1835660 (Refugee)

1835660 (Refugee) [2024] AATA 4329 (19 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1835660

COUNTRY OF REFERENCE: Malaysia
MEMBER:Amanda Goodier
DATE:19 August 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 19 August 2024 at 1:17pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – family gang member – forced recruitment – physical assault – access to health care – employment – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
Gunaseelan v MIMA (1997) 49 ALD 594
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 November 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 10 May 2018. The delegate refused to grant the visa on the basis that the delegate did not accept that the applicant faced a real chance of serious harm from the authorities or any other person on her return to Malaysia for reasons of her race, religion, nationality, political opinion or as a member of a particular social group. The delegate also did not accept that there was a real risk the applicant would face significant harm for any reason on her return to Malaysia. A copy of the delegate’s decision was provided to the Tribunal by the applicant.
The applicant appeared before the Tribunal on 12 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made, or evidence not presented before the primary decision was made.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on a genuine Malaysian passport, a copy of which is contained on the Departmental and Tribunal file. She has at all times stated that she is a citizen of Malaysia and has been assessed on that basis by the Department. The Tribunal finds she is a Malaysian citizen and has assessed her claims against Malaysia as the country of nationality and the receiving country.
Background information
In her protection visa application, the applicant claims to be a citizen of Malaysia, stating she was born in [specified year] in Sibu, Sarawak. Both parents were Malaysian citizens. The applicant indicates her ethnicity as Chinese, her religion as [Christian] and she has never been married or in a de facto relationship. The applicant lists an address in Sibu, Sarawak as her residential address from birth until her departure to Australia. The applicant lists a brother born in [year] living at the home address in Sibu, Sarawak. She indicates she is in regular contact with family members via [a messaging service]. The applicant indicates she departed Malaysia legally on a valid passport. She indicates she has not been employed but assisted her brother doing [occupation 1] work at home for which he provided her with spending money. She indicates she completed [number] years of education in Malaysia.
The applicant’s claims for protection in his application form are summarised below:
·She claims she left Malaysia because she worries for her personal safety. Her brother is a gangster who lives in the family home and has friends over. The friend always asks her to do illegal activities. When she refuses, they do not let her go or hit her when she is home alone.
·Because she is a lady, it is simpler to do what they want and help them. Her brother and his friend force her to do illegal trade in the market. She has no parents, just her brother.
·She tried to call the police, but they continued to do the same thing after the police came out.
·She does not have the money to move to another state or town.
·They harm her by hitting or touching her without asking.
·Her brother’s friend will keep going to harm her and they will keep forcing me to do the illegal trade with them.
·She does not think the authorities can help her as they just called the person in and let them out after talking to them.
The delegate did not interview the applicant.
The delegate’s decision refers to the applicant arriving in Australia [in] April 2018 and applying for protection on 10 May 2018.
The applicant responded to a pre-constitution outreach by the Tribunal on 15 April 2024 indicating that she would like to present her claims during the hearing.
The applicant confirmed at hearing that she prepared the application for protection herself and was aware of the contents. She looked on-line for resources to assist her, and the contents are true and accurate.
The applicant told the Tribunal that she lived with her parents, then her mother, until she was about [age] years of age before moving to Sibu to live with her father. Her parents divorced while she was in high school with her mother remaining in the family home and her father moving to Sibu. Her mother was a housewife and works on a small farm. Her father was [an occupation 2] before he retired and receives a small pension. She is in occasional contact with her parents.
She has [a] half-brother. They have the same father but different mothers. He works for an illegal underground business and lives with their father in Sibu. He lived with his mother when he was growing up and she cannot recall when he moved in with their father.
The applicant completed her education to about diploma level, completing her education in her home village until she was [age] years before completing another [number] years of education in Sibu. In Malaysia she worked for a [company] in Sibu in administration for about a year when she was aged about [age] years. In Australia she has worked in various roles including farm work and [specified work]. She occasionally sends money to her mother.
Her ethnic group is Chinese and religion Buddhist.
The applicant fears returning to Malaysia as her half-brother demanded she join him in doing illegal work such as gambling, selling drugs or as a loan shark. He asked her to join his gang and if she refused, he beat her up.
When asked for details about the gang, the applicant told the Tribunal she did not ask about the gang as she did not plan to join. When asked how long her half-brother has been demanding she join the gang, the applicant responded since she was aged [age] years when they lived together until she was [age] years when she left Malaysia for Australia.
The Tribunal put to the applicant that she claims her half-brother has been demanding she join the gang and engage in illegal activities for six years and she has refused each time. The applicant told the Tribunal that she moved quite a few times, but he managed to find her. The Tribunal put to her that at the beginning of the hearing it asked if she had ever lived anywhere else other than the places she gave to the Tribunal and her response had been, no. The applicant responded that all the places were in Sibu which is not a big place. The Tribunal put to her that it would have been easy to find her then and asked if she tried to move elsewhere to avoid her half-brother. The applicant responded that she could not financially move elsewhere.
The applicant indicated that she had told her father, but he did not really intervene as he does not care whether his son is involved in a gang, and she did not tell her mother as her mother is not well. She did not move home to her mother as her half-brother would probably beat her mother too.
When asked whether she sought medical treatment when her half-brother beat her up, the applicant responded that she did not as she could not afford it. When put to her the country information that Malaysia has a well-established universal health care system that is generally affordable and accessible to most of the population[1], the applicant responded that her half-brother threatened if she sought medical assistance, he would beat her up again. She claims she went to the police who told her there was insufficient evidence and local gangs bribe the police, so they usually take no action.
[1] 2024 DFAT Country information Report Malaysia at [2.11-2.13].
The Tribunal put to the applicant that for six years her half-brother has ben asking and threatening her with harm and she has refused to join the gang or engage in illegal activities. If he was going to kill her for not joining, would he not have done it during those six years? The applicant responded that he wants to make more money so he will keep at her. She is unable to relocate elsewhere in Malaysia as her half-brother will find her no matter where she goes.
The Tribunal put to the applicant that she knows little about the gang apart from it being a big gang. The Tribunal indicated that it was strange that for six years she had lived with fear yet knew little about the gang her half-brother belonged to. The applicant told the Tribunal that she knew the name of the leader which was [name] but not the name of the gang. The only fear she has is of her half-brother and the gang behind him.
The Tribunal discussed with the applicant that her fear of her half-brother was not for a refugee reason. The applicant responded that she understands but if she returns, he will assault her, and she would like to stay in Australia as it is a safe place and does not allow random entry by anyone. She told the Tribunal that Australia has now tightened its restrictions on Malaysian nationals entering the country. The Tribunal put to the applicant that her half-brother could still apply to visit Australia with the applicant responding that it is now harder to apply.
The applicant told the Tribunal that that she would stay with friends or rent a place for a brief time to avoid her half-brother, but her half-brother always managed to find her. The Tribunal put to the applicant that she really was not hiding if she was staying with friends or renting locally. She responded saying that she did not have enough money to rent other than in the local area. Sometimes she would ask her mother for help or borrow money from friends.
She fears her half-brother will continue to ask her to work for him and will beat her if she refuses. She claimed her half-brother spread rumours about her working as a prostitute or as a drug courier and she does not want her reputation tarnished.
When asked why after all this time of refusing, would her half-brother still want her to work for him. The applicant responded that she does not know what he is thinking. She has had no contact with her half-brother since she came to Australia, but friends tell her he is still in the Sibu area. She is unable to relocate to somewhere like Kuala Lumpur or Kuching or Kota Kinabalu as her friends tell her the gang is getting bigger and involved in bigger things.
The Tribunal raised with the applicant country information that many Malaysians from rural areas move to cities for work.[2] The applicant responded Australia can protect her. She claimed that as a Chinese Malay, she is discriminated against in getting jobs as Malays do not employ Chinese and politically Malays dominate. She claimed that Malays think the Chinese take their jobs and resources. She claims it is getting difficult for Chinese in Malaysia.
[2] 2024 DFAT Country Information Report Malaysia at [5.23-5.25].
The Tribunal discussed country information that indicates Chinese Malaysians comprise approximately 22.8 per cent of the population in Malaysia and remain 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. There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians who are able to freely participate in political life, including as ministers (there are five Chinese Malaysians serving in Anwar’s cabinet as of publication) and in opposition parties. There are relatively few Chinese Malaysians in the civil service. While the use of the Malay language (in addition to English) can be a barrier to employment in the civil service, it does not preclude it. In-country sources reported that Chinese Malaysians often do not apply for government positions as they believe the positions are more likely to be awarded to Bumiputera and provide limited promotion opportunities. The Malaysian Public Sector Commission says there is no racial discrimination in civil service recruitment. Chinese Malaysians reported discrimination against the community in the business sector and government-owned enterprises and unequal access to certain industries due to Bumiputera ownership laws. Other ethnicities say they are discriminated against in the Chinese-dominated corporate sector, and that many jobs require Mandarin language skills, which effectively excludes non-Chinese, even though the language of commerce is chiefly English. DFAT assesses that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system and the civil service, including when seeking a promotion, or when opening or operating a business in the private sector.[3]
[3] 2024 DFAT Country Information Report Malaysia at [3.11-3.15].
The Tribunal also discussed country information indicating the World Bank classifies Malaysia as an upper middle-income, export‑oriented economy. In 2022, real GDP growth was 8.7 per cent and per capita GDP was USD 11,993 (AUD 18,000). Since Independence, Malaysia has transformed from a commodity-based economy focused on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia has also developed its service sector, which now contributes half the country’s economic growth. Malaysia’s strong economic performance over the last few decades has led to a significant reduction in poverty. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic. There are labour shortages in many sectors, and small, medium and large enterprises are highly reliant on migrant labour.[4]
[4] 2024 DFAT Country Information Report Malaysia at [2.7-2.10].

The Tribunal also discussed country information indicating that the Malaysian authorities periodically crack-down on criminal gangs and crime syndicates. In August 2013, the RMP launched Ops Cantas Khas, focusing on weapons seizures and targeting gang members, leaders and their assets.[5] Police claimed that they had identified 49 illegal gangs nationwide with 40,000 members – 70 per cent of whom were ethnic Indian[6] – who are linked to armed robberies, drug and prostitution rings, loan-sharking, gambling, and extortion and contract killings.[7] Authorities claim that the crackdown has led to a reduction in crime.[8] A second stage of the campaign – Op Cantas Khas 2 – was launched in August 2016.[9] In January 2018 a nationwide operation known as Operation Cantas Silver resulted in the arrest of 36 suspected members of Gang 04 who are allegedly involved in violent crimes including robbery, extortion, arson and drug trafficking.[10] Recently, Gang 360 Devan members previously charged under section 130 V of the Penal Code have had their charges downgraded to Section 43 of the Societies Act (1966) that carries a more lenient sentence.[11]
[5] ‘Cops deal crime a crippling blow since Ops Cantas Khas launch’, The Star Online, 23 September 2013, CXC28129414715
[6] Malaysia's gang menace,’ Aljazeera, 11 July 2014, CX1B9ECAB10299
[7] ‘Malaysia's gang menace’, Aljazeera, 11 July 2014, CX1B9ECAB10299
[8] ‘79,414 individuals detained throughout 'Ops Cantas Khas’’, Bernama, 10 June 2014, CX1B9ECAB11435
[9] ‘Op Cantas crackdown on triads: 1,444 arrested’, Astro Awani, 13 August 2016, CX6A26A6E8262
[10] ‘36 suspected underworld gang members arrested in Malaysia’, Bernama, 20 February 2018, CXBB8A1DA22559
[11] ‘57 go on trial in Kajang Prison for alleged links to Gang 360 Devan’, Bernama, 6 September 2018, CXBB8A1DA34959
The Royal Malaysian Police (RMP) is based on the British constabulary model, employs approximately 115,000 officers, and operates over 800 police stations across Malaysia. Multiple local and international sources consider the RMP to be a professional and effective police force, although note the quality of its members’ responses varies depending on levels of training, capacity, and engagement in corruption. RMP officers are among the lowest paid members of the Malaysian civil service. In July 2014, the then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department within the RMP to enhance police integrity and image. SUHAKAM also receives complaints against the RMP and has investigated police behaviour.[12]
[12] 2024 DFAT Country Information Report Malaysia at [5.5-5.8].
The applicant responded that in Sibu there was bribery and corruption between the police and local gangs so she will be unable to obtain protection.
Findings and reasons
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
For the following reasons, the Tribunal has concerns as to the credibility of the applicant’s claims.
The applicant’s claims to the Tribunal differ slightly to those in her protection visa application. Her evidence to the Tribunal was that her half-brother was threatening her to perform illegal acts while in her protection visa application she referred to friends of her brother asking her to engage in illegal acts and hitting her if she does not agree. She claims in her protection visa application that she has no family yet told the Tribunal that her parents are still alive but no longer live together and after living in the family home with her mother until she had completed high school, moved to Sibu to live with her father. She also claimed in her protection visa application that she had received limited education but to the Tribunal indicated she had completed to diploma level, having completed studies in Sibu.
As discussed with the applicant, for six years she has refused her half-brother’s requests to engage in illegal activities. While she claims he beat her if she refused, she did not seek medical treatment, firstly telling the Tribunal that she could not afford it and when it was pointed out that Malaysia has a uniform health system, changed her evidence to her half-brother told her he would harm her if she sought medical treatment. The Tribunal has difficulty accepting the applicant’s evidence that her father took no action against his son for beating his sister, because he did not care whether his son was a member of a gang. Overall, the Tribunal found the applicant’s evidence vague in relation to her claimed beating from her half-brother for refusing to work for him and together with her change in evidence, is not satisfied her half-brother has ever beaten her for refusing his requests.
The applicant claims her half-brother spread rumours about her being a prostitute or drug runner and she is concerned her reputation will be tarnished. The applicant’s evidence is that she has never engaged in any illegal activities for her half-brother and the Tribunal does not accept that rumours spread by a known gang member about his half-sister who has not engaged in any illegal activities would be believed. The applicant has also been absent for some time from Malaysia and the Tribunal does not accept that her reputation on her return will be tarnished on her return by ill-founded rumours.
The applicant claimed that she tried to escape from her half-brother, but he found her each time. As discussed with the applicant, she moved in with friends or rented in the area and if her half-brother was interested in finding her, it would be relatively easy in a small place such as Sibu and especially as he would know her friends.
The applicant claims that the police in her area are corrupt, and she is unable to obtain protection from her half-brother. She claims she went to the police on one occasion, but they told her she did not have enough evidence. As discussed with her, the Malaysian authorities regularly embark on campaigns against gangs to reduce their power and while it is acknowledged there is corruption within the police, the Malaysian authorities are also actively acting against corruption in the police force. The Tribunal acknowledges that she may have in the past been unable to obtain protection bur that does not mean she will not be able to obtain protection in the future.
The applicant also gave evidence that now Australia has tightened the rules for Malaysians to visit Australia, she is safer from her half-brother. The Tribunal considers that if her half-brother was so interested in travelling to Australia to harm her, he had the opportunity in the years following the applicant’s departure from Malaysia to travel to Australia.
The applicant had little knowledge of the gang her half-brother belonged to apart from it being a big gang that is getting even bigger, and the Tribunal would expect that after six years she would know more about the gang, apart from the first name of her half-brother’s boss, her half-brother belonged to. The Tribunal does not accept her contention that as she had no intention of joining the gang or doing illegal work for them, she paid no attention to details about the gang. The Tribunal would expect that she would have more knowledge of the gang her half-brother belonged to especially as she claims it can find her anywhere as it is getting bigger and involved in more illegal activities. The Tribunal would expect that the applicant would at least know the name of the gang.
After considering the evidence before it, the Tribunal does not accept the applicant faces any harm from her half-brother on return to Malaysia. As put to the applicant, if he wished to seriously harm her or kill her for not doing illegal work for him, he had the opportunity during the six years she lived in Sibu, refusing his demands for her to work for him.
The Tribunal also notes that the relevant country information outlined reflects the Malaysian police and government authorities have taken, and continue to take, prosecutorial action against gang members. While corruption is present, the Malaysian authorities demonstrate a commitment to dealing with unlawful activity including corruption and violence.
The Tribunal finds based on available country information that in any event, effective protection measures are available to the applicant in Malaysia in the event she is subjected to violence or threats of violence from her half-brother or any other member of the gang. The Tribunal finds that the effective protection measures are available to the applicant by the State throughout the country and that the State is able and willing to provide such protection. The applicant can access the available protection and the protection provided is durable.
From the available country information, the Tribunal finds that Malaysia has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system. Therefore, by operation of s 5J(2) and s 5LA, the applicant does not have a well-founded fear of persecution as a victim of her half-brother or his gang or any other reason.
Given these above considerations, the Tribunal finds that there is no real chance the applicant would suffer serious harm should she return to Malaysia now or in the reasonably foreseeable future on the basis of this claim.
The applicant claims that she will be discriminated against because she is Chinese and will have difficulty finding employment. It is clear from the country information that there is positive discrimination in Malaysia, and that it does negatively affect Chinese Malaysians. However, in Gunaseelan v MIMA, French J expressed the opinion that:
… the establishment of a state policy of positive discrimination in favour of a particular ethnic group will not necessarily amount to persecution of other groups not the beneficiaries of that policy. The resolution of that question may depend, in each case, upon the nature and extent of the adverse or detrimental impact of the policy upon the non-advantaged groups.[13]
[13] Gunaseelan v MIMA (1997) 49 ALD 594 at 601.
It does not appear from the country information that the adverse impact of the policy would rise to the level of serious harm. In MIMA v Haji Ibrahim, McHugh J emphasised the degree of harm that would be required to constitute persecution. Although predating the current legislation, the authority remains helpful. His Honour explained:
The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.[14]
[14] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55].
In view of DFAT’s advice, the Tribunal accepts that Malays of Chinese ethnicity face a level of discrimination in Malaysia because of preferential treatment for ethnic Malays, particularly in relation to access to tertiary studies, government employment, politics (at both national and state levels), military, security services and when opening a new business.
The Tribunal accepts based on the country information that the applicant may have experienced some discrimination because of her Chinese ethnicity, however this has not prevented her from receiving an education to Diploma level or in obtaining some employment. While the Tribunal accepts there is some low-level discrimination in favour of ethnic Malays, this has not prevented Malaysian Chinese from being on average a wealthier cohort in Malaysia than other ethnic groups.
The country information does not reflect that there is a real chance that the applicant will be denied employment, threatening her capacity to subsist for reason of her ethnicity or for any other refugee reason if she returns to Malaysia. On the evidence before it the Tribunal does not accept the applicant would be denied basic services or the capacity to earn a living of any kind or suffer economic hardship such as would threaten her capacity to subsist for reasons of her Chinese ethnicity if she returns to Malaysia now or the foreseeable future. The Tribunal finds that there is not a real chance of serious harm to the applicant for reason of her race if she returns to Malaysia.
The applicant fears returning to Malaysia as the economic situation is not good and she will be unable to find employment and earn a living sufficient to herself.
The Tribunal notes the applicant has been employed in Malaysia and is employed on a regular basis in Australia. She has skills from her employment, both in Malaysia and Australia as well as skills from moving to a different culturally and linguistic country.
The Tribunal accepts that the cost of living is high, and the wages lower in Malaysia than in Australia. The Tribunal also accepts that the applicant will experience some stress and difficulty in re-establishing herself if she is returned to Malaysia. However, as the applicant has indicated she has previously worked in Malaysia and has experience working in a variety of jobs in Australia. The Tribunal finds that she would likely be able to find employment in Malaysia and continue to have access to means of supporting herself.
While the Tribunal accepts that the applicant’s earnings would be lower than he might be able to earn in Australia, it is not satisfied that they would be so low as to threaten the applicant’s ability to subsist in Malaysia or otherwise amount to serious harm.
The Tribunal has considered the country information that states the Malaysian economy is growing and poverty rates decreasing. The Tribunal finds that any economic hardship the applicant will incur will not amount to serious harm in the sense that it would threaten her capacity to subsist. Further, the Tribunal finds that given the applicant’s qualifications, experience, and her motivation for work, she will not be denied the capacity to earn a living, nor would she be denied basic services, where such denials would threaten her capacity to subsist. Accordingly, the Tribunal finds that there is no real chance the applicant would be seriously harmed if she is returned to Malaysia by reason of her economic circumstances.
Further the country information does not reflect that there is a real chance the applicant will be denied employment, threatening her capacity to subsist for any refugee reason if she returns to Malaysia. On the evidence before it the Tribunal does not accept the applicant would be denied basic services or the capacity to earn a living of any kind or suffer economic hardship such as would threaten her capacity to subsist for any refugee reason if she returns to Malaysia now or in the foreseeable future.
The Tribunal does not accept that there is a real chance the applicant would be denied the capacity to earn a livelihood of any kind or subjected to significant economic hardship in Malaysia, such that her capacity to subsist would be threatened. It finds that she would not be at risk of serious harm.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in her application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion or for economic reasons or from her half-brother or his gang or any other reason if she returns to Malaysia now or in the reasonably foreseeable future.
Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason now, or in the reasonably foreseeable future, if she returns to Malaysia.
Complementary Protection Assessment
In considering whether the applicant meets the complementary protection criteria in s.36(2)(aa), the Tribunal has considered whether it has 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 she will suffer significant harm.
For the reasons set out above, the Tribunal has found there is no real chance of the applicant suffering serious harm if returned to Malaysia. In Minister for Immigration and Citizenship v SZQRB [2013] FCAFC, the Full Federal Court held that 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. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J. It follows that the Tribunal does not accept that there is a real risk that the applicant would face significant harm if returned to Malaysia for any of the above reasons of her race, religion, nationality, membership of a particular social group or political opinion whether taken individually or cumulatively.
For the reasons expressed above the Tribunal finds that pursuant to s 36(2B)(b) of the Act the applicant would be entitled to, and could obtain, protection from the Malaysian authorities such that there is no real risk she would be significantly harmed by her half-brother or his gang or for any other associated reason.

With respect to the applicant’s fear of harm in respect to the prevailing economic conditions in Malaysia, the Tribunal accepts that the applicant may face some degree of financial or economic hardship upon her return; however, the Tribunal finds that this hardship does not reach the level of significant harm, having had regard to the examples set out at s 36(2A).
That is, the applicant will not be intentionally subject to severe pain or suffering that could reasonably be regarded as cruel or inhuman in nature, or extreme humiliation that is unreasonable due to economic deprivation, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia. In so finding, the Tribunal has also considered the applicant’s evidence that she has been gainfully employed in Malaysia in the past and has employment experience in Australia.
The Tribunal does not accept there to be 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 face significant harm for reason of the economic situation in Malaysia.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in her application and as discussed in the hearing, the Tribunal finds there are no 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 face significant harm for any reason on her return to Malaysia.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Goodier
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 4329

19 August 2024

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