1722930 (Refugee)
[2023] AATA 1574
•29 March 2023
1722930 (Refugee) [2023] AATA 1574 (29 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1722930
COUNTRY OF REFERENCE: Malaysia
MEMBER:Sheridan Lee
DATE:29 March 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 29 March 2023 at 11:10am
CATCHWORDS
REFUGEE – protection visa – Malaysia – financial hardship, standard of living and prevalence of crime – ethnicity and religion – ethnic Chinese and Buddhist – state discrimination against non-Malays – consent to decision without hearing – country information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any 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 and Border Protection on 6 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old man of Chinese ethnicity and Buddhist faith from Klang, Selangor, Malaysia.
The applicant arrived in Australia [in] December 2015 on a Subclass 601 Electronic Travel Authority visa. The visa ceased on 30 March 2016 and the applicant remained in Australia unlawfully until he applied for a protection visa on 14 June 2017.
The applicant applied for protection claiming that he could not financially support himself in Malaysia. The delegate refused to grant the visa on the basis that the state of the Malaysian economy is a situation that impacts everybody in that country, not the applicant specifically. As such, the applicant was not a person to whom Australia has protection obligations.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.
Claims and evidence
On the application for protection form, the applicant outlined that the Malaysian economy was getting worse. He believed the challenges facing Malaysia include lower oil prices, the falling value of the ringgit and a slowdown in the rate of economic growth. He claimed that the impact of these challenges was an increase in the cost of living. The situation resulted in the applicant’s monthly commitments exceeding his salary. The applicant claimed that if he returned to Malaysia, he could not support himself.
The applicant said he did not attempt to move to another area of Malaysia because the cost of living would be the same across the country. The Malaysian authorities could not protect him because they do not interfere in the economic affairs of families or individuals.
The applicant was not invited to participate in an interview with the delegate.
The delegate found that the applicant was not a person to whom Australia had protection obligations. The applicant applied to the Tribunal for merits review of that decision. A copy of the delegate’s decision and reasons was provided to the Tribunal with the application for review.
On 5 August 2022, the Tribunal wrote to the applicant to request that he complete a pre-hearing information form. On 11 August 2022, the applicant returned a completed form, confirming that he did not want to have a hearing. The applicant provided consent for the Tribunal to make a decision on the papers without inviting him to a hearing for this matter.
The applicant included some additional information in respect to his claims in the completed pre-hearing information form. The applicant outlined that:
There are some reasons why I stayed in Australia instead of Malaysia. In our country, the state's system for treating the non-Malays are unfair. In terms of education, there are restrictions on access to public universities in Malaysia. For example, if there are 100 places, Malays can occupy 70 places regardless of their grades, leaving 30 places for Chinese and Indians. Even if we get it, we may not be able to enter the department we want. Because those popular specialised departments such as pharmacy, engineering, and law are given priority to Malays.
In addition, most of the government's overseas scholarships are awarded to Malays. We can compete together, but in Malaysia, it depends on skin colour. Since I had a child, I hope she can get a quality education fairly in a better environment and have a good future in Australia.
Furthermore, I am afraid to return Malaysia due to the high cost of living to the dismal wages. As the standard of living decreases, it leads to an increasing crime rate as well. Lack of career opportunities has been credited as among the many reasons why Malaysians are choosing to move abroad to places where their skills are actually valued and they can earn a decent living. I really hope my family and I can live in Australia for the well-balanced lifestyle and contribute to the society and country.
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, I have 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.
ANALYSIS AND FINDINGS
Based on the limited evidence before me, I accept that the applicant is Chinese Malay and Buddhist. The applicant did not provide any identification that specified his ethnicity or religion, such as his Malaysian Identity Card, or MyKad. However, on his application for protection form he listed his ethnicity as Chinese and I accept that his name adheres to modern Chinese naming conventions. DFAT reports that ethnic Chinese Malaysians are generally Buddhist, Christian or Taoist, practise traditional Chinese folk religion and ancestor worship, or do not follow a religion.[1]
Refugee criteria
[1] DFAT, 29 June 2021.
For the reasons below, I do not accept that the applicant would face a real chance of serious harm because of his ethnicity or religion in the reasonably foreseeable future.
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[2]
[2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
On 8 November 2022, the Department of Statistics Malaysia reported that approximately 23% of Malaysia’s 32.9 million residents were of Chinese ethnicity.[3] Chinese Malaysians are one of the largest overseas Chinese communities in the world and are Malaysia’s second largest ethnic group.
[3] Department of Statistics Malaysia, Demographic Statistics Third Quarter 2022, accessed at >
Article 8(2) of the Malaysian Constitution forbids discrimination against citizens based on religion or race. Article 153(2), however, accords a ‘special position’ for ‘the Malays and natives of any of the States of Sabah and Sarawak’, thus permitting affirmative action policies.[4]
[4] DFAT, 29 June 2021
Nevertheless, Chinese Malaysians comprise 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.[5] Chinese Malaysians freely participate in political life, including as ministers and in opposition parties, but ethnic Chinese politicians have occasionally faced public criticism for interfering with ‘Malay rights’. 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. DFAT assesses that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector.
[5] DFAT, 29 June 2021.
Although he raised concern in respect to the preferential treatment of Malays in comparison to other ethnicities in Malaysia, the applicant provided no examples of how he was personally impacted or how he might be impacted in the future. The applicant did not claim to have engaged in behaviour that would increase his risk of harm, such as apostasy, and expressed no intention to do so.
The information reported by DFAT does not support the applicant’s claim that he has been, or would be, targeted for serious harm based on his ethnicity. Further, it does not support a finding that he would be targeted based on his religion.
I have considered cumulatively what I have accepted of the applicants claim and find that the applicant does not face a real chance of serious harm, now and in the reasonably foreseeable future, for any reason if he were returned to Malaysia. I therefore find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a).
Complementary protection
For the same reasons that I found there is no real chance of serious harm as a result of the applicant’s ethnicity or religion, I find that the real risk element of the test in s.36(2)(aa) has not been met in relation to those factors.[6] The applicant also expressed concern in respect to the economic situation in Malaysia, the general standard of living and prevalence of crime.
[6] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.
I find that there are no 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: s.36(2)(aa).
As previously outlined, in order to fall within Australia’s complementary protection obligations, there must be 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 the applicant will suffer significant harm: s.36(2)(aa). 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).
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.
On the facts, there is no suggestion that the applicant would be arbitrarily deprived of his life or that the death penalty would be carried out on him. These elements are therefore not relevant to the applicant’s claims.
The definitions of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment in s.5(1) of the Act require an element of intent. There must be an act or omission by which severe pain or suffering, or extreme humiliation, ‘is intentionally inflicted on a person’. In this case, the element of intent is not present. The general socio-economic situation in Malaysia is not one that was intentionally designed by an individual or the state to cause significant harm to the applicant. There is no intent on behalf of Malaysian society or authorities to prevent the applicant from gaining employment or accessing social services or police protections that are available to other citizens for himself or his family. While the applicant may not earn a wage comparable to that he would earn in Australia, he would not face extreme humiliation and he is not in a position of vulnerability vis-à-vis the State.
Cruel or inhuman treatment or punishment and degrading treatment or punishment does not include an act or omission that is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights. The Complementary Protection Guidelines provide some guidance on certain circumstances which will generally not be considered inconsistent with Article 7. These include general socio-economic conditions, breach of social and economic rights, absence or inadequacy of medical treatment or imposition of treatment without consent, where that treatment is a medical or therapeutic necessity.[7] This policy supports a finding that the applicant’s claims do not amount to significant harm.
[7] Department of Home Affairs, Complementary Protection Guidelines, sections 3.4.7.1 and 3.4.7.2, as re-issued 29 February 2020.
For the reasons above, I find that there are no 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: 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.
Sheridan Lee
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.
…
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.
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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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Jurisdiction
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Natural Justice
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Remedies
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