1622064 (Refugee)

1622064 (Refugee) [2017] AATA 3068 (17 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1622064
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Luke Hardy
DATE:17 May 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 May 2017 at 4:10pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Ethnicity – Ethnic Chinese – Social group – Business Owner – Involved with a job dispute – Subjected to trade license revocation
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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] November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, [Mr A], is a citizen of Malaysia. He arrived in Australia on a three-month [temporary] visa [in] May 2016. He applied for a protection visa [in] August 2016. The delegate refused to grant the visa [in] November 2016. [Mr A] subsequently sought review by the Tribunal.
[Mr A] appeared before the Tribunal on 16 May 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
The issues
The main issue in this case is whether [Mr A] is entitled to protection as a refugee or, in the event that he is not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Summary of claims
In his protection visa application, [Mr A], an ethnic Chinese [Occupation 1] who resides in Johor state in southern Malaysia, claimed that in February 2016 an ethnic Malay client hired him to do some [work], paid a 50% deposit on the work, initially praised its execution and then refused to pay the balance, citing poor workmanship. He claimed that the client called him a “second-class citizen” daring to make money from “us Malays”. He claimed that after the client refused to pay “some government officials” came to him and said there had been complaints about his [work]. He said the officials demanded a fine of [amount] Malaysian ringgit (dollars, or RM). He claimed they also told him his [Occupation 1] licence had been suspended. He claimed they also said to him that Malaysia’s Chinese population are “second-class citizens” daring to make money from “us Malays”.
[Mr A] claimed he went to the police to complain about all this. He claimed the police ignored him. He claimed he accused them of “harbo[u]ring the Malays”. He claimed the police licked him up for 24 hours.
Essentially [Mr A] claimed to have been mistreated for reasons of his Chinese “race”. He claimed he would not be able to find a job in Malaysia due to his licence having been suspended. He said his family was short of money. He said that ethnic Chinese do not have the same economic rights and access to government assistance as ethnic Malays, or Bumiputera, a claim that is to some extent supported by recent reporting from DFAT in its Country Information Report: Malaysia (19 July 2016), and from the US Department of State in its Country Reports on Human Rights Practices for 2016 – Malaysia (2017).
[Mr A] claimed to speak and understand no language other than “Chinese”. It is reasonable to infer from this that his language limitations would quite plausibly reduce his ability to negotiate in business with Malaysians who do not speak Chinese.
[Mr A] obtained a passport [in] 2016 and used it to depart Malaysia legally [in] May 2016. He presumably obtained his electronic travel authority to visit Australia in between those two dates. He claimed to the Department that he was regularly in contact with his family in Malaysia, but did not suggest that they were being subjected to relevant harm there.
Evidence to the Tribunal
[Mr A] told me he lived at the same address in Malaysia for several years. He initially said he did not know the name of the state in which he resided, but went on, albeit falteringly to refer to it as “Loho”. It became apparent that he was providing a Chinese or Sinised version of the nationally standard Malay and English name “Johor”.
[Mr A] told me that he was employed as [Occupation 1] from 1997 until 2015 when he started his own business. He was evidently able to work in his chosen trade for many years, and also evidently managed to run his own business for several months. He told me that he tried to set up his own business because his employer did not pay him enough money. He indicated that it was difficult to earn satisfactory money in Malaysia whether one worked for oneself or worked for someone else. Asked if he came to Australia to earn better wages he said he did, adding that in Malaysia things are expensive. He said he had also wanted to bring his family here. He acknowledged again that he came to Australia to work for better money and to sponsor his family here in due course. I asked him how he had been able to afford to come to Australia and he said he only had to buy a ticket to get here.
[Mr A] acknowledged that although he had come to Australia knowing he was not permitted to work, he had engaged in work here because he needed to do so. He has evidently been able to find work in spite of having very little or no English.
[Mr A] gave me an account of the dispute with the client who refused to pay the balance for the [job] he did in early 2016. He said the client refused to pay for the explicit reason that he did not like the overall quality of the completed work. I asked him how that could be the basis of a claim to refugee status on the basis of “race” and he said that the client used racially derogatory language in the course of their arguing over the money. He described the government officials as having taken away his licence because according to them his work was sub-standard, but he also claimed they took away his licence and would not restore it for the sole reason that he is Chinese.
Hearing his evidence, I asked [Mr A] if he was not simply talking about a very individualised and localised dispute over money that, when it became heated, involved some discriminatory language. [Mr A] disagreed with this position; however, when when I asked him for any examples he could give of discriminatory episodes in the past, he was only able to cite this one instance.
I asked [Mr A] how the official body in this account communicated his licence suspension to him and he said the officials only did it verbally. I questioned the plausibility of the official standards body not communicating this in writing, and he said “It’s the same. You need money to get the licence back.”
I asked [Mr A] to describe the means by which he was informed of the liability to pay the claimed fine and he said this was also simply communicated to him verbally. He said, however, that this was a real fine and not a bribe demand. It struck me as implausible that if this was an official fine, however unjustly applied in his view, it was not communicated to him in writing. Addressing these concerns, [Mr A] said that Malaysian officials are corrupt. He said one can do anything if one has money whereas “we [ethnic Chinese Malaysians] had none.”
Since [Mr A] essentially claimed that he never received any official notifications in these matters from the official standards body, I asked him how he was able to satisfy himself that the licence revocation and fine were not bogus. In reply, he said he knew the revocation and fine were real because the people who visited him were “from the government”. He went on to say that he knew these impositions were real because he went to the police about them and the police ignored him.
[Mr A] assured me repeatedly that the demand for money was not an informally-delivered bribe demand. He said “a fine is a fine.” He said that one has to apply formally in order to have one’s licence restored. He said one also needs money to restore one’s licence. He said, however, that he would not be able to have his licence restored even if he paid the fine “because we’re Chinese.” I questioned the plausibility of this claim given that in spite of being ethnic Chinese he had, one, been granted a licence to run a [business] by the official licencing and standards body and, two, been contracted by at least one ethnic Malay customer since going into business on his own (he has never described having Malay clients as being anything unusual).
In response to my question about the plausibility of not being able to regain his licence because he Chinese, [Mr A] spoke very generally: he simply referred to corruption in Malaysia and to how “we” Chinese, in not having any money, are effectively suppressed for want of being able to buy favours.
[Mr A] did not suggest that he made any attempt to have his licence restored or that there was any follow-up action on the part of the official standards body to enforce the alleged fine.
I asked [Mr A] for details about his family, in the interest of assessing their situation as ethnic Chinese in Malaysia. [Mr A] told me his wife is a part-time [professional]. He said his [children] go to school. He said his family had moved in with his mother-in-law since he came to Australia for the sole reason that he is here in Australia. He said his parents [work]. He said he has siblings who work in [a workplace] in [another country]. He said he has one disabled sibling, unemployed, who is living in Malaysia.
I put to [Mr A] that while his claims about how he was treated by the client and the officials indicated some discriminatory language, it was difficult to see that this was indicative of a real chance of persecution for reasons of “race”: he had been continuously employed in his chosen trade for over eighteen years and had had a stable address, his main issue being that he was not satisfied over many years with the money he could make in Malaysia. His overall position, as expressed through the interpreter at the beginning of the hearing, was that all Chinese are “secondary citizens” in Malaysia.
Findings in relation to s.36(2)(a) of the Act
I accept that [Mr A] is an ethnic Chinese citizen of Malaysia and also a qualified [Occupation 1] from Johor. I accept that he is dissatisfied with the amount of money he can earn from his skills in Malaysia. I accept that there is some preferential treatment of ethnic Malays in Malaysia, particularly in terms of economic support from the government, and that this in effect discriminates to a degree against people of other ethnicities including the Chinese. I accept that [Mr A] feels genuinely disaffected by the preferential treatment towards ethnic Malays in Malaysia. However, I am not satisfied on the evidence before me that such discrimination separately or cumulatively gives rise to a real chance of [Mr A] facing persecution in Malaysia. I give weight to the fact that he was able to obtain a licence in his trade of choice and was able to work in that trade for over eighteen years. I give weight to his evident stability of domicile and to the fact that his wife and parents have been able to work in Malaysia. Whereas [Mr A] indicated that most of his working siblings work in [another country] and not Malaysia, I am not satisfied on the evidence before me that they would be prevented from working for their own upkeep in Malaysia for any potentially relevant reason.
In considering claimed prejudices affecting his ability to provide services to ethnic Malays, it is difficult to disregard [Mr A] claiming little or no ability to speak or understand Malay: as noted, at the hearing he could not even describe the state he lives in by the nationally standard name of “Johor”; he was only able to pronounce it in his Chinese language or dialect as “Loho”. I find that this would logically have some negative effect on [Mr A’s] capacity to negotiate in business with non-Chinese speakers in Malaysia.
I am able to accept that [Mr A] had one Malay client in early 2016 who failed or refused to complete payment for a [job] that [Mr A] performed in his house. However, I give this fact very little weight, either separately or cumulatively, in this matter: on the evidence before me this is merely an isolated and individual dispute over money owed to him for contracted labour. I am not satisfied that [Mr A’s] “race”, or a discriminatory attitude taken by anyone in regard to it, is the essential and significant factor in the dispute, notwithstanding the claim about the client using racial pejoratives. On the evidence before me, I am not satisfied that the dispute described is separately or cumulatively indicative of a real chance of [Mr A] being persecuted in Malaysia for any potentially relevant reason.
On the quality of the evidence overall, I do not believe that [Mr A] had his [trade] licence suspended or revoked, or that he was fined, or that he complained to the police or that the police detained him for 24 hours. I found his evidence to the effect that the suspension was only ever communicated to him verbally, during a visit by “government officials”, simply implausible, particularly since he has indicated that all of how he was being treated, however unjustly, was enforceable.
In the alternative, supposing that [Mr A] did have his [trade’s] licence suspended or revoked, and that he was fined, and that he complained to the police who did nothing, except for briefly detaining him when he accused them of favouring Malays, I am still not satisfied that what [Mr A] has described is anything other than an individual, isolated, localised dispute, that became elevated somewhat by the client complaining to the relevant standards body and by [Mr A] making a passing accusation to some local police officers. I am not satisfied that [Mr A] faces a real chance of persecution for having come, as he claimed, to the attention of either the [work] standards authorities or the police. Also, in the alternative, I am not satisfied that [Mr A] would, for any potentially relevant reason, be unable to have his licence restored. Furthermore, given that he claims to have been doing casual jobs in Australia, notwithstanding that he has little ability in English, he has not satisfied me that he would be unable to work for his and his family’s upkeep in Malaysia in some other capacity.
I find on the evidence before me that [Mr A’s] claim about ethnic Chinese being second class citizens in Malaysia is significantly exaggerated. I give some weight in this matter to [Mr A] having been issued a passport which he was freely able to use.
Having considered all of the evidence in its entirety, I am not satisfied that [Mr A] faces a real chance of persecution in Malaysia in the reasonably foreseeable future, separately or cumulatively, for any of the reasons under s.5J(1) of the Act.
For the reasons given above, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [Mr A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person may meet the criteria for the grant of a protection visa under s.36(2)(aa) if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
In this case, [Mr A’s] claims to complementary protection are essentially the same claims he has made for protection as refugees. Given my findings of fact, above, and given that the "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" of persecution, I find that [Mr A’s] claims can no more succeed as complementary protection claims than they do as refugee (s.5J) claims.

On the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that [Mr A] will suffer significant harm.
Accordingly, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [Mr A] 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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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 3068

17 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Appeal