1722781 (Refugee)
[2023] AATA 3256
•30 June 2023
1722781 (Refugee) [2023] AATA 3256 (30 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Michael Huang (MARN: 0639694)
CASE NUMBER: 1722781
COUNTRY OF REFERENCE: Malaysia
MEMBER:Peter Vlahos
DATE:30 June 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
This Statement was made on 30th June 2023 at 3.50PM.
CATCHWORDS
REFUGEE – protection visa – Malaysian – ethnicity – religion – non-Muslim – discrimination based on Chinese ethnicity – limited capacity to education – economic hardship – limited prospects to employment – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220.
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Another (1994) 34 ALD 347Any 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 dependants.
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 and Border Protection on 12 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 17 July 2017. The delegate refused to grant the visa on the basis that it was not satisfied that the applicant is a refugee as defined by section 5J(1) of the Act, nor was satisfied that there were substantial grounds for believing that, as necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk the applicant will suffer significant harm.
The applicant appeared before the Tribunal on 29 June 2023 to give evidence and present arguments. The Tribunal received oral evidence on behalf of the applicant from his mother, on the applicant’s behalf.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 (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.
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 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).
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.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
The issue in this case is whether Australia has protection obligations in respect of the applicant and for the reasons referred to in this decision that follows, the Tribunal has concluded that the decision under review should be affirmed.
Country of origins and identity
The Tribunal accepts that the applicant’s identity from the evidence before the Tribunal, was born on [DOB deleted]in Australia but his country of citizenship is Malaysia. The evidence indicates that the applicant was born to Malaysia n citizen parents. Certified copies of the applicant’s birth certificate and his parent’s Malaysian passports have been provided to the Department and to the Tribunal.[1] There is no evidence before the Tribunal indicating that any of the documents provided is a bogus document as defined by s.5(1) of the Act.[2] Therefore, the applicant has provided sufficient evidence of his identity. For these reasons, and for the purposes of consideration of the applicant’s claims for Protection, the Tribunal finds the applicant’s identity is declared in his identification documents.
The Applicant’s migration and visa history
[1] see AAT File
[2] Ibid
The applicant was born [DOB deleted]in Australia ([City 1]) to Malaysian citizen parents. On 16 July 2016 the applicant’s parents applied on his behalf for a XA-866 Protection visa which was refused but was granted the associated Bridging visa.
Protection in another country assessed
The Tribunal, based on the evidence before it, finds that the applicant does not have a right to enter and reside in a country other than Malaysia. Therefore, the Tribunal accepts and finds that s.36(3) of the Act does not apply to the applicant.
Department’s File made available to the Tribunal
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s record. The applicant provided a copy of the delegate’s decision record to the Tribunal with his application for review.
EVIDENCE BEFORE THE TRIBUNAL
Background – the Applicant’s personal history
The applicant was born in[City 1], Victoria, Australia on [DOB deleted]and is [age]-years-of-age to Malaysian citizen parents. The applicant has grandparents living in Malaysia and other family members.
The Applicant’s Protection claims
The applicant’s claims for protection and supporting evidence are contained in his File no. [file number deleted]and are as follows:
§It is claimed that the applicant would be discriminated against and politically oppressed in Malaysia due to his Chinese background.
In particular, the applicant provided the following details of his claims for Protection in his Form 866 PART C Personal details for each person included in this application which was submitted to the Department:
Question 74 Are you making your own claims for protection?
No response was provided
Question 75 I am seeking protection in Australia so that I do not return to
Malaysia “My parent’s home country”
Give responses to Questions 76 to 83 in relation to all countries you do not wish to or cannot return to,
Question 76 Why do you leave that country? Provide details.
I do not wish to follow my parent to return to Malaysia simply because I do not want to live in a country where I will be discriminated at and politically oppressed. By constitution, because I am ethnically Chinese, I will be treated less favourably than a Malay who must be Muslim as defined by the Malaysian Constitution.
I will be a second-class citizen in a country to which my parent claimed allegiance. Serious harms that can and will affect me (‘a Malaysian Chinese’) include:
Restriction in learning Chinese as mother tongue;
Restriction in freedom of religion, no license and permit to build any non-Islamic prayer house;
Restriction in job opportunities in armed forces, police and civil service;
Increasing radicalisation of Islam strikes fear in non-Muslims as the country intends to introduce.
Question 77 What do you think will happen if you return to that country?
The State will treat me as second-class citizen because of my race and the name of affirmative policy and will apply selectively and discriminatorily on me. I have no chance of getting any education funding from state as the administration decrees that 3 out of 4 scholarships holders must be Bumiputra (Malays). My career as a professional will be restricted as training places of doctors, engineers, accountants are reserved for Bumiputras who are not best qualified.
My father [[name deleted]] was discriminated by the State, he was not given a street vendor license by the Kuala Lumpur City Council in the [City 1]area whereas a Malay (sometimes he can be Muslim Indonesian foreigner too) was given one to trade. The State did discriminate against the Chinese based on race and religion.
In the name of affirmative policy, the Chinese including me was treated in a degrading manner – this amounting to significant harm.
Question 78 Did you experience harm in that country?
Yes, My father did as he was deprived of his earning a living opportunity as he was unfairly treated by the KL Bandaraya City Council for not given a license to trade because he was Chinese.
Question 79 Did you seek help within that country after harm?
No.
My father tried to go to the political party MCA and complained to the MP of Batu to get help. But he achieved nothing as the MCA party said there are too many cases like this and it was government policy to help Malay.
Question 80 Did you move, to another part of that country?
No.
It will be a futile act for me .
The Malays constitute 75% of the population and they will not change the Constitution to appease the Chinese or Indian Malaysians – it is race politics – gerrymandering based on race and religion.
Question 81 Do you think you will be harmed of mistreated if you return to that country?
Yes. As in 80.
Question 82 Do you think the authorities of that country can and will protect you, if you go back?
No.
No, the government cannot protect me and will not protect me.
Because of the inherent nature of Malaysia politics based on race and religion. The Chinese are being discriminated by law.
Question 83 Do you think you would be able to relocate within that country to an area where you will not be harmed?
No.
It is unreasonable to move to other parts of Malaysia to avoid harms and persecutions.
Other evidence before the Tribunal
The Tribunal also considered the available country information DFAT report and referred in particular to paragraphs 3.8 – 3.12 of that report which appear as follows:
Chinese Malaysians
3.8 The Malaysian Department of Statistics estimated there were 6.7 million Chinese Malaysians in Malaysia in 2020, making up around 20 per cent of the population. Chinese Malaysians are one of the biggest overseas Chinese communities in the world and are Malaysia’s second largest ethnic group. Chinese Malaysians comprise of a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia. Chinese Malaysians are concentrated in the west coast states of Penang, and the populous states of Johor, Perak and Selangor, where they comprise approximately 30 per cent of the population.
3.9 There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians (though, by implication, as the second largest ethnic group, they are the principal group affected by the constitutional preference for Bumiputera). Chinese Malaysians freely participate in political life, including for ministers (one in the current cabinet, down from four in the PH government) and in opposition parties, but ethnic Chinese politicians have occasionally faced public criticism for interfering with ‘Malay rights’. The Democratic Action Party (DAP) – a predominantly Chinese party – currently hold 42 of the 222 federal parliamentary lower house seats. Chinese Malaysian community members advised that the 1MBD corruption scandal had galvanised anti-government sentiment among Chinese Malaysians (as well as others) and had led to greater political engagement.
3.10 There are relatively few Chinese Malaysians in the Malaysian civil service. The predominant use of the Malay language can be a barrier to Chinese Malaysian employment in the civil service, but does not preclude it. Chinese Malaysians often do not apply for government positions, as they believe the positions are more likely to be awarded to Bumiputera and provide limited promotional opportunity. Conversely, Chinese Malaysians are well represented in the private sector and many small and medium enterprises and large corporations are Chinese Malaysian-owned. However, Chinese Malaysian report discrimination against the community in the business sector and claim unequal access to certain industries due to Bumiputera ownership laws. Chinese Malaysians report obtaining and maintaining a business license can be difficult, due to Bumiputera ownership quotas and pressures to pay significant bribes. Chinese Malaysians also claim Inland Revenue Board (IRB) raids of Chinese Malaysian businesses leading to fines are common. Sources claim that IRB raids for ‘verification purposes’ can close down a business for months at a time, with significant economic consequences including loss of income and frozen bank accounts.
3.11 Chinese Malaysians are eligible to access national primary or high school education, but generally choose to attend one of the nearly 1,300 national-type Chinese primary schools that teach Mandarin (along with Bahasa Malaysia). This is reportedly usually due to concerns about the quality of education elsewhere and perceptions that the curriculum has a strong focus on Islam. Chinese Malaysians report there are insufficient national-type Chinese schools in urban areas to meet enrolment demands, and cite anecdotes of families driving their children to Singapore to access to access non-Islamic, Chinese schools. Chinese Malaysians report that members of the community living in rural areas have a better access to national- type Chinese schools, although many families are unable to live in rural areas due to lack of economic opportunity. The 2019 Federal Budget specified funding for independent Chinese schools for the first time but was not continued in the following Budgets. The Chinese school qualification Unified Examination Certificate (UEC) is still not recognised for the purposes of Malaysian public university entry.
3.12 DFAT assesses Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when promotion opportunities, or opening or operating a Chinese Malaysian owned business in the private sector.[3]
[3] see, DFAT (Department of Foreign Affairs and Trade) Country Information Report – Malaysia, 29 June 2021 at paragraphs [3.8]-[3.12].
The Applicant’s evidence at the Hearing
The applicant told the Tribunal while in Malaysia, she was “employed as a [Occupation 1]” for a period of one year and then “lost her job”.
The applicant said that she was a [Occupation 1] at “[a institution]” and then told the Tribunal that she was working at a local “[organisation]
The applicant did not provide the name or location or other details concerning her place of employment.
The applicant was asked by the Tribunal to explain what qualifications she had received in order to work [in Occupation 1]as she claimed to be at ‘local [organisation]’. The applicant provided no clear answer to the Tribunal’s question requestion details of her educational qualifications.
The Tribunal asked the applicant to explain her written response to Q.76 in her Part C Application Form XA-866. The applicant said that because she was a Chinese Malaysian she had faced ‘discrimination’ in Malaysia, and this would reciprocated to her young son. The applicant said that she feared he (her son) will be discriminated because of his religious beliefs (not being a Muslim) and ethnicity (being born to Chinese Malaysian parents). The applicant said because of her son being ‘Chinese’ he will “not get a good education” and if he attends school he will “be bullied” by ethnic Malay students.
The applicant told the Tribunal that Chinese Malaysians are treated as “second-class citizens” in Malaysia. The applicant said that if she wished to apply for a series of ‘government subsidies’ or for access to ‘better housing’ she would not be treated on an equal basis as the ethnic Malays. Preference is always given to ethnic Malays.
The applicant said that she has faced “discrimination” in Malaysia all “her life”. The applicant said that she was discriminated “at school”
The applicant said that “she received an education” but “had to pay a lot of money” for her education”. This was not fair and should not be the case for her young son.
The applicant also referred the Tribunal to issues concerning her husband being the victim of discrimination. The applicant said that her husband had made an application to the local city council to obtain a license to operate a “street-stall business” and was “refused” because of his Chinese ethnicity. The applicant said that her husband could not obtain the license he wanted because he would have to provide officials with a significant bribe which he could not provide.
The applicant said that in Malaysia her husband worked as a “[job 1]” at a local [business].
The applicant said that raising a child was very difficult in Malaysia if one has a low-paying job.
The applicant said that many Chinese Malaysians are subjected to “discrimination” in Malaysia. If one is a “rich Chinese Malaysian” can afford to send you children to “good” middle schools.
The applicant said that “one can work hard” in Malaysia but it is difficult to achieve better for children. The applicant said her parents struggled to look after her when she was young.
The applicant said that she was “bullied” at school because of her Chinese ethnicity and had ‘racist comments’ made to her by her teachers when they became upset with her for some reason. The applicant said she often was told “you Chinese, go back to China…”
The Tribunal also heard from the applicant’s migration representative, Mr Huang who addressed the Tribunal on matters concerning the country information concerning the Chinese minority in Malaysia.
Mr Huang told the Tribunal that the ‘discrimination’ faced by Chinese Malaysians was not ‘low-level’ as the DFAT report discusses and concludes but widespread and very forceful in all levels of society and the state. The issue of preference towards the ‘Bumiputera’ the ethnic Malays is pre-dominating the state and society and the policies of the Malaysian government. Furthermore, Mr Huang said that what was disturbing in recent year was the tilt of state opinion towards ‘Islam’ and the attempt through law and policies introduced by the Malaysian government towards achieving a “Islamisation” of the Malaysian state.
No further submissions were provided.
TRIBUNAL’S CONCLUSIONS ABOUT THE APPLICANT’S CLAIMS
The issue of credibility
The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note made by Foster J at [194]:
“…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, unless there are good reason 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 [204] that:
“The benefit of doubt should, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing this, it is important to bear in mind the difficulties often faced with 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 be possibly true, see: MIMA v Rajalingam (1999) 93 FCR 220.
However, the Tribunal is not required to accept uncritically any, or all of the allegations made by the applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that the particular assertion of an applicant has not been made out, see: Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Fear of harm for reasons of Chinese ethnicity
The Tribunal accepts that the applicant is of Chinese ethnicity as are his parents.
As noted above, DFAT reports that Chinese Malaysians are one of the biggest overseas Chinese communities in the world and the second largest ethnic group in Malaysia, making up to 20% of the population. They reportedly compromise a high proportion of the professional and educated class and tend to be wealthier than other ethnic groups in Malaysia. The applicant accepts the evidence provided by the applicant’s mother that this does not equate to universal wealth among the Chinese Malay community and she (the mother) and her husband (the applicant’s father) are from a relatively lower socio-economic background.
There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians who freely participate in public life. DFAT acknowledges that there are relatively few Chinese Malaysians in the Malay civil service and Chinese Malaysians report being discriminated against by affirmative action policies favouring ethnic Malays and other indigenous groups (bumiputera), particularly in relation to higher education and government employment.
DFAT reports that Chinese Malaysians freely participate in public life, including as ministers in the current cabinet and in opposition parties and are well-represented in the private sector, although there are relatively few Chinese Malaysians in the civil service. Chinese Malaysians are able to access government provided national education or choose to attend Chinese primary schools that teach in Mandarin.[4]
[4] see, DFAT (Department of Foreign Affairs & Trade (Australia) Country Information Report – Malaysia, 29 June 2021 at paragraphs [3.8] to [3.12].
In view of DFAT’s advice and applicant’s and her representative’s responses to that advice cited above, the Tribunal accepts 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. The Tribunal further accepts that Chinese Malays face some disadvantage in the use of the official Malay language.
The fact that a person is from a relatively lower socio-economic background or that they experience some level of discrimination (as the applicant’s mother claimed while at school and feared the same experience for the applicant son or the way the applicant’s father was treated when applying for a food stall operation license which was refused) 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 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 then person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; and,
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
The Tribunal is not satisfied there is a real chance that any discrimination the applicant may experience for reasons of his Chinese ethnicity will rise to the level of serious harm in particular circumstances of the applicant. In coming to that assessment, the Tribunal notes the following:
·The applicant (the applicant’s mother) did not indicate any specific harm to have been experienced by her when in Malaysia because of her Chinese ethnicity.
·While the applicant’s mother in her responses to the Tribunal’s examination of her circumstances while in Malaysia stated that she faced barriers to accessing education, employment and business opportunities because of her Chinese background and feared the same happening to her son, the applicant’s mother did not identify with those barriers and has provided no details of unemployment in Malaysia for any period. Indeed, she said in her evidence that she had a proper education and was employed for a period as a “[Occupation 1]” at a local “[organisation]”. On the other hand, while her husband was (it was claimed) refused a license to operate a food-stall by the local council, he was gainfully employed in a local [business].
·The applicant’s mother claimed that she was the victim of ethnic taunts and “bullying” while at school and this made it challenging (for her) to navigate various aspects of life such as seeking employment. The applicant’s mother feared the same would happen to her son as he grows up in Malaysia. That being the case, the applicant provided no details of the actual difficulties she had experienced in recent times or of any difficulties she may have experienced with the Malaysian authorities because of her Chinese ethnicity. The applicant also said that her husband was treated badly because of his Chinese ethnicity when he sought to obtain a food stall permit which was refused but the applicant provided no documents. However, the applicant has provided the Department with a copy of a passport issued to her by the Malaysian authorities. The same was done for her husband and if required for her young son who, for all intents and purposes is a Malaysian citizen and has a legal right to be issued his own passport and identity papers.
·The applicant’s mother claimed that she feared the ‘Islamisation’ that is going on in Malaysia and that this would have an adverse impact on her and in particular, her son because he will not be allowed to worship freely his religion. The applicant did not provide any comment as to her or her husband’s religion and none was noted at Question 30 (at p.15) on the Protection visa application Form. Moreover, the applicant provided no examples of her being prevented to practice her religious beliefs while living in Malaysia.
On the evidence before it the Tribunal is not satisfied the applicant would be denied basic services or the capacity to educate himself and to earn a living of any kind or suffer economic hardship such as would threaten his capacity to subsist. The Tribunal notes that the list of instances of serious harm in s.5J(5) of the Act is not exhaustive, however, it 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 his Chinese ethnicity if he returns to Malaysia now or the foreseeable future. It follows that the Tribunal does not he meets the criteria set out in s.5J(4)(b) of the Act.
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 he will suffer significant harm.
‘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.
As noted above, the applicant stated in his visa application (submitted by his mother) did not indicate that that actual harm was experienced. 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 of ethnic Malays, particularly in relation to access to tertiary education and employment in Malaysia’s civil service, the applicant (applicant’s mother) has not suggested that any person or group will seek to arbitrarily deprive him of his life or subject him to torture, not that the death penalty would be carried out on him. In absence of any detail or evidence as to the actual discrimination having been suffered by the applicant’s mother when attempting to seek employment or services generally available in Malaysia, the Tribunal does not accept there to be a real risk the applicant will be subjected to discrimination rising to the level of cruel or inhuman treatment or punishment or degrading treatment or punishment as those terms are defined in the Act. It follows that the Tribunal does not accept there to be substantial grounds for believing that there is an real risk the applicant will be subjected to significant harm as that term is exclusively defined in s.36(2A), as a necessary and foreseeable consequence of being removed from Australia with his parents to Malaysia.
Conclusion
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.
Peter Vlahos
MemberATTACHMENT - 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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Standing
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Natural Justice
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Appeal
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