1807698 (Refugee)

[2024] ARTA 688

1807698 (REFUGEE) [2024] ARTA 688 (19 NOVEMBER 2024)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Home Affairs

Tribunal Number:  1807698

Tribunal:General Member A. Faram

Date: 19 November 2024

Place:Melbourne

Decision:The Tribunal affirms the decisions under review.

Statement made on 19 November 2024 at 12:02pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – race – ethnic Chinese – political opinion – DAP supporter – Bersih movement protest – Sarawak and Sabah independence – employment – physical assault – fear of terrorism activity – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 359A, 424A, 499
Migration Regulations 1994, Schedule 2, cl 866.221

CASES

Becciev v Moldova (2007) 45 EHRR 11
Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Davies v State of Victoria [2012] VSC 343
Islam v Director General of the Justice and Community Safety Directorate [2016] ACTSC 27
M v Secretary of State for the Home Department v Z [2002] EWCA Civ 952;
MIAC v SZQRB (2013) 210 FCR 505

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW AND PROCEDURAL HISTORY

COUNTRY OF REFERENCE MALAYSIA

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 February 2018 to refuse to grant the Applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The Applicants are a couple and are in this decision record referred to as the First Applicant ([named], born [year]) and the Second Applicant ([named], born [year]).

3. The Applicants, citizens of Malaysia, applied for protection visas on 11 December 2017. The delegate refused to grant the visas on the basis of their assessment that the harm feared was not for a refugee reason and, with respect to the complementary protection provisions, because there was no real risk the Applicants would experience significant harm if removed from Australia to Malaysia.  

4. On 21 March 2018, the Applicants sought review of the delegate’s decision by lodging a review application with the Administrative Appeals Tribunal (the AAT). Their matter was constituted on 24 January 2024, and they appeared before the AAT on 21 May 2024 and 27 May 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of interpreters in the Mandarin and English languages and the Malay and English languages.

5. On 16 September 2024, a letter was sent to the Second Applicant under section 424A of the Act.[1] This letter related to oral evidence given by her husband and invited her to comment on information that would, subject to her comments, be the reason or part of the reason for affirming the decision under review. On 25 September 2024, the Applicants commented on the information. These matters are further set out and considered below. 

   [1] As then in force. An obligation to invite comment on information that would, subject to an applicant’s comments, be the reason or part of the reason for affirming a decision under review is now set out in section 359A of the Act. 

6. On 14 October 2024, the Administrative Appeals Tribunal (AAT) was replaced with the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

   BACKGROUND AND EVIDENCE BEFORE THE TRIBUNAL

7. The Applicants arrived in Australia [in] October 2017. In their protection application, they explained that the First Applicant is of Malaysian Chinese ethnicity and Buddhist, and that the Second Applicant is Malay and Catholic. They are from Kuching in Sarawak, Malaysia.

8. They gave the following reasons, by way of list, for seeking protection: riots, terrorism activity, serious crime, loss of confidence in the country’s leader, racism, that Sarawak and Sabah are seeking independence, and economic difficulties including joblessness that threaten their ability to survive and support their family.  

9. Information and evidence before the delegate were limited to copies of their passports and the completed protection visa application form.

10. As noted above, the Applicants sought review of the delegate’s decision. In response to the pre-hearing information form, they wrote that they had suffered discrimination and threats in Malaysia and wished to attend a hearing.

11. Prior to the hearing they also provided the Tribunal with photo images of the First Applicant with stiches in his head; another image of marking and bruising on a torso; and an image of a car with two broken sections in the back window. Also provided was a copy of two medical documents relating to the First Applicant’s brother who remains in Malaysia and who is undergoing medical treatment, and two documents relating to the First Applicant resigning from the [business 1] that he ran with a friend.    

    Oral evidence – First Applicant

12. The First Applicant gave oral evidence to the Tribunal. He is now [age] years of age, and he and the Second Applicant met in Sarawak in 2004. As far as he knows, their families have always lived in Sarawak. His parents had [number] children. His father passed away in 2022, and his mother continues to live in Kuching. She lives with his [brother], who is sick and has had [a medical condition] and [treatment].

13. He has [specified other siblings]. One lives in Kuching, and one lives in Johor Bahru. He and the Second Applicant have one child, a son born in 2006. He is currently living with his [sibling] in Johor Bahru.

14. Before he came to Australia, the First Applicant had a company called [Business 1]. He said that he withdrew from the company not long after he came to Australia because he needed to focus on work here and did not have time to manage the company there.

15. He did not finish high school in Malaysia. His brother had gotten sick, and the First Applicant needed to leave school to earn money to help his family. He did a lot of casual work, doing [specified jobs], and he also worked in [Country 1] for 5-6 years, having first gone there when he was around [age]. In [Country 1] he had worked at a [factory]. He did not receive any training for the [specified] work he did and was only paid around MYR 8-10 a day.

16. Asked why he came to Australia in 2017, the First Applicant said that on 19 November 2016 an incident happened, and that he should not have joined the gathering of the opposition party. Since he joined the gathering, he was hit by others and threatened. Asked when he joined the opposition party, the Applicant said that in October 2019 everything was fine, but then he was hit by people on 19 November 2016.

17. The Tribunal asked the Applicant what the opposition party was, and he said that it was the DAP, and that its symbol was a rocket. He did not know what the letters DAP stood for.

18. Asked why he joined them, the First Applicant said his friend asked him to attend their gathering, and so he did this. He regrets doing this as it caused him harm. The Tribunal asked the Applicant when that happened. He showed the Tribunal a photo of a car with its windscreen smashed and said that he was attacked on 19 November 2016. They smashed his car and robbed him of his phone and bag. Company documents for his [business] were in the bag. He had a head injury and bruises on his back from the assault.

19. The Tribunal sought to clarify with the First Applicant how long he had been involved with the DAP before the incident happened. He said that he had not been involved with them before the gathering.

20. Asked who attacked his car, the Applicant said he got out of his car and was headed home and did not see very clearly who had hit him. They hit him on the head, and on the back, and they threatened him and asked him not to pay the party fee.

21. The Tribunal sought to clarify if he had done anything in October 2016. He said that in October, his friend asked him to join the group for some gatherings, but back then, in October it was fine. In November 2019, the incident happened. On that day, there was a very large gathering for the DAP. That night he was attacked. They were protesting against government corruption. There were gatherings throughout Malaysia, but he attended the one in Kuching, Sarawak.

22. The Applicant said that the attack on him happened on the day of the gathering, but occurred when he was back home. He left the gathering, parked his car near his home and people then attacked him.

23. Asked about the [November] event, the Applicant said that there were a lot of people gathered to protest about the Prime Minister. They wanted him to leave office because of corruption.

24. The Tribunal asked the First Applicant whether anyone spoke at the gathering. He said they did, but he did not remember who. He said that what was talked about was corruption and getting rid of the Prime Minister. The Tribunal asked the First Applicant if people wore a particular colour to the gathering, and he said that they wore yellow. He also wore yellow, and then he got attacked. The Applicant said that his home was about [distance] from the gathering.

25. He was attacked in the evening. The gathering had been earlier in the day. The Tribunal asked the Applicant if there was any violence at the gathering. The Applicant said, yes, some Malay people had come and had wanted to hit others. Asked how many people were there doing that, the Applicant said that he did not see very clearly, he had wanted to leave quickly because he was scared they would come to hit him.

26. The Applicant confirmed that their violence had prompted him to leave the gathering. Asked if any of his friends were hurt, the Applicant said that his friends were not hurt, though one of them has since left Malaysia.

27. The Applicant gave evidence that the Second Applicant did not attend the gathering and had been at home looking after their child. He did not know if she also supports the DAP. Asked if she supported his attendance at the gathering, the Applicant said that he did not tell her he was going to the event. 

28. The Tribunal asked the Applicant what violence he witnessed at the gathering. He said that they wore red, and some wore black, and they asked us not to talk freely and not to attend DAP party meetings.

29. The Tribunal asked the Applicant if he was aware of another name being used to describe the party or the gathering. He asked if he could ask his wife or play something from his phone. After reviewing his phone, he spelt out the name of Bersih and mentioned Bersih 5.0. The Tribunal asked the Applicant what Bersih meant to him and he said it means we oppose the Prime Minister’s corruption, and those things.

30. The Tribunal asked the First Applicant what he and his friend did, between October and November, for the DAP. He said he’d done nothing. When the Tribunal mentioned it understood his earlier evidence to have indicated that he had done something in relation to the DAP in October, he said yes, but that he had not gone to a DAP meeting.

31. The Tribunal asked the Applicant what the relationship was between DAP and Bersih. He said that they oppose government problems such as racial problems. The Tribunal asked the First Applicant who leads the DAP and he said Lin Quan Sian.

32. The Tribunal noted that the head injury in the photo looked significant and asked the First Applicant whether he required medical attention. The Applicant said that neighbours saw what had happened to him and took him to the government hospital where he stayed for a week. Asked if he could provide copies of his medical records, the Applicant said that at government hospitals, they did not give people their medical records unless they paid for them. 

33. The Tribunal asked the First Applicant whether he went to the police after the attack. The First Applicant said that the attackers had warned him against that. He was afraid of calling the police and afraid that his wife and child would also be hurt by them. He also said that he did not call the police because he did not know who they were, and in Malaysia the law does not allow people to randomly say something. There were no cameras that would have caught the incident, and so he did not call the police.

34. The Tribunal asked the First Applicant whether, aside from this incident, there were any other reasons he did not want to return to Malaysia. The First Applicant said that his concerns related to this incident, nothing else.  

35. The Tribunal asked the First Applicant why he had not included the incident in his protection application form. The Applicant said that when he first came to Australia, he did not have many friends here to ask for help. He thought Australia would be like [Country 1] where he had previously lived and that he would be issued with a work permit. After he went to work on the farm, his work mates there said that that was not how it worked in Australia. One of them, who had better English than they did, helped him to make the application. He talked to him about the incident, but he is not sure he wrote it in the forms or not.

36. The Tribunal took the First Applicant through claims in his form. Asked if he fears riots in Malaysia, the First Applicant said that that was still a concern. He added that when his father passed away, he had wanted to return to attend the funeral, but his mother had told him that there were strangers who were not related to them at the funeral. She was worried that something would happen to him if he returned.

37. The Tribunal asked the First Applicant about the [business 1]. He said that business had previously been fine, and had supported their family, but did not make a lot of money. The Tribunal noted to the First Applicant that the form had said he had been jobless, and that he could not survive nor support his own family in Malaysia. The Applicant said that one of their projects had been targeted and damaged after he was attacked, and they lost money on that as a result. This happened in 2016, after he was assaulted and robbed.

38. Their projects involved them [specified services]. He thinks they were able to target the project because information about it had been in the bag that was stolen from the car when he was attacked. After this incident, he was responsible for fixing the project and had had to borrow money from friends to do so. He then quit the company.

39. Asked about having borrowed money, the Applicant said that he had borrowed around AUD20,000 from a friend. This money was lent to him after his dad died. His brother requires [weekly treatment] which costs money.

40. He said that after the incident he had also come to Australia in a hurry and had asked a friend to lend him money. He is paying the friend back slowly.

41. The Tribunal noted to the Applicant that his application form talked about Sabah/Sarawak separatism. He said that they previously wanted to collect signatures and to be independent. The Tribunal asked the Applicant if he had any concerns for his safety on account of this. He said no, he had signed a petition but was not afraid on account of this. 

42. The Tribunal noted that the application form mentioned terrorism activity, and asked the Applicant whether he feared harm on this basis. The Applicant confirmed that he did and stated that a couple of days ago a male had killed two policemen in Johor Bahru. He said that the house of a DAP member was also set on fire in January 2024, and that someone else had yesterday received a threat letter.

43. The Tribunal noted that the application form also raised serious crime as a concern. The First Applicant confirmed that there are so many serious crimes and that just the other night, a couple was injured. The Tribunal explained to the Applicant that when it came to considering risks on account of criminal actors, it was necessary for the Tribunal to consider whether there was risk specific to him, or whether it was something that members of the community in general can expect that they might face at some point in time. It would also be necessary to consider whether there was a real chance the thing feared would happen to him.

44. The Tribunal noted to the Applicant that his form had said he had lost confidence in the leader. He confirmed that was the case. The Tribunal noted that the government has changed since he was last in Malaysia and asked him to further explain what he meant and how it affected his life. He said that the government in Malaysia is not steady. One of the leaders stepped out of office after 21 months, another also stepped out after a short time.

45. The Tribunal asked the Applicant if he thought this instability meant it was not safe. The Applicant gave evidence about the opposition, and that while he did not know if there would be a riot in Malaysia now or in the future, he did not want to take that risk.

46. The Tribunal noted that his form talked about racism. The Applicant said that in Australia the situation is very good: people respect each other and are polite. In Malaysia, they do not like the Chinese and it is not very good. The Tribunal noted that there are a lot of Chinese Malaysian people in Kuching and asked the Applicant whether he agreed. He said that some Malay people would threaten them. The Tribunal asked the Applicant if this had happened to him, and he said that it had happened to him when he was young. Asked how old he had been, the Applicant said that it happened when he was 14 or 15 years of age. Asked who would do this and what they would say, the Applicant said that when they were young and hanging out, they would catch and threaten him. The Tribunal asked whether he was talking about other Malaysian youths. The Applicant said that they were adults and members of a motorbike party or gang. If they were not happy with someone, they would hit them. He thinks they still exist as a group.  

47. The Tribunal discussed with the First Applicant that country information indicated there was positive discrimination in Malaysia in favour of the bumiputera, and that while there had historically been ethnic tensions, things tended to be fine now. The Tribunal noted that Chinese Malaysians were often better off financially than others in Malaysia. The Tribunal explained that it would consider what the Applicant had said about his teenage experiences, but that country information before it did not really support the conclusion that someone would experience serious harm in Malaysia because of racism.

48. With respect to what the First Applicant had confirmed was his core claim, the Tribunal explained that it might find it difficult to accept his evidence. This was because country information indicated that the Bersih Kuching event took place without incident and that there were no so-called ‘red shirts’ there. The Tribunal said that it thought that had events such as the ones he had experienced occurred, then they may have been reported in the country information. The Tribunal asked the First Applicant if there was anything he wished to say about the reporting on Bersih in Kuching.

49. The Applicant said that he did not say that the people that had hit him had been wearing red. He did not know who had hit him, and they had threatened him not to talk about it. The Tribunal noted he had also talked about violence at the gathering. The Applicant said that that violence had happened. They probably did not report it, but he saw them with his own eyes. It was not a very big riot: they hit and then ran away, and then they hit and ran away. Whether it was reported or not, he didn’t know.

1. The Tribunal asked the First Applicant why they had followed him home, noting there had been many people at the rally. He said that he did not know. They followed him, and it was when he got home that he came to know that he had been followed by them. He suggested that had it been people from his home area, he would have reported it to the police.

2. The Tribunal asked the First Applicant what his attackers said to him. He said that they asked him not to attend gatherings, and not to freely talk. The Tribunal asked the First Applicant about them having hit him, and he confirmed that it happened when he was outside the car. He said that separately from hitting him, they also smashed the windscreen.

3. The Tribunal explained that it had some doubts about the evidence he had given about what had happened in November and was not sure it would accept that evidence. The Tribunal added that even if did accept that he was supportive of DAP or Bersih and had been to the rally, it was not sure that would mean there was still a risk of harm to him in Malaysia now. The Tribunal asked the Applicant why the events would still present a risk of harm to him on return, or in other words why he was still scared of harm to Malaysia. The Applicant said that he did not know who hit him, or who damaged his project which led to his being jobless, or who was after his wife. And adding all of these things up, he is still afraid. He expects they might have been gangsters, but he does not know who they are.

4. The Tribunal asked the First Applicant why he thought his support for DAP/Bersih motivated their harm against him, which had been his earlier evidence. He said that he thought this because before this everything was fine. The Tribunal asked the First Applicant if they had also told him not to sign up for the party or to attend meetings and gatherings of the party.  He confirmed that that was what they had said.

5. The First Applicant said that at some point after he was attacked, someone tried to catch his wife as she was returning home. He thinks it was serious.

6. The Tribunal raised with the Applicant that nothing had happened to them in 2017, and that it was it was now a further 7 years since the incidents were said to have taken place. The Tribunal asked the First Applicant why he thought there was still a risk to him. The First Applicant said that when his father passed away he really wanted to go back to Malaysia, but his mother had stopped him. She had seen a stranger, neither relative nor friend, at the funeral. This was in 2022. He was not of Chinese ethnicity and had a darker skin tone. They did not know him and don’t know why he was at the funeral.

7. The Tribunal raised with the First Applicant that country information did not indicate it had been a politically volatile time in Sarawak, and that it did not understand why he would have been targeted for going to the Bersih rally in 2017. The First Applicant said that he guessed he had offended someone from the gangster party. The Tribunal asked the First Applicant if he could expand on this: what party, and how might he have offended them? He said that he did not know: that it might have been that they had said something that was overheard. Asked if he meant he might have been overheard at the protest, the First Applicant said that he didn’t know because he did not know who hit him. Asked what he meant by the gangster party, the First Applicant said if he says or does something they don’t like, they might want to ban him, he is not sure. The First Applicant did not know who the gangster party were. The Tribunal asked the First Applicant what made him think he had done something to upset them. He thought this because he was attacked on his way home, and his project was damaged. 

8. The Tribunal discussed with the First Applicant that his involvement, in discussing DAP and Bersih with a friend, and then going to a rally in November 2016, would be considered to be very low-level political activity. The Tribunal explained that it was having difficulty understanding why someone with the First Applicant’s profile would have been targeted. The First Applicant said that he believed it was because of the opposition parties: the law in Malaysia helps the rich and not the poor. After the incidents, he regretted joining the protest and he wouldn’t do it again. He called someone from the DAP, called Wong, on a number given to him by his friend. He called seeking help but no one answered. He also texted and got no response. 

9. The Tribunal raised with the First Applicant whether he might have been the victim of an opportunistic crime: that someone had just seen him and decided to rob him. The First Applicant said that they hated him, and warned him against calling the police, and about saying things randomly or casually. He added that they had not taken his wallet. The Tribunal noted that they had taken something from him, and he agreed they had taken his work bag and phone. He thought it happened because of the protest because things had been fine before this.

10. The First Applicant hoped that the Tribunal could understand his situation and that he would be able to build a safe and steady life here that would allow him to support his brother.

    Oral evidence – Second Applicant

11. The Second Applicant gave evidence that she is one of [number] children that her parents had. They are still alive. Her family has always been Catholic, and her parents had placed no restrictions on her as to the race or religion of people she could have as friends.

12. Her mother is a farmer. Her dad also farms and [does other work]. They all live near Kuching, in a town called [Town 1]. She did not work in Malaysia after she was married. Her husband ran a [business 1] with a friend.

13. She is currently working at a farm with her husband, and like him was previously working at a factory in Melbourne. The factory is being renovated, and once complete they will return to work there.

14. She is afraid to return to Malaysia because of the incident that occurred to her husband. She gave evidence that he joined the opposition and was once captured when he was coming back after a meeting.

15. She was at home at the time, and a neighbour came and told her that her husband had been beaten. The neighbours took him to hospital, and he was admitted for a week. He never told her about what he was doing outside the home. He later told her that his friends had influenced him to join the opposition. She was angry at him because he had not discussed it with her. Asked who she meant by the opposition, the Second Applicant said the DAP and Bersih. The Second Applicant gave evidence that she did not know anything about either group: she never got involved in politics.

16. The neighbours said that the people who had beaten her husband had run away. Her husband told her that they had taken important documents relating to his business. She did not know how this caused problems for him, and she was concentrated on their child.

17. The Tribunal took the Second Applicant through concerns it had with respect to their application. The first was that the details explained at hearing had not been included in their application when it was made. The Second Applicant explained that a friend with better English had helped them to prepare the forms. She did not get involved in the process, and she understood the First Applicant had sought confirmation from the friend that their claims were included.

18. Asked about other aspects of the application as it was initially drafted, such as riot, the Second Applicant said that there had been a riot when the Bersih thing happened. She did not know this from her husband because he did not tell her about the rally he attended, but she had seen information about it on the news.

19. The Second Applicant added that she thought there was a risk to them because of the Sarawak separatist movement, and that if Sarawak were to separate, the peninsula government would not be happy about it. She added that she did not think this would actually happen and agreed that, in that case, there was maybe no real chance of harm to them on this basis.

20. The Second Applicant is concerned about economic difficulties because her husband sold the business in Malaysia. They have to take care of his family, including his aging mother and ill brother.  

21. When asked about her fears around terrorism and crime, the Second Applicant explained that her husband being beaten and spending a week in hospital caused her to fear harm. This incident was followed by something happening in December 2016. One evening, at around 7pm, She went to collect their child from an appointment. As she was coming down the stairs, there were people trying to capture her. She tried to avoid them and managed to by taking the child and walking away and into a restaurant where there were a lot of people. She did not know who the person was and did not recognise them.

22. The Tribunal asked the Second Applicant why she had been scared: whether it was because their face was unfamiliar or there was a threat. She said that she was really scared after what had happened to her husband and she feared that people would come looking for her and her family. She gave evidence that they had not said anything to her but that they had pulled her. Asked if they had made physical contact with her, the Second Applicant said that they couldn’t touch her because she moved quickly. She had been very scared: her husband was still recovering at that time. The Tribunal queried whether the incidents were related. The Second Applicant said that when the incident happened to her, she did not know who it was.

23. Asked if she had heard of anyone else having had an experience like her husband’s, the Second Applicant said that she just knew her husband had been beaten and had not paid attention to anything else at the time.

24. Asked what she meant by terrorism in the protection visa application form, the Second Applicant said that it may have been a reference to what had happened to her husband. The Second Applicant gave evidence that when her husband’s father died, a number of unknown people came to the funeral.

25. The Second Applicant said the incidents involving her husband and then herself, had happened in 2016. The Tribunal asked the Second Applicant if they had stayed living at home until they came to Australia the following year. She confirmed that they had stayed in their home. They sent their son to school and collected him. The First Applicant spent time recovering at home and was tense and depressed. His business partner kept the [business] running.

26. The Tribunal asked the Second Applicant if she thought there was still a risk to them, given it was some time between the incidents and them leaving the country. She said that he had been recovering, and that he had a strong responsibility and burden to take care of his family. The Tribunal noted that they had not been targeted in 2017, and that it had now been a further 7 years since the claimed events took place. The Second Applicant said that she was not sure what would happen if they went back to Malaysia.

27. The Tribunal raised with the Second Applicant that country information does not indicate that there were political problems in Sarawak in November 2016. The Tribunal queried why anyone would hurt the First Applicant for having supported the DAP or Bersih and explained that country information indicated that the protest he attended appeared to have taken place peacefully. The Second Applicant said that she did not know and was not sure. The Tribunal explained that it might have difficulty accepting what had happened to her husband and what he had said about the rally because it was inconsistent with country information.

28. Asked if there was anything else she wished to tell the Tribunal, the Second Applicant gave evidence that her husband is responsible and has a heavy burden to care for his family. He is very sad and could not go back. He wanted to be with his family, but after the incident it was difficult. His brother goes through dialysis weekly.  

    424A letter and response

29. After the hearings, the Tribunal wrote to the Applicants in order to give the Second Applicant the opportunity to comment, under section 424A of the Act,[2] on information that was provided to the Tribunal by her husband and that may be the reason or part of the reason for their applications being refused. The information was as follows:

    [2] This section has since been repealed, but was in force at the time of the relevant correspondence. The Tribunal considers that the effect of the s 424A letter and the Tribunal’s engagement on the issue with the Applicants at the hearing complies with the requirements of the s 359A of the Act.

    1)The claims set out in the protection visa application are different to what [the first applicant] stated in the Tribunal hearings held on 21 and 27 May 2024.

    In the protection visa application form, he stated:

    ·    that he feared harm in Malaysia because of: riots, terrorism activity, serious

    crime, loss of confidence in the country’s leader, racism, the Sabah and

    Sarawak independence movements, and economic difficulties that threaten

    the family’s ability to survive.

    In contrast, at the hearing, he stated:

    ·    that he attended a protest for the DAP/Bersih movement [in] November

    2016, that people there were assaulted and that he was followed and attacked as he returned home from the protest; and

    ·    that he feared further harm on account of his association with the DAP/Bersih.

    2)[The first applicant's] evidence about his protest experience in Malaysia is inconsistent with country information.

    At the hearing, [the first applicant] said:

    ·    that the protest was attended by people who physically assaulted people at the protest.

    In contrast, country information before the Tribunal indicates:

    ·    that the Kuching protest was peaceful and that there were no violent incidents at or in relation

    to the event; and

    ·    that there were no opposition ‘red shirts’ in Sarawak and it was for this reason the Bersih 5

    events in that state were trouble-free.

30. The Tribunal explained that the above matters may lead it to doubt the credibility of the claims, and to not accept that [the first applicant] was: a supporter of the DAP and/or the Bersih movement; that he attended a protest; and that he was assaulted in connection with his support for the movement. The Tribunal explained that if it did not accept these matters, it may find that the Applicants did not face a real chance of persecution or a real risk of significant harm.

31. The Tribunal asked that any comments or response be received by 30 September 2024. On 25 September 2024, the First Applicant provided a response on behalf of the Applicants. The Tribunal has closely considered the response and sets it out here in summary form.

32. The First Applicant explained that when he first came to Australia, he was isolated, living in a remote area and did not know about how to apply for a visa. A friend familiar with the process agreed to help him and he explained the difficulties he had encountered in Malaysia. He thought he had accurately recorded what he had said and did not review everything because of the language barrier and because he did not understand the process. This caused the inconsistencies in the information. There was no intention to conceal information from the Tribunal. The hearing was an opportunity for him to explain more clearly and fully about what had happened.

33. With respect to the differences between his evidence and country information, the First Applicant confirmed that he had been at the [November] event. He said that, overall, the atmosphere was peaceful and that the attack did not take place at the protest site. He was followed, attacked and warned by unknown persons on his way home after the event. The attack and the subsequent vandalism of a project and loss of his job, put him in serious financial difficulties and psychological pressure. It was under these circumstances that he decided to leave Malaysia. He suspects the attack was related to his participation in opposition activities and was an act of revenge. He is afraid of future harm because of the attack, and because of his association with the DAP and Bersih.

34. The First Applicant noted that although his experience differs from the country information before the Tribunal, it occurred when he was alone and after the protest had ended. It was not part of a wider incident, and it may not have been documented. In response to information generally, about ‘red shirts’ not being present in Sarawak and the events being trouble-free, the First Applicant said that the different regions are complex and experiences will differ from official records. The First Applicant added that while Sarawak may not have a ‘clear opposition to “red shirts”, this does not mean that supporters who participate in Bersih activities will not face personal threats or persecution’. He added that his personal experiences reflect this. He was targeted, not as part of a large scale opposition to Bersih, but by some radical individuals and groups who try to suppress dissent through violent means.

35. The First Applicant added that many incidents against opposition parties may not be made public or acknowledged. This was the case with his incident, and the event has caused him significant emotional distress and trauma.

36. The First Applicant reiterated that the authorities in Malaysia cannot guarantee his safety, and return would mean unpredictable threats. He is also worried about his family’s safety and about being able to financially support them. His financial resources are highly uncertain and he will not be able to provide enough support and will have nowhere to go. His parents are now elderly, and his brother continues to require medical care, adding to the significant psychological and financial burdens he faces.

    COUNTRY INFORMATION

    General overview, and the political situation 

37. There have been changes to the political landscape since the Applicants travelled to Australia. Most significantly, those changes saw the Barisan Nasional (BN) coalition lose government for the first time since independence. This development was reflected in an earlier DFAT report, which stated: 

    In May 2018, Malaysia saw its first change of government since independence. Dr Mahathir Mohamad became Prime Minister following an election victory by the Pakatan Harapan (PH) coalition over the Barisan Nasional (BN) coalition, which had ruled the country since independence. Dr Mahathir was previously Prime Minister between 1981 and 2003 for the BN coalition.[3]

    [3] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information report – Malaysia, 13 December 2019 (2019 DFAT Report), at [2.2].

38. In February 2020, Dr Mahathir resigned as prime minister, and the Malay nationalist Bersatu party and other lower house members withdrew from the coalition. This brought about the end of the Pakatan Harapan (PH) government, which had been in power for 21 months. In March 2020, Muhyiddin Yassin, also of Bersatu, was installed as prime minister, at the head of the Perikatan Nasional (PN) coalition government’.[4]

    [4] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information report – Malaysia, 29 June 2021 (2021 DFAT Report), at [2.2].

39. In August 2021, Ismail Sabri Yaakob, became prime minister and according to Human Rights Watch ‘aggressively cracked down in free speech and peaceful protests, harassing, intimidating and arresting activists and critics.[5] Mr Yaakob was a member of the BN-UMNO. His BN coalition government included Perikatan Nasional, Gabungan Parti Sarawak (GPS) and Gabungan Rakyat Sabah and some independents.

    [5] World Report 2023: Malaysia | Human Rights Watch (hrw.org)

40. In October 2022, Mr Yaakob dissolved parliament. A general election was held on 9 November 2022, and was ‘regarded by observers as generally free and fair’.[6] No party won a majority of seats and Anwar Ibrahim successfully assembled a multi-party government and was sworn in as prime minister on 24 November. The current coalition government is a PH government, being a coalition of a number of parties including PKR, BN and the Democratic Action Party (DAP). 

    [6] Department of State, US, Malaysia 2022 Human Rights Report, p1.

1. Anwar Ibrahim remains Prime Minister and continues to lead a PH minority coalition government. PH has faced criticism that at the last election it used tactics similar to the repressive ones it faced when in opposition,[7] such as blocking access to media sites. In 2023, the Cabinet agreed to make changes to the Sedition Act 1948 (the Sedition Act), limiting its use to ‘only matters involving royalty’,[8] but it has still been used. In 2023, there were 17 investigations, three of which went to court.[9] The Communications and Multimedia Act 1998 (CMA) has also been used – there were 60 investigations, with charges stemming from five of them. Most cases relate to the sharing of sensitive comments about religion and royalty.[10]  

   Economic conditions

   [7] Backsliding Reformists: Malaysia’s Government Revives Crackdown on Media Freedoms – The Diplomat

   [8] Azalina: Cabinet agrees to restrict Sedition Act to only royalty issues | Malay Mail

   [9] Suaram claims govt used sedition and CMA laws to investigate dissenting views in 2023, but only a handful charged in court | Malay Mail

   [10] Malaysia: Use of restrictive laws and harassment of protesters persist under new government despite reform commitments - Civicus Monitor

2. The United Nations Development Program's Human Development Index ranked Malaysia 62 of 189 countries in 2020, placing it in the 'very high human development' category.[11] It has transitioned from being a commodity based economy, to producer of manufactured products and its service sector now accounts for half the country’s economic growth.[12] Malaysia's economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (MYR 2,589 (AUD 864) per month) falling from over 50 per cent in the 1960s to less than 6.2 per cent in 2022.[13]

   [11] 2021 DFAT Report, at [2.11]; UNDP, Human Development Index (HDI), the HDI is a summary measure of average achievement in key dimensions of human development: life expectancy, education and standard of living.   

   [12] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information report – Malaysia, 24 July 2024 (2024 DFAT Report), at [2.7].

   [13] 2024 DFAT Report, at [2.8].

3. The current DFAT reports sets out that in April 2023, the unemployment rate was 3.4 per cent, the lowest since the COVID-19 pandemic. It further notes that there are labour shortages in many sectors, and that small, medium and large enterprises are highly reliant on migrant labour.[14] It has also been reported that the ‘number of unemployed persons declined by 3.5% year-on-year … while employment grew by 1.9%. … In the meantime, the labour force participation rate rose to 70.3%’.[15]

   [14] 2024 DFAT Report, at [2.10].

   [15] Trading Economics, Malaysia Unemployment Rate, >

   Persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, the so-called 'B40', who are the recipients of government assistance. Poverty rates remain higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states.[16] Inflation, cost of living pressures and high levels of household debt also remain ongoing challenges for the economy.[17]

   [16] 2021 DFAT Report, at [2.11]; 2024 DFAT report at [2.8].

   [17] 2024 DFAT report at [2.8].

4. In February 2021, the Malaysian Department of Statistics reported a labour force participation rate of 68.5 per cent and an overall unemployment rate of 4.8 per cent. Prior to the pandemic, in 2019, Malaysia's unemployment rate was 3.3 per cent. In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera, and 2.4 per cent for Chinese Malaysians.

   Separatist movements

5. The 2021 DFAT report includes the following information about separatist movements in Malaysia:

   3.90 Malaysia does not have significant separatist sentiment. Sabah Sarawak Keluar Malaysia (SSKM), a small social media-based political group campaigning for the secession of oil-rich Sabah and Sarawak, arranged two forums in 2017 called ‘Sarawak for Sarawakians’, which were attended by approximately 200 people. DFAT understands that, while there is debate on the topic, it focuses on more autonomy, not independence. There is reportedly a movement in Sarawak called SAREXIT (Sarawak exit) that holds regular demonstrations in Kuching. However, the movement is regarded as being in its ‘infancy’ and not of significant size. In April 2019, the then-PH government failed to pass a bill to reinstate certain aspects of the 1963 Malaysia Agreement (known as MA63), designed to restore the original wording of the Malaysian constitution regarding the status of Sabah and Sarawak. The PN government convened a Special Council on MA63, to consider the implications of more autonomous status for Sabah and Sarawak, meeting for the first time in December 2020. However, the government reportedly plans to keep the final report of this committee secret. Advocates for independence are focussed on the MA63 process, which is likely to be an election issue at state or Federal level. In 2020, the relatively new Sarawakian political party Parti Bumi Kenyalang (PBK), with its slogan of ‘In Quest of Independence’, announced its intention to contest all 82 seats in the Sarawak state election, ordinarily due in June 2021 but likely to be delayed until the end of the State of Emergency.

6. The 2024 DFAT report includes the following information:

   While there is significant discontent in Sabah and Sarawak regarding perceived failure of Peninsular Malaysia to honour the 1963 Malaysia Agreement (known as MA63), Malaysia does not have significant separatist sentiment. In-country sources told DFAT that ‘real’ separatist intent regarding Sabah was confined to overseas diaspora. While there is debate on the topic, it is focused on achieving greater autonomy and restoration of perceived entitlements under MA63 rather than independence.[18]

   [18] DFAT, Country Information Report – Malaysia, (2024 DFAT report), 24 June 2024.

7. Country information indicates that four volunteers working for SSKM were arrested and charged with sedition in 2015, before the charges were dropped in September 2016. Country information before the Tribunal also sets out claims that Ms Jones (also known as Doris Chan), leader of the SSKM (also known as SSU-UK), has been rendered de facto stateless in the United Kingdom on account of Malaysian authorities refusing to renew her passport, and that there is a warrant out for her arrest under the Sedition Act. This was issued in 2015, on account of her promotion of the secession of Sabah and Sarawak from Malaysia.[19]  

   [19] The Sun, Interpol help to trace Doris Jones, 17 February 2015; The Malaysian Insider, Sabah activist wanted for sedition to return with UK passport, says report, 20 October 2015; Faisal S. Hazis., ‘Domination, Contestation, and Accommodation: 54 Years of Sabah and Sarawak in Malaysia’ in “Divides and Dissent: Malaysian Politics 60 Years after Merdeka,” edited by Khoo Boo Teik, special issue, Southeast Asian Studies, Vol. 7, No. 3, December 2018, pp. 341-361.

8. In 2021, it was reported that Ms Jones was then linked to the Sabah Progressive Party (SAOO) and the Sabah Star, and that she was continuing her advocacy for independence, from the United Kingdom, saying ‘the process of gaining independence for Sabah would be an uphill task … “we need some fact finding and hard evidence to prove that the federal government had neglected Sabah, breaching terms in the MA63. The evidence should also be new, like about 10 years or so, not relying entirely on old treaties alone” … [and] adding that the call for independence also requires all Sabahans to support the move’.[20]    

   Security and crime 

   [20] The Vibes, Claiming support from SAPP, Sabah Star, controversial state’s rights activist reemerges, 24 July 2021. 

9. Regarding the security situation generally in Malaysia, DFAT sets out that the situation is ‘generally stable. Petty crime is common’, including bag-snatching, pickpocketing, and residential burglaries.[21]  The 2024 Report notes, also, that ‘terrorism remains a threat in Malaysia: ‘while there have been no major terrorist attacks in Malaysia in recent years US State Department’s 2022 Report on Terrorism …. Describes Malaysia as ‘a transit point and to a lesser extent, a destination country for members of terrorist groups’.[22]

   [21] 2021 DFAT Report, 917; 2024 DFAT Report at [2.28].

   [22] 2024 DFAT Report at [2.29].

   DAP/Bersih

100.   The DAP or Democratic Action Party is a predominantly ethnic Chinese party, and in the 2022 General Election, won 20 of 220 lower house seats.[23] In 2016, it was among those in opposition to the BN government and was calling for then Prime Minister Razak to resign.  Two DAP politicians were arrested prior to the Berish 5 rally on 19 November 2016.[24] 

[23] 2024 DFAT report at [3.12].

[24] The Sun, ‘Ronnie Liu arrested ahead of Bersih 5 rally’, 19 November 2016; Malaysiakini, ‘Cops detain DAP’s Anthony Loke and Ronnie Liu’, 18 November 2016. 

101.   Bersih means clean and is shorthand for the Coalition for Clean and Fair Elections (Malay: Gabungan Pilihanraya Bersih dan Adil). It is a civil society organisation that was first established in November 2006 by then opposition political parties, with support from non-government organisations (NGOs).[25] It is now known as BERSIH 2.0.

[25] BERSIH, Media Statement: BERSIH Launch in Parliament, 23 November 2006, available at:

102.   Over the last 15 or so years, the Bersih movement has organised several rallies calling for fair elections and more transparency in government. On 10 November 2007 Bersih held its first ever rally in Independence Square (Malay: Dataran Merdeka) in Kuala Lumpur, Malaysia, calling for electoral reform.[26] The rally was then known as the ‘BERSIH People’s Gathering’. Subsequent rallies were colloquially known as ‘Bersih 2’ (held on 9 July 2011); ‘Bersih 3’ (held on 28 April 2012); ‘Bersih 4’ (held from 29 to 30 August 2015); and finally, ‘Bersih 5’ (held on 19 November 2016, though it was preceded by a nationwide Bersih convoy that launched on 1 October 2016).[27]

[26] BERSIH, Press Release: BERSIH People’s Gathering – 10 November 2007, 23 October 2007, available at:

[27] Yusof Ishak Institute, The Profound Impact of the BERSIH Movement since 2007: ISEAS Perspective 2021/167, 21 December 2021, available at:  BERSIH, Press Release: BERSIH People’s Gathering – 10 November 2007, 23 October 2007, available at: Bersih Steering Committee, Malaysiakini, Why Bersih is marching for the fifth time on Nov 19 (malaysiakini.com)

103.   While the group is considered pro-democracy and now non-partisan, many members of political parties have reportedly attended the rallies, and some members of Bersih are or were also Members of Parliament.[28]

[28] DFAT, Country Information Report – Malaysia, 19 July 2016 (2016 DFAT Report), at [3.6]. Also see: Yusof Ishak Institute, The Profound Impact of the BERSIH Movement since 2007: ISEAS Perspective 2021/167, 21 December 2021, available at:  Malay Mail, Bersih says fourth rally a vicarious vote of no confidence, 15 August 2015, available at: The Guardian, Malaysian police to question former PM Mahathir over anti-government rally, 2 September 2015, available at:

104.   According to a DFAT report from 13 December 2019, ‘[m]any Bersih members currently hold positions in the new government or its agencies.’[29] Indeed, the former Chairperson of Bersih, Maria Chin Abdullah (Maria Chin), contested the 14^th General Election (GE14) in May 2018 as an independent candidate under the Coalition of Hope (Malay: Pakatan Harapan) (PH), winning the seat with a comfortable margin.[30] Maria Chin Abdullah was ultimately dropped from pre-selection for the 15^th General Election (GE15) in November 2022 by Anwar Ibrahim’s PH coalition.[31]

[29] 2019 DFAT Report at [2.34].

[30] New Straits Times, Maria Chin to resign from Bersih and contest in GE14, 5 March 2018, available at: and The Star, Victory margin bigger than expected, says Maria Chin, 10 May 2018, available at:

[31] Malay Mail, Maria Chin, Sivarasa and Johari Abdul among surprising exclusions from PKR’s GE15 candidate line-up for peninsular Malaysia, 28 October 2022, available at: and Free Malaysia Today, Dropping popular MPs may see PKR facing another crisis, says analyst, 30 October 2022, available at:

105.   As the above indicates, while the group claims to be non-partisan, it has at times been co-opted and instrumentalised by parties and politicians across the political spectrum for their own benefit.[32] Despite this, it has been praised for creating the space for ‘civil empowerment’[33] and the bringing together of …‘successive waves of mass participation that bridged ethnic, urban-rural, generational, gender, territorial, and other divides.’[34]

[32] Some country information suggests that BERSIH 4 was ‘hijacked by autocrats.’ See: New Mandala, Bersih 4, citizenship and civics in Malaysia, 7 September 2015, available at:

[33] New Mandala, Bersih 4, citizenship and civics in Malaysia, 7 September 2015, available at:

[34] Yusof Ishak Institute, The Profound Impact of the BERSIH Movement since 2007: ISEAS Perspective 2021/167, 21 December 2021, available at:  rallies

106.   The Bersih 4 rally (held in August 2015) was widely seen as a vote of no confidence in then Prime Minister Najib Razak, following the 1MDB scandal.[35] DFAT noted that some 100,000 protesters attended the rally in Kuala Lumpur, which was ‘peaceful and no violence was reported’, though smaller rallies were held in Malacca, Penang, Kuching, Kota Kinabalu and involved a small number of arrests. Country information described the atmosphere of the Kuala Lumpur rally, with protesters ‘occupying central KL over 34 hours, sleeping on the streets, and treating the protest as a carnival zone (the air filled with the cacophony of vuvuzelas, balloons, speeches, songs and funny placards like “Najib Worse Than My Ex”).’[36]

[35] See: The Straits Times, Bersih plans overnight rally in August to demand Najib's resignation, 29 July 2015, available at: and Malay Mail, Bersih says fourth rally a vicarious vote of no confidence, 15 August 2015, available at: Yusof Ishak Institute, The Profound Impact of the BERSIH Movement since 2007: ISEAS Perspective 2021/167, 21 December 2021, available at:  ‘UMNO-BN’ refers to the then ruling coalition named the National Front (Malay: Barisan Nasional) (BN) and the ruling majority party in that coalition, the United Malays National Organisation (Malay: Pertubuhan Kebangsaan Melayu Bersatu) (UMNO).

[36] New Mandala, Bersih 4, citizenship and civics in Malaysia, 7 September 2015, available at:  This was in stark contrast to the Bersih 2 protest, when the police arrested some 1,500 people and used tear gas and water cannons to disperse crowds.[37] The police operation was called Operation Erase Bersih, and it was reported that ‘police fired numerous rounds of tear gas and chemical-laced water in repeated attempts to disperse the crowds’.[38] It was also reported that witnesses said ‘riot police armed with batons charged at some protesters and dragged them into trucks. Some were seen bleeding…’ Then opposition leader, Anwar Ibrahim, attended this rally and it was reported that he sustained a minor injury when his group was hit by teargas.[39]

[37] 2016 DFAT Report at [3.62]. 

[38] The Guardian, ‘Malaysia police detain hundreds at rally’, 9 July 2011.

[39] The Guardian, ‘Malaysia police detain hundreds at rally’, 9 July 2011.

Bersih 5 rally (19 November 2016)

108.   The main Bersih 5 rally took place on 19 November 2016, but it was preceded by a nationwide Bersih convoy that began on 1 October 2016.[40] The aim of Bersih 5 was to highlight five demands including clean elections, the right to dissent, and the empowerment of Sabah and Sarawak. There were again calls for Prime Minister Najib Razak to resign on account of his involvement in the 1MDB scandal.[41]

[40] Why Bersih is marching for the fifth time on Nov 19 (malaysiakini.com)

[41] Bersih 5 protest: Fresh clampdown on Malaysian activists won't work, say critics (cnbc.com)

109.    In response to the planned Bersih 5 rally, a counter group supportive of then Prime Minister Najib Razak, known as the ‘Red Shirts’, organised a counter-rally to take place on 19 November 2016. Jamal Yunus is the leader of the Red Shirts, a member of Najib Razak’s UMNO party and a fierce critic of Bersih and its leaders, including Maria Chin.[42]

[42] Free Malaysia Today, FMT, Jamal’s statements imply I am linked to IS, says Maria, 15 January 2018; Millar, P. Globe, Divide and rule: the racist roots of Malaysia’s Redshirt movement, 3 January 2017.

110.    Country information recounts that in the lead up to the rally, members of Bersih were intimidated by the authorities, and by Red Shirts activists supportive of the Razak government.[43] 

[43] Ambiga: Cops legally-bound to stop Red Shirts from clashing with Bersih 5 rally | Malay Mail; Malaysia: Protect the Right to Peaceful Assembly at Bersih 5 Rally - Fortify Rights; MALAYSIA NOW – NOVEMBER 2016 – Global Bersih; MEDIA STATEMENT (3 NOVEMBER 2016): BERSIH 2.0 criticises police harassment of BERSIH members – BERSIH.

111.    On 4 November 2016, Maria Chin was briefly detained for questioning. And on 18 November 2016, the day before the rally, she was arrested along with a number of others when the Bersih office was raided.[44] Maria Chin was detained for around 10 days,[45] while the others, members of political parties or student leaders,[46] were released after 48 hours.[47] A Global Bersih press release issued on 7 December 2016, stated that ‘[o]n 28 November 2016, Maria Chin was released from her 10-day detention … a day before the hearing of her habeas corpus application’.[48] 

[44] Communication report, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression et al; 1 December 2016, Internal Communication Clearance Form (ohchr.org).

[45] Communication report, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression et al; 1 December 2016, Internal Communication Clearance Form (ohchr.org); Amnesty International, Malaysia: Human rights defender in solitary confinement: Maria Chin Abdullah, 22 November 2016, available at: and Amnesty International, Malaysia: Activists summoned for questioning in repeated crackdown on peaceful assembly, 19 May 2017, available at:

[46] Police raid at the offices of Bersih 2.0 and arbitrary arrest… | OMCT.

[47] Communication report, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression et al; 1 December 2016, Internal Communication Clearance Form (ohchr.org)

[48] Global Bersih, Malaysia Now – November 2016, 7 December 2016, MALAYSIA NOW – NOVEMBER 2016 – Global Bersih.

112.   It was widely reported that the Kuala Lumpur rally itself took place relatively peacefully.[49] There was a heavy police presence to prevent a potential clash between Bersih supporters and Red Shirts, after Red Shirt supporters threatened to target the rally:

[49] The Diplomat, Hooi, K.Y, After Bersih 5: Fear and Repression Continue in Malaysia, 23 November 2016.

On the rally day itself, there was a strong police presence on standby, with Federal Reserve Unit (FRU) trucks and lots of barricades. Approximately 7,000 policemen were on duty to ensure security and public order. Water cannon trucks were also deployed. … [T]he rally organizer’s original plans to convene in Dataran Merdeka for the finale was halted by police as various barricades were erected along main roads leading to the square. Eventually, the organizers made eleventh hour plans to convene the crowd in Kuala Lumpur City Centre (KLCC) and the rally was allowed to proceed as planned with no interruption from the police.
…
The much-predicted clash between the red and yellow shirts did not happen, due to the heavy road closures by the police. The police managed to prevent the two groups from clashing: however, in blocking off roads they also impinged on the right of protesters to march peacefully. Although the police were even-handed in their treatment of both groups, the heavy road closures were unnecessary.[50]

[50] Dr Khoo Ying Hooi, Senior Lecturer, Department of International and Strategic Studies, Faculty of Arts and Social Sciences, University of Malaya, The Diplomat, After Bersih 5: Fear and Repression Continue in Malaysia, 23 November 2016.

113.    Despite a tense build up, the protest in Kuala Lumpur was generally lauded as peaceful, including by BERSIH 2.0 itself.[51]

[51] Salleh: Musa praised Bersih 5 as it was peaceful, Free Malaysia Today (FMT), 21 November 2016; Malaysia Now, Bersih joins calls for govt, police to allow KL rally over Zahid’s DNAA, 5 February 2024 Bersih joins calls for govt, police to allow KL rally over Zahid's DNAA | MalaysiaNow; Global Bersih, Malaysia Now – November 2016, 7 December 2016, MALAYSIA NOW – NOVEMBER 2016 – Global Bersih

The Bersih 5 convoy in Sarawak

114.   On 11 November 2016, it was reported that ‘after nearly six weeks of touring Sarawak, the Bersih 5 convoy is set to reach the outskirts of Kuching on Sunday without incident’.[52]

[52] Free Malaysia Today, Sarawak Bersih convoy peaceful as there’s no Umno, 11 November 2016.

115.   The report continued:

‘the convoy began its journey in Miri on October 1 and has passed through major towns and urban centres including Bintulu, Sibu and Sri Aman.

Commenting on the convoy’s relatively peaceful journey, See attributed the lack of confrontation, like that witnessed in Peninsular Malaysia, to the absence of Umno’s presence in the state.

…

“Media reports said they tried to obstruct and disturb the Bersih convoy almost every weekend. We don’t have that kind of problem in Sarawak. We can show others that a citizen’s movement can be carried out peacefully. This is something special for Sarawak and we can show off to the whole country”.

… The Bersih committee is still in discussion with the police and local authorities to resolve the location for the Bersih gathering on Nov. 19.’ 

116.    Two days later, on 13 November 2016, it was reported that the convoy of 30 vehicles had arrived in Kuching, having travelled 800kms and making 20 stops to call for free and fair elections.[53] The final rally in Sarawak was held at the Jalan Budaya Amphitheater, a public park in Kuching, on 19 November 2016. Country information indicates it was attended by some 400 people:

[53] Free Malaysia Today, Bersih convoy reaches Kuching after 43 day journey, 13 November 2016.

‘there was a light police presence at the park, with the Bersih supporters casually passing by the red and white barricade tape set up by the North Kuching City Hall Friday. … Ann Teo [Bersih Sarawak vice-chairperson] ‘praised the police for having ‘allowed and assisted us in the use of the amphitheater’ despite the city council having blocked Bersih. .. The rally, which started at 4 pm, petered out by sunset. Bersih 5 had expected more to attend because of the number of shirts sold, close to 5,000 up to Friday…. Kuching district police chief Abang Ahmad Abang Julai said the event was orderly with no untoward incidents.’[54]

[54] Free Malaysia Today, Downpour dampens Sarawak Bersih rally, 20 November 2016.

117.   The Berish organisation made statements on 3 November and 7 December 2016, detailing police harassment of convoy organisers and participants in Seberang Perai, Johor, Perak and Sabah.[55]

[55] Global Bersih, Malaysia Now – November 2016, Police Harassment of Bersih 2.0 members, 7 December 2016.

Bersih now  

118.   Neither the most recent DFAT report, nor the preceding one from 2021, mention Bersih. This is presumably because, despite still being an active group, it has not organised any major rallies since Bersih 5 in November 2016.

119.   On 15 December 2023, the Steering Committee of Bersih elected Muhammad Faisal bin Abdul Aziz as its new Chairperson until 2025.[56] He is the former President of the Malaysian Islamic Youth Movement (Malay: Angkatan Belia Islam Malaysia) (ABIM)[57], an organisation that was founded in 1972 by now Prime Minister Anwar Ibrahim.[58] Some country information suggests that Muhammad Faisal has previously called for more tolerance in Malaysia and respect for diversity, while the head of ABIM. For example, in 2020 he reportedly gave a speech calling for the creation of ‘an integrated identity … informed and inspired by the shared values and qualities of all … ethnicities and cultures’ and that ‘being Malaysian does not make one any less Malay, Chinese, Indian, Iban or Kadazan.’[59] It remains to be seen whether Muhammad Faisal will steer Bersih into a more activist direction. It is noted that, despite his election, Bersih still remains divided, as he only won the election in a one-vote majority.[60]

[56] BERSIH, New BERSIH Chairperson for the term 2023 – 2025 Elected, 15 December 2023, available at:

[57] Malay Mail, Ex-Abim chief wins race to be new Bersih chairman by one vote, 15 December 2023, available at: and The Star, Muhammad Faisal Abdul Aziz elected new Bersih chairman, 15 December 2023, available at:

[58] Oxford Reference, Anwar Ibrahim, available at:

[59] Yusof Ishak Institute, Cosmopolitanism and Multiculturalism: Reviving Bangsa Malaysia, 8 February 2021, available at:

[60] BERSIH, New BERSIH Chairperson for the term 2023 – 2025 Elected, 15 December 2023, available at:

120.   On 27 February 2024, Bersih organisers staged an assembly of around 100 people as part of its ‘#Reformasi100peratus campaign to urge the government to deliver reform promises such as the separation of roles between the Attorney General and the Public Prosecutor.’[61]  Faisal said the rally was the organisation’s first move at urging the unity government to implement reforms. A memorandum stating their demands was handed to PKR Selayan MP William Leon, who accepted it on behalf of the government.[62] Also in attendance was PAS information chief Ahmad Fadhli Shaari, Muda MP Syed Saddiq Syed Abdul Rahman, PKR MPs Hassan Karim, and Taufiq Johari. [63]

[61] The Star, Bersih submits notice to police one day before protest, 27 February 2024.

[62] Free Malaysia Today, As rally ends, Bersih says more to come in push for reforms, 27 February 2024.

[63] The Star, Bersih submits notice to police one day before protest, 27 February 2024; Free Malaysia Today, As rally ends, Bersih says more to come in push for reforms, 27 February 2024.

121.   In a March 2024 press release, Bersih welcomed moves by the government to pass the Parliamentary Services Act and stated ‘through [their] consultation with various members of Parliament from both the Government and Opposition, we are confident that a transparent tabling of this bill will increase Parliament’s autonomy and garner bipartisan support from Members of Parliament from all political parties’.[64]

[64] Bersih, Press release – BERSIH Welcomes the Government’s Move to Accord More Autonomy to Parliament, and Urges the Parliament Services Act be Tabled Before the End of 2024, 14 March 2024.

Treatment of people of Chinese ethnicity, those who are not Malay/Muslim

122.   The DFAT report sets out that ‘Malaysia is ethnically diverse and had historically experienced episodes of racial tension. Following the 1969 general election, race riots broke out between ethnic Malays and Chinese Malaysians in Kuala Lumpur. … These riots led to the development of affirmative action policies favouring ethnic Malays and indigenous groups (collectively known as Bumiputera) over other ethnicities in business, higher education, property ownership, government contracts and civil service jobs. Elements of these policies remain in place today.’[65]

[65] 2024 DFAT report at [2.2].

123.   As discussed at the hearing, notwithstanding these factors, country information does not indicate Chinese Malaysian experience racial threats or violence, and that they ‘tend to be wealthier than other ethnic groups in Malaysia’.[66] DFAT assesses they experience low levels of official discrimination when attempting to gain entry to tertiary education and the civil service, or when opening or operating a business.[67]    

[66] 2021 DFAT report at [3.12]; 2024 DFAT Report at [3.11].

[67] 2021 DFAT report at [3.12]; 2024 DFAT Report at [3.15].  

124.   Chinese Malaysians comprise approximately 22.8 per cent of the population of Malaysia.[68] The DFAT report adds:

[68] 2024 DFAT report at [1.1].

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. The ‘MyKad’ (national identity card) of Chinese Malaysians does not specify their religion, as do cards of (Muslim) ethnic Malays.

There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians. Chinese Malaysians freely participate in political life, including as ministers (there are five Chinese Malaysians serving in Anwar’s cabinet as of publication) and in opposition parties. Ethnic Chinese politicians have occasionally faced public criticism for interfering with ‘Malay rights’. In the 2022 General Election, the Democratic Action Party (DAP) – a predominantly ethnic Chinese party – won 40 of the 220 federal parliamentary lower house seats, seeing its share of the vote fall slightly. The Malaysian Chinese Association (MCA) was historically part of the BN coalition, but has lost favour with Chinese voters due to its association with the Bumiputera policies of that coalition.[69]

[69] 2024 DFAT report at [1.1] – [1.3].

125.   With respect to the preferential treatment afforded to Malays and other members of the Bumiputera, at the expense of minority ethnic groups, the US Department of State, Malaysia 2023 Human Rights Report, sets out the following:

Government regulations and policies provided extensive preferential programs to boost the economic position of bumiputera, a majority of the population. Such programs limited opportunities for nonbumiputera (primarily ethnic Chinese and Indians) in higher education and government employment. Many industries were subject to race-based requirements that mandated bumiputera ownership levels. Government procurement and licensing policies favored bumiputera-owned businesses. The government claimed these policies were necessary to attain ethnic harmony and political stability. The government reserved large quotas that guaranteed bumiputera would hold the majority of positions in the federal civil service as well as of vocational permits and licenses in a wide range of industries, which greatly reduced economic opportunity for minority groups.[70]

[70] US Department of State, Malaysia 2023 Human Rights Report, p. 34.

CONSIDERATION OF CLAIMS AND EVIDENCE

Criteria for protection visa

126.   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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or they are a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criteria

127.   Section 36(2)(a) (‘the refugee criterion’) 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.

1. 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).

129.   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.

1. 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.

   Complementary protection criteria

2. If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

132.   A real risk (as with a real chance, per the refugee criteria) is one that is not remote or insubstantial or a far-fetched possibility.[71]

[71] Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

133.   ‘Significant harm’ is exhaustively defined in s 36(2A). A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

134.   There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise 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 the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

135.   Sections 5(1) and 36(2A) and (2B) are extracted in the attachment to this decision.

Mandatory considerations

136.   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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

REASONS AND FINDINGS 

137.   The Tribunal records that having reviewed the Applicants’ identity documents and heard their oral evidence, it is satisfied as to their identities as citizens of Malaysia. For the purposes of this protection eligibility assessment Malaysia is the ‘receiving country’, and the Applicants’ protection claims are assessed with regard to circumstances in Malaysia as these relate to them.

138.   The issue in this case is whether, on account of the First Applicant’s support of DAP/Bersih, the Applicants’ support for an independent Sarawak and/or economic and security conditions in Sarawak, the Applicants are persons to whom Australia has protection obligations under s 36 of the Act and cl 866.221 of Schedule 2 to the Regulations.

139.   For the following reasons the Tribunal has determined this matter should be affirmed.

Findings of fact and credibility

140.   Tribunal found the First Applicant’s evidence about his political views and activities to have been vague and inconsistent. He could not recall the name Bersih and did not know what DAP stood for. Most significant, however, and as raised with the Applicants, is the fact that the Tribunal considers that the First Applicant’s core claim - to have attended a Bersih rally in Kuching and to have consequently experienced politically motivated violence - lacked external coherence when considered against country information.     

141.   The First Applicant gave oral evidence that he had not attended any DAP meetings with his friend, but that he did gather with Bersih supporters in Kuching to listen to speakers as part of the Bersih 5.0 rally. While there, some of the people gathered were attacked by persons opposed to the movement. The violence prompted him to leave the event and he was followed home by people who he claimed assaulted him and told him not to again be involved in political activities in support of the DAP/and or Bersih.

142.   The Tribunal notes that when the inconsistency between his evidence and country information was put to them in writing, the Applicants sought to clarify that, consistent with country information and contrary to their oral evidence, there had not been violence at the event. They maintained that the First Applicant had been followed home and then targeted. Notwithstanding their post hearing clarification, the Tribunal considers that the inconsistency between the oral and written evidence, and the inconsistency between the oral evidence that the event was marred by political violence, and the country information that evidenced a peaceful event, indicates the First Applicant’s evidence about having attended the rally in Kuching is not credible.

143.   The Tribunal does not accept that the First Applicant attended the Bersih rally in Kuching. It finds this claim lacks credibility and it makes this finding on the basis of the inconsistency between the Applicants’ oral evidence and country information and because of the vagueness and inconsistencies present in the evidence about the First Applicant’s political beliefs and activities.

144.   Having not accepted the First Applicant attended the Bersih rally in Kuching, the Tribunal does not accept that he was followed home from this event and targeted by politically motivated persons. The Tribunal also does not accept that the First Applicant was the victim of a politically motivated attack that coincidently happened at or around the time of the Kuching rally, but near his home. This is because the Tribunal does not accept, on the evidence before it, that the Applicant was politically interested or involved and does not accept that he would have had a political profile. Further, and even if the Tribunal had accepted that he had a low profile, country information available to the Tribunal about Sarawak throughout this period does not support a conclusion that politically motivated violence was taking place at this time.  

145.   The Bersih rally that took place in Sarawak on 19 November 2016 was proceeded by a convoy that moved through Sarawak. Country information sets out that it started in Miri and continued for some six weeks before reaching Kuching ‘without incident’.[72] There was no information before the Tribunal regarding violent incidents in Miri or Kuching, nor at any of the gatherings in between. Indeed, the point was made that the Bersih convoy in Sarawak had been incident free, as compared with convoys in other places.[73] This was in part attributed to the absence of Umno or Red Shirts in the province.[74]

[72] Free Malaysia Today, Sarawak Bersih convoy peaceful as there’s no Umno, 11 November 2016.

[73] Ibid.

[74] Ibid.

146.   The Tribunal has considered the Applicants’ post hearing submission that not all politically motivated incidents of violence are documented and that he was targeted, not as some widespread opposition to Bersih, but by radical individuals or groups who try to suppress dissent through violent means. The Tribunal accepts that not all incidents are documented or reflected in country information. However, the Tribunal also considers that had there been such individuals or groups in Sarawak motivated to inflict serious injury for political reasons, there may have been country information available that reflected, at the least, that such tensions existed in Sarawak at this time – particularly given the fact that a focus of the Bersih campaign appears to have been closely monitoring and reporting on threats of and adverse actions towards, their supporters and activists. There was no such information before the Tribunal in relation to Sarawak.

147.   The Tribunal is prepared to accept that the Applicants may agree with the views of the DAP or Bersih in very general terms, but finds they are not members of the party or organisation and that they have not been active supporters of either.

148.   The Tribunal is not satisfied the First Applicant was a victim of a politically motivated crime.  

149.   The Applicants showed the Tribunal a photograph of a car with a smashed back windscreen and images of the First Applicant with stiches in his head and bruising on his torso. The Tribunal is prepared to accept that the First Applicant experienced serious harm in Sarawak. It has some reservations about this because it was not set out in his protection application form. Nonetheless, and appreciating the couple’s limited English and the fact that persons working in Australia are often poorly advised by peers, it is prepared to accept that the harm was the result of a violent incident that occurred but that was omitted from their application.

150.   The Tribunal does not, however, accept that any violent incident experienced by the First Applicant occurred for the reasons claimed. The Tribunal concludes that the First Applicant was a victim of a crime that was not conducted for political reasons. He was injured and his work bag was stolen. A worksite was later targeted and damaged.

151.   The First Applicant’s experience would have been alarming for the family, and the Tribunal understands they may have been on heightened alert after it occurred. However, the Tribunal does not accept and is not satisfied that the Second Applicant was subsequently targeted in December 2016, at all or because of the earlier incident.

152.   The Second Applicant’s evidence about this incident was that she felt someone was following her and that they tried to grab her, but did not, in fact, make contact with her. She went into a busy restaurant to get away from them and nothing else happened on this occasion, nor in the following 10 months the family remained living in their home. The Tribunal is not satisfied that the Second Applicant was targeted in this instance or that anything she perceived herself to be experiencing was necessarily maliciously intended or connected to the crime that saw the First Applicant injured and robbed.  

153.   The Applicants gave evidence that they were told an unknown person or unknown people attended the funeral of the First Applicant’s father in 2022. Given the Tribunal’s previous findings, and the limited information about the unknown people, the Tribunal does not accept that any people that were not recognised by the First Applicant’s mother or other family members at the funeral were there because they wished the First Applicant, or his family, harm. 

154.   The Tribunal accepts that the First Applicant may have been threatened or even hit as a teenager by Malay people that rode motorbikes. The Tribunal considers that these encounters would have been unsettling but that they were not a feature of his adult life. The Tribunal accepts, also, that the First Applicant may have experienced some differential treatment in Malaysia because of his Chinese Malaysian ethnicity but does not accept that any such incidents amounted to serious or significant harm.   

155.   The Tribunal finds that in Malaysia, the Applicants would return to live in Kuching. The Tribunal accepts that the Applicants have worked hard to support their child, and their extended family members. The Tribunal accepts also that the First Applicant’s brother is very unwell and that they remain particularly concerned about his health and about the expense of meeting his medical and other needs.

Refugee criteria

Harm on account of political opinion and/or activities  

156.   As set out above, the Tribunal has found that the First Applicant was not involved in DAP or Bersih activities in Sarawak and has not experienced incidents of serious harm in Malaysia for those reasons. The First Applicant gave evidence that he had no interest in being involved in political matters or activities in the future.

157.   In light of these findings, it follows that the Tribunal is not satisfied that he would be harmed now or in the reasonably foreseeable future because of his political activities or profile.

158.   The Tribunal further notes that even if it had accepted that the events claimed occurred for the reasons given, it would not be satisfied that the Applicants would face a real chance of experiencing politically motivated harm now or in the reasonably foreseeable future in Sarawak. Country information indicates that Bersih is a popular civil society movement that has previously harnessed widespread community anger about government corruption. Country information cited above indicates that it is respected by, and has the ear of, both sides of government.

159.   With respect to the Applicants’ claims to have supported separatist’s activities, the Tribunal is prepared to accept that they do support independence for Sarawak, and that they have previously signed a petition to this end. Noting the country information cited above, however, the Tribunal finds that they do not face a real chance of harm on this basis.

160.   Country information before the Tribunal indicates that supporters have not been targeted since 2015, under the Sedition Act or otherwise, and that only the group’s very prominent leader remains of adverse interest to the authorities. Her most recent offering on the subject makes clear her efforts are aimed at securing separation or autonomy through legal means, and that hers is not a violent movement. As such and based on current country information about the activities and treatment of SSU-UK supporters, the Tribunal does not consider there is a real chance supporters of the movement will be targeted by the authorities in the reasonably foreseeable future.

161.   In sum, the Tribunal is not satisfied that the Applicants face a real chance of experiencing serious harm in Malaysia, on account of support for the DAP, the Bersih movement or because of any support for a separate Sarawak, now or in the reasonably foreseeable future.

Harm on account of ethnicity / status as someone who is not Muslim/Malay

162.   As noted above, the First Applicant gave evidence that he had been threatened by Malay bikers when he was a teenager and that he thought his ethnicity was a factor in those incidents. The Tribunal is prepared to accept that such an incident or incidents may have occurred. As discussed with the First Applicant, however, country information does not indicate that persons of Chinese ethnicity in Malaysia face a real chance of experiencing threats of harm or physical harassment or violence in Malaysia. The First Applicant did not claim to have experienced serious harm on account of his ethnicity as an adult in Malaysia, and he did not claim that he feared that this would happen in the future. He did reflect on the fact that he felt he experienced less racial discrimination in Australia than in Malaysia, noting that he felt people in Australia were more polite to people of Chinese ethnicity than is the case in Malaysia.

163.   Having regard to country information about preferential treatment to members of the Bumiputera, the Tribunal accepts there is a real chance the First Applicant may experience employment discrimination in Malaysia because of his ethnicity. However, and having considered the First Applicant’s evidence about his work history and familial network, the Tribunal does not consider that there is a real chance he will experience serious harm for this reason in Malaysia. The Tribunal does not accept that any discrimination he would face in Malaysia would threaten their capacity to subsist or would otherwise amount to serious harm.

164.   The Tribunal does not accept that now or in the reasonably foreseeable future, there is a real chance that the Applicants will be subjected to serious harm for reasons of the First Applicant’s Chinese ethnicity and/or because he is not Malay. It follows that the Tribunal does not accept that the Applicants meet the criteria set out in s 5J(4)(b).

Harm on account of economic conditions

165.   As noted above, the Tribunal accepts that the Applicants came to Australia because they wanted to better be able to financially support their family and the First Applicant’s extended family members. It also accepts that they fear their ability to do this may be reduced on return to Malaysia due to factors including difficulty finding a job, the lower wages they could earn (relative to Australia), the cost of living and the general economy. The Tribunal accepts that in Malaysia, there is a real chance the Applicants will experience economic hardship.

166.   In order to satisfy the refugee criteria, an applicant must have a well-founded fear of persecution: s 5H. A well-founded fear of persecution is taken to exist where, among other things, there is a real chance the applicant will experience serious harm: s 5J(4)(b). At s 5J(5), examples of serious harm, for the purposes of s 5J(4)(b), are set out as follows:   

(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; and

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist.

167.   These are examples and do not provide an exhaustive definition of types of serious harm.

168.   The First Applicant has a long work history in Malaysia that including running a business in Sarawak and both he and the Second Applicant are working in agriculture and a factory in Australia. The Tribunal finds they would again find work in Malaysia, even accounting for any ethnic discrimination the First Applicant might face. While the work may not provide them with the same financial reward as work in Australia has provided, the Tribunal is satisfied it will be sufficient for them to meet their and their dependent family members’ basic needs, and that any economic hardship they will face in Malaysia will not amount to serious harm.   

169.   The Tribunal finds that there is no real chance the Applicants’ capacity to subsist would be threatened, or that they would otherwise experience serious harm on account of any economic hardship they would face in Malaysia now or in the reasonably foreseeable future.

Harm on account of riot, terrorism and crime

170.   Considering the Applicants’ profile and country information, the Tribunal is not satisfied that there is a real chance the Applicants will experience serious harm because of riots, terrorist activity or on account of crime in Sarawak. 

171.   Even accepting, as the Tribunal is prepared to do, that the First Applicant was previously a victim of a serious crime, the Tribunal does not accept there is a real chance that the Applicants would experience serious harm as victims of a crime in the reasonably foreseeable future. For the reasons set out above, the Tribunal is not satisfied that the attack on the First Applicant was motivated by a refugee reason. The First Applicant was assaulted and robbed. His car and body were damaged; his work bag was stolen, and a work site was subsequently targeted. He gave evidence that he did not complain to the police about the incident, and the Tribunal has found that the family were not subsequently targeted between these incidents and their departure to Australia almost a year later. 

172.   As noted above, country information indicates that petty crime is common, and that a threat of terrorism remains in Malaysia. Aside from the incidents experienced by the First Applicant in late 2016, the Applicants did not give evidence that they had experienced crime or riots or terrorism in Malaysia. The Tribunal does not accept that the Applicant family face an ongoing risk of harm on account of the incident experienced by the First Applicant. The Tribunal is not satisfied that the Applicant family, living in Sarawak or elsewhere in Malaysia, would face more than a remote or insubstantial chance of being impacted by crime, riot or terrorism in Malaysia.[75]

[75] Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

173.   Considering the Applicants’ claims individually and cumulatively, the Tribunal finds that there is not a real chance they will suffer persecution now or in the reasonably foreseeable future in Malaysia.

174.   For the reasons given above, the Tribunal is not satisfied that the Applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).

Complementary protection criteria

175.   Having determined the Applicants do not face a real chance of experiencing serious harm under the refugee criteria, the Tribunal has considered their claims under the complementary protection regime.

Harm on political opinion and/or activities

176.    Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[76]

[76] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].

177.   The Tribunal has found that the Applicants do not face a real chance of harm on account of pro DAP or Bersih opinions or activities, or their support for Sarawak and Sabah separating or becoming more independent from the rest of Malaysia. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicants being removed from Australia to Malaysia, there is a real risk[77] that they will suffer significant harm for these reasons in Malaysia.

[77] MIAC v SZQRB (2013) 210 FCR 505; Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].

Harm on account of Chinese Ethnicity / status as someone who is not a member of the Bumiputera  

178.   The Tribunal accepts there is a real risk the First Applicant may experience discrimination in Malaysia on account of his Chinese ethnicity and/or status as someone who is not a member of the Bumiputera.

179.   The First Applicant did not claim to fear harm in the form of death or torture in Malaysia on account of his ethnicity. And he has not claimed to fear for his physical safety in Malaysia for this reason. The Tribunal has considered whether there is a real risk he would experience cruel or inhuman treatment or punishment or degrading treatment or punishment on account of his ethnicity in the reasonably foreseeable future. As defined at s 5(1), cruel or inhuman treatment or punishment relevantly involves:

-an act or omission by which severe pain or suffering (mental or physical) is intentionally inflicted on another person; or

-an act or omission by which pain or suffering (mental or physical) is intentionally inflicted … so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature.

180.   Degrading treatment or punishment is defined as meaning ‘an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable’. 

181.   The First Applicant has a long work history in Malaysia and was, with a business partner and friend, previously able to establish a company in Sarawak that provided for their families. In the circumstances of this matter, given the First Applicant’s work history and his wife’s Malay ethnicity, the Tribunal does not accept that any discrimination or differential treatment that may be directed at the First Applicant, individually or as a series of acts, would involve him being subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment. Specifically, the Tribunal does not consider that the Applicant will experience severe pain or suffering, or extreme humiliation on account of any such behaviour.[78] Nor does the Tribunal consider that, if the First Applicant did experience pain or suffering because of differential treatment, any treatment of him would be so severe as to be reasonably regarded as cruel or inhuman in nature.[79]   

[78] Per the first limb of the definition of cruel and inhuman treatment, and the definition of degrading treatment and punishment, as set out in s 5(1) of the Act.

[79] Per the second limb of the definition of cruel or inhuman treatment, s 5(1) of the Act, and as informed by 

182.   For these reasons, the Tribunal does not accept that any ethnic discrimination the Applicants may experience in Malaysia because of the First Applicant’s ethnicity would meet the definition of ‘significant harm’, as exhaustively defined in s 36(2A).

Harm on account of economic conditions

1. As set out, the Tribunal accepts there is a real chance the Applicants will experience economic hardship in Malaysia. It follows that the Tribunal accepts there is a real risk that they will experience economic hardship. The Tribunal is not, however, satisfied that any hardship the Applicants may face will amount to significant harm. Under the complementary protection provisions, an applicant must satisfy a decision maker that the harm feared would amount to significant harm under s 36(2A) of the Act. This section provides that 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.

184.   The Applicants have not claimed to fear death or torture on account of economic conditions in Malaysia and the Tribunal finds that there is no real risk of them experiencing such forms of significant harm for that reason, or any other, in Malaysia. The Tribunal has considered whether the conditions the Applicants would experience in Malaysia amount to cruel or inhuman treatment or punishment or degrading treatment or punishment.

185.   In this matter, the Tribunal does not accept that the Applicants, in working in lower paid jobs or, in the case of the First Applicant, experiencing differential treatment including in the employment market, would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment. Specifically, the Tribunal does not consider that the Applicants will experience severe pain or suffering, or extreme humiliation on account of any such behaviour.[80] Nor does the Tribunal consider that, if they did experience pain and suffering, any treatment of them would be so severe as to reasonably be regarded as cruel or inhuman in nature.[81]

[80] Per the first limb of the definition of cruel and inhuman treatment and punishment, and the definition of degrading treatment and punishment, as set out in s 5(1) of the Act.

[81] Per the second limb of the definition of cruel or inhuman treatment and punishment, s 5(1) of the Act, and as informed by the definitions of ‘cruel’ and ‘inhuman’ in the Macquarie Dictionary, and consideration of these terms in Becciev v Moldova (2007) 45 EHRR 11, [39]; M v Secretary of State for the Home Department v Z [2002] EWCA Civ 952; Islam v Director General of the Justice and Community Safety Directorate [2016] ACTSC 27; Davies v State of Victoria [2012] VSC 343.

186.   The Tribunal notes, also, that economic conditions are, in general, a product of many macroeconomic factors (inflation, gross domestic product, national income, unemployment levels) and microeconomic factors (supply and demand, costs of production, taxes and regulations).[82] The Tribunal accepts that economic conditions and fluctuations in such conditions impact differently on people depending on their circumstances, including aspects like their ethnicity, age and family composition. In and of themselves, however, economic conditions are not the result of an intentional or deliberate act or omission by the government, private individual or other entity such that they could be said to be subjecting the Applicant to cruel or inhuman treatment or punishment or degrading treatment or punishment.

[82] Corporate Finance Institute, Macroeconomic Factor, Chen, J., ‘Economic conditions: definition and indicators’, 7 June 2024, ‘Microeconomics vs. macroeconomics: what’s the difference?, 25 December 2023, ‘macroeconomics’, ‘microeconomics’,

187.   For these reasons, the Tribunal does not accept that any economic hardship the Applicants may experience in Malaysia would meet the definition of ‘significant harm’, as exhaustively defined in s 36(2A).

Harm on account of riot, terrorism and crime   

188.   As noted above, the ‘real risk’ test has been held to impose the same standard as the ‘real chance’ test.[83] The Tribunal does not accept there is a real chance the Applicants will experience crime or security / terrorism incidents in Malaysia. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the Applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm for these reasons.   

[83] MIAC v SZQRB (2013) 210 FCR 505

189.   Considering the Applicants’ claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm.

190.   The Tribunal is not satisfied that the Applicant are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

CONCLUSION

1. 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. The Applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c).

2. There is no information before the Tribunal to indicate that any other members of their family unit are in Australia or have been found to be owed protection. The Tribunal is not satisfied that the Applicants satisfy s 36(2) on the basis of being members of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

193.   Accordingly, the Applicants do not satisfy the criterion in s 36(2).

DECISION

194.   The Tribunal affirms the decision not to grant the Applicants protection visas.

Date of hearings:  21 May 2024 & 27 May 2024

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.

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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.

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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.

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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.

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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.

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5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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36     Protection visas – criteria provided for by this Act

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

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

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

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

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

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

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

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

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

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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