1723673 (Refugee)

[2023] AATA 3106

1723673 (Refugee) [2023] AATA 3106 (17 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1723673

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Genevieve Hamilton

DATE:17 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 17 July 2023 at 3:31pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnic Chinese – racial discrimination – religion – Buddhist – late claim not raised earlier – father killed by creditors – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

BACKGROUND

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

2. The applicants applied for the visas on 6 December 2016. The delegate refused to grant the visas on 27 September 2017.

3. The first named applicant attended a hearing of the Tribunal on 14 July 2023.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

4. Under s 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.

   Refugee

6. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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). 

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.

8. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

9. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).  The persecution must also involve systematic and discriminatory conduct.

10. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). 

11. A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3)), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. 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.

    CLAIMS AND EVIDENCE

16. The first-named applicant (hereafter “the applicant”) made protection claims.  The second-named applicant (“the included applicant”) is his mother, and she did not make any claims of her own although she signed part B of the protection application. 

17. The application states that the applicant was born in Kedah, Malaysia on [date] and that he is a Malaysian citizen, and his parents were also Malaysian citizens.  He is ethnically Chinese and his religion is Buddhism.  He speaks, reads and writes Mandarin and English.  He said he was in contact with relatives in Kedah at least twice a week.  He came to Australia with his mother.  He did not provide details of any other family members.  He arrived in Australia [in] September 2016, having departed Malaysia legally on his Malaysian passport.  Asked about previous addresses in the last 30 years, the applicant detailed a single address in Kedah.  He said he worked in 2015 and 2016 with a [company] in Singapore as a [Occupation 1], and that he completed high school in Kedah in 2015.

18. The applicant said he left Malaysia to accompany his mother.  They decided to move overseas and he chose Australia hoping to migrate.  In Australia he was used to enjoying freedom, a democratic system and peaceful life.  He could not get used to living in Malaysia again and he could not survive there.  He asked to be allowed to stay in Australia where people enjoy benefits and opportunities.   Asked whether he experienced harm in Malaysia he answered no.  He did not seek help in Malaysia (he was seeking help and protection in Australia).  Asked if he sought safety in another part of Malaysia he said he had no money.  He had no fear of persecution in Australia but in Malaysia he would live in fear every day.  He wanted to settle down in Australia and be given protection and work rights. 

19. The applicant submitted a copy of his passport (since expired) showing a number of visits in and out of Singapore from 2013 to 2016.

20. At the time the application was lodged the applicant was living in [Suburb 1].  When he lodged his review application he provided a residential address in [Suburb 2].

21. At the hearing the applicant said he and his mother left Malaysia because his father was shot dead by a creditor and the Government was also persecuting them.  Asked when his father was killed the applicant said it was in 2010 or so.  The Tribunal asked the applicant several times who killed his father but he did not answer the question.  He said that the creditors then came to the house asking for the money but they couldn’t pay it and also the Government treated them terribly.  Asked how they were mistreated by the Government the applicant struggled to answer the question and then said that life was difficult. 

22. The Tribunal asked the applicant if he had any family other than his mother and he replied that his younger sister, born in [year], was living in [City 1].  The Tribunal asked what his sister’s name was.  The applicant said he could not remember.  The Tribunal challenged this answer and the applicant said he was not feeling himself, he was very tired because he had not been able to sleep the night before the hearing.  In due course he provided a name and birth date for his sister.  This information has not been verified.

23. The Tribunal asked the applicant where he was currently living.  The applicant said he lived in [Town 1] and provided an address there, and said he had never lived in [Suburb 2].  The Tribunal showed the applicant his review application in which was written an address in [Suburb 2].  The applicant confirmed that he had written this address and that he had in fact lived in [Suburb 2] for a time. 

24. The Tribunal asked the applicant whether his mother, the included applicant, was aware of the hearing.  The applicant said his mother was now living in Sydney and that he did not have much contact with her but he had left her a message about the hearing.  She did not reply.  The Tribunal put to the applicant that this could suggest that she was not in fear of persecution.

25. The Tribunal asked the applicant if there was a death certificate for his father.  The applicant said his aunt in Malaysia (on his mother’s side) was in possession of this.  The Tribunal asked the applicant why it had not been submitted in evidence.  The applicant said they did not bring it with them.  The Tribunal queried this answer, on the basis that this would be important evidence to support their claims.  The Tribunal asked what the death certificate recorded.  The applicant said he could not remember.  The Tribunal asked whether there was a police investigation.  The applicant said there was.  The Tribunal asked if there were any documents about this.  The applicant said he did not know.  The Tribunal asked the applicant if the authorities were able to find the perpetrator.  The applicant said they did not.  The Tribunal asked whether he suspected anyone in particular.  The applicant said he was really young at the time so he could not remember.  The Tribunal put to the applicant that this was a matter that would have been discussed in his family since then.  The applicant said they never talked about it. 

26. Asked what happened after this the applicant said they moved from place to place hiding from the creditors.  The Tribunal put to the applicant that the protection application only records one address in Malaysia.  The applicant maintained that they did move around.  The Tribunal asked the applicant how much money was owed.  The applicant said he did not know.  The Tribunal queried this answer: if the debt had caused his father to be shot dead he would have an approximate idea of how much was involved.  The applicant said he did not know how to answer this. 

27. The Tribunal noted that the protection application did not mention the claims about debt and his father being killed.  The applicant said he thought he had mentioned it.

28. The Tribunal asked the applicant what he meant by harm from the Government.  The applicant said there was racial discrimination.  The Tribunal asked the applicant how this affected him.  The applicant again struggled to answer the question and then said they were constantly bullied.  The Tribunal observed that this answer was not clear, and asked how he himself was particularly harmed.  The applicant repeated that there was constant bullying. 

29. The Tribunal put to the applicant that the application itself did not mention specific instances of harm.  While the Tribunal was aware of racial discrimination in Malaysia, the available information did not indicate that ethnic Chinese were subjected to serious harm at the level of persecution.  The applicant reiterated that Chinese were deliberately provoked and bullied by other ethnic groups. 

30. The Tribunal asked the applicant what his work was after he completed his education.  The applicant said he did not work.  The Tribunal put to the applicant that there was information in the protection application about his work.  The applicant then recollected that he did work, in construction, but he could not remember where.  The Tribunal asked if the applicant had been to Singapore.  He said he had an uncle there and had been once or twice.  The Tribunal put to the applicant that his old passport, which he had submitted with his application, showed quite a number of visits to Singapore.  The applicant corrected himself, saying yes he had been many times.  The Tribunal put to the applicant that the protection application contained information that he had also been working in Singapore.  The applicant agreed with this.  Asked why he had changed his answer, the applicant said again that he was not feeling himself and asked if he could have another hearing.  The Tribunal declined this request as it was not apparent how it would assist to defer the applicant’s evidence. 

    FINDINGS AND REASONS

31. Based on the information in the application the Tribunal finds that the applicants’ country of nationality is Malaysia and that they do not have a right to enter or reside in any third country.

32. At hearing the applicant was not a credible witness and did not explain how not feeling himself caused his evidence to be fairly vague, inconsistent on some points and, to a degree, reluctant. 

33. The written claims made by the applicant (including on his mother’s behalf) did not include any particular instances of harm or precise fears in Malaysia, only mentioning in general terms that Australia had freedom and democracy, peace and opportunity, whereas they could not survive and were afraid every day in Malaysia. 

34. At hearing the applicant said that they were victims of racial discrimination but did not specify precisely how this affected them.  The Tribunal therefore places weight on the DFAT Country Information Report on Malaysia from 29 June 2021 which includes the following information:

    Chinese Malaysians

    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 largest overseas Chinese communities in the world, and are Malaysia’s second largest ethnic group. 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. Chinese Malaysians are concentrated in the west coast states of peninsular Malaysia, living in large urban centres, including within Kuala Lumpur and Penang, and the populous states of Johor, Perak and Selangor, where they comprise approximately 30 per cent of the population.

    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 as 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 ethnic Chinese party – currently holds 42 of the 222 federal parliamentary lower house seats. Chinese Malaysian community members advised that the 1MDB corruption scandal (see Corruption) had galvanised anti-government sentiment among Chinese Malaysians (as well as others) and had led to greater political engagement.

    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 (see Civil Service). 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 Malaysians report discrimination against the community in the business sector and claim unequal access to certain industries due to Bumiputera ownership laws (see Federal and State Law Enforcement Entities). 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.

    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 in Mandarin (along with Bahasa Malaysia) (see Education). 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 non-Islamic, Chinese schools. Chinese Malaysians report that members of the community living in rural areas have 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 this 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.

    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 seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector.

35. The DFAT report also says that Buddhists (the majority of whom are ethnic Chinese) are able to live free from societal discrimination on a day-to-day basis. They are usually able to worship freely without significant official interference.  

36. Based on the foregoing, the Tribunal is not satisfied that the applicants face a real chance of serious harm for reasons of their race, religion or nationality.  They did not claim to fear serious harm for reasons of their political opinion or membership of a particular social group. 

37. It follows from the foregoing that the Tribunal does not accept that the applicants face a real chance of serious harm for any of the reasons specified in s 5J(1).  The applicants therefore do not have a well-founded fear of persecution as required by s.5J(1). 

1. The Tribunal finds that the applicants are not refugees as defined in s.5H(1).  Nor are there substantial grounds to believe that there is real risk the applicants will suffer significant harm as defined in s 36(2A) on return to Malaysia, in relation to their race, religion or nationality. 

2. Regarding complementary protection in particular, the applicant belatedly claimed that his father had been killed and the family pursued by creditors.  Section 423A requires the Tribunal to draw an unfavourable inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence presented before the primary decision. 

3. At hearing the applicant could not account for the lateness of this claim other that to say that he thought that he had included it in the application.  The Tribunal did not find this persuasive considering that the applicant received a decision on his case that did not refer to it, and has had a review application on foot for several years in which time he may have corrected the omission.  The Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim relating to his father and the creditors was not raised or evidence presented before the primary decision.  The Tribunal therefore draws an unfavourable inference as to the credibility of the claim. 

4. Moreover, the applicant was unable to provide any factual details, that the Tribunal expected would have been the subject of discussion among his family considering the magnitude of the outcome (the death of his father), if these events really happened.  The included applicant did not give evidence about the events. 

5. The Tribunal therefore does not accept that the applicants were pursued by debtors or that the applicant’s father was killed.  The Tribunal is not satisfied there are substantial grounds to believe that there is real risk the applicants will suffer significant harm as defined in s 36(2A) on return to Malaysia, in relation to those claims. 

   CONCLUSION

6. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa).

7. There is no suggestion that either of them 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.  It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c),

8. Accordingly, the applicants do not satisfy the criterion in s 36(2).

   DECISION

9. The Tribunal affirms the decision not to grant the applicants protection visas.

   Genevieve Hamilton
   Member