1709408 (Refugee)

[2018] AATA 2530

1709408 (Refugee) [2018] AATA 2530 (21 May 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709408

COUNTRY OF REFERENCE:                  Malaysia

MEMBERS:Brendan Darcy (Presiding)

Jason Pennell

DATE:21 May 2018

PLACE OF DECISION:  Melbourne

DECISION: The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 May 2018 at 2:24pm

Statement made on 21 May 2018 at 2.24pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Race – Malay Muslim – Social group – Affiliation with the Three Lines gang – Fear of persecution – Accused of stealing gang money – Does not accept the applicant is a person of interest of the gang – Credibility issues – No documentation to support claims – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 April 2017 to refuse to grant the visa applicant a protection (class XA) subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be citizens of Malaysia applied for the visa on 27 October 2016. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia has protection obligations pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.

3. The applicant appeared before the Tribunal on 28 September 2017at 9.30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

THE LAW - Criteria for a protection

1. 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.

2. 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.

3. 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.[1] 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.[2]

   [1]Migrations Act 1958 s5H(1)(a),

   [2]Migrations Act 1958 s5H(1)(b)

4. 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.[3]

   [3]Migration Act 1958 s.5J(1),

5. In addition complementary protection is available in circumstances where there are substantial grounds for believing that, as a necessary and foreseeable consequence of applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.[4]

   [4]Migration Act 1958 s.36(2)(aa)

6. An applicant will suffer ‘significant harm’ if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture'.[5]

   [5] Migration Act 1958 s.36(2A)

7. An applicant is considered not to be at a real risk of suffering significant harm in a country if:

   ·it is reasonable for the applicant to reallocate to different area of that country where there is no real risk that the applicant will suffer significant harm;[6] or

   ·the Tribunal is satisfied that the applicant could obtain protection from an authority of that country such that there would not be a real risk that the applicant would suffer significant harm. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is something less than a 'real risk.'[7]

   [6] Migration Act 1958 s36(2B)(a) . SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

   [7] Migration Act 1958 36(2B)(b) MIAC v MZYYL [2012] FCAFC 147.

Mandatory considerations

1. 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.

CLAIMS AND EVIDENCE

Background

1. The applicant claimed to be born on [date] in the Malaysian state of [State 1] and to be a citizen of the Federation of Malaysia.

2. A certified copy of the applicant’s valid Malaysian passport is on the departmental file ([file number]).

3. The applicant arrived in Australia on 12 August 2016 while holding a [temporary] visa.

4. On 26 October 2016 the applicant lodged an application for a class XA subclass 866 protection visa.

5. In the submitted application forms, the applicant claimed that he can speak, read and write Bahasa Malaysian and English; that his ethnicity is Malay; and that his religion is Islam.

6. The applicant claimed that he has a mother and father living in [State 1] and [siblings] residing in Malaysia. He also claimed never to be married, engaged or a in a de facto relationship and there is no indication in the application form for protection that he has any children.

7. On 27 April 2017, a delegate on behalf of the Minister refused to grant the applicant a protection visa.

8. On 29 April 2017, the applicant lodged a review application with the Tribunal with the decision record attached.  

9. On 28 September 2018, the applicant attended scheduled hearing to provide evidence and present arguments as to the reasons he is owed Australia’s protection obligations.

Written and Oral Claims

1. The applicant’s claims for protection were contained in the 866C form and a hand written note. Below is a summary of those claims:

   (a)The applicant left Malaysia because he was fleeing gang members from ‘3 Lines’ on account of a drug exchange in which the applicant was involved. He was falsely accused of stealing drug money and as a result gangsters have been threatening him with harm, unless he returns the money.

   (b)His co-offender, [Mr A] (or [Mr A Alias 1]), was physically assaulted and hospitalised. The applicant claims he was beaten as well in spite of his pleas. He also fears for his family.

   (c)The applicant did not seek help after the harm because he was afraid of the leader and group members. He also fears that the police would apprehend and punish him for his involvement in illegal drug activities.

   (d)The applicant fled to [Country 1] but the team located him and asked that he return otherwise a bag of drugs would be placed in his motorcycle; and

   (e)The gang has political support; even a high ranking police officer has connections with the gang; and

   (f)The applicant fears that since the drug deal went badly, the 3 Lines gang members will hunt down the applicant to kill him.

   (g)At the scheduled hearing, the applicant elaborated about his personal background and on his claims

2. No accompanying documents to support these claims were submitted.

3. At the scheduled hearing, the applicant elaborated about his personal background and on his claims. He submitted a number of identity documents at the hearing including his Malaysian national identity care, his Malaysian driver’s license and [a temporary] visa cared for [Country 1] indicating that applicant had a valid right to enter and reside in [Country 1] until [date] January 2018.

4. The applicant was provided with a post hearing opportunity to submit further documents to support his claims, namely some evidence such a third party statement from a Malaysian national in Australia who was a witness to a past harm or harassment incident,  and to do so by 15 October 2017.

5. At the hearing the Tribunal had regard to:

   (a)the applicants' completed and signed protection visa application forms lodged with the Tribunal on 27 October 2016 (“visa application”);

   (b)the applicant’s identity documents, being the applicant’s passport [number] issued on [date] 2015 and his Malaysian identity card No [number].

   (c)the review application form which included a copy of the delegate's decision record.

   (d)the Department of Foreign Affairs and Trade's (DFAT's) most recent Country Information Report on Malaysia, published on 19 July 2016.

   (e)the oral evidence of the applicant.

6. In his application for a visa and by his oral evidence at the hearing the applicant claims that he was born in [State 1], Malaysia on [date]. The applicant has [several siblings]. His parents and [siblings] live together in [State 1]. His mother and father are not working. His [siblings] are [employed].

7. The applicant attended secondary school in [State 1]. For a short time he attended Technical School to study [a certain trade]. However, he dropped out after 5 month due to the fact that his father became ill. He said that his mother did not want him to leave school but due to [his] father’s medical costs he felt obliged to get a job to help the family. The applicant’s evidence to the Tribunal was that he worked at [a company]’s after leaving technical School in or around 2008 until 2011. In or about 2011 he commenced work for a gang known as the ‘3 Lines’ delivering [goods]. In January 2016 the applicant moved to [Country 1] but continued in the business of delivering [goods].

8. The applicant’s evidence was that as part of his work duties he would make regular deliveries of [goods] across the [Country 2] border for a gang known as the ‘3 Lines’ (‘the gang’). In or about 2014 or 2015 he made deliveries for the gang across the [Country 2] border with a friend known as [Mr A Alias 1]. He says that close to the [Country 2] border they were attacked and beaten. His evidence was that during the attack, the attackers took a bag from him and his friend that contained drugs to the value of approximately RM[amount] (or about [amount] Australian dollars). He says that his friend’s ribs were broken in his attempt to prevent the attackers from stealing the bag. The applicant was not able to provide any evidence in relation to his friend’s injuries. In addition the applicant was not able to inform the Tribunal as to the type of drug that was stolen or the identity of the attackers.

9. The applicant’s evidence is that [a member] of the gang has warned them and requested the applicant and his friend either return the drugs or pay the drugs equivalent value to the gang.

10. The applicant was not able to provide any evidence of a police investigation in relation to the attack. Nor was he able to say that he had been investigated by the police or that he faced criminal charges as a result of having carried and transported the bag. As a result, the Tribunal finds that there is no official investigation into the attack and that the applicant has not been charged in relation to the attack and is not a person of interest to the police. 

11. He said that as a result of the warning by [a gang member] he went to live and work in [Country 1]. The applicant says that the gang was aware that he had gone to work in [Country 1] and had threatened to put drugs in his motorbike to get him into trouble with the police when crossing the border into Malaysia.

12. Prior to coming to Australia the applicant traveled to [Country 2] and [Country 3]. His evidence was that he visited both these countries looking for his friend, [Mr A Alias 1], who he believes fled to either country.  He says that he was unable to locate him in either country. Having been provided the applicant’s passport the tribunal accepts that the applicant had traveled to both [Country 3] and [Country 2] prior to entering Australia.

13. The applicant says that he cannot go back to Malaysia because the ‘3 Line’ gang are all over the country and have very strong political contacts. He said that if he goes back to Malaysia they will be able to find him and harm him.

14. On 15 October 2017, the applicant sent an email indicating that his friend [currently] holds a bridging visa.

15. On the same day, the applicant also submitted a number of electronic copies of documents that were untranslated [documents] indicating ongoing medical treatment. However no explanation was provided as to their relevance.

16. At the time of making this decision the applicant did not provide any further documents.   

COUNTRY INFORMATION

(A)Gangs

1. The Tribunal discussed with the applicant a summary of the information contained in the 216 DFAT Report.[8] The Tribunal noted that the country information indicates that gangs and criminal syndicates are not tolerated by the authorities and that the Malaysian authorities have from time to time instigated operations against them.

   [8] DFAT Country Information Report Malaysia 19 July 2015

2. In August 2013 the Royal Malaysian Police Force (RMP) 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:[9]

   ‘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.’

   [9] ‘Police make 5,505 arrests in three weeks in crackdown on gangs, organized crime’ Malaysian Insider 9 September 2013.

3. In September 2013, The Star also reported that three phases of the Ops Cantas Khas would focus on weapon seizure, targeting gang members and then gang leaders and their assets. According to the police statistics from 17 August 2013 22 September 2013, serious crime has gone down by 12.48% compared for the same period between 12 July 2013 and 16 August 2013.[10]

   [10] The reduction in cases consisted of murder cases lowered by 33.78%, gang robbery decreased by 23.58% and robbery dipped by 26%.

4. In June 2014 the House of Representatives, or Dewan Rakyat, was told that 79,414 individuals involved in various crimes were detained since the operation codenamed Ops Cantas Khas was launched. Home Minister Datuk Seri Dr Ahmad Zahid Hamidi lauded the success of the operation in reducing the number of murders and robberies, stating that:

   ‘Murder cases declined from 504 cases to 433 cases, a drop of 14%, gang robberies using firearms from 83 cases to 54 cases which showed a drop of 34%. Gang robbery without using firearms declined from 13,533 to 12,048, a drop of 9%, while armed robbery from 20 cases to 14 cases, a drop of 13%.’

5. In July 2014 Al Jazeera reported:[11]

   ‘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.’

   [11] Malaysia’s gang menace’  Aljazeera 11 July 2014 http:alijazeera.com/programmes/101east.2014/07/mlaysia-gang-menace-201478111952919909.html; DFAT Country Information Report Malaysia 19 July 2015 p. 18

6. 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. No independent analysis on the operation was found.[12]

   [12] ’79,414 individuals detained throughout ‘Ops Cantas Khas.’’ Bernama (Malaysian National News Agency) 10 June 2014.

7. Astro Awani reported on 1 August 2016[13] that following a spate of shootings in the country, Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi requested Ops Cantas be 'further enhanced'. 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.

   [13] ‘Op Cantas crackdown on triads: 1,444 arrested.’ 13 August 2016 Astro Awani.

(B)Police and the judicial system

1. The Tribunal also referred to country information on Malaysia from DFAT in relation to police in Malaysia. DFAT reports that credible and local and international sources indicate that the police are a professional and effective force.[14] DFAT acknowledge that the police responses depend on their levels of training or whether they are engaged in corruption themselves. While acknowledging that corruption in the police force is a concern, measures have been put in place to look at and investigate the issue of police integrity and accountability.[15] Some police have been prosecuted and found to be guilty of corruption but overall, DFAT assesses that there is an effective police force who generally do investigate crimes. The Tribunal also noted, in relation to Malaysia’s judicial system that, while the ability for individuals to seek legal redress through Malaysian courts is mixed, credible sources advised that defendants generally had adequate time to prepare a defense the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.[16]

   [14] DFAT Country Information Report Malaysia 19 July 2016 p.25

   [15] Op Cit p.25

   [16] Op Cit p.26

1. In relation to the RMP, the DFAT report states that creditable local and international sources consider the RMP to be a professional and effective police force.[17]

   [17] Op Cit p.25

2. The DFAT report notes that in relation to Malaysia’s judicial system:[18]

   ‘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 criminal, civil and family law matters are heard in the subordinate civil courts. Judicial appointments are made by a Judicial Appointments Commission; however the Prime Minister has final approval. The majority of the members of the Federal Court are Malay Muslims. Malaysia’s highest courts are somewhat influenced by political or religious affiliation. For example, credible local and international human rights organisations considered the prosecution of Anwar Ibrahim to be politically motivated (see 'Political Opposition Members', above). In July 2015, the government removed the Attorney General, Abdul Gani, who had been leading an investigation into 1MDB.

   5.12Credible 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 populations were pre-trial detainees.

   5.13The 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.’

   [18] Op Cit p.26

3. Country information indicates that Malaysia has a working criminal law and legal system and the provision of a reasonably effective and impartial police and justice system exists. English common law is the basis for the secular legal system and the constitution states that all persons are equal before the law and entitled to equal protection of the law.

4. Defendants are presumed innocent until proven guilty. Trials are public, although judges may order restrictions on press coverage. The country information indicates that there is a functioning police force and an independent judicial system where members of the judiciary are accountable for their decisions on appeal. There are therefore avenues of complaint for Malay citizens if required.

ASSESMENT OF CLAIMS AND FINDINGS

Country of nationality

1. The applicant claims to be a citizen of the Federation of Malaysia and provided a copy of his passport to the Department with his application, as well as his identification and drivers licence cards at the Tribunal. With no evidence to the contrary, the Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.

Third country protection

1. The Tribunal noted during the hearing that the applicant held a visa for [Country 1]; however at the time of making this decision the visa was no longer valid. Accordingly there is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.3

Evidence and Findings of Fact

1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of that assertion or that the fear is 'well-founded' or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. The applicant must satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[19]

   [19] 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).

2. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[20] 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.

   [20] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

3. If the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.[21] 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.

   [21] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

Consideration of Claims and Findings

1. In this decision it is accepted that the applicant that he was born in [State 1] and that is a Malay Muslim; that his mother and father are not working and that he has [siblings]. The Tribunal accepts the applicant’s evidence in relation to his limited education and the reasons for him not completing his studies and commencing work, including his father’s illness.

2. The applicant says that he has been threatened by gang members [on] account of drugs going missing during the course of delivering goods across the [Country 2] border. He claimed the gang to the ‘Three Line’ gang and that the organization was associated with the then ruling UMNO Malay-orientated party. He claimed that he was a member of [one group] and then the rival [group] with the Three Line’s national network.   He claim that if he return to Malaysia he will be harmed or killed by gang members and authorities are unable to provide him with adequate protection. The applicant provided a name associated but was unable to provide any third party statement to support his claims.

3. When the Tribunal enquired into the reasons the applicant joined ‘Three Line’, he stated that his father needed medicine for his [medical conditions] and that he was required by his parents to leave school early to help with the family with living and study expenses. He claimed he had an untranslated police report from 2010 indicating his father lodged a missing person’s report regarding his son absconding from school. The Tribunal accepts that the applicant joined a gang to generate an income for his family. as claimed. He claimed that he did not go to the police because they have connections with the Three Line gang.

4. The applicant claimed he was couriering [goods] between [Country 2] and Malaysia as part of his participation in the Three Line gang. On occasion he unwittingly was couriering illicit drugs worth [amount] Malaysian ringgits when he and his co-offender were intercepted by a rival group within Three Line. He further claimed his co-offender was beaten and required hospitalisation.

5. Despite the lack of documentary or other evidence, on balance, the Tribunal has provided the applicant the benefit of the doubt and accepts the claims that the applicant belonging to a gang called 3 Line gang and that he had been involved in illicit drug trafficking; that the drugs were stolen by a rival group; that the applicant was harmed along with his co-offender;

6. The country information demonstrates that the Three Line gang, also known as Pekida, is one of the shadow allies in the ruling party, UMNO, and that it emerged in the media only in 2008 when there was an awakening of political consciousness among the majority of Malaysians.  “Facing this new wave of awareness, certain UMNO leaders felt even more threatened, fearing that their power and accompanying benefits might be jeopardised by the growing discontent emanating from Malaysians, particularly the Malays.  The strategy of the gangs and the party thus changed, and new NGOs and gangs mushroomed in the public sphere, forming what is often seen as a new ethno-nationalist “ultra-Malay” movement”.[22]  

   [22] Asian correspondent, Gangsta to the roots: Pekida and gangster stereotypes, New Mandala,

7. Pekida is often referred to as Tiga Line (or the Three Line) alluding to the colours of its official flag: red, yellow and green.  The use of these three colours signifies Pekida’s allegiances: to the Malay community (red as in blood), to the Sultan (yellow symbolising royalty) and to Islam (green).[23]  Further:

   Pekida, in its widest meaning, is a polymorphic entity: a thousand headed hydra, none of which talk to each other nor look in the same direction.  Pekida groups share the same roots, hierarchy, codes of honour and similar introductions rites, while bearing different ethnic compositions (exclusive or inclusive), nature of business (legal or illegal: drugs, clubs, racketeering), level of political involvement and degree of violence…[24]

   [23] Ibid.

   [24] Ibid.

8. Accepting as the country information illustrates that there is no one entity called Pekida and that instead it is made up of various groups, the Tribunal notes in December 2011, Najib Tun Razak, the Prime Minister of Malaysia, attended the annual meeting of the most controversial Malay organisation in Malaysia: The Association of Islamic Welfare and Dakwah of Malaysia (or Pertubuhan Kebajikan dan Dakwah Islamiyah SeMalaysia or PEKIDA). In exchange for Pekida’s political support, Najib promised governmental aid. The opposition leader, Anwar Ibrahim, strongly criticised the move, saying Najib was backing an ‘ethno-fascist organisation’.

9. Notwithstanding the country information which goes some way to support the applicant’s claims and that there is a new government, the Tribunal does not accept that the applicant is a person of interest to [members] of the Three Line. He provided evidence that he was able to travel between [Country 1], [Country 3] and [Country 2] in 2016 and that the returned to Malaysia to discuss whether he was still a person of interest to the gang or any one associated with them in power but could not find anyone. It was open to him to depart from [Country 1] but instead he returned to Malaysia to depart via Kuala Lumpur. Neither was the applicant stopped by the authorities further indicating that he was a not a person of interest to the authorities.

10. While the Tribunal accepts that the applicant and his co-offender was accused of a more senior member of the group within Three Line in helping to orchestrate the matter, that they were further harmed by this leader and others and they demanded him repay the matter, the applicant’s behaviour indicates that he moved to [Country 1] to work lawfully and disassociated himself from the gang and his travel history further indicates that he was able to return to Malaysia without being harmed and he believed he was no longer a person of great interest to them. It is more likely that the gang accepted the applicant had not stolen the drugs or orchestrated the theft and had punished the applicant and his co-offender for failing to carry out their job. To this extent the Tribunal finds that the applicant had exaggerated his claims about being threatened as a collaborator with a rival group and his fears in seeking out the police assistance.

11. Accordingly, the Tribunal finds that the applicant has does not have an urgent or deeply fear of returning to Malaysia arising from these claims about gang violence if he were to return to Malaysia.

12. However, on balance, the Tribunal accepts that the applicant has been threatened in the past as a member of a criminal organisation involved in drug and other illicit trade, if the applicant were to return to Malaysia in the reasonably foreseeable future; that in returning to Malaysia there is a chance or risk of the threats continuing; and that the harm he has a chance of encountering will involve significant physical ill-treatment.

Refugee Findings

1. The applicant has not claimed to fear harm in Malaysia because of his race, religion, nationality political opinion or as a member of a social group. Accordingly there is not evidence to suggest that, if the applicant returned to Malaysia, that there is a real chance of serious harm for one or more of the reason as detailed in s.5J(1)(a) of the Act. Therefore, the applicant is not a refugee as defined by s.5H and therefore not entitled to protections under s.36(1)(a) of the Act.

2. The Tribunal as considered the available country information and finds that it is not consistent with the applicant’s personal circumstances which indicates that the applicant travelled to [Country 1] to work lawfully and is no longer in a gang called Three Line. The Tribunal does not accept he is a person of interest for drug trafficking and is wanted by Three Line or one of its internal groups for his part in missing contraband.

3. As discussed in the hearing, the applicant claimed that he was unwittingly ferrying drugs between the [Country 2] and Malaysian borders and that the applicant has never been a person of interest to the authorities. It is therefore open to him to avail himself to effective protection measures should he face being threatened by any member of the Three Line.

4. The country information indicates that the authorities in Malaysia, including the police and the judiciary, are reasonably effective in combating criminal gangs and in protecting civilians from criminal harm. The country information indicates that the RMP are an effective police force and are working to address criminal gang activities. While some corruption exits within the system there have been steps to address the issue of corruption. As such, there is nothing to suggest that the State would not be able to protect the individual from threats by gang members.

5. It is even acknowledged by the UMNO leadership that has been associated with Pekida, Three or Tiga Line remain on a list of one of the 49 secret societies the Home Ministery has named as banned  in a crackdown on violence crimes following several shooting sprees nationwide. Even UMNO politicians supportive of Pekida are careful to disassociate themselves those criminal elements. For instance, then Home Affairs Minister Dattuk Seri Ahmand Zahid Hamidi mentioned by the applicant stated that his comments had been twisted as reported in the Sinar Harian on 11 October 2013: “I never mentioned ‘Tiga Line is our people’. I said it is a splinter of the group Pertubuhan Kebajikan dan Dakwah Islamiah Malaysia (Pekida) and the division created three lines.”,.[25]

   [25] “>

   Further in relation to Pekida, the Tribunal notes an article in Malaysiakini dated 16 November 2013 which reports on a five year research project by French PhD holder Sophie Lemiere, an associate researcher at the Research Institute on Contemporary Southeast-French National Centre for Scientific Research in Paris: Lemiere said there may be other groups that call themselves Pekida but go under another name as well or may not be linked with Pekida. [26]

   [26] Malaysiakini More to Pekida than meets the eye, researcher finds, 16 November 2013

6. Many of the low members of the gangs are common gangsters and there is no substantial reason to believe that the authorities take very seriously gang related and drug related crime and that effective protection measures were available to him, as outlined the country information in the applicant’s decision record and as discussed during the scheduled hearing.

7. In relation to the applicants claim that he would be punished by the authorities as a result of his involvement in drug activities. It was his evidence that he was not aware of what was in the bag. He believed that he was transporting [goods]. As such there is no evidence that he is a person of interest to the police or that he has been charged with any offence. In addition there is no evidence that the applicant has breached the law. The applicant’s fear of being prosecution or punishment is not consistent with the country information, which indicates that Malaysia has a fair and effective police force and judiciary.

8. Therefore based on the independent country information, the Tribunal finds that Malaysia is willing and able to discharge its obligations to protect citizens, including the applicant, from harm. As such the Tribunal finds that the applicant would not suffer significant harm upon his return to Malaysia.  

9. As the applicant does not satisfy s.5J(1)(a) and by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a) based on the applicant’s claims regarding gang violence and membership.

Complementary Protection Provisions

1. The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.

2. Under s.36(2B), there is taken not to be a real risk of significant harm if 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’: s.36(2B)(b). Section 36(2B)(b) refers to an applicant obtaining, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer significant harm.  In MIAC v MZYYL, the Full Federal Court held that, to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[27] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[28] However, the test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection.

   [27]        MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.

   [28]        In MIAC v MZYYL (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s.36(2)(aa) necessarily involves consideration of the matters referred to in s.36(2B).

1. In considering the country information in the applicant’s accepted circumstances discussed under effective protection findings for s.36(2)(a), the Tribunal finds that the level of protection from state authorities to the applicant if removed from Australia to anywhere within the applicant’s country of reference, will reduce the risk of significant harm to below that of a real one. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Malaysia, protection such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Malaysia.

2. In this regard, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required by s36(2)(aa).

Cumulative Findings

1. As he applicant did not advance any claims that he would face a real chance of serious harm or a real risk of significant harm based on his nationality, his race or his religion or any for matter, there are no other residual claims to be considered in this review.

2. Having considered all the applicant’s claims, both individually and cumulatively, the Tribunal therefore finds that there is not a real chance that in the reasonably foreseeable future that the applicants will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Their fear of persecution is not well-founded as required by s.5J of the Act and therefore they are not a refugee within the meaning of s.5H.

3. The Tribunal is not satisfied that the applicants are people in respect of whom Australia has protection obligations under s.36(2)(a).

4. Having considered all the applicant’s claims, both individually and cumulatively, Tribunal has considered the alternative criterion in s.36(2)(aa).Tribunal finds that there is not a foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk they will suffer significant harm

Conclusion

1. 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).

2. 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).

3. The Tribunal is therefore not satisfied that the applicants are people in respect of whom Australia has protection obligations under s.36(2)(aa).

DECISION

1. The Tribunal affirms the decision not to grant the applicants protection visas.

Brendan Darcy
Member

Jason Pennell
Member

9 January 2015, accessed on 16 February 2018.