1831897 (Refugee)

1831897 (Refugee) [2024] AATA 1686 (26 February 2024)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1831897
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:David James
DATE OF DECISION:  26 February 2024
DATE CORRIGENDUM
SIGNED:7 March 2024
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:

1.Heading before paragraph 23 should state 'Review hearing - 26 February 2024' rather than 'Review hearing - 26 February 2022'.

David James
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1831897
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:David James
DATE:26 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 February 2024 at 12:47pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – Buddhist – race – Chinese – riots and racism - Tribunal is satisfied that the review applicant was properly invited to a hearing – applicant failed to attend tribunal hearing –fears of being a victim of terrorism and crime in Malaysia – fear of persecution is not well-founded – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 411, 426, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 4 October 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 2 March 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 30 October 2018. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant was not represented in relation to the review.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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 (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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Malaysia they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, which have been considered by the Tribunal:
·The applicant’s protection visa application submitted on 2 March 2018 and the annexed copy of the applicant’s Malaysian passport’s bio-data page;
·The applicant’s application for review of 30 October 2018 and the annexed Decision Record of 4 October 2018; and
·The administrative and movement records of the Department relating to the applicant.
Claims for protection
The applicant, in his visa application, claims to have previously resided in Sandakan in the Malaysian State of Sabah and made the following claims (as summarised) that:
·He is Chinese and a Buddhist;
·He left Malaysia because of the riots and racism; because only the Bumiputra (Malays) are benefited; the government has poor leadership; there is corruption everywhere; and, because of terrorism, kidnap and serious crime;
·He did not experience any harm in Malaysia;
·He fears returning to Malaysia because he won’t survive because of the unsafe situation and because he is afraid of being a victim of terrorism and crime;
·He considered moving to a different state in Malaysia where his relatives stay but the situation there is even worse;
·As the authorities are unable protect themselves, they cannot protect him; and
·He will relocate and return to Malaysia after everything is peaceful and there is no more criminal and terrorist activity.
Department interview
The applicant was not offered an interview by the Department.
Delegates decision
The delegate’s decision of 4 October 2018 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant may face low levels of discrimination on return to Malaysia because of their race. However, with reference to the country information the delegate found that such discrimination would not reach the threshold to constitute persecution under s 5J of the Act. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate also found that the applicant could obtain protection from the Malaysian authorities such that there would not be a risk that they will suffer significant harm. Therefore, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
On 30 September 2019, and again on 6 July 2021 and 17 August 2022, the applicant emailed the Tribunal requesting a Medicare letter and provided new contact details that were different to his details which he had previously provided with his application for the review. He provided an updated email address [and] a telephone number of [number] which the Tribunal then utilised to contact and update the applicant as to his matter.
Invitation to attend a hearing
On 30 January 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 26 February 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 19 February 2024, the Tribunal sent a SMS Hearing Reminder to the applicant’s mobile telephone number of [number] (the mobile number which the applicant had provided to the Tribunal as his updated contact number as outlined above at paragraph 19). The message read:
Reminder – Your AAT hearing is on 26/02/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
On 19 February July 2024, a further SMS Reminder was forwarded by the Tribunal to the applicant’s mobile number, it read:
Reminder – Your AAT hearing is on 26/02/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
Review hearing - 26 February 2022
The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
On the morning of the scheduled hearing, 26 February 2024, the Tribunal telephoned the applicant’s mobile number of [number] at 9:20 am and this call rung out and then diverted to voicemail. No message was left on this occasion by the Tribunal. The Tribunal again called the applicant’s mobile number at 9:45 am and the call again was not answered and diverted to voicemail. The Tribunal left a message reminding the applicant of his hearing and stressing the importance of calling the Tribunal. At 10:00 am the Tribunal again called the applicant’s mobile number which was again not answered and was diverted to voicemail.
Additionally, on the morning of the hearing, the Tribunal also telephoned the applicant’s previously nominated telephone number (as had been nominated by the applicant in his application for the visa and on his application for review which had been submitted on 30 October 2018) of [number] at 9:50 am and 10:00 am. On both occasions the call was not answered, and an automated voice message was received stating that the number was not answering.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with the invitation sent via email to their nominated updated address as identified above at paragraph 19. Additionally, the Tribunal notes that two separate SMS hearing reminders were also sent to the applicant’s most recently nominated mobile telephone number, as is outlined above at paragraphs 21 and 22.
As noted above, the Tribunal also attempted to contact the applicant on the morning of the scheduled hearing by telephoning both his most recently updated mobile telephone number and the telephone number which he had recorded on his application for the visa and his application for the review, as outlined above at paragraphs 24 and 25. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
Country information
The Tribunal has taken into account the DFAT Country Information Report Malaysia, 29 June 2021 as relevant, including information under the heading of ‘Recent History’ at 2.1 to 2.4, it is reported at 2.3 that:
Race has historically been a prominent issue in Malaysia, and relations between Malaysia’s diverse populations have been tense at times. On 13 May 1969, in the wake of the 1969 Malaysian general election, Sino-Malay sectarian violence broke out in the form of race riots between ethnic Malays and Chinese Malaysians (some Indian Malaysians were also involved) in Kuala Lumpur. Official figures indicate 196 deaths, although estimates vary, some as high as 600. This event led to action policies that favour ethnic Malays and indigenous groups (collectively known as Bumiputera , see Glossary) over other ethnicities in areas such as business, higher education, property ownership, government contracts and civil service jobs. Elements of these affirmative action programs continue today (see Race/Nationality).
Under the heading of ‘Demography’ at 2.5 to 2.8, it is reported at 2.5 in part that:
Malaysia’s ethnic groups include the Bumiputera (62 per cent, includes Malays and indigenous persons of the Peninsula, Sabah and Sarawak), Chinese (20.6 per cent), Indian (6.2 per cent), non-citizens (10.3 per cent) and others (0.9 per cent) (see Race/Nationality). The official language is Bahasa Malaysia (Malay), but English is widely used, along with a variety of Chinese dialects, Tamil and, to a lesser degree, indigenous languages.
Under the heading of ‘Corruption’ at 2.17 to 2.20, it is reported at 2.19 in part that:
The Malaysian Anti-Corruption Commission (MACC) has arrested hundreds of civil servants in recent years (467 in 2020, down from 525 in 2019). These arrests came from a variety of different areas within government, for example: in January 2021, five officers from the Malaysian Quarantine and Inspection Services Department were arrested as part of an alleged meat cartel; 27 Immigration Department officers were arrested in November 2020 for their role in an alleged human trafficking syndicate…
Under the heading of ‘Security Situation’ at 2.44 to 2.46, it is reported at 2.44 and 2.46 that:
Malaysia’s overall security situation is generally stable. Petty crime is common: thieves snatch handbags, shoulder bags, jewellery, mobile phones and other valuables from pedestrians, and pickpocketing and residential burglaries frequently occur. There is a high threat of kidnapping in the coastal areas of eastern Sabah. Extremists based in the southern Philippines are particularly active in the area between the towns of Sandakan and Tawau in eastern Sabah.
Consistent with global trends, terrorism is a long-standing concern in Malaysia. Malaysian security forces are responsive and generally capable. Following a terrorist attack in Jakarta on 14 January 2016, Malaysian security forces increased their visible presence and security measures on Malaysian streets. Despite this, Da’esh (also known as the Islamic State in Iraq and the Levant or the Islamic State) sympathisers were involved in a grenade attack in Kuala Lumpur on 28 June 2016. Although Malaysia has not experienced further Da’esh-related attacks, and the overall number of foreign terrorist fighters from Malaysia has reportedly decreased, the country remains a source, transit, and, to a lesser extent, a destination country for suspected Da’esh supporters. This includes suspected third-country Da’esh supporters deported from Turkey and those planning to travel to the southern Philippines. Between January 2013 and May 2019, Malaysian authorities claim to have made 519 counter-terrorism related arrests, while the Royal Malaysia Police (RMP) Special Branch Counter-Terrorism Division has reportedly disrupted several domestic terror plots. It was reported that Malaysia made seven counter-terrorism arrests in 2020, down from 72 and 119 arrests (of Da’esh suspects) in 2019 and 2018 respectively, but this was attributed chiefly to coronavirus-related movement restrictions.
Under the heading of ‘Chinese Malaysians’ at 3.8 to 3.12, it is reported at 3.8, 3.9, and 3.12 that:
The Malaysian Department of Statistics estimated there were 6.7 million Chinese Malaysians in Malaysia in 2020, making up around 20 per cent of the population. Chinese Malaysians are one of the largest overseas Chinese communities in the world, and are Malaysia’s second largest ethnic group. Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia. Chinese Malaysians are concentrated in the west coast states of peninsular Malaysia, living in large urban centres, including within Kuala Lumpur and Penang, and the populous states of Johor, Perak and Selangor, where they comprise approximately 30 per cent of the population.
There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians (though, by implication, as the second largest ethnic group, they are the principal group affected by the constitutional preference for Bumiputera). Chinese Malaysians freely participate in political life, including as ministers (one in the current cabinet, down from four in the PH government) and in opposition parties, but ethnic Chinese politicians have occasionally faced public criticism for interfering with ‘Malay rights’. The Democratic Action Party (DAP) – a predominantly ethnic Chinese party – currently holds 42 of the 222 federal parliamentary lower house seats. Chinese Malaysian community members advised that the 1MDB corruption scandal (see Corruption) had galvanised anti-government sentiment among Chinese Malaysians (as well as others) and had led to greater political engagement.
DFAT assesses Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector.
Under the heading of ‘Buddhists and Hindus’ at 3.59 to 3.64, it is reported at 3.59 and 3.64 that:
Buddhists represented just under 20 per cent of the total population in 2010, the last year for which official data is available, while Hindus made up 6.3 per cent. Local sources estimate the current proportion of Chinese Malaysians who are Buddhist is around 80 per cent. Most Hindus are Indian Malaysian.
DFAT assesses Buddhists and Hindus are usually able to live free from societal discrimination on a day-to-day basis. They are usually able to worship freely without significant official interference. On rare occasions, they may face societal difficulties in cases where compulsory acquisition leads to their places of worship being relocated into inhospitable locations.
Under the heading of the ‘Royal Malaysian Police (RMP) at 5.5 to 5.9, it is reported at 5.5 that:
The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates over 800 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. SUHAKAM conducts some human rights training and workshops for police, state Islamic religious authorities and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
And under the heading of ‘Judiciary’ at 5.14 to 5.18, it is reported at 5.14 and 5.18 that:
The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level, and subordinate courts. Syariah courts operate at state level with jurisdiction over Muslims in personal matters. The subordinate civil courts hear the majority of Malaysia’s criminal, civil and family law matters for non-Muslims. A Judicial Appointments Commission makes judicial appointments, subject to the Prime Minister’s final approval. Seven of 11 members of the Federal Court are Malay Muslims which is roughly equivalent to their proportion of the population.
DFAT assesses that, while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.
FINDINGS AND REASONS

The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Malaysia and provided a copy of the bio data page of his Malaysian passport to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of Malaysia. Malaysia is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[4] Fox v Percy (2003) 214 CLR 118
[5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which both provide useful guidance for this Tribunal.
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal notes, as outlined below, that the applicant has not provided a level of detail necessary to satisfactorily establish the relevant facts of his case.
The Tribunal notes that the applicant’s claims are vague and lack any detailed description of the facts relied upon by the applicant in support of his claims.
The Tribunal further notes that notwithstanding having received a negative finding by the delegate, the applicant chose not to attend a hearing where he could have given evidence and made arguments. In that regard, the Tribunal notes that if the applicant had attended his scheduled hearing the Tribunal would have been able to ask the applicant questions and would have given the applicant an opportunity to provide further detail as to the facts of his matter.
Race and Security
The applicant claims that he left Malaysia because of the riots, racism and because only the Bumiputra (Malays) are benefited. He also claims to have left Malaysia because of terrorism, kidnap and serious crime. He claims to fear returning to Malaysia as he won’t survive because of the unsafe situation and because is he is afraid of being a victim of terrorism and crime.
He further claims that the government has poor leadership and there is corruption everywhere and that he cannot relocate as the situation is the same throughout Malaysia and that the Malaysian authorities cannot protect him as they cannot protect themselves.
The applicant has not provided any information and/or evidence as to the details of any riots, their timing, the nature and reason for the riots, who attended these riots, where and when they occurred and what if any police or other government intervention did or did not occur. Additionally, the applicant has not provided any information and/or evidence as to what occurrences of racism he is aware of, has witnessed and/or been subject to in Malaysia. Likewise, the applicant has not discussed or provided any information and/or evidence as to the basis of his fears of being a victim of terrorism and crime in Malaysia.
Further, the applicant has not provided any information and/or evidence in support of his broad and vague claims of corruption and what if any instances of same, he is aware of, or how he has been negatively impacted and/or harmed by such corruption.
The Tribunal in this regard, notes that the applicant has not claimed to have been harmed in any way in Malaysia and his vague claims do not correspond with the relevant and available DFAT country information.
In that regard, the Tribunal prefers the detailed DFAT country information which has been outlined above at paragraph 28. It is noted that DFAT reports that race has historically been a prominent issue in Malaysia, but that 20.6 per cent of the Malaysian population are Chinese and that the security situation in Malaysia is generally stable. Further, consistent with global trends terrorism is a concern in Malaysia but that the security forces in Malaysia are generally capable. Additionally, it is reported that Buddhists are usually able to live free from societal discrimination and that the RMP comprises 115,000 officers and operates over 800 police stations with a Judiciary that for the most part complies with the rule of law.
Therefore, given the lack of details that the applicant has provided to both the Department and the Tribunal together with his claims having been found by the Tribunal to be inconsistent with the relevant and available DFAT Country Report, and, that he has not claimed to have been harmed in any way in Malaysia, the Tribunal has rejected the applicant’s claims in their entirety.
The Tribunal has done so (rejected the applicant’s claims in their entirety) on the basis of credibility given the vague nature and lack of details contained in his claims.
The Tribunal further finds on the evidence before it, and for the reasons outlined above, that there is no information and/or evidence before the Tribunal to satisfy the Tribunal that the applicant would be targeted for harm upon any future return to Malaysia on the basis of any of the reasons outlined in s 5J(1)(a) of the Act.
Therefore, the Tribunal finds on the evidence before it, and for the reasons outlined above, that the applicant does not a face a real chance of persecution involving serious harm if he was to return to Malaysia in the reasonably foreseeable future on the basis of any of the reasons outlined in s 5J(1)(a) of the Act.
The Tribunal finds that the applicant’s fears in this regard are not well founded.
Further, the Tribunal finds with reference to the relevant and available country information as outlined and discussed above, that the applicant if he so needed to do so, could obtain from an authority of Malaysia protection such that there would not be a real risk that he would suffer ‘significant harm’ as defined in s 36 (2B)(b) of the Act, if he was to return to Malaysia in the reasonably foreseeable future.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore that the applicant is not a refugee within the definition of s 5H of the Act.
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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, and the availability of protection from an authority of Malaysia, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that 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 the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Malaysia.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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.
…

[2024] AATA 1686

26 February 2024

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Standing

Statutory Construction