1615067 (Refugee)

1615067 (Refugee) [2017] AATA 1668 (14 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615067
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Peter Vlahos
DATE:14 September 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 September 2017 at 9:17am

CATCHWORDS
Refugee – Protection Visa – Malaysia – Former triad member – Threats from triad – Credibility issues – State protection available
LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997)191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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] September 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 Protection (subclass 866) visa [in] May 2016.
[In]September 2016 the Department of Immigration and Border Protection (the Department) refused to grant the Protection visa.
On 19 September 2017 the applicant lodged an application for review with the Tribunal requesting a review of the Department’s decision to refuse the applicant’s Protection visa.
The applicant appeared before the Tribunal on 4 September 2017 to give evidence and to make submissions and present arguments. At the hearing the Tribunal and the applicant were assisted by an interpreter in the Malay and English languages.
The applicant was not represented by a legal representative or registered migration agent.
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 respect to the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality and Identity
Based on copies of the applicant’s passport which was provided to the Department of Immigration and Border Protection (the Department), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has assessed her claims against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Migration Act (as amended) (the Act).
On the basis of the abovementioned reasons, the Tribunal further accepts the applicant’s identity as claimed.
The applicant’s background – visa history
The applicant arrived in Australia from Malaysia [in] November 2015 and [in] February 2016 the applicant’s [temporary] visa ceased and the applicant became unlawful.
[In] May 2016 the applicant applied for Protection (Class XA) visa and associated bridging visa was granted by the Department.
The applicant’s claims for protection
The applicant made the following claims for protection in his application for Protection he submitted to the Department of Immigration and Border Protection:
§ He claims he left Malaysia because he was a former Triad member and the head of the Triad did not approve the applicant’s request to leave the gang.
§ The applicant claims that sworn Triad members cannot resign or exist the gang; they can only die or be murdered.
§ The applicant claims that he managed to escape the gang and came to Australia.
§ The applicant claims that he will not be safe in Malaysia as the Triad group will not stop looking for him. He is certain he will be killed and his family’s life will be jeopardised if he lives with them.
§ The applicant claims that Triad members are in the whole country and it is very easy for them to find him.
§ The applicant does not trust the authorities in Malaysia because they are connected with the Triad and he will not be protected.
The applicant was asked by the Tribunal if these were the only claims for protection he wished the Tribunal to consider or did he wish to vary them or provide further claims. The applicant told the Tribunal that he original claims as submitted to the Department were the claims he wished the Tribunal to consider.
The applicant originates from Kota Kinabalu, in the state of Sabah, Malaysia. He was born in [year] and is [age]. He is also a Sunni Muslim. He is not married and has parents and a [brother] in Malaysia. The applicant completed his [schooling]. Before leaving Malaysia for Australia the applicant told the Tribunal that he worked for three years with a moneylender.
According to the applicant, his work with this moneylender was to collect the moneys owed by clients. The applicant went on to tell the Tribunal that his association with the criminal syndicate described as the Triad began with a friend (who he did not name) who introduced him to this group. After that introduction to the Triad, the applicant was taught the group’s ‘rules’ and ‘techniques’.
This group’s activities was described by the applicant to the Tribunal as primarily being concerned with the loan of ‘money’ to ‘clients’ at an ‘agreed’ percentage of interest. The applicant’s main responsibility as a member of the group was to go around (where he was told to go) and collect those commitments those were due from each client and return the money to the group.
This group was not a legally registered finance company according to the applicant.
What made the applicant to want to leave this Triad group?
The applicant told the Tribunal that after a while of doing these activities – collecting moneys for this group, he wanted to ‘change’
The group leaders approached the applicant to warn him not to leave the group. The applicant then fled for safety to his parents’ home.
The applicant told the Tribunal that the only time the Triad located his whereabouts at his parents’ home was when he had finally left for Australia.
How did the Triad locate the applicant’s whereabouts at his parents’ home?
The applicant explained to the Tribunal that his whereabouts at his parents’ home was possible to be ‘tracked’ by the Triad because they had a copy of his National Identity Card (NIC).
What did the Triad say and do to the applicant’s parents when they did not find him there?
The applicant told the Tribunal that the Triad demanded ‘money’ from the family and then they located the applicant’s belongings and ‘took them.’
Why didn’t the Triad locate the applicant while he was in Malaysia when as claimed by the applicant they had an extensive network throughout Malaysia?
The applicant told the Tribunal that he was able to successful in avoiding the Triad because he did not stay for long in the one area. In other words, the applicant would move around frequently.
When did the dispute with the Triad occur?
In response, the applicant told the Tribunal that his dispute with the Triad group began in 2014 and only located his family in 2015 when he had come to Australia.
Does the Triad know that the applicant is in Australia?
The applicant believed that the Triad knew from friends that told them that he was in Australia.
Has the Triad threatened the applicant’s family in his absence?
The Tribunal was told that the applicant’s family has not experienced any physical harm but their property and their car was damaged as a reprisal for the applicant’s actions.
Have these threats been reported to the local police?
The applicant told the Tribunal that no reports have been made to the local police because his family members are ‘too afraid’ to do so – fearing further reprisals.
Does the applicant have faith in the Malaysian police to protect him against the Triads?
The applicant told the Tribunal that he has faith in them and it did ‘cross’ ‘his mind’ to report matters to the police but because he had been a ‘member’ of this group he felt ‘guilty’.
Discussion of country information with the applicant
The Tribunal also referred to country information on Malaysia from DFAT in relation to police in Malaysia. DFAT reports that credible local and international sources indicate that the police are a professional and effective force. DFAT acknowledge that the police responses depend on their levels of training or whether they are engaged in corruption themselves. While acknowledging that corruption in the police force is a concern, measures have been put in place to look at and investigate the issue of police corruption but overall, DFAT assesses that there is an effective police force who generally do investigate crimes.
The Tribunal explained to the applicant that it was obliged to put information to him that addressed some of the issues he had raised in particular about criminal gangs and their various illegal activities in Malaysia and lack of protection available to him. The Tribunal explained that it was obliged to take into this into consideration in assessing his claims. The Tribunal referred to Malaysian and other media outlined herein that the police are very concerned about the issue of illegal gangs in Malaysia because it is a big problem and there have been a lot of reports in the Malaysian media to try and make people aware about the problem of illegal moneylenders and their illegal activities and they have encouraged people to report these. The media on this issue indicates there has been a concerted effort to address illegal gangs and their activities and they appear to have targeted moneylenders and associated criminal gangs.
The applicant was invited to comment on this information and noted that the totality of the country information that had been referred to suggested that effective state protection was available to the applicant and the Tribunal asked if he would like to comment.
The applicant accepted without expressing dissent the country information the Tribunal discussed with him.
What was the applicant doing while he has been here in Australia?
The applicant has been working on a [farm] earning approximately AUD$[amount] per week but does not send any part of his wage earnings to his family back in Malaysia.
What would happen to the applicant if he returned to Malaysia?
The Tribunal was told that the applicant would face a threat from the Triad because his actions in leaving them caused them to lose a significant amount of money. At first, the applicant quantified the loss earning he was responsible for in the amount of RM[amount]K but (according to the applicant) the Triad were demanding RM[amount]K.
Can the Triad locate the applicant if he was to return to Malaysia?
The applicant was certain that that Triad would locate him if he returned to Malaysia because they ‘had many branches throughout Malaysia.’ The Tribunal questioned the group’s ability to successfully locate the applicant because they had failed to do so when he first left Malaysia for Australia in 2014-2015. The applicant’s response was to tell the Tribunal that on that occasion he was assisted by a ‘friend’ (he did not name) who was still a member of the Triad and secured for him a ‘safe passage’ out of Malaysia.
Moreover, the applicant was not confident that the Malaysian police can provide him with protection if he returned to Malaysia. However, in recent times, his parents have not been threatened or disturbed by the Triad.
Applicant’s concluding remarks to the Tribunal
The applicant recollected and told to the Tribunal the name of the Triad group’s leader’s which was “[name]” but offered no further information. The applicant could not remember when asked the name of the Triad ‘group.’
Country Information – Malaysia Gangs/Crimes
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 Mayasian Insider that the police had arrested 5,505 people for various crimes, including armed robbery, theft, vehicle theft, extortion and secret society activity. According to the report:
“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 < Accessed 30 August 2016 <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 < Accessed 30 August 2016 <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, 11July < Accessed 26 March 2015 <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, < Accessed 30 August 2016 <CX1B9ECAB11433>
Astro Awani reported on 1 August 2016 that following a spate of shootings in the country, Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi requested Ops Cantas be ‘further enhanced’.[6]
[6] Hasnan, H A 2016, ‘Ops Cantas 2 to involve three elite police teams’, 1 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8261>

On 6 August 2016 ‘Op Cantas Khas 2’ was launched on 6 August. Astro Awani reported that on 13 August 2016 1,444 individuals had been arrested since the start of the crackdown.[7]
[7] ‘Op Cantas crackdown on triads: 1,444 arrested’, 13 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8262>
Law enforcement in Malaysia
In its 2014 country report, the Australian Department of Foreign Affairs and Trade (DFAT) provided a brief overview of the state of law enforcement in Malaysia:
Law enforcement entities operate at both federal and state level. The Royal Malaysian Police (RMP) reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide. The federal Department of Islamic Development (JAKIM) enforces sharia law and has jurisdiction over Muslims in Kuala Lumpur and the two other federal territories. The RMP and JAKIM operate independently and only occasionally work together. The Malaysian army is not heavily engaged in domestic activities apart from some anti-terrorist campaigns and is not relevant to State protection under this report.
The same report also draws the reader’s attention to the following:
§Credible local and international sources consider the RMP to be a professional and effective police force. However the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption. RMP officers receive limited training, particularly on human rights.
§Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern.
§The RMP is 80-85 percent ethnic Malay. In 201 4, the Government commenced a campaign to increase the number of women, ethnic Chinese and Indians in the RMP.
§There is no legal requirement for the state to investigate deaths in RMP custody. Investigations generally occurred at the request of the Attorney General but were often instigated as a result of public interest.
§The National Human Rights Commission (Suhakam) also receives complaints against RMP and has conducted investigations into police behaviour. However, the Government is not required to formally consider Suhakam’s reports or recommendations.
Freedom House reported in 2015 that:
Government and law enforcement bodies have suffered a series of corruption scandals in recent years. The Malaysian Anti-Corruption Commission (MACC) has itself come under scrutiny for its interrogation practices, as two suspects have died after falling from MACC office buildings since 2009.
Government favouritism and blurred distinctions between public and private enterprises create conditions conducive to corruption. Officials regularly move back and forth between the private and public sectors, fostering many opportunities for collusion and graft. Political parties are allowed to own or have financial holdings in corporate enterprises. The Whistleblower Protection Act took effect in 2010 but has not significantly improved accountability.[8]
[8] ‘freedom in the World 2015:Malaysia’, Freedom House, 5 May 2015<NG5A1E6BC218>
According to Transparency International’s corruption index for 2014, Malaysia’s situation has improved and, out of a total of 175 countries, moved up three spots from 53 to 50.[9] However, survey results also showed “…that the perception of the government’s anti-corruption efforts has deteriorated, with 38% of Malaysians saying they are ineffective.”[10]
[9] ‘Corruption Perceptions Index 2014’, Transparency International, 5 December 2014.
[10] ‘Political parties perceived to be most corrupt, says survey’, Malaysian Insider, 14 May 2014.
Regarding malpractice in Malaysia’s security forces, DFAT in its country report – Malaysia, dated 19 July 2016 reports that:[11]
[11] Department of Foreign Affairs and Trade (DFAT) Country Report – Malaysia, 19 July 2016, at pp.25-26
Police Integrity and Accountability
5.6 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion. ….
5.8 The Inspector General of Police announced the establishment of an Integrity and Standard Compliance Department in July 2014 to enhance police integrity and image, however as it sits within the RMP organisational structure, it is not an independent body. Suhakam also receives complaints against the RMP and has conducted investigations into police behaviour. However, the Government is not required to formally consider Suhakam’s reports or recommendations. In January 2016, Human Rights Watch reported that the government has not established an independent police complaints and misconduct commission, despite lobbying from the Malaysian Bar Council and civil society groups.
Judiciary
5.11 The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level and subordinate courts. Sharia courts operate at state level with jurisdiction over Muslims. The majority of Malaysia’s criminal, civil and family law matters are heard in the subordinate civil courts. Judicial appointments are made by a Judicial Appointments Commission; however the Prime Minister has final approval. The majority of the members of the Federal Court are Malay Muslims. Malaysia’s highest courts are somewhat influenced by political or religious affiliation. For example, credible local and international human rights organisations considered the prosecution of Anwar Ibrahim to be politically motivated (see ‘Political Opposition Members’, above). In July 2015, the government removed the Attorney General, Abdul Gani, who had been leading an investigation into 1MDB.
5.12 Credible sources advised that defendants generally had adequate time to prepare a defence, particularly where they had financial means to engage private counsel. Government legal aid resources were limited and generally of poor quality. Strict rules of evidence apply in court. However, state-held evidence was not consistently made available to the defence. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods; the International Center for Prison Studies reported that in mid-2014 24.8 per cent of the total prison population were pre-trial detainees.
5.13 The ability for individuals to seek legal redress through Malaysian courts is mixed. Judges receive relatively low salaries, limited training, and appointments were often made directly from university. Selective prosecution and arbitrary verdicts occurred, particularly in instances involving high-profile opposition politicians and human rights defenders. However, the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.
FINDINGS AND REASONS
Credibility
The Tribunal does accept that the applicant was faced with a personal crisis as far as it concerned his wish to put a distance between himself and his criminal gang – the ‘Triad’ which he was a member. The Tribunal also accepts that the applicant’s wishes to distance himself from the activities of this criminal group may have caused him difficulties and he may have encountered the acrimony of his former gang members. However, the applicant’s version of events as submitted to the Tribunal at the hearing raises certain issues of credibility.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded”. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have the any responsibility or obligation to specify, or assist in specifying any particulars of the claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant. (MIEA v Guo (1997)191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70)
The Tribunal was told that the applicant is a member of a criminal gang – described to the Tribunal as the ‘Triad’ and decided to leave the group because he no longer wished to be involved in its money collection activities and stand-over actions over people in order to make them follow the gang’s demands. This decision caused acrimony between the applicant and the Triad gang. He took sanctuary in his parents’ home but was located there and threatened with violence if he did not return. The applicant did not report matters to the police because he feared reprisals against his family and feared that the police might take action against him because he had been a member of this Triad gang. The applicant, not being able to cope with this situation left Malaysia to come to Australia. The Tribunal does not find the applicant’s explanation as credible. Regardless, of how the applicant may have felt on that occasion which led him not to report his problems with his former gang, the country information referenced by the Tribunal reports that Malaysian authorities have been more proactive in recent years and effective in providing protection to persons who have been affected by the illegal activities of organised criminal gangs.
While it has doubts about the applicant’s credibility, the Tribunal has considered the applicant’s claims separately and cumulatively and is prepared to accept that the applicant was faced with a personal crisis as far as it concerned his wish to put a distance between himself and his criminal gang – the ‘Triad’. The Tribunal also accepts that the applicant’s wishes to distance himself from the activities of this criminal group may have caused him difficulties and he may have encountered the acrimony of his former gang members because of his decision to leave them. The Tribunal accepts on the basis of consistent country information that gangs in Malaysia resort to physical threats and assault to further their aims and although the applicant told the Tribunal he did not report incidents to the police because he did not want to place added dangers on his family and feared the police taking a dim view of his past activities as a member of a criminal gang, nevertheless, the Tribunal accepts, the applicant’s claim that if he was to return to Malaysia in the reasonably foreseeable future his whereabouts could be discovered by the gang members he fears and the applicant could face threats to his person and property. However, the Tribunal does not accept as credible the applicant’s claim that even though he faced threats the Malaysian police would not provide him with adequate protection should he require it. While the Tribunal accepts that there difficulties and inadequacies in the policing and judicial system in Malaysia generally speaking, having regard to the advice of the Department of Foreign Affairs and Trade (‘DFAT’) the Tribunal finds that the protection provided by the authorities in Malaysia consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system as required by s.5LA (2)(c) of the Act. The Tribunal considers on the evidence before it that this protection is durable and that the applicant can access it. The Tribunal does not accept that, as the applicant claimed the police are not willing or would forego a request by the applicant for protection because he had dealt with and was a member of a gang. The Tribunal therefore considers that effective protection measures as defined in s.5LA are available to the applicant in Malaysia and that he therefore does not have a well-founded fear of persecution in accordance with s.5J(2) of the Act.
Accordingly, the Tribunal does not accept that the authorities would be unwilling or forego the opportunity if requested to protect the applicant in his circumstances. There is no evidence before the Tribunal that the applicant seriously contemplated seeking the assistance of the police prior to his leaving for Australia via Kuala Lumpur International Airport. The applicant provided no credible reason why he could not take advantage of this state protection or seek the assistance of the Malaysian judicial system, except to claim that he had not chosen to file a police report when threatened because he feared for reprisals being carried out against his family by his former gang and that that the police could not provide him with effective protection as he required it if he was to return to Malaysia due to his past being a member of a criminal gang.
The Tribunal acknowledges country information referred to earlier, particularly to DFAT’s assessment of the Malaysian police who are generally considered to be professional and effective. The Tribunal also notes the advice from DFAT regarding police corruption, however this is recognised by the authorities in Malaysia and measures have been put in place to deal with this issue.
In relation to the overall effectiveness of the authorities in Malaysia, as noted earlier, the Tribunal has relied on the country information showing that Malaysia’s protection system consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system and measures have been put in place to address corruption. Police and indeed, the government, have been making a concerted effort since at least 2013 to combat organised gangs and crime syndicates and there is no evidence that the police would refuse the applicant any assistance, if he were to request it. The country information and media reports indicate the government has taken this issue seriously and has committed extensive resources to do so. This in the Tribunal’s view demonstrates that effective protection measures are available, namely that protection against serious or significant harm could be provided to the applicant by the Malaysian State, that protection is durable and the Malaysian State is willing and able to offer such protection.
For the reasons given above, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Malaysia in the reasonably foreseeable future and therefore the applicant is not a person in respect of whom Australia has protection obligations under 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 has considered the alternative criterion – complementary protection in s.36(2)(aa) of the Act.
Overall the Tribunal is satisfied that if in the future, the gang members threaten or attempt to harm the applicant, there are mechanisms in the Malaysian legal system, including a reasonably effective State police force (that country information demonstrates is active and committed to taking action in relation to the claimed fear) that means the applicant could obtain protection sufficient to reduce the likelihood of harm to something less than a real risk in accordance with s.36(2B)(b). Therefore, the Tribunal finds that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
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) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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).
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
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.
…

[2017] AATA 1668

14 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction