1512209 (Refugee) [2015] AATA 3666 (12 November 2015)

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1512209 (Refugee) [2015] AATA 3666 (12 November 2015)

Last Updated: 26 November 2015

1512209 (Refugee) [2015] AATA 3666 (12 November 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1512209

COUNTRY OF REFERENCE: Malaysia

MEMBER: Sophia Panagiotidis

DATE: 12 November 2015

PLACE OF DECISION: Melbourne

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

Statement made on 12 November 2015 at 11:48am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] August 2015. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act in that he is a person in respect of whom Australia has protection obligations as outlined in paragraph 36(20(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that he will suffer significant harm. Therefore he is not a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(aa) of the Act.

CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal has also had regard to the material referred to in the delegate’s decision which was provided by the applicant and other material available to it from a range of sources. This includes but is not limited to, the following:
   • The protection visa application completed by the applicant and lodged with the Department [in] August 2015.
   • Oral evidence of the applicant at the hearing held on 11 November 2015.
   • The Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines;
   • Department of Foreign Affairs and Trade (DFAT) Country Report Malaysia dated 3 December 2014.
   • Department of Immigration and Border Protection Country Information on Common Claims in the Malaysian Onshore Protection Caseload issued on 30 September 2015.
   • The United States Department of State Country Reports on Human Rights Practices for 2013 (Malaysia).

The applicant's claims

10. The applicant claims in his protection visa application that he is [age] years old from Malaysia and his ethnicity is Chinese. His religion is Buddhism and he speaks Mandarin, Malay and English. He departed Malaysia [in] August 2012 and arrived in Australia [in] August 2012. He claims that he left Malaysia because of government practices and because the Chinese are a minority and get sidelined in most situations. They are treated unfairly and risk physical abuse which has occurred to other Chinese over the last week and that this situation is escalating. He claims that racial tensions and political bias cause fear for minorities in Malaysia. He also claims that he has not personally experienced bad situations and he has not asked for help but he has travelled to [Country 1] to stay away from these problems.
11. During an interview with a Departmental officer [in] August 2015, the applicant stated that he was seeking protection in Australia in order to be able to live, work and earn some money to send home. He stated his reason for leaving Malaysia was due to the current political situation and social order. During the interview the applicant also stated that in [month] 2012 he was robbed of money while travelling on a bus by a group of people and he was the only person robbed although there were many people on the bus. He reported this matter to the police who took a report but did not follow up the case. He also stated that he told a number of newspapers about the robbery and the story was published. Following the news reports he stated he received an anonymous phone all threatening him. He did not report this to the police as he was in the process of coming to Australia.
12. During the interview, the applicant also stated that in Malaysia, Malays have authority over everything and the Chinese and Indian communities have minimum access to government facilities such as allowances. He gave an example that Malay people are given preference to education and if there are vacancies after Malays are given places, then Chinese will get access to admission to schools. There are also similar discriminatory practices with government incentives. He stated that discrimination such as this affects him and it is difficult to live without government allowances. He also referred to past and future political protests or gatherings against the Malaysian government and stated that these are not racially motivated but are used to pressure the Minister.
13. The delegate noted that the applicant has stated that he has never been physically harmed by any authorities due to his race in Malaysia and he does not fear them. Instead he respects the government. His objection is about the way they run the country.

Hearing 11 November 2015

14. A hearing was held on 11 November 2015 via video link from [another Australian State] as the applicant is currently being held in detention. The Tribunal was assisted by an interpreter in the Mandarin and English languages.
15. The applicant said he is [age] years old, having been born in [year]. He was last in Malaysia about [date] August 2012. He said he travelled to Australia directly. He told the Tribunal he had previously travelled to [Country 1], [and other countries]. He stayed in [one country] seven to ten days on holidays and he has been to [Country 1] three or four times. He said he has been to [another country] once where he stayed for one day. The longest the applicant stayed in [Country 1] was 26 days. He had travelled there to attend a [driving] course and intended to stay there but he failed the test and lost the chance of working there. The applicant confirmed he does have a [Country 1] driver’s licence.
16. The applicant told the Tribunal that he does not have a current Malaysian passport as this has expired. He said that he arrived in Australia on an Australian visa a visitor’s visa which was valid for three months. His family in Malaysia consist of his mother and [siblings]. His mother is not working and she is supported financially by her partner and [another son]. His [siblings] have their own families and they are working. [One sibling] is working in IT and [another sibling] works in a factory. His mother’s partner is working in his own business.
17. The applicant was asked why he came to Australia. He said he came because his life was threatened in Malaysia and he was persecuted. He said that [in]2012, he was on a bus and was robbed by [number] people. Of the five people he was later told by the police one may have been a [country] national and one [another country] national. The bus company later also confirmed this. He learned there had been previous incidents on the same bus. He reported the incident to the police and it was on the news. He said that the offenders watched the news and found him and they were not happy about what he had done and threatened him. The applicant said that the reason the robbery was covered by the media was because he told a politician about what happened to him. He said that because the police did not do much to protect him he went to see the politician. He told the Tribunal that he received many calls from the robbers and the police did not protect him.
18. The applicant said that during the robbery his money was stolen. He had about [amount] Malaysian ringgit on him. He said there were many other passengers on the bus and he yelled out for help but the other passengers were too afraid and did not help. After the robbery he went to police to report the incident. The police took a report and told him they would find out who did this. He said he did not receive protection and when he received threatening telephone calls he tried to complain but it was not accepted. He said that what happened to him was not a stand-alone case because there were other incidents on the same bus line and they knew there were two groups of people doing these robberies.
19. The applicant was asked how it came about that the case was reported to the media. The applicant said that since the police did not help him he went to a politician who provided assistance and who also provided the information to the media. It was covered by newspapers and the internet and television. After the story was reported his life and security was threatened. He was threatened by the robbers and was told to stop saying such things otherwise they will do something bad to him.
20. The applicant was asked why he believed he was he targeted for the robbery? The applicant said that he was not sure why he was targeted. He was not able to provide the evidence of the media coverage at the interview with the Department but he did provide it later. He faxed it and he can provide it again.
21. He said that the politician who helped him was in the catchment where the incident happened. He was told that in this way it will be able to stop people from hurting him further. He said that he thinks the political party the politician belonged to was the DAP party. He thinks the politician’s name was [name] and he is Chinese Malay.
22. The applicant said that the robbery took place in his hometown in [name]. At that stage, he was working in a store which sold [certain items]. He had been working there for a year and a half as a technician and was in charge of installation of [items]. He trained for this work on the job. He finished [grade] in high school and left because he was not doing well in his grades and started working. His father passed away more than 10 years ago.
23. The applicant was asked how soon after the robbery was he threatened. The applicant told the Tribunal he went back to work after the incident and three days after he went to the politician and after that he began to receive threats. The robbers called him on the telephone they told him they knew where he was and what he was doing and that is why he was scared for his life. He said they called him many times. The calls started three days after the robbery. He would get three to five and sometimes up to six calls per day. This continued until he left Malaysia. He had calls every day.
24. The applicant was asked if he complained to the police about the calls. The applicant said he had already had a police report done for the robbery and he had lost hope because they did not follow up. He did not return to the police to complain about the telephone threats.
25. The applicant was asked how he knew that the police had not followed up. The applicant said that although he did not personally contact the police, the politician was in contact with them to enquire about the progress of the case and there was no follow up.
26. The Tribunal expressed its concern to the applicant in relation to his not having included the robbery incident and the extent of the threatening phone calls in his protection visa application. The applicant said he did mention the incident to the delegate.
27. The applicant was asked when he made the decision to leave Malaysia to come to Australia. The applicant said he decided to come to Australia three months after he was robbed because his life was in danger. He decided to come to Australia because it is an ideal country and he had not been there before.
28. The Tribunal expressed its concern as to why the applicant did not go to the police to report the threats as these sounded very serious. The applicant said he did not go to the police because the police were not actively following his case and did not provide him with updates. They only produced a report and there was no other information. He has a copy of the police report. The applicant was asked how he knew that the police had not done anything to follow up the robbery. He said he knew because he was told that they would inform him if there was any progress. He does not know why they did not take it any further.
29. The applicant was asked why he thought the police were not pursuing the case, particularly as they had a politician pressuring them. In such a case, it would be expected that political pressure would mean the police would take the matter seriously. The applicant said that they did not take it seriously. He said he told the politician about the telephone threats but not the police. The politician told him that his life was in danger and suggested that when he goes out he needed to be careful. The politician did not suggest he go to the police because he was already following up with them. The applicant said he does not know if the politician told the police about these threats.
30. The applicant told his family about the robbery on the day it happened. He did not share his concerns with the whole family, only [one sibling] as he did not want to worry them. He told his family that he wanted to leave Malaysia as the economy was not good and he would go to work and live in Australia.
31. The applicant was asked if there was any other reason he fears returning to Malaysia.
32. The applicant said there was no reason to fear returning to Malaysia apart from being harmed by the robbers.
33. The applicant was asked what would happen if he were to return?
34. The applicant said that if he were to return to Malaysia, he is not sure what would happen but there will be danger and persecution. He believes that the robbers will continue their persecution against him if he returns.
35. The applicant was asked whether, to his knowledge these people had been arrested, charged or convicted by the police.
36. The applicant said he is not sure if this has happened but he knows that the bus company was also looking for these gangs. He does not know whether after all this time if they have been caught or punished. He was asked if he had any further news about any police progress from his [sibling]. The applicant said his [sibling] has not had any further news about these people but he did not give his [sibling] the politician’s details or the details for [his sibling] to communicate with the police in case there was any progress. He did not want to burden him.
37. The applicant was asked why be believes that the police would not protect him if these people continued to make threats against him. The applicant said he feels he was not being protected before he left and will not be protected in the future. He said the police only produced a report and did nothing further. That is why he thinks his life was not protected and this will continue in the future if he returns to Malaysia. The applicant said he left Malaysia in 2012 because he did not feel safe.
38. The applicant was asked whether he sought or obtained any advice about his options when his visa expired.
39. The applicant said he was holding a three month visa when he arrived and had no experience in contacting or communicating with the Department. He had no knowledge of various visas. He thought that if he went to the Department he would be sent back to Malaysia. He said he did not know anyone when he came to Australia. When he first arrived he went to a hotel and then to an urban area. He did not make friends and eventually found work via the internet. The work was two days per week and he could not get full time work because he did not have a work visa. He mainly did fruit picking. He came to live in [town] because he found a job on line where they provided a transport service to and from the fruit farm. He met other Mandarin speaking people but never discussed his situation with them as he had concerns that he would be caught and sent back to Malaysia as he was in Australia unlawfully. He found names of lawyers through advertisements in the newspapers and called to find out about visas but he was told they could not help him because his visa expired too long ago. They did not advise him about a protection visa because he did not disclose too much information when he spoke to them. He said he was found by the Department eventually through the police. They had come to the house where he was staying looking for someone else who was not there. The police checked his visa status and found he did not have a visa and the Department were informed.
40. The applicant was asked if there was anything else he would like to tell the Tribunal about his protection visa claim. He said he did not have anything further to add.
41. The Tribunal asked the applicant about his claim regarding discrimination of Chinese-Malays that was included in his protection visa application. He was asked if he had been discriminated against personally as a Chinese-Malay. The applicant said he had in his education. He said that Chinese schools receive less funding than Malay schools and so they need to fundraise for the school which makes students unable to concentrate as they have to make money. Also in Malaysian society there have been regular messages aimed at Chinese people to return to China. There are general discriminatory policies against Chinese. He is fourth or fifth generation Chinese born in Malaysia but the government is still telling them to return to China. This is hurtful to the Chinese community as they are hardworking people.

Assessment of claims

42. The Department’s file did not hold any copies of identity documents and essentially held the application forms completed by the applicant. The delegate has referred to the applicant having provided a Malaysian passport (expired), a photograph and fingerprints, a Victorian driver’s licence and a [Country 1] driver’s licence. The delegate refers to having also verified identity information using various Departmental databases and was satisfied as to the applicant's identity. The Tribunal accepts that these identity checks have taken place and finds that the applicant is a national of Malaysia. Therefore for the purposes of s.36(2)(a), the Tribunal accepts that Malaysia is the country of nationality and for the purposes of s.36(2)(aa), the Tribunal accepts that Malaysia is the receiving country.
43. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
44. The Tribunal is aware of the importance of adopting a reasonable approach in the findings 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.

45. The Tribunal also notes 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). The Handbook also states (at para 203):

The benefit of 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.

46. 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 applicant. When doing so, it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims. The Tribunal must also bear in mind that if it makes an adverse finding in relation to a material claim made by an 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] FCA 719; (1993) 93 FCR 220). However the Tribunal is not required to accept uncritically any or all of the claims made by an applicant. The Tribunal is also 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] FCA 1105; (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 546).
47. The Tribunal has also considered the published guidelines of the AAT MR Division in relation to credibility:

2.4 Findings made by the Tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A member should focus on what is objectively or reasonably believable in the circumstances.

2.5 The Tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.

2.6 In relation to protection visa matters, if the Tribunal is not able to make a confident finding that an applicant's account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant's account of past events is true, If, on the other hand, the Tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct. The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant's claim for a protection visa. For example, when assessing an applicant's claims against the Refugees Convention, if an applicant is disbelieved as to his or her claims. The Tribunal must consider whether, on any other basis asserted, a well-founded fear of persecution exists. However the Tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

48. The Tribunal also notes that it is legitimate to take into account the applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347).
49. The applicant arrived in Australia [in] August 2012 but did not lodge his protection application until [date] August 2015. He was unlawfully in Australia for close to three years after his original visa expired.
50. The Tribunal questioned the applicant about the delay in making an application for a protection as he feared returning to Malaysia. His evidence was essentially that he was unfamiliar with the visa system in Australia and he did not want to return to Malaysia. He said he did not confide his situation to people he worked with or lived with and made an attempt to get advice from Chinese speaking lawyers who he said were unable to help him as his visa had expired too long ago. He admitted he did not disclose much information in these contacts about his situation.
51. The applicant appeared to be a reserved man and the Tribunal accepts that it was reasonable for him not to discuss his situation with others in fear of being returned to Malaysia. The Tribunal considers however that the onus is on the individual to make enquiries and familiarise themselves with options in relation to remaining lawfully in Australia. While the Tribunal accepts it is possible that the applicant was not familiar with protection visas, in particular, he has not made any reasonable attempts to inform himself about what he needed to do to remain lawfully in Australia.

Robbery incident and claimed threats

52. The Tribunal notes that although the claims about his being the victim of a robbery was no included in the protection visa application, the applicant did talk about this during an interview with a Departmental officer. The Tribunal is prepared to accept that this was not included in the application due to his reliance on others to complete the form and the information provided in that application is not very detailed. The Tribunal notes the applicant has been consistent in his claims regarding being the victim of a robbery while he was on a bus prior to coming to Australia. He provided some detail of this during the hearing and offered to provide the Tribunal with a police report and copies of media coverage of the incident stating that he had previously faxed some coverage to the Department. The Tribunal informed the applicant there were no such articles on the Department’s file.
53. On balance, the Tribunal accepts the applicant was the victim of a robbery while travelling on a bus in [month] 2012 and again on balance the Tribunal accepts that he did report the incident to the police. However, the Tribunal considers it is highly doubtful that the police would not pursue a criminal investigation particularly in light of his evidence that these events had occurred before and there were other victims and the bus line was also concerned about the gangs who carried out the robberies. In addition, his evidence was that a State politician was putting pressure on the police to pursue the matter. The Tribunal has ascertained that [name], who was the politician the applicant claims to have approached, was indeed a member of [a] State Assembly until 2013 and a member of the Democratic Action Party. The applicant’s evidence as to police inaction is not credible and the Tribunal does not accept it.
54. The Tribunal also had concerns with the applicant's account regarding the resulting consequences of the robbery which he claims were the reasons he left Malaysia to travel to Australia. He claims that after the incident was covered by the media he was contacted by the perpetrators and threatened. He told the Tribunal that he was essentially threatened multiple times a day, every day from [month] until August 2012 when he left Malaysia. The Tribunal expressed its concern to the applicant that given the sheer number of threats he received, he did not report these incidents to the police or seek support or advice about these as he was fearful of his safety. The Tribunal was not satisfied with the applicant's answers as to why he did not do so, namely that he had been disappointed that the police had not followed up after the robbery. His evidence as to how he knew there had been no follow up was less than satisfactory. The Tribunal does not accept that a person who is threatened continuously on a daily basis and who is in fear of his personal safety would not take some action such as reporting the matter to the police, particularly as it was related to the previous matter reported to them. On the one hand, according to his evidence, the applicant took initiative in approaching a politician for assistance and getting media coverage, and on the other hand he appears to have acted passively once the alleged threats commenced.
55. The applicant’s evidence was that he was unaware if there had been any progress made to apprehend these people since he left Malaysia as he had not made any enquiries to ascertain the progress of the case. The Tribunal found this to be inconsistent with the claim to fear the people who had robbed him. The Tribunal considers that the applicant has embellished his evidence in relation to the robbery especially about the claimed threats he says he had received.
56. The Tribunal notes that in the DFAT Country Report on Malaysia, DFAT advise that overall the Royal Malaysian Police which is responsible for law enforcement nationwide, is considered by credible sources to be an effective force with reasonable capacity levels although they have a demonstrated history of using excessive force (4.1). There has been no evidence provided to the Tribunal to demonstrate that the police have failed to investigate the robbery incident in which the applicant was involved. The applicant's evidence is that he did not know what, if any progress has been made. In addition, the applicant did not approach the police to ask for protection or to provide them with an opportunity to investigate the multiple alleged threats he received from [month] to August 2012. There has been no evidence provided that the authorities in Malaysia are unable to provide the applicant with protection.
57. Based on the available evidence the Tribunal is not satisfied that the Malaysian authorities would fail to protect the applicant from harm if he were to return. Given the passage of time and the applicant's vague claims that he continues to fear harm by the perpetrators of a crime against him which occurred in [month] 2012, the Tribunal finds he does not face a real chance of serious harm or a real risk of significant harm for this reason.

Discrimination as a Chinese Malaysian citizen

58. The Tribunal accepts that there are some laws in Malaysia that provided benefits to Malaysian citizens of Malay ethnicity. The most recent DFAT report on Malaysia states:

3.2 The constitution gives ethnic Malays and other indigenous groups, collectively known as bumiputera, special status. Government regulations and policies implement preferential programs to boost the economic position of bumiputera. Such programs promote increased opportunities for bumiputera to access higher education, careers within the public service, commercial opportunities and housing.^[1]

59. In light of the applicant's evidence that he has not been personally discriminated against, rather, Chinese people as a whole are discriminated against by the laws and government of Malaysia, the Tribunal questioned the proposition that any discrimination that occurred could be described as serious or significant harm.
60. According to the DFAT report on Malaysia in relation to Chinese Malayans:

3.5 Malaysian Chinese constitute one of the largest overseas Chinese communities in the world and are the second largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against ethnic Chinese in Malaysia.

3.6 Malaysian Chinese make up a high percentage of the professional and educated class and dominate business and commerce sectors. The majority of ethnic Chinese are concentrated in the west coast states of Peninsula Malaysia with significant percentages (30 per cent and above) living in the large urban centres, including Kuala Lumpur, Penang, Johor, Perak and Selangor.

3.7 Malaysian Chinese freely participate in political life and are represented by ministers in the current cabinet and in opposition parties. The largest Chinese party was traditionally the Malaysian Chinese Association (MCA), a component of the Barisan National (BN) coalition. The MCA won seven seats at the 2013 election, down from 15 in 2008. An increasing number of Chinese support the Democratic Action Party (DAP), one of three key opposition parties of the Pakatan Rakyat (People’s Alliance) coalition. The DAP won 38 seats at the 2013 election, a significant increase from the 28 seats in 2008. There are comparatively fewer ethnic Chinese in the Malaysian civil service. The exclusive use of the Malay language may be a restriction in this regard.

3.8 Malaysian Chinese generally have no problems in accessing public primary or high school education. However, despite the removal of government-sanctioned ethnic quotas for public universities in 2002, admission decisions remain heavily biased towards ethnic Malays. Malaysia’s matriculation programs favour bumiputera students applying for entrance to state universities. Some ethnic Chinese are not awarded a place in public universities despite having perfect high school matriculation scores. Since the formation of private universities in Malaysia, ethnic Chinese have consistently formed the bulk of the students within Malaysia’s non-government universities.

3.9 DFAT assesses that ethnic Chinese generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.

61. The Tribunal also notes that there was no restriction on political activity, that the second largest party in Malaysia was a multi-ethnic party called DAP. The Tribunal noted that relevant country information including the US Department of State Country Reports on Human Rights Practices for 2013 for Malaysia did not identify there being does not refer to violence or danger for Chinese nationals.
62. The applicant in this case does not claim to have been denied the right to vote or seek opportunities available to him. His evidence is that he attended school but stopped because he was not academically able to continue but not due to discriminatory factors to do with his ethnicity. He had been employed as a technician prior to coming to Australia and did not claim to have been denied work opportunities in Malaysia because of his ethnicity or any other form of discrimination. Based on the available evidence, the Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm for this reason.
63. The Tribunal finds that the applicant does not have a real chance that, if returned to Malaysia, that he would be persecuted for one or more of the reasons mentioned in paragraph 5J(1)(a). The Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons.
64. 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).
65. 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).
66. 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

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

Sophia Panagiotidis
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

...

cruel or inhuman treatment or punishment means an act or omission by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c) that is not inconsistent with Article 7 of the Covenant; or

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
...

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 them 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 illtreatment 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 wellfounded 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 wellfounded 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

...

(2A) A noncitizen will suffer significant harm if:

(a) the noncitizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the noncitizen; or

(c) the noncitizen will be subjected to torture; or

(d) the noncitizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the noncitizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a noncitizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the noncitizen to relocate to an area of the country where there would not be a real risk that the noncitizen will suffer significant harm; or

(b) the noncitizen could obtain, from an authority of the country, protection such that there would not be a real risk that the noncitizen 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 noncitizen personally.

...

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^[1] DFAT Country Report Malaysia, 3 December 2014