2006858 (Refugee)

[2020] AATA 4870

2006858 (Refugee) [2020] AATA 4870 (16 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2006858

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Paul Noonan

DATE:  16 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 October 2020 at 01:54pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – outstanding debt – credibility concerns – race – ethnic Chinese – racist policies against Chinese Malaysians – political corruption and ‘dirty politics’ – no involvement in politics – economic conditions – ability to subsist – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 April 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 8 May 2019. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

4. 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.

5. 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).

6. 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.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. 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

9. The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is, whether he 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Country of nationality

10. The applicant provided the Department with a copy of his Malaysian passport, which satisfied the delegate as to his identity and Malaysian citizenship.

11. On the basis of such, and in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is as he claims it to be. The Tribunal accepts that Malaysia is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    Claims for protection

12. The applicant first arrived in Australia [in] February 2019 as the holder of an electronic travel authority. On 8 May 2019, he validly applied for protection and was granted a bridging visa in connection with this application.

13. In his written application to the Department, lodged with the Department on 8 May 2019, the applicant declared he was born in Ipoh, Perak Province, Malaysia, in [year], and that his ethnicity is Chinese and religion is Buddhism. The applicant declared he can speak, read and write ‘Chinese Language’. The applicant declared he has never been married or in a de facto relationship. He did not provide details of family members.

14. The applicant noted that he completed high school in 2002 and he has never been employed. He also recorded that he lived at a single address in his hometown until his departure for Australia.

15. With respect to his claims for protection the applicant stated, in summary, that he left Malaysia because of economic factors and the government not protecting human rights. He stated the government has ‘dirty politics’. The applicant indicated he was assisted by an organisation named [Organisation 1] in Malaysia, but it wasn’t enough as prices are all high.

16. The applicant indicated he did not try to relocate within Malaysia because he has his family at home. He did not think he would be harmed on return to Malaysia, he is just sick and tired of dirty politics. The applicant stated he could not relocate on return to Malaysia as his family lives at home in their only property. The applicant stated the authorities are unable to provide protection – they tried to help in the past but they also take advantage of him. He also stated Malaysia is racist.

17. The Department’s delegate found that the applicant is not a refugee as he is not at risk of harm for one of the reasons set out in s.5J(1)(a); and that he is not owed complementary protection as they were not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk he will suffer significant harm as set out in s36(2)(aa). A copy of the delegate’s decision was provided by the applicant to the Tribunal.

18. The Tribunal hearing was conducted on 8 October 2020. Due to the Tribunal’s Registry being closed as a result of COVID-19, the hearing was conducted by telephone. The Tribunal was assisted at the hearing by a Malay interpreter. The applicant was not represented at the hearing and gave evidence on affirmation. The applicant stated to the Tribunal that he was in a private place for the purposes of the hearing, where he could not be overheard. The Tribunal was satisfied that the applicant could hear and understand the Tribunal’s questions throughout the hearing, which was largely conducted in English.

19. The applicant told the Tribunal that he is ethnically Chinese Malaysian. He claimed that he has a wife and a child who live in rented accommodation in Malaysia. In Australia, he has been working as a [Occupation 1]. In Malaysia, he worked as a [Occupation 2] for 20 years prior to deciding to come to Australia. He decided to come to Australia because he had significant debts and needed a higher income to service them.

20. The Tribunal discussed the applicant’s concerns with respect to the political corruption and dirty politics he had raised in his written claim. He confirmed that he had never had any past involvement in politics in Malaysia. He agreed that the recent changes in government had led to some corruption reforms, however he had concerns that in reality the old government figures were now taking power again. He clarified that his concerns about political corruption and dirty politics were related to how political decision-making impacts upon him with regard to the poor state of the Malaysian economy and also with respect to racist policies directed at Chinese Malaysians such as himself. The applicant clarified that with respect to being taken advantage of he meant as a Chinese Malaysian, as the government is mainly Islamic. He did not think this was a problem more generally in society but just with the government. He confirmed that he believes these factors cause him to fear harm should he be required to return to Malaysia as they will mean that he will not be able to earn sufficient money to pay his debts.

21. With respect to his debts, the applicant claimed that he owed money to [Bank 1]. He owed approximately AU$40,000 for an outstanding mortgage, some credit card debt to [Bank 1] and a car loan to [Bank 1]. He then claimed that he feared harm should he be required to return to Malaysia due to these debts. He claimed the bank had engaged people to hassle him and they had approached his work about the debt and then he was fired as a result of this approach. He also claimed they had come to his house and hassled his family and sprayed paint on his house and car. The Tribunal put to the applicant that it may find it implausible that he would not mention debt concerns and an associated fear of harm in his written application for protection. The applicant contended that he had not done so because he felt ashamed about his debts. He said his family live in fear because the bank’s people have threatened to send people around at midnight and get him. The Tribunal put to the applicant that it may consider the claim that a registered financial institution would engage in such illegal tactics for debt recovery to be implausible. The applicant then claimed that in fact he owed money to an illegal money lender who had been responsible for these threats. He cannot return and risk the safety of his family who will not be threatened if he is not there and also because he may be forced into bankruptcy by the bank if he cannot earn sufficient money.

    Country information

22. The Tribunal had regard to the following information set out in the Australian Department of Foreign Affairs and Trade (DFAT) Country Report on Malaysia, issued 13 December 2019, and during the hearing the Tribunal discussed key aspect of the country information with the applicant and invited him to comment on the information during the hearing.

    Economic overview

23. 2.9 The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2018, its real GDP growth was 4.7 per cent, while per capital GDP was USD10,942 (AUD14,630). Malaysia has transformed since independence from a commodity‑based economy, focused predominantly 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 is the world's second largest producer and exporter of palm oil. Manufactured goods comprised 84 per cent of Malaysia's exports in 2018. Malaysia is the Association of South East Asian Nations (ASEAN) largest energy exporter and income from oil and gas provides the government's largest single revenue source. The drop in oil price in 2015 and 2016 negatively affected government revenues, but the rebound in oil prices in 2017 has seen revenues pick up again. The International Monetary Fund forecast economic growth of 4.5 per cent for 2019.

    2.10 Malaysia's economic performance over several decades has led to a significant reduction in poverty with the shares of households living below the national poverty line (USD 8.50 (AUD 12.26) per day in 2012) falling from over 50 per cent in the 1960s to less than 1 per cent today. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, which predominantly consists of Bumiputera. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. The UNDP's Human Development Index ranked Malaysia 57 out of 189 countries in 2018, placing it in the 'high human development' category.

    2.11 In October 2019, Prime Minister Mahathir Mohamad launched a new plan for sustainable and equitable economic growth in Malaysia called 'Shared Prosperity Vision 2030.' The plan is focused on providing a decent standard of living for all Malaysians, and narrowing the wealth gap and the urban-rural divide by 2030.

    Unemployment

    2.12 The Malaysian Department of Statistics reported a labour force participation rate of 68.6 per cent in June 2019, while in February 2019 the Malaysian Department of Statistics reported an overall unemployment rate of 3.3 per cent. In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera, and 2.4 per cent for Chinese Malaysians. In 2018, 28.6 per cent of the Malaysian labour force had tertiary level education, 55.6 per cent had secondary level education, 13.1 per cent had primary level education and 2.7 per cent had no formal education.

    Chinese Malaysians

    3.8 The Malaysian Department of Statistics estimated there were 6.69 million Chinese Malaysians in Malaysia in 2018, making up around 20 per cent of the population. Chinese Malaysians are one of the largest overseas Chinese communities in the world, and are Malaysia's second largest ethnic group. Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia. Chinese Malaysians are concentrated in the west coast states of peninsular Malaysia, living in large urban centres, including within Kuala Lumpur and Penang, and the populous states of Johor, Perak and Selangor, where they comprise approximately 30 per cent of the population.

    3.9 There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians. Chinese Malaysians freely participate in political life, including as ministers in the current cabinet and in opposition parties, but Chinese politicians have occasionally faced public criticism for interfering with 'Malay rights'. Since the 2018 general election, the largest ethnic Chinese party is the Democratic Action Party (DAP) which currently holds 42 of the 222 federal parliamentary lower house seats. Prior to the 2018 general election, the largest Chinese party was the Malaysian Chinese Association (MCA), a member of the BN coalition. However, while the MCA won seven seats in the parliament in the 2013 election and 15 seats in the 2008 election, it won only one seat in the 2018 election. Chinese Malaysian community members advised that the 1MDB corruption scandal had galvanised anti‑government sentiment among Chinese Malaysians (as well as others) and had led to greater political engagement.

    3.10 There are relatively few Chinese Malaysians in the Malaysian civil service. The predominant use of the Malay language can be a barrier to Chinese Malaysian employment in the civil service, but does not preclude it (see Civil Service). In-country sources advise 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 promotional opportunity. Conversely, Chinese Malaysians are well represented in the private sector and many small and medium enterprises and large corporations are Chinese Malaysian. However, Chinese Malaysians report discrimination against the community in the business sector and claim unequal access to certain industries due to Bumiputera ownership laws. Chinese Malaysians also claim the National Department of Islamic Development (JAKIM) commonly raids Chinese Malaysian halal businesses, particularly food and beverage outlets, in order to shut the businesses down or extort bribes (see Federal and State Law Enforcement Entities). Chinese Malaysians also report obtaining and maintaining a business license can be difficult, due to Bumiputera ownership quotas and pressures to pay significant bribes. Chinese Malaysians also claim Inland Revenue Board (IRB) raids of Chinese Malaysian businesses leading to fines are common. Sources claim that IRB raids for 'verification purposes' can close down a business for months at a time, with significant economic consequences including loss of income and frozen bank accounts.

    3.11 Chinese Malaysians are eligible to access government-provided national primary or high school education, but generally choose to attend one of the 1,298 national‑type Chinese primary schools that teach in Mandarin (see Education). This is reportedly usually due to concerns about the quality of public education and perceptions that the curriculum has a strong focus on Islam. Chinese Malaysians report there are insufficient national‑type Chinese schools in urban areas to meet enrolment demands, and cite anecdotes of families driving their children to Singapore to access non-Islamic, Chinese schools. Chinese Malaysians report that members of the community living in rural areas have better access to national-type Chinese schools, although many families are unable to live in rural areas due to lack of economic opportunity. The 2019 Federal Budget specified funding for Chinese schools for the first time.

    3.12 The Unified Examination Certificate is a standardised test for Chinese high schools. It is a recognised qualification for entrance into tertiary institutions around the world including Australia, the United Kingdom and the United States. The Malaysian federal government does not recognise this qualification for entry into Malaysian public universities (however, this is currently being reviewed at federal level), although the Sarawak state government does. Since the formation of private universities in Malaysia, Chinese Malaysians (as well as Indian Malaysians) have comprised the bulk of the students within non‑government universities, although entry remains limited by economic opportunity. Some Chinese Malaysians do not receive a place in public universities despite having high matriculation scores. In‑country sources report this is likely attributable to individual-based societal‑level discrimination, rather than official discrimination, as practical application (in the form of individual admission decisions) can vary based on the processing official.

    3.13 In July 2015, a disturbance referred to as the 'Low Yat riot' occurred at a popular retail centre in central Kuala Lumpur. More than 100 Malays shouted anti‑Chinese slogans, destroyed property and attacked bystanders following social media reports that a Chinese Malaysian vendor had cheated a Malay man over a fake smart phone. Police detained 25 people for rioting, sedition and theft. Officials dismissed any fraud by the vendor, and downplayed racial elements, blaming the outburst on social media. DFAT understands this was an isolated incident, and not indicative of a broader trend of societal violence against Chinese Malaysians. DFAT is not aware of any significant recent incidents of a similar nature.

    3.14 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.

    The Tribunal’s findings

    Debt claim

1. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well‑founded’ or that it is for the reason claimed. Rather, it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

   [1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)

2. 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.

3. The Tribunal also accepts that ‘if the applicant’s account appears credible, she 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.

4. 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 of their claims.

5. 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).

6. 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).

7. Having carefully considered the applicant’s evidence, the Tribunal considers his claim to fear harm from a registered bank or an illegal money lender is not credible. His evidence in respect to this claim was highly inconsistent and implausible. The Tribunal considers this to be the case for the following reasons:

   ·Firstly, the applicant did not mention in his written claim that he had borrowed any money or that he had received threats of harm as a result of having borrowed money. The Tribunal does not accept the applicant’s claim that he did not do so because he was ashamed to mention he had debts as reasonably plausible. It is far more plausible that, if the applicant had fled Malaysia for fear of harm related to debts and associated threats of harm, such that he felt compelled to make a claim for protection from Australia, he would have clearly and consistently set out such a significant reason for having done so. The fact that he did not do significantly undermines the credibility of his claim.

   ·Secondly, the applicant’s evidence about the debts during the hearing was inconsistent and his evidence about debt recovery threats was implausible. When he first set out who he owed money to, he stated that all money was owed to [Bank 1]. However, when the Tribunal questioned the plausibility of his claim that a registered bank would engage in illegal threats of physical harm and threatening home visits at midnight and engage operatives to vandalise his house and car, the applicant then introduced a claim that in fact he owed money to an illegal money lender who had been responsible for such threats. The Tribunal would expect the applicant would consistently recount who he owes money to and who had threatened him with harm in the past. The Tribunal considers the applicant’s shifting and inconsistent evidence in this regard is self-serving and also significantly undermines the credibility of his claim.

8. After considering the applicant’s evidence with respect to his claim to fear harm from [Bank 1] or an illegal money lender, the Tribunal does not accept his claim as credible for the reasons set out above. The Tribunal is satisfied on this basis that neither the applicant nor his family owe money to [Bank 1] or an illegal money lender and that neither he nor his family have been threatened with harm by [Bank 1] or an illegal money lender in the past. It follows that the Tribunal does not accept there is a real chance that the applicant or his family will be seriously harmed by [Bank 1] or an illegal money lender or anyone else for this reason should he return to Malaysia now or in the foreseeable future.

   Ethnic Chinese claims

9. The applicant clarified that with respect to being taken advantage of, he meant as a Chinese Malaysian by government discriminatory policies as the government is mainly Islamic. He did not recite any personal examples of such discrimination being experienced by him in the past but, rather, implied that racist policies may prevent him from being able to support himself and his family in the future to the extent that he would wish. As discussed with the applicant at the hearing, the Tribunal accepts that ethnic Chinese and other minorities in Malaysia face some low level official discrimination due to the government’s affirmative action policies towards Bumiputera, which mainly affect the ability of ethnic Chinese to access government tertiary education, gain employment in the civil service and some business dealings. Notwithstanding this, the country information cited above indicates that Malaysian Chinese 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. Further, the Tribunal notes that the applicant has enjoyed a significant level of continuous employment in the past in Malaysia. There is scant evidence that the applicant would not be able to find similar employment as a [Occupation 2] or [Occupation 1] if he now returned to Malaysia. Further, the applicant has proven capable of finding and maintaining work in Australia, which indicates he is workforce ready.

10. The Tribunal concludes that there is nothing to indicate or suggest that the applicant has experienced or faces a real chance of suffering official or societal discrimination amounting to persecution (or faces a real risk of significant harm) or that he faces a real chance of suffering societal violence as a consequence of his Chinese ethnicity. The Tribunal is satisfied that there is no real chance of the applicant suffering harm on the basis of his ethnicity and racist policies in Malaysia or being unable to support himself or his family as claimed.

    Economic claims

11. In summary, the applicant claimed that he would have difficulty supporting himself and his family if he returned to Malaysia, due to Malaysia having a poorer economy than Australia which he attributed to poor political leadership and because he has considerable debts. The Tribunal has already addressed the applicant’s claims with respect to not being able to support himself or his family due to claimed racist government policies above.

12. The country information considered by the Tribunal describes Malaysia as an upper middle‑income country with less than one per cent of the population currently living below the poverty line. While poverty rates are higher in rural areas in certain states, Perak Province is not mentioned as having noted poverty problems. The Tribunal notes that the applicant has a history of continuous employment in Malaysia. The Tribunal does not accept that he lost his job because of debt-related issues for the reasons set out above. The Tribunal considers it likely the applicant left his employment to pursue work in Australia which he considers pays him more than that available to him in Malaysia. As noted above, there is scant evidence that the applicant would not be able to find similar employment as a [Occupation 2] or [Occupation 1] if he now returned to Malaysia. Further, there is no indication in country information that prices are so high in Malaysia that everyday items necessary for survival are unaffordable for the average worker. Further, the applicant has proven capable of finding and maintaining work in Australia, which indicates he is workforce ready.

13. 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 or his family’s ability to subsist in Malaysia. The Tribunal is satisfied that there is no real chance of the applicant suffering harm on the basis of the general state of the economy in Malaysia or being unable to support himself or his family as claimed.

    Refugee assessment

14. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that he will suffer persecution involving serious harm from [Bank 1], an illegal money lender, for reason of his Chinese Malaysian ethnicity or any other party for one or more of the five reasons mentioned at s.5J(1)(a), if he was to return to Malaysia, now or in the foreseeable future.

15. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection assessment

16. 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).

17. In MIAC v SZQRB, 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 definition.[2] For the same reasons, the Tribunal does not accept there to be a real risk that the applicant would face significant harm on this basis.

    [2] MIAC v SZQRB [2013] FCAFC 33 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]

18. Considering the applicant’s circumstances individually and cumulatively, and the relevant country information discussed above, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as set out in s.36(2A) from [Bank 1] or an illegal money lender, for reason of his Chinese Malaysian ethnicity, the state of the Malaysian economy or for any other reason.

19. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

20. 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, he does not satisfy the criterion in s.36(2).

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Paul Noonan
    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.

    …