1706455 (Refugee) - [2017] AATA 2542

1706455 (Refugee) [2017] AATA 2542 (3 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706455
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Peter Vlahos
DATE:3 August 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 August 2017 at 10:42am

CATCHWORDS
Refugee – Protection visa – Malaysia – Ethnicity – Chinese Malay – Political opinion – Involvement with Bersih 3.0 rally – Social group – Sole bread winner for family – Fear of harassment and discrimination – Credibility concerns
LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Guo (1996) 40 ALD 445
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Another (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] 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 [in] October 2016.
The delegate refused to grant the visa [in] March 2017 because the Department of Immigration and Border Protection (the ‘Department’) was not satisfied that the applicant’s application for Protection visa met the relevant criteria as set out in the Migration Act (the ‘Act’).
The applicant appeared before the Tribunal on 17 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.
The applicant was not represented by legal representative or migration agent
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 issue in this case is whether Australia has protection obligations in respect to the applicant.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality and Identity
Based on copies of the applicant’s passport which was provided to the Department of Immigration and Border Protection (the Department), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has assessed his claims against that country in relation to sections 36 (2) (a) and 36 (2) (aa).
On the basis of the abovementioned reasons, the Tribunal further accepts the applicant’s identity as is claimed.
Visa Background
The applicant arrived in Australia from Malaysia as the holder [temporary] visa [in] October 2016 and [in] October 2016 she applied for a Protection Visa (Class XA) visa and was also granted by the Department a bridging visa.
The applicant’s claims
The applicant’s claims can be summarised as follows:
§ The applicant’s husband supported the Bersih 3.0 rally.
§ The applicant was discriminated, humiliated and threatened.
§ The applicant believes it will be difficult for her to find a job.
§ The applicant had no choice but to come to Australia.
The Tribunal read the above-mentioned claims to the applicant at the hearing and asked the applicant, if he wished to vary, amend or to add to her claims. The applicant told the Tribunal that she had no changes to make to her original claims for protection.
Evidence at the Hearing
The applicant, [was] born in Malaysia in [year] and received her entire education there. Later, she was employed [from] January 2003 to January 2010. She lives in [a town] and has lived there for last six years. She has family in Malaysia which consists of her parents and [brothers], one who is currently living overseas. [The applicant] is married but is currently estranged from her husband but not divorced and has [an age] year old son who is currently in Malaysia living with her parents.
The last time the applicant had contact with her estranged husband was in 2010 and has no idea of his whereabouts. According to the applicant her husband has not shown any interest in her child’s welfare.
Involvement at the Bersih 3.0 Rally
The Tribunal was told by the applicant that the Bersih movement which manifested itself in huge public rallies was a way in which the ordinary people of Malaysia could show their opposition to the current Malaysian government. The applicant became involved in the Bersih rally because her husband was involved in it.
The Tribunal asked the applicant to explain when both she and her husband were involved in the protest rally. The applicant told the Tribunal that at the time of her involvement there “…were small rallies and large rallies…” and that they were protests by the people against the Malaysian government because it was “corrupt…” However, the applicant could not recall for the Tribunal when the Bersih 3.0 rallies had occurred.
The applicant told the Tribunal because at that time there were both “small” and “large” rallies, she “forgot …”when they had occurred.
The consequences of her involvement in Bersih 3.0 rallies
The applicant told the Tribunal that because her husband had left her and disappeared she had become the only “bread-winner” for her family. Indeed, as a result of “following her husband’s wishes” and participating in these rallies the applicant “lost her job” and this “made things difficult…” The applicant felt that her involvement made her encounter discrimination when she tried to engage with other employers in order to improve her job prospects and earning capacity. The Tribunal asked the applicant to explain how she had been discriminated. The applicant told the Tribunal that a certain employer “…made trouble for her…” or she would be stopped from going-about her business by what the applicant described as “…government officials…”
The Tribunal asked the applicant how did the ‘government officials’ come to know her whereabouts in order to cause her to feel discriminated. The applicant’s response was “…because they have eyes and ears everywhere.” Again, the Tribunal was told that it had become difficult for the applicant to be the bread-winner of the family and this role was that much more difficult since she had involved with her husband in the political rallies against the government. The Tribunal asked the applicant to explain how her involvement in these rallies added to her personal difficulties with her role as a bread-winner for her family.
The applicant told the Tribunal that “the government people” had been able to recognise her “participation…” at the rallies but offered no further details.
The applicant told the Tribunal that she could not explain how the government official knew her whereabouts: “…I do not know there he (government official) was…”
The Tribunal was told that the ‘government officials’ came to “her parent’s place to make trouble for her…” These officials harassed the applicant and as a result of this harassment the applicant claimed she could not find employment.
The applicant also told the Tribunal that the economy of her country, Malaysia was “not good” and that is why she decided to come to Australia and to seek protection in Australia.
The applicant did not want to return to Malaysia because she would be persecuted because of her participation in the Bersih rallies and that the Malaysian government provided her with no protection.
If, the applicant was a person of ‘interest’ to Malaysian authorities who did she manage to leave Malaysia on a legal passport?
The Tribunal asked the applicant to explain how a ‘person of interest’ to the Malaysian authorities as claimed was able to leave Malaysia with a legal passport. The applicant told the Tribunal “…I did not think too much about this at the time…just wanted to leave Malaysia…” The applicant went on to say that she had left Malaysia on a ‘legally’ issued Malaysian passport because “…there was a not yet tighter control…” and concluded her response by saying: “…I think government officials did not go to depth to get background to stop me…”
The applicant later told the Tribunal that “…I think I was not the main target “of the authorities’ interest in her but that they wanted her to “…tell them his whereabouts…”
What is happening in Malaysia during her absence?
The applicant told the Tribunal that “yes” her family in Malaysia have been approached by the authorities and asked about the applicant’s whereabouts. The applicant told the Tribunal that “…as long as I do not change my political opinions” “they” [the authorities] “would be after me…”
What is the applicant currently doing in Australia?
Currently, the applicant is working [and] earning approximately AUD$[amount] per week.
What are the applicant’s fears if she was to return to Malaysia in reasonably foreseeable future?
According to the applicant if she returns to Malaysia she would face “discrimination”, have “difficulties in finding a job” and will again be harassed. Faced with such a situation, the applicant did not believe she could be her family’s bread-winner.
The applicant also feels that that she will be discriminated because she is of Chinese origin and Malaysians of Chinese origin have witnessed “clashes” with the ethnic “Malays” in recent times. The Tribunal asked the applicant what was, in her opinion, the cause for this “clash” between Chinese and the indigenous Malays. The applicant made references to “different political opinions”.
Was relocation an option for the applicant to contemplate?
Relocation to another party of Malaysia was not an option for the applicant. Although she had lived separate from her family in the past, she did not thick it was possible to consider relocation to another part of Malaysia if she was to return because as “…long as I do not change my opinion the [the authorities] will not allow her” to relocate “anywhere in Malaysia…”
The applicant concluded her remarks to the Tribunal by saying that “…I think it is not hard for them [the authorities] to find out where I was…” After all, “…Malaysia is not a large country and [they] can find you…”
Country Information
The organisation known as ‘Bersih’
According to independent country information accessed by the Tribunal the idea of Bersih was initiated by five opposition parties in 2005 which later included other NGOs in this as well.[1] The term Bersih means clean in Malay and has been used to describe a coalition of non-governmental organisations (NGOs) which seek to reform the current electoral system in Malaysia to ensure free, clean and fair elections.
[1] Khoo, Y. H. (2014). Mobilization potential and democratization processes of the Coalition for Clean and Fair Elections (Bersih) in Malaysia: An interview with Hishamuddin Rais. ASEAS – Austrian Journal of South-East Asian Studies, 7(1), 111-120.
It was officially formed on 23 November 2006 a joint communiqué that comprised leaders from all political parties, civil society groups and NGOs.[2] Bersih accused the Election Commission under Prime Minister’s Department[3] for manipulating the electoral process to give an unfair advantage to the ruling National Front coalition. Bersih claimed that the electoral roll was marred by irregularities such as gerrymandering, phantom voters, malapportionment and postal vote frauds. On 10 November 2007, Bersih organised the first rally with 10,000 to 40,000 turnout and held a public demonstration at Dataran Merdeka, Kuala Lumpur. Supporters of Bersih were urged to wear yellow T-shirts as a symbol of protest. The rally was often credited for the shift in the political landscape in the 2008 general elections, when the incumbent National Front coalition failed to obtain a two-thirds supermajority for the first time since 1969. In 2010, the coalition was relaunched as an entirely civil movement (“Bersih 2.0”) unaffiliated to any political party. On 19 June 2011, former president of the Bar Council, Dato’ Ambiga Sreenevasan became the chairperson of the coalition. In 2011 and 2012, two more rallies (Bersih 2.0 and Bersih 3.0) were organised seeing that the demands for electoral reforms had not been met by the Electoral Commission.
2012 Bersih 3.0 rally
[2] “About Bersih 2.0” bersih.org.26 June 2011.
[3] “Election Commission of Malaysia” Prime Minister’s Office, 30 April 2012
Following the Bersih 2.0 demonstration, the Malaysian government set up Parliamentary Select Committee (PSC) on 2 October 2011 to respond to the electoral issues. In early April 2012, PSC released a report with 22 recommendations to improve the electoral system. The report was received and passed by the Dewan Rakyat (House of Representatives) on 3 April 2012 according to the voice of the majority without debate. An opposition minority report was proposed to be included but was rejected by the Speaker of the Dewan Rakyat.[4]
[4] Mokhtar, Ili Liyana (3 April 2012). "PSC report on electoral reforms passed in Parliament". New Straits Times. Kuala Lumpur
Bersih was unsatisfied with the PSC report as (i) the existing Election Commission was tasked to carry out the recommendations; (ii) many of the recommendations asked for a lengthy implementation period; (iii) many allegations of electoral frauds were not acknowledged in the report.[5] In light of the issues, the third public demonstration, namely the Bersih 3.0 rally, was announced and took place on 28 April 2012 at Dataran Merdeka. The Bersih 3.0 rally was a sit-down protest (Duduk Bantah in Malay). In addition to the eight previous demands, it called for:
1. Resignation of the existing Electoral Commission
2. Implementation of the 8 demands before the 13th general election
3. Observation of the 13th general election by international observers
Bersih 3.0 was endorsed by 84 NGOs. In particular, it was joined by Himpunan Hijau (Green Assembly), a civil movement protesting the Lynas rare earth project in Malaysia. In addition to the main rally at Kuala Lumpur, smaller rallies were held in 10 other cities in Malaysia, as well as in 34 other countries. Police deployed tear gas and water cannon against the protestors, despite it being a peaceful demonstration. The chaos started when police began to scatter the crowd. Tear gas and water cannon targeted the exit points and the middle of the crowd.[6]
[6] >
The Tribunal is also guided by the DFAT (Department of Foreign Affairs & Trade) Country Information Report on Malaysia, dated 19 July 2016 which describes the current situation in Malaysia concerning political demonstrations as follows:
Political Rallies
3.60 The constitution states that all citizens have ‘the right to assemble peaceably and without arms’, however, in practice the government closely administers political assemblies and rallies under the Peaceful Assembly Act (PAA) and the Criminal Code. Permits can be difficult to obtain and can be restrictive in their application. The PAA requires organisers to submit notice of a rally to authorities ten days in advance.
3.61 Individuals have been arrested for organising or engaging in rallies in contradiction with the law and the Royal Malaysian Police have on occasion used excessive force to control crowds. Bersih, a coalition of 62 NGOs, organised a series of rallies calling for improved government transparency free and fair elections in 2007 (Bersih 1), 2011 (Bersih 2), 2012 (Bersih 3) and 2015 (Bersih 4). The rallies attracted thousands of protesters and were supported by opposition parties.
3.62 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. Smaller rallies were also held in Melacca, Penang, Kuching, Kota Kinabalu with a small number of arrests. 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.
3.63 In response to Bersih 4. UMNO-linked NGOs, known as the ‘red shirts’, held a government approved rally in Kuala Lumpur on 16 September 2015. The protest messages were pro-Najib, pro-Malay and slogans and banners were ethnically charged. There were a few arrests and police used water cannons to disperse the crowd when it attempted to enter the Chinatown district.
3.64 In May 2013, the opposition PKR organised nationwide demonstrations known as the ‘Black 505’ rallies, disputing the results of the May 2013 general elections. The rallies attracted thousands of people and took place with little interference from authorities. However, police subsequently arrested and charged a number of alleged organisers under the PAA for failing to provide the required ten days’ notice for public assemblies. Reports on the number of organisers arrested range from between six to forty individuals.
3.65 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.[7]
[7] Department of Foreign Affairs & Trade Country Information Report - Malaysia, DFAT dated 19 July 2016, at p.16
Chinese Malaysians
3.4 Chinese Malaysians constitute one of the largest overseas Chinese communities in the world and are the second largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians.
3.5 Chinese Malaysians make up a high percentage of the professional and educated class, dominate business and commerce sectors and have high relative wealth compared to other ethnic groups in Malaysia. The majority of ethnic Chinese are concentrated in the west coast states of Peninsular Malaysia with significant percentages (30 per cent and above) living in the large urban centres, including Kuala Lumpur, Penang, Johor, Perak and Selangor. Credible Chinese Malaysian community contacts have told DFAT that young Chinese Malaysians increasingly seek economic migration opportunities abroad.
3.6 Chinese Malaysians freely participate in political life, represented by ministers in the current cabinet and participation in opposition parties. The largest Chinese party was traditionally the Malaysian Chinese Association (MCA), a component of the Barisan Nasional (BN) coalition. The MCA won seven seats at the 2013 election, down from 15 in 2008. An increasing number of Chinese support the Democratic Action Party (DAP), one of three opposition parties of the Pakatan Harapan coalition. The DAP won 38 seats at the 2013 election, a significant increase from 28 seats in 2008. The DAP is often portrayed in pro-government media as ‘anti-Malay’. Chinese Malaysian community members told DFAT that, while they believed this was mostly a political tactic, it did contribute to a sense of ethnic division and isolation from mainstream Malaysian society. They also commented that the 1MDB corruption scandal had galvanised anti-government support amongst Chinese Malaysians and had led to greater political engagement. For example, Chinese Malaysians were prominent in and helped contribute to the higher overall turnout at the 2015 Bersih 4 rallies
throughout Malaysia compared to earlier protests in 2007, 2011 and 2012. All four Bersih protests have called for transparent government and strengthened parliamentary democracy in Malaysia.
3.7 There are comparatively fewer ethnic Chinese in the Malaysian civil service. The predominant use of the Malay language is a major barrier to Chinese employment in the civil service. On the other hand, contacts told DFAT that Chinese employees are preferred in the private sector, mostly because many business owners are Malaysian Chinese.
3.8 Chinese Malaysians are able to access public primary or high school education but increasingly choose to attend one of the 1,284 Chinese primary schools and 61 Chinese secondary schools. This is due to concerns about the quality of public education and their perception that the public curriculum is influenced by Islam. Despite the removal of government-sanctioned ethnic quotas for public universities in 2002, admission decisions remain heavily biased towards ethnic Malays. Malaysia’s matriculation programs favour bumiputera students applying for entrance to state universities. Some ethnic Chinese are not awarded a place in public universities despite having high matriculation scores. Since the formation of private universities in Malaysia, ethnic Chinese have consistently formed the bulk of the students within Malaysia’s non-government universities. An increasing number are choosing to complete their tertiary studies abroad.
3.9 On 12 to 13 July 2015 a disturbance, referred to as the ‘Low Yat riot’, occurred at a popular retail centre in central Kuala Lumpur. More than 100 Malays shouted anti-Chinese slogans, destroyed property and attacked bystanders following social media reports that a Chinese Malaysian vendor cheated a Malay man over a fake smart phone. Police detained 25 people for rioting, sedition and theft. Officials dismissed any fraud by the vendor, and downplayed racial elements blaming the outburst on social media. Credible contacts told DFAT that the incident was not indicative of a broader trend of societal violence against Chinese Malaysians.
3.10 DFAT assesses that Chinese Malaysians generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.
FINDINGS
The issue of Credibility

The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs v Guo (1996) 40 ALD 445, the Full Court of the 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…” (see, the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraph [196]). However, the Handbook states at paragraph [203]:
“…The benefit of the doubt should, however 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 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 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, Minister for Immigration and Multicultural Affairs 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 has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; also see, Selvadurai v MIEA & Another (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
The Tribunal accepts that the applicant is a Malaysian of Chinese ethnicity.
The Tribunal accepts that the applicant was faced with a personal crisis as far as it concerned her married life. Her husband had disappeared. She did not know his whereabouts and was the sole bread-winner for her family which consisted only of her [age] year old son.
The Tribunal also accepts that the applicant had participated in an anti-government political rally in Malaysia organised by the group known as the Bersih 3.0.
The Tribunal also accepts that based on the country information persons in Malaysia do participate in political rallies targeting the Malaysian government for a wide range of reasons as suggested by the applicant in her evidence before the Tribunal.
However, the applicant’s version of events as submitted to the Tribunal at the hearing raises certain issues of credibility.
Firstly, the applicant told the Tribunal that she and her husband participated in the anti-government rallies organised by the Bersih 3.0 movement. The applicant told the Tribunal that as a result of her involvement with her now estranged husband at these protest rallies, the Malaysian authorities targeted her thereafter and she was harassed and discriminated by them resulting in her being unable to continue in her employment or in finding new opportunities for work while in Malaysia. The applicant’s evidence of this state harassment and discrimination was vague, disjointed and lacking in detail. The applicant was unable to provide the Tribunal with a credible explanation of why the authorities would wish to harass her or why she was [as she claimed] a person of interest to them. Her involvement in the Bersih 3.0 rallies was that of a mere participant as were many thousands of Malaysians and the Department of Foreign Affairs and Trade (DFAT) country information referenced by the Tribunal does report that ordinary Malaysians “face a low risk” of official attention or even detention for exercising their constitutionally guaranteed right “to assemble peaceably and without arms”. Therefore, the Tribunal finds that based on the country information (see paragraph 44) even if the applicant participated in a rally or rallies organised by the Bersih 3.0 as she claims there is a remote chance of her being arrested or otherwise persecuted by the state authorities for reasons of her political opinion or because of any imputed political opinion as a result of her following her husband and participating at any rally or rallies he participated in.
Secondly, the applicant claimed that she could not return to Malaysia because she would face harassment and discrimination because of her Chinese ethnicity. In her evidence to the Tribunal the applicant’s references to instances of discrimination as she had experienced it while in Malaysia was vague, disjointed and lacking in substance. The applicant only spoke in general terms referring to Malaysians of Chinese origin having been involved in “clashes” with ethnic “Malays” and these clashes had their origins in differing political opinions. Again, the applicant’s observations of her country and the current situation of the large Chinese minority differed substantially from country information prepared by the DFAT on the subject (see paragraph 44). In DFAT’s report Chinese Malays freely participate in the life and politics of Malaysia. They are prominent in the commercial sector and “make up a high percentage of the professional and educated class” of Malaysia. The same country information concludes that “Chinese Malaysians generally do not experience discrimination or violence on a day-to-day basis.” Therefore, the Tribunal finds that based on the country information the applicant’s claim of having faced discrimination because of her Chinese ethnicity while in Malaysia or fearing continued discrimination is without substance and not credible. The Tribunal does not accept that the applicant has suffered or will suffer discrimination in Malaysia due to her Chinese ethnicity.
For the reasons given in paragraphs 51 and 52 above, the Tribunal does not accept that the applicant was forced to flee Malaysia because of her Chinese ethnicity or for her political opinions, as she has claimed, nor that there is a real chance that he will face persecution involving serious harm because she chose to involve herself together with her husband in the demonstrations against the Malaysian government organised by the Bersih 3.0 if she returns to Malaysia now. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Migration Act (as amended). For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect to whom Australia has protection obligations under s.36 (2)(a).
The Tribunal having concluded that 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). For the reasons given in paragraphs 51and 52 above, the Tribunal does not accept that the applicant was forced to flee Malaysia because of discrimination levelled against her because of her Chinese ethnicity, or for her political opinions, as she had claimed, nor that there are substantial grounds for believing that, as necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm because she chose to participate together with her husband in demonstrations against the Malaysian government organised by the Bersih 3.0. 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.
Peter Vlahos
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.
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36Protection visas – criteria provided for by this Act
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(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.
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