2013471 (Refugee) - [2021] AATA 4221

2013471 (Refugee) [2021] AATA 4221 (14 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2013471
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Paul Windsor
DATE:14 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 14 September 2021 at 10:46 am
CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – ethnicity and religion – Chinese Buddhist restaurant owner harassed and threatened by Malay Muslim gangsters for cooking pork – credibility – inconsistent claims and evidence – country information – low-level official discrimination but good opportunities in private sector – member of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65, 424AA
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 July 2015 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Malaysia, applied for the visas on 9 December 2014. [The first applicant] applied as an applicant who wishes to submit their own claims for protection while [the second applicant], who is [the first applicant]’s wife, applied as a member of [the first applicant]’s family unit who does not have their own claims for protection. A summary of relevant law applicable at the time of application is at Attachment A.
In his Protection visa application [the first applicant] indicated he was born in Ipoh in Perak state Malaysia on [Date], is ethnic Chinese and is a Buddhist. [The second applicant] indicated she was born on [Date] in Pahang state Malaysia, is ethnic Chinese and is a Buddhist. The applicants indicated they departed Malaysia legally and arrived in Australia [in] September 2014, entering on visitor visas.[1]
[1] See the Departmental file.
In his application [the first applicant] (hereafter referred to as ‘the applicant’) indicated that he was discriminated against in Malaysia by ethnic Malays because of his Chinese ethnicity. He stated he was threatened by Malays because they cooked pork in his restaurant.[2]
[2] See the Departmental file.
The delegate refused to grant the visas finding that [the first applicant] had fabricated his claims to have owned and operated a restaurant and to have been in an altercation with and been pursued by a Malay gangster.
The applicants sought review of this decision by the Tribunal on 9 July 2015. They did not provide the Tribunal with a copy of the delegate’s decision record.
On 28 November 2016 the Tribunal, differently constituted, affirmed the delegate’s decision not to grant the applicants protection visas (case 1510871 refers).
The applicants sought judicial review of this decision. On 22 July 2020 the Federal Circuit Court of Australia set aside the decision and remitted it to the Tribunal to be determined according to law. The Court found that The Tribunal clearly considered the applicants’ claims to fear being killed on account of their Chinese ethnicity but did not consider the subsidiary claim of the applicants facing a real risk of harm falling short of being killed for reasons of their ethnicity and, consequently, erred by failing to consider an integer of a claim, or erred by misunderstanding the meaning of persecution, resulting in the Tribunal making a material jurisdictional error.[3]
[3] EDI16 & Anor v Minister for Immigration & Anor [2020] FCCA 1990
The applicants appeared before the current Tribunal on 8 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims from his protection visa application are summarised as follows:
·He left Malaysia because he was discriminated against by local Malay people because of his Chinese ethnicity.
·He believes if he returns he will be at risk of being harmed by Malay people. He was running his restaurants very well but they cook pork so the local Malays asked them to close the restaurants.
·He was threatened many times including that they would kill him.
·He does not think the authorities can and will protect him because the politicians and police support the Malay people and they are gangsters.
Findings and reasons
Identity
Considering the copies of their Malaysian passports provided to the Department, the Tribunal finds that the applicants are citizens of Malaysia as claimed and that Malaysia is their country of habitual former residence. Accordingly, the Tribunal finds that Malaysia is the applicants’ country of nationality for Convention purposes and is their ‘receiving country’ for complementary protection purposes.[4]
Key issues
[4] See the Departmental file.
The key issues in this review are whether either of the applicants has a well-founded fear of persecution for one or more of the reasons enumerated in the Convention definition: race, religion, nationality, membership of a particular social group or political opinion, if they were to return to Malaysia; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Malaysia, there is a real risk that either of the applicants will suffer significant harm for the purpose of s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
For the reasons set out below the Tribunal found that the applicant was not a credible witness. The Tribunal considers he has concocted his claims to have run a restaurant in Malaysia that served dishes containing pork and to have been harassed and threatened by ethnic Malay Muslim gangsters as a consequence.
Evidence to the first Tribunal
At the hearing with the first Tribunal, held on 17 November 2016, the applicant indicated that he had a restaurant in Malaysia that sold pork and Malay Muslims were not happy that they did this. He indicated that he feared if he returned to Malaysia they might be killed by Malay Muslim gangsters because their restaurant was located in a Malay area. He indicated that gangsters had come to their restaurant and then to their home and threatened to kill them.
The applicant indicated that they opened the restaurant in December 2013 (he initially stated December 2014 but corrected this, upon being queried regarding when he arrived in Australia, which was in September 2014). He said the restaurant was called [Name 1], was a small eatery that could fit about 40-50 people and they opened from 7 am until 3 or 4 pm. He said they had one part-time staff member who just washed dishes.
The applicant indicated 5-6 gangsters first came to the restaurant in March 2014, verbally threatened them, then one or two weeks later 7 or 8 gangsters came. He said they had a brawl on this second occasion and the next morning the restaurant had been daubed in red paint.
The applicant indicated they continued the business after the red paint incident but then in June 2014 around ten people came to their apartment. He indicated he was still operating the restaurant at this time. He said the people asked why they had ignored the warnings and tried to enter the apartment but they fought and the people left. The applicant said he reported this to police but in Malaysia the police don’t want to arrest them so nothing happened.
The applicant indicated he decided to sell the apartment and did this a few months before coming to Australia. He indicated he stopped trading after the people came to his apartment in June 2014 and rented the shop to someone else.
The applicant indicated that after he closed his business, just after the ten people came to his apartment in June 2014, the people kept harassing him. He said every time he came to or left his apartment someone was looking at him. He said he sold the apartment for a cheap price at the end of June but the gangsters knew his car number plate and still kept an eye on him as he rented in the area. He said he sold the car in July and then hid himself but heard the gangsters were still looking for him which was why he came to Australia to apply for protection.
The first Tribunal put to the applicant for comment, in accordance with the requirements of s.424AA of the Act, a range of inconsistencies between his evidence to the delegate at an interview with the delegate held on 1 July 2015 and his evidence at the hearing with the first Tribunal on 17 November 2016. These were:
·He told the delegate he opened the restaurant in October or November 2013, but told the first Tribunal he opened it in December 2013.
·He told the delegate the restaurant was named [Name 2], but told the first Tribunal it was named [Name 1].
·He told the delegate the restaurant seated 130 people, but told the first Tribunal it seated 40-50 people.
·He told the delegate the restaurant was open from 5 am until 2 pm, but told the first Tribunal it was open from 7 am until 3 or 4 pm.
·He told the delegate they had one assistant who served noodles and drinks, but told the first Tribunal they had one part-time worker who washed dishes.
·He told the delegate he closed the restaurant in February 2014 but told the first Tribunal he closed it in June 2014.
·He told the delegate that the first time people came to the restaurant was in January 2014, it was one person who threatened him and then ran away, and a week later 10 people came and threatened him; but this was different to the account he gave to the first Tribunal (where he indicated 5-6 gangsters first came in March 2014, verbally threatened them, then one or two weeks later 7 or 8 gangsters came).
·He told the delegate the gang leader sent him SMS messages but didn’t mention this to the first Tribunal, even when asked if anyone had been in contact with him.
The first Tribunal put to the applicant that these inconsistencies may call into question whether he ever had a restaurant; and could go to issues of his credibility and whether he had ever been threatened. The applicant he indicated that he was confused about exact details due to the passage of time. He indicated he closed the business in February 2014 but rented the restaurant to someone else in June 2014. When queried that he had indicated he was threatened at the restaurant in March 2014, the applicant claimed that after a temporary closure for one or two weeks he again opened the restaurant from time to time, one or two days a week, for income generation. In relation to the SMS message the applicant said this did happen and he went to the police station with the message and reported it. When asked what it said, however, he claimed it was in Malay and said ‘because we have no respect for you and wherever you go we will find you’. When asked what he told the delegate the message said (which was ‘Don’t forget me, I’m your very, very good friend’) the applicant said he could no longer remember.
Evidence to the current Tribunal
The applicant told the current Tribunal that he opened the restaurant in October or November 2013. When asked why he decided to open a restaurant, he indicated that he had worked previously as [an Occupation]. He said he got some threats and the pay was low.
When asked if he had any previous experience running a restaurant he indicated he did not. When asked why he thought he could run a restaurant he replied that ‘you have to try to find a new way’, adding it is an essential service as everyone needs it. The Tribunal asked him if he had any experience in cooking for people. He relied that it was kind of a noddle bar. When asked again if he had any experience cooking for a large number of people he said he did not but commented that his wife had.
When asked if he started the restaurant from scratch/zero rather than take over an established business from someone else, the applicant said they took it over from others. When asked who these others were, he said ‘a friend’. When asked if the friend ran the business the same way he replied, ‘no’. When asked how the friend was running it he said they hired other people to run it.
When asked, the applicant said the restaurant was called [Name 2 – alternative spelling], was located on [Location] in Selayang Baru, seated around 120-130 people and was open from 5 am until 2-3 pm in the afternoon. He said they had one part-time staff member who mostly did cleaning/hygiene tasks.
The Tribunal asked the applicant what he did with the business when he closed it. He said they planned to sell it to others. When asked if this was what he did, the applicant said his friend helped him handle that issue after he and his wife came to Australia. The Tribunal asked the applicant whether he was indicating that he bought the business when he started it. He said he only bought the business but rented the premises. The Tribunal asked the applicant if he had a licence to run the business. He said the business previously had a business licence but indicated he did not get a business licence in his own name. He added that, legally, he should have done that but because they only ran the business for a short time he did not have enough time to handle that issue.
The Tribunal asked the applicant why he stopped running the business. He replied that after two months a group of people harassed and threatened them because they sold food that contained pork. He said these people were members of a local gangster group called the [Name] gang (an ethnic Malay Muslim gang).
The Tribunal discussed with the applicant the inconsistencies identified by the first Tribunal between his evidence to the delegate and to that Tribunal (as set out above), and asked if he had any further comments he wished to make on the inconsistencies. He said two years had already past and he was just giving a rough idea of the opening date. He commented that their staff member had no definite duties but had to do everything. He said it was a small business so, it was a mistake to say it seated 120-130 people. When the Tribunal commented that he had also told this Tribunal that it seated 120-130 people, the applicant replied indicating that he was not talking about tables. In relation to the SMS message, he commented that told the first Tribunal it was a specific kind of threat message, adding that it said ‘Do you remember me, I’m your very good friend’. The applicant indicated he was reading from the decision record and the Tribunal commented that he can recall the message now because he is reading it. The applicant said that when he went for the interview previously he was kind of nervous.
The Tribunal commented that, like the first Tribunal, because of the inconsistencies in his evidence, it might also conclude that he did not ever manage a restaurant and was not ever threatened by members of a Malay gang. The applicant replied that he can understand that but said it has been several years since these events, he did not understand much about the law, he was nervous and it is possible he made mistakes in his evidence. He added that the claimed events did happen and his story is true.
The current Tribunal indicated that there were some further inconsistencies between his evidence to the delegate and his evidence to the previous Tribunal that it would like to put to him for comment, in accordance with the requirements of s.424AA of the Act. The Tribunal indicated that this was:
·That he told the delegate a lone gangster came to the restaurant at the end of January 2014 and told him he could not sell pork dishes, then a week later in February a group of ten people came and the same gangster told him to stop the restaurant, but he continued as usual and two days later he found someone had thrown red paint on the door of the restaurant.
·He told the delegate that one week later the same gangster came to his home and told him not to sell pork at the restaurant, there was a small argument, the gangster pushed him and he pushed the gangster back, and the gangster then threatened him saying that wherever he went the gangster could find, then the gangster left.
·The applicant indicated to the delegate that after this incident he immediately stopped the restaurant business and handed it back to the elderly Chinese man who originally ran the business and, by late February 2014, he went back to working as [an Occupation] and continued in this work until June 2014.
·He told the delegate that in mid-June 2014 he then received a text message from the gangster which read : ‘Don’t forget me, I’m your very, very good friend’, which he saw as a threat and, after this, he and his wife decided they needed to leave Malaysia and come to Australia.
·This is different to what he told the previous Tribunal, however, where he said he closed the restaurant in February 2014, but then reopened it from time to time to gain income, and rented it to someone else in June 2014.

The Tribunal indicated that the information is relevant to its review as his evidence to the previous Tribunal on this matter contradicts his evidence to the delegate, and, subject to his comments, this may lead the Tribunal to conclude that his claim regarding this matter is not true and, if so, would be the reason or part of the reason for affirming the decision to refuse him a protection visa. The applicant indicated that he understood why the information was relevant to the review. He asked that the Tribunal grant him a short adjournment to consider his response. The Tribunal assented to this.
After the adjournment, the applicant commented that the restaurant was started in October or November 2013 and they took it over from a friend. He said that from February 2014 gangsters came and threatened them. He said that people came on several occasions and they had some conflict until June, when they received the last message, after the business had closed. He indicated the message said ‘do you remember me, I’m your good friend’. He commented that he felt the situation was getting very serious so decided to leave Malaysia, together with his wife. The Tribunal sought to clarify whether he was saying that they closed the restaurant in February 2014 (noting that he initially told the first Tribunal he closed the restaurant in June 2014, then altered his account to say he closed it for one or two weeks in February but then opened it again from time to time to gain income). The applicant said they closed it ‘temporarily’ but it was still in their name. The Tribunal queried that this is different to his account to the delegate, where he indicated he immediately stopped the business in February 2014, handed it back to the elderly Chinese man who originally ran the business, and by late February 2014 returned to work as [an Occupation] and continued in this work until June 2014. The applicant commented that is ‘too many years ago’ and indicated he really can’t remember.
The Tribunal asked the applicant if he had suffered any other instances of discrimination or harm in Malaysia due to his Chinese ethnicity. He replied that ethnic-Chinese in Malaysia suffer from racial discrimination and reports of this can be found anywhere in news reports. The Tribunal asked him whether he personally had suffered from racial discrimination in Malaysia. The applicant commented that previously he had tried to purchase real estate which was good value but was told that it was reserved for other ethnicities and could not be sold to Chinese. When asked why this was the case he said it was due to government policies.
When asked if there were other examples the applicant said when ‘they’ apply for home loans the terms and conditions are worse than those for ‘locals’.
In relation to his claims to have been targeted for running a restaurant that served pork dishes, the Tribunal observed that it had undertaken a Google search regarding whether Chinese restaurants in Kuala Lumpur served dishes containing pork. The Tribunal commented that this had revealed that while some Chinese restaurants advertised themselves as ‘halal’, others advertise that they serve dishes containing pork. The Tribunal asked the applicant why his restaurant would have been singled out for selling dishes containing pork. The applicant commented that he was also ‘amazed’ by this. He added that maybe it is because his restaurant was located in a district where there were many ‘locals’. The Tribunal asked if the previous manager sold pork dishes. He said they did, but only one or two.
The Tribunal discussed with the applicant information drawn from the current DFAT Country Information Report on Malaysia regarding ethnic Chinese and Buddhists (and from the previous report, where indicated), as follows (emphasis added):[5]
[5] DFAT Country Information Report, Malaysia, 29 June 2021 sections 2.5, 2.13, 2.28 3.1-3.3, 3.8-3.12 and 3.21-3.24 and 3.59-3.64.
·Malaysia currently has an estimated population of 32.7 million people.
·Malaysia’s ethnic groups include the Bumiputera (literally ‘sons of the soil’), which includes Malays and indigenous persons of the Peninsula, Sabah and Sarawak) (62 per cent), Chinese (20.6 per cent – 6.7 million people), Indian (6.2 per cent), non-citizens (10.3 per cent) and others (0.9 per cent). Local sources estimate the current proportion of Chinese Malaysians who are Buddhist is around 80 per cent.
·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.
·In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera, and 2.4 per cent for Chinese Malaysians.
·As of July 2018, there were 7,776 primary national schools, including 1,298 national-type Chinese schools and 524 national-type Tamil schools, and 2,426 secondary national schools. All national schools use Bahasa Malaysia as the language of instruction. National type Chinese and Tamil schools use their mother tongue as the main medium of instruction and teach Bahasa Malaysia as a compulsory subject. There are 60 Chinese independent secondary schools.
·Article 8(2) of the Constitution forbids discrimination against citizens based on religion or race. Article 153(2), however, accords a ‘special position’ for ‘the Malays and natives of any of the States of Sabah and Sarawak’, thus permitting affirmative action policies.
·There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians.
·Government regulations and policies have included numerous preferential programs to boost the economic position of Bumiputera. Such programs promote increased opportunities for Bumiputera to access higher education, careers within the Civil Service, commercial opportunities and housing. Some industries (including tertiary education and distributive trade) maintain race-based requirements that mandate a certain level of Bumiputera ownership, and the government and many government-linked companies maintain procurement policies that favour Bumiputera-owned suppliers.
·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. 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 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. 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.
·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.[6]
·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.
·DFAT assesses that Buddhists are usually able to live free from societal discrimination on a day-to-day basis. They are usually able to worship freely without significant official interference. On rare occasions, they may face societal difficulties in cases where compulsory acquisition leads to their places of worship being relocated into inhospitable locations.
[6] DFAT Country Information Report, Malaysia, 13 December 2019, section 3.13.
The Tribunal observed that while the country information indicates there is some official discrimination against ethnic Chinese, as a consequence of policies favouring the Bumiputera, there is nothing in the reporting to indicate or suggest that there is widespread or significant societal discrimination or societal violence directed at ethnic Chinese in Malaysia. The applicant commented that in real life, in matters such as housing, obtaining loans and other opportunities, they are all prioritised to local Malays. He added that although officially the situation is as the information states, that level of discrimination happens very often. He observed that maybe some of the ethnic Chinese in Malaysia are quite successful, but suggested this is not the case for ‘the mass’ of ethnic Chinese.
The Tribunal observed that the previous Tribunal gave weight to the delay of almost three months in the applicants making the protection visa applications after they arrived in Australia and indicated that this issue was something the current Tribunal would also consider. The applicant indicated he had no comments he wished to make on this issue.
Assessment
Purported s.438(1)(a) non-disclosure certificate
The Tribunal observed at the hearing that there is a purported non-disclosure certificate (under s.438(1)(a) of the Act) on the Departmental file indicating that folios 41-42 and 59-60 of the file should not be disclosed to the applicant because disclosure would be contrary to the public interest because those folios contain information relating to an internal working document and business affairs. The Tribunal put to the applicant that it does not consider the certificate is valid as there is no public interest requiring that the relevant documents not be disclosed, because there are simply standard processing checklists. The Tribunal also commented that it did not consider the documents were materially relevant to the review because they were simply tick-box checklists recording that various processing steps had been completed. The Tribunal noted that the Federal Circuit Court had also considered the purported certificate and also considered that it was not valid and that the information at the relevant folios was not materially relevant to the Tribunal’s review. The applicant queried whether the documents also contained information regarding the issue of ethnicity. The Tribunal advised that they did not. He indicated that he had not further comments.
Claim to be at risk of serious harm or death from ethnic Malay gangsters due to running a restaurant that sold dishes containing pork
After carefully considering the applicant’s evidence the Tribunal concluded that the applicant never managed a restaurant selling dishes containing pork and was never harassed or threatened with harm or death by a Malay Muslim gang as a consequence. The Tribunal reached this conclusion because of what the Tribunal considers, when taken cumulatively, are significant and material inconsistences between the applicant’s evidence to the delegate and his evidence to the first Tribunal, as well as some inconsistencies between his evidence to the first Tribunal and to this Tribunal.
As outlined above, the applicant provided inconsistent evidence in relation to the name; month of opening; seating capacity; operating hours; duties of the claimed single employee; timing of the closure of the restaurant (February or June 2014); what he did with the business (immediately returned it to the elderly Chinese man who originally ran it or rented it to someone else in June 2014 and made arrangements to sell it after he came to Australia); and what he did after he closed the restaurant (whether or not he went back to working as [an Occupation] or whether he reopened the restaurant after a week or two on a part-time basis). The applicant also provided inconsistent evidence in relation to when gangsters first came to the restaurant, whether one of more gangster came to restaurant on that first occasion; whether one or more (ten) gangsters came to his apartment; and whether he was sent an SMS message and what the content of the message was.
The Tribunal considers that the passage of time, the applicant’s limited understanding of the law, and his being nervous at the interview with the delegate and the hearing with the first Tribunal do not explain the number and nature of significant and material inconsistencies in his evidence.
The Tribunal also found it improbable that the applicant would have commenced such a business in Kuala Lumpur, where he might have expected monitoring by relevant authorities, without an appropriate business licence, and with only one part-time staff member to assist him and his wife in a restaurant which he indicated to this Tribunal (and the delegate) had seating for 120-130 people, in circumstances where he had no prior experience running a restaurant or preparing and serving food for a large number of people.
The Tribunal has considered the delay (of just less than three months) in the applicants making protection visa applications after they arrived in Australia. Although the applicant indicated to the first Tribunal that he and his wife came to Australia to seek protection because they feared they would be killed by Malay gangsters if they remained in Australia, the Tribunal has not given any weight to this delay, finding it is not inordinate given the applicants were on valid visitor visas for the first three months of their stay in Australia and made the applications before their visitor visas ceased.
As the Tribunal finds that the applicant has concocted his claims to have run a restaurant in Kuala Lumpur and to have been threatened and harassed by Malay Muslim gangsters because they served dishes containing pork, the Tribunal finds that there is not a real chance that the applicants will suffer treatment amounting to persecution involving serious harm from Malay Muslim gangsters due to their Chinese ethnicity and because they ran a restaurant that served pork dishes should they return to Malaysia now or in the reasonably foreseeable future.
Claim to be at risk of serious harm due to their Chinese ethnicity and/or Buddhist faith
After carefully considering the applicant’s evidence and the relevant country information set out above, the Tribunal also finds that there is not a real chance that the applicant’s would suffer treatment amounting to persecution involving serious harm from the Malaysian authorities, ethnic Malays or any other organisation, group or person, because of their Chinese ethnicity and/or Buddhist faith.
In reaching this conclusion, the Tribunal accepts that the applicant may have suffered some discrimination in the form of being ineligible to purchase some real estate, which he considered to be good value, or access the lowest available home loan mortgage rates or terms and conditions, because these were only available to Bumiputera while he is ethnic Chinese. The Tribunal accepts, as the country information indicates, that there are affirmative action policies in Malaysia that positively discriminate in favour of Bumiputera and therefore discriminate against ethnic Chinese Malaysians. The country information indicates that this results in low level official discrimination against ethnic Chinese Malaysians in a range of areas, such as 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.
Notwithstanding this low level official discrimination, however, the country information indicates that ethnic Chinese Malaysians have lower unemployment rates than the other major ethnic groups in Malaysia, are well-represented in the private sector, and own and run many small and medium enterprises and large corporations. As well as being prominent in business and commerce, ethnic Chinese Malaysians also comprise a high proportion of the professional and educated class, and tend to be wealthier than other ethnic groups in Malaysia.
In the applicant’s particular circumstances the Tribunal notes that any discrimination he suffered in relation to home loans/mortgages or purchasing real estate did not prevent him from purchasing an apartment in Kuala Lumpur. He also indicated that he owned a car.
The Tribunal also finds that the relevant country information indicates that societal discrimination against ethnic Chinese and Buddhists is not a significant issue in Malaysia and, while there was a disturbance in July 2015 which took on an anti-ethnic Chinese nature, this was an isolated incident and there is no trend of societal violence against ethnic Chinese Malaysians. The Tribunal concludes that any official or societal discrimination the applicants faced in Malaysia due to their Chinese ethnicity did not amount to serious harm.
In reaching this conclusion, the Tribunal notes that the applicant commented, when asked why he left his job as [an Occupation], that he had got some threats and the pay was low. However, when given the opportunity during the hearing to raise any other instances of discrimination or harm that he, personally, had suffered in Malaysia, aside from the claimed threats and harassment in relationship to his claimed restaurant, the applicant only raised matters of discrimination in relation to purchasing real estate and obtaining the most favourable terms for mortgages/home loans. He did not indicate that he had suffered societal violence while working as [an Occupation] or in any other context outside of his claims in relation to having run a restaurant, which the Tribunal found were concocted.
The Tribunal also notes that on 20 November 2016 the applicant submitted to the previous Tribunal an email containing six internet links. The previous Tribunal commented that it had taken this information into account but gave it little weight as none of it was translated and the applicant had not provided a submission that would give the material some context. The current Tribunal sought to open these links but only one still worked, and that simply brought up a photo of a group of people outside what appears to be a bar or restaurant. The current Tribunal gave this information no weight given the lack of any statement providing context. The Tribunal asked the applicant during the hearing if he there was anything else he wished to raise and whether he wished to make any further submissions. He replied ‘no’ to both questions.

Considering the Tribunal’s findings above and the relevant country information, the Tribunal concludes that the applicants do not face a real chance of suffering persecution amounting to serious harm from the Malaysian authorities, ethnic Malay Malaysians or any other organisation, group or individual as a consequence of their Chinese ethnicity and/or Buddhist faith.
Conclusion - refugee criterion
The Tribunal concludes, therefore, that the neither of the applicants face a real chance of suffering persecution amounting to serious harm from ethnic Malay gangsters, the ethnic Malay community, the Malaysian government and its authorities or any other organisation, group or individual because of their Chinese ethnicity, Buddhist faith, because they ran a restaurant that served pork products, or for any other Convention reason, should they return to Malaysia now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a).
Complementary protection criterion
Having concluded that neither of the applicants meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act.
In considering whether there is a real risk that either of the applicants will suffer significant harm, as a necessary and foreseeable consequence of them being removed from Australia to Malaysia, the Tribunal notes 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.[7]
[7] 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 Tribunal, having regard to the findings of fact set out above, also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of either applicant being removed from Australia to Malaysia, there is a real risk that either applicant would suffer significant harm in the form of being arbitrarily deprived of their life; having the death penalty carried out on them; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment, by ethnic Malay gangsters, the ethnic Malay community, the Malaysian government and its authorities or any other organisation, group or individual.
Accordingly, the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no suggestion that either 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, neither applicant satisfies the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Paul Windsor

Member

ATTACHMENT A 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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Member of the same family unit who holds a Protection visa of the same class
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse or de facto partner and dependent children.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.