1705774 (Refugee)

1705774 (Refugee) [2017] AATA 1443 (25 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705774
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Peter Vlahos
DATE:25 August 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 August 2017 at 11:33am

CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Divorced persons – Family dispute – Criminal gang – Fear of physical violence – Credibility – Effective state protection

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] November 2016 and the delegate refused to grant the visa [in] March 2017.
On 23 May 2017 the applicant made an application to the Tribunal to review the Department’s refusal to grant a Protection visa.
On 7 August 2017 the applicant appeared before the Tribunal via video link to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was not represented in relation to this review by a registered migration agent or legal representative.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect to [name] (the applicant). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality and Identity
Based on a copy of the applicant’s passport, which was provided to the Department of Immigration & Border Protection (the Department) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has had her claims assessed against that country in relation to sections 36(2) (a) and 36(2)(aa) of the Migration Act (the Act).
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 material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.
Background – Migration History of the Applicant
The applicant first arrived in Australia [in] June 2016. [In] November 2016 the applicant applied for a Protection visa (XA class) and was granted the associated bridging visa.
EVIDENCE AT THE SCHEDULED HEARING
Background of the Applicant
The [applicant] is [an age] year old Malay national from Kuala Kangsar, Perak, Malaysia. He is also Muslim by faith. He has family living in Malaysia. The applicant told the Tribunal that he was married but divorced his wife [in] August 2015 and has [number] children of varying ages. The eldest aged [age] years of age and the youngest being only [age] years of age. His older children a living with the applicant’s [Relative A] and the younger children are living with his former wife. While in Malaysia, the applicant owned and ran his own [business] which [had specific contracts].
The applicant’s claims for Protection as submitted to the Department[1]
[1] AAT File no. 17055774 Folio no. 24
The applicant’s claims before the Tribunal can be summarised as follows:
§The applicant left Malaysia due to ‘personal problems’ which involved the ‘safety of my life’.
§The applicant also lost the ability to financially support his children after being fired by his company – he has been unable to find another job due to his low levels of education and the current economy.
§The applicant states that he left his children and came to Australia to find safety and income for his children.
§The applicant states that after divorcing his wife there emerged a ‘severe dispute’ between himself and his in-laws that ‘if not controlled’ could lead to ‘a worse situation such as fights.’
§The applicant states that he wants to bring his children to Australia.
§If the applicant returns to Malaysia his in-laws would ‘disturb’ the applicant’s life and that of his children.
§The applicant’s [Relative A] is currently taking care of his children.
§The applicant asserts that the authorities cannot help him with his ‘financial and divorce situation’ and that his only solution is to run from his ex-wife so things will get better.
§The applicant also states that he would find a better job and income in Australia.
The Tribunal asked the applicant to confirm that the above claims were correct and formed the basis of his claims for protection.
In response, the applicant told the Tribunal that what had been written and submitted to the Department as part of his application for Protection was “not right” and that he wished to substitute the above claims with different claims for protection. The applicant made it clear to the Tribunal that his original claims had been written by the applicant’s friend (who was not identified to the Tribunal) in order to help the applicant to remain in Australia and to bring to the attention of the Tribunal the applicant’s real claims for protection which forced him to leave Malaysia.
Applicant’s new claims for Protection raised at the hearing
According to the applicant, he had experienced while in Malaysia serious “…family problems”. He had a number of “disputes” with his family and in particular with his now former wife. This whole upset to the applicant’s life commenced with his wife having a relationship with a “…third party…” (description was provided by the applicant). The Tribunal was told that the “third party” was having a ‘long affair’ with the applicant’s wife.
This ‘third party’ the Tribunal was told was a “…gangster” and hence, the applicant had “…nowhere to go but to come to Australia” to be safe.
The applicant told the Tribunal that he had no “facts” about his problem in Malaysia to present to the Tribunal. Nevertheless, these problems, he had experienced while in Malaysia and was caused by his former wife and her “gangster” lover and their relationship caused him to come to Australia.
The Tribunal asked the applicant – why did he choose to leave Malaysia, instead of seeking help within his own country. The applicant told the Tribunal that on one particular occasion, (but he provided no actual date or year) “gangsters” were looking for him and located him but he was able to escape actual harm because they located him in an area where there were a lot of people around and they could not do any harm to him.
The applicant was asked after this incident, did he report it to the local police and did he seek the assistance of the local police? The Tribunal was told the he chose not to report this incident to the police because he thought “…the police can only protect you some of the time” but could not provide ongoing assistance for “24 hours”.
The Tribunal asked the applicant – how he determined that his former wife’s lover was a ‘gangster’. At first, the applicant told the Tribunal “…I cannot really say…” The applicant then qualified his comments by telling the Tribunal that “…every time I fight with this man another person gets involved…”
The applicant was also asked when his wife established her relationship with her ‘gangster’ boyfriend. According to the applicant his former wife’s relationship with her gangster boyfriend commenced in 2013 and the applicant discovered it while searching on “Facebook” (the applicant provided not specific date). He also experienced long absences by his wife from her home and family without reason.
In 2015, his wife decided to live with her gangster boyfriend and to follow him around wherever he went and she also took with her the younger children.
The Tribunal was also told that around this time there had been divorce proceedings in the Malaysian courts which were completed and the court had allowed the marriage’s children to determine for themselves (according to the applicant) with which parent each of them wished to live with. According to the applicant the older children decided to remain with their father and younger ones chose their mother.
The applicant was also asked – why he determined that Australia and not some other part of Malaysia (except for where he lived) was safer for him to relocate. His response to the Tribunal was that Australia is a “good country”. He went on to tell the Tribunal that those who chose to live in Australia “…are living a disciplined life…” and this was not the case in Malaysia.
As such, the applicant told the Tribunal, that he had fears in Malaysia and that relocation to another part of Malaysia was not an option for him to take because “gangsters” have “networks” throughout Malaysia and they would locate him wherever he chose to go.
The Tribunal asked the applicant since his arrival in Australia what was he doing. The applicant told the Tribunal that had done seasonal work on a farm “picking [produce]”. This work earned him approximately AUD[amount range] a week. Currently, the applicant is picking “[produce]” which is allowing earnings of approximately AUD$[amount] a week. The applicant has also applied to a private [business type] company for a [related] position but had not received any indication whether his application had been successful or not. Some of the money he earns here, the applicant sends to his children in Malaysia to assist them with their daily needs.
While being in Australia, the applicant has had had regular contact with children back in Malaysia via the mobile phone. He told the Tribunal that his children understand his motives for coming to Australia but “miss him”.
The applicant was asked – if he returned to Malaysia what was his main fear? The Tribunal was told that he feared being found by “gangsters” and being beaten by them and not being able to have any help or protection. The applicant believed that the criminal networks operating in Malaysia would locate him wherever he chose to live and cause harm to him but offered no further details. He also told the Tribunal that the police would not help him and that his chances for surviving “…were very thing…”
The applicant told the Tribunal that he wished to remain in Australia. He wanted the Australian government to provide him with an opportunity to work legally, and to be able to secure a living here, which would allow him to provide an adequate income which enable him to provide for his children. The applicant did not feel comfortable being in Malaysia or thinking about the situation there. He told the Tribunal “…I do not think about Malaysia … I am thinking only here…” Also, his property interests in Malaysia, – a parcel of rural land in his family’s village, according to the applicant, is taken care of by his [relative].
The Tribunal provided the applicant with a further opportunity following the conclusion of the hearing to provide the Tribunal with further submissions.
On 8 August 2017, the applicant provided the following post-Hearing submissions concerning his request for protection:
§The applicant feels threatened in Malaysia as a result of his divorce with his wife
§He cannot accept a cheating wife, making contact with other men and fears being threatened by these persons if he interferes with his wife’s life.
§His only alternative was to flee to Australia.
§He cannot sustain “violence and intimidation” and “a life full of disturbances.”
§He feels threatened by this “evil group.”
§He wants to live in Australia and to provide for his children “who need to be given life and education.”
Country Information – Malaysia – Legal & Judicial system – Criminal Gangs
State Protection
Federal and State Law Enforcement Entities
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.
5.3 State-level Islamic religious departments enforce sharia through Islamic courts and have jurisdiction over Muslims in each state. Sharia laws and the degree of their enforcement vary from state to state, although religious enforcement officers are allowed to accompany police on raids in all states. Some penalties imposed by sharia courts are limited by federal civil law.
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.
Police Integrity and Accountability
5.6 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion.
5.7 There is no legal requirement for the state to investigate deaths in RMP custody. Investigations generally occurred at the request of the Attorney-General but were often instigated as a result of public pressure and were significantly delayed. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts (see –‘Detention Conditions—Deaths in Custody’, above).
5.8 The Inspector General of Police announced the establishment of an Integrity and Standard Compliance Department in July 2014 to enhance police integrity and image, however as it sits within the RMP organisational structure, it is not an independent body. Suhakam also receives complaints against the RMP and has conducted investigations into police behaviour. However, the Government is not required to formally consider Suhakam’s reports or recommendations. In January 2016, Human Rights Watch reported that the government has not established an independent police complaints and misconduct commission, despite lobbying from the Malaysian Bar Council and civil society groups.
Judiciary
5.11 The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level and subordinate courts. Sharia courts operate at state level with jurisdiction over Muslims. The majority of Malaysia’s criminal, civil and family law matters are heard in the subordinate civil courts. Judicial appointments are made by a Judicial Appointments Commission; however the Prime Minister has final approval. The majority of the members of the Federal Court are Malay Muslims. Malaysia’s highest courts are somewhat influenced by political or religious affiliation. For example, credible local and international human rights organisations considered the prosecution of Anwar Ibrahim to be politically motivated. 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.
Gangs
3.78 Al Jazeera reported in 2014 that there were approximately 49 illegal gangs operating in Malaysia, with almost 40,000 members. The majority of street-level gang members tend to be Indian Malaysians, reflecting their relative economic vulnerability. However, high-level crime, including drug trafficking is more typically undertaken by Malaysian Chinese gangs. All gangs have the potential to engage in extortion and loan shark practices. However, obtaining details on these activities is difficult as victims of gang-related crimes do not generally report to law enforcement. Credible contacts advised that Malaysian authorities would likely view individuals who access loan shark services as having participated in an illegal practice.

In August 2013 the Royal Malaysian Police Force launched Ops Cantas Khas against criminal gangs and crime syndicates. In September 2013, Gambling and Secret Societies Division (D7) principal assistant director Senior Assistant Commissioner Datuk Abdul Jalil Hassan told the Mayasian Insider that the police had arrested 5,505 people for various crimes, including armed robbery, theft, vehicle theft, extortion and secret society activity. According to the report:
Abdul Jalil, adding that the police also seized other weapons, including21 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.[2]
[2] Police make 5,505 arrests in three weeks in crackdown on gangs, organised crime’ 2013, Malaysian Insider, 9 September < <CXC28129414714>
The Star also reported in September 2013 that three phases of the operation would focus on weapon seizure, targeting gang members and then gang leaders and their assets. According to statistics provided by police:
In the last 36 days (from Aug 17 to Sept 22), serious crime has gone down by 12.48% with murder cases lowered by 33.78%, gang robbery decreased by 23.58% and robbery dipped by 26% compared to the similar number of days between July 12 and August 16.[3]
[3] ‘Cops deal crime a crippling blow since Ops Cantas Khas launch’ 2013, Star Online, 23 September < Accessed 30 August 2016 <CXC28129414715>
In June 2014 the House of Representatives, or Dewan Rakyat, was told that 79,414 individuals involved in various crimes were detained since the operation codenamed Ops Cantas Khas was launched. Home Minister Datuk Seri Dr Ahmad Zahid Hamidi lauded the success of the operation in reducing the number of murders and robberies, stating that:
Murder cases declined from 504 cases to 433 cases, a drop of 14%, gang robberies using firearms from 83 cases to 54 cases which showed a drop of 34%. Gang robbery without using firearms declined from 13,533 to 12,048, a drop of 9%, while armed robbery from 20 cases to 14 cases, a drop of 13%.[4]
[4] ‘79,414 individuals detained throughout 'Ops Cantas Khas’’ 2014, Bernama (Malaysian National News Agency), 10 June < Accessed 30 August 2016 <CX1B9ECAB11435>
In July 2014 Al Jazeera reported:
In 2013, police identified 49 illegal gangs nationwide, with nearly 40,000 known members. More than 70 per cent of felons are ethnic Indians, who make up just 7 per cent of Malaysia’s population. Though small in number, they have been linked to a wide array of crimes - such as armed robberies, drug and prostitution rings, loan-sharking, gambling and extortion rackets, and even contract killings.
101 East spoke exclusively with a senior gang member, who reveals how these criminal organizations provide protection and work opportunities for many Malay Indians who live in poverty. The gangs prey on vulnerable youngsters with the lure of fast money and bonds of brotherhood.[5]
[5] ‘Malaysia's gang menace’ 2014, Aljazeera, 11July < Accessed 26 March 2015 <CX1B9ECAB10299>
In October 2014, quoting Inspector-General of Police Tan Sri Khalid Abu Bakar, the Malaymail Online reported that Ops Cantas Khas was ongoing, ‘Ops Cantas was never put off at any point of time and the operations are still in top gear’. Penang’s police chief Datuk Abdul Rahim Hanafi said there were 12 active secret societies in the state, mostly involved in extortion, protection rackets and drug-related activities.[6] No independent analysis on the operation was found.
[6] Police crackdown on gangsters still in full swing, IGP says’ 2014, Malay Mail on line, 9 October, < Accessed 30 August 2016 <CX1B9ECAB11433>
Astro Awani reported on 1 August 2016 that following a spate of shootings in the country, Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi requested Ops Cantas be ‘further enhanced’.[7] 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.[8]
FINDINGS AND REASONS
[7] Hasnan, H A 2016, ‘Ops Cantas 2 to involve three elite police teams’, 1 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8261>
[8] ‘Op Cantas crackdown on triads: 1,444 arrested’, 13 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8262>
Credibility
The Tribunal does accept that the applicant was faced with a personal crisis as far as it concerned his family and his relationship with his former wife. The Tribunal also accepts that the applicant is divorced from his wife and has had an acrimonious relationship with her since his separation from her. However, the applicant’s version of events as submitted to the Tribunal at the hearing raises certain issues of credibility.
Nevertheless the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded”. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have the any responsibility or obligation to specify, or assist in specifying any particulars of the claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant. (MIEA v Guo (1997)191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70)
The Tribunal was told that the applicant’s former wife had formed a romantic relationship with a ‘gangster’ in 2013 and neglected her responsibilities to her family. This neglect of family caused acrimony to surface between the applicant and his wife and one occasion, the applicant was threatened but did not suffer physical assault by his wife’s ‘gangster’ boyfriend. The Tribunal was told that the applicant chose not to report this incident to the local police because he thought that the police “…could only protect some of the time…” and not on twenty-four hour basis (see, paragraph [26]). Then, the applicant no being able to cope with this situation left Malaysia to come to Australia. The Tribunal does not find the applicant’s explanation as credible. Regardless, of how the applicant may have felt on that occasion which led him not to report that incident to the local police, the country information referenced by the Tribunal reports 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 organised gangs.
While it has doubts about the applicant’s credibility, the Tribunal has considered the applicant’s claims separately and cumulatively and is prepared to accept that the applicant had separated and divorced his wife and had been involved in disputes with third persons because of his wife’s relationships with these persons. The Tribunal accepts on the basis of consistent country information that gangs in Malaysia resort to physical threats and assault to further their aims and if owed money and that although the applicant told the Tribunal he did not report incidents to the police because he thought the police could not protect him while in Malaysia, nevertheless, the Tribunal accepts, the applicant’s claim that if he was to return to Malaysia in the reasonably foreseeable future his whereabouts could be discovered by the gang member 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 was threatened the Malaysian police would not provide him with adequate protection should he require it. While the Tribunal accepts that there difficulties and inadequacies in the policing and judicial system in Malaysia generally speaking, having regard to the advice of the Department of Foreign Affairs and Trade 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 unable to protect him because he had dealt with and has had personal disputes with a member of a gang. The Tribunal therefore considers that effective protection measures as defined in s.5LA are available to the applicant in Malaysia and that he therefore does not have a well-founded fear of persecution in accordance with s.5J(2) of the Act.
Accordingly, the Tribunal does not accept that the authorities would be unwilling or unable 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 escape via Kuala Lumpur International Airport to Australia. The applicant provided no credible reason why he could not take advantage of this state protection or seek the assistance of the Malaysian judicial system, except to claim that he had not chosen to file a police report when threatened because he had not chosen not to do so because the police could not provide him with effective protection as he required it if he was to return to Malaysia.
The Tribunal acknowledges country information referred to earlier, particularly to Department of Foreign Affairs and Trade’s assessment of the Malaysian police who are generally considered to be professional and effective. The Tribunal also notes the advice from Department of Foreign Affairs and Trade regarding police corruption, however this is recognised by the authorities in Malaysia and measures have been put in place to deal with this issue.
In relation to the overall effectiveness of the authorities in Malaysia, as noted earlier, the Tribunal has relied on the country information showing that Malaysia’s protection system consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system and measures have been put in place to address corruption. Police and indeed, the government, have been making a concerted effort since at least 2013 to combat organised gangs and crime syndicates and there is no evidence that the police would refuse the applicant any assistance, if he were to request it. The country information and media reports indicate the government has taken this issue seriously and has committed extensive resources to do so. This in the Tribunal’s view demonstrates that effective protection measures are available, namely that protection against serious or significant harm could be provided to the applicant by the Malaysian State, that protection is durable and the Malaysian State is willing and able to offer such protection.
For the reasons given above, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Malaysia in the reasonably foreseeable future and therefore the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion – complementary protection in s.36(2)(aa) of the Act.
Overall the Tribunal is satisfied that if in the future, the gang members threaten or attempt to harm the applicant, there are mechanisms in the Malaysian legal system, including a reasonably effective State police force (that country information demonstrates is active and committed to taking action in relation to the claimed fear) that means the applicant could obtain protection sufficient to reduce the likelihood of harm to something less than a real risk in accordance with s.36(2B)(b). Therefore, the Tribunal finds that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
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 1443

25 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction