1613390 (Refugee)

1613390 (Refugee) [2017] AATA 2923 (10 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613390
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Paul Windsor
DATE:10 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 November 2017 at 12:02pm
CATCHWORDS
Refugee – Protection Visa – Malaysia – Religion – Muslim – Ethnicity – Indian – Threatened by gang members – Harassment – Witness credibility – Inconsistent evidence
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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] July 2016 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] March 2016. The delegate refused to grant the visa on the basis that she found, on the information before her, that the applicant would receive effective protection from the Royal Malaysia Police and judiciary in Malaysia against any threats he faces from a criminal gang. The delegate also found that the protection the applicant could obtain, from an authority of the country, is such that there would not be a real risk that the applicant would suffer significant harm.
The applicant applied to the Tribunal for review of this decision on 23 August 2016. The applicant provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 2 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his Protection visa application[1] the applicant claims to be a citizen of Malaysia who was born in Kedah Malaysia on [date]. He states that he belongs to the Indian Muslim ethnic group, is a Muslim, and speaks, reads and writes Malay and speaks and reads Tamil. He indicated he was married [in] February 1999. He stated he departed Malaysia legally [in] February 2016 and arrived in Australia on the same day, entering on a [temporary] visa.
[1] See folios 13-37 of Departmental file [number].
Claims from the Protection visa application
The applicant’s claims as set out in Part C of his Protection visa application[2] are summarised as follows:
·He has a threat from a very big gangster group in Malaysia called ‘Tika-Lions’ who belong to the Malay Muslim community.
·He used to manage his [Relative 1]’s restaurant and these gangsters regularly came to the restaurant but never paid the bills. If asked to pay the money, they would threaten to kill him.
·He lodged a complaint at the local police station in his village but nothing was taken in writing and only a verbal warning was given to the gangsters.
·As the police have also been under the influence of these gangsters he has no safety in that place. He feels they are against the Indian-Muslim community. They haven’t done anything in his community’s favour or taken action against these gangsters. They do not protect his community or take complaints filed by them against the gangsters. The police have threatened and killed many people of his village and also have given a lot of pain to his family members. Many have run away from the homeland for their protection.
·He is an Indian Muslim and the village where he lives are all Indian-Muslims. They have been harassing and threatening other people of the village who are Indian-Muslims, have targeted many Indian-Muslims in the past from his village, and have killed people in the past. Many people of his community have disappeared and their whereabouts are unknown. He fears that they might kill him at any time. Fearing for his life in Malaysia he came to Australia.
·He does not think moving to another part of Malaysia would change his circumstances as they are treated as second grade citizens.
[2] See folios 15-18 of Departmental file [number].
The applicant also submitted copies of the following articles[3]:
·‘Tamil Muslims facing identity crisis’ by G Vinod from Free Malaysia Today dated 26 February 2014; and
·‘Home Minister defends banned ‘Tiga Line’ gang, says not thugs’ from the Malay Mail Online of 7 October 2013.
[3] See folios 38-43 of Departmental file [number].
Evidence from the hearing of 2 November 2017
At the start of the hearing the applicant indicated that everything he had put in his Protection visa application was true and correct as far as he knew and believed. He said there were no mistakes he wished to correct. When asked if he had any help with his application he indicated that he had not. When queried regarding whether he spoke English, the applicant said ‘yes’. When asked if he wrote the application in English himself, he said he did. When queried that his application does not indicate that he can speak, read and write English, he said that he cannot read or write Tamil. He commented, however, that somebody typed his application as he ‘was telling them’.
The applicant indicated that while he was born in Kedah state he was raised in [City 1]. When asked where he did his schooling he said he completed up to Form 1 of High School in his home town of [Town 1], located about [distance] km from [City 1].
The applicant indicated that his parents, who are elderly, live with his [sibling] in [City 1]. He indicated that he [has numerous] siblings [employed in various jobs].
The applicant indicated that he had been [working] since he was [age]. He said it was on a casual basis initially but more recently he had worked at his [Relative 1]’s restaurant business in [City 1]. He said it became a family business which they shared.
The applicant indicated that he has [children] aged from [age] to [age] years who live with his wife in [City 1] in a house that he owns. He said they did not share the house with anyone else and indicated that they had lived there for 4-5 years. He confirmed that he was living there with his wife and children before he came to Australia.
The applicant indicated that currently he was staying with a friend [in] [Australian State 1]. He said his friend works in a [shop] but, when asked, said he was not working [in] Australia. When queried about how he supports himself in Australia he said he helps out by cleaning and cooking meals for his friend.
When asked why he came to Australia in February 2016 the applicant said he had a lot of problems in the restaurant. He commented that ‘rowdies’ would come and that they beat up the [staff member]. He said he went to the police but the police did not take a report but tried to mediate. He said he was harassed.
The applicant also commented that he was having a lot of hassles because he is Indian Muslim. He said he felt he did not belong and commented that if he went to the MIC (Malaysian Indian Congress) he was told that as a Muslim he should go to a Muslim organisation but if he went to a Muslim body he was told he was not Malay so should go to an Indian organisation. He said that because of these constant difficulties he decided to come to Australia.
The Tribunal queried the applicant about who the people he described as ‘rowdies’ were. He said they were members of the ‘Tiga Line’ (Three Line) gang. He commented that they are disbursed everywhere in Malaysia and while there are some good people a lot are ‘baddies’.
The Tribunal asked the applicant to describe exactly what these people did when they came to the restaurant. He said they ate, and when they had finished their meals they would not pay. He said they went to the [staff member] and sought to help themselves to cigarettes and asked for money. He said that when the [staff member] refused to give them money they beat him up. He commented that this is the usual format, especially on Saturday and Sunday. He commented that he is the owner and is not always there but if he questioned these people he was assaulted as well.
When asked, the applicant indicated that the problems started about three years ago. He commented that if they find an easy target it becomes an ongoing thing and stated that if they come into the restaurant they smash the tables and chairs. He said he thought they had it in for him because he is Indian and commented that this is not uncommon and a lot of Indian eateries face this, both Indian and Indian Muslim.
Noting that he said the problems started about three years ago the Tribunal asked the applicant how often these people came to his restaurant. He replied once every 2-3 months, usually on a Saturday night. He said he faced harassment if he faced up to them and they would torture him. When asked to explain what he meant by torture he said they would threaten him.
When queried about when he went to the police the applicant commented that he went to the police when they first beat up his [staff member] three years ago. He said he called the police and three Malay police officers came to the restaurant. He said the ‘guys’ were still there and that, rather than take a report, the police officers spoke with them. He said the police told him they would be good boys from now and then they all left. He said the next day 2-3 gang members returned, waived a finger at him and said ‘oh, you go to the police now?’ He commented that nothing comes of calling the police because the police are Malays and the Malays support each other, but added that there are some good police too.
The Tribunal put to the applicant that from what he had told the Tribunal it seemed like the police had resolved the situation, and asked what happened after that. He said it was quiet for 3 months, then started again. He said more then came to the restaurant and if they saw him they mocked and harassed him in a threatening way. The Tribunal asked the applicant when they next caused problems at the restaurant. He said that nothing happened like the first time but they came and made threats. When asked what they did he said they put a hand on his shoulder and said one day you will be caught by us.
The Tribunal put to the applicant that his story appeared to be changing - that previously he had said these people were coming to the restaurant and smashing things up, beating people up and not paying. He replied that the breaking of furniture only happened once but other times they would have a meal and not pay. The Tribunal asked how often that happened. The applicant replied ‘plenty of times’. When pressed he said every couple of months, 10-15 times in total. The Tribunal asked the applicant why he did not refuse to serve them if they did not pay for their meals. He replied that it is a big gang and it was not always the same people. When asked how he knew they were gang members he said they have a uniform. When asked why he did not refuse to serve people wearing the gang uniform he replied that at meal times they would walk in and staff would serve them. When asked why staff served them if they did not pay he replied that people usually paid after the meal.
When the Tribunal asked the applicant if he ever called the police when people left without paying for their meal he said no. He indicated that he only ever called the police once. He said ‘what’s the point’, commenting that when he had called the police they just talked to the people who then left.
The Tribunal asked the applicant why he did not call the police if people were making threats to him. He said it was not the same people and commented that as soon as they had their meal they left. The Tribunal put to the applicant that he had said previously that people were threatening him. He replied that he was scared that he would get further threats and that they would keep harassing him if he called the police.
The Tribunal queried the applicant that he had indicated earlier in the hearing that his [Relative 2] had now taken over his role managing the restaurant and asked the applicant whether his [Relative 2] was experiencing the same problems. He replied that it is far, far less now. When asked why this should be the case he said he didn’t know. The Tribunal asked the applicant why he felt he couldn’t return to Malaysia. He replied that he was afraid that if he returned the problems would start again. The Tribunal queried the applicant why these people hadn’t kept doing what he claims they were doing regardless of whether he was there or not. He said he was guessing but maybe it was something personal about him.
The Tribunal asked the applicant why he delayed coming to Australia until February 2016 if these problems started three years ago in 2014. He replied that he didn’t want to leave Malaysia but these things started to happen frequently, he was receiving frequent threats and it was worrying him a lot. He said he was talking about it with his wife and she said you go to Australia and see how it is. He commented that he thought if it worked out he would bring his children to Australia. He said he was thinking about it for a long time.
The Tribunal asked the applicant if there were any other things making him concerned for his safety. He replied that there was nothing else, only the things he had mentioned.
The Tribunal asked the applicant about his written statement that gangsters came to the restaurant regularly and never paid the bills, and if he asked them to pay they would threaten to kill him. He said that was the first time when they said that. When he told them to pay after they damaged the furniture and went to the [staff member] for cigarettes they threatened to kill him. He said after that it was ‘just eating and taking off’. The Tribunal asked the applicant if the [staff member] was injured. The applicant replied that he was not injured but was just slapped on the face.
The Tribunal queried the applicant that in his application he did not make any mention of these people having damaged furniture or having slapped the [staff member] in the face trying to get cigarettes. The Tribunal asked why such important things had been left out of the statement. He replied that that he didn’t know how to write these things so he just wrote approximately what he could remember. The Tribunal also queried the applicant that his statement said he tried to lodge a complaint at the local police station in his village but earlier in the hearing he said he rang the police from the restaurant. The applicant replied that he made a mistake there and he definitely phoned rather than went to the station.
The Tribunal asked the applicant what he meant by his written statement that the police have been under the influence of these gangsters. He commented that because they are both Malays they look out for each other.
The Tribunal also queried the applicant that his statement says these people have also been threatening other people in the village who are Indian Muslims and have killed people in the past, but he had not said anything in the hearing about this, but had commented that now he is gone, the restaurant is running much better. The applicant responded that he mentioned earlier that a lot of Indian Muslim restaurants have these problems. The Tribunal reminded the applicant that it asked him if anything else made him concerned for his safety and he said no, yet he said in his statement people had been killed. He replied that these things have happened but it did not occur to him to mention it, as it he was mentioning things relevant to his case. He commented that he knows these things have happened but does not have the information. The Tribunal also queried the applicant regarding his written statement that many people from his community have disappeared. When asked for an example of where someone had vanished he said it is ‘here-say’, adding that people say things but he did not take a lot of notice because he wasn’t planning to come to Australia so did not collect information about these things.

The Tribunal asked the applicant to expand on his comments earlier in the hearing regarding not being accepted by the MIC or by Malay associations. He replied that ‘suppose’ he had some issues or problems and went to the Malay association seeking help they would say you may be Muslim but you are Indian and this is a Malay association for bumiputeras (indigenous Malays) so he would go to the MIC and they would say but you are Muslim you should go to a Muslim organisation. The Tribunal asked him when he went to an organisation seeking help. He said he went to both groups about two years ago, about six months before he came to Australia, about the problems he was experiencing with people coming to the restaurant and making threats, but they did not help him. The Tribunal queried the applicant that he did not mention this in his written statement. He replied that he thought there were too many things to mention and wanted to be concise. He said the Malay organisation was UMNO. He said he spoke to someone in charge there, the head of the organisation, but can’t remember his name.
The Tribunal asked the applicant if he went to the mosque in Malaysia. He indicated that there was an Indian community mosque as well as a common one and he went to either. When asked why he could not seek assistance from the Imam at the mosque he said they do not get involved with such matters and deal with religious issues. The Tribunal queried the applicant whether the MIC’s charter or constitution says it only deals with Hindus. He said it does not and that he supposed there were Muslim Indian members but reiterated that they would not assist him.
The Tribunal discussed with the applicant country information from DFAT’s 2016 Country Information Report on Malaysia regarding Indian Malaysians, the Royal Malaysian Police (RMP) and gangs in Malaysia. The Tribunal also discussed with the applicant press reporting which indicates that Malaysian authorities have been taking action against gangs in Malaysia (Ops Cantas Khas) on an ongoing basis since August 2013, which reportedly had resulted in a reduction in crime and the arrest of over 11,000 suspects.
Findings and reasons
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
On the basis of the copy of the applicant’s Malaysian passport provided to the Department[4], the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is as he claims it to be. The Tribunal accepts that Malaysia is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Credibility
[4] See folios 45-70 of Departmental file [number].
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
Assessment of claims
The Tribunal finds that the applicant is not a credible witness. The Tribunal does not accept that the applicant was in fear of his life because of ongoing harassment and threats from members of the ‘Tiga Line’ gang in Malaysia. As discussed in detail below, the applicant’s evidence at the hearing was vague, lacked detail, was inconsistent, and differed substantially from his written statement.
In his written statement the applicant indicated that gangsters regularly came to his [Relative 1]’s restaurant, which he managed, but never paid the bills. He stated that if he asked them to pay, they would threaten to kill him. He stated that the police are under the influence of these people and don’t help his community (the Indian Muslim community). He commented that Indian Muslims from his village have been harassed and threatened and have disappeared and been killed in the past. He stated that the police have threatened and killed many people of his village and also have given a lot of pain to his family members. He stated he fears he might be killed at any time if they found him.
At the hearing, the applicant initially said that ‘rowdies’ would come to the restaurant he managed causing a lot of problems. He indicated that they were members of the ‘Tiga Line’ gang (the applicant had submitted with his Protection visa application a copy of a 2013 Malay Mail Online article reporting that the Malaysian Home Minister had made comments supporting members of the Tiga Line gang, which had been included among gangs outlawed by his ministry. The Minister was reported as commenting that Malays who previously were members of the Malay NGO Perkida, were not real thugs but were ‘festivities’ gangsters who were not malicious and only gathered during festivities and projects).
The applicant said the problem started about three years ago. When asked what these people did he said they came to the restaurant and ate, but would not pay, they went to the [staff member] and sought to help themselves to cigarettes and would ask for money from the [staff member] and if he refused they beat-up the [staff member]. The applicant commented that this was the usual format, especially on Saturday and Sunday. He said that while he was not always there, if he was and he questioned these people about their behaviour, he was assaulted as well. He commented that once these people found an easy target it becomes an ongoing thing. He commented that if they came into the restaurant they would smash the tables and chairs. When queried that apart from people coming to the restaurant and not paying for meals, these matters were not included in his application, the applicant commented that he did not know why that was the case. He asserted that this was the usual pattern of behaviour and commented that he thought it was because he is Indian, that it was not uncommon behaviour and that a lot of Indian and Indian Muslim eateries face this type of behaviour. When again queried later in the hearing on why these matters were not included in his written statements, the applicant commented that he did not know how he should write these things.
When queried further, however, the applicant’s account changed substantially. While initially suggesting that this behaviour was a regular occurrence, particularly on Saturdays and Sundays, he subsequently indicated that after the claimed initial incident about three years ago in 2014, the gang members did not return for three months, and then would come once every 2-3 months, usually on a Saturday. He indicated that his [staff member] was beaten-up on one occasion only, during the claimed initial incident. When questioned further including regarding whether his [staff member] was injured he indicated that he was just slapped on the face. He also indicated that furniture was only damaged once, again during the claimed first incident, and that this was the only time when gang members threatened to kill him. The applicant commented that nothing happened again like the first time but indicated that at other times people would come, have a meal and leave without paying, and make threats. The applicant did not persist with his claims made earlier in the hearing that he would be assaulted if he asked these people to pay for their meals.
When queried about how he was threatened the applicant indicated that the day after the claimed initial incident (during which he claimed he called the police who attended the restaurant), 2-3 gang members returned to the restaurant, waived a finger at him and said ‘oh, you go to the police now’. When asked further about how he was threatened the applicant indicated that they put a hand on his shoulder and told him that one day he would be caught by them. The Tribunal queried the applicant regarding his comment that he faced harassment and would be tortured by them if he faced up to them, asking what he meant by torture. He replied that they would threaten him.
Contrary to the statement in his application, the applicant indicated that he did not seek to lodge a complaint at the local police station in his village, but called the police on one occasion only (at the time of the first claimed incident around three years ago). He indicated that three ethnic Malay police officers attended the restaurant, spoke with the trouble makers and told him that they would be good boys from now. He said they all left. The applicant commented that he felt that nothing had come out of calling the police because the police and the gang members are ‘Malays’ and they support each other, although he added that there are some good police too. The Tribunal put to the applicant that it seemed like the police had resolved the situation, and asked him what happened after that. He indicated that apart from the 2-3 gang members returning to the restaurant and speaking to him at the counter the next day (mocking him for calling the police), it was quiet for three months, but then the trouble started again. He commented that more gang members came to the restaurant and if they saw him they would mock and harass him in a threatening way. When queried about when gang members next caused problems the applicant indicated that nothing happened like the same level as the first time, that they just came and made threats. When queried that his story seems to have changed, the applicant indicated that at other times they would have a meal and not pay. When asked how often this happened he replied plenty of times. When pressed he said every couple of months; 10-15 times in total. The Tribunal asked the applicant why he did not refuse to serve these people if they did not pay. He said it was not always the same people. When asked how he knew they were gang members he said they have a gang uniform. When queried regarding why he did not refuse to serve people wearing gang uniforms if they did not pay, he commented that staff serve them if they come in at meal times. When pressed why staff were not instructed not to serve them if they didn’t pay, he replied that people usually pay after they eat the meal. The Tribunal asked the applicant why he did not call the police again if these people ate and left without paying. The applicant replied ‘what’s the point’. The Tribunal put to the applicant that on the one occasion he claimed to have called the police, he said they had attended, had talked to the trouble-makers and he indicated that since that time these people had not caused damage or assaulted his staff. The applicant said they made threats. The Tribunal asked the applicant why he did not call the police again if people were making threats. He replied that if was not the same people, and as soon as they had their meal, they would take off. The Tribunal queried the applicant that he had said they were threatening him. In response he altered his account and replied that he was scared that if he called the police he would get further threats and they would keep harassing him.
The Tribunal also queried the applicant that he had indicated that his [Relative 2] had taken over from him and was now helping to manage the restaurant. The Tribunal asked the applicant why his [Relative 2] was not having the same problems. He said his [Relative 2] was having far, far less problems now and said he did not know why that was the case. When pressed he suggested that perhaps it was something personal about him.
Based on the inconsistencies between his written and oral accounts, and the changing nature of his oral account at the hearing, the Tribunal does not accept that members of the Tiga Line gang ever smashed furniture at the applicant’s restaurant, sought to take free cigarettes or money from the [staff member], or assaulted either the [staff member] or the applicant. The Tribunal considers that if these things had happened they would have been included in the applicant’s written statements. The Tribunal does not accept that the applicant would have overlooked such important elements of his story when recounting it to the person who typed his claims.
Based on the applicant’s evidence at the hearing, which the Tribunal found to be inconsistent and unconvincing, the Tribunal also does not accept that the applicant had a problem with Tiga Line gang members coming to his restaurant and refusing to pay for their meals and threatening him when he asked them to pay. While the Tribunal accepts that it is plausible that the applicant, like many restaurant managers, may have had occasional problems with customers leaving without paying their bills, the Tribunal does not accept that this was a usual or regular pattern. The Tribunal does not accept that if the applicant was experiencing regular problems with gang members eating at his restaurant, refusing to pay, and harassing or threatening him, he would not have taken measures such as instructing staff to refuse to serve gang members without up-front payment or calling police when they left without paying, or if he or any staff were threatened. The Tribunal also gives significant weight to the following two matters. Firstly, while the applicant claims a death threat was made against him at the time of the alleged first incident three years ago and he claims he subsequently was threatened that one day he would be ‘caught’ by them, he never suffered physical harm from Tiga Line gang members in the time from this claimed initial incident in 2014 until he departed Malaysia for Australia in February 2016, even though he continued to work at the restaurant where it would have been easy for gang members to locate and ‘catch’ him had they wished to. Second, while the applicant claims he came to Australia because of the threats he faced from this gang, that he feared they would kill him, that other Indian eateries faced similar problems, and that they had threatened other Indian Muslims and killed people in the past, and had given a lot of pain to his family members, the restaurant continues to run, managed by the applicant’s [Relative 2] and his [Relative 1] (he indicated at the hearing that his [Relative 2] is there in the evenings while his [Relative 1] is there during the day). The applicant indicated that the problems were now far, far less but could not offer a satisfactory explanation as to why this should be the case, other than suggesting that it may have been something personal with him. The Tribunal found this statement to be completely at odds with his written comments indicating that his local Indian Muslim community generally was being targeted by Tiga Line members and the police.
At the hearing the applicant did not raise any issues about gangsters or the police targeting, threatening, harassing or killing fellow Indian Muslims from his village. When asked if there were other things that were making him concerned for his safety he said there was nothing else. When queried regarding what he meant by his written statement that the police are under the influence of these gangsters the applicant indicated that he did not mean that exactly, just that as they are both Malay they look out for each other. When queried that he had not mentioned anything at the hearing about other Indian-Muslims being threatened or having vanished or been killed in the past, the applicant responded that a lot of Indian Muslims have these problems. He commented that it did not occur to him to mention these things as he only mentioned what was relevant to his case. When the applicant was queried that he had not provided any information in support of these claims he replied that he does not have full information but knows it has happened, and reiterated that it just didn’t occur to him to mention these matters. When asked by the Tribunal to provide an example the applicant replied that it is here-say and that he had heard things in town but did not take a lot of notice. The Tribunal found the applicant’s evidence in relation to these matters to be vague and unconvincing. The Tribunal does not accept that if people in his community were disappearing or being killed, with the collusion of police, the applicant would not have raised these matters in his oral evidence at the hearing, when asked if there were other things that made him concerned for his safety. The Tribunal finds that, when pressed, the applicant was not able to support these claims with any anecdotal examples, let alone refer to or provide press or other reports of particular incidents. Considering the poor quality of the applicant’s evidence in relation to these matters, the Tribunal does not accept that gangsters have targeted, threatened and harassed Indian Muslims from his village in the past resulting in many people of his community disappearing and being killed. The Tribunal does not accept the applicant’s claims that police are under the influence of such gangsters, do not take any action against them, and have threatened and killed many people of his village and given a lot of pain to his family members.
In this regard, the Tribunal also discussed with the applicant relevant country information from the 2016 DFAT Country Information Report[5] regarding the circumstances of ethnic Indian Malaysians (that they generally do not experience discrimination or violence on a day to day basis); that the Royal Malaysia Police (RMP) is regarded by credible sources to be a professional and effective police force; and regarding gangs in Malaysia, as well as various press reporting on police activities (including the ongoing Ops Cantas Khas) targeting gangs in Malaysia[6]. The Tribunal commented that this information seems to indicate that, while the RMP is not perfect, there are measures in place to address corruption and other concerns, and that it is clear there has been, and continues to be, a police and government focus on taking action to address issues with illegal gangs. The applicant replied that it is true that the government is trying to increase the number of people from other (non-Malay) races and women, etcetera in the RMP. He added that what doesn’t come out much is that people constantly make threats/attacks on others. The applicant commented that there are both good and bad police officers and some bad officers even target tourists. He said he agreed that there is a lot more control and hunting down of criminals but commented that, of gang members caught, 90 per cent would be Indians and Malays are usually let off. The Tribunal found that the applicant’s comments acknowledging that there are good as well as bad police officers and that police were acting to address issues with gangs were at odds with his written statements discussed above. While it is clear from the country information that gangs seek to threaten and intimidate their victims, for the reasons discussed above, the Tribunal does not accept that the applicant was a victim of the Tiga Line gang. In relation to the applicant’s comments that 90 per cent of gang members arrested would be Indians, the Tribunal notes that the DFAT Country Information on gangs referred to above indicates that the majority of street-level gang members tend to be Indian Malaysians, while high-level crime is more typically undertaken by Malaysian Chinese gangs. Given this, it is not surprising that the majority of those arrested would be ethnic Indian rather than ethnic Malay Malaysians.
[5] DFAT Country Information Report, Malaysia, 19 July 2016, sections 3.11-3.15, 3.78 and 5.5-5.8.
[6] 2013, ‘04, 08 Gangs identified as most dangerous and active’, Mysinchew.com, 30 August, source: Bernama < type="1">
The Tribunal also found unconvincing the applicant’s claim that as an Indian Muslim he felt he didn’t belong. This comment reflects the theme of the 2014 article ‘Tamil Muslims facing identity crisis’ submitted by the applicant. The article suggests that many Tamil Muslims in Malaysia see benefits in aligning themselves with the majority ethnic Malay Muslims, including to seek access to affirmative action policies that benefit that group, but which leads them to cease to identify as ethnic Indian. When queried regarding what broader difficulties he had experienced as a consequence of being an Indian Muslim and feeling that he did not belong, the only issue the applicant raised was that he had sought assistance both from the MIC (Malaysian Indian Congress) and UMNO (United Malays National Organisation) in relation to the claimed problems he was experiencing with gang members. He claimed that neither organisation wished to assist him, but that the MIC suggested he seek assistance from a Muslim organisation and UMNO suggested he seek assistance from an Indian association. As the Tribunal does not accept (for the reasons outlined above) that the applicant was suffering harassment and threats from members of the Tiga Line gang, the Tribunal does not accept that the applicant sought assistance either from the MIC or UMNO regarding this issue. In relation to the broader issue of a support organisation for ethnic Indian Muslim Malaysians, however, the Tribunal notes that since 1976 there has been a political organisation in Malaysia specifically for the Malaysian Indian Muslim community, known as KIMMA (Kongres Indian Muslim Malaysia or the Malaysian Indian Muslim Congress). The KIMMA website[7] indicates that KIMMA is an organization dedicated to Indian Muslims ‘who speak out loud to champion the interests of the Indian Muslim community in politics, religion, social, economic and education’ and that, since its inception, KIMMA has opened offices in 12 states in Malaysia. The website indicates that the KIMMA president was elected to the Malaysian senate in 2011 and re-elected for a second term in 2014, and that in 2010 KIMMA was accepted by UMNO as a coalition partner. The website indicates that KIMMA’s membership has now reached 285,786. The Tribunal considers that the applicant could seek advice and support from KIMMA in relation to any broader issues he was facing or may face in the future as an ethnic Indian Muslim.
[7] Kongres Indian Muslim Malaysia (KIMMA) at >
Having carefully considered all of the applicant’s evidence, the Tribunal does not accept that the applicant was harassed, threatened and/or assaulted by ethnic Malay members of the Tiga Line gang because of his ethnic Indian Muslim background or for any other reason. The Tribunal does not accept that there was an incident about three years ago where gang members damaged furniture at the restaurant the applicant was managing, sought to help themselves to cigarettes and demanded cash from the [staff member], beat or slapped the [staff member], assaulted the applicant and/or threatened to kill the applicant. It follows therefore that the Tribunal does not accept that the applicant called the police regarding this matter and the police attended the restaurant but failed to take appropriate action. It also follows that the Tribunal does not accept that the applicant experienced ongoing problems with Tiga Line gang members coming to his restaurant, having meals, leaving without paying and mocking and/or threatening the applicant, as a consequence of the claimed initial incident. The Tribunal also does not accept that the applicant experienced problems with Tiga Line gang members regularly coming to eat at his restaurant, leaving without paying and threatening him, independently of the claimed initial incident. The Tribunal finds that the applicant has not made out his claims that Tiga Line gang members and/or police harassed and threatened members of the applicant’s ethnic Indian Muslim community generally, including his family members, and were involved in the disappearance and killing of members of the community. The Tribunal also finds that the applicant’s evidence does not support the contention that ethnic Indian Malaysians or ethnic Indian Muslim Malaysians generally suffer disadvantage or discrimination amounting to serious or significant harm. Given the above, the Tribunal does not accept that there is a real chance the applicant would suffer persecution involving serious harm due to his race and religion, or due to his race, from Tiga Line or other ethnic Malay gang members and/or the Malaysia police or other authorities, should he return to Malaysia in the foreseeable future.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). Having regard to the findings of fact set out above, the Tribunal also is not satisfied that there is a real risk that the applicant would suffer significant harm from members of the Tiga Line gang or other ethnic Malay gangs and/or the Malaysian police or other authorities, or anyone else, due to his race and religion or his race, or for any other reason, as a necessary and foreseeable consequence of being removed from Australia to Malaysia. It follows therefore that the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
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.
…

Ahmad, R 2013, ‘Gang member data sparks fears of racial profiling in Malaysia’, The Straits Times, 2 September < Y M 2013, ‘Some 36,000 suspected criminals have been arrested, says minister’, The Star Online, 10 December < ‘Colleague’s death has spurred us on, say police’, The Star Online, 24 September < ‘Former IGP: Gangs running rampant in country’, Malay Mail Online, 29 July <

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Citations

1613390 (Refugee) [2017] AATA 2923

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

MIMA v Rajalingam [1999] FCA 179

[2017] AATA 2923

10 November 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction