1706391 (Refugee)

1706391 (Refugee) [2017] AATA 3131 (6 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706391
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Frances Simmons
DATE:6 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 September 2017 at 4:26pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Political opinion – Involvement with protest activities – Bersish rally – Democratic Action Party supporter – Credibility issues – Unable to identify party details – Vague claims – Delay in applying for protection – Returned to Malaysia – Indicates no fear of harm
LEGISLATION
Migration Act 1958, ss 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
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 on 8 March 2017 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 on 1 November 2016 after arriving in Australia on 5 August 2016. He previously travelled to Australia on 14 May 2016 and departed Australia on 15 June 2016.
The delegate refused to grant the visa on the basis that he was not a person in respect of whom Australia has protection obligations.
The issues that arise on review are whether the applicant is owed Australia's protection under the refugee criterion or under the complementary protection criterion.
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
Nationality
The applicant claims to be a citizen of Malaysia and provided a copy of the biodata page of his passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant's receiving country for the purposes of the refugee and complementary protection assessment.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Protection visa application
The applicant declares that he was born on [date of birth] and that he is a Malaysian citizen. He declares that he speaks, reads and writes ‘Chinese’ and that his ethnicity is ‘Chinese’. He declares that between in 1986 and August 2016 he has lived at the same address in Malaysia.[1]
[1] Departmental file, folio 26.
The applicant first arrived in Australia on 14 May 2016 and he departed Australia on 15 June 2016. On 5 August 2016 he returned to Australia travelling on an electronic travel authority visa and on 1 November 2016 he applied for a protection visa. The applicant declares that in 2016 he travelled to [another country] multiple times between April and June 2016. [2]
[2] Departmental file, folio 27.
The applicant has provided copies of pages from his Malaysian passport. The entry and exit stamps record that the applicant previously entered Australia on 14 May 2016.
The applicant provided the following statement of claims:
I am a member of DAP. In 2015, DAP decided to organise a non-violent protest BERSIH 4.0 against corruption on 29 August 2015 in Kuala Lumpur. We promoted our activities via Facebook. On 29 August 2015 we were in yellow T-shirt and protested on the organised route. Police blocked the road and tried to stop the ongoing parade. They also used the water gun to disperse us. Other police force and special force against riot were also there. Many people in the parade did not want to leave. I and other protesters had conflict with the police. Police arrested us. We were locked into a very small room. Until 1 September 2016, we were released.
I used to be [an occupation]. In October 2015 I was employed by a Malay called [Mr A] who was [an occupation]. He did not sign a labour contract with me and also did not give me pay slips. He delayed the payment of the wages and even owed me RM 10, 000. I requested my wages many times. But he refused to give me. Therefore, in April 2016, I reported to police. When the police came to investigate, [Mr A] said I was lazy at work and often asked for leave. After brief questioning, police left.
In May 2016, I reported [Mr A] to Labour Bureau for owing my wages. Labour bureau informed me that they needed to time to investigate the matter and asked me to wait for the result. Afterwards, I never heard from them. So I asked the Bureau about the investigation result. They said that I could not provide evidence of employment, so they could not help me.
Without other option for me, I had to go to [Mr A]’s home to ask for my wages. I did not expect that, apart from not giving me the wages, [Mr A] even called police in to help him. He told police that I often harassed and intimidated him, which seriously interfered with his life. I told the police the reason why I came here. But police threatened me to leave. I did not surrender and had quarrels with police. Police arrested me. They abused me and beat me up. I was released after one day.
In Malaysia, ethic Chinese are discriminated and their rights are not protected. I sought for freedom and equality. Therefore, on 5 August 2016, I came to Australia.
Review application
The applicant provided a copy of the delegate’s decision with his application for review. This decision refers to reports about ethnic minorities and politics in Malaysia. The Tribunal has had regard to this country information to the extent that it is relevant in assessing the applicant’s claims.
The applicant appeared before the Tribunal on 14 August 2017 where he gave evidence with the assistance of an interpreter. At the outset of the hearing the applicant advised the Tribunal the information in his protection visa application was true and correct. He had no new information to provide. He prepared his application himself but he had some help writing it down. He told the Tribunal he was of Chinese ethnicity and Buddhist faith. Before he left Malaysia he was living at the address provided in his protection visa application (in the state of Johor) for more than ten years. His mother is still living at this address although sometimes she will stay with his brother. Before he travelled to Australia, he worked as [an occupation]. In Australia he is working as [another occupation].
The Tribunal questioned the applicant about the reasons that he left Malaysia and the reasons that he is now afraid to return to his country. He was also questioned about his previous travel to Australia and his immigration history. Where relevant the applicant’s evidence is discussed further below in the findings and reasons. The applicant was invited to comment upon the Tribunal’s concerns about the credibility of his claims as well as country information published by DFAT about the treatment of Chinese Malaysians, political activists, and Buddhists. Where relevant his evidence is discussed further below.
Findings and reasons
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal 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.[3] 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.[4]
[3] MIMA v Rajalingam (1999) 93 FCR 220
[4] 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
The Tribunal found the applicant’s evidence about the reasons he left Malaysia and travelled to Australia in August 2016 to be extremely vague. For example, when the Tribunal asked the applicant why he travelled to Australia a second time in August 2016, he told the Tribunal he had a lot of experiences that made him leave Malaysia. The Tribunal advised the applicant his evidence was vague and lacking in detail and asked again why he left Malaysia. He said that he experienced family break up and he also referred to the ‘racial thing’– there were Malaysians and Chinese. He added that corruption in Malaysia was very serious: police fine you if you ran a red light and he could show the Tribunal his friends talking about corruption on Facebook. The Tribunal explained that it needed to consider whether there was a real chance he would face serious harm or significant harm if he returned to Malaysia now. The applicant then claimed he was a member of the opposition party and that he is against government corruption. When asked whether there were any other reasons that he was afraid of being harmed if he returned to Malaysia, he said no. However, he subsequently told the Tribunal he had a dispute with his former employer about unpaid wages before he first travelled to Australia in May 2016 and he believed this employer would cause him problems.
For the reasons give below, the Tribunal has specific concerns about the credibility of the applicant’s claims to fear harm for reasons relating to his political opinion and his dispute with his former employer. Furthermore, as detailed below, these concerns are deepened by the applicant’s immigration history: the Tribunal considers that the fact the applicant travelled to Australia on 14 May 2016 and voluntarily returned to Malaysia in 15 June 2016 undermines his claims that he was afraid of being harmed because of his political opinion or because of a dispute with his former employer or for any other reason. When questioned about why he voluntarily returned to Malaysia in May 2016, the applicant told the Tribunal he returned to Malaysia because his father died. His evidence about the death of his father struck the Tribunal has confused and vague (he could not recall which month his father died in and, after stating his father died whilst he was in Australia and he returned to Malaysia the next day, he told the Tribunal the funeral was held the day before he arrived in Malaysia). However, even if it were to be accepted that the applicant returned to Malaysia on 15 June 2016 because his father died, the applicant did not depart Malaysia again until 5 August 2016. Before the Tribunal he did not claim to have been harmed between 5 June 2016 and 5 August 2016 and the Tribunal considers his conduct in voluntarily returning to Malaysia and remaining in that country until August 2016 undermines his claims to fear harm in that country. The Tribunal’s reasons for finding the applicant’s claims lack credibility are set out in detail below.
Political claims
The Tribunal found the applicant’s evidence about his political activity to be extremely vague and lacking in meaningful detail. After telling the Tribunal he was a member of the ‘Rocket Party’, when asked what political activity he had been involved in Malaysia, he said he didn’t participate in any political activity in Malaysia. However, when asked if he had ever been involved in any political protests in Malaysia, he told the Tribunal that he had participated in demonstrations. Asked what demonstrations, the applicant referred to a peaceful demonstration in the centre of Kuala Lumpur. He then told the Tribunal he had been to many demonstrations big and small, including the big one that was held in Kuala Lumpur in August 2015. Asked whether he was involved in any political activity after he attended this protest, the applicant said yes: on a small scale, he attended some political seminars. Asked who organised the seminars, he said supporters of Lim Guan Eng (the Tribunal notes Lim Guan Eng is the Secretary of Democratic Action Party (DAP)). He told the Tribunal that he didn’t have any problems doing so.
The Tribunal was concerned that, although the applicant’s written claims state he is a member of the DAP, before the Tribunal when asked him to the name the party he was a member of, he said the Rocket Party. When Tribunal noted that the rocket was the symbol of a political party in Malaysia and asked the applicant to name the party, he reiterated it was called the Rocket party. He then correctly named the General Secretary of the DAP. He told the Tribunal he joined this party three or four years ago because the government arbitrarily raised the electricity and water bills and ignored the people. When the Tribunal put to the applicant that he appeared to be claiming he was a member of the DAP, which was the largest opposition party in Malaysia, and asked if there was a reason he didn’t know it was called the Democratic Action Party, the applicant responded by reiterating that it was obvious that this was the rocket party. The Tribunal has considered this response but, while this matter is not determinative, the Tribunal remains troubled by the fact that the applicant appeared to be unable to identify the party of which he claims to be a member by its full name, instead of by its symbol.
The Tribunal was further concerned that despite being prompted to provide information about his involvement in protest activist and his subsequent arrest and detention his evidence to the Tribunal about these matters was brief and lacked meaningful detail. At the hearing the applicant claimed he attended a protest in August 2015 attended by several thousands of people wearing yellow clothes. Asked why the protestors were demonstrating, he said they arbitrarily raised electricity prices and tariffs and they faced corruption. The Tribunal observed that it had information about hundred thousand people attended a protest in August 2015 in Kuala Lumpur organised by a coalition called Bersih. The applicant said this was right. Asked whether he had any problems because he attended the protest, he said he was arrested. Asked (twice) why he was arrested, he said they gathered together to demonstrate. The Tribunal observed that about hundred thousand people attended the protest and asked whether other people were arrested. He said yes, and he gave evidence many others (up to a hundred people) were also arrested. He claimed he was detained for two or three days before being released because someone bailed him out. Asked if he was ever charged with an offence, he said no. Asked whether it was legal or illegal to attend a gathering in Malaysia, he said he didn’t know.
Overall, the Tribunal found the applicant’s evidence about his involvement in the Bersih rally lacked meaningful detail and, in some respects, was not supported by the country information available to the Tribunal. The applicant claimed he went to the rally with his friends and it went for about four and half hours. Asked how long he spent in Kuala Lumpur, he said six hours. Asked how long the protest went on for, he said he didn’t know, a long time. He didn’t know what time they finished because he was arrested. He claimed he was detained. Asked where, he said a room inside a police station. He didn’t know the name of the police station. It was put to the applicant that the Tribunal was not aware of reports that up to hundred people were arrested at the Bersih 4 rallies in Kuala Lumpur in August 2015 (although there are reports of protesters being arrested at other Bersih rallies). While the Tribunal has considered the possibility that such arrests were not reported in the English language media, as the Tribunal put to the applicant his account of the Bersih rally he claims he attended in August 2015 differs, in this respect, from DFAT’s account of the rally, which does not mention arrests. As the Tribunal discussed with the applicant, DFAT reports that:
The Bersih 4 rallies on 29 to 30 August 2015 saw approximately 100,000 people, mostly opposition parties and their supporters, civil society activists and Chinese Malaysians, take to the streets in Kuala Lumpur to call for the resignation of Prime Minister Najib in light of 1MDB corruption claims. The protest was peaceful and no violence was reported, despite the government declaring the protest illegal and banning the yellow t-shirts with ‘Bersih’ print that were worn by the protestors. …This was an improvement on the July 2011 Bersih 2 protest where the police used tear gas and water cannons to break up the protest and made approximately 1,500 arrests. [5]
[5] DFAT Country Information Report Malaysia, 19 July 2016, p.16, [3.62]

The Tribunal also put to the applicant that, even if it were to be accepted that he went to the protests, DFAT assesses that ‘protesters face a low risk of arrest when engaged in political rallies. Such individuals have commonly been released on bail shortly following their arrest. High-profile organisers of political rallies face a moderate risk of official discrimination and could be charged under the Peaceful Assembly Act or the Criminal Code’.[6] The Tribunal put to the applicant that on one view if he were to go back to Malaysia and have some involvement in political activity – attending rallies organised by the Bersih movement and supporting the DAP -- the chance that he would face serious harm or significant harm might be said to be remote, that is there was no real chance he would face serious harm or significant harm because of his political opinion or activities. The applicant told the Tribunal didn’t have anything to say. The Tribunal considers the applicant’s response supports the conclusion that he does not fear in Malaysia for any reason related to his political opinion.
[6] DFAT Country Information Report Malaysia, 19 July 2016, p.16
The Tribunal further considers that the timing of the applicant’s departure from Malaysia suggests that he did not leave Malaysia because he was afraid of being harmed because of his political opinion. The applicant told the Tribunal that the last political demonstration he was involved in was in August 2015. However, the following year he travelled in and out of Malaysia on multiple occasions between April and June 2016[7] before ultimately travelling to Australia on 5 August 2016 and applying for a protection visa on 1 November 2016. The Tribunal finds that the applicant’s immigration history undermines his claims to fear harm in Malaysia. Furthermore, while the Tribunal has considered the applicant’s evidence that he returned from Australia to Malaysia on15 June 2016 because his father has died, as noted above, the Tribunal considers that the fact the applicant remained in Malaysia from June 2016 until 4 August 2016 indicates that he did not fear any harm from the authorities or any other persons or group living in Malaysia.
[7] Departmental file, folio 27 (protection visa application, q.80), folio 2-4 .
For all the reasons set out above, the Tribunal does not accept that the applicant’s claims to have been political active in Malaysia are credible. The Tribunal does not accept that the applicant is a political activist of any type. The Tribunal does not accept that he fears that he will be harmed if he returns to Malaysia because of his political beliefs and activities or that this was the reason he left Malaysia in 2016. The Tribunal does not accept that he was ever part of the Bersih Rally in Kuala Lumpur in August 2015 or that he is or was a member or active supporter of the DAP or that he attended political demonstrations or seminars in Malaysia. Because the Tribunal does not accept that the applicant ever attended political rallies in Malaysia, the Tribunal does not accept that he was ever arrested by the authorities or detained because he attended a Bersih rally. Because the Tribunal is not satisfied that he ever attended Bersih rallies or was involved in the Bersih movement, the Tribunal does not accept that he attracted the adverse attention of the authorities or any other persons or groups doing so and it follows that the Tribunal does not accept that there is a real chance that he will face serious harm on this basis.
Furthermore, the Tribunal is not satisfied that, if the applicant returned to Malaysia now, he would wish to be politically active in support of Bersih or the DAP or in opposition to the Malaysian Government or corruption. While the applicant may well be concerned about corruption, the Tribunal does not accept that, if the applicant returns to Malaysia, that he would seek to attend political rallies or actively involve himself in the DAP or any other organisations or groups opposing the Malaysian government or corruption. In making these findings the Tribunal is not improperly requiring the applicant to modify or suppress his political opinion. Rather, the Tribunal has formed the view that the applicant has no genuine interest in, or commitment to, taking public political action (including attending political rallies organised by the Bersih coalition) opposing or criticising the Malaysian government.
The Tribunal finds that there is no real chance that the applicant will be persecuted if he returns to Malaysia now or in the reasonably foreseeable future at the hands of the Malaysian authorities, police or any persons or groups acting on behalf of the authorities due to his claimed involvement with the Bersih movement or the DAP or his opposition to corruption for any reason related to his political opinion. On the evidence before it, the Tribunal finds that there is no real chance that he will suffer serious harm for reasons of his political opinion if he returns to Malaysia now or in the reasonably foreseeable future. Nor, on the evidence before it, does the Tribunal accept that there is a real risk that the applicant will suffer significant harm for any reasons related to his political opinion.
Unpaid wages, police brutality and abuse
The Tribunal has considered the applicant’s claims that he was abused, assaulted and arrested by the police after seeking to obtain wages owed to him by his supervisor at work. The applicant told the Tribunal the last time he approached his supervisor about the unpaid wages, which he estimated were around 10 000 RM, was in April or May 2016 before his first trip to Australia. He asserted that would have ‘lots of problems’ if he went back to Malaysia because of his old boss but when asked (twice) what these problems would be he did not identify why his former boss would harm him upon his return to Malaysia, but stated that his employer was a Malaysian and he refused to pay him wages and did a lot of things that were bad for him. The applicant stated he reported this to the police but they told him he did not have a receipt in relation to the unpaid wages. He also he sought help from his friend and from the labour department but the labour department didn’t help him because he didn’t have receipts.
The Tribunal was concerned that, despite being advised of the Tribunal to provide further detail, the applicant’s evidence that he was abused and assaulted by the police to be vague and unconvincing. When asked whether he had ever been harmed in Malaysia (other than when he was detained by the police at the protest), he asked in which area and then, when asked to answer yes or no, responded no. However, when asked whether he had ever been harmed by the police, he said yes and claimed he was verbally abused by the police when he asked for his wages back and that the police threatened to arrest him. The Tribunal asked whether, other than saying they would arrest him, the police did anything. He then said he called the police but the police were friends with his boss and accused him of harassing his boss. Asked whether anything else happened, he said he quarrelled with the police and asserted his right to ask for his wages whereupon the police officer told him to go away and said he was a gangster and, when he kept asking for payment the police officer caught him and beat him and hit him in the stomach. However, when asked when he was beaten by the police, the applicant said he forgot.
In response to the Tribunal’s questions, the applicant told the Tribunal that he did not complain about the police treatment of him because it would have been no use. Asked where he was when he was beaten up by the police, he said he was just outside of his employer. Asked if he needed medical treatment, he said they hit him in the face and he couldn’t go to the doctor. Prompted to tell the Tribunal what the police did next, he said the police caught him and took him to the police station for a day. When the Tribunal put to the applicant that credible international and local sources reported that the Royal Malaysian Police is a professional and effective police force,[8] the applicant asserted that they were very corrupt. It was put to the applicant that corruption had been identified as a problem but there had been some reform in this area: police officers had been subject to criminal and civil trials and an integrity and standards unit has been established within the police to promote police integrity.[9] The applicant asserted the police threatened Chinese in Malaysia. While the Tribunal has no doubt that instances of police brutality and corruption do occur in Malaysia, the Tribunal found the applicant’s claims that he was abused and assaulted by police to be lacking in detail and, having regard to its cumulative concerns about his credibility as a witness, the Tribunal is not satisfied that these claims are credible. The Tribunal does not accept that the applicant has ever attracted the adverse attention of the Malaysian police or been detained, harassed, threatened, assaulted or otherwise harmed by the police for any of the reasons claimed.
[8] DFAT Country Information Report, Malaysia, 19 July 2016, p. 25-26
[9] DFAT Country Information Report, Malaysia, 19 July 2016, p. 25-26.
Although the Tribunal has concerns about the applicant’s claims that he was abused and assaulted by the police, the Tribunal considers that it is possible that he believes his former employer owes him 10 000RM. However, when asked why he would face harm for this reason if he returned to Malaysia now, the applicant said he couldn’t figure out if it would happen yet. The Tribunal considers the timing of the applicant’s departure from Malaysia indicates that he does not fear harm in Malaysia for reasons relating to a dispute about unpaid wages. The applicant gave evidence that the dispute with his employer over the unpaid wages occurred before he travelled to Australia in May 2016. When asked why he didn’t apply for a protection visa the first time he travelled to Australia, he said that he didn’t know that he could. However, as the Tribunal put to the applicant, if he was actually afraid that he might be harmed if he returned to Malaysia, he could have made inquiries and found out that he could apply for a protection visa. The applicant did not have anything to say in response to this proposition and, when asked whether any had any problems when he went back to Malaysia, he said it was ‘not too bad for problems’.
The Tribunal considers that the fact that the applicant did not apply for a protection visa when he first travelled to Australia and voluntarily returned to Malaysia on 15 June 2016 indicates that he was not, at that time, afraid of being harmed in Malaysia because of a dispute with his former employer or for any other reason. Furthermore, the applicant’s evidence indicates that, whilst in Malaysia, he lived continuously at the same address and the Tribunal considers that this is a further indication that he did not experience problems living in his home area. On the evidence before it, the Tribunal does not accept that the applicant left Malaysia and travelled to Australia in August 2016 for reasons relating to a wages dispute with his former employer and nor does it accept that he now fears harm for any reason related to the dispute. The Tribunal finds, based on the evidence before it, that there is no real chance that the applicant will face harm of any type – including serious harm or significant harm – from his former employer, the authorities, or any other person or group for reasons related to a dispute about the payment of wages to the applicant.
Chinese ethnicity
At the hearing the Tribunal referred to the applicant’s written claims that ethnic Chinese are discriminated against and their rights are not protected. Although the applicant’s written claims are not expressed this way, the delegate’s decision considers whether the applicant will be treated as a second class citizen and denied basic services if he returns to Malaysia because of his ethnicity. At the hearing the applicant referred to a ‘racial thing’ involving Chinese and Malaysians, claimed he had problems with a former employer who was a Malaysian and he also asserted the police threaten Chinese. However, on the evidence before it, and having regard to its findings of fact about the applicant’s claims above, the Tribunal is not satisfied that the applicant has suffered serious harm or significant harm in the past in Malaysia, including for reasons related to his Chinese ethnicity.
To the extent the applicant has suggested that there is a real chance he would face serious harm or significant harm because of his Chinese ethnicity, the Tribunal considers that neither the country information cited above nor his evidence about his experiences in Malaysia support such a conclusion. As the Tribunal put to the applicant Chinese Malaysians are the second largest ethnic group in Malaysia, there are no laws or constitutional provisions that directly discriminate against Chinese Malaysians, and Chinese Malaysians make up a high percentage of business community and freely participate in political life in Malaysia and are represented by ministers in current cabinet and opposition parties.^[10] Furthermore, while DFAT assesses that, while ethnic Chinese may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service, generally they do not experience discrimination or violence on a day-to-day basis.[11]
[10] DFAT Country Information Report, Malaysia, 19 July 2016, p.9-10.
[11] DFAT Country Information Report, Malaysia, 19 July 2016, p.9-10.
The Tribunal explained to the applicant that if he disagreed with the country information and thought he would be harmed for this reason this was his opportunity to put his case. In response he made a general assertion that Malaysians persecuted the Chinese in the past. There was nothing else he wanted to say. On the evidence before it, the Tribunal is not satisfied that any discrimination the applicant has experienced in the past because of his Chinese ethnicity amounts to serious harm or significant harm. Looking forward and having regard to the country information set out above and what it has accepted of the applicant’s claims and circumstances, the Tribunal is not satisfied that there is a real chance that he will be subject to serious harm for reasons relating to his ethnicity if he returns to Malaysia now or in the reasonably foreseeable future. Nor, on the evidence before it, is the Tribunal satisfied that there are substantial grounds for believing there is a real risk that he will suffer significant harm in Malaysia for reasons relating to his Chinese ethnicity.
Buddhist faith
The Tribunal is prepared to accept the applicant is of Buddhist faith. When asked whether there was any reason that he would have any problems practising his Buddhist faith, the applicant said Malaysia was a good Muslim country. The Tribunal put to the applicant that, while it was true Malaysia was predominantly a Muslim country, DFAT assesses that Buddhists are generally able to practise their faith without interference and they do not face official or societal discrimination on a day to day basis and Buddhists represent almost 20 per cent (19.8) of the total population of Malaysia.[12] When the Tribunal put to the applicant that it appeared he would be able to practise his Buddhist faith without difficulty he did not wish to comment. Accordingly, on the evidence before it, the Tribunal is not satisfied that the applicant has ever experienced serious harm or significant harm for any reasons related to his Buddhist faith. Nor, on the evidence before it and having regard to the country information, is the Tribunal satisfied that there is a real chance that, if the applicant returns to Malaysia, he will face serious harm or significant harm for any reasons relating to his Buddhist faith, now or in the reasonably foreseeable future.
[12] DFAT Country Information Report, Malaysia, 19 July 2016, p. 14.
Conclusions
Considering what the Tribunal has accepted of the applicant's claims and the country information cumulatively, the Tribunal finds that he does not face a real chance of persecution now and in the reasonably foreseeable future in Malaysia for reasons of his actual or imputed political opinion, or because of his religion, or his race, or because of a dispute with his former employer about pay, or for any other reason. Specifically Tribunal is not satisfied that, having regard to what it has accepted of the applicant’s claims and circumstances, that there is a real chance that his life or liberty will be threatened or that he will experience significant physical harassment or ill-treatment or severe economic hardship that threatens his capacity to subsist or be denied the capacity to earn a livelihood, where the denial threatens his capacity to subsist or that he will be denied access to basic services, where the denial threatens his capacity to subsist or that he will be subject to any other form of serious harm non-exhaustively listed under s.5J(5) of the Act. On the evidence before it, the Tribunal finds that there is no real chance that he will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
The Tribunal has considered whether the applicant is entitled to complementary protection. 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.[13] In view of the above findings and the country information set out above, and having considered all of the applicant’s claims, individually and cumulatively, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of his life, or that the death penalty will be carried out on him, or that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment if he returns to Malaysia now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
[13] [2013] FCAFC 33
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
Frances Simmons
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 3131

6 September 2017

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Immigration

Administrative Law

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Procedural Fairness

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