1714542 (Refugee)

[2022] AATA 4702

1714542 (Refugee) [2022] AATA 4702 (23 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714542

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Murphy

DATE:23 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 November 2022 at 10:20am

CATCHWORDS  
REFUGEE – protection visa – Malaysia – race – Chinese ethnicity – preferential treatment for ethnic Malays – persecution must involve ‘serious harm’ – decision under review affirmed 

LEGISLATION 
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 2 March 2017. The delegate refused to grant the visa on the basis that they were not satisfied Australia has protection obligations towards the applicant.

3. The applicant appeared before the Tribunal on 18 November 2022 to give evidence and present arguments. At the applicant’s request that hearing was converted from an in-person hearing to a video hearing. At the commencement of the hearing the applicant advised the Tribunal that she was suffering from hay fever symptoms but that she wished to proceed with the hearing by video. 

   Criteria for a protection visa

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

5. 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.

6. 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 themselves 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).

7. 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.

8. 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

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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

10. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

11. The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Malaysia and she has been assessed on that basis by the Department. The Tribunal finds she is a Malaysian citizen and has assessed her claims against Malaysia as her country of nationality and the receiving country.

    The applicant’s personal background

12. The protection visa application indicates the applicant is a [age]-year-old female from Taiping, Malaysia. She completed her primary and secondary studies in Malaysia before travelling to Australia for the first time in 2013.

13. At hearing the applicant told the Tribunal that she had come to Australia on a student visa and that she had completed her Australian studies. She is currently employed as a [Occupation 1] in a [workplace] and she has a partner in Australia.

14. The Tribunal accepts these matters to be true.

    Claims for protection

15. In the protection visa application, the applicant stated (in summary) that she left Malaysia because the Malaysian government was giving citizenship to illegal people from other countries if they convert to Islam. She claimed that the Malaysian government gives priority to Malay Muslims and discriminates against non-Malays of other races and religions in terms of education, job opportunities and personal background. She stated that she was discriminated against because she is Malaysian born Chinese. If she returns to Malaysia, she will struggle to improve herself and that the racist sentiment is becoming worse due to the political dominance of Malays. discriminating against people of other races and religions.

16. The visa application stated that that during the Bersih riots in 2013, she was passing by when she was hit on the shoulder even though she was not wearing a yellow shirt identifying herself as a Bersih supporter and she thinks this happened because she was Chinese. She reported the incident to the police at the assembly area but was told to go home and make a police report. She lodged a police report the next day but they were unable to trace the person responsible for harming her.

17. However at the commencement of the Tribunal hearing, the applicant stated that she wanted to be completely honest with the Tribunal and that she had no genuine reason for seeking Australia’s protection.

18. She gave evidence that when she finished her studies in Australia, she knew her student visa was ending soon and a friend introduced her to someone who claimed to be a lawyer. That person said she would take care of her visa issues if the applicant paid her a certain amount of money. She went with that person to a Justice of the Peace, where she signed the visa application without knowing what was in it. She said she didn’t really understand what a protection visa was or the ramifications of her actions until a few years ago, when her family were denied entry to Australia when they tried to visit her. She tried to find the lawyer to ask her what was happening, but that person had disappeared and she couldn’t contact her.

19. At hearing I discussed the contents of the protection visa application with the applicant, explaining that she had claimed to fear persecution in Malaysia because of her Chinese ethnicity. The applicant stated that it was true that Chinese Malaysians faced some discrimination in Malaysia, but that it wasn’t a matter of life and death and she didn’t think she would face harm in Malaysia if she returned.

20. In relation to the details of the claims made on her behalf in the visa application, the applicant stated they were not true. Specifically the applicant gave evidence that she had never been involved in politics in Malaysia and had not attended the Bersih rally, nor had she been assaulted at that rally. She confirmed that she had not made a police report about an assault, nor had she moved to another part of Malaysia as stated in the visa application. Rather the applicant stated that she had a job, a partner and a house in Australia and for these reasons it is not easy for her to leave Australia.

21. I discussed with the applicant the contents of the DFAT report, including that Chinese Malaysians report being discriminated against by affirmative action policies favouring ethnic Malays, particularly in relation to higher education and government employment.[1] I discussed with her that such discrimination may not give rise to the level of persecution or significant harm and the applicant stated that she agreed. I advised her that it did not appear that she engaged Australia’s protection obligations and the applicant said that she understood.

    [1] DFAT Country Information Report: Malaysia 29 June 2021 at 3.8 – 3.12

22. In view of DFAT’s advice cited above, I accept that Malays of Chinese ethnicity face a level of discrimination in Malaysia as a result of preferential treatment for ethnic Malays, particularly in relation to access to tertiary studies and government employment.

23. The fact that a person experiences some level of discrimination or a particular right is denied is not necessarily enough to establish persecution. Under s 5J(4)(b) of the Act, persecution must involve ‘serious harm’ to the person. Section 5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test, listing the following as instances of ‘serious harm’:

    (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.

24. I do not accept there to be a real chance that any discrimination the applicant may experience for reasons of her Chinese ethnicity will rise to the level of serious harm in the particular circumstances of the applicant. In making that assessment I note that the applicant’s evidence that the events described in the protection visa application did not in fact occur and that she does not think she would be harmed by any person or group on return to Malaysia.

25. Further, the applicant has completed her primary and secondary schooling in Malaysia before undertaking further studies in Australia as the holder of a student visa. She currently works as a [Occupation 1] in an Australian [workplace] and she does not suggest that she will be denied basic services or the capacity to earn a living of any kind if she returns to Malaysia. Nor does she suggest that she would experience economic hardship in Malaysia such as would threaten her capacity to subsist.

26. While the list of instances of serious harm in s 5J(5) is not exhaustive, the Tribunal does not accept there to be a real chance that the applicant will be subjected to ‘serious harm’ for the purposes of s 5J(5) for reasons of her Chinese ethnicity if she returns to Malaysia now or in the foreseeable future. It follows that the Tribunal does not accept she meets the criteria set out in s 5J(4)(b).

27. In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether 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 she will suffer significant harm.

28. ‘Significant harm’ is exclusively defined in s 36(2A) as follows:

    (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.

29. As noted above, the applicant does not claim that she will be harmed or mistreated by any person for any reason on her return. While the Tribunal has accepted that Malaysian nationals of Chinese ethnicity are subjected to a level of discrimination in Malaysia as a result of preferential government treatment for ethnic Malays, the Tribunal does not accept there to be a real risk that any future discrimination the applicant may experience will rise to the level of ‘significant harm’, as that term is exclusively defined in s 36(2A).

30. For these reasons the Tribunal does not accept there to be a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia. 

    CONCLUSIONS

31. 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).

32. 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).

33. 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

34. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Alison Murphy
    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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 the 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.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …