1824811 (Refugee)

1824811 (Refugee) [2022] AATA 522 (10 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1824811
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Alison Murphy
DATE:10 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 January 2022 at 10:13am
CATCHWORDS
REFUGEE – Protection visa – Malaysia ––race – Chinese Malay – applicant had not experienced harm in Malaysia – economic reasons –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 30 April 2018. The delegate refused to grant the visa on the basis that the applicant was not owed protection by Australia.
The applicant appeared before the Tribunal on 13 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and he has been assessed on that basis by the Department. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as his country of nationality and the receiving country.
The applicant’s personal background
At hearing, the applicant gave evidence that he originates from Johor, Malaysia. He states his mother and four siblings remain living in Malaysia, his father having passed away earlier this year.
He stated his highest level of education was first year university, after which he worked in many jobs. When asked to give examples of his employment history, he stated that he had worked in sales selling [products].
The applicant entered Australia in October 2016 as the holder of a visitor visa and has not departed since. At hearing he told me that when he first came to Australia he thought he would return to Malaysia, but now he is working to support his family and he considers his situation to be more secure in Australia.
The applicant is of Chinese ethnicity.
I accept each of the above matters to be true.
The applicant’s claims for protection
In his protection visa application, the applicant stated that he opted to leave Malaysia due to the country’s unstable economy, which had worsened since the Goods and Services Tax was implemented by the government. He stated his monthly income wasn’t adequate to pay the bills and that was the reason he had moved to Australia.
However, at hearing the applicant gave different reasons for leaving Malaysia and seeking protection in Australia, stating that he left Malaysia because he was discriminated against as a Chinese Malay. He stated that he was running a restaurant in Johor which was targeted after ethnic Malays accused him of selling pork. He stated that the front of the restaurant was damaged with stones and spray paint and that this had happened on several occasions in August 2016. He gave evidence that he reported the damage to the police who interviewed him but did not arrest anyone in relation to the damage and so he closed it and came to Australia.
At hearing I raised with the applicant the issue of his credibility, noting that he had not suggested in his visa application or his earlier evidence about his employment that he was the owner of a restaurant, nor had he suggested he had any fear of returning to Malaysia on the basis of his Chinese ethnicity. Rather, he had stated in his visa application that he came to Australia for economic reasons, that he had not been harmed in Malaysia and that he did not think he would be harmed or mistreated on return.
In relation to the statements in his visa application, the applicant stated that when he came to Australia he paid someone $300 to write his visa application and he didn’t know what it said until informed by the Tribunal. In relation to his employment history, he said that the Tribunal had only asked him to give examples of his employment history and for that reason he had not mentioned that for two years prior to travelling to Australia he was the owner and operator of a restaurant in Johor which employed four staff.
When asked what he feared would happen if he returned to Malaysia, the applicant said he would be very disappointed as Chinese Malaysians were treated as second class citizens. When asked if he thought anyone in Malaysia would harm him if he returned, he said that Malaysia was unfair in relation to ethnic issues and, personally, his restaurant had been damaged.
At hearing, I discussed with the applicant information contained in the current DFAT report about the situation for Chinese Malaysians. DFAT reports that Chinese Malaysians are one of the biggest overseas Chinese communities in the world and the second largest ethnic group in Malaysia, making up about 20% of the population. DFAT reports that there are no laws or constitutional provisions that directly discriminate against Chinese Malaysians who freely participate in public life, including as Ministers in the current cabinet and in opposition parties. DFAT acknowledges that Chinese Malaysians report discrimination in the business sector and unequal access to certain industries, although they are well represented in the private sector.[1]
[1] DFAT Country Information Report: Malaysia 29 June 2021 at 3.8 – 3.12
I discussed with the applicant that DFAT acknowledged that ethnic Malays received preferential treatment, particularly in relation to higher education and government employment. However, DFAT reported it is not aware of a trend of official or societal violence against ethnic Chinese in Malaysia and assesses they experience low levels of official discrimination when attempting to enter the state tertiary system and civil service or when operating a Chinese Malaysian owned business in the private sector.[2]
[2] Ibid
In response to the DFAT information, the applicant stated that 20 years ago Malay Chinese represented 48% of the population but because they are not well-treated that figure has gone down to 20%. He said that the population of neighbouring Singapore had increased from 2 million to 3 million and half of that increase was made up of Malaysians, who would not have left Malaysia if they could earn enough money there. He said that ethnic Malays get a cheaper price than other ethnic groups in Malaysia when they buy goods and a significant proportion of positions in higher education are reserved for them, while Malay Chinese have fewer positions available to them.
Analysis of claims
I have accepted the applicant is of Chinese ethnicity. On balance, and despite the reservations I expressed at hearing, I give the applicant the benefit of the doubt and accept that he was running a restaurant in Johor for two years prior to travelling to Australia.
However, I do not accept that restaurant was damaged by Malay Muslims on several occasions in August 2016 because they thought he was selling pork. In making that assessment I note that the applicant did not make any such claims in his protection visa application, rather he stated that he came to Australia for economic reasons, that he had not been harmed in Malaysia and that he did not think he would be harmed or mistreated on return.
I have considered the applicant’s explanation that these claims were not included in his visa application because he paid someone else to prepare it and was not aware of its contents. However, I note the visa application contains other information provided by the applicant to the person completing his visa application. I consider that if the events described by the applicant at hearing were the reason he had left Malaysia for Australia, he would have told the person completing his visa application to include them in his claims. For these reasons I do not accept the applicant’s restaurant was targeted or damaged by ethnic Malays after he was accused of selling pork as claimed.
In view of DFAT’s advice cited above, I accept that Malays of Chinese ethnicity face a level of discrimination in Malaysia as a result of preferential treatment for ethnic Malays, particularly in relation to access to tertiary studies and government employment.
The fact that a person experiences some level of discrimination or a particular right is denied is not necessarily enough to establish persecution. Under s 5J(4)(b) of the Act, persecution must involve ‘serious harm’ to the person. Section 5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test, listing the following as instances of ‘serious harm’:
(a)      a threat to the person’s life or liberty;
(b)      significant physical harassment of the person;
(c)      significant physical ill-treatment of the person;
(d)      significant economic hardship that threatens 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.
I do not accept there to be a real chance that any discrimination the applicant may experience for reasons of his Chinese ethnicity will rise to the level of serious harm in the particular circumstances of the applicant. In making that assessment I note that the applicant stated in his visa application that he had not experienced harm in Malaysia and did not think he would be harmed or mistreated on his return. He does not suggest he has been physically harmed in the past in Malaysia and I have not accepted that his restaurant was damaged because he was accused of selling pork.
The applicant gave evidence that he completed high school and one year of university in Malaysia before working in a range of jobs. While he may be able to earn more money in Australia, he has not been denied basic services or the capacity to earn a living of any kind in Malaysia nor suffered economic hardship such as would threaten his capacity to subsist. I note that the list of instances of serious harm in s 5J(5) is not exhaustive, however I do not accept there to be a real chance that the applicant will be subjected to ‘serious harm’ for the purposes of s 5J(5) for reasons of his Chinese ethnicity if he returns to Malaysia now or in the foreseeable future. It follows that I do not accept he meets the criteria set out in s 5J(4)(b).
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer ‘significant harm’.
‘Significant harm’ is exclusively defined in s 36(2A) as follows:
(2A) A non‑citizen will suffer significant harm if:
(a)the non‑citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non‑citizen; or
(c)the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.
As noted above, the applicant stated in his visa application that he had not experienced harm in Malaysia and did not think he would be harmed or mistreated on his return. He does not suggest he has been physically harmed in the past in Malaysia and I have not accepted that his restaurant was damaged because he was accused of selling pork. For these reasons I do not accept there to be a real risk he will be arbitrarily deprived of his life if he returns to Malaysia, nor do I accept there to be a real risk he will be subjected to torture or have the death penalty carried out upon him.
While I have accepted that Malaysian nationals of Chinese ethnicity are subjected to a level of discrimination in Malaysia as a result of preferential treatment for ethnic Malays, particularly in relation to access to tertiary education and employment, the applicant himself has completed a year of tertiary studies and worked in a range of jobs. In the particular circumstances of the applicant I do not accept there to be a real risk the applicant will be subjected to discrimination rising to the level of ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ if returned to Malaysia. For these reasons I do not accept there to be a real risk the applicant will be subjected to ‘significant harm’ as that term is exclusively defined in s 36(2A) as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alison Murphy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 522

10 January 2022

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Immigration

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Procedural Fairness

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