1615689 (Refugee)

1615689 (Refugee) [2017] AATA 2996 (6 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615689
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Joseph Lindsay
DATE:6 December 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 06 December 2017 at 11:26am
CATCHWORDS
Refugee – Protection visa – Malaysia – Debt to money lenders – Unable to repay – Threats of harm – Did not tell police – Effective police force in Malaysia
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36 (2A) and 36 (2B), 65, 499
Migration Regulations 1994, Schedule 2

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).

CRITERIA FOR A PROTECTION VISA
2.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.
3.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.
4.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).
5.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.
6.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
7.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 AND ASSESSMENT OF CLAIMS, EVIDENCE AND FINDINGS
8.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Background
9.The applicant arrived in Australia from Malaysia [in] March 2016 while holding a [temporary] visa. The applicant then applied for a class XA subclass 866 visa [in] June 2016 and was granted an associated bridging visa.
10.The Minister’s delegate refused to grant the protection visa [in] September 2016.
11.On 26 September 2016, the applicant applied to the Tribunal to have the delegate’s refusal decision reviewed. The decision record was attached to this review application.

Identity
12.The applicant’s claimed identity is [name] born on [date] in Malaysia, and claims to be a citizen of Malaysia.
13.The applicant provided a copy of her passport (issued [in] 2016, passport number [number deleted]).
14.I have taken into account the cop of the applicant’s passport. There is no information to suggest that the applicant has provided false information in relation to their identity. The Tribunal finds that the applicant is [name] born on [date] in Malaysia, and is a citizen of Malaysia.

Receiving Country
15.The Tribunal has found that the applicant is a citizen of Malaysia and accordingly the Tribunal finds that Malaysia is their receiving country.

Protection in Another Country
16.The applicant has indicated that they do not have a current right to enter and reside in a country other than Malaysia. There is no information to suggest that the applicant has a right to enter and reside in another country other than Malaysia. The Tribunal finds that the applicant does not have a current right to enter and reside in a country other than Malaysia and, accordingly, the Tribunal finds that s36(3) of the Act does not apply to the applicant.

Applicant’s claims at hearing
17.The applicant’s oral claims at hearing are summarised as follows:
·The applicant attended university in Malaysia.
·The applicant was supporting herself through her studies but also received assistance from her brother and sister.
·The applicant was scheduled to sit her exams in January 2016 but owed the university money for her tuition fees and was required to pay that money (in this case [amount] ringgit) before being allowed to sit her exams.
·The applicant was not able to obtain the necessary funds from her family.
·In December 2015, the applicant noticed an advertisement from a licenced money lender and decided to borrow the money from them to pay her tuition fees.
·The applicant then borrowed the money ([amount] ringgit) from the licenced money lender, paid her tuition fees and sat her exams in January 2016.
·When the new university semester commenced in March 2016, individuals from the licenced money began harassing her by coming to her university with demands that she repay the loan. The individuals from the licenced money indicated that the loan amount had by now increased to [amount] ringgit. This situation quickly progressed to threats from the individuals from the licenced money to her that she would be raped if she did not repay the loan. The applicant did not report the incident to police.
·The applicant was embarrassed to continue her studies at the university and withdrew from her studies.

The individuals from the licenced money lender went to the applicant’s mother’s house and harassed her mother, which led to her mother leaving that house to stay with her sister in [district] in Kuala Lumpur.
·The applicant then left Malaysia and came to Australia.

The applicant’s mother’s former landlord contacted her mother asking “why are people at the house” indicating that the individuals from the licenced money lender kept going back the former residence looking for the applicant or her family in order to get the money back from them.
18.At the hearing, the applicant provided documentation from the university she had been enrolled in. The documentation indicated that she had been enrolled at the university from [year] to [year] undertaking a [course].
19.The Tribunal considered the applicant’s written claims to the department. The applicant indicated that she actually paid for someone else to write her claims for her in her application and that there was some errors in that application. The Tribunal noted that the applicant had signed the declaration that the information she supplied was complete, correct and up to date in every detail and had indicated on her application to the department that she had not received assistance in completing the application.
20.The Tribunal considered question 89 of the departmental application “why did you leave that country” and the applicant’s written response, which was as follows:
I have been involved in lending money from money lender without licence which is call sharkloans. The reason why I lend the money is because of my family cannot afford for the cost of my study and living cost in university. I have been to repay the debt but as a result of the interest charged is too high, make my debt increasing and because I can’t afford to repay the loan, I have threatened to be raped and murdered. I could not resist the pressure and decided to stop learning from the university and come here. I really need a protection for a better life of mine.
21.The applicant indicated that the money lender she borrowed from was in fact licenced and not unlicensed. The applicant also indicated she was not threatened to be murdered by anyone let alone the money lenders. The applicant indicated that the sexual assault threat occurred on one occasion but that she never went to the police about it. The applicant assisted the Tribunal to identify the money lender she loaned the money from (found by typing “[name]” in Google and this comes up at the internet address [address deleted]).
22.The applicant spoke in further detail about her interactions with the money lender. The applicant indicated that:
·She went to the money lender’s office with her [brother].
·The money lender asked how much she wanted to borrow but they did not tell about the interest rate.
·The money lender told her not to worry about the interest rate and just said it was a low interest rate.
·The money lender’s office was in [suburb], in a building facing a [venue], at a corner of a row of [buildings] on the [certain] floor, and there is a big sign.
23.The applicant indicated that she received the money from the money lender in the week before the new year of 2016.
24.The applicant then spoke about the incident where she was confronted by the money lenders at her university in March 2016. The applicant indicated that this happened a number of times. The applicant spoke of one particular occasion where two men from the money lender’s office found her in front of the university campus, and while initially they were nice and gave her an extension of time of 2 or 3 weeks to pay the loan, they came back the following week and threatened her to pay or otherwise they would rape her.
25.The Tribunal asked the applicant about how the money lenders found out about her mother’s address and the applicant indicated she had given her mother’s address to the money lenders for the loan but that she was in fact living at a separate address with a university friend (an address that the money lender did not know about and so she felt safe there as it also had security). The applicant indicated that she did not tell her mother about what she was planning to do before she went to the money lenders because she knew her mother would worry.
26.The applicant indicated that she spoke to her sister who suggested she could repay the loan bit by bit and also the applicant indicated she was working part time and was earning some money selling [items] at [location], where she could earn [amount] ringgit per day, and could support herself.
27.The applicant indicated that her mother no longer rents the property she was living in previously.
28.The applicant indicated she has repaid [amount] ringgit whilst in Malaysia but does not know how much she currently owes. The applicant indicated she has not paid the money lenders any more money since then. The Tribunal queried this issue with the applicant but the applicant indicated her reluctance to pay any more money to the money lender due to her belief that the money lender would find out she was in Australia. The Tribunal noted that internet money transfers were possible without necessarily disclosing the physical location of the transferor.
29.The Tribunal asked the applicant why she did not go to the police, and the applicant responded she was under a lot of stress and thought about her options and so decided to come to Australia.
30.The Tribunal considered question 90 of the departmental application “what do you think will happen if you return to that country?” and the applicant’s written response, which was as follows:
If I return, I’m not sure what will happen to me and I am very sure that there will be something bad happen if they (the debt collector) find me.
31.The applicant indicated that Kuala Lumpur is a small place and if she were to stay at her auntie’s house and go to work they would probably find her. The Tribunal noted that there were 1.5 million people in Kuala Lumpur and over 28 million people in Malaysia, and probably was not so small. The applicant said they might be able to find out information about her the way they found information about her studies.
32.The Tribunal considered question 91 of the departmental application “did you experience harm in that country?” and the applicant’s written response was “yes” and the text was as follows:
I have been threatened to be harmed raped and killed if I fail to pay back the loan money by the debt collector.
33.The applicant indicated that she was threatened with sexual assault but not death. The Tribunal indicated that it would be reasonable to expect that a person who was subject to a threat of sexual assault would have gone to the police. The applicant indicated that at the time she was confused as to what to do and that police tend to do nothing about matters concerning loan sharks. The Tribunal referred to media reports including from The Star Online dated 18 April 2017 ( indicating that Malaysian police were in fact taking loan shark matters seriously. The applicant indicated that she borrowed money from a licensed money lender, that there was someone big behind them backing them up and their tactics were the same as unlicensed money lenders. The Tribunal indicated that the threat of sexual assault is a criminal matter in both Malaysia and Australia and, whether the threat came from money lenders or not, the threat of sexual assault is still a criminal matter that would warrant reporting to police. The Tribunal indicated to the applicant that it appeared she had chosen not to avail herself of state protection and that the country information available to the Tribunal indicated that the Royal Malaysian Police are considered an effective and efficient police force by local and international sources. The applicant indicated her view that maybe the Malaysian Police would take action in big cases but when it comes to cases like incest and sexual assault, no action would be taken.
34.The Tribunal considered question 92 of the departmental application “did you seek help within that country after the harm?” and the applicant’s written response was “no” and the text was as follows:
I was involved in a matter involving a loan from loan sharks. It is very difficult to get help because most friends or relatives also having financial difficulty. They did not dare to help because their fear of being harassed or abused by debt collectors.
35.The applicant indicated she did ask for financial help from members of her mother’s family but they were unable to help her because they run small business selling [certain items], and that all they could do was get her mother to stay with one of them.
36.The Tribunal considered question 93 of the departmental application “did you move, or try to move, to another part of the country to seek safety?” and the applicant’s written response was “yes” and the text was as follows:
I could not move to another place because there is no guarantee of safety if I moved.
37.The applicant indicated that she did not try to move anywhere else because she knew nobody outside of Kuala Lumpur and also she had no money to move.
38.The Tribunal considered question 94 of the departmental application “do you think you will be harmed or mistreated if you return to that country?” and the applicant’s written response was “yes” and the text was as follows:
I have been threatened with death if I can not solve all my debts and probably would be killed if I return to my country.
39.The Tribunal noted that the applicant had previously indicated that she not been threatened with death but had been threatened with sexual assault. The applicant indicated if she went back to Malaysia she would meet with the licensed money lenders to discuss settlement where the debt is probably in the tens of thousands so she would probably be issued with the same threats of sexual assault. The Tribunal noted that the applicant had made no attempt to repay any of her debt whilst in Australia. The applicant indicated she did not want to contact the money lenders because she did not want them to know her Australian number and usually when she sends money home she would send it to her [sister’s] bank account and she does not want her [sister] to get involved.
40.The Tribunal noted that it was a licensed money lender she was dealing with, to which the applicant agreed it was a licensed money lender. The Tribunal noted that at the same time the applicant said she had this fear, she was not willing to seek help from the police. The applicant indicated that after she received the threat she immediately made plans to come to Australia.
41.The Tribunal considered question 95 of the departmental application “do you think the authorities of that country can and will protect you if you go back?” and the applicant’s written response was “no” and the text was as follows:
A case involving unlicensed money lender or shark loans will not get the attention of the authorities of Malaysia. I sure they can’t protect me on the time I needed.
42.The applicant indicated that was what [name] (the person who completed her application for her) ticked but that the answer to that answer was in fact “yes.”
43.The Tribunal considered question 96 of the departmental application “do you think you would be able to relocate within that country?” and the applicant’s written response was no and the text was as follows:
There is no guarantee of safety wherever place I moved within my country.

44.The Tribunal noted the applicant’s previous response that she had not moved because she knew no-one outside Kuala Lumpur and that she did not have enough money anyway. The applicant indicated that she had nothing else to say.
45.The Tribunal asked the applicant if she returned to Malaysia what she would do, to which she indicated that she wouldn’t know where else to go except Kuala Lumpur but that she did not feel like she was safe for the moment and that she can’t go outside Kuala Lumpur because she knows no one.
46.The applicant indicated that she had nothing else to say to the Tribunal.
47.Based on the above information, the Tribunal makes the following findings:
·The applicant attended university in Malaysia.
·The applicant was supporting herself through her studies but also received assistance from her brother and sister.
·The applicant was scheduled to sit her exams in January 2016 but owed the university money for her tuition fees and was required to pay that money (in this case [amount] ringgit) before being allowed to sit her exams.
·The applicant was not able to obtain the necessary funds from her family.
·In December 2015, the applicant noticed an advertisement from a licenced money lender and decided to borrow the money from them to pay her tuition fees.
·The applicant then borrowed the money ([amount] ringgit) from the licenced money lender, paid her tuition fees and sat her exams in January 2016.
·When the new university semester commenced in March 2016, individuals from the licenced money began harassing her by coming to her university with demands that she repay the loan. The individuals from the licenced money indicated that the loan amount had by now increased to [amount] ringgit. This situation quickly progressed to threats from the individuals from the licenced money to her that she would be raped if she did not repay the loan. The applicant did not report the incident to police.
·The applicant was embarrassed to continue her studies at the university and withdrew from her studies.

The individuals from the licenced money went to the applicant’s mother’s house and harassed her mother, which led to her mother leaving that house to stay with her sister in [district] in Kuala Lumpur.
·The applicant then left Malaysia and came to Australia.

The applicant’s mother’s former landlord contacted her mother asking “why are people at the house” indicating that the individuals from the licenced money kept going back the former residence looking for the applicant or her family in order to get the money back from them.
48.Based on the above information, the Tribunal makes the following further findings:
·The applicant has chosen not to avail herself of state protection and has chosen not to seek the assistance of the Royal Malaysian Police in regard to the threats of sexual assault when it was open to her, and remains open to her, to do so. The applicant ultimately indicated to the Tribunal that she did think the Royal Malaysian Police can and will protect her if she went back to Malaysia.

Refugee Criterion Assessment – s36(2)(a)

The Tribunal considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s 5J(1)(a) of the Act.
For the reasons given above, the Tribunal finds that:
a.the Tribunal is not satisfied that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
b.the Tribunal is not satisfied that there is a real chance that, if the applicant is returned to Malaysia, the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
c.the Tribunal is not satisfied there is a real chance of persecution that relates to all areas of Malaysia;
d.the Tribunal is not satisfied that the applicant has a well-founded fear of persecution;
e.the Tribunal is not satisfied that the applicant is a refugee in accordance with s. 5H(1) of the Act;
f.the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s. 36(2)(a) of the Act.
The Tribunal also finds that the Tribunal is not satisfied that the applicant will be denied any durable or effective protection measures by the relevant State, party or organisation to her in her receiving country and therefore does not satisfy ss.5J(2) and 5LA.
Complementary Protection Criterion Assessment – s36(2)(aa)
The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. A threat of sexual assault could certainly be characterised as significant harm.
The Tribunal considered whether the applicant could obtain, from an authority of Malaysia, protection such that there would not be a real risk that the applicant will suffer significant harm in accordance with s. 36 (2B)(b) of the Act.
Country Information - Law Enforcement in Malaysia
In its 2016 Country Information Report – Malaysia, DFAT provided the following overview of law enforcement in Malaysia:
5.1 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 National 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.
5.2 The People’s Volunteer Corps (RELA), a federal paramilitary civilian corps under the jurisdiction of the Ministry of Home Affairs, assists security forces. RELA membership was 2.9 million in September 2013. RELA volunteers receive limited training. RELA’s engagement in law enforcement activities has significantly reduced in recent years. NGOs have reported that inadequate training has led to abuses by RELA members such as extortion and theft.[1]
[1] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia, 19 July, section 5.1, p.25
DFAT further noted that while the Royal Malaysian Police (RMP) are considered a ‘professional and effective’ police force by ‘local and international sources,’ the integrity of RMP responses are compromised by the ‘level of training, capacity or engagement in corruption’:
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 increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.[2]
[2] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 5.5, p.25
DFAT also assess that the Royal Malaysian Police (RMP) is ‘professional and effective’, however, prone to corruption. According to the report:
·Credible local and international sources consider the RMP to be a professional and effective police force.
·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 per cent ethnic Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.[3]
[3] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia, 19 July, section 5.5, p.25
In its Country Reports on Human Rights Practices for 2017 the US Department of State (USDOS) reported:
The Royal Malaysia Police (RMP) is a national police force that is well-trained and well equipped. The RMP provides good law enforcement support to the U.S. Embassy and has responded favorably to the needs of the U.S. private sector and to U.S. citizens. With that in mind, the RMP is sometimes limited in its effectiveness in investigations.[4]
[4] US Department of State 2017, Malaysia 2017 Crime and Safety Report, 3 March, p.11
In 2017 in relation to police and security forces, Amnesty International reported:
Impunity for deaths in custody and excessive use of force persisted. In April, the Enforcement Agency Integrity Commission found that police officers in charge of interrogating N. Dharmendran, who died in police custody in 2013, were responsible for his death by physical force and that the police later fabricated evidence to cover up his treatment during interrogation. Despite this, in June, the Kuala Lumpur Criminal High Court acquitted the four policemen charged with his murder. His widow filed a civil suit against the police and government.[5]
[5] Amnesty International 2017, Amnesty International Report 2016/17 – Malaysia, p.242 Accessed 21 November 2017
It is noted that Malaysia established the Enforcement Agency Integrity Commission to receive complaints of misconduct from the public against enforcement officers or law enforcement agencies in general and investigate and hold a hearing on the complaints received.[6]
[6] Enforcement Agency Integrity Commission 2017, Accessed 21 November 2017
In relation to state level corruption, Freedom House noted 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.[7]
[7] Freedom House 2015, Freedom in the World 2015: Malaysia, 5 May
The report also noted that:
Government favoritism 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 House 2015, Freedom in the World 2015: Malaysia, 5 May
On 28 February 2017 Transparency International-Malaysia (TI-M) released the findings of the 2017 Global Corruption Barometer (GCB) – Asia Pacific Region, which surveyed the public’s perceptions of corruption and the government’s effectiveness in tackling corruption. The report’s findings in respect to corruption were:
The GCB results found that 60% of the respondents felt the level of corruption had increased and only 11% said that corruption had decreased a little. For the 2013 GCB survey, 39% of respondents felt corruption had increased. 54% of the Malaysian felt that the management of the economy is the most important problem that the Government should address. 62% of Malaysians feel that current government is handling the fight against corruption badly and 41% of Malaysians said that the Malaysian Anti-Corruption Commission is doing badly at fighting corruption. Also, 53% of Malaysian felt that the Government is ineffective in handling the fight against corruption. The institutions perceived to be involved in corruption are in Malaysia: Police (57%), Local Government and Councilors (48%), Tax officials (48%), Business Executives (46%), Government officials (45%), Representatives in Legislature (41%), Prime Minister and his officials (41%), Judges and Magistrates (33%), and religious leaders (31%). The police was noted as having the highest bribery risk and this would seriously undermine the quality and fairness of this law enforcement institution.[9]
[9] Transparency International 2017, 2017 Global Corruption Barometer (GCB) – Asia Pacific Region, 28 February < Accessed 21 November 2017
In its 2016 report DFAT noted a royal commission into the operation and management of the RMP prompted the Malaysian government to implement reforms aimed at addressing corruption within the RMP:
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.[10]
Country Information - Judicial System
[10] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia, 19 July, section 5.6, p.25
In its Country Information Report – Malaysia, DFAT provides the following summary regarding Malaysia’s judicial system:
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.[11]
Complementary Protection Criterion Assessment – s36(2)(aa) - Analysis
[11] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia, 19 July,
section 5.11, p.26
The mere fact 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 that the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of the decision maker is not required to make the applicant's case for him or her. Nor is Tribunal required to accept uncritically any and all the allegations made by an applicant.
As indicated above, the applicant has chosen not to avail herself of state protection and has chosen not to seek the assistance of the Royal Malaysian Police in regard to the threats of sexual assault when it was open to her, and remains open to her, to do so. The applicant ultimately indicated to the Tribunal that she did think the Royal Malaysian Police can and will protect her if she went back to Malaysia.
Accordingly, the information before the Tribunal makes clear that that the applicant could in fact obtain protection such that there would not be a real risk that the applicant will suffer significant harm if the applicant returns to Malaysia.
For the reasons set out above, the Tribunal finds that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of their life; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, as required by s36(2)(aa).
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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
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.
…

< Accessed 21 November 2017

[2017] AATA 2996

6 December 2017

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