2007353 (Refugee)

2007353 (Refugee) [2021] AATA 934 (4 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007353
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Scott Clarey
DATE:4 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 4 March 2021 at 5:04pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from moneylenders – credibility concerns – vague, evasive, inconsistent, and/or highly generalised – delay in seeking protection – religion – Christian – race – Chinese ethnicity – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
Zhang v RRT & Anor [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 April 2020 to refuse to grant [the applicant], a citizen of Malaysia, a protection visa under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa on the basis that the they were not satisfied the applicant was owed protection in Australia. On 21 April 2020, [the applicant] applied to the Tribunal for review of this decision. He provided the Tribunal with a copy of the delegate’s decision record.
[The applicant] appeared before the Tribunal via teleconference on 17 November 2020 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Mandarin and English languages.
At the hearing, [the applicant] stated that he is a [age]-year-old Malaysian national born in Sibu, Sarawak on [date]. He stated that he is ethnically Chinese and of the Christian faith. I note that although it was stated on his protection visa application form that he was of the Buddhist faith, [the applicant] said at the hearing this was a mistake and that he was Christian and not a Buddhist. I accept this. [The applicant] stated that his mother and younger [sibling] both now live in Australia and his [sibling] is attending education here. [The applicant] stated that he finished high school and studied [Discipline 1], and previously owned an [Occupation 1] business in Malaysia. He stated that he had never been married and does not have any children. I accept the above biographical details to be true.
[The applicant] first arrived in Australia [in] January 2016 on a visitor visa (Subclass 601) granted to him on 15 January 2016, valid until 20 April 2016. When [the applicant]’s visa expired [in] April 2016, he remained in Australia unlawfully. On 17 May 2019, after being unlawful for more than two years, he lodged the protection visa application that is the subject of this review and was granted an associated bridging visa.
On the basis of the copy of [the applicant]’s Malaysian passport provided to the Department, I accept that he is a citizen of Malaysia and that his identity is as he claims it to be. I accept that Malaysia is [the applicant]’s country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
For the reasons set out below, I have concluded that the decision under review should be affirmed.
Claims and evidence
Evidence before the Department
[The applicant] set out his claims for protection in his application form as follows:
Q75:     I am seeking protection in Australia so that I do not have to return to:
A:I am seeking protection in Ausrtalia so that i do not have to return to Malaysia.
Q76:     Why did you leave that country/those countries?
A:I leave Malaysia because Australia is a democratic,human rights country. I like the peoples in Australia.The really friendly,warm, generous. They really give good impression to me.
Furthermore, I leave Malaysia because Malaysia these recent years have the economic recession. Many shops are closed down due to the declining of the business volumes. The shopowners even cannot afford to pay the rental fees and the salaries of the workers. As the [Occupation 1], I was laid off and fire by my boss because his business volumes was declining worstly. After that, I even cannot find proper job because many [Occupation 1] enterprises didn't employ the workers anymore. And I didn't have the job for a few months. So I was forced to borrow the money from my few friends. After the due date, my friends asked me to return the money to them, but I can't afford to pay them in due time. So they threaten want to hurt me heavily.This incident happened many times and teriffied me. Also, I can't rear my parents,two [siblings] who are still study. I have burden for them. I am very regret for them.so I was forced to come to Malaysia. I hope that your department have the compassionate and humility to me , and understand my pitiful and horibble situation.
Q77:What do you think will happen to you if you return to that country/those countries?
A:If I return to Malaysia, my parents and my two [siblings] will suffer a lot because they cannot support themselves. My parents are very old already, and my two [siblings] still study in the school. I have to support their school fees and others.as you know, I am the eldest son in my family.I have the big responsibility and burden in my family.
Q78:     Did you experience harm in that country/those countries?
A:Yes. My friends always threatened and take hostile action to me. They even threatened want to hurt me heavily. I was very afraid.
Q79:     Did you seek help within the country/those countries after the harm?
A:No. Because I am timid and coward person , and I don’t trust the Malaysia government.I have no confidence to them.
Q80:Did you move, or try to move, to another part of that country/those countries to seek safety?
A:No. As you know,moving to another part of Malaysia have to spend a lot of money. For the time being, I have got the financial difficulities.
Q81:Do you think you will be harmed or mistreated if you return to that country/those countries?
A:Yes. My friends always threatened want to hurt me heavily. This incident really terrified me.
Q82:Do you think the authorities of that country/those countries can and will protect you if you go back?
A:No.
The authorities would not protect me because the welfare and administrative of the country is not so well.
Q83:Do you think you would be able to relocate within that country/those countries to an area where you would not be harmed?
A:       No. As you know,I got the financial difficulties.
Evidence before the Tribunal
At the hearing, when asked why he had decided to leave Malaysia in 2016, [the applicant] initially stated that he had attempted in 2015 to go to another country closer to Malaysia due to financial problems associated with his business. He then gave a confused response and appeared to change his answer, stating that he did not go to another country but instead went to another area of Malaysia. When I asked why he had suggested he wanted to go to another country closer to Malaysia, [the applicant] then stated that he did try to go to another country but did not have the money to travel. When I clarified with him why he decided to come to Australia in 2016, he said that it was because he was the subject of threats, which had spilled over to his family (discussed further below). He said that he decided to come to Australia because he has an aunty here. [the applicant] stated that six months after he arrived in Australia his mother had joined him here.
I asked [the applicant] about the nature of the claimed threats he faced in Malaysia. He stated that he ran an [Occupation 1] business with a partner and the business had received an influx of work in 2015. They had placed orders for materials but did not have money to pay suppliers. [The applicant] stated that the business had borrowed 400,000 ringgit (approximately AU$127,000) to cover these costs but subsequently found out the owed amount was much higher and they couldn’t service the loan. I note that [the applicant]’s knowledge of the loan was vague and uncertain (discussed further below). When asked for further detail about the loan, [the applicant] stated that he was still not sure of the source of the money because he claimed his business partner had organised it. He stated that he could not recall the exact time the loan was taken out, but thought it was somewhere in the middle of 2015.
When asked about the terms of the loan, [the applicant] stated that they had borrowed 400,000 ringgit but they had become late in making repayments because a customer had not paid his business on time, and they were approximately two months late in making their repayments to the moneylender. [The applicant] said they were charged 10 per cent interest every month on the principal loan amount. He said that after two months the loan amount had increased to 600,000 ringgit and they could not afford to service it. When I asked [the applicant] if he had reported these issues to the police in Malaysia, he said that he had reported the issue to police but they didn’t help him and he began to think it was futile, so he decided to come to Australia instead. [the applicant] stated that he has not been threatened while he has been in Australia and has not repaid any money while he has been here.
When I asked [the applicant] about the specific nature of the threats he received he said that he had been beaten by unknown assailants in relation to his inability to make the claimed loan repayments, but offered vague and at times evasive answers when asked for details, including the frequency of the threats and who was making them (discussed further below). When asked about what he feared if he were to return to Malaysia in the foreseeable future, I note that [the applicant] gave vague and unspecific responses. [The applicant] stated that he thought that upon return that people would not initially know he was there but he feared that they would find out in time. He said that he would eventually feel ‘scared’. When I asked [the applicant] what he would be scared of, he spoke in generalised terms and stated that he would be scared that the same issue would arise with the moneylender, and if his family had to return he would be scared that they’d be subjected to threats also.
When asked why there was such a long delay between him arriving in Australia and applying for protection, [the applicant] stated that he did not know about the protection visa and only wanted to ‘hide’ in Australia. When he was told about the protection visa he said he decided to apply for it.
When asked if there was any other basis upon which he feared harm if he were to return to Malaysia in the foreseeable future, other than the claimed issues relating to the loan, [the applicant] said there was not.
Consideration of claims and evidence
The relevant law
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.
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) of the Act. 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) of the Act, 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–5LA of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis of evidence and findings
Credibility
I acknowledge 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, or 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. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[2]
[1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, the Full Federal Court, Foster J at 482
[2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
I note that there were significant credibility issues arising from specific information provided by [the applicant]. As a result, I have serious concerns about the reliability of [the applicant]’s evidence about his claims relating to his fear of harm from a moneylender in Malaysia and/or their agents. I note that various aspects of his oral evidence differed markedly from his written claims made on the protection visa application. I note that [the applicant] provided hesitant, vague and at times inconsistent and contradictory evidence when questioned about specific details of his claims. His responses were often evasive, highly generalised and/or off-point. This included evidence related to specific details of the claimed loan in Malaysia, who the loan had been taken out from, and if he’d reported his claimed issues to authorities. I also consider a number of aspects of his evidence to be internally inconsistent and/or highly generalised in nature, including his evidence relating to his knowledge of when and how the claimed loan had been taken out on his behalf and his knowledge of the speicifc details of the claimed threats he claimed to be subjected to. At the hearing, I explained to [the applicant] that I had significant, specific concerns about his credibility and various aspects of his evidence and gave him an opportunity to respond (further detailed below).
For the following reasons, I do not accept [the applicant]’s claims to have borrowed money from a moneylender in Malaysia to be true. Firstly, I note that [the applicant] gave inconsistent and/or contradictory evidence in relation to key (and often elementary) aspects of his claims. For example:
·In his protection visa application [the applicant] stated that ‘As the [Occupation 1], I was laid off and fire by my boss because his business volumes was declining worstly. After that, I even cannot find proper job because many [Occupation 1] enterprises didn't employ the workers anymore’. At the hearing [the applicant] confirmed this information was incorrect and that he had not lost his job as an [Occupation 1], that he was a part owner of the business not an employee. He stated that his business had actually faced an influx of work.
·In his protection visa application [the applicant] stated that ‘…I didn't have the job for a few months. So I was forced to borrow the money from my few friends. After the due date, my friends asked me to return the money to them, but I can't afford to pay them in due time. So they threaten want to hurt me heavily. This incident happened many times and terrified me’. In response to another question on the protection visa application [the applicant] stated ‘My friends always threatened and take hostile action to me. They even threatened want to hurt me heavily. I was very afraid’. At the hearing, [the applicant] stated that he his business partner had borrowed money (he thought) from a moneylender, not his friends. When I clarified this with [the applicant], he stated that he had never borrowed money from his friends, that he did not know the moneylender and he had never been threatened by his friends. He stated that his claimed debts were accrued for business reasons, not because he had been out of work in need of money.
·In his protection visa application, in response to the question ‘Did you seek help within the country/those countries after the harm?’, [the applicant] responded ‘No. Because I am timid and coward person, and I don’t trust the Malaysia government.I have no confidence to them’. At the hearing, when asked if he had ever reported the claimed threats against him made by the moneylender to authorities, [the applicant] stated that he had reported the threats to the Malaysian police.
Secondly, I found several aspects of [the applicant]’s claims to be vague, internally inconsistent, and/or highly generalised in nature. For example:
·As outlined above, when asked about basic details of the debt he claimed to owe the moneylender in Malaysia, [the applicant] provided highly generalised and uncertain information about the claimed loan. For example, [the applicant] stated that he did not know the source of the loan and that his partner had made all of the arrangements for the loan as ‘bookkeeping’ was not part of his duties. He said that he thought his partner had borrowed the money from a moneylender but appeared to be unsure of this. [the applicant] said that he had signed documents related to the loan but hadn’t scrutinised them and claimed he did not know where the money was coming from at the time. [The applicant] did not know exactly when the claimed loan had been taken out.
·As outlined above, [the applicant]’s evidence relating to the particular threats he claimed to have received from the moneylenders, and in particular the harm that he claimed to fear if he was to return to Malaysia in the future, was brief, highly generalised and, ultimately, unconvincing. For example, [the applicant] could not say who had made the threats to him in the past and could not recall how many times the threats had been made or even how many times he had been beaten. His responses to questions related to future harm he feared in Malaysia were similarly vague and unspecific.

As noted above, I outlined each of these concerns to [the applicant] at the hearing and gave him an opportunity to comment. I noted various inconsistencies in his written and oral evidence and at times quoted relevant sections of his written claims from the protection visa application. I have considered the explanations [the applicant] gave for these inconsistencies, discrepancies, generalities and/or concerns. I found [the applicant]’s explanations for them to be unconvincing and I do not accept them. I note that [the applicant] is an educated man who claims to speak English, who had many years of professional employment as an [Occupation 1] and business owner in Malaysia. I do not accept [the applicant]’s general explanation that he had paid a friend to complete the form and was unaware of what was ultimately written in the application and/or that he had not bothered to check the contents of the application form before he signed a declaration stating that its contents were complete, correct and up to date. I do not accept that these inconsistencies, discrepancies, generalities and/or concerns can be explained by mistakes made by a person [the applicant] claimed to have helped him complete the form.
Delay in seeking protection
I also have concerns relating to the timing of the application for protection in considering the genuineness of [the applicant]’s claims to fear serious harm in Malaysia. I note that a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm (see Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370). [the applicant] first arrived in Australia in January 2016 on a tourist visa. This visa expired [in] April 2016 and [the applicant] remained in Australia unlawfully. I note that [the applicant] applied for the protection visa under review on 17 May 2019, more than two years after he had become unlawful.
When considered in conjunction with my other concerns relating to [the applicant]’s evidence and claims detailed above, I find that this delay in applying for a protection visa is not indicative of someone who fears for their physical safety. I asked [the applicant] at the hearing why there was such a long delay between him arriving in Australia and applying for protection. He gave a vague response, stating words to the effect that he did not know about protection visas and had only wanted to ‘hide’ in Australia. When he was told about protection visas by a friend he decided to apply. I have considered [the applicant]’s response but I am unconvinced by it and do not accept it. When this issue is considered in conjunction with my other credibility concerns, I find that it suggests that [the applicant] did not have a well-founded fear of persecution for the reasons claimed and that he made the protection visa application only when he had few other options to remain in Australia.
Conclusion on the claimed fear of harm from a moneylender and/or their agents
As noted above, I have serious concerns about the credibility of [the applicant]’s evidence relating to his claimed fear of harm from a moneylender and/or their agents. I note that [the applicant] provided evidence that was at various times vague, evasive, inconsistent, and/or highly generalised when questioned about specific details of his claims.
I am mindful that memories can be dimmed by the passage of time. I accept that it is not always possible or necessary for an applicant to remember specific details or dates. Even when making allowances for such factors, given the highly significant nature of the events being discussed and regarding the serious threats he claimed to have been subjected to, I have formed the view that it could be reasonably expected that [the applicant] would have had a more precise and coherent recollection of the specific terms and details relating to the claimed loan and his claimed fear of harm related to the loan in Malaysia.
Considering all of the evidence cumulatively, and having regard to [the applicant]’s personal circumstances and narrative as a whole, I do not find him to be credible. I find various aspects of [the applicant]’s evidence in relation to having been threatened by a moneylender and/or their agents in Malaysia to be vague, inconsistent, improbable and, ultimately, unpersuasive. I note that there is very little documentary evidence to corroborate any of [the applicant]’s claims. For the reasons outlined above, I do not accept [the applicant] took out a loan from an illegal moneylender (or that his business partner took out the loan on his behalf) in the past, nor do I accept he was unable to repay the loan. I do not accept [the applicant] was threatened, harassed, targeted or otherwise pursued by an illegal moneylender and/or his agents and/or anybody else for reasons relating to a loan/debt or for any other reason. I do not accept that [the applicant] took out a loan from friends or that he was subsequently threatened or harassed by these friends in relation to the loan because by [the applicant]’s own admission, he did not borrow any money from his friends. I do not accept [the applicant] left his home in Malaysia and travelled to Australia to escape the illegal moneylender and/or his agents. It follows that I find [the applicant]’s fears of persecution on this basis are not well founded.
Issues relating to religion
Although [the applicant] had not previously raised any specific issues relating to his religion, for thoroughness I discussed country information relating to the plight of Christians in Malaysia. I note that the DFAT report[3] states the following:
[3] DFAT Country Information Report Malaysia, 13 December 2019, 3.33 – 3.35; 3.56 – 3.62
Article 3(1) of Malaysia’s Constitution states Islam is the ’religion of the Federation; but that other religions may be practised in peace and harmony in any part of the Federation’. Article 11(1) states every person has the right to profess and practise his religion and, subject to clause (4), to propagate it.
…
Christians reportedly accounted for close to 10 per cent of the total population in 2017, and are predominantly located in Sabah and Sarawak. While a broad range of ethnicities practises Christianity, approximately 20 per cent of the Chinese Malaysian community is Christian, and reports indicate a growing number of converts to Christianity are ethnic Chinese middle-class individuals who were originally Buddhists or Confucianists. While Christian politicians are present in most political parties, they tend not to represent specifically Christian interests.
Although Christians claim to have used the word ‘Allah’ for centuries in their religious practice in Malaysia, official impediments are in place on their use of the word ‘Allah’ (Arabic for God). The Home Affairs Ministry banned the Catholic newspaper, The Herald, from using the word ‘Allah’ under the Printing Presses and Publications Act (1984) in 2008. The Malaysian Court of Appeals and Federal Court upheld the ban.
In 2013, the federal government ordered the Religious Affairs Organisation of Selangor to return bibles seized from the Bible Society of Malaysia for containing the word ‘Allah’. In October 2017, the High Court of Kuala Lumpur rejected a Sabah church’s request for judicial review of the ban on the use of the word ‘Allah’ in its education material for Christian children, and rejected the church’s request for disclosure of: documents containing reasons for the government’s ban; documents showing confusion among Malaysians or misunderstanding between Muslims and Christians over the use of the word ‘Allah’ in Malay language Christian publications; and documents showing threats to public order due to non-Muslims’ use of the term. The court reasoned that disclosure was not permitted as such information was classified in accordance with the Official Secrets Act. Following the High Court’s decision, religious tensions escalated, resulting in attacks on churches. According to media reporting in November 2018, the High Court postponed a case brought by a Sarawak Bumiputera Christian asserting the right to use ‘Allah’ as a Malay translation for ‘God’. The case remained postponed as at the time of publication.
In April 2015, around 50 protestors demanded the removal of the cross on a church in a predominantly Muslim suburb of Kuala Lumpur, describing it as a religious symbol that challenged Islam. The church representatives removed the cross within hours and there were no reports of violence. The then- Prime Minister publicly stated that the actions of the protestors were not acceptable. While DFAT is not aware of any similar incidents in recent times, members of the Christian community have reported that ‘structural crosses’ (the use of structural beams in buildings that coincidentally form the shape of a cross) have been banned in Sabah as they have been interpreted to be against Islam.
There have been a number of abduction cases in recent years involving Christian pastors suspected of proselytising, including with probable state involvement (see Enforced or Involuntary Disappearances). Church leaders have called on the government to take steps to clarify and separate the jurisdictions of the religious authorities and the Royal Malaysia Police.
In November 2016, Pope Francis appointed Archbishop Emeritus Anthony Soter Fernandez as Malaysia’s first-ever Cardinal. In June 2016, Pope Francis received Malaysia’s first Resident Ambassador to the Holy See; the government announced his appointment in March 2016.
DFAT assesses that Christians generally live free from societal discrimination on a day-to-day basis. They are usually able to worship freely without significant official interference. Those proselytising or promoting Christianity to Muslims face a moderate risk of harassment by state authorities that may include violence or abduction.
I explained to [the applicant] that the assessment of DFAT was that Malaysian Christians are usually able to practise their religion without interference, that they may face a low level of official discrimination, but do not face official or societal discrimination on a day-to-day basis. [the applicant] declined to comment on this information when offered the opportunity at the hearing.
Issues relating to ethnicity
Although [the applicant] had not previously raised any specific issues relating to his Chinese ethnicity, for thoroughness I discussed country information relating to the plight of Chinese Malaysians living in Malaysia with him at the hearing. I note that the DFAT country information report for Malaysia[4] states the following:
[4] DFAT Country Information Report Malaysia, 13 December 2019, sects 3.8–3.13
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.
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.
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.
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.
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.
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.
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.
When asked at hearing if he would like to comment on this country information relating to Chinese Malaysians, [the applicant] said that he was aware there was some discrimination against Chinese Malays that was taking place related to the election but that he was unaffected by this.
Conclusion on issues relating to religion and ethnicity
I accept that [the applicant] is a Malaysian man of Chinese ethnicity who is of the Christian faith. I acknowledge and accept that [the applicant] may face some low-level discrimination relating to his Christian faith and/or his ethnicity in the future if he were to return home to Malaysia. Given the available country information outlined above (and discussed with [the applicant] at the hearing), and after considering the evidence before me relating to [the applicant]’s life history and personal circumstances (including what I have accepted in relation to his claims), I am not satisfied that this would rise to the level of serious or significant harm as envisaged by the Act. I do not accept that as a Christian in Malaysia of the Chinese ethnicity, that [the applicant] will suffer harm amounting to serious harm from society, the Malaysian authorities or anyone else, for reasons relating to his religion and/or his ethnicity, or any combination of the two.
As [the applicant] has not claimed to fear harm for any other reason, I do not accept that he has a well-founded fear of persecution if he returns to Malaysia, now or in the reasonably foreseeable future.
Conclusion – refugee grounds
Having considered [the applicant]’s claims both individually and cumulatively, all of the available evidence and relevant country information, I find that [the applicant] does not face a real chance of persecution on return to Malaysia for any reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore [the applicant] does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant would suffer significant harm if returned to Malaysia, I have noted that 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 relation to the ‘refugee’ criterion.[5]
[5] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]
[The applicant] has not advanced any claims indicating that he considers he would face a real risk of significant harm if returned to Malaysia other than for the reasons discussed above relating to his claims under the refugee criterion. Given I do not accept that [the applicant] faces a real chance of suffering persecution involving serious harm if he returns to Malaysia, I also find, having regard to the findings of fact set out above, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Malaysia, there is a real risk that he would: suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by anybody for any reason.

Consequently, I am 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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Scott Clarey
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.
…

[2021] AATA 934

4 March 2021

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