1832131 (Refugee) - [2024] AATA 1810

1832131 (Refugee) [2024] AATA 1810 (28 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1832131
CASE NUMBER:  1832135
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Adrienne Anderson
DATE:28 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants a protection visa.

Statement made on 28 May 2024 at 3:22pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – riots and terrorism – robberies and other serious crime – race – ethnic Chinese – economic conditions in Malaysia – the victim of property crime – any economic hardship that the first applicant may face on return to Malaysia does not fall within the definition of ‘significant harm’ – not satisfied the applicant has a real chance of suffering serious or significant harm – 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 a combined application for review of a decision made by a delegate of the Minister for Home Affairs on 8 October 2018 to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The first-named applicant (the first applicant) and second-named applicant (the second applicant), who claim to be citizens of Malaysia, are engaged to be married. They jointly applied for the visa on 13 March 2018. The second applicant did not make her own claims to protection in that application. The delegate refused to grant the visa on the basis that they did not meet the criteria for a protection visa. This decision was contained within a single decision record.
Each applicant made a separate application for review to the Tribunal in respect of the same decision record. On 22 March 2024 the Tribunal obtained the applicants’ consent to have a combined hearing in respect of their applications.
The applicants appeared before the Tribunal on 10 May 2024 to give evidence and present arguments. At the commencement of the hearing, the second applicant confirmed that she did not have her own claims to protection and that she did not wish to give evidence. The Tribunal received evidence from the first applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants gave their consent to the Tribunal at the hearing to make a combined decision in respect of their applications.
CLAIMS AND EVIDENCE
First applicant’s personal background
The first applicant is a [age]-year-old man from [City 1], in Negeri Sembilan, Malaysia. He is of Chinese ethnicity and Buddhist faith. He resides with his fiancée, the second applicant. They do not have any children.
The first applicant was raised in a household with his maternal grandmother and a maternal uncle. His parents and younger brother currently reside in Negeri Sembilan.
The first applicant completed secondary school in Malaysia. He worked as a [occupation] for several years before coming to Australia. In Australia, the first applicant works as a [occupation].
The applicants first arrived in Australia on [date] September 2016 on tourist visas. The applicants were subsequently granted student visas in January 2017. In June 2017 the applicants returned to Malaysia for approximately a month, returning to Australia on [date] July 2017. The applicants applied for a protection visa on 13 March 2018.
First applicant’s protection claims
Before the Department
In his protection visa application form, the first applicant stated that he left Malaysia for the following reasons:
a.Riots and terrorism;
b.Feeling insecure because of robberies and other serious crime;
c.Poor government leadership and corruption.
In response to a question asking if the authorities can or will protect him, the first applicant stated that all the authorities are Muslim and that there is no protection for non-Muslims, namely people of Chinese and Indian ethnicity.
The applicants were not invited to attend an interview with the Department and no further material was provided by the first applicant in support of his claims.
Before the Tribunal
At hearing, the first applicant maintained and elaborated on the above claims. He stated that he came to Australia for economic reasons, to get the lifestyle that he wanted. He attended English classes on his student visa and returned to Malaysia to sort personal affairs including his insurance and bank accounts. After his return to Australia, he subsequently applied for a protection visa because he wanted to be able to work longer hours. He had a job lined up where his employer wanted him to be able to work full-time hours, which his student visa conditions did not allow.
The first applicant explained at hearing that his claims of government corruption and poor leadership related to the economic conditions in Malaysia. This was because at the same time that the country was facing issues of corruption, the house prices and cost of living went up and monthly salaries went down. He stated that he could not have the way of life that he wanted in Malaysia and that he wanted to stay in Australia to make money, start a family and have a good life.
In relation to his claims to fear rioting and terrorism in Malaysia, the first applicant stated at hearing that he did not fear harm in this regard. He and his fiancée did not think about such things when they lived in Malaysia and had not had any personal experiences in relation to demonstrations or other public incidents. He stated that his main concern was his economic situation in Malaysia.
In relation to his claims to fear crime, the first applicant stated that it was common in Malaysia for people to rob people on the street by snatching their phones and bags as they pass on motorcycles, break into cars and rob people’s houses. He stated that he had been the victim of all three of these types of crimes. In 2014 or 2015 his car was broken into when he was out for a meal. He also experienced street crime, where his belongings were snatched, but was not physically harmed when that occurred. He did not report these matters to the police because he knew that the police would not be able to do anything. They would not be able to find the criminals who stole his property and would not be able to recover his belongings.
The first applicant also stated that in 2015 his house was burgled while he was out at the supermarket. Cash and valuables were stolen. The first applicant and his family informed the police, who visited to look at the scene. As far as the first applicant is aware, the police did not take any further action.
The Tribunal asked the first applicant at hearing whether he had faced any other problems while in Malaysia or had any other fears in relation to returning to Malaysia. He responded in the negative to these questions. Because the first applicant’s protection visa application form raised the issue of his Chinese ethnicity and Buddhist religion the Tribunal asked whether he had experienced any problems or had any fears in this regard. The first applicant stated that Chinese people were not treated fairly and were like second class citizens. While he had not experienced it often personally, he had observed that some of the ethnic Malay population spoke badly about Chinese people and said things like ‘why are you here’ and ‘why don’t you go back to China’.
At hearing, the first applicant gave the Tribunal copies of a completed application form for a Skilled Employer Sponsored Regional (SESR) (Provisional) visa and a request for the applicants to undergo health examinations in respect of this application, sent by the Department of Home Affairs on 6 May 2024. The Tribunal does not consider the fact or contents of this application to have any bearing on the present review and has not taken it into account in its substantive determination of the review.
At the end of the hearing the first applicant requested that the Tribunal hold its decision in the present review for several months so that the first applicant can remain onshore for the determination of the SESR visa application. The Tribunal has declined the request given that the SESR application is irrelevant to the issues to be determined in the present review and bearing in mind, as explained to the first applicant at hearing, the obligations on the Tribunal set out in s 2 of the Administrative Appeals Tribunal Act 1975 to pursue the objective of providing a mechanism of review that is, among other things, fair, just, economical, informal and quick.
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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or 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), 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’). 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.
FINDINGS AND REASONS
As outlined above, the first applicant stated at hearing that he applied for a protection visa in order to access more favourable working hours and because his employer did not want to accept someone on a student visa. At hearing, the Tribunal put to the first applicant its concerns that he may not have a subjective fear of persecution as claimed because he returned to Malaysia in 2017 and because he had stated that he applied for a protection visa so that he could work longer hours. The first applicant responded that he returned to Malaysia briefly to sort out matters relating to his finances that he could not do from Australia because the bank did not accept his overseas number.
The Tribunal has considered this explanation. While it has doubts as to the genuine nature of the first applicant’s fear in relation to his claims the Tribunal has nonetheless considered his claims in relation to the refugee and complementary protection criteria in ss 36(2)(a) and 36(2)(aa) below.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicants travelled to Australia on apparently genuine Malaysian passports, copies of which were provided to the Department and Tribunal. The applicants have consistently stated that they are citizens of Malaysia and have been assessed as such by the Department. The Tribunal accepts that they are Malaysian citizens and finds Malaysia to be the country of nationality and receiving country.
Risk of harm on the basis of crime
The Tribunal accepts the first applicant’s evidence that he was the victim of property crime in Malaysia in 2015. At hearing the Tribunal discussed with the first applicant that it needed to consider whether he faced a real chance of serious harm on return to Malaysia now or in the reasonably foreseeable future and that it needed to be satisfied that any harm feared would rise to the level of serious harm and be directed at him for one of the reasons listed in s 5J(1)(a) of the Act.
The Tribunal discussed with the first applicant the following information contained in the DFAT report:
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.[1]
[1] Department of Foreign Affairs and Trade (DFAT), Country Information Report – Malaysia (29 June 2021) [2.44].
While the Tribunal accepts that property and other petty crime is a common occurrence in Malaysia, there is no evidence before the Tribunal suggesting the rates to be so high such that there is a real, as opposed to remote, chance that the first applicant will again be the victim of crime now or in the reasonably foreseeable future on return to Malaysia.
Further, the Tribunal discussed with the first applicant at hearing that it did not appear that being vulnerable to crime in Malaysia arises because of race, religion, nationality, political opinion, or membership of a particular social group. The first applicant did not provide further comment in response and did not claim at hearing that this was the reason he had experienced crime in the past or the reason he had not been able to access protection. The Tribunal raised with the first applicant at hearing that the protection visa application form suggested a lack of protection for people of Chinese and Indian ethnicity and asked him whether this was an issue he had faced in the past or a concern he held. The first applicant stated that people of Chinese ethnicity were treated as second class citizens. He made claims of verbal abuse of Chinese Buddhist people which are addressed below in the section headed ‘risk of harm on the basis of ethnicity/religion’. On the issue of state protection from crime, the Tribunal notes the first applicant’s evidence at hearing that he had not reported instances of street crime to the police because it would have been futile because the police are unable to find the people who commit such crimes or the property they take and the matter gets ‘forgotten’. When he lodged a report in relation to the burglary of his home, the first applicant gave evidence that the police responded by coming to his home.
On the basis of the first applicant’s evidence and other information before it, the Tribunal does not accept that any future risk in relation to crime would arise for the essential and significant reason of race, religion, or other reason listed in s 5J(1)(a) of the Act. Nor is there any information that he would be denied protection on such a basis. Further, while not condoning petty crime, the Tribunal does not consider instances of bag snatching or similar property crime such as the first applicant has experienced in the past or which he fears may occur in the future to amount to serious harm for the purposes of s 5J(4) of the Act. The Tribunal is therefore not satisfied that the first applicant has a well-founded fear of persecution on this basis on return to Malaysia, now or in the reasonably foreseeable future.
In relation to complementary protection, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm in relation to crime.
The ‘real risk’ test for the purposes of the complementary protection criterion in s 36(2)(aa) of the Act has been held by the Australian courts to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[2] The Tribunal notes that this appears to be equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[3] Therefore, for the same reasons as above, the Tribunal is not satisfied that there is a real risk that the first applicant will suffer significant harm in this regard.
[2] MIAC v SZQRB (2013) 210 FCR 505, per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
[3] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
Further, 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, including, as discussed with the first applicant at hearing, 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. The first applicant acknowledged in response that crime does happen to everyone in general but that when it happens to you it involves personal safety.
The Tribunal has considered this response and acknowledges that being the victim of crime may feel personal. However, the Tribunal does not accept that this signifies that the first applicant faces the risk of crime personally for the purposes of s 36(2B) of the Act because that element requires the individual to face a risk of differential treatment or to face risk because of characteristics that distinguish them from the general populace.[4] There is no evidence to suggest the first applicant faces differential treatment or that the situation is worse for a person of Chinese ethnicity, Buddhist faith, or other relevant characteristic pertaining to the first applicant.[5] The Tribunal therefore finds that the risk of crime is shared by the population generally and not faced by the first applicant personally.
[4] SZSPT V MIBP [2014] FCA 1245 at [11]-[15].
[5] SZSFF v MIBP [2013] FCCA 1884 at [33], [49].
The Tribunal is therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm on this basis.
Risk of harm on the basis of ethnicity/religion

At hearing, the first applicant gave evidence that Chinese Buddhist people are treated unfairly in Malaysia. He stated that there was extreme rhetoric against Chinese people. He stated that he had occasionally experienced and observed Malay people picking on Chinese people and saying things like ‘why are you here’ and ‘why don’t you go back to China’.
The Tribunal discussed relevant country information contained in the DFAT report with the first applicant at hearing. The report notes that people of Chinese ethnicity are not included in the preferential programs for ethnic Malays and other bumiputera which promote increased opportunities for bumiputera to access higher education, careers within the Civil Service, commercial opportunities and housing.[6] Therefore, DFAT assesses that 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.[7]
[6] DFAT, Country Information Report – Malaysia (29 June 2021) [3.3].
[7] Ibid [3.12].
On the basis of the available country information, the Tribunal therefore accepts that the first applicant may not be able to access bumiputera privileges, such as preferential treatment in relation to government employment or tertiary education, and that this constitutes a level of discrimination.
However, as discussed with the first applicant at hearing, not all discrimination will amount to persecution.[8] Under s 5J(4)(b) of the Act, persecution must involve the infliction of ‘serious harm’ to the individual. A non-exhaustive list of instances of serious harm are set out in s 5 J(5) of the Act which indicate the type and severity of harm involved. Section 5J(5) provides that the following are 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.
[8] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55].
The first applicant has been employed in Malaysia in the past. He has not been denied employment or the capacity to earn any kind of a living for reason of being ethnically Chinese or of Buddhist faith. The first applicant stated at hearing, when asked, that he would be able to find work on return to Malaysia, albeit with a lower rate of pay than that he is earning in Australia. The first applicant does not claim to have been physically harmed or harassed in the past.
Given his past experiences, the Tribunal does not accept the first applicant has been denied basic services or the capacity to earn a living of any kind or suffered economic hardship such as would threaten his capacity to subsist or physical harassment or mistreatment. The Tribunal notes that the list of instances of serious harm in s 5J(5) is not exhaustive, however the Tribunal does not accept there to be a real chance that the first applicant will be subjected to ‘serious harm’ for the purposes of s 5J(5) for reasons of his Chinese ethnicity or Buddhist religion if he returns to Malaysia now or in the foreseeable future. It follows that the Tribunal does not accept he meets the criteria set out in s 5J(4)(b).
For the purposes of complementary protection, the Tribunal has also considered whether the first applicant has a real risk of suffering significant harm on return to Malaysia in this regard. As set out above, the Tribunal has accepted that Malaysian nationals of Chinese ethnicity/Buddhist religion experience a level of discrimination as a result of preferential treatment accorded to bumiputera and that he and other ethnically Chinese people experience verbal insults and racist comments.
However, on the basis of the first applicant’s evidence and the available country information, the Tribunal is not satisfied that any discrimination he may experience in the future would amount to significant harm as exclusively defined in s 36(2A) of the Act.
Section 36(2A) of the Act exhaustively defines ‘significant harm’ 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.
The first applicant did not claim to fear being arbitrarily deprived of his life, or subject to the death penalty or torture. According to s 5(1) of the Act, ‘cruel or inhuman treatment or punishment’ involves the infliction of severe pain or suffering, whether physical or mental, or pain and suffering where the act could reasonably be regarded as cruel or inhuman in nature. ‘Degrading treatment or punishment’ requires extreme humiliation that is unreasonable.
In this light, the Tribunal has considered whether any future verbal abuse, other societal discrimination, or official discrimination in the form of being denied access to government preferential programs would amount to ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. The Explanatory Memorandum relating to the introduction of the complementary protection criteria states that the first type of cruel or inhuman treatment or punishment – an act or omission by which severe pain or suffering is intentionally inflicted – refers to an act or omission which would normally constitute torture but which is not inflicted for one of the purposes set out under the definition of torture.[9] The second type of cruel or inhuman treatment may be interpreted by reference to international jurisprudence which has been said to include treatment that ‘deliberately causes severe suffering…which, in the particular situation, is unjustifiable.’[10] The wording in the Act suggests that the harm be of a severe and significant nature and has been interpreted as such by the courts. In SZRUT v MIAC,[11] for example, the Court accepted that ‘criticism’ on its own could not amount to significant harm given the definition in s 5 and s 36(2A) of the Act.[12]
[9] Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 at [16].
[10] Greek case, European Commission on Human Rights, Application Nos 3321/67, 3322/67, 3323/67, 3344/67 (18 November 1969).
[11] [2013] FCCA 368.
[12] Ibid [26].
Given these considerations, the Tribunal does not accept that comments critical of or negative towards the first applicant’s ethnic background or himself involve the infliction of severe pain or suffering or are acts that are reasonably to be regarded as cruel and inhuman, such as to amount to cruel or inhuman treatment.
A measure not involving physical ill-treatment may amount to ‘degrading treatment’ where it interferes with the person’s human dignity.[13] However, this treatment must also meet a minimum level of severity to constitute ‘extreme humiliation’.[14] In the first applicant’s circumstances, the Tribunal is not satisfied that any future verbal abuse or other low-level societal discrimination would give rise to suffering of this level.
[13] Department of Home Affairs, Complementary Protection Guidelines (29 February 2020) [3.4.6.2].
[14] Ibid.
Nor does the Tribunal accept that the first applicant’s inability to access government preferential programs allocated to bumiputera gives rise to a real risk of suffering ‘significant harm’. The first applicant has been consistently employed over a number of years in Malaysia and has not been denied the ability to earn a living of any kind. On this basis the Tribunal does not accept that he has experienced treatment reaching the requisite level of severity of ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ or that he will experience treatment amounting to significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
Risk of other economic harm
In the preceding section the Tribunal considered whether any economic effects of government policy differentiating on the basis of race or religion amounted to serious harm in the first applicant’s circumstances.
The Tribunal has also considered whether the first applicant faces a real chance or real risk of serious or significant harm in relation to the economic conditions generally in Malaysia. As set out above, the first applicant confirmed at hearing that his claims in relation to corruption and poor leadership in Malaysia set out in his protection visa application form related solely to the economic conditions, in that corruption made his life more difficult. At the time that the country was facing corruption, the cost of living went up.
The first applicant stated at hearing that he had left Malaysia because he could make more money in Australia and establish the lifestyle that he wished to have. He stated that he could not return because his future seemed dim and that he wanted to stay in Australia and make money and have a good life.
The Tribunal accepts that the economic conditions in Australia are more favourable than those in Malaysia and that the first applicant has higher earning potential in Australia. However, as discussed with the first applicant at hearing, the refugee assessment refers to harm rising to the level of serious harm, such as denial of basic services or the capacity to earn a living of any kind or suffering economic hardship such as would threaten the capacity to subsist, and that this harm must arise for one of the reasons mentioned in s 5J(1)(a) of the Act.
On the basis of the available evidence, the Tribunal does not accept that one of the reasons mentioned in s 5J(1)(a) is the essential and significant reason for the economic harm feared by the first applicant on return to Malaysia. Nor does it accept that the feared economic hardship amounts to serious harm for the purposes of s 5J(4)(b) of the Act.
In assessing whether the first applicant meets the complementary protection criterion in relation to his general economic circumstances, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
The first applicant did not claim to fear being subject to the death penalty or torture in this respect. As discussed at hearing, the relevant forms of ‘significant harm’ set out in s 36(2A) of the Act require the harm or punishment to be deliberately inflicted through the intentional acts or omissions of another person or entity. The Tribunal put to the first applicant at hearing that it did not appear that the Malaysian government was intentionally inflicting harm on the first applicant in this respect. The first applicant responded that while he agreed that the government does not have a specific intention to influence lives, that to various degrees they were nevertheless impacted. He stated that there is a difference between his religious faith and ‘their’ religion (which the Tribunal inferred to refer to that of the Muslim majority) such that whenever people of his faith were facing difficulties or crisis no one would come to their aid and they are left to fend for themselves.
The Tribunal has considered this aspect of the first applicant’s evidence in light of the available country information. As discussed with the first applicant at hearing, information contained in the DFAT report indicates that, on the basis of the last official statistical reports, 80% of the ethnic Chinese population in Malaysia are of Buddhist faith[15] and that ‘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.’[16]
[15] DFAT, Country Information Report – Malaysia (29 June 2021) [3.59].
[16] Ibid [3.8].
There is some indication in the DFAT report that people of other religions are incentivised to convert to Islam to gain access to certain welfare payments and housing available to Muslims.[17] The Tribunal also notes, as discussed above, that the government has preferential programs for ethnic Malays and other Bumiputera and that these programs are not available to Chinese/Buddhist people in Malaysia. However, as discussed with the first applicant at hearing, the definition of significant harm requires there to be an actual, subjective intention on the part of a person or entity to bring about suffering by their conduct.[18] The Tribunal does not accept that providing financial and other policy advantages to groups other than the Chinese population means that there is a subjective intention on the part of the Malaysian government to inflict suffering on Chinese/Buddhist people. (The separate question of whether this is discrimination amounting to persecution or significant harm was considered above in the section headed ‘risk of harm on the basis of ethnicity/ religion’).
[17] Ibid [3.18].
[18] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
On the basis of the first applicant’s evidence and the available country information, the Tribunal does not accept that the economic harm feared by the first applicant would arise from the intentional act or omission of a third person or party such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The Tribunal therefore finds that any economic hardship that the first applicant may face on return to Malaysia does not fall within the definition of ‘significant harm’, as exclusively defined in s 36(2A) of the Act. It follows that the Tribunal does not accept there to be a real risk that the first applicant will suffer significant harm on this basis as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
Risk of harm on the basis of terrorism and public order
The Tribunal notes that the first applicant stated at hearing that the issue of terrorism and public order had not in the past affected him personally and that he did not have any fears of harm in the future in this respect. The Tribunal therefore finds that the first applicant does not have a fear of serious harm in this regard.
For the avoidance of doubt, the Tribunal also does not accept the first applicant to face a real chance or real risk of serious or significant harm now or in the reasonably foreseeable future on this basis. In this regard, the Tribunal notes that there is no indication in the available country information on which to conclude that such events are so frequent and widespread such that the first applicant would face a real chance of serious harm on return to Malaysia now or in the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
Second applicant
As explained at the outset of this decision, the second applicant has made no claims of her own. She is a family member of the first applicant and as such the fate of her application depends on the outcome of the first applicant’s application.
However, the Tribunal notes that the second applicant is also of Chinese ethnicity and Buddhist religion and has considered whether she faces a well-founded fear of persecution or whether there is a real risk of significant harm if she is removed from Australia to Malaysia on these bases. For the same reasons given above in respect of the first applicant’s risk of harm on the basis of ethnicity and religion, the Tribunal does not accept that the second applicant has a well-founded fear of persecution on return to Malaysia now or in the reasonably foreseeable future. Nor does it accept there to be a real risk that the second applicant will suffer significant harm on this basis as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the first or second applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicants do 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 applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicants satisfy 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 applicants do not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants a protection visa.
Adrienne Anderson
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.
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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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