s offer of additional time.

The only documentary evidence the applicants have provided are five photographs depicting [crops] growing in greenhouses, a field of destroyed greenhouses and the first applicant sitting in a field of demolished greenhouses apparently being interviewed. The Tribunal has placed weight on these photographs but finds they do not overcome the concerns outlined above.
Although the applicants’ claims coincide generally with country information about recent events in [Area 1], the cumulative effect of the features in the evidence described above is that the Tribunal remains unsatisfied that the applicants’ claims are true. Specifically, the Tribunal is not satisfied that the applicants were farmers in [Area 1]. The Tribunal is not satisfied that the applicants’ had a farm that was demolished. The Tribunal is not satisfied that the applicants were threatened by government officials or arrested and detained for three days. The Tribunal is not satisfied that police questioned or demanded bribes from the applicants. The Tribunal is not satisfied that the applicants engaged a lawyer to make an application for compensation for the loss of their farm. The Tribunal is not satisfied that the applicants participated in any protests or demonstrations. The Tribunal is not satisfied that the first applicant’s younger brother posted photographs, videos or comments critical of the Malaysian government on the Internet.
As a consequence of these findings, the Tribunal is not satisfied that the applicants’ claims relating to their past experiences provide any basis for finding that there is now a real chance or risk of them suffering serious or significant harm. In particular, the Tribunal is not satisfied that there is a real chance or risk that the applicants will be viewed as having criticised or opposed the Malaysian government or that they will engage in illegal farming practices should they be forced to return to Malaysia.
The Tribunal has considered the applicants’ general claims that as Chinese Malaysians they face discrimination or unfair treatment and lack human rights and freedom of speech. The Tribunal accepts as credible and relevant the information contained in the DFAT Country Information Report, dated 19 July 2017, indicating that there are no laws or constitutional provisions that directly discriminate against Chinese Malaysians. According to the report, ethnic Chinese do not generally experience discrimination or violence in their day-to-day lives. The Tribunal accepts, on the basis of the report, that the applicants may face discrimination should they attempt to gain entry to a public university or gain employment in the public service. There is no suggestion in the evidence, however, that either applicant would wish to do this.
Owing to the dominance of Chinese Malaysians in business and commerce, and in particular, the first applicant’s [qualifications] and experience, the Tribunal is not satisfied that the applicants would be unable to access employment in the private sector. The Tribunal is not satisfied on the evidence that the applicants would be denied access to any basic services, or that they would face any economic difficulties amounting to serious or significant harm.
The Tribunal is prepared to accept that there is a real chance or risk of the applicants encountering some discrimination or unfair treatment at some point in the reasonably foreseeable future as a consequence of their ethnicity, given the general state of racial relations in Malaysia. The Tribunal does not accept on the evidence before it, however, that there is a real chance or risk of them experiencing systematic or intentional treatment at a level amounting to persecution, or significant harm as defined.
For the reasons given above, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution in Malaysia. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).
As they do not satisfy the criteria for a protection visa, the applicants cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
R Homan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(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.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 3061

14 March 2017

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