1615088 (Refugee)

1615088 (Refugee) [2017] AATA 2357 (4 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615088
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Peter Vlahos
DATE:4 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 October 2017 at 2:59pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Involvement with criminal gang – Fear of harm – Effective State protection – Credibility concerns
LEGISLATION
Migration Act 1958, ss 5, 5H, 5J, 5K-LA, 36, 65, 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
1.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).
2.The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] June 2016 and the delegate refused to grant the visa [in] September 2016.
3.The applicant appeared before the Tribunal on applied for review to the Tribunal of this decision on 21 August 2017 to give evidence and present arguments.
4.The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
5.The applicant was not represented in relation to this review by a registered migration agent or legal representative.

CRITERIA FOR A PROTECTION VISA
6.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.
7.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
8.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).
9.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.
10.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
11.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 of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Tribunal. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s country of nationality for the purposes of s.36 (2) (a) and receiving country for the purposes of the complementary protection assessment, s. 36 (2) (aa).
On the basis of the above-mentioned evidence, the Tribunal further accepts the applicant’s identity as claimed.
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s. 36 (3) of the Act.
Background – the applicant’s Migration history
The applicant first arrived in Australia [in] October 2015 on a [temporary] visa and [in] January 2016 he applied for a Student [visa]. This visa was granted [in] May 2016. [In] June 2016 the applicant applied for a Protection (Class XA) visa and was granted by the Department the associated bridging visa.
Background – the Applicant
The applicant is [an age] Malay-Indian of Tamil ethnicity. He resides in [an area], Kajan in the state of Selangor, Malaysia. He has been living in Kajan since his birth and his parents continue to live there. He has siblings who live in other parts of Malaysia. He is married.[1] The applicant told the Tribunal he had completed his education – having completed ‘[education level]’ at high school and had applied to further his education at another education institution – wishing to study for a ‘[a higher qualification]’. However, the applicant told the Tribunal that it is difficult for ‘Indians’ in Malaysia to get such placements and he continued to completed his ‘[level]’ education. The applicant also told the Tribunal that he applied to attend a Malaysian university (but did not name the university) but was ‘not successful’ because of the operation in Malaysia of ‘quota system’ which did not allow him as an Malay-Indian to enter a university as he wanted.
[1] The applicant’s wife had been in Australia but has returned (according to the applicant) to Malaysia.
The applicant’s claims
The applicant made the following claims in support of his application for Protection visa and the subject of review before the Tribunal:
§ The applicant claims he left Malaysia because of his involvement with a ‘gangster group’.
§ The applicant claims that as a part of the group, he was forced to undertake ‘bad activities’ including fighting, raping, and beating others.
§ The applicant claims that if he returns to Malaysia the ‘gangster group’ will harm him and mistreat him.
§ The applicant claims that the authorities will not protect him as he has no “confidence” in them.
The applicant told the Tribunal that he had an “association” with a gangster group but was “not actually a member.” The applicant went on to tell the Tribunal that when he found out that the group was “gangster” he tried to distance himself from it and its activities.
The applicant told the Tribunal that he would meet with this gangster group and listen to their description of the activities they had undertaken but when asked by the Tribunal whether he actually participated in their activities even as an ‘associate’ the applicant told the Tribunal that he did not.
The applicant told the Tribunal that his hesitation to participate in the gang’s activities caused him at times to be ‘mistreated’ and this was because he refused to formally join them as a ‘member.’ Indeed, it became difficult for the applicant to deal with this constant pressure because he and his ‘gang’ ‘associates’ according to the applicant lived in “same neighbourhood”.
The applicant told the Tribunal that there were a number of gangster groups operating in Kajan, where he lived and gave examples of the names of these gangster [groups] but provided no further details. He told the Tribunal the Malaysian authorities could not protect people in the applicant’s situation and he had no confidence in them.
The applicant told the Tribunal that gangster were a major problem in Malaysia. There are a lot of crimes which include ‘rapes, murders and drugs.’
The applicants described gangster individuals in Malaysia as being well educated and involved in criminal groups because of their general dissatisfaction with the situation in Malaysia.
It was the applicant’s view that the situation in Malaysia has worsened because the Malaysian government has a ‘preference for [ethnic] Malays’ over other Malaysians of different ethnic backgrounds.
How did the applicant’s problems arise in Malaysia which led him to come to Australia?
The applicant told the Tribunal that his life’s aim was to “make something of his life”. This meant that he had to achieve his education. To do this he borrowed money and gained entry at a college and began to study for a “[course]” He then wanted to progress to a “[higher] level” – a [higher level course]. However this dream was not realised because the applicant could not successfully complete all the semesters of study due to “financial problems.”
What followed was a “quarrel with his parents” because they could not afford to pay for the applicant’s tuition fees.
After this the applicant went to Joho Buru to stay with a friend for a period of time and to search for employment opportunities in [another country].
In 2006 (according to the applicant) he managed to find employment as an “[occupation]” in a [workplace] and also applied to work in [another workplace] for extra income but was not successful.
After working for approximately three to four months, the applicant returned to Kajan because he missed his parents and family.
While in Kajan, the applicant managed to find work (temporary) as an “[occupation]”. He had no experience in such work and was paid a RM[amount] wage a month and worked six (6) days a week.
Thereafter, the applicant wished to utilise his “[skills]” which had developed and this led him to apply for a full-time employment position with a company he named as ‘[name]’. The applicant told the Tribunal that this company was involved in ‘[business activities]’. His employment with this company lasted (according to the applicant) for a year.
Once the applicant had gained ‘some experience’ he applied and was employed by a company he named as ‘[name]’ which was a company also involved in [similar business activity]. The applicant worked with this company for [number of] years and left its employ only because of the economic downturn which hit Malaysia in recent times.
According to the applicant, life afterwards became very difficult for him. He could not earn enough money to maintain his lifestyle and had difficulties in meeting his day-to-day living costs.
How did the applicant get involved with a gang?
The applicant told the Tribunal that his involvement with this gang group began because in Kajan, he had a large group of ‘friends’ and he was a very keen sportsman. His keenness for sports activities enabled him to meet a wide range of people who would in time become his friends.
This involvement with ‘sports’ and ‘sporting groups’ relieved according to the applicant his anger and frustrations for not having had achieved his goals in education or in his employment endeavours.
As time progressed the applicant’s involvement in the sports provided him with opportunities to socialise with these same persons in more intimate circles, like group-organised parties and birthday celebrations.
However, according to the applicant his enthusiasm was to a degree dampened when he “accidently witnessed drugs and rapes.” He also told the Tribunal that on one occasion, he overheard them (members of the group) from a distance planning to “cover up their actions.”
The Tribunal was told that he knew there was something “wrong…but was afraid” and did not there and then decide to distance himself from this group of people.
Following these incidents, the applicant attended a group ‘picnic’. At this picnic, he witnessed some members of the group doing ‘drugs’ and these actions ‘upset him’ because it was not ‘his style’ and he thought he should have never attended. After observing the drug-taking at the picnic, he told the group that he was leaving them and he left and did not see them for two weeks.
Regardless of the distance the applicant placed between himself and this group, they continued to harass him. The Tribunal asked the applicant why this was possible. The applicant explained to the Tribunal that these persons lived in the same neighbourhood as him and it was not possible to completely avoid them.
The applicant did not tell his problem to his family or sought their help because (according to the applicant) his parents and his [siblings] were ‘hot-headed’ and ‘something might happen to the family.’
The Tribunal asked the applicant – why did he not involve the local police and sought protection from them. The applicant’s response was the “police would demand money” before they would do anything. He then told the Tribunal, that if he went and reported matters to the police they would “detain” him because he ‘socialised’ with such persons.
The applicant also told the Tribunal that on an occasion (did not tell the Tribunal a date) he saw “[number] members fighting in a field with the police and the police took them away” and feared being implicated in such activities.
The applicant told the Tribunal that he regarded these persons as friends and not as members of a gang. It was these friends that considered the applicant as a member of their gang. Indeed, according to the applicant, it was his fault (in hindsight) for not distancing himself from the group earlier in his association with them. He did try to place a distance between them, but they always approached him. Even so, the applicant told the Tribunal he never participated in any of their criminal activities.
What forced the applicant to come to Australia?
First, the applicant cited as reason his gang problem. He told the Tribunal the gang members lived in Kajan in close proximity to the applicant and this caused pressure on the applicant. Second, the Malaysian economy’s deterioration made it difficult for the applicant to find a good-paying job and had little prospects of making a proper living.
The applicant had a friend in Australia who advised him that there was the prospect of making “a lot of money in Australia by [working in a certain field].”
Also, the applicant told the Tribunal that he hoped while he and his wife worked in Australia, he could also study in Australia and complete his dream of having a good education.
The applicant also told the Tribunal that the economic downturn in Malaysia had affected greatly the Indian Malaysians because it was hard for them to find work in large companies or businesses because of a preference given to the Malays by the Malaysian government.
The applicant confirmed for the Tribunal that ‘economic issues’ had forced him to come to Australia.
What has the applicant been doing while here in Australia?
When the applicant first arrived in Australia, he commenced working at [a town], for [number] months but left that employment because his employer ‘cheated him.’ He then, found employment on another [workplace] [working]. After working for a while, the applicant accumulated enough funds to contemplate doing other things while here in Australia and his interest in education ignited.
In the interim period between working in [Australia] and determining for himself what studies he was capable of pursuing, the applicant sent his wife back to Malaysia. He then, found a private education provider in [city] and commenced his studies (in June 2016).[2]
The applicant told the Tribunal that his student visa allowed him only twenty hours work and he also managed to find work at a [workplace] in [town]. This work earned him a wage of AUD [amount] a day and the applicant work [number] days a week.
In time, the applicant found it difficult to balance the demands of work to earn a living and to attend his classes at his college. In time, he began to experience difficulties in paying in advance for his tuition (semester) fees. Ultimately, the applicant was unable to meet his obligations as a student and he was forced after [number] semester to abandon his hopes of successfully studying in Australia.
The applicant’s student visa was subsequently cancelled. He then decided to apply for a Protection visa hoping to stay here in Australia, earning a good wage here by working and this would enable him to support his parents and wife back in Malaysia.
[2] [Details deleted].
The applicant concluded his remarks to the Tribunal by stating that he also hoped to complete his studies in Australia.
Country Information – Criminal gangs/Crime – Legal enforcement and Judicial system in Malaysia
Criminal gangs
58.The Tribunal also notes that country information indicates that the Malaysian authorities have from time to time instigated operations against criminal gangs and crime syndicates. The country information suggests that these gangs and criminal syndicates are not tolerated by the authorities. For example, in August 2013 the Royal Malaysian Police Force launched Ops Cantas Khas against criminal gangs and crime syndicates. In September 2013, Gambling and Secret Societies Division (D7) principal assistant director Senior Assistant Commissioner Datuk Abdul Jalil Hassan told the Malaysian Insider that the police had arrested 5,505 people for various crimes, including armed robbery, theft, vehicle theft, extortion and secret society activity:
Abdul Jalil, adding that the police also seized other weapons, include 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.[3]
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.[4]
[3] ‘Police make 5,505 arrests in three weeks in crackdown on gangs, organised crime’ 2013, Malaysian Insider, 9 September
[4] ‘Cops deal crime a crippling blow since Ops Cantas Khas launch’ 2013, Star Online, 23 September,
59.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%.[5]
[5] “79,414 individuals detained throughout 'Ops Cantas Khas’” 2014, Bernama (Malaysian National News Agency), 10 June
60.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.[6]
[6] ‘Malaysia's gang menace’ 2014, Aljazeera, 11 July
61.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.[7] No independent analysis on the operation was found.
[7] ‘Police crackdown on gangsters still in full swing, IGP says’ 2014, Malay Mail on line, 9 October,
62.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’.[8] 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.[9]
[8] Hasnan, H A 2016, ‘Ops Cantas 2 to involve three elite police teams’, 1 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8261>
[9] ‘Op Cantas crackdown on triads: 1,444 arrested’, 13 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8262>
63.The Tribunal notes the most recent (19 July 2016) Malaysian country information report by the Department of Foreign Affairs and Trade (DFAT) remains essentially unchanged regarding law enforcement, police corruption and the legal system in Malaysia. Law enforcement entities in Malaysia operate at both federal and state level. In relation to the Royal Malaysian Police (RMP) DFAT reports that credible local and international sources consider it to be a professional and effective police force:
Royal Malaysian Police (RMP)
5.5 The RMP employs approximately 102,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Home Affairs Minister. 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.
Suhakam does conduct some human rights training and workshops for police and prison officials. Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern (see ‘Police Integrity and Accountability’, below). The RMP is 80–85 per cent ethnic Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.
64.In relation to police corruption in Malaysia, the Tribunal notes the following information by DFAT:
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.
65.The Tribunal also considered a report by Human Rights Watch in 2014 which has credited the Malaysian government for implementing many of the Royal Commission’s recommendations but have also noted that some of the key recommendations including improving investigative capabilities of the police and creating effective external accountability mechanisms have not been implemented.[10]
[10] No answers, no apology: Police abuses and accountability in Malaysia, Human Rights Watch, 2 April 2014 pp 22-23.
66.In its Country Information Report – Malaysia, DFAT provides the following summary regarding Malaysia’s judicial system:
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.
Malay Indians
67.The Tribunal also considered information and reports available to it concerning the situation as it exists in Malaysia concerning the day-to-day life and well-being of ethnic Malaysian Indians. The DFAT in its Country Information report – Malaysia reports the situation as follows:
3.11 Indian Malaysians constitute the third largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against Indian Malaysians.
3.12 Indian Malaysians predominantly live in major urban centres, including Kuala Lumpur, Penang, Negeri Sembilan, Selangor and Perak on Peninsular Malaysia. Most Indian Malaysians form part of the working classes but according to 2010 official figures they also represent a high proportion of professionals (15.5 per cent) including 38 per cent of the entire medical workforce. Access to primary and secondary education is high, with 524 state-based Tamil-language schools across Malaysia. However, access to state-based tertiary education remains low with approximately six per cent of student places at public universities offered to Indian applicants. The predominant use of the Malay language can be a major barrier to Indian employment in the civil service. However, in 2015 an Indian Malaysian was appointed as Chief of Police in Kuala Lumpur, the first non-Malay to hold this position.
3.13 While some belong to the upper-middle class, many Indian Malaysians remain poor, in contrast to increased prosperity in the Malay and Chinese communities. Gangs comprised of Indians make up the majority of street-level criminal gangs and Indian Malaysians comprise a disproportionately high number of incarcerated persons, with some figures suggesting they represent up to 48 per cent of the prison population.
3.14 Indian Malaysians freely participate in political life. The Malaysian Indian Congress is part of the ruling BN coalition but does not necessarily receive support from the bulk of the Malaysian Indian community, with many voting for the opposition in the 2013 elections. There are several members of parliament of ethnic Indian origin and three serving ministers within the current government as well as the current President of the Senate, appointed in April 2016.
3.15 DFAT assesses that while Indian Malaysians generally have a lower socio-economic position than bumiputera or Chinese Malaysians, they generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.[11]
[11] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, sections 3.11-3.15, p.10 <CIS38A80121311>
68.DFAT notes that despite poverty among all ethnic groups in Malaysia falling from over 50 per cent in the 1960s to 0.28 per cent in 2016, ‘[p]overty rates were 0.8 per cent for ethnic Malay, 0.1 per cent for ethnic Chinese and 0.6 per cent for ethnic Indians, based on the most recent available statistics per ethnic background, collected in 2014.’[12]
[12] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 2.9, p.6 <CIS38A80121311>
69.In its Country Reports on Human Rights Practices for 2015 – Malaysia, the USDOS report does not outline instances of discrimination against Chinese or Indian Malaysians. However, the report does emphasise that longstanding preferential policies exist for ethnic Malays:
The constitution gives ethnic Malays and other indigenous groups, collectively known as “bumiputra,” a “special position” in the country; a status not accorded to ethnic Chinese or Indians. Government regulations and policies provide for extensive preferential programs designed to boost the economic position of bumiputra, who constitute a majority of the population. Such programs limited opportunities for non-bumiputra in higher education and government employment. Many industries were subject to race-based requirements that mandated bumiputra ownership levels; government procurement and licensing policies favour bumiputra-owned businesses. According to the government, these policies were necessary to attain ethnic harmony and political stability.
Despite the government’s stated goal of poverty alleviation, these race-based policies were not subject to upper income limitations and contributed to a widening economic disparity within the bumiputra community. Ethnic Indian citizens, who similarly to ethnic Chinese citizens do not receive such privileges, remained among the country’s poorest groups.[13]
[13]US Department of State 2016, Country Reports on Human Rights Practices for 2015 – Malaysia, 13 April, section 6, pp.26-27 < Accessed 16 August 2016 <OGD95BE926273>
70.In 2016 Bertelsmann Stiftung made the following observations about Malaysia’s ethnic groups:
Politically and officially, the country’s population is divided into two categories: Bumiputera and non- Bumiputera. The Bumiputera group is made up of Malays and other indigenous peoples, while the non-Bumiputera group consists mainly of Chinese and Indians. This divide is evident in every facet of Malaysian life, from politics to food to university admissions.[14]
[In 1971] A New Economic Policy (NEP) was promulgated, providing extensive benefits to the Bumiputera (i.e., Malay) community through quotas, bank loans, scholarships, special licenses and so on.[15]
Although the NEP officially ended in 1991, economic policies since that time have changed little in character. They continue to include special rights for the Bumiputera, while at the same time promoting rapid economic growth to ensure that all ethnic groups receive their share of the economic pie.[16]
Nearly all Malaysian citizens accept the nation-state as legitimate, and all individuals and groups enjoy full citizenship rights without discrimination. However, the Malay majority population and the Islamic religion shape the character of the Malaysian state. Ethnic Malays dominate the country’s key political institutions, such as the parliament, the bureaucracy and the armed forces.[17]
Chinese and Indian citizens face explicit disadvantages when seeking public office, or employment in the state bureaucracy, public enterprises or the armed forces.[18]
[14] Bertelsmann Stiftung 2016, ‘BTI Malaysia Country Report 2016’, 29 February, p.3 < Accessed 3 March 2016 <CIS38A8012356>
[15] Bertelsmann Stiftung 2016, ‘BTI Malaysia Country Report 2016’, 29 February, p.4 < Accessed 3 March 2016 <CIS38A8012356>
[16] Bertelsmann Stiftung 2016, ‘BTI Malaysia Country Report 2016’, 29 February, p.4 < Accessed 3 March 2016 <CIS38A8012356>
[17] Bertelsmann Stiftung 2016, ‘BTI Malaysia Country Report 2016’, 29 February, p.6 < Accessed 3 March 2016 <CIS38A8012356>
[18] Bertelsmann Stiftung 2016, ‘BTI Malaysia Country Report 2016’, 29 February, p.22 < Accessed 3 March 2016 <CIS38A8012356>
FINDINGS AND REASONS
Credibility
71.The Tribunal does accept that the applicant was faced with a personal concern as it involved his desire to put a distance between himself and a group of ‘friends’ he claimed were involved in criminal activities as a ‘gangster gang’ with whom he was associated but not as a member (only on a social basis). The Tribunal also accepts that the applicant’s desire to distance himself from this group may have caused him difficulties and he may have encountered and experienced a measure of displeasure from this group. However, the applicant’s version of events as submitted to the Tribuanl at the hearing raises certain issues of credibility.
72.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 farm 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 the 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 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 (see, 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).
73.First, the Tribunal was told that the applicant was a very sociable individual in Malaysia and through his love and appreciation of the sports he made friends with a wide circle of persons, whom the applicant described to the Tribunal as his friends. Over a period of time, the applicant’s association with this group of friends made him witness certain illegal activities which he disapproved and he tried to distance himself from associating too close with this group. Regardless of placing a distance between him and this group, the applicant claimed being pressured to associate with them because he was living in close proximity to this group. Indeed, the applicant did not report matters he heard and witnessed to the local police because he believed the police would demand money in order to act and might also detain him because he socialised with such people. The applicant not being able to cope or feel secure in Malaysia left to find sanctuary in Australia. The Tribunal does not find the applicant’s explanation of events as credible. Regardless, of how the applicant may have felt which led him not to report his problem with his friends to the police, the country information referenced by the Tribunal notes that the 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 criminal gangs.
74.While it has doubts about the applicant’s credibility, the Tribunal has considered the applicant’s claim and is prepared to accept that the applicant was faced with a personal dilemma as far as it concerned his wish to put a distance between himself and his friends who were operating as criminal gang. The Tribunal also accepts that the applicant wished to distance himself from the criminal activities of this group and this may have caused him difficulties and he may have encountered pressures from his former friends because of his decision to associate less with them. The Tribunal accepts on the basis of consistent country information that gangs in Malaysia resort to physical threats and assaults 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 himself and feared the police taking a dim view of his being associated with this criminal gang.
75.However, 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 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 had associates who were members 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.
76.Accordingly, the Tribunal does not accept that the authorities would be unwilling or would 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 because he feared for reprisals being carried him by the police because of his association with this criminal 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 associated with a criminal gang.
77.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.
78.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.
79.Secondly, the applicant claimed that the economic downturn in Malaysia had affected greatly Indian Malaysians like himself because it had become difficult for Indian Malaysian (like him) to find work in large companies or businesses because of the racial preference being given to the ethnic Malays by the Malaysian government. The applicant’s claim is vague, lacks substance and credibility. The Tribunal noted at paragraphs [33] and [34], the applicant’s evidence to have worked in ‘[occupation]’ for one year in the private company called ‘[name]’ and then gained employment for a company called ‘[name]’ again in [occupation] and worked for that company for eight years. While the Tribunal accepts based on country information that there is a ‘special position’ called the bumiputra operating in Malaysia which provides for extensive preferential programs designed to boost the economic position of ethnic Malays in higher education and government employment, DFAT assessed that while Indian Malaysians generally occupy a lower socio-economic position, they do not experience discrimination or violence on day-to-day basis (see paragraph [67]) or any impediment when seeking employment in the private sector in Malaysia. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for reasons of race, religion, nationality or for membership of a particular social group or any other reasons pursuant to s.5J(1)(a) (b) and (c) of the Act.
80.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.
81.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.
82.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). Also that the applicant will not 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.
83.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.
84.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).
85.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
86.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 2357

4 October 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness