1505506 (Refugee)

[2017] AATA 795

1505506 (Refugee) [2017] AATA 795 (26 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505506

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Paul Windsor

DATE:26 April 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Migration Act.

Statement made on 26 April 2017 at 4:01pm

CATCHWORDS
Protection visa – Malaysia – No Convention link – Love marriage – Family violence – Organised criminal gangs – Honour killings – Complementary protection – Tamils – Withheld state protection – Police corruption

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R(1)(b), 499
Migration Regulations 1994 Schedule 2

CASES
MIAC v SZQRB (2013) 210 FCR 505
MIAC v MZYYL (2012) 207 FCR 211

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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Malaysia, applied for the visas [in] November 2014 and the delegate refused to grant the visas [in] March 2015. The delegate found that the claimed harm feared did not have a Convention nexus. In relation to the Complementary Protection criterion, after considering relevant country information the delegate found that the principal applicant could obtain from the Royal Malaysian Police (RMP), protection such that there would not be a real risk that he would suffer significant harm from his father-in-law and ‘the gang’. In reaching this conclusion the delegate noted that the principal applicant had not taken the opportunity offered to him to have an interview to expand on his claims, and it was not clear why the principal applicant, having sought the assistance of the RMP in the past, now thinks that the Malaysian authorities are unable or unwilling to protect him.

3. The applicants applied to the Tribunal for review of this decision on 22 April 2015.

4. The applicants appeared before the Tribunal on 19 April 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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).

8. 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.

9. 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’).

   Mandatory considerations

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal took 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 any country information assessment 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

11. The principal applicant claims to be a citizen of Malaysia who was born in Ipoh in Perak state Malaysia on [date].  In his application he indicated he is of Hindu ethnicity, follows the Indian religion and speaks, reads and writes English, Malay and Chinese.  He indicated that he was married [in] March 2012.  He departed Malaysia legally [in] October 2013 and arrived in Australia [the next day], entering on a [temporary] visa[1].  

    [1] See folios 2-21 of Departmental file [number].

12. The secondary applicant applied as a member of the family unit of the principal applicant who does not have their own claims for protection.  In her application she indicated that she was born in [a town] in Perak state Malaysia on [date], is married, and speaks, reads and writes English, Malay and Tamil[2].

    [2] See folios 30-36 of Departmental file [number].

13. The applicants submitted a copy of their marriage certificate indicating they were married in Ipoh in Perak state Malaysia on [a date in] March 2012[3].

    [3] See folio 1 of Departmental file [number].

    Summary of claims from the Protection visa application

14. The  applicants’ claims for protection, as detailed in the principal applicant’s Form 866C[4], are summarised as follows:

    • They left Malaysia due to a family problem because of their love marriage.
    • After their marriage was registered, his wife’s father attacked him to make him forget about and leave his wife.
    • He fears that if they return to Malaysia his wife’s father and ‘the gang’ will attack them, threatening their lives and preventing them from living together as husband and wife.
    • His father-in-law said he will kill the principal applicant if he sees him together with his wife.
    • No-one is able to help or protect them.

    [4] See folios 19-22 of Departmental file [number].

15. In support of the application, the applicants provided untranslated copies of two police reports (dated [in] December 2011 and [in] March 2012) as well as a number of education, sporting and employment related documents[5].

    [5] See folios 97-112 of Departmental file [number].

    Review submissions

16. On 23 March 2017 the applicants’ representative provided detailed statutory declarations dated 3 February 2017 from both applicants in support of their claims.  Additionally, an English translation was provided of the police report dated [in] March 2012, as well as copies of ambulance service invoices, hospital admission forms, letters from the secondary applicant to the principal applicant, and photographs relevant to the applicants’ statements[6].

    [6] See folios 31-53 of Tribunal file 1505506.

17. On 18 April 2017 the applicants’ representative provided a supporting submission[7].   In this submission she asserts that the applicants fear serious harm, including death, at the hands of the secondary applicant’s father and members of his gang ([Gang 1a]) if they return to Malaysia.  It is asserted that the applicants face both direct targeted serious harm and direct and indirect threats amounting to serious harm by the secondary applicant’s father and his gang members for non-Convention reasons but where the Malaysian law enforcement authorities discriminatorily withhold protection due to the applicants’ Tamil race and their religion (not being Islam).   It is submitted that the applicants would be compelled to modify their behaviour and go into hiding permanently to avoid the Convention related harm they fear.

    [7] See folios 61-71 of Tribunal file 1505506.

18. It was also submitted that, in the event the Tribunal is unable to establish a nexus between the Convention and the harm feared, the applicants are owed protection pursuant to s.36(2)(aa) due to there being a real risk they would suffer significant harm from the secondary applicant’s father and the members of organised criminal gangs with which he is associated, as well as law enforcement authorities.

    Hearing of 19 April 2017

19. At the hearing the applicants’ representative provided a translated copy of the police report of [a date in] December 2011[8].  This indicates that on [that day] the principal applicant made a police report at the [Town 1] Police Station (in response to a police report from the secondary applicant stating that he had threatened to kill her) stating that they had ended their relationship and he had not contacted her or threatened her since they ended their relationship.

    [8] See folios 57-60 of Tribunal file 1505506.

20. The applicants spoke at length and in detail regarding their circumstances in Malaysia.  While neither looked at nor read from their lengthy statutory declarations or any other notes, both provided spontaneous and detailed evidence which was consistent with their declarations.  The principal applicant indicated that he first met his now wife in 2000 when he was [age] years of age, and detailed a number of incidents from 2003, when he was [age] years old, through until 2013 when he departed Malaysia, where he was threatened, harassed, and/or physically harmed by his wife’s father or associates of his wife’s father, in an attempt to stop him associating with his now wife.  Additionally, the secondary applicant claimed that her father is the leader in Perak state of the primarily ethnic Indian [Gang 1a] branch of the [Gang 1].  She outlined two incidents (in 2006 and in 2012) where she was badly beaten by her father for associating with her now husband against her father’s wishes and instructions (the 2012 incident resulting in her being hospitalised with injuries including a [fracture]), and how her father sought to force her into an arranged marriage with another man in an attempt to stop her from pursuing a relationship with her now husband.

21. The Tribunal queried the applicants regarding the period of nineteen months they spent in Malaysia following their marriage [in] March 2012 (until they departed Malaysia [in] October 2013); why they delayed their departure from Malaysia for five weeks after obtaining passports and visas for Australia in September 2013; why they delayed applying for protection for 13 months after arriving in Australia; why they included so little information regarding their claims in their Protection visa application; and why they did not act on the opportunity extended to them by the Department in January 2015 to contact the Department to request an interview to discuss their claims to protection.  These matters are discussed further below.

22. The Tribunal also discussed with the applicants country information regarding ethnic-Indian/Tamil and Hindu Malaysians, the Royal Malaysian Police, Malaysian law and police actions relating to criminal gangs in Malaysia, and the operation of the Malaysian judiciary and human rights bodies in Malaysia.

    Findings and reasons

23. The issues in this review are whether there is a real chance that, if the applicants returned to Malaysia, they would be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act 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 the applicants will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

24. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Applicants’ identities

25. On the basis of the copies of the applicants’ Malaysian passports provided to the Department, and noting the delegate’s findings in relation to this matter, the Tribunal finds that the applicants are citizens of Malaysia[9]. There is nothing in the evidence before the Tribunal to suggest that either of the applicants has a right to enter and reside in any country other than Malaysia. Therefore the Tribunal finds that the applicants are not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicants are nationals of Malaysia, the Tribunal also finds that Malaysia is the applicants’ ‘receiving country’ for the purposes of s.36(2)(aa).

    Assessment of claims

    [9] See folios 67-70 and 93-96 of Departmental file [number].

26. The applicants have indicated that they fear returning to India because the secondary applicant’s father has not ‘made peace’ with their relationship and they believe it will only be a matter of time before he and his associates find and hurt them.  They claim that he is capable of extreme violence, has gang member associates who he can instruct to cause trouble and commit acts of violence, and has influence over members of the police.  They believe that because of his gang contacts and influence, including with members of the police, he could find them wherever they resided in Malaysia, including through corruptly accessing information obtained through Malaysia’s MyKad identity card system.  The secondary applicant stated that she left her father’s home and married without his consent and her actions have caused her father to lose respect and prestige which makes him even angrier with her than when he beat her in the past.

27. The Tribunal finds that these claims relate to an internal family dispute and considers that the harm the applicants fear is not for any of the five Convention reasons listed in Article 1A(2) of the Convention, as outlined at paragraph 8 above.  The Tribunal does not accept the assertions by the applicant’s representative that there is a Convention nexus to the claims because Malaysian law-enforcement authorities have and would discriminatorily withhold protection for the Convention reasons of the applicants’ race (Indian or Tamil) and/or religion (non-Islam).  The Tribunal does not accept this argument for two reasons.  Firstly, the applicants appear to have had dealings with members of the Royal Malaysian Police that were both positive and negative.  The principal applicant claimed he received (positive) advice from a police officer who was the father of one of his (ethnic Indian) friends.  He also indicated that, prior to their marriage, a police officer told his wife that if she wanted to go with him she could as she was 21 years old, and while counselling his wife to think carefully about what this might mean for their futures, told them it was up to them what they wanted to do.  The principal applicant indicated that he told the police officer that it was not his intention to take his now wife from her family as it was their intention to ‘get married properly with the consent’ of their families.  Additionally, the applicants were able to make a police report at the Perak police station after they were married indicating that their marriage was voluntary.  To the extent that they had negative experiences with the police it was with the Police [senior officer] who was in charge of the [Town 1] Police Station (an ethnic Indian officer) and the applicants indicated this was because he is a friend of the secondary applicant’s father (also an ethnic Indian).  The Tribunal considers that there is nothing in the applicants’ evidence regarding their interactions with the Malaysian police to suggest protection was discriminatorily withheld from them on the basis of their race or religion.  Second, and as discussed with the applicants at the hearing, country information from the most recent Department of Foreign Affairs and Trade (DFAT) Country Information Report on Malaysia[10] indicates that DFAT assesses that Indian Malaysians and Hindus generally do not experience discrimination or violence on a day-to-day basis. The report also indicates that credible local and international sources consider the Royal Malaysian Police (RMP) to be a professional and effective police force, while noting that the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption, and acknowledging that corruption has been recognised as a concern. In her submission the representative made reference to Malaysian government affirmative action policies which favour the majority ethnic Malay (generally Muslim) and indigenous communities but while DFAT assesses these policies may result in low levels of discrimination against Indian Malaysians when attempting to gain entry into the state tertiary education system or the civil service, DFAT does not indicate that these policies result in ethnic Indians or Tamils or Hindus being denied state protection. Consequently, the Tribunal is not satisfied that there is any Convention basis for the harm feared, and concludes therefore that neither of the applicants meets the requirements of s.91R(1)(a) and therefore s.36(2)(a) of the Act.

    [10] DFAT Country Information Report, Malaysia, 19 July 2016, Sections 3.1, 3.15, 3.51 and 5.5.

    Complementary protection criterion

28. Given the Tribunal’s finding that neither of the applicants is a refugee for the reasons set out above, the Tribunal has gone on to consider the application of s.36(2)(aa) to the applicants’ circumstances.

29. In considering whether the applicants meet the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm. As indicated in paragraph 25 above, the Tribunal finds that Malaysia is the applicants’ ‘receiving country’ for complementary protection purposes.

30. In considering the level of risk of the applicants suffering significant harm should they be returned to Malaysia, the Tribunal notes that the threshold of the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.

31. The Tribunal notes that ‘significant harm’ for the purposes of complementary protection is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out them; or they 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.

32. In this case the Tribunal has considered whether the applicants face a real risk of significant harm from the secondary applicant’s father and/or his associates in [Gang 1a] and/or from corrupt police contacts of the secondary applicant’s father. 

1. The Tribunal found the applicants to be credible witnesses.  Their oral evidence to the Tribunal was spontaneous and detailed and generally they did not appear to embellish their claims.  Their evidence was consistent with the detailed written claims in their statutory declarations of 3 February 2017.

2. The Tribunal accepts that the applicants first met in late 2000 and that their relationship gradually developed over the ensuing years.  The Tribunal accepts that the secondary applicant’s father opposed the relationship from the outset and in 2003 arranged for a group of men to physically intimidate and warn-off the principal applicant, during which incident he sustained a [fracture].  The Tribunal accepts that in 2005, after the applicants danced together at [an] event, the secondary applicant’s father held a knife to the principal applicant’s throat and warned him to forget his daughter, and that he beat the secondary applicant.  The Tribunal accepts that following this incident the applicants maintained contact with each other in secret.  The Tribunal accepts that the secondary applicant was badly beaten by her father in October 2006, sustaining a cut [located], and then sent away to live with [a Relative A] in [another city] for two years when her father discovered that she had been given a mobile phone by the principal applicant and that they were in contact using this phone.

3. The Tribunal accepts that the applicants reconnected in January 2009 when they saw each other in a shopping mall in [Town 1] in Perak state (where both families lived).  The Tribunal accepts that after this, despite the secondary applicant’s father taking steps to closely control and monitor her movements, the applicants maintained contact while both were living away from home while undertaking tertiary level study.  The Tribunal accepts that the secondary applicant’s parents decided that she should enter into an arranged marriage with a partner of their choosing whom she did not wish to marry.  The Tribunal accepts that when the secondary applicant’s father became aware that the applicants were still seeing each other, he arranged for men to assault the principal applicant, who was able to flee but was involved in a serious car accident while fleeing the would-be assailants.  The Tribunal accepts that the applicants sought to resolve the matter by trying to convince the secondary applicants’ parents to accept their relationship, with the assistance of police and an influential family friend ([Mr A]), but this was to no avail and the secondary applicant subsequently was again badly beaten by her father, resulting in her being hospitalised.  The Tribunal accepts that the applicants were forced to file false police reports against their will in December 2011 (including the report dated [on a date in] December 2011 provided by the applicants), due to the intervention of the senior police officer at the [Town 1] Police Station, who is a friend of the secondary applicant’s father and acted on his behalf in an attempt to end the applicants’ relationship.

4. The Tribunal accepts that the applicants then sought to force the issue by marrying in a registry office [in] March 2012, in the hope that the secondary applicant’s parents would ‘have to accept the marriage even if they do not approve’.  The Tribunal accepts that, after they were married, on the recommendation of the principal applicant’s influential family friend [Mr A] they made a police report in Ipoh, the capital of Perak state, so that the principal applicant could not be accused of kidnapping the secondary applicant and making her marry him against her will.

5. After the applicants married [in] March 2012 they remained in Malaysia until [a date in] October 2013.  They claimed that they hoped the principal applicant’s influential family friend [Mr A] could convince the secondary applicant’s father to accept their marriage, however, this was not the case.  They claim that the secondary applicant’s father came to the applicant’s family home looking for his daughter and threatened to kill the principal applicant if he found him.  They also claim that gang members disrupted the business premises which the principal applicant had been using as well as his mother’s business.  The applicants claim that they lived in hiding in Kuala Lumpur staying with friends of the principal applicant.  They claim that the secondary applicant did not work or go out.  The principal applicant claims that he worked in two different [business 1] positions in Kuala Lumpur but had to leave both jobs after he was advised that people were showing his picture around and asking if anyone knew him.  They indicate that while they have been in Australia the secondary applicant’s father and his gang associates have been harassing the principal applicant’s family, forcing them to move home to a location an hour away.  Despite this they claim Indian people still come and harass the family and people came to and disrupted the funeral of the principal applicant’s [Relative B], asking if the applicants were present.  

6. The applicants claim that the secondary applicant’s father is a senior figure in a Malaysian criminal gang, [Gang 1a] which they claim is a branch of [Gang 1].  In her statutory declaration the secondary applicant claims her father is the leader of the [Gang 1a] gang for all of Perak state, that he is a very powerful person, his name is known all over Malaysia, and if he wants something done anywhere in Malaysia he can arrange that straightaway by making a phone call.  The applicants provided copies of photographs which they claim are of the secondary applicant’s father at a [Gang 1] function, wearing his [Gang 1] membership [clothing].  The Principal applicant claims that his brother is also involved with a Malaysian criminal gang, [named] (which he claims his brother joined to be able to provide the principal applicant some level of protection), which is a rival gang to [Gang 1], and that his influential family friend [Mr A] was the leader of another branch of the [Gang 1].  He indicated that this family friend went to school with his father and they have remained good friends, even though the principal applicant’s father is not involved with gangs.

7. The Tribunal had some concerns with the applicants’ evidence in relation to Indian criminal gangs and the claimed involvement of some family members and family friends with these gangs.  The most recent DFAT Country Report[11] cites Al Jazeera as reporting in 2014 that there were approximately 49 illegal gangs operating in Malaysia, with almost 40,000 members.  DFAT comments that the majority of street-level gang members tend to be Indian Malaysians, reflecting their relative economic vulnerability.  DFAT notes that while high level crime including drug trafficking is more typically undertaken by Malaysian Chinese gangs, all gangs have the potential to engage in extortion and loan shark practices, and comments that obtaining details on these activities is difficult as victims of gang-related crimes do not generally report to law enforcement.

   [11] DFAT Country Information Report, Malaysia, 19 July 2016, section 3.78.

8. An August 2013 article in the Malaysian newspaper The Sundaily indicated that there had been a ‘mushrooming of Indian-dominated [gangs …]’[12].   An August 2013 BBC News article refers to Malaysian gangs having ‘[used social media] to post threats and “wanted” notices against rivals. The article mentions a report by [a named] newspaper that ‘Members of criminal groups - [using various names] - have blatantly open profiles, where they post threatening status updates and photographs’[13].   According to a September 2013 article in The Star Online, police had reported a more than a 90 per cent drop in robbery with firearms nationwide and a 7.34 per cent decline in the overall crime index since the launch of the anti-gang operation Ops Cantas Khas in August 2013.  The police had arrested 11,036 suspects, including 304 secret society members[14].  It was reported that Inspector-General of Police, Tan Sri Khalid Abu Bakar, had said that ‘the success of Ops Cantas Khas had made the gangs desperate, leading them to group together to fight the law’.  A September 2013 report in [a named newspaper][15] indicated that as part of ‘Ops Cantas’, Malaysian authorities had detained around 4,800 people and the Home Ministry had made public the names of 30 notorious gangsters belonging to [various gangs].  The report details the names of the gangsters including [named gang] leaders ([some] of whom were from Perak).  More recently, articles from [a different] news service in February and March 2017 indicate that Ops Cantas Khas activities continue and that Malaysian police detained 34 members of ‘the notorious [named gang]’, said to be responsible for a series of high profile murders…’[16] .  The reports indicate that offences related to organised crime are punishable under Section 130V(1) of the Penal Code with sentences of up to 20 years in prison.

   [12] [Deleted.]

   [13] [Deleted.]

   [14] ‘Colleague’s death has spurred us on, say police’ 2013, The Star Online, 24 September < Accessed 15 July 2014

   [15] [Deleted.]

   [16]

9. In discussing with the applicants relevant country information regarding ethnic Indian gangs, including [Gang 1], the Tribunal put to the applicants that while there was reporting about the activities of ethnic Indian gangs including [Gang 1] and [Gang 1a] from 2013 and 2017, including reporting that named leaders, online searches in relation to both the secondary applicant’s father and the principal applicant’s influential family friend, failed to turn up any information regarding these individuals being involved in any gang-related activities.  The Tribunal indicated to the applicants that this caused it to have doubts regarding their claims that these individuals were senior gang figures in Perak state.  The Tribunal also put to the applicants that while it was clear from country information that there is corruption within the ranks of the Royal Malaysian Police, It is also clear that there have been major police operations targeting criminal gangs, which have resulted in many arrests and a reduction in gang-related crime.  The applicants responded that not all gang leaders have a public profile and that while the government has taken some action against gangs the action that has been taken to-date is not relevant to their case as the secondary applicant’s father remains in the community.  They commented that their problem is that the secondary applicant’s father did not give his permission for their relationship and that while they do not know when he will come, he will come at some stage to take revenge against them.  They commented that he can pay money to get people to kill them.  The Tribunal has doubts that the secondary applicant’s father is the leader of a faction of [Gang 1] ([Gang 1a]) ‘for all of Perak’ as claimed by the secondary applicant or ‘a leader of the [Gang 1a] gang in Perak’ as indicated in the representative’s submission.  Similarly, The Tribunal has doubts that the principal applicant’s influential family friend ‘was the leader of the [Gang 1]’ as claimed by the principal applicants.  Notwithstanding these doubts, based on the Tribunal’s overall assessment of the applicant’s evidence and their overall credibility, the Tribunal accepts that these figures are or have been involved with [Gang 1] and have a degree of influence within the gang and that the secondary applicant’s father has in the past and could in the future call upon members of Indian criminal gangs to monitor, harass, threaten and physically harm the applicants.

10. The Tribunal queried the applicants that they had remained in Malaysia, living in Kuala Lumpur, for 19 months after they were married and were not found by the secondary applicant’s father or associated gang members.  The applicants reiterated that they were in hiding over that time, avoiding all contact with their families and that the secondary applicant did not work or go out, and the principal applicant worked at night at a [business 1] until he was told that people were showing his photo and asking after him, and then worked at another [business 1] under an assumed name, until again told that people had been inquiring about him.

11. The Tribunal also asked the applicants why they delayed travelling to Australia for five weeks after obtaining their passports and visas in September 2013.  The Principal applicant commented that he had not wanted to come to Australia but had hoped that his family friend [Mr A] could convince his wife’s father to accept their relationship.  He indicated that he thought about going to Sarawak and the decision to come to Australia was influenced by [Mr A], who eventually suggested they go to Australia and stay with a friend of his who was living in [Town 2] while he continued to seek to broker a resolution to their issue.  He indicated that they did not apply for protection on arrival in Australia (and until November 2014) because they always hoped they could return to Malaysia and it was only over the passage of time that they realised this would not be possible.  In this regard the applicants indicated that they tried farm work for a few days, but found it not to their taste, and have largely been living on savings, charity and money borrowed from family and friends.  They indicated that they are living in the garage of a family in [Town 2] who have befriended them and for whom they do odd jobs such as cleaning [equipment] in the family’s [business].

12. The representative commented that the applicants tried over an extended period to make their relationship acceptable to the secondary applicant’s family.  She said they tried to win the secondary applicant’s father over through the use of intermediaries and saw getting married as a last step available to them to have the relationship accepted.  She commented that they would rather be in Malaysia with their families and noted that the principal applicant had two offers of government employment in Malaysia (in October 2013 and March 2014) which he was not able to accept (copies of these letters are among the untranslated documents provided to the Department with the Protection visa application).  She commented that both applicants are well-educated and ‘driven’ (which was evident to the Tribunal from their evidence at the hearing) but are living on charity in Australia.  The representative commented that they are caught up in a personal feud and the arrest of some gang members by authorities in Malaysia does not mean that the risk to the applicants has gone, noting that there are many extremely violent young Indian men who are involved with these gangs.

13. The representative also referred to country information regarding corruption in Malaysia.  In this case it was claimed that the Police [senior officer] at the local ([Town 1]) police station is a friend of the secondary applicant’s father and had forced the principal applicant to sign the police record of [a date in] December 2011 indicating that he had terminated his relationship with his former girlfriend (now wife).  The applicants had provided to the Department untranslated copies of this police report and the police report they subsequently made at the Ipoh police station after their marriage was registered [in] March 2012.  As these reports were untranslated, it appears that the Departmental delegate did not afford them any weight other than as evidence that the applicants had sought assistance from the RMP in the past.

14. The delegate also indicated that the applicants had not taken an opportunity extended to them to have an interview with the Department regarding their claims, commenting that had they done so, he would have questioned them regarding why they now consider the authorities are unable or unwilling to protect them.  When queried about this and why the written claims they included with their Protection visa application were so brief, given the extensive written claims they had subsequently provided, the applicants indicated that they were unrepresented at this time, having declined to take assistance from a ‘contactor in the community’ who said he could help them with the application for $[amount].  Instead they followed other advice that they could lodge an application for protection by themselves for $35 and would be called to an interview where they could then explain their claims in person.  The applicant’s claimed that when they received the acknowledgement letter from the Department they focused on the appointment to provide personal identifiers and did not notice the advice on page three of the same letter advising that they should contact the Departmental within seven days if they wished to arrange an interview to discuss their claims.  In relation to this matter, the representative commented that while the applicants expected that the Department would contact them to arrange an interview at which they could discuss their claims, the Department changed its practice around this time to one where the Department did not automatically interview all applicants but for certain nationalities, including persons from Malaysia, left it to the individuals to indicate they wished to be interviewed regarding their claims.

15. On balance, the Tribunal accepts the applicants’ explanations regarding how they were able to remain in Malaysia for 19 months after their marriage without being found and harmed by the principal applicant’s father or his gang associates.  The Tribunal accepts the reasons they put forward for delaying their departure from Malaysia after they obtained their passports and visas, for the delay in them applying for protection in Australia, why they included so little information in their Protection visa application, and why they did not contact the Department regarding attending an interview with the Department to discuss their claims to protection.

16. The Tribunal accepts the applicants’ claims of past harm in Malaysia. The Tribunal considers that the assaults on the applicants and the threats of assault amount to cruel or inhuman treatment and degrading treatment as defined in s.5(1) of the Act. The Tribunal accepts that the secondary applicant’s father has not accepted their relationship and there are ongoing threats against the applicants. Consequently, the Tribunal accepts that there remains a risk of further significant harm in the future, including a risk that one or both of the applicants might be killed. The Tribunal cannot find that this risk is remote or far-fetched. Given these considerations, and for reasons set out above, the Tribunal is satisfied that the applicants face a real risk of significant harm from the secondary applicant’s father, and/or gang associates of the secondary applicant’s father, and/or corrupt police who might work under the instructions of the Police [senior officer] in charge of the [Town 1] Police station, who the Tribunal accepts is a friend of the secondary applicant’s father, and in the past has threatened and intimidated the applicants in an attempt to force them to abandon their relationship. The Tribunal is satisfied that the harm involves severe physical or mental pain or suffering or both, which is intentionally inflicted on the applicants. The Tribunal is satisfied that the harm also involves an act that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is therefore satisfied that the treatment that the applicants will be subjected to amounts to cruel or inhuman treatment or punishment or degrading treatment or punishment, as defined in s.5(1) of the Act.

17. The Tribunal has considered if the applicants could obtain from the Malaysian authorities protection such that there would not be a real risk that they would suffer significant harm as referred to under s.36(2B)(b).

1. According to the Department of Foreign Affairs and Trade’s (DFAT) most recent country information report on Malaysia, law enforcement entities operate at both federal and state level[17].  According to the United States Department of State’s Country Report on Human Rights Practices for 2015, Malaysia has a functioning legal system and the “approximately 102,000-member Royal Malaysia Police force reports to the home affairs minister”[18]. Such country information indicates that there are general measures of state protection in place in Malaysia and generally functioning laws. Nonetheless, the Tribunal notes that in order to satisfy s.36(2B)(b), court authority requires that the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one: see MIAC v MZYYL[19]. The Tribunal also notes the Department’s Complementary Protection guidelines relevantly state:

   The fact that a receiving state has generally functioning laws and standard protections in place that are available to the general community is one element that may be taken into account in determining whether a person faces a real and personal risk of significant harm. Nevertheless, an individual may still face a real risk of significant harm even where a receiving state has a functional system of state protection in place.[20]

   [17] DFAT Country Information Report Malaysia, 19 July 2016 at 5.1

   [18] US Department of State 2016, Country Reports on Human Rights Practices for 2015 - Malaysia, Executive Summary,

   [19] MIAC v MZYYL (2012) 207 FCR 211 at [40]

   [20] Department of Immigration and Border Protection, PAM3 ‘Complementary Protection Guidelines’, section 38 as re-issued 21 May 2015

2. In this regard DFAT notes in its report that whilst credible local and international sources consider the Royal Malaysian Police (RMP) to be a professional and effective police force, the quality of their responses varies depending on levels of training, capacity or engagement in corruption.  It is also noted that RMP officers receive limited training, particularly on domestic violence; police officers are paid one of the lowest wages in the Malaysian civil service; and corruption has been recognised as a concern.[21]  In relation to domestic violence the report indicates that while Malaysian law prohibits domestic violence and conviction rates have increased over the past decade, domestic violence against woman is a serious problem in Malaysia.  The report comments that overall DFAT assesses that women in Malaysia face a high risk of societal and official discrimination and violence, particularly domestic or intimate partner violence.  While DFAT indicates that it cannot confirm if ‘honour killings’ performed to punish individuals who are perceived to have brought shame upon their family members or communities, occur, DFAT notes that deaths related to domestic violence do occur in Malaysia.  DFAT assesses that while the situation is improving, confusion between federal and state laws and a lack of capacity within the police and judiciary, make it difficult for women to gain adequate state protection and to safely leave violent relationships[22]. 

   [21] DFAT Country Information Report Malaysia, 19 July 2016 at 3.82, 5.1–5.8. 

   [22] Ibid at 3.78, 3.81-3.85.

3. Freedom House also reported in 2015 that government and law enforcement bodies in Malaysia have suffered a series of corruption scandals in recent years.[23] According to a 2012 Freedom House report, ‘Malaysia’s police effectiveness has been compromised by low salaries and endemic corruption’[24]. 

   [23] Freedom House 2015, Freedom in the World 2015: Malaysia, 5 May

   [24] Freedom House 2012, Countries at the Crossroads 2012: Malaysia, Civil Liberties < Accessed 21 December 2012 (CISLIB Malaysia CIS24722)

4. On the basis of this country information, in particular the concerns in relation to corruption, the involvement of the secondary applicant’s father with a notorious and violent criminal gang, and the relationship between the secondary applicant’s father and a local police [senior officer], the Tribunal is not satisfied that the general measure of state protection in Malaysia is sufficient in the applicants’ particular circumstances to remove the real risk of significant harm that they face. The Tribunal finds that, for the purposes of s.36(2B)(b) of the Act, the applicants could not obtain, from an authority in Malaysia, protection such that there would not be a real risk that they will suffer significant harm.

5. The Tribunal finds therefore that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm.

6. With respect to relocation, the applicants indicated to the Tribunal that they believed it was only a matter of time before the secondary applicant’s father would find them, wherever they were located in Malaysia. They referred to the relatively small size of the Indian population in Malaysia (around 7 per cent or just over 2 million people), the secondary applicant’s father’s capacity to utilise contacts within the Indian community given his status, including the services of ethnic Indian gang members as well as corrupt police to assist in locating the applicants, and the capacity of those who have corrupt contacts within the Malaysian bureaucracy to use records derived from transactions made using the compulsory Malaysian national identity card (MyKad), which is used for a multiplicity of government services and may also be used for private services such as paying tolls and as an ATM card, to obtain information regarding the location and activities of individuals. Considering these factors cumulatively as well as the applicant’s evidence that even though they had significantly modified their behaviour and were living in hiding in Kuala Lumpur people came asking after the principal applicant at his workplaces, the Tribunal considers it is plausible that the applicants could be found by the secondary applicant’s father and his gang associates throughout Malaysia. Accordingly, the Tribunal finds that it would not be possible for the applicants to relocate to an area of the country where there would not be a real risk that they will suffer significant harm, as required by s.36(2B)(a) of the Act.

7. The Tribunal is satisfied that the significant harm the applicants face is one faced by them personally and not faced by the population of the country generally, as required by s.36(2B)(c) of the Act.

8. Therefore, the Tribunal finds that the applicants are not precluded by the operation of s.36(2B)(a), (b) and (c) of the Act.

9. As the Tribunal is satisfied that neither of the applicants has a legally enforceable right to enter and reside in any country other than their country of nationality, Malaysia, the Tribunal finds that the applicants are not excluded from Australia’s protection by subsection 36(3) of the Act.

10. For the reasons given above, the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(aa).

    DECISION

11. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Migration Act.

    Paul Windsor
    Member

    
    
    

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