1513167 (Refugee)

1513167 (Refugee) [2016] AATA 4368 (24 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1513167
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Sophia Panagiotidis
DATE:24 August 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 August 2016 at 1:51pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] August 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] May 2015.
Background
The applicant arrived in Australia [in] August 2012 on a [temporary] visa. This visa ceased on [a date in] November 2012. He became an unlawful non-citizen [the next day] and remained in Australia. He applied for the protection visa [in] May 2015.
The applicant has provided the Department with a copy of his passport which shows he is a citizen of Malaysia. This passport was issued [in] 2012 and states he was born in Perak. The passport is due to expire [in] 2017.
The applicant has made the following claims in relation to his protection visa application:
·He was working as a [retailer] in Perak. This was alright for a year but then his boss started to force him to do other work selling drugs. He rejected this but he was beaten and the boss disturbed the applicant's family members so he was forced to work for him selling drugs and collect money for [Mr A] from people who had taken out loans. If he did not do this he would be beaten. The applicant tried to talk to the boss a few times but he kept on beating him and scared him. He tried to report his situation to the police but they were paid money by the boss so they did not help him. He did not know what to do so he left the country in order to save his life.
·The applicant fears being killed.
·As the applicant fled to Australia a few years ago, the boss found his friend and family and disturbed them so he knows he will not be allowed to have a normal life.
The delegate noted that the applicant had provided little detail about his claims and he did not have the opportunity to interview him. The applicant had also not provided any supporting evidence to substantiate his claims as well as the circumstances surrounding his visa application. As there were serious deficiencies in the applicant's claims the delegate did not accept them as being genuine or credible.
The hearing
The applicant attended a hearing on 21 July 2016. The Tribunal was assisted by an interpreter in the Mandarin and English languages.
The applicant confirmed he arrived in Australia in August 2012. He also confirmed he had made the application for a protection visa [in] May 2015. The applicant was asked if he had completed the application himself and whether he agreed with its contents. He told the Tribunal he was helped by a friend who he met in Australia called [Mr A]. He believes that [Mr A] gave the application to a lawyer for their opinion.
The applicant confirmed he is a citizen of Malaysia and is single and has never been married. He confirmed his date of birth and that he was born and raised in Perak. He confirmed that his ethnicity is Chinese. He is a Buddhist and speaks Mandarin and Malay. He completed year [number] education. The applicant confirmed his parents live in Malaysia and he has [siblings]. His siblings live and work in [Country 1] and visit Malaysia.
The applicant was asked to confirm the reasons fearing to return to Malaysia. He told the Tribunal that he was forced to do something he did not want to do while he was in Malaysia and when he refused, he was beaten and that is the reason he left for Australia. His moved to [City 1] before he left Malaysia and was there for more than a year.
The applicant said that in 2007 he was working as [an occupation 1] in a [retail space] selling [products]. After being there for a year, the boss wanted him to sell drugs and collect money for him from people who owed him money. The applicant said that the [place] he worked in was owned by a person who is [Mr A]. It was in a large [retail venue] and was very busy. There were 11 or 12 people working there and there were other [similar retailers].
One afternoon, his boss told him to go and collect some money that was owed to him. His boss is a money lender and has a gang. The headquarters of this gang is called [HQ name] and his boss’s branch is [name]. The gang is also known as [Group name]. He did not find out that his boss was a money lender until after he had gone to collect money from people. When he found out he tried to leave but his boss threatened his family because he has the power to do so. The applicant said that his boss had considered him to be reliable and responsible and that is why he wanted the applicant to collect money for him. He did not know why the boss would not let him go. He was constantly threatened if he indicated he did not want to work for him. His boss also made threats to kill his family.
The applicant said that about a year later, his boss told him to do something drug related. He was to take delivery and transport drugs (ice) to customers. He said he usually never saw the drugs as they were in packages. He was required to transport drugs a number of times. If the amount of the drugs was small he would be required to take this directly to users. If it was a large amount he was required to deliver them to sellers. The drugs were coming from Kuala Lumpur. He was sometimes told to take delivery of drugs from Kuala Lumpur and transport these to Perak. He did as he was told and on one occasion he took the bus to Kuala Lumpur and return in a car that was waiting for him. He assumed the drugs were in the car. He would collect the keys to the car from a locker. He transported drugs from Kuala Lumpur seven or eight times. He also met a few others who worked for his boss who did the same job. He thinks his boss had a partner in Kuala Lumpur who arranged things from that end. The applicant's said he did this work for about two years. He said he was essentially ordered to join the gang.
The applicant was asked about the gang. He told the Tribunal that there was a place that was set up as a temple for gang members to meet and pray and where they conducted certain rituals such as sacrificing chickens. They were required to provide some blood which they were to drink. The place where they would meet was [a business]. He said there were around [number] people who would gather. He got to know two of them. People who attended this [business] worked for his boss and for other bosses and the people were mainly Chinese but there were also Indians and Malays. There was also a host at the gatherings who was there permanently. The initiation of people to the gang was mainly that they had to pledge loyalty. There were large gatherings held but he only attended one of the large gatherings once. They were also taught to use sign language to communicate with other gang members. They did not have tattoos.
The applicant said in 2008, the police came to where drugs were stored and he was there with two other people who belonged to the gang. On his boss’s instructions it was agreed that one of them was to take responsibility and he was chosen. The charges against him were dropped as his boss paid for someone to “wash” the information to get him released. He had been held for one month by the time of his release. The second time he was arrested was in 2010 when his boss told him to test some drugs at a [venue]. He was arrested and tested and was charged with having used drugs. The court convicted of having used drugs and ordered him to report to the police every month, however his boss paid the police to waive this condition and he only had to report once.
The applicant said he continued to do work for the boss, drug trafficking and collecting money. He did this until 2010. Then he was tired of this work and so he left without telling anyone and went to Penang. He has an [Relative A] there who [had a product business] and stayed there for a year. He learned that his boss went to his family nearly every day looking for him. This worried his father and he became depressed. His [Relative B] went to see their parents and found their father had lost a lot of weight and was depressed. She contacted the applicant and told him she was worried about him and asked him to return to take care of him. He returned to Perak and found his father had grown very thin and had no appetite. He took his father for treatment at a private hospital and he was diagnosed with [a condition] and was given medication and had to see the doctor regularly.
The applicant said his boss found out he was back when he had left the house to go and buy food. One of the boss’s staff saw him and the boss sent five or six people to his house and he was beaten. They used their fists and an iron rod. He was ordered to go back to work for the boss and threatened he would be beaten again if he did not do so. He said he was beaten mainly on his back. He did not go to a doctor but went to a Chinese therapist for a massage. He was had an injury to his right leg which became swollen. He asked his boss for time because of his injuries and also because he wanted to look after his father. He said he did not return to work for the boss because he and his family moved to [City 1]. He had called his [Relative B] to help because they could not stay in Perak and she found a place for them in [City 1]. They left in the middle of the night in November 2010.
The applicant said that the gang found him again about six month later. He had been working in a [venue] and members from [another gang] were there collecting protection money from [businesses]. One of them came to his [business] and asked for [amount] MYR. He did not have that much and they asked him where he was from. He told them he also belonged to the [gang name] which was a mistake. He thought if he told them he was part of the gang he may not have to pay any money. They contacted his boss who contacted someone in Kuala Lumpur and told them to get the applicant back to Perak. Fortunately these people did not know where he lived and so he went home and hid. He did not go out and was unable to work. His [siblings] sent money. He sometimes went to [Country 1] to see his [Relative B] but he did not have a work permit and so could not work or stay there for long. He applied for a work permit in [Country 1] but this was refused as he did not have a [specific academic qualification] and the cost for the permit is $[amount] per month. The companies that his [siblings] work for pay these fees but because he did not have an employer he could not afford the fees.
The applicant was asked why he did not return to Penang as he had been safe there before. He said that after he and his parents moved to [City 1], his [Relative A] found out from his father that he had been involved with a gang and did not want anything to do with him. He also did not want to go to Penang at the time as his parents were in [City 1]. The applicant said that he has been told that his boss has circulated his photograph which was taken from a group photo when he was working for this boss. His boss did this after he lied to him about returning to work for him and then left. He has seen the photo which was circulated in 2012 and had a caption saying a reward of [amount] MYR was being offered. He said this was circulated after the incident at the [venue] in [City 1]. It was then he decided to come to Australia. He borrowed money for his air fare as he wanted to stay away from such trouble.
The applicant was asked why he did not make an application for a protection visa sooner than 2015 as he had been in Australia since 2012. He said that at first he did not have money. His friend [Mr A] told him it would cost $12,000. He said that money he earned was used to live and he also sends money to his parents. [Mr A] told him more recently that he can apply for a protection visa if he has $6,000 which he has paid to him in two instalments. He said that in 2012 [Mr A] had told him he had a protection visa and he had been in Australia for six or seven years. He helps people apply for these visas. [Mr A] lives in [Town 1].
The applicant said his family still live in [City 1]. They have not been bothered by the gang members as they do not know where they live. He said that earlier, after the applicant had gone to Penang and they had gone to his parent’s house in Perak and told them that they will disturb the whole family and make their life miserable if the applicant did not get in touch with an acceptable explanation.
The applicant told the Tribunal he would not be able to return to Malaysia because of the threats made by the gang in Perak. If he wants to avoid trouble he must pay money, [amount] MYR but he does not have this kind of money. The applicant was asked if he earned much in the years he worked for the gang. He said he earned money and was paid [amount] MYR for transporting drugs from Kuala Lumpur to Perak and less for other duties.
The applicant was asked if he had ever considered asking for protection from the authorities. He told the Tribunal that the authorities will not protect him because some of them are also involved in gangs. Perak is a small city and the police force there is small. Gangs pay for police protection. His boss had intervened and paid the police when the applicant was arrested and made things go away.
The applicant said his father did go to the police for help when members of the gang would come to his house every day after he left for Penang. The police told him they would not help him because the applicant has a criminal record. If the gang did catch the applicant they would take him someplace and he would never be able to return to his family. Essentially they refused to do anything and he also understood this to mean that he should return to the gang. The applicant said he did not dare complain to the police in [City 1] because he had a suspended sentence and his boss had threatened to have this status changed so that he would have to go to prison. His boss has been able to influence the police in the past and he has no doubt that he would be able to get him put into prison. He told the Tribunal that he had spoken to a friend in Perak who still sees the boss and that he has mentioned still waiting for the applicant to return. He said his previous neighbours in Perak were also told that the boss is waiting for his return. He has never personally asked the police for help. The applicant was asked if he had considered going to the police and becoming a witness against the gang. The applicant said the police in Perak are useless and the only time he has spoken to them was when he was arrested and they threatened to throw him into jail for two years.
The applicant told the Tribunal he is worried for his father if he returns now. His father is now [age] years old and does not want to cause him further worry. He wants time to make some more money so that he can offer this to the boss to make all this go away.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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
The issue in this case is whether Australia has protection obligations in relation to the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country information
The following is country information considered by the Tribunal and was discussed with the applicant during the hearing.
In August 2013 the Royal Malaysian Police Force launched Ops Cantas Khas against criminal gangs and crime syndicates. In September 2013, Gambling and Secret Societies Division (D7) principal assistant director Senior Assistant Commissioner Datuk Abdul Jalil Hassan told the Malaysian Insider that the police had arrested 5,505 people for various crimes, including armed robbery, theft, vehicle theft, extortion and secret society activity.
Abdul Jalil, adding that the police also seized other weapons, including 21 swords, 70 knives, six axes, 11 brass knuckles and a stun gun. Ops Cantas Khas was launched following a spate of shootings in the country, believed to be related to turf war among gangs and linked to illegal activities. Among those shot dead were gang members or leaders, with the latest incident involving the shooting of a former air force man, whom the police claimed was the head of Geng 36 in Batu Gajah, Perak.[1]
[1] ‘Police make 5,505 arrests in three weeks in crackdown on gangs, organised crime’ 2013, Malaysian Insider, 9 September CXC28129414714

The Star also reported in September 2013 that three phases of the operation would focus on weapon seizure, targeting gang members and then gang leaders and their assets. According to statistics provided by police:
In the last 36 days (from Aug 17 to Sept 22), serious crime has gone down by 12.48% with murder cases lowered by 33.78%, gang robbery decreased by 23.58% and robbery dipped by 26% compared to the similar number of days between July 12 and Aug 16.[2]
[2] ‘Cops deal crime a crippling blow since Ops Cantas Khas launch’ 2013, Star Online, 23 September, CXC28129414715
In June 2014 the House of Representatives, or Dewan Rakyat, was told that 79,414 individuals involved in various crimes were detained since the operation codenamed Ops Cantas Khas was launched. Home Minister Datuk Seri Dr Ahmad Zahid Hamidi lauded the success of the operation in reducing the number of murders and robberies, stating that:
Murder cases declined from 504 cases to 433 cases, a drop of 14%, gang robberies using firearms from 83 cases to 54 cases which showed a drop of 34%. Gang robbery without using firearms declined from 13,533 to 12,048, a drop of 9%, while armed robbery from 20 cases to 14 cases, a drop of 13%.[3]
[3] “79,414 individuals detained throughout 'Ops Cantas Khas’” 2014, Bernama (Malaysian National News Agency), 10 June CX1B9ECAB11435
In July 2014 Al Jazeera reported:
In 2013, police identified 49 illegal gangs nationwide, with nearly 40,000 known members. More than 70 per cent of felons are ethnic Indians, who make up just 7 per cent of Malaysia’s population. Though small in number, they have been linked to a wide array of crimes - such as armed robberies, drug and prostitution rings, loan-sharking, gambling and extortion rackets, and even contract killings.
101 East spoke exclusively with a senior gang member, who reveals how these criminal organizations provide protection and work opportunities for many Malay Indians who live in poverty. The gangs prey on vulnerable youngsters with the lure of fast money and bonds of brotherhood.[4]
[4] ‘Malaysia's gang menace’ 2014, Aljazeera, 11 July CX1B9ECAB10299
In October 2014, quoting Inspector-General of Police Tan Sri Khalid Abu Bakar, the Malaymail Online reported that Ops Cantas Khas was ongoing, ‘Ops Cantas was never put off at any point of time and the operations are still in top gear’. Penang’s police chief Datuk Abdul Rahim Hanafi said there were 12 active secret societies in the state, mostly involved in extortion, protection rackets and drug-related activities.[5] No independent analysis on the operation was found.
[5] ‘Police crackdown on gangsters still in full swing, IGP says’ 2014, Malay Mail on line, 9 October, CX1B9ECAB11433
Country of reference
The Tribunal notes that the applicant has provided proof of his identity to the Department and the delegate was satisfied as to his identity. On the basis of the evidence, the Tribunal accepts that the applicant is a citizen of Malaysia. Therefore the Tribunal has assessed the applicant’s claims against Malaysia as his country of nationality and their receiving country for the purposes of complementary protection. The Tribunal also accepts that the applicant does not have a legally enforceable right to enter and reside in any other country that his country of nationality.
Assessment and findings
The Tribunal notes the evidence given by the applicant during the hearing about his gang membership was detailed and forthright as well as being consistent during questioning. There were aspects of the applicant's evidence however that the Tribunal had some major concerns with which. The Tribunal was concerned with the applicant’s evidence that his former gang had circulated a photograph of him and offered a reward as well as his evidence regarding being able to return to live in Penang. The Tribunal also had concerns about his evidence given quite late in the hearing that he wished to remain in Australia a while longer to save money to pay off the gang so that they will no longer bother him. The strong impression gained by the Tribunal was that the applicant was attempting to add to and exaggerate his claims in order to remain in Australia. The Tribunal considered that the claim that a photograph had been circulated offering a reward was potentially an important one. If this had indeed occurred, the Tribunal considers this would have been included from the outset, both in his written claims as well as on being asked why he fared returning to Malaysia. Such a serious claim would not in the Tribunal’s opinion be offered essentially as an afterthought by the applicant and only on questioning. This evidence was also undermined in the Tribunal’s opinion as towards the end of the hearing, the applicant said he would be able to return to Malaysia and live elsewhere safely but wanted more time to earn money before he did so. Again, in the Tribunal’s opinion this was added as an afterthought and only to attempt to delay his departure.
On the basis of the applicant's oral evidence, the Tribunal accepts he was a member of a criminal gang in Malaysia which was located primarily in Perak. This gang was referred to by the applicant as [group name] and he confirmed it was also known as [Group Name]. The applicant's evidence was that he was a reluctant member and essentially pressured into joining that gang in 2007. As a member the applicant was required to transport and sell drugs as well as collect debts. The Tribunal also accepts the applicant's evidence he has a criminal record with the Malaysian police having been convicted with possession and what appears to be trafficking for which he received a suspended sentence in around 2008.
The Tribunal also accepts his evidence that the applicant moved from Perak to Penang for one year and returned because of his father’s health. His evidence was that he did not experience any problems while living in Penang. The applicant's evidence was also that after his return to Perak he and his family fled to [City 1] as the criminal gang became aware of his return and he feared for his safety. While in [City 1], the gang discovered he had moved there after he told some local gang members of his affiliation with the gang in Perak in an effort to try and avoid paying protection money for his [business]. The applicant accepts that he was at fault on that occasion as he did not immediately think of the consequences of his actions. However until this occurred the applicant's evidence was that he did not experience any problems or fear harm while living in [City 1]. During the hearing, the applicant was asked why he did not return to Penang and he replied that his [Relative A] had told him not to return after he learned about the applicant's gang connections. The Tribunal does not accept this evidence as it considers the applicant at that point was indicating that no place in Malaysia was safe and that he wanted to remain in Australia. He later admitted that he could relocate elsewhere and live safely.
On the basis of the evidence and the Tribunal’s findings that the applicant was a member of a criminal gang, albeit reluctantly, and that he left as he no longer wanted to be a part of it and now fears harm in the form of retribution by other members of the gang. The Tribunal accepts he would be targeted for harm because of his former membership of the gang. The Tribunal accepts that the applicant is therefore a member of a particular social group that is a person who was a former gang member and there is a real chance he will be harmed if he refused to re-join the gang and he has a well-founded fear for that reason. The Tribunal accepts that he would be unable to avail himself of state protection in Perak because of his criminal history and because the gang he belonged to had connections to the police in Perak.
The Tribunal notes however, it will not be sufficient that a person has a real chance of being persecuted only in a particular part of the receiving country. Under s.5J(1)(c), the real chance of persecution must relate to all areas of the relevant receiving country.
This requirement is intended to codify the ‘internal relocation’ principle, arising from Article 1A(2) of the Convention, that a fear of persecution is not well-founded if it only relates to some parts of the country.[6] However, although the consideration of that internal relocation principle under the Convention requires an assessment of whether it would be reasonable for an applicant to relocate to another part of the country, the intention of Parliament in enacting s.5J(1)(c) is that no such consideration arises under the codified definition of refugee.[7]
[6] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014, p.171 at [1182].
[7] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014, p.172 at [1183].
In assessing whether the applicant will be persecuted, the Tribunal must consider whether there is a real chance of persecution in the area they lived in prior to leaving Malaysia. The Tribunal has found that the real chance of the applicant being persecuted exists in Perak where he originally lived. The Tribunal is also satisfied that this is the case in [City 1] which is the place he lived prior to his leaving Malaysia. The Tribunal notes the Department of Immigration’s 'PAM3: Refugee and humanitarian - Refugee Law Guidelines’ (the Refugee Law Guidelines) which suggest that an ‘area’ may be particularised by naming a township, province or broader internal border, or identifying a broad region where there is safety.[8]
[8] Department of Immigration, ‘Refugee Law Guidelines’, section 8.2, as re-issued 10 October 2015. Note that Ministerial Direction No. 56, made under s.499 of the Act, requires the Tribunal to have regard to those Guidelines, where relevant (for further discussion, see Chapter 12 of this Guide).
The Tribunal is satisfied that the persecutor is not the state authorities in Malaysia but a non-state agent and therefore internal relocation will not be an option if there is a risk that the non-state actor will persecute the applicant in other areas of the country. This will depend on a determination of whether the persecutor is likely to pursue the applicant elsewhere and if so, whether protection from the harm feared is available there.[9] The applicant's evidence to the Tribunal was that he relocated safely to Penang in 2010 where he worked and lived without incident only returning to Perak when his [sibling] asked him to in order to look after his father. The applicant again left Perak with his family soon after his return in 2010 and relocated to [City 1]. His evidence was that he was found there by his gang after he himself alerted a local gang of his membership to the gang in Perak. According to his evidence, no-one from the gang in [City 1] or the gang in Perak know where his family live.
[9] UNHCR Guidelines on international protection: ‘Internal Flight or Relocation Alternative’ within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/03/04 23 July 2003, at [7]. For discussion of state protection, see Chapter 8 of this Guide.
In light of the applicant's evidence that he was able to relocate to Penang and remain there and work without incident indicates he was able to relocate and live legally and safely elsewhere in Malaysia. While the applicant has claimed his [Relative A] did not want him to return to Penang, the Tribunal has not accepted this evidence as it was added by the applicant as an afterthought and later conceded that he could return to Malaysia and live elsewhere where he was not known. The applicant also stated he wished for more time to save money in order to pay the gang so they would not pursue him any longer. The Tribunal does not accept this evidence as again it considers this was added as an afterthought in an attempt to persuade the Tribunal rather than because it has been a consideration all along.
Subsection 36(2)(a) of the Act provides there is not a real risk that a person will suffer significant harm in their receiving country, if the decision maker is satisfied 'it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm '.
The Tribunal has considered the applicant's claims carefully, namely that he fears harm from the gang he used to belong to and that he would not be protected by the authorities because of his own criminal history. The Tribunal has accepted that the applicant is a member of a particular social group fearing harm from former gang members however considers that the harm of persecution is localised to Perak and [City 1] and he would be able to safely and reasonably relocate to another part of Malaysia.
Having accepted that the applicant does not face a real chance of serious harm or a real risk of significant harm outside Perak or [City 1], the Tribunal must also consider the reasonableness, in the sense of practical’ depending upon the particular circumstances of the applicant and the impact upon that person of relocation within Malaysia.
The Tribunal has also considered country information there is no legal impediment facing the applicant to relocate to another part of Malaysia with some exceptions. In this case, the applicant has demonstrated his ability to relocate twice prior to leaving Malaysia. He was able to work selling [products] in Penang and had his own [business] in [City 1]. The applicant has also worked as [an occupation 1] in Perak. There is no impediment in terms of language as the applicant speaks Malay and Mandarin and some limited English. The Tribunal is therefore satisfied that it would be reasonable for the applicant to relocate to an area within Malaysia where there would not be an appreciable risk of the serious harm he faces in Perak or [City 1]. For these reasons the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations.
Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal went on to consider the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) 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.
It is not necessary for the applicant to meet the criteria in s.5J(1)(a) in order to meet the tests for complementary protection. However, relevantly, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm, and the Tribunal notes that the “real risk” test imposes the same standard as the “real chance” test applicable to assessment under s.36(2)(a).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act. The Tribunal notes that Article 7 of the International Covenant on Civil and Political Rights (ICCPR) prohibits torture and cruel, inhuman or degrading treatment or punishment.
According to the Act, “torture” 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 ICCPR. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one 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 ICCPR. The Tribunal notes that, according to the Act, all three of these definitions of “significant harm” require that there be an intention to inflict harm by some act or omission.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B)(a), (b) and (c) of the Act.
The Tribunal has accepted that the applicant was a member of a gang and that he has been physically beaten and threatened with harm if he does not return to the gang. The Tribunal is satisfied that the applicant faces a real risk of significant harm which involves physical or mental pain or suffering or both which is intentionally inflicted on the applicant and this could reasonably be regarded as cruel or inhuman in nature. The Tribunal is therefore satisfied that the treatment that the applicant 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.
The Tribunal has considered if the applicant could obtain from the Malaysian authorities protection such that there would not be a real risk that he would suffer significant harm as referred to under s.36(2B)(b).
The country information by DFAT suggests that although the authorities, in this case the police are considered reasonably professional and effective[10] however the Government publicly acknowledged the existence of police corruption.[11] According to a report by Freedom House, ‘Malaysia’s police effectiveness has been compromised by low salaries and endemic corruption. The police allegedly provide protection for drug trafficking, prostitution, and loan sharking’.[12] More recently Freedom House reported in 2015 that government and law enforcement bodies have suffered a series of corruption scandals in recent years.[13] Moreover, despite government reform efforts to improve the integrity of the RMP, public confidence remains limited.[14] Police reform, including the establishment of an independent police complaints and misconduct commission, remains pending.[15]
[10] Department of Foreign Affairs and Trade 2016, DFAT Country Report – Malaysia, 19 July, p.25
[11] Department of Foreign Affairs and Trade 2016, DFAT Country Report – Malaysia, 19 July, p.25
[12] Freedom House, Countries at the Crossroads 2012 - Malaysia, 20 September 2012, Freedom House 2015, Freedom in the World 2015: Malaysia, 5 May
[14] ‘Crime is rising, police are corrupt & inefficient: Now who’s to blame?’ by Christopher Fernandez, Malaysia Chronicle, 15 July 2012
[15] US Department of State 2013, Country Report on Human Rights Practices 2012 – Malaysia¸ 11 March, section 1; Freedom House, Countries at the Crossroads 2012 - Malaysia, 20 September 2012, and El Sen, T 2012, ‘Misconduct due to ignoring inquiries’, Free Malaysia Today, 4 May type="1">
In this case the Tribunal accepts that corruption of police exists in Perak and accepts the applicant's evidence that his former boss in Perak has paid the police in the past to assist the applicant to avoid criminal charges and he has also paid money to the authorities to ensure the applicant did not receive a custodial sentence. This was done in order to facilitate ongoing criminal activities. The Tribunal has accepted the applicant evidence on this issue as it considered him to be quite open about his criminal activities and history. Therefore the applicant would not be afforded protection by the authorities in Perak. Further, because of the applicant's own criminal history, the Tribunal accepts as unlikely that he will be provided protection by the authorities in other parts of Malaysia.
On the basis of this country information, in particular concerns with corruption, the Tribunal is not satisfied that the general measure of state protection in Malaysia is sufficient in the applicant’s case to remove the real risk of significant harm. The Tribunal finds that, for the purposes of s.36(2B)(b) of the Act that the applicant could not obtain, from an authority in Malaysia, protection such that there would not be a real risk that he will suffer significant harm.
The Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
In addition to the discussion above with respect to the issue relocation, the Tribunal accepts the applicant’s evidence that members of his former particular gang are located in Perak. The Tribunal also accepts the applicant's evidence that he was able to relocate safely to Penang where he lived for a year and then to [City 1] where he was located, but only because of the applicant's having spoken to some local gang members in an effort to avoid paying protection money for his [business]. The Tribunal also accepts the applicant's evidence that the gang members do not know where his family live in [City 1]. The Tribunal does not accept the applicant's claim that his former boss has circulated a photograph of him with a reward. The Tribunal does not accept this to be the case and considers the applicant added this evidence in order to enhance his claims to not be able to relocate during the discussion with him about this issue. The applicant later added he could return to Malaysia if he saved enough money to be able to pay the gang members off. This was the first time the applicant raised this as an option for him and the Tribunal expressed some concern about this. The Tribunal does not accept this evidence as it appears to have been an afterthought as a means of strengthening his claims.
The Tribunal has concluded mainly on the basis of the applicant's own evidence that he would be able to relocate to an area of the country where there would not be a real risk he will suffer significant harm. The applicant therefore does not satisfy s.36(2B)(a) of the Act.
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
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
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 ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2016] AATA 4368

24 August 2016

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