1803216 (Refugee)

[2022] AATA 570

1803216 (Refugee) [2022] AATA 570 (18 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803216

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Peter Vlahos

DATE:18 January 2022

PLACE OF DECISION:  Melbourne

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

This Statement was made on 18^th January 2022 at 1.00PM

CATCHWORDS

REFUGEE – protection visa – Malaysia – ethnicity and religion – Chinese Buddhist – discrimination in religious belief, education and employment – credibility – country information – consent to decision without hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1), 36(2)(a), (aa), 65, 104

Migration Regulations 1994 (Cth), Schedule 2

Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(b)

CASES

Abebe v Commonwealth (1999) 197 CLR 510

Chand v MIEA [1997] FCA 1198

Emiantor v MIMA (1998) 98 ALD 635; Emiantor v MIMA (FCA, Full Court, 20 July 1998)

Iyer v MIMA [2000] FCA 52; [2000] FCA 1788

Kopalapillai v MIMA (1998) 86 FCR 547

MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

MIEA v Wu Shan Liang (1996) 185 CLR 259

MIMA v Lay Lat (2006) 151 FCR 214

MIMA v Rajalingam (1999) 93 FCR 220

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60

Selvadurai v MIEA (1994) 34 ALD 347

Sivalingam v MIMA [1998] FCA 1167

Sundararaj v MIMA [1999] FCA 76

SZBEL v MIMIA (2006) 228 CLR 152

SZQNO v MIAC [2012] FCA 326

WAKK v MIMIA [2005] FCAFC 225

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   APPLICANT IDENTITY

2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 7 September 2017 and the delegate notified the applicant that the application had been refused by a letter dated 25 January 2018.

3. The applicant arrived in Australia [in] March 2017 as a holder of [Visa 1]. On 28 June 2017 the applicant applied for [Visa 2] which was refused on 9 August 2017. On 17 September 2017 the applicant applied for a Protection visa which the Department refused. The Tribunal has had regard to the Department files and the information on which the decision of the delegate, and relating to identity, was based.

4. Accordingly, on the basis of the foregoing evidence, the Tribunal finds that the applicant is a national of Malaysia.[1] Having established the applicant’s identity to the Tribunal’s satisfaction, the Tribunal finds that the receiving country with respect to the applicant is Malaysia.

   [1]

   RELEVANT LAW

5. The law relevant to this application for review is discussed at ‘Attachment – Extract from Migration Act 1958.’

   PRESIDENT’S DIRECTION

6. The Tribunal has regard to the President’s Direction COVID-19 Special Measures Practice Direction, Migration and Refugee Division, dated 27 April 2020. The Tribunal also had regard to the President’s Direction Conducting Migration and Refugee Reviews dated 1 August 2018. In particular:

   ·That members are to take all reasonable steps to complete cases allocated to them quickly as possible[2] and

   ·That generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application for review.[3]

   [2] Consistent with the Administrative Appeals Tribunal Act 1975, s.33(1)(b) at [2.1].

   [3] At [8.1]

   NEW CLAIMS AND EVIDENCE

7. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  On this view, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim, or to establish or assist in establishing a claim.  This is consistent with the well-settled proposition that it is for an applicant to make their own case.[4]  Applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. 

   [4]Prasad v MIEA (1985) 6 FCR 155 at 169-70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

8. Two obligations here are particularly relevant.  First, the ongoing requirement under s.104 of an Act for an applicant to ensure their relevant details are correct and to change any incorrect information at the first reasonable opportunity. 

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country.[5] 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.[6]

    [5]Section 5H(1)(a) of the Act.

    [6]Section 5H(1)(b) of the Act.

12. Under s.5J(1) of the Act, 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 s.5J(2)–(6) and ss.5K–5LA of the Act, which are extracted in the attachment to this decision.

13. If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, he or she may nevertheless meet the criterion for the grant of the visa at s.36(2)(aa) of the Act 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 (‘the complementary protection criterion’).

14. 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 s.36(2A) and (2B) of the Act, which are extracted in the attachment to this decision.

    Findings relating to applicant credibility

15. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[7]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

    [7]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

16. In Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton,[8] Foster J stated that ‘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.’[9] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

    [8](1996) 40 ALD 445.

    [9]At 482.

17. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[10] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[11]

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.

    [10](1996) 185 CLR 259.

    [11]At [25].

18. The Tribunal is not required to accept uncritically any, or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that ‘where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.’[12] Nevertheless, as Burchett J counselled,[13] it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

    [12][1997] FCA 1198 ( accessed 15 February 2017).

    [13]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

19. The Full Court of the Federal Court noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[14] On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84–86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[15] Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[16] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[17] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[18]

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often-desperate battle for freedom, if not life itself.

    [14]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 ( accessed 15 February 2017).

    [15]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.

    [16]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

    [17]MIMA v Rajalingam (1999) 93 FCR 220.

    [18](1999) 197 CLR 510 at [191].

20. The Tribunal notes, however, that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.

21. If the decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied. The Tribunal notes that in Iyer,[19] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[20]

    [19]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].

    [20]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

    Mandatory considerations

22. 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.

    ISSUES TO BE DETERMINED AND DECISION SUMMARY

23. The delegate refused to grant the applicant the visa on the basis that he did not face either a real chance of serious harm or a real risk of significant harm in Malaysia now, or in the reasonably foreseeable future, for the essential and significant reason of his Chinese ethnicity. This finding was based in part upon the lack of particulars in the applicant’s claims for protection and also on his regular and lawful departure from Malaysia prior to his arrival in Australia.

24. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    BACKGROUND

25. The applicant was represented in this Application for review by [a registered migration agent].

26. On 29 September 2021 the Tribunal wrote to the applicant’s migration agent to enquire whether the applicant would consider having his review heard by the Tribunal via a video hearing. The Tribunal that this process had been made available as a means of hearing applicants’ applications because of the restrictions imposed due to the persistence of the Covid-19 Pandemic. The applicant was advised to respond to the Tribunal’s letter no later than 6 October 2021 so that arrangement can be made for a video hearing.

27. On 13 January 2022 the Tribunal wrote a further letter to the applicant’s representative in the following terms:

    I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
    We refer to your previous email to the Tribunal dated 29 September 2021 which stated that the applicant did not wish to attend a video hearing before the Tribunal, and requested the Tribunal proceed with the application based on the documents on file.
    Can you confirm that it is the applicant's intention that the Tribunal make a decision on the papers based on the information currently before it, without holding a hearing?
    Please provide confirmation via return email in regards to the applicant's intentions as soon as possible.
    Please refer to the AAT website for information about temporary changes in place to respond to the impact of COVID-19 on services:

28. In response to the Tribunal’s correspondence, the applicant’s migration agent wrote to the Tribunal on 13 January 2022 responding as follows:

    Thank you for your email. We have once again conferred with the client and he wishes that the application to proceed without hearing.

    Yours Sincerely,

    [Mr A] ([Registered migration agency])

29. Accordingly, the Tribunal has proceeded to determine this application without taking further steps to take evidence from the applicant.

    CONSIDERATION OF CLAIMS

30. The following summary of the applicant’s claims for protection is included at Part 4 of the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant when he applied for a review of the delegate’s decision:

    ·He is of Chinese ethnicity

    ·He feels like a second-class citizen

    ·He has been discriminated in many areas of life such as religious belief, education and employment.

    Evidence

31. The applicant claims to fear being persecuted in Malaysia on the basis of his ethnicity – he is being an ethnic ‘Chinese’ and of the Buddhist religion.

32. In support of his claims for protection, the applicant was informed by the Tribunal that if he had relevant information concerning his claim for protection, he should forward them to the Tribunal to consider. Nothing was subsequently provided by the applicant to the Tribunal.

1. The Tribunal referred to the applicant’s Protection application and noted that he provided no details concerning how his Chinese ethnicity and his Buddhist religion had caused him to suffer persecution or fear persecution in Malaysia. The applicant was also on notice of adverse credibility findings made against him by the delegate in the first instance, namely, that the applicant’s claims were insufficiently particularised and that he appeared to have left Malaysia in a lawful and orderly manner prior to his arrival in Australia.

2. The Tribunal noted from the evidence provided to the Department, that the applicant had received his education in Malaysia without any issues and that prior to arriving in Australia, he had been employed. Also, from the little available evidence provided by the applicant to the Department but more importantly to the Tribunal itself following his decision to not appear in person to provide evidence and submissions, the Tribunal finds it difficult to determine when and how the applicant had suffered discrimination (as he claimed) because of his ethnicity and religion as he claimed

3. The evidence before the Tribunal is negligible.

4. The Tribunal notes the most recent DFAT ‘Country Information Report Malaysia’ dated 13 December 2019 states as follows:[21]

   [21] see, Department of Foreign Affairs & Trade Country Information Report – Malaysia, refer to paragraphs [3.8 to 3.11] at p. 21 et.al

   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  (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 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). 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 enter 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.

   ANALYSIS

5. The applicant claims to fear being persecuted in Malaysia on the basis of his race, being Chinese and his religion being Buddhism. In his Protection visa application, the Tribunal noted that the applicant identified himself as ‘Chinese’. Country information indicates that there are no laws or constitutionally entrenched provisions that directly discriminate against Chinese Malaysians. The Malaysian Constitution provided equal protection under the law and prohibits discrimination against citizens based on religion, race, descent, or place of birth. The Tribunal has nothing before it as evidence to suggest to it that the applicant will be denied state protection due to their race or that the Malaysian government would fail to provide the applicant with the same degree of protection as that accorded to any of its other nationals if required on their return. On the basis of the information before the Tribunal, the Tribunal is not satisfied there is a real chance the applicant will face serious harm in Malaysia for reasons of his race.

6. In addition, the applicant also mentions in his Protection visa application their religion being Buddhism and he having suffered discrimination because of his religious belief.

7. The latest country information provides the following as it concerned the situation in Malaysia concerning the followers of Buddhism:[22]

   [22] see Department of Foreign Affairs & Trade Country Information Report – Malaysia, 29 June 2021, see paragraphs [3.59 et al] at p.30

   Buddhists represented just under 20 per cent of the total population in 2010, the last year for which official data is available, while Hindus made up 6.3 per cent. Local sources estimate the current proportion of Chinese Malaysians who are Buddhist is around 80 per cent. Most Hindus are Indian Malaysian.

   Federal and state governments have supported the building of Hindu or Buddhist places of worship throughout Malaysia. Former Prime Minister Najib allocated MYR2 million (approximately AUD630,000) to build a new Hindu complex in Selangor on 7 February 2013 and allocated land in 2017 for a mixed-denominational religious centre in Putrajaya. A new Buddhist complex was completed in 2013 in Selangor. However, following opposition to its initial central location, the complex was re-built in a remote district, without easy public transport routes. Several Hindu and Buddhist advocacy organisations are active in Malaysia, including the Hindu Rights Action Force, an umbrella organisation of NGOs focused on addressing Indian Malaysian concerns. There have been cases in which Hindus and Buddhists have faced compulsory acquisition of places of worship and some community backlash in response to relocated temples.

   In December 2018, the government lifted a temporary suspension on the Sedition Act (1948) following a violent riot at the Seafield Hindu Temple outside Kuala Lumpur on 26 and 27 November over the proposed relocation of the temple. A group of 50 Malays – allegedly paid by the would-be developer – broke into the temple, sparking a localised riot between ethnic Indians and Malays that left several people injured and one Malay firefighter dead. Although then-Prime Minister Mahathir and the police stated it was a criminal matter rather than a racial one, media largely portrayed the incident as a racial riot. In May 2019, police arrested four men from a suspected Da’esh terrorist cell for allegedly plotting attacks on houses of worship and an entertainment outlet. Police said the accused wanted to ‘avenge’ the death of the firefighter who was killed when responding to the riot at the Seafield Hindu temple.

   In January 2021, Kedah state cancelled the holiday for Thaipusam, a Tamil Hindu festival, claiming the holiday was unnecessary because major festival events had been cancelled due to the MCO. The Malaysian Interfaith council responded that this was unacceptable and showed ‘a failure to embrace religious sensitivity in a multiracial and multi-religious Malaysia’.

   DFAT assesses Buddhists and Hindus are usually able to live free from societal discrimination on a day-to-day basis. They are usually able to worship freely without significant official interference. On rare occasions, they may face societal difficulties in cases where compulsory acquisition leads to their places of worship being relocated into inhospitable locations.

8. The Tribunal has nothing before it as evidence to suggest that the applicant will be denied state protection due to his religious belief or that the Malaysian government would fail to provide the applicant with the same degree of protection as that accorded to any of its other nationals if required on their return. Moreover, no evidence has been provided by the applicant to substantiate that he had experienced or endured discrimination because of his religious beliefs. Therefore, on the basis of the information before the Tribunal, the Tribunal is not satisfied there is a real chance the applicant will face serious harm in Malaysia for reasons of his religious beliefs.

9. The Tribunal notes that the applicant failed at the first reasonable opportunity (and then subsequently) to provide any relevant supporting evidence of the sort that one might reasonably be expected to be provided by an applicant with a genuinely subjective fear of persecution in Malaysia, including witness statements, media reports, photographs or emails. 

10. Also, when advised by the Tribunal that a favourable decision could not be made on his application based on information received as at [….] and invited to attend a hearing to give further evidence and present arguments, the applicant affirmatively responded that ‘I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear’.  In the event, the applicant did not, in fact, appear before the Tribunal at the scheduled time and date set down for the hearing.

11. It is acknowledged that it is the right of an applicant to choose not to attend a hearing and opt to consent to the matter being decided on the papers without further hearing.  However, the applicant has been clearly placed on notice that the nature of the evidence before the Tribunal was open to an adverse inference as to the credibility of the applicant’s core claims for protection.  The applicant was also given ample opportunity to present relevant evidence and was put on notice that, without further evidence, the application was not capable of favourable resolution.

12. The forgoing considerations and evidence, together with the applicant’s lack of engagement in the review process, leads the Tribunal to draw the conclusion that the applicant does not  hold a genuinely subjective fear of persecution in Malaysia from any person, for the essential and significant reason of his ethnicity as a Chinese Malaysian or because of his religious beliefs, as a follower of Buddhism, or for any other reason, now or in the reasonably foreseeable future.[23]  Judicial authority provides that, in such cases, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.[24] 

    [23]Emiantor v MIMA (1998) 98 ALD 635. In that case, the Court concluded that the Tribunal had assumed that the applicants had a subjective fear and therefore did not err. On appeal, the Full Federal Court (Emiantor v MIMA, unreported, Federal Court of Australia, Olney, Sundberg and Marshall JJ, 20 July 1998) found that although there was no express finding, in disbelieving the applicants’ evidence, the Tribunal must have concluded that they did not have a subjective fear.

    [24]See SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]. In Iyer, the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.  The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it needed to go no further in its analysis of the basis of the claim.  On appeal, the Full Federal Court affirmed that once the Tribunal rejects an applicant’s claim that there is a subjective fear, it is not necessary to determine whether the non-existent fear was well-founded: Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMIA (2003) 129 FCR 137 in which Cooper J, at [19], found that the question of objective fear does not even arise if no subjective fear arises on the facts of the case.

13. On this basis, the Tribunal finds that the applicant does not subjectively hold a genuinely well-founded fear of persecution in Malaysia, now or in the reasonably foreseeable future for the essential and significant reason of his Chinese ethnicity or because of his religious beliefs as a follower of Buddhism, or for any other reason, if the applicant were to be returned to Malaysia now or in the reasonably foreseeable future. 

14. The Tribunal further finds, on the basis of available country information, including that which was surveyed by the delegate in their record of decision, that the applicant’s unremarkable and lawful departure from Malaysia is inconsistent with what relevant country information suggests would be the case if the applicant were genuinely viewed in any adverse manner because of his ethnicity or religious beliefs by the Malaysian government, as is claimed by the applicant.

15. In light of these considerations, the Tribunal has considered each of the integers of the applicant’s claims for protection individually and then cumulatively.  Based on these considerations, the Tribunal finds that, taken at its highest, the applicant’s claims and evidence lack credibility, are vague, incomplete and lack an appropriate level of corroboration as discussed above, and do not reach a level that demonstrates the applicant faces either a real chance of serious harm, or a real risk of significant harm, now or for the foreseeable future from any person, for any reason if he were returned to Malaysia.

    COVID-19

16. The Tribunal acknowledges that the international public health crisis arising from the current COVID-19 pandemic is a factor weighing heavily on decisions for visa applicants in Australia however, the Tribunal notes that this decision is not a decision on return.  That being said, the Tribunal is mindful, that this decision has the potential to give rise to such a decision in the reasonably foreseeable future.

17. The Tribunal finds that whatever measures may be applicable to the population of Malaysia generally, in response to the present COVID-19 crisis do not, in the absence of additional considerations, constitute an intentional act or omission for the purposes of the refugee or complimentary Findings as to claims considered in this review.

    Refugee Criteria

18. The Tribunal's finding on the refugee criterion at s.36(2)(a) of the Act with respect to the applicant, based on the foregoing, is that the Tribunal is not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act due to the absence of a genuinely subjective well-founded fear of persecution in Malaysia from any person, for any reason.

19. Accordingly, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations as outlined at s.36(2)(a) of the Act.  As the Tribunal has found that the applicant is not a refugee as defined by s.5H(1) of the Act, no further assessment is required in that regard. 

    Complimentary Protection Criteria

20. The Tribunal has considered the applicant's eligibility for protection under s.36(2)(aa) of the Act, which applies where a decision-maker is satisfied that an applicant is a non-citizen in respect of whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to the receiving country, there is a real risk that the non-citizen will suffer significant harm. 

21. As discussed above in this decision, the Tribunal finds that the applicant does not subjectively hold a genuinely well-founded fear of persecution if he were to return to Malaysia now, or in the reasonably foreseeable future from any person for any reason.  The Tribunal notes that s.36(2)(aa) of the Act refers to a real risk of the applicant suffering significant harm.  The Tribunal notes that the real risk test imposes the same standard as that adopted in the real chance test for the purposes of assessing a well-founded fear.

22. For the reasons canvassed above, the Tribunal finds, that with respect to the applicant, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia that there is a real risk he will suffer significant harm now, or in the reasonably foreseeable future from any person, for any reason.  Therefore, the applicant is not a person in respect of whom Australia has protection obligations as provided at s.36(2)(aa) of the Act. 

    CONCLUSIONS

23. For the reasons given above, the Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations by virtue of s.36(2)(a) of the Act.

24. Having concluded that the applicant is not a person in respect of whom Australia has protection obligations by virtue of s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion at s.36(2)(aa) of the Act.  The Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations, by virtue of s.36(2)(aa) of the Act

25. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act, and who holds a Protection visa.  Accordingly, the applicant does not satisfy any of the criteria in s.36(2) of the Act.

    DECISION

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

    Peter Vlahos
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    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.

    …