1616299 (Refugee)

1616299 (Refugee) [2017] AATA 2142 (1 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616299
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Paul Windsor
DATE:1 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 November 2017 at 9:35am
CATCHWORDS
Refugee – Protection visa – Malaysia – Ethnicity – Malaysia-Chinese – Racial discrimination – Attacked by Malay gangsters – Harassed at school– Denied public scholarship – No well-founded fear of persecution’
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J(1)(a)-(b), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A), 36(2B), 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 [in] September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] 17 June 2016. The delegate refused to grant the visa finding that, while she accepted he may have been denied a scholarship due to preference given to ethnic-Malays, on the basis of the available information and country information indicating that Chinese Malaysians do not experience discrimination on a day to day basis, the delegate was not satisfied that the applicant has a well-founded fear of persecution in Malaysia because of his race. The delegate also was not satisfied that there is a real risk that the applicant would suffer significant harm if he was to return to Malaysia.
The applicant applied to the Tribunal for review of this decision on 4 October 2016.
The applicant appeared before the Tribunal on 4 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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
In his Protection visa application[1] the applicant claims to be a citizen of Malaysia who was born in Perak state, Malaysia on [date]. He states that he belongs to the Chinese ethnic group, and speaks, reads and writes Mandarin. He did not nominate a religion. The applicant indicated that he has never married or been in a de facto relationship. He stated he departed Malaysia [in] May 2016 and arrived in Australia [in] May 2016, entering on a Visitor visa.
[1] See folios 15-39 of Department file [number].
Claims from the Protection visa application
The applicant’s claims from his Protection visa application[2] are summarised as follows:
·When he was in secondary school he suffered racial discrimination and violence. He was attacked by the Malay students because of his Chinese racial background.
·The school refused his scholarship because he is not a Malay. The Malay students are gangsters and they pushed him into the corner and started to beat him up.
·If he returned he would be caught and hurt by the Malay gangsters as they pass by his home every day. They always tried to block his way. They used an iron bar and other weapons which caused serious injuries. They harmed him simply because of his Chinese racial background.
·He did not seek help as he is too young and too scared of them. They threatened to kill him if he went to the police.
·He tried to move to his friend’s home in Ipoh but they found him. He does not have the financial resources to relocate to other parts of Malaysia.
·Because he is Chinese the government would not protect him.
[2] See folios 17-20 of Department file [number].
Evidence from the hearing of 4 October 2017
At the hearing, while the applicant indicated that everything in his protection visa application was true and correct as far as he knew and believed, he said he would like to provide supplementary information. The applicant also indicated that he paid a student $[amount] to translate and prepare the application for him. As indicated at question 101 of the application, he confirmed that his written statement was read back to him in his own language.
In relation to the supplementary information, the applicant commented that he had stated he was harmed and wished to explain how that came about. The applicant said that when he was studying in high school the teacher hit him. He said he was very upset by this and went with a classmate to talk to the principal and lodge a complaint against the teacher. When they did not get any response they went to a government department to complain about the school and the teacher and the principal. He commented that his complaint was broadcast in the media: on the TV news and on the internet.
The applicant said that the teacher concerned had a male relative who was a student at the school and this student and a group of ethnic Malay students hit him. He said this is the incident that he has referred to in his written claims. The applicant said he thought that would be the end of the matter but it wasn’t. He indicated that these male students stalked him and followed him every day.
The applicant said that he had a friend who rode a motorcycle who picked him up to go to school. He said the motorcycle was bumped by a car driven by a friend of the Malay student and he suffered an injury [when] he fell from the motorcycle. He said he had internal injuries as well and was also hit on the right shoulder with a spanner. The applicant said that when they were hitting him they said they hit him more severely because he is Chinese.
When queried, the applicant said the incident with the teacher occurred in 2011 during a class when he and another student continued talking to each other after the teacher asked all students to keep quiet. He said the media coverage of their complaint occurred two days after the incident and he was beaten up about 2-3 days after the teacher hit him. He showed the Tribunal a news item on his mobile phone dated [July] 2011 regarding the incident with the teacher.
Noting that this incident was in [2011] and the applicant continued with and completed his secondary schooling in 2015 the Tribunal asked the applicant how he could continue his schooling at that school for another four years. He replied that he had no choice as he could not change schools because his academic results were not good and after he was assaulted his attendance rate was quite low. The Tribunal also asked the applicant why he thought he would face any problems if he returned to Malaysia now. He commented that if he continued to be hit like he was in the past he would die.
The Tribunal asked the applicant when he last had an incident with these people. He said he was not sure whether it was the last time he had trouble but he recalls an incident when he was in Form [number] where they attempted to hit him but failed because there were a lot of other people present. When the Tribunal put to the applicant that if the last incident he can recall was the incident he described when he was in Form [number] at school it did not sound like these people were actively trying to harm him. He replied that he was frequently subjected to harassment and that almost every day in the school compound they would chase him and hit him. The Tribunal again queried the applicant if that was the case why he remained at the school. He reiterated that he had no choice. The Tribunal commented that he had not indicated there had been any incidents since he left school at the end of 2015 until he departed Malaysia to come to Australia in April 2016. The applicant replied that in 2016 one of the male Malay students said to him ‘do you miss your old school days, do you want the same thing to happen?’
The Tribunal asked the applicant if he ever went to the police. He said he did but he did not have the police report. The Tribunal queried the applicant why his application states that he did not seek help within Malaysia, noting that he stated that he was too young and too scared of ‘them’ and was threatened that he would be killed if he went to the police. The applicant did not answer this question initially and when pressed regarding why there were these differences in his accounts he indicated he did not know why. He said that they did report to the police. The applicant commented that he may be able to find the police report.
The Tribunal also queried the applicant that the news item he showed the Tribunal on his mobile phone included a picture of the [complainants]. The Tribunal asked the applicant why he could not use that support from the ruling party to get the police to protect him. He replied that it was futile as this party was a Chinese party and the police try to stall complaints from Chinese and give priority to complaints from ethnic Malays first.
The Tribunal asked the applicant if he could provide the Tribunal with a full copy of the press report he showed the Tribunal on his phone and gave him until close of business on 20 October 2017 to provide this as well as any police reports he could locate and any relevant medical reports he could provide regarding the [injuries].
Post-hearing submission
On 18 October 2017 the applicant submitted a copy of the article from his phone[3]. The Tribunal had also been able to locate this news article [independently] after the hearing, though an internet search[4]. No police reports or medical reports were submitted by the applicant.
[3] See folios 26-28 of Tribunal file 1616299.
[4] See folios 24-25 of Tribunal file 1616299.
Findings and reasons
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
On the basis of the copy of the applicant’s Malaysian passport provided to the Department[5], the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is as he claims it to be. The Tribunal accepts that Malaysia is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Credibility
[5] See folio 40 of Department file [number].
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out (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.)
Assessment of claims
The applicant claims that he left Malaysia because he was assaulted, harassed and threatened by ethnic Malay students because of his Chinese ethnicity. He claims to fear that if he returns to Malaysia he will again be harassed, threatened and assaulted by these people.
The Tribunal did not find the applicant to be a credible witness. As discussed in detail below, much of his evidence was vague, lacking in detail and unconvincing, and some of his oral evidence was inconsistent with his written statements.
Although it was not mentioned at all in his written statements, based on the media [report] dated [2011] that the applicant drew to the Tribunal’s attention at the hearing, the Tribunal accepts that in [2011], when the applicant was [age] years old, he and a classmate from his high school were involved in an incident where their teacher reportedly [physically abused him]. The press report indicates that the students, accompanied by their parents, filed a complaint [in] Ipoh [in] 2011. The applicant’s mother is reported as being disappointed that the school authorities would not allow her to see the teacher concerned and commenting that she hopes the school will take disciplinary action against the teacher for injuring her son as his actions will mar the good image of the school and the teaching profession. It is reported that the complaints bureau chief was present to entertain the complainants.
The applicant maintains that his complaints regarding this incident resulted in the alleged racial discrimination and violence against him described in his application, where he stated that Malay students, who are gangsters, attacked him because of his racial background. In his application he stated that these students pushed him into a corner and beat him up with all kinds of weapons, including iron bars.
The Tribunal does not accept that the applicant’s account of having been stalked, harassed and beaten-up by ethnic Malay students is true for the following reasons.
Firstly, the applicant indicated at the hearing that one of the ethnic Malay students at his high school was a male relative of the teacher that the applicant and his mother had complained about. He said this student, along with a group of other male ethnic Malay students hit him. He said this is the incident referred to in his application and that it occurred 2-3 days after the teacher had hit him. The applicant commented at the hearing that he thought this was the end of the matter but it wasn’t: after that the male students stalked him and followed him every day. He said he was dropped off at school by a friend who rode a motorbike and one day they were bumped by a car driven by a friend of the ethnic Malay student. He said he fell [and] sustained internal injuries as well. He said they also used a spanner to hit [him]. The Tribunal queried the applicant why he had paid so much money ($[amount]) for his application to be prepared and yet had not included reference to these critical matters (the link between his claimed problems and the incident with his teacher and the claimed incident with the motor bike). The applicant replied that he thought he should focus on what the students had done to him. The Tribunal did not find this explanation convincing and considers that if the applicant had been subjected to attacks from ethnic Malay students and their friends, including being knocked from a motorbike and sustaining injuries [because] of a link to the complaint against his teacher, this would have been made clear in his statement, and the incident involving the motor bike would have been mentioned. His statement, however, refers to Malay students, who are ‘actually gangsters’ attacking him ‘simply’ because of his Chinese racial background, and pushing him into the corner and starting to beat him up, using an iron bar and other weapons. It makes no reference to his teacher, to any incident involving a motorbike, or to him having been hit with a spanner after being knocked from a motorbike.

Second, the applicant said that it would be futile to lodge a complaint because he is Chinese. However, the applicant and his mother had already complained about the applicant’s teacher, joining with his Chinese classmate and his classmate’s parents to push their complaint using the local Barisan Nasional (BN) party’s Chinese representative’s assistance and seeking media coverage. The Tribunal considers that this indicates that the applicant’s mother was aware of how to use resources such as political parties and the media to push complaints. The Tribunal does not accept that the applicant’s mother would not have taken further similar action if her son was assaulted as a consequence of the initial complaint made and just a few days after the incident with his teacher. The Tribunal queried the applicant that Barisan National (BN) is a coalition of political parties that is in government in Malaysia, and asked why his family did not continue to seek their support, including to get the police to protect him if he was being assaulted. The applicant said it was his classmate who had the support of that party, not him, and as it was a Chinese party it was futile to seek support through them. He commented that the police try to stall on complaints lodged by ethnic Chinese and give priority to complaints lodged by ethnic Malays. The Tribunal did not find this explanation convincing. It does not explain why his mother, having been party to the initial complaint raised with the assistance of this person, could not have continued seeking the support of the local Chinese BN representative if her son was being subjected to ongoing violence and racial abuse, particularly given this representative is part of the ruling coalition and therefore could be expected to have some influence.
Third, the applicant stated in his Protection visa application that he did not seek help in Malaysia because he is too young and is too scared of ‘them’, commenting that ‘they’ threatened to kill him if he went to the police and he was really scared. However, at the hearing the applicant said they went to the police but indicated that he did not have a copy of the police report. When queried regarding this inconsistency in his accounts the applicant maintained that they reported what had happened to the police. He could not explain why there were differences in his accounts but commented that he might be able to find the police report. While given 16 days to provide any further relevant material, including the police report, the applicant did not submit any police reports or make any further comments in relation to police reports. The Tribunal finds that the applicant has not satisfactorily explained the inconsistency between his two accounts.
Fourth, the applicant indicated at the hearing that the male student who he claimed was related to the teacher stalked him every day. When the Tribunal queried the applicant that the incident with his teacher occurred in [2011] and he claimed that he was first beaten up 2-3 days later, yet he stayed at the same school for another four years completing his secondary schooling in December 2015, he commented that he had no choice and could not change schools because his academic results were not good and his attendance rate was quite low. The Tribunal found this explanation unconvincing. The Tribunal considers that if the applicant was being stalked, threatened and assaulted at his school on a regular basis and his mother was unable to take effective action to prevent that happening she would have sought to move him to another school, explaining to a potential new school the reasons for any issues with his past academic performance and attendance.
Fifth, when the Tribunal queried the applicant regarding when there had last been an incident with these ethnic Malay students, he replied he was not sure whether it was the last time he had trouble but he recalled an incident when he was in Form [number]. He said they attempted to find him but failed because there were a lot of other people present. The Tribunal found this statement to be both vague and inconsistent with the applicant’s other statements indicating that he was regularly being stalked and threatened at school and that these people passed by his home every day.
Sixth, when asked what he thought would happen to him if he returned to Malaysia now, the applicant said that they would be able to locate him and commented that they had said wherever they find him they will hit him. However, when the Tribunal commented that he had not indicated that anything had happened to him from when he left school in 2015 until he came to Australia in April 2016 the applicant said there was an incident in 2016 where a male ethnic Malay student said to him ’do you miss your old school days; do you want the same thing to happen?’ The Tribunal also finds this statement, which was not offered spontaneously, to be inconsistent with the applicant’s earlier statements indicating that these people passed by his home every day and had told him that wherever they found him they would hit him.
Seventh, when querying the applicant about his written statement that he tried to move to his friend’s home in Ipoh but they still found him the Tribunal asked the applicant why, if he was still attending school, these people would have bothered to seek him out and find him at a friend’s place when they could find him at school. The applicant agreed that was the case and said that he too was baffled about this but commented that they also came to disturb him at his home address. The Tribunal found this explanation unconvincing and, as noted above, considers that if the applicant was genuinely fearful for his safety because he was consistently being stalked, threatened and beaten up by fellow students and was unable to take effective action to prevent that happening he would have ceased attending the school rather than (or in addition to) seeking to relocate to another residential address. Accordingly, the Tribunal does not accept that the applicant ever sought to relocate to a friend’s house.
The Tribunal also queried the applicant why he described the students as gangsters. He commented that there are some students at school who claim to be gangsters and seek to extort money from other students. The Tribunal accepts that there may have been some students at the applicant’s school who were members of school gangs and bullied other students but, given the deficiencies in the applicant’s evidence detailed above, does not accept that the applicant suffered ongoing targeted persecution involving serious harm from ethnic Malay student gangsters because of his Chinese ethnicity and/or because he lodged a complaint against his teacher in [2011].
The Tribunal also queried the applicant regarding his claim that he was denied a scholarship because of his race. The applicant said that outstanding students who scored 100 marks usually got a scholarship. He said he applied but did not get one. The Tribunal put to the applicant that he had indicated that he was not a good student and had commented that his attendance was quite poor. In response he altered his evidence to say that departing students got ‘consolidation money’ of RM [amount] (approximately AUD [amount]) but he did not receive this. The Tribunal also found the applicant’s evidence in relation to this matter to be inconsistent and vague. The Tribunal does not accept that the applicant was denied a scholarship because of his race. The Tribunal finds that the applicant altered his evidence in response to the Tribunal’s questioning and also does not accept that he was denied a ‘consolation’ payment of RM [amount] on completing high school because of his race.
After careful consideration of the applicant’s evidence and based on the assessment above, the Tribunal finds that while it accepts the applicant was inappropriately disciplined and beaten by a teacher in 2011 when he was [age] years old, the Tribunal does not accept that the applicant was stalked, threatened or beaten by ethnic Malay ‘gangster’ students at his school following this incident, either because one of the students was a relative of the teacher involved or for other reasons, including because of the applicant’s Chinese ethnicity. Accordingly, the Tribunal does not accept that there is a real chance that the applicant would suffer treatment amounting to serious harm from such people in the future should he return to Malaysia. In reaching this conclusion the Tribunal has considered the [injury] that the applicant showed the Tribunal at the hearing, which he claimed was sustained as a consequence of being deliberately knocked off a motor bike by ethnic Malay students. The Tribunal considers that there could be many causes for such a [injury], including a sporting injury or a genuine motor bike accident (that is, not deliberately caused). The Tribunal notes that the applicant did not provide any medical records to indicate the nature and cause of the injury, even though invited to do so.
In considering the situation in Malaysia generally for ethnic Chinese Malaysians, the Tribunal also had regard to the following relevant country information from the Department of Foreign Affairs and Trade (DFAT)[6], as discussed with the applicant at the hearing:
[6] DFAT Country Information Report, Malaysia, 19 July 2016.
·Ethnic Chinese comprise 24.8 per cent of the Malaysian population of 30.5 million people.
·The Malaysian Constitution forbids discrimination against citizens on the basis of gender, religion and race, however, it accords a ‘special position’ for bumiputera (‘sons of the soil’ - ethnic Malays and indigenous groups), permitting affirmative action policies that favour ethnic Malays over other ethnicities in areas such as business, education and the civil service.
·There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians.
·Ethnic Chinese make up a high percentage of the professional and educated class, dominate the business and commerce sectors and have a high relative wealth compared to other ethnic groups in Malaysia.
·DFAT assesses that Chinese Malaysians generally do not experience discrimination or violence on a day-to-day basis. Chinese Malaysians may face low levels of discrimination when attempting to gain entry into the state tertiary education system or the civil service.
·DFAT assesses that Buddhists are normally able to practise their religion without interference and do not face official or societal discrimination on a day-to-day basis.
·The Royal Malaysian Police (RMP) employs approximately 102,000 officers and operates 837 police stations across Malaysia.
·Credible local and international sources consider the RMP to be a professional and effective police force.
·The quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption. Corruption has been recognised as a concern. The government has established compliance units within the RMP and made police officers subject to trial by criminal and civil courts and has taken disciplinary action against officers found guilty, including suspension, dismissal or demotion. In July 2014, the Inspector General of Police announced the establishment of an Integrity and Standard Compliance Department within the RMP organisation structure. The Human Rights Commission of Malaysia, Suhakam, which credible local human rights organisations advise is a credible monitor of the human rights situation in Malaysia, also receives complaints against the RMP and has conducted investigations into police behaviour.
·The Government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.
·The majority of Malaysia’s criminal, civil and family law matters are heard in the subordinate civil courts. Credible sources advised that defendants generally had adequate time to prepare a defence. Strict rules of evidence apply in court. While selective prosecutions and arbitrary verdicts have occurred, particularly in instances involving high-profile opposition politicians and human rights defenders, the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.
The applicant queried the source for the information regarding the RMP and asked whether anyone had witnessed corrupt police officers being punished. He commented that this was just a façade for the outside world. The Tribunal explained that DFAT draws from a range of sources (as outlined at section 1.4 of the DFAT Country Information Report) and does not rely on media reporting. The applicant indicated that he did not have further comments he wished to make. Considering the relevant country information and the applicant’s personal circumstances (as discussed above), the Tribunal finds that there is not a real chance that the applicant would suffer treatment amounting to persecution involving serious harm from ethnic Malay people or the Malaysian authorities due to his Chinese ethnicity should he return to Malaysia now or in the foreseeable future.
As the Tribunal finds that there is not a real chance that the applicant would face serious harm should he return to Malaysia now or in the foreseeable future, the Tribunal finds that the applicant would not require the protection of the authorities in Malaysia.
Does the applicant have a well-founded fear of persecution if he returned to Malaysia?
Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution involving serious harm from ethnic Malay Malaysians, the Malaysian authorities, or anyone else, as a consequence of his race, should he return to Malaysia now or in the foreseeable future.
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 s.36(2)(a).
Complementary protection
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).
In considering 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.
The Tribunal notes that ‘significant harm’ for the purposes of complementary protection is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out them; or they will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Having regard to the findings of fact set out above, the Tribunal is also not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). In this regard the Tribunal does not accept that there is a real risk that the applicant would suffer significant harm from ethnic Malay Malaysians, the Malaysian authorities, or from anyone else as a consequence of his race, or for any other reason.
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.
Paul Windsor
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 2142

1 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction