1707593 (Refugee)

1707593 (Refugee) [2018] AATA 3504 (10 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707593
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Rosa Gagliardi
DATE:10 August 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 August 2018 at 12:33pm
CATCHWORDS
Refugee – Protection Visa – Malaysia – Personal dispute – Fears harm from gangsters –Effectiveness of the police and legal system – Vague, undetailed and illogical evidence – Credibility concerns – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 422AA, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
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 on 21 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 on 6 July 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for the grant of a Protection visa.
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Country of reference – nationality
The applicant claims to be a citizen of Malaysia and has provided a copy of his passport to
the Department with his application. The Tribunal finds the applicant is a citizen of Malaysia
which is also his receiving country for the purposes of the refugee and complementary
protection assessments. There is no evidence before the Tribunal to suggest the applicant
has the right to enter and reside in any third country for the purposes of section 36(3) of the Act.
The hearing
The applicant was born in Selangor State. He is [age] years of age. His father is deceased. His father was a [worker]. His mother is living. The applicant has several siblings also in Malaysia. [One] sister is a housewife but his brother was [working], and another sister was studying. His mother had also worked but the applicant stated that once he started working he thought she should stop. She used to work [in a certain workplace]. The applicant attended to [certain grade] but he could not study beyond that because his father had an accident and broke his leg and his mother had to [work], and he had to stay home to look after his father. In Malaysia the applicant had undertaken [various jobs].
The Tribunal put to the applicant pursuant to section 424AA of the Migration Act adverse information which consisted of the applicant’s work history as it was expressed in his application form. The Tribunal noted that he had written that from January 2004 to December 2014 he was in [a specified] [business]. From January 2015 to June 2016 he was working as [an occupation]. From January 2016 to October 2016 he had indicated that he owned his own [business]. The Tribunal explained that the information was relevant to the review because he appeared to have had an extensive work experience which differed to his claims at hearing. If the Tribunal relied on the information it would find that the applicant’s credibility was marred and that the Tribunal may have difficulty accepting any of his account, as it was difficult to discern what the Tribunal could accept as being true. The applicant responded that what he had told the Tribunal now was the truth. Someone else cut and paste from another person’s application. He had asked this person to help him with his application. This person just submitted what he wanted and took $500 from the applicant. He did not realise that she had submitted false information on his behalf. The applicant stated that he did not read and write.
The applicant stated that he came to Australia to protect his life. The Tribunal asked the applicant to specify who would persecute him on return to Malaysia. He stated that in 2009 he had a case in the courts but he did not have any paperwork; only the case number. He could not read or write and he asked someone to write down what happened in his application but that person said it was too long and he never came back. The police told him they could not give him the paperwork. He cited a case number. The applicant stated that he lived adjoining relatives who had two boys who were married and went away. These people were also [workers] like his family. They lived at residence Number 2. The applicant’s family lived at Number 1. The applicant was like a helper to his immediate neighbours. He was very young. When he was off work he would go with them and work [at the workplace]. The people who were living in number 6 instead were rich and had a [business].
The son of the people at number 6 was a spoiled and arrogant child. He was [age] years old. The father owned three [vehicles]. The boy used to learn to drive and use those [vehicles]. Once his neighbours from residence Number 2 were returning from the [workplace] on a motor bike with [a product]. This boy from Number 6 was not driving properly and he caused an accident and his neighbours from Number 2 fell down and spilled all the [product] and they ended up in a quarrel. The man from number 6 had contacts with gangsters. He used to consult and do everything with them. He called them as soon as this happened but hey managed to resolve the quarrel. They (the people at Number 6) initially agreed to repair the motorbike and pay for the damage as well as for the spilt [product] but they did not keep their promise.
The Tribunal asked the applicant to specify who the gangsters were. He stated that they engaged in very violent activities. If someone purchased [an item] and if they defaulted, the bank would send a debt collector who was assisted by gangsters. If two parties had a problem they would intervene for a fee. They also dealt in drugs among other things. The Tribunal asked whether this gang had a name. The applicant initially stated that it was known as “[name]” but then stated it was known as “[a different name]”. Asked if he knew the leader of the gang, the applicant stated “[name]” (sp?). He stated that he did not know how many people were in the gang – it was a large group and they were here and there.
Time passed and the people at Number 2 could not get the money that was promised. After three or four months the neighbours had to pass the residence at Number 6 to go to work. The [business owner]’s wife was taunting them, looked badly at them and spitting on them but she turned it around and complained to her husband that this couple were taunting her. Then the [owner] decided to teach the applicant’s neighbours a lesson and instructed the gangsters to harm the residents at Number 2 physically and to break their legs so that they learned a lesson. From number 6 they were observing what time the residents of Number 2 were going to work. The route they took meant they had to go on a rough road. The road was surrounded by jungle. It was dark due to the dense forest. Monday morning they were going to work and somebody with a big iron bar hit the motorbike forcing the motorbike to fall down.
Asked who attacked the persons from Number 2 the applicant stated, “the gangsters”. He did not know whether they had taken drugs or not but the victims were murdered. He did not know how many gangsters were involved. The Tribunal noted that this was a particularly brutal murder and asked whether the incident was reported in the press. The applicant stated that it had been. He had collected the articles previously but they became old and when he came to Australia he did not think they would be useful so he did not bring them. He stated they must be in his house. He could search and he would provide them. The Tribunal noted that the applicant had already had sufficient time to submit these but granted him further time.
The applicant stated that it was only now that the Tribunal had mentioned the definition of refugee that he realised that he should have obtained the press reports by now.
Encouraged to continue his narrative, the applicant stated that the police arrested four persons, including the son at the house at Number 6. Asked how many were arrested in all, the applicant stated five.
The Tribunal asked specifically who had been killed. The applicant stated they were husband and wife – his neighbours/relatives. They were killed instantly. The applicant provided names when asked for the deceased. The Tribunal asked exactly when this event happened. He stated that he could not recall exactly. Later he stated 2009. Either in September or October.
The Tribunal asked the applicant to set out in detail what happened, for example did a doctor pronounce the couple dead at the scene and asked the applicant where he was at the time of the claimed killings. The applicant stated there was a girl at the house at Number 7 who studied with the applicant in his younger days. He was sleeping at that time in his house; it was after 6am. The girl’s father’s brother was going on the same route for work. He saw the bodies and got scared and turned back and went to the nearest police station to report the incident. Immediately two police officers came to the scene. At 6.30am this girl rang the applicant and told him what had happened. Asked why the girl would ring him and not someone else, he stated that he saw her often and she had his number. How she came to know was that her uncle called her father and informed them that the deceased were their neighbours.
The girl asked the applicant to inform the son of the murdered couple. She told the applicant the couple had been beaten up. She did not tell him that they had died. The Tribunal queried whether it was not the role of the police to inform the family. He stated that it was the police’s duty but she informed the applicant. He tried to call the son of the deceased couple but reception was bad in that area. So a neighbour of that boy was a friend of the applicant – the applicant called the friend who is the son’s neighbour to inform the son in person.
The Tribunal asked the applicant to use names because he was introducing so many parties that it was difficult to keep track of who was doing what. The applicant stated that [Mr A] who was the applicant’s friend lived near the boy whose parent’s had been murdered. The Tribunal asked why the applicant had not gone to the house of the deceased son’s directly to wake him up. The deceased son’s was living away that is why the applicant had to ring [Mr A] to wake him up.
The Tribunal noted that if the applicant was not forthcoming with details in terms of names the Tribunal may form the view that his account was being fabricated. The Tribunal stated that it need not have to ask about every single detail as it was finding the applicant not to be forthcoming.
He stated he then spoke to the deceased persons’ son and he came to the area where the applicant was living. He told the applicant to meet him with his bike and from there they would go by bike together. When they reached the spot it was still dark and there were policemen with guns. They asked who they were. They surrounded the bodies with yellow sheets. Only then they realised that they were the deceased. The Tribunal asked about the kinds of injuries sustained by the deceased. The applicant responded that they could not get very close. The police had put up a screen. The applicant stated that they could not see the bodies until the post mortem was undertaken. Then they had a clear look. [Details deleted]. The Tribunal asked whether the police had allowed the couple’s son near the bodies. The applicant stated that they allowed it for identification purposes just for a second.
After two days the post mortems were completed and the bodies were returned. Then the state police office formed a special team to investigate the matter. They put together a lot of CID officers. They questioned the applicant. They wanted to know what happened. They went to all the houses in the area. They asked the applicant whether the deceased people had any enemies. At that time the applicant had not recalled the incident with the [vehicle] where the couple had been run over. It was an ordinary matter so it did not occur to him that such an incident would involve in death. The Tribunal stated that there had been other incidents such as the spitting by the wife of the head of the residence at Number 6 and so forth, on their way to work. The applicant stated that he just did not connect.
The Tribunal tried to ascertain the motive for someone to kill the residents of Number 2 given it was the residents of Number 6 who owed money to the residents of Number 2. The applicant stated that it was the residents in Number 6 who asked the gangsters to break a bone or two to teach them a lesson; but it went too far. The Tribunal noted that it was the residents of Number 2 who were owed money by the residents of Number 6 as they were the ones who had run into Number 2 and caused damage to their bike and their earnings in the form of the [product]. The Tribunal did not understand what lesson the residents of Number 6 had to teach those at Number 2 who had been the victims. The applicant stated “That I do not know”. They agreed to pay the repairs but they did not. The applicant did not know why they ended up murdering them. The Tribunal noted that gangsters would not waste resources and take the risk of murdering people for no reason at all. It seemed implausible. The applicant responded that the [business] owner might have told the gangsters to give them a mild punishment but they did not know what had happened. Maybe the attackers were under the influence of drugs, but they do not know what really happened.
The Tribunal asked whether the applicant might have access to the outcome of the post mortem or the death certificate for the couple. The applicant responded that his friend (the son of the deceased) would be able to provide those. The applicant stated that he could provide those to the Tribunal.
The Tribunal asked the applicant why the police would not provide him with copies of his own files. He stated that they would not give him any files because he was a witness when the case ran.
Two weeks after the post mortem the police commenced an in depth investigation. There was a Chinese guy who was a drug addict. This man called [Mr B] observed their movements and assisted the gangsters to kill them and he had evidence. The police got this guy [Mr B] and they got evidence and arrested him first. On arresting him they arrested the gang members as well. Only then they came to realise that the resident in Number 6 was involved in the matter. After the bodies were released they attended the funerals and nobody suspected them. Then the case began. The applicant was the key person because he was living in the next house and he was helpful to the police so they treated him as a key witness. The Tribunal observed that the applicant had not been the key witness to the murder at all. If anyone was a key witness, according to his account, it would have been the uncle of the girl he had mentioned. The Tribunal noted that the applicant had not been a witness to the murder. The applicant stated that 60 people were called as witnesses. But he was the key person regarding the trouble. The second time he was interviewed by the police he told them about the money being owed.
The Tribunal noted that the couple’s son would also have been called as an important witness. The Tribunal noted that their son would have all the paperwork for the applicant to provide to the Tribunal. The applicant stated that he would have to ask him. As soon as the hearing was over the applicant would ask him. The Tribunal also asked for any evidence of the applicant’s role in any court case.
The applicant stated that in one of the hearings, after the court proceedings they went out. He was so angry and the son of the deceased couple was angry so they shouted at the gangsters. The Tribunal asked the applicant to provide details of who these gangsters were. The Tribunal noted that there had been court proceedings and all of these details (such as the names of the gangsters) would have been apparent to the applicant had the event occurred. The applicant stated that he could only remember three of the names. He gave the name of the [company] owner at Number 6 [and] a few other names. The Tribunal noted that in any event all these names would be in the newspaper articles he would make available to the Tribunal.

When they abused the gangsters they did not realise that there were some people in the court who were supporters of the gangsters. They yelled at the gangsters that they would never get out and would die in gaol. The applicant and the son of the deceased couple were there.
One week later they went to a food stall and some men came and tried to fight and abuse them. They were using a famous lawyer. Then two of the accused were acquitted (the [owner] and one of the gang members). The quarrel was not physical.
There had been court summons which they signed. Once released the gang member sent men to threaten and intimidate them. After their release both the [business] owner and the other released gangster left the area but through other men ordered the applicant not to give evidence as a witness. The court case started with 60 witnesses but people started not attending. The applicant continued to attend.
The Tribunal noted that there would be court proceedings detailing the applicant’s testimony. The Tribunal highlighted that all the events he claimed happened given they involved court proceedings, would have been well documented so the Tribunal would provide the applicant with any opportunity to submit these; but in particular the Tribunal wanted to sight any documents regarding his involvement in the case.
The applicant stated that the police took statements from them initially but the applicant never gave evidence in court. The Tribunal observed that even if that was the case there would be court documents listing the witnesses and when they were due to appear. The applicant stated that he used to get a small piece of paper. He was called to the court and the matter dragged on and he never gave evidence. The Tribunal requested copies of the statements he made to the police. At that time the applicant stated that he did not realise he would be requiring it, and even if he asked, the police would say they could not give it to him and he could not read or write. The Tribunal noted that the applicant could have taken a copy of his own statement. The Tribunal expressed incredulity that the police would not permit him to have a copy of his own statement. The applicant responded that possibly he did not ask because he was scared. If he had asked they would have given it to him so he would ask today.
The Tribunal noted that the Department had made its decision in March 2017 – a year prior to the Tribunal hearing and he had still not made the information available to the Tribunal to support his case. The Tribunal stated that it would give the applicant a further opportunity to provide relevant probative material. The applicant agreed to do so within the relevant timeframe.
Pressed to continue with his narrative the applicant stated that whenever there was a hearing, the gangsters used to go and discourage them from attending. Once he went on his own, without the son of the murdered couple. Asked the applicant stated that the son of the couple was called [Mr C] (sp?) [Mr C] was unable to come (to court) because his vehicle had broken down. On that day outside court “they” came again to intimidate him and it became a physical encounter. He could not remember the date well. The Tribunal noted that the applicant’s entire life was caught up in the court case so it was unclear how he could continue his work commitments. After significant prompting the applicant stated that the incident occurred in 2014.
The Tribunal asked the applicant to provide details about when and where he was hit and by whom. The applicant stated that they punched him in the face and he hit back; there were two men. He was walking back to the car park and he was followed. The car park very busy so he had to park a bit far so there were not many people around to see the incident. They hit him and warned him. He only sustained swelling so he did not see a doctor. The Tribunal asked why the gangsters would spend so much of their resources pursuing him when the applicant had such little evidence to provide the court. He could not add any more evidence that than [Mr C] had provided.
The applicant had no lawyer. He went three times to the government lawyer saying they were being threatened.
In 2015 the remaining accused were released. After they came out the applicant’s troubles increased. The sons of the couple were upset so they rented their family home out. The applicant continued to live in his home so he became the prime target as [Mr C] moved even further away. They even interfered with his work. Once in a restaurant he was having a drink and he was threatened for his life. Then he was beaten outside the restaurant and told this was the final warning and that he would soon meet his fate.
The applicant told them many times that all the accused were out now and the matter was closed. Asked about his injuries on that occasion, the applicant stated that they broke his arm. He had dislocation of his shoulder. He confirmed that he could obtain evidence demonstrating that he had attended a doctor in respect of the injuries to submit to the Tribunal.
The Tribunal noted that all the accused had been released so why was he of interest to anyone any longer. The applicant stated that it was because he had supported [Mr C] and his brothers and because of his evidence he was the one who really put them in trouble. They lost a lot of money and had some idea of recovering a lot of money from the applicant. At that time they said, “Why are you involved, because of you, we are all in trouble. You are the main cause”. The applicant was very close to the couple who died. They looked after him as their own son. He worked with them. He was very angry that from a small problem they were punished like this. Once when he was not at home the gangsters went to his home and ransacked his place. They broke his photo also. Asked if he had called the police the applicant stated that his mother was alone and was shocked and called the applicant. The police did not come immediately.
The Tribunal outlined the country information regarding the relative effectiveness of the police and legal system in Malaysia. The Tribunal noted that it might find it difficult, therefore, to believe that the applicant’s mother’s home was ransacked and there was no police report about such events. The applicant confirmed he reported the matter to the police but they asked him why he wanted to make it a big issue, and told him the officers would deal with it. When asked, the applicant stated that there was no written record of the matter. His mother was scared and told him not to report it. The police officer was corrupt and knew people.
The applicant went three times to the police but they said they would not act as the matter would flare up and it would lead to further problems.
They were trying to engage another lawyer to continue with the case against the gangsters and to find out how the accused had been release; maybe they had paid money. The lawyers asked the sons to come but the sons were not keen to pursue the matter. Then he decided there was no point pursuing the matter as there was money involved.
He was then attacked when he came across “them”.
Before coming to Australia, about six months before, he was attacked and his leg was broken. The Tribunal asked whether he could provide a medical or police report. He stated he had only a medical report because he feared reporting the matter to the police. He then tried to avoid “them” and worked in another area. In that area more gang violence started happening. A lot of gangsters started operating there.
The Tribunal put to the applicant that the country information indicated that there was a significant crack down by government on gangs in Malaysia. The applicant stated that if he made a report they would go after him. His mother advised him to go away somewhere. People told him he could be shot. The Tribunal asked why he had not gone somewhere else in Malaysia. He stated that these things happen everywhere. The gangsters had a network.
The Tribunal noted that it had further information to put to the applicant under s.424AA and referred to Question 86 in his application where he was asked whether he had been convicted of any offence in any country. The applicant had ticked yes. He had written that the criminal offence occurred because of fighting in the year 2001. He was also convicted of [an offence] in 2002. The Tribunal explained that this information was relevant to the review because the Tribunal might find that the applicant had not been honest about his background at hearing and if it relied on this information it would find that the applicant fabricated his account (at hearing) and that therefore Australia had no protection obligations towards him.
The applicant stated that a lady filled his application form in form him and she had not read out to him what he had signed. The Tribunal asked why she specifically would write that he had a criminal history if this were not the case. The applicant stated that this was not true. She submitted someone else’s information which was false. He stated that it was true that in 2001 he had been suspected of fighting and he was arrested but nothing happened. He had told the person who was helping him that he had been released. There was one person who was robbed; they questioned four or five people including him, and he proved that he was not involved.
In terms of the second charge he never told the person filling in the form anything of the sort. He was not involved in [the offence].
The applicant was given until the 6 April 2018 to provide further information. The applicant sought additional time and was granted an extension until 8 May 2018. As at the time of writing this decision in August 2018, no further information has been provided by the applicant.
Country information
Royal Malaysia Police (RMP)
The RMP employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs.
Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Police Integrity and Accountability). The RMP is 80 – 85 per cent Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
Police Integrity and Accountability
The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police 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 RMP. Police officers were subject to trial by criminal and civil courts. Disciplinary action included suspension, dismissal or demotion.
The then Inspector General of Police announced the establishment of an Integrity and Standard Compliance Department in July 2014 to enhance police integrity and image. It sits within the RMP. Suhakam also receives complaints against the RMP, and has investigated police behaviour. The government is not formally required to consider Suhakam’s reports or recommendations. The government has not established an independent police complaints and misconduct commission, despite calls from the Malaysian Bar Council and civil society groups.[1]
[1] Department of Foreign Affairs and Trade Country Information Report, Malaysia, 19 April 2018.
In its Country Reports on Humans Rights Practices for 2015 the USDOS reported, “The Royal Malaysian Police (RMP) is a national police force that is well trained and equipped….However, the RMP is sometimes limited in its effectiveness in investigations.” [2]
[2] US Department of State 2016, Malaysia 2016 Crime and Safety Report, 29 February at p.11
More recent information shows that the new government in Malaysia is, however, looking to promulgate reforms in the area of the police, media and the judiciary, among other sectors.[3]
Judiciary
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 in personal matters. The subordinate civil courts hear the majority of Malaysia’s criminal, civil and family law matters for non-Muslims. A Judicial Appointments Commission makes judicial appointments, subject to the Prime Minister’s final approval. Most members of the Federal Court are Malay Muslims. Malaysia’s highest courts are somewhat influenced by political or religious affiliation: local and international human rights organisations considered the various prosecutions of Anwar Ibrahim to be politically motivated (see Political Opposition Members). Judges receive relatively low salaries, limited training, and many are new graduates.

The ability of individuals to seek legal redress through Malaysian courts is variable. Sources advise that defendants generally have adequate time to prepare a defence, particularly those with the financial means to engage private counsel. Government legal aid resources are limited and generally of poor quality. Strict rules of evidence apply in court, however, defence counsel does not consistently receive state-held evidence. 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-2015, 25.8 per cent of the total prison population comprised pre-trial detainees.
In 2017, the government appointed Chief Justice Md Raus Sharif and Court of Appeal President Tan Sri Zulkefli Makinudin as additional judges, having the effect of keeping them in judicial office beyond the age limit of 66 years and 6 months prescribed in the Constitution. The Bar Council attempted to challenge this is court on the grounds it was ‘unconstitutional’. Courts have issued contentious verdicts, particularly in instances involving high-profile opposition politicians and human rights defenders; however most cases in Malaysian civil courts comply with the rule of law and legal procedure.[4]
Criminal gangs
[3] CXBB8A1DA31860: “Police, media among 8 key sectors for reforms, says Putrajaya committee”,
[4] Department of Foreign Affairs and Trade Country Information Report, Malaysia, 19 April 2018.
The Tribunal also notes that country information indicates that the Malaysian authorities have from time to time instigated operations against criminal gangs and crime syndicates. The country information suggests that these gangs and criminal syndicates are not tolerated by the authorities. For example, in August 2013 the Royal Malaysian Police Force launched Ops Cantas Khas against criminal gangs and crime syndicates. In September 2013, Gambling and Secret Societies Division (D7) principal assistant director Senior Assistant Commissioner Datuk Abdul Jalil Hassan told the Malaysian Insider that the police had arrested 5,505 people for various crimes, including armed robbery, theft, vehicle theft, extortion and secret society activity:
Abdul Jalil, adding that the police also seized other weapons, including 21 swords, 70 knives, six axes, 11 brass knuckles and a stun gun. Ops Cantas Khas was launched following a spate of shootings in the country, believed to be related to turf war among gangs and linked to illegal activities. Among those shot dead were gang members or leaders, with the latest incident involving the shooting of a former air force man, whom the police claimed was the head of Geng 36 in Batu Gajah, Perak.[5]
[5] ‘Police make 5,505 arrests in three weeks in crackdown on gangs, organised crime’ 2013, Malaysian Insider, 9 September
The Star also reported in September 2013 that three phases of the operation would focus on weapon seizure, targeting gang members and then gang leaders and their assets. According to statistics provided by police:
In the last 36 days (from Aug 17 to Sept 22), serious crime has gone down by 12.48% with murder cases lowered by 33.78%, gang robbery decreased by 23.58% and robbery dipped by 26% compared to the similar number of days between July 12 and Aug 16.[6]
[6] ‘Cops deal crime a crippling blow since Ops Cantas Khas launch’ 2013, Star Online, 23 September,
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%.[7]
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.[8]
[7] “79,414 individuals detained throughout 'Ops Cantas Khas’” 2014, Bernama (Malaysian National News Agency), 10 June
[8] ‘Malaysia's gang menace’ 2014, Aljazeera, 11 July
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.[9]
[9] ‘Police crackdown on gangsters still in full swing, IGP says’ 2014, Malay Mail on line, 9 October,
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’.[10] 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.[11]
[10] Hasnan, H A 2016, ‘Ops Cantas 2 to involve three elite police teams’, 1 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8261>
[11] ‘Op Cantas crackdown on triads: 1,444 arrested’, 13 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8262>
FINDINGS AND REASONINGS

When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
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' or that it is for the reason claimed. 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 any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[12]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[13]
[12] s.5AAA Migration Act 1958.
[13] 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).
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[14] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[14] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J.
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[15] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
[15] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992.
At hearing the applicant abandoned the claims made in his application that he was an ex-convict and that, among other things, he wanted to start a [business] and a friend gave him money which he realised later came from the Indian mafia. He claimed that if he went back to Malaysia the gang would still be looking for him. He could not make a police report as he did not want to be in gaol anymore.
The applicant stated that he could not read or write due to his poor education and that a third person filled in the application for him for payment. His work history was false as was his declared criminal history. He was now submitting fresh claims.
For the purposes of this review, the Tribunal accepts that the applicant was unaware of the previous claims submitted on his behalf, and takes those submitted at hearing as those he wishes to rely on. However, given that some of the information in his original application about his criminal history did have some element of truth, the Tribunal considers that questions about the applicant’s credibility are raised because it is difficult to rely on anything advanced by the applicant in either his application or at hearing.
Leaving aside the issue of the change in narrative at hearing from the time of application (and the Tribunal makes no adverse finding in respect of the difference given the applicant’s limited education), the Tribunal, has serious doubts with much of his evidence which the Tribunal found vague, undetailed and illogical. The Tribunal has concerns that the applicant was not truthful at hearing about any of the events he claimed happened to him in Malaysia.
The Tribunal recognises that an applicant is not required to corroborate their claims, nonetheless, it is reasonable that where it would be expected that, in instances where information, especially publicly available information, could be submitted, that an applicant would do so. The events he claimed occurred in Malaysia would have been well documented and the applicant himself stated that some of the following evidence was accessible by him:
·Newspaper reports about the brutal murder of husband and wife in 2009;
·Court documents showing involvement of the applicant in legal proceedings and that a case regarding the murder had been underway;
·Documentation such as post-mortem reports and death certificates provided by the murdered couple’s son [Mr C] given their closeness;
·Police statements;
·Third party corroboration of the events claimed by the applicant by either [Mr C] or anyone else.
After the material was due and the applicant had undertaken to provide it, he wrote on
15 May 2018 that there would be a delay to get his documents from Malaysia due to the election. He had tried to contact offices in Malaysia but they were busy with election issues. The Tribunal at that stage granted the applicant a further two weeks’ extension. At the time of writing the Tribunal has not received any information, including publicly available information, from the applicant that would lead the Tribunal to accept that people who were his immediate neighbours were murdered because they were in a dispute with other neighbours (residents of Number 6).
The Tribunal does not accept that the recent elections in Malaysia prevented the applicant from having access to any material to support his case. It is unclear why the election would, for example, interfere with the applicant’s capacity to obtain archived copies of press articles relating to the claimed murder. Similarly, the Tribunal cannot see why the applicant could not make available to the Tribunal any social media postings he has made to provide insight into his life events, and that the people he claims he was close to, such as [Mr C], the girl he went to school and [Mr A], actually exist. Even if the applicant is not a social media user the Tribunal does not see how the election would have prevented the applicant from getting in touch with [Mr C] to seek copies of his parents’ death certificates to assist the applicant and why his medical records could not be forthcoming.
The Tribunal finds that the reason the applicant has not submitted any evidence to support his claims is because none of the claimed events ever occurred and that none of the protagonists mentioned ever existed.
Even leaving aside the limited evidence submitted by the applicant to support his case, the Tribunal found his evidence at hearing problematic. The Tribunal gained the impression that he was not providing evidence in a spontaneous and realistic manner. It was only after significant prompting that he was able to provide dates and names. His account was general in nature and the Tribunal was continually required to prompt the applicant to detail who the main protagonists were, their role in any event, and the context in which events occurred.
The applicant’s narrative also lacked internal consistency and plausibility. The Tribunal finds it implausible that the applicant’s neighbours and relatives were murdered simply because they were owed money by the residents of Number 6. In fact, according to the applicant it was the residents of Number 6 who owed the residents of Number 2 [money]. The applicant claimed that the residents of Number 6 were wealthy business people so it does not seem credible that they would attack and murder the applicant’s neighbours, when in fact it was their son who had wronged his neighbours by causing damage to the motorbike of the Residents at Number 2, incurring expenses for them which were never compensated by the residents of Number 6. The applicant was not able to fully explain this anomaly in any convincing manner. The applicant’s claims that the residents of Number 6 would try to teach the residents of Number 2 a lesson is unpersuasive, when it is unclear what lesson they were trying to teach the victims of the negligent driving of the son at Number 6.
The Tribunal also has serious doubts about the credibility of the applicant’s account because the applicant placed himself at the centre of the gangsters’ concerns but was not able to provide the Tribunal with any plausible reason as to why he, in particular, was of interest to the gangsters, other than he was a witness and was a close friend of the son of the murdered couple. The Tribunal rejects that the applicant who was only a relative and neighbour of the claimed deceased couple, would become the target of the gangsters’ vengeance, any more than the son of the murdered couple would be. Indeed it is incongruous that the gangsters’ focus would be on the applicant when the couple’s son appeared to be unscathed ([Mr C]). Further, the applicant had stated that the uncle of a neighbour was in the vicinity of the murder. Had the murder and subsequent trial happened at all, the Tribunal considers that it would have been this uncle who would have been a key witness and not the applicant.
It is also perplexing that the applicant was more invested in pursuing the case than the murdered couple’s own sons were.
The applicant explained these anomalies away by stating that he was a witness and had helped the police. The Tribunal is unable to see, however, what critical assistance the applicant could have provided in having the murderers of the couple convicted, when the applicant had not even witnessed the claimed murder. Further, the applicant stated that initially he had no information to provide the police because he did not have any idea as to the motivation for the killing of the couple. It was only later that it occurred to him that the couple had been in dispute with the residents at Number 6 and that his evidence was critical to charging the claimed gangsters. Little detail was provided about how it came to be that the gangsters’ involvement in the murder was discovered, given the applicant was not present at the time of the crime. The applicant seemed to have assumed that the gangsters were involved without any knowledge as he had been asleep at the time of the murder and was only told by the neighbour (the girl he knew) that the couple had been set upon. Little detail was also provided about how the police linked the gangsters to the murder.
For these reasons, the applicant’s evidence that the gangsters were after him and that they inflicted harm on him so as to prevent him from testifying is also implausible, given the applicant’s evidence would have been of negligible value in arresting and charging the gangs and the head of the household at Number 6. There was no nexus between what the applicant claimed he knew (that is that a dispute between Number 2 and Number 6 had occurred) and the involvement of the gangs.
The applicant suggested that he told the police that the couple were owed money by the residents of Number 6 but such information, of itself, would not be enough to charge gangsters with murder. Nor would it be probative evidence for the police to identify the gangsters (who mostly remained nameless) as being involved in the murder. The applicant was not clear about how it was that the police were led to charge the gangsters and Number 6, and on the basis of the information the applicant claims he provided to the police, it is highly unlikely that such speculation would have led to the arrests of gangsters and the resident of Number 6.
The applicant’s account was also lacking in credibility in that he indicated that gangsters could operate with impunity in the area and that the police were ineffective in providing him with protection. He also indicated that they did not fulfil basic requirements, such as filing reports of complaints made by persons such as the applicant who claims to have been badly injured by having his leg broken, and who claimed he was afraid would be killed by the gangsters and the head of the family at the Number 6 residence.
The Tribunal finds that the country information does not support his claims that the police, legal profession and the judiciary operate in a totally chaotic manner in Malaysia, whereby those charged with murder would be released without trial. The applicant’s account of the court case was vague and unconvincing and his assertions that the gangsters and the resident of Number 6 was let go for payment, were not persuasive.
The Tribunal has also considered the country information relating to the applicant’s claims that the gangsters operated with impunity in his area in Selangor and that they were gaining in strength. The Tribunal does not find the applicant’s claims at hearing consistent with the country information which shows that efforts have been made in Malaysia to crack down on gangsters and that continual arrests have been made in all regions around Malaysia. The Tribunal does not accept that had the applicant been hit on several occasions by gangs and had his life threatened as claimed, that the police would have been reluctant to pursue the matter formally, particularly as the gangsters’ had allegedly been involved in the murder of two persons.
It is for the applicant to present his case as clearly as possible. The Tribunal considers that there are many gaps in the applicant’s account of what he claims occurred to him and the Tribunal rejects all his claims, other than that the applicant is [age] years of age and comes from the state of Selangor. Provided with the opportunity to give his claims some credibility he has not done so and his reasons for not doing so are implausible. The Tribunal therefore rejects the applicant’s claims that:
·His neighbours at a residence at Number 2 in his street were hit by a careless driver (the son of the household at Number 6) on their return from work knocking down the bike, damaging it and spilling the [product];
·A family involved in [a certain] business lived at Number 6 who were wealthy and started taunting the family of the people their son had knocked over on the bike;
·That the family from Number 2 waited to be reimbursed for the costs of the repair to their bike and other losses but this was never forthcoming;
·That the wife of the head of the household at Number 6 accused the spouse of the head of the household at Number 2 of taunting her and the family at Number 6 then became vengeful and started to seek to harm the family at Number 2;
·That the residents of Number 6 had connections with gangsters;
·That the residents of Number 6 called on gangsters to pursue the residents of Number 2 to “teach them a lesson”;
·That the gangsters got out of control and instead of teaching them a lesson, actually murdered the mother and father of the household at Number 2;
·A neighbour who was a girl the applicant had known for a while, had rung the applicant to tell him about the deaths because her uncle had reported the murders;
·The applicant then informed a friend who informed the son of the couple, [Mr C] initially that his parents were injured;
·That proceedings started in the courts and the applicant was a key witness in the effort to convict the gangsters and the head of the household at Number 6;
·The case kept being adjourned and the applicant was never actually called to provide his evidence;
·That gangsters threatened him and hit him and broke his leg in order to ensure he did not testify;
·He reported the harassment and physical injuries to the police;
·His mother’s house was ransacked by gangsters who broke his photo;
·The applicant reported the break and entry to the police on several occasions but they were reluctant to pursue the matter;
·Initially the household resident of Number 6 and another gangster were released until finally they were all exonerated, possibly because of money paid to the judiciary;
·Gangsters have so much influence in Malaysia that they are able to influence court proceedings and evade the law enforcement authorities; and
·That any of the personages referred to by the applicant ever existed.
On the evidence, including the country information, the Tribunal finds that if the applicant returns to Malaysia now or in the reasonably foreseeable future there is not a real chance that the applicant would face serious harm by gangsters, the residents of Number 6, their associates, or anyone else for reason of being a witness to any crime, being a claimed murder, or any matter related to this. This is because the Tribunal has rejected that a murder in the manner described by the applicant ever occurred. Indeed, the Tribunal has not accepted any of the applicant’s claims of past harm or activities.
Complementary protection
The real risk test imposes the same standard as the real chance test. Noting the findings the Tribunal has already detailed and its earlier reasons in respect of there not being a real chance that the applicant would face serious harm now or in the reasonably foreseeable future on return to Malaysia, it follows 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 that the applicant will suffer significant harm. Taking the applicant’s claims at their highest, he has not provided credible evidence to establish his claims.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa), namely the complementary protection criteria. The Tribunal is not satisfied, however, 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.
Rosa Gagliardi
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.
…

Free Malaysia Today, 17 July 2018,
accessed on 9 August 2018.

[2018] AATA 3504

10 August 2018

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