2010098 (Refugee) - [2024] ARTA 694

2010098 (REFUGEE) [2024] ARTA 694 (27 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2010098
Tribunal:General Member R McLaughlin
Date:27 November 2024

Place:Canberra
Decision:The Tribunal affirms the decision under review.

Statement made on 27 November 2024 at 1:21pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – ethnic Chinese Malaysian – applicant joined Bersih – persecution from Red Shirts – risk of Red Shirts harming the applicant and /or his family – evidence was extremely vague – Tribunal does not accept any of the applicant’s Red Shirt related claims – credibility concerns – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant, who claims to be a national of Malaysia, applied for the visa on 5 May 2017. The delegate refused to grant the visa on the basis that ‘there [was] no evidence before [the delegate] to suggest the applicant will be denied state protection due to their race or that the Malaysian government would fail to provide the applicant with the same degree of protection as that accorded to any of its other nationals if required on their return’.
The Tribunal accepts that the reference country for this applicant is Malaysia. Based on the material before it, the Tribunal accepts that the applicant is who he says he is, and that he is a national of Malaysia. The Tribunal also accepts that the applicant has no right to enter and reside, whether temporarily or permanently, in a third country.
The applicant appeared before the Tribunal on 26 November 2024 via video link to give evidence and present arguments.
The hearing was conducted in the English language. No interpreter was present during the hearing, and the Tribunal found the applicant to have a good command of English. The course of the hearing gave the Tribunal no reason to doubt that the applicant was able to understand and communicate in English such that language issues did not pose any challenge to the applicant having the opportunity for a fair hearing.
BACKGROUND
The applicant is an ethnic Chinese Malaysian national. He undertook his primary and secondary education in [Country 1], where he lived with an aunt, and then [specified grades] in Australia (2003-2006). He then returned to Malaysia where he worked in [a field] before going to [Country 2] to study [a qualification](2013-2016). He did not complete this qualification. Upon his return to Malaysia, he worked as a [seller] and in other jobs until coming to Australia in February 2017.
In Australia, the applicant has worked on farms, and as [occupation]. His father has passed away, and his mother lives in Kuala Lumpur (KL) and has a business (although the applicant is not sure of the kind of business). He has younger twin sisters who also live in KL, are both married, and who also have a business (although the applicant does not know what type of business this is).
The applicant is in contact with his mother ‘often’, but ‘not very often’ with his sisters.
Evidence before the Department
The evidence before the Department at the time when the Delegate made their decision in August 2017 was: The applicant’s protection visa application (May 2017); and the applicant’s passport and identity details.
The applicant was not interviewed.
The applicant did not provide any additional or supporting documents prior to the Department’s decision.
The claims assessed by the Department, based on the first protection visa application were therefore as follows:
·     That the applicant left Malaysia because he felt unsafe as he is ethnic Chinese.
·     That the Malaysian government persecutes ethnic Chinese people.
·     That the applicant cannot speak ‘Malay’ and was often told to ‘go back to China’ and that he does not belong in Malaysia.
·     That a Malay person stole a from the applicant’s friend’s shop and that the Police did not take any action and the friend was beaten up by 50 people.
·     That if he were returned to Malaysia, he would ‘die, one way or another’.
Subsequent to the Department’s decision, the applicant lodged a new protection visa application (September 2017), which contained new claims in relation to ‘Bersih’.
These new claims were that the applicant joined Bersih (a Malaysian clean elections civil society organisation) and had been involved in an incident where he was chased and attacked by Red Shirts (a pro-Malay group).
This new claim also noted that facebook and YouTube reported on an incident in November 2019 involving Bersih and Red Shirts, and asserted that if he returned to Malaysia, he would be attacked again if the Red Shirts saw him.
Steps subsequent to the Department’s initial decision
The Department assessed this new application per s 48B as a ‘request for intervention in accordance with the Minister’s guidelines on ministerial powers’.
This request was rejected in September 2017 because it was within 6 months of the original protection visa decision, the applicant was at the time an unlawful non-citizen who was not in detention and who had not attempted to regularise his immigration status, and because he provided ‘no detail or evidence to support his new claims about involvement in Bersih rallies’.
This matter was then lodged for review with the AAT (now ART – the ‘Tribunal’).
Further evidence submitted to the Tribunal
The applicant subsequently provided additional information to the Tribunal in the form of a 1.5 page handwritten statement dated 10 September 2020. This was accompanied by a death certificate stated to be of the applicant’s father, dated March 2019.
The claims made in the 2020 statement were as follows:
·     The applicant felt unsafe in Malaysia as an ethnic Chinese as he joined in Bersih activities.
·     Red Shirts paid by the government harassed Bersih people, and there is you tube video evidence dated November 2019 on this (noting that the applicant had been in Australia since 2017).
·     He had been involved in a Bersih event in Kuala Lumpur and Red Shirts had clashed with the Bersih supporters.
o   The applicant was separated from the group during this incident and beaten and robbed by 5-6 Red Shirts.
o   These Red Shirts yelled at him because he does not speak Malay and told him to get out of Malaysia.
o   The applicant sought to report this a few days later to the Police, but they did not take his report as he did not speak Malay.
·     A few weeks later, the applicant was seen by the Malays who had beaten him, but he managed to escape; however, he felt that he was being followed and feared that they would see where he and/or his family lived.
·     His father died in 2019 from ‘third degree burns on a sofa in his own home’ (he was a smoker). The applicant’s family did not make a report to the police.
o   The death certificate attached to the 2020 statement is asserted to be that of the applicant’s father.
·     The applicant does not have good skills in the Malay language, and this means it is hard to find work in Malaysia and that ‘many HR manager who interview’ him will ask him if he is Malaysian or may tell him to go back to China.
·     Malaysia is not a safe place for him as he feels his life is in danger from racist Malays who might also harm his mother and sisters.
·     He is already [age] years old and just wants a peaceful next 20 years without the humiliation and harshness of life in Malaysia.
These claims were then further elaborated upon at the hearing.
Claims as initially made at the hearing
Subsequent to collating background information, the Tribunal asked the applicant to explain in his own words the nature of his claim. The applicant stated the following:
·     He wants to stay in Australia on a refugee or a bridging visa.
·     He does not have the courage to go back to Malaysia at the moment.
·     His mother is old so if he goes back to Malaysia he will not be able to support her.
o   His sisters have a business and their husbands work, but he does not know much about this and does not have much to do with them.
o   His sisters also live in Kuala Lumpur and have regular contact with his mother; they help support his mother also.
·     Anti-Bersih Red Shirts have been violent to him and tried to follow him; he does not want them to know where his family lives.
o   However, the applicant also confirmed, as he had stated earlier when the Tribunal was collating background information from him, that his mother and sisters live in different places now than when he came to Australia in 2017.
·     He knows that he ‘is unlikely to meet them [the Red Shirts] again’, but he does not want to take that chance.
·     He wants a ‘peaceful few years’ and does not want to live in fear in Malaysia; also, as he does not speak Malay, he cannot get a job and this makes him feel ‘not good’.
The Tribunal subsequently explored these claims in detail, and these further details are set out below in the Reasons and Findings section.
Evidence before the Tribunal
Consequently, the evidence before the Tribunal at the time of its decision was as follows:
·     The original and subsequent protection visa applications (both dated 2017).
·     The Department’s decision and its rejection of the request for ministerial intervention (both dated 2017)
·     The pre-hearing submission to the Tribunal (dated 2020) with the attached death certificate (dated 2019).
·     The hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The fundamental question to be assessed by the Tribunal is whether there a real chance of harm if the applicant was returned to his home area of the receiving country now or into the reasonably foreseeable future. This requires an assessment of the credibility and reliability of the evidence before the Tribunal.
In assessing the credibility of the applicant’s evidence, the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’, or that it is for the reason claimed.
A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the applicant must provide material, in as much detail as is necessary, to enable the Tribunal to establish the relevant facts as claimed. The Tribunal is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any or all of the allegations made by an applicant, or to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.
In determining whether an applicant is entitled to protection in Australia, the Tribunal is therefore required to make findings of fact in respect of the claims advanced by the applicant. This may require an assessment of the applicant’s credibility and the credibility of the applicant’s claims. In this regard, the Tribunal is aware of the need for, and importance of, being sensitive to the difficulties applicants may face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to applicants who are generally credible, even if unable to substantiate all of their claims.
The relevant issues that need to be assessed in this case are therefore the credibility and reliability of the applicant’s claims about: (1) persecution from Red Shirts; (2) the risk of Red Shirts harming the applicant and /or his family; and (3) the applicant’s inability to subsist if returned to Malaysia.
For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.
Overall assessment as to reliability of the evidence
The Tribunal considers that the applicant’s evidence was not reliable.
This is because the applicant’s evidence was extremely vague as to timings and details of incidents. Additionally, the applicant’s evidence was quite inconsistent on a number of important material points, as set out below.
This next section of the decision sets out the Tribunal’s consideration of the claims, taking into account:
·     The claim set distilled from the full suite of information before the Tribunal, including any additional detail the applicant provided at the hearing in respect of each specific integer of claim.
·     Country Information and other information put to the applicant in respect of specific integers of claim, and the applicant’s responses to this additional information.
·     The Tribunal’s assessment of the evidence before it in respect of each specific integer of claim.
·     The Tribunal’s findings, based on this assessment, in respect of each integer of claim.
To this end, the claim set as indicated from all of the material before the Tribunal was therefore as follows:
·     The Bersih membership claim.
·     The first Red Shirt incident claim.
·     The Police report claim.
·     The second Red Shirt incident claim.
·     The relevance to the applicant’s claim of the November 2019 you tube video.
·     The relevance to the applicant’s claim of the friend’s [shop] incident.
·     The relevance to the applicant’s claim of his father’s death in 2019.
·     The generalised claim regarding treatment of ethnic Chinese in Malaysia.
·     The anticipated harms claim, including in respect of the applicant (including a claim of possible self-harm) and his family.
·     The inability to find employment claim.
Assessment of, and findings on, these specific integers of the applicant’s claim
The evidence provided to the Tribunal in respect of each of the claim integers identified above, along with the outcomes from any clarifications sought or Country Information posed by the Tribunal in response, is set out below under each relevant claim integer heading.
As to the Bersih membership claim
The applicant claims to have been a member of the Malaysian clean elections civil society organisation known as ‘Bersih’. The applicant could not recall when he first joined, and initially could not recall whether he began with Bersih whilst living in Kuala Lumpur or when he was in [Country 2] (2013-2016).
The applicant was asked about his activities in Bersih. He responded that he was involved in some ‘strikes’. The Tribunal asked the applicant as to details of these strikes. The applicant responded that he thought that perhaps he had been involved 10-12 years ago. The Tribunal noted for the applicant that this period correlates with when he was in [Country 2]. The applicant could not recall whether he had been involved in these activities in [Country 2] but stated that he thought he had been involved in Kuala Lumpur, perhaps in 2017, although he re-stated that he could not recall the date.
When asked as to who else was involved, the applicant responded that he could not recall.
The Tribunal asked for any further details as to these Bersih activities because the large Bersih rallies around the relevant claimed time occurred in August 2014 and November 2016, but none have been held since. When asked how many times he had been involved, and whether these were the rallies he was talking about, the applicant stated that he could not recall any other activities but thinks he joined 2-3 activities in Malaysia and possibly one in [Country 2]. The applicant stated that he can’t recall exact years for many things.
The Tribunal asked the applicant why he had not included any information about his involvement with Bersih in his original protection visa application. The applicant responded that he did not know how to answer the document at that time.

The Tribunal asked if the applicant was still involved with Bersih. The applicant stated that he was not and that he had ceased being a member a few months after he came to Australia in 2017.
The Tribunal does not accept that the applicant is or ever was a member of Bersih, or that he participated in any Bersih public activities. This is for three reasons.
First, the applicant’s recall of relevant timelines was very vague and highly inconsistent in key particulars. The applicant could not at first recall where he was first engaged in activities – KL or [Country 2] – although he later said he thought it was KL.
Further, during the eventually settled upon timings (10-12 years ago – 2013-2016), the applicant was actually in [Country 2].
Additionally, after being pressed for more precision, the applicant subsequently indicated that his first Bersih ‘strike’ might have been in 2017. The applicant came to Australia in February 2017, which would mean that his involvement and all of its claimed sequela incidents would have to have been compressed into about one month of time.
As noted above in respect of timing correlations, the Tribunal initially noted that the 2017 claimed timing was inconsistent with the record of Bersih rallies contained in reputable academic publications. The Tribunal raised this matter with the applicant, noting that 2017 did not cohere with this record as the last of these Bersih rallies was in November 2016.[1]
[1] YH Khoo, ‘The Bersih Movement and Political Rights in Malaysia’, in G Facal et al (eds), The Palgrave Handbook of Political Norms in Southeast Asia (2024), ch 32, p573; KB Teik, ‘The profound impact of the Bersih movement since 2007’, ISEAS Perspective, 21 December 2021, (No 167), p3.
The applicant did not indicate whether he had been involved in these reported rallies or some other claimed rallies. The Tribunal does not know whether Bersih was engaged in other rallies than those in the academic reports. Consequently, in assessing the reliability of the applicant’s vague claims as regards timings, the Tribunal placed no weight on this particular inconsistency.
Nevertheless, the already noted inconsistencies as to timings, along with further inconsistencies which arose in the applicant’s evidence as to the Red Shirt incidents (noted below) were sufficiently material for the Tribunal to conclude that the applicant’s evidence on this issue was not reliable.
Second, the applicant could not recall anyone else who had been at these claimed rallies, nor any details – such as locations, numbers involved etc - about the 2-3 rallies he claimed to have attended. Nor could he recall if he had been involved in any other activities with Bersih. He stated that all he could recall was that they had done some chants.
Third, the Tribunal does not accept that the applicant failed to mention in his initial protection visa application such a significant and intensely relevant point for his claim as being a member or Bersih, for the claimed reason that he did not understand the document. The Tribunal draws an adverse inference as to the reliability and credibility of the applicants membership of Bersih claim from his failure to raise this matter at that time.
In this regard, the Tribunal specifically notes that the applicant spent 11 years in schooling in [Country 1], which he undertook in English, as well as [grades] at a school in Australia (which was also in English), and that he presented as entirely competent in English at the hearing.
Further, the Tribunal also notes that the applicant had no difficulties in working out where to place information about his Bersih related claims on the same template document just a few months after the first protection visa application, at the time when he lodged the second protection visa application after the first was rejected.
As to the first Red Shirt incident claim
The applicant claims that at a Bersih rally, he was approached by Red Shirts after he left the Bersih group. The applicant could not recall when this occurred, and initially could not recall if it happened before or after he was in [Country 2] but thought that it was perhaps before going to [Country 2].
The Tribunal pressed the applicant on this issue. The applicant later stated that it may have been in 2017, but he was not sure.
The applicant stated that a group of 5-7 Red Shirts approached him when he was alone after the rally and punched him, telling him that they did not want to see him at any more rallies. Not all of the group were involved in the punching. The applicant did not go to hospital for any injuries.
The applicant stated that the Red Shirts also threatened him because he could not speak adequate Malay.
The Tribunal does not accept that this incident occurred. This is because the Tribunal does not accept that the applicant was ever a member of Bersih, or that he was ever involved in Bersih activities.
The Tribunal also notes, as with the membership of Bersih claim, that the applicant’s claimed timings of involvement are very divergent and incompatible, ranging from before he went to [Country 2] (2013), to 10-12 years ago when he was in [Country 2], to 2017, just before he came to Australia in February 2017.
As to the Police report claim
The applicant stated that he sought to report this incident to the Police. It was not clear, despite requests for clarification, whether this attempt was made after the first or second claimed incidents (the second Red Shirt incident is addressed below). The applicant eventually indicated that it may have been after the second incident but was not sure.
The applicant stated that the Police refused to take his report. The applicant recalled that a female police officer sought to take the report in Malay, but the applicant asked to deliver it in English. The police officer then told the applicant that he is not Malaysian and wanted to see his identity card. The police officer then told him to go back to China.
The Tribunal does not accept this integer of claim. This is because the Tribunal does not accept that the claimed triggering event – one of the two claimed Red Shirt incidents – ever occurred (see above and below on the two claimed incidents).
As to the second Red Shirt incident claim
The applicant claimed that some weeks or months later, the same group of Red Shirts saw him in the street. They asked him about his facility in the Malay language and became angry when he could not communicate adequately in Malay.
The applicant stated that these people then beat him and robbed him.
The Tribunal does not accept that this incident occurred. This is because – as with the Police report – this claim is a sequela of the claim to have been a member of Bersih and to have participated in rallies, which the Tribunal does not accept.
Further, this claim as to the second Red Shirt incident is entirely dependant upon the Tribunal accepting that there was a first Red Shirt incident, which the Tribunal has already rejected.
As to the relevance to the applicant’s claim of the November 2019 you tube video
This claim was initially raised in the applicant’s 2020 statement.
The Tribunal asked the applicant to expand upon this claim and, in particular, to direct the Tribunal to the relevance of this incident to the applicant’s claim.
The applicant stated that he was not involved in this incident as it occurred in 2019 and he has been in Australia since 2017.
However, the applicant explained that the relevance of this you tube footage was that it was an example that indicated that ‘Malaysia was violent during that moment’.
The Tribunal raised with the applicant that since 2019 there has been an election in Malaysia and that the new government since 2022 includes a party that is traditionally thought of as a ‘Chinese’ party.
The Tribunal also raised with the applicant some relevant DFAT Country Information. First, the Tribunal explained that it considered this Country Information to be highly credible because of its official source and detail. Second, the Tribunal explained that it would welcome any thoughts or response the applicant might have to this Country Information.
The Tribunal then outlined to the applicant the relevant Country Information, being that there is a low risk of official discrimination for criticising political parties or the government, so long as the issues of race, religion, and royalty are avoided.[2]
[2] DFAT Country Report – Malaysia, 24 June 2024, para 3.98.
The applicant responded that he is ‘not a Bersih person now’, that he left in 2017, and that he has nothing to say against the government now.
Given that the applicant accepted that the 2019 footage was ‘of its time’ and that the situation in Malysia had now improved, the Tribunal determined that this integer of claim was also ‘of its time’ and was thus no longer relevant to the applicant’s claims. This is because, as the applicant agreed, the 2022 election and the formation of a new government had changed the previous political situation of which the footage was claimed to be evidence.
As to the relevance to the applicant’s claim of the friend’s [shop] incident
This claim was initially raised in the applicant’s 2020 statement.
The Tribunal asked the applicant to expand upon this claim and, in particular, to direct the Tribunal to the relevance of this incident to the applicant’s claim.
The applicant stated that he could not recall much about this incident and that it was based on what his friend told him. He stated that he can’t remember the story much now, but that the key message from the incident was that the Police did not care about his friend being beaten up.
When asked to explain how this incident was related to the applicant’s claim, the applicant stated that it was provided in support of his claims about how ethnic Chinese people are treated in Malaysia.
The Tribunal does not accept that this incident occurred. This is because the applicant was unable to provide any details as to the timings and nature of this incident, claiming that he could not remember or could not recall the story.
Consequently, because the Tribunal does not accept that this incident occurred, the Tribunal does not accept that it has any relevance for the applicant’s own claims.
Additionally, because the Tribunal does not accept that this incident occurred, it also does not accept that there was inaction by the Police in relation to the incident. Therefore, the Tribunal does not accept that this claimed incident ‘supports’ the applicant’s own claims as to Police inaction regarding his own claimed Red Shirt incident report.
Further, insofar as the claimed incident could be said to provide support for the applicant’s more generalised claim as to treatment of ethnic Chinese in Malaysia, the Tribunal does not accept this claim - this matter is dealt with in more detail below.
As to the relevance to the applicant’s claim of the applicant’s father’s death
The applicant was asked to explain the relevance of his father’s death in 2019 to his claim.
The applicant stated that it was about him being suspicious as to the circumstances of his father’s death from burns. The applicant provided no further elaboration.
Based on the complete lack of any materiality in relation to this integer of claim, the Tribunal does not accept that the fact of his father’s death in 2019 is relevant in any way to any of the applicant’s claims.
As to the generalised claim regarding treatment of ethnic Chinese in Malaysia
The applicant made a generalised claim regarding discriminatory treatment and racism targeted at ethnic Chinese in Malaysia. He claimed that the you tube video and the friend’s [shop] incident (see above), as well as his own claimed Red Shirt incidents and the police report incident, were evidence of this situation.
As noted previously, the Tribunal raised with the applicant whether he believed that this situation had shifted since the 2022 election, which saw an ethnic Chinese associated party now form part of the government. The applicant agreed that the situation has changed, but that there were still some anti-Chinese people in Malaysia.
The applicant also agreed that the Red Shirts were no longer the force in Malaysian politics that they had been but stated that some of the people were still around even though they did not wear Red Shirts anymore.
The Tribunal also raised with the applicant the relevant DFAT Country Information (see below) to the effect that ethnic Chinese generally face low risk of official discrimination in Malaysia. The applicant agreed but stated that the Red Shirts were not official, although he had earlier stated that they were paid by previous governments.
The applicant also stated that, at any rate, he was no longer in Bersih and ‘had nothing to say against the government now’.
The Tribunal does not accept that the applicant faced or faces any specific incidents of persecution based on his ethnicity. This is for three reasons.
First, the Tribunal preferred the DFAT Country Information on this issue (set out in more detail below) because the Tribunal considers it highly credible and more reliable than the applicant’s claims.

100. Second, the Tribunal does not accept that any of the instances of specific ethnicity-based persecution claimed by the applicant – the Red Shirt incidents and the police report incident – ever occurred. That is, the Tribunal does not accept that the applicant has faced any of the claimed examples of ethnicity based persecution.
101. Third, the applicant accepted (and the Tribunal agreed) that at any rate, the situation in Malaysia had now changed in this regard.
As to the anticipated harms claim, including in respect of the applicant and his family
102. The applicant elaborated upon four forms of feared harms: (1) That the Red Shirts would find him; (2) that the Red Shirts would find his family; (3) that he would kill himself if he ‘had no place to go’ and/or if he could not earn a living; and (4) that Red Shirts would again beat him up. The Tribunal also explored whether there were any other possible harms the applicant feared.
103. The Red Shirts will find him claim. The applicant agreed that after 7 years there is ‘a high chance’ that the Red Shirts involved in his claimed assaults would not recognise or find him. The applicant stated that it is only a ‘low chance’ and later stated that it was ‘a 1% chance’. However, he also stated that even that was too much of a risk as he would not want to give even a remote chance for the potential to arise.
104. The Tribunal noted with the applicant that a perusal of academic and think tank sites on the internet seemed to indicate that the Red Shirts were a reduced political force in Malaysia, noting the new government’s policies in this regard.
105. The applicant agreed that this is the case, and that he had not heard much about them since he came to Australia. However, he continued, this does not mean that the same people are no longer there; it is just that they won’t be wearing red shirts any longer.
106. The Tribunal does not accept that the applicant was involved in any incidents with Red Shirts. Therefore, the Tribunal does not accept that there is any risk of Red Shirts recognising him, or seeking to find out where he lives, for any reason, if returned to Malaysia.
107. The Red Shirts will find his family claim. The applicant stated that he feared that if the Red Shirts found him, they might find his family. When asked why the Red Shirts would seek to locate his family, he stated that he was not sure why, but that he believed Red Shirts had followed him once and his assumption from that is that they would do harm to his family.
108. The Tribunal does not accept that the applicant was involved in any incidents with Red Shirts. Therefore, the Tribunal does not accept that there is any risk of Red Shirts seeking to find, or perpetrating harm upon, the applicant’s family for any reason.
109. The self-harm claim. This claim is linked with the applicant’s statement in his protection visa application that if he is returned to Malaysia, he ‘will die, one way or another’.
110. The Tribunal first asked the applicant what he meant by this statement, and whether he feared that Red Shirts would kill him. The applicant stated no, this was not his fear. Rather, he stated, his fear was that if the Red Shirts found him, he ‘would have no place to go’ and would possibly kill himself in response. The applicant also stated that if he could not get work, he could die by self-harm.
111. The Tribunal again asked the applicant to clarify whether he feared death as a consequence of actions by Red Shirts or others. The applicant stated ‘no’, and that his fear of death was that he would have to kill himself.
112. The Tribunal does not accept that the applicant will kill himself if returned to Malaysia. This is because the Tribunal does not accept the existence of either of the two claims advanced by the applicant as potential reasons for such a drastic act.
113. First, the Tribunal does not accept that the applicant was involved in any Red Shirt incidents; therefore, the Tribunal does not accept that Red Shirts will recognise the applicant or seek to find him if he is returned to Malaysia. Consequently, the Tribunal does not accept the first claimed basis for potential self-harm – that it could be his response to being found by Red Shirts and then ‘having nowhere else to go’.
114. Second, the Tribunal does not accept that the applicant would be unable to find work if returned to Malaysia, now or into the foreseeable future (see below). Therefore, the Tribunal does not accept that an inability to find work will manifest. Consequently, the Tribunal does not accept that the applicant could kill himself for this reason.
115. The Red Shirt assault fear claim. The applicant stated that whilst he does not fear that Red Shirts could kill him, he does fear that they would beat him up again if they recognised him or found him.
116. The Tribunal does not accept that the applicant was involved in any Red Shirt incidents; therefore, the Tribunal does not accept that Red Shirts will recognise the applicant or seek to find him if he is returned to Malaysia.
117. Consequently, the Tribunal does not accept that the applicant faces the potential of Red Shirt beatings if he is returned to Malaysia, now or into the foreseeable future.
118. As to any other feared harms. The Tribunal asked the applicant if he feared death from any perpetrator other than his claims as to possible self-harm. He stated no.
119. The applicant stated that he did not fear the imposition of the death penalty as he had not committed any criminal offences.
120. When asked if he feared torture or inhuman or degrading treatment or punishment, the applicant stated yes. When asked as to the potential perpetrator of this feared harm, the applicant stated that this was the Red Shirts or other ‘anti-Chinese people’.
121. In relation to ‘anti-Chinese people’, the Tribunal notes the conclusion reached above in respect of generalised anti-Chinese activity in Malaysia. That is, the Tribunal does not accept that the applicant has suffered harm because of this reason. Nor does the Tribunal accept that the applicant faces the prospect of harm for this reason if returned to Malysia, now or into the foreseeable future.
122. As to the Red Shirts being the potential source of this harm, as noted above, the Tribunal does not accept any of the applicant’s Red Shirt related claims.
123. Consequently, the Tribunal does not accept that the applicant faces any prospect of torture, or inhuman or degrading treatment or punishment, from Red Shirts or other anti-Chinese people. This is because the Tribunal does not accept that the applicant has any material history with the Red Shirts or any other violent anti-Chinese people, and has not indicated any other reason why he could attract the adverse attention of such groups if returned to Malaysia.
124. Therefore, the Tribunal does not accept that there is a related risk of harm from any of these sources.

As to the inability to find employment claim
125. The applicant’s claim as to his inability to find employment if returned to Malaysia is based on four points.
126. First, the applicant claims that as he is [age], it will be hard for him to get a job because it is difficult to go back into the job market in Malaysia once you are over [age] years of age.
127. Second, the applicant claims that as he does not have good Malay language skills, he will not be able to get a job, and that some HR managers will tell him to go back to China.
128. Third, the applicant claims that as he only has a [high school] education, he will not be competitive for employment.
129. Fourth, the applicant claims that to undertake a salesperson job – a job he previously held in Malaysia – he would need a car as he would not be able to rely on public transport; however, he could not afford a car.
130. In this regard, the Tribunal raised several issues with the applicant and asked him for a response.
131. First, the Tribunal noted the relevant DFAT Country information which indicated that ethnic Chinese face low levels of discrimination when operating / opening a private sector business.[3] The Tribunal also noted that this report states that ethnic Chinese are prominent in business and economics in Malaysia.[4]
[3] DFAT Country Report – Malaysia, para 3.15.
[4] DFAT Country Report – Malaysia, para 3.11.
132. The applicant stated that he agreed that this was true. He stated that he is ‘not afraid’ of discrimination from most Malays but rather from anti-Chinese politics. However, he stated that he is not sure of the scale of this politics now.
133. The applicant also stated that he agreed that many Chinese are very successful. He also stated that this includes many mainland Chinese who come to Malaysia to start businesses. The Tribunal asked if these mainland Chinese who start businesses generally speak Malay and he stated ‘no’. That is, the applicant accepted that many Chinese business-people in Malaysia do not speak Malay well, yet they are still successful.
134. Second, the Tribunal noted the relevant DFAT Country Information regarding the employment situation in Malaysia. This information indicates that unemployment in Malaysia is now at its lowest level since the covid pandemic – 3.4%.[5]
[5] DFAT Country Report – Malaysia, para 2.10.
135. The applicant responded that only a person trying to get work will know the harshness of trying to gain employment with a language barrier and also being over [age] years of age.
136. Third, the Tribunal raised with the applicant that he had held jobs in Malaysia previously, had skills from his [studies], and had farm and [other] skills from Australia.
137. The applicant stated that farm work is for ‘locals’ in Malaysia so he could not get this type of work. He stated that to be a salesperson, he would need a car. He stated that to be the equivalent of an [occupation] he would need a motorcycle licence.
138. The applicant was asked whether there was any reason he would not be able to gain a motorcycle licence in Malaysia, and he said there was not.
139. The Tribunal also asked where the applicant could work. He stated that he would not return to KL as that is where his family is located, and he would not want to take any risk of them being found by Red Shirts through him. However, he had previously lived with his mother, and worked, in KL.
140. The Tribunal asked the applicant how long he had lived in [Country 1] when doing schooling. The applicant stated that it had been for 11 years. The Tribunal asked the applicant if he could return to [Country 1] for work. The applicant stated that while this was a possibility it would be difficult.
141. The Tribunal notes that the applicant has relevant skills, and that he agreed that he could, at the very least, gain a motorcycle licence and be employed in [an] equivalent roles.
142. The Tribunal also notes that it was the applicant’s own evidence that many successful Chinese business-people in Malaysia do not speak adequate Malay.
143. The Tribunal also notes that the reason the applicant gave for not returning to KL, where he has previously found employment, and where his mother and sisters both run businesses, was that the Red Shirts might find his family. Because the Tribunal does not accept any of the applicant’s Red Shirt related claims, the Tribunal also does not accept that the applicant could not return to KL for this reason.
144. Finally, the Tribunal notes the DFAT Country Information to the effect that ethnic Chinese are successful in business in Malaysia, face low levels of discrimination when operating or opening a business in Malaysia, and that the unemployment rate in Malaysia is now comparatively low.
145. Therefore, the Tribunal does not accept that the applicant will not be able to find employment if returned to Malaysia, now or into the foreseeable future.
Does the applicant satisfy the refugee criterion for protection?
146. For the reasons set out above, the Tribunal does not accept that any of the applicant’s claims are credible.
147. Therefore, the Tribunal does not accept that there is a real chance of harm, for a refugee criterion reason or for any other reason, if the applicant were returned to Malaysia, now or in the reasonably foreseeable future.
Does the applicant satisfy the complementary protection criterion for protection?
148. 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).
149. The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined by the Act.
150. The Full Federal Court has held that the ‘real risk’ test applicable in complementary protection criterion assessments imposes the same standard as the ‘real chance’ test applicable in refugee criterion assessments.[6]
151. The Tribunal is ‘entitled to refer and rely upon relevant findings as to the refugee criterion under s. 36(2)(a) in considering the complementary protection criterion under s. 36(2)(aa)’.[7] In this respect, the Tribunal has had regard to the refugee criterion claims as above, but now in the context of complementary protection.
152. Consequently, the Tribunal finds that the ‘no real chance’ findings as to all the integers of claim as set out above in the context of the refugee criterion are transferable to its consideration of the ‘real risk’ assessment as per the complementary protection criterion. The Tribunal therefore does not accept that the applicant faces a real risk of suffering any form of significant harm as specified in s 36(2A).
153. Consequently, the Tribunal is not satisfied that the applicant faces a real risk that he will suffer significant harm if returned to Malaysia, now or into the reasonably foreseeable future, for any reason.
154. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
[6] MIAC v SZQRB (2013) 210 FCR 505 [256], [297], and [342].
[7] DQU16 v Minister for Home Affairs [2021] HCA 10, [27]; BLS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 462, [47].
CONCLUSION
155. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

158. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing: 26 November 2024
Representative for the Applicant: n/a
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.
…