1720991 (Refugee)

[2022] AATA 4188

1720991 (Refugee) [2022] AATA 4188 (19 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720991

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Jason Pennell

DATE:19 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 October 2022 at 9.13 am

CATCHWORDS
REFUGEE – Protection visa – Malaysia – race – ethnic Chinese Malaysian – religion – Christian – applicant failed to attend tribunal hearing – decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 30 March 2017. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.

3. The applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 8 September 2017. The applicant provided the Tribunal with a copy of the delegate’s decision record on 8 September 2017.

4. On 28 September 2022 the tribunal sent the applicant an invitation to appear before the Tribunal for the purpose of giving evidence and making submissions at a hearing in relation to her application for review on 18 October 2022 at 10.00am. The hearing invitation advised the applicant if she does not appear at the hearing the Tribunal may proceed to decide the review without taking any further action to allow her to appear before the Tribunal or alternatively may dismiss the application for review without further consideration. By a Pre-hearing Response Form dated 10 August 2022 the applicant advised the Tribunal that she did not want to have a hearing and that she consented to the Tribunal making a decision on the papers without inviting her to a hearing for her case.

5. The applicant did not appear before the Tribunal on 18 October 2022 at 10.00 am to give evidence and present arguments. Accordingly, considering the applicant response to the Tribunal, the Tribunal has decided to exercise its discretion to proceed to make a decision in this matter on the papers. 

Criteria for a protection visa

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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 themselves 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).

4. 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.

5. 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

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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

Identity and country of reference

1. The applicant stated in her application for a Protection visa that he was born on [date] in Kuching, Sarawak, Malaysia. [1]The applicant claims that she is a citizen of Malaysia and that she does not have the right to enter or reside in any country or countries other than Malaysia[2]

   [1]    Protection visa application form, Deptfile [number], Doc ID no: 9171866, p. 22

   [2]    ibid

2. The applicant has provided a certified copy of the biodata page of her Malaysian passport to the department that confirmed the applicant’s date and place of birth.[3]. There is no evidence to suggest this is a bogus document and, as such the Tribunal accepts the applicant’s identity.

   [3]    Malaysian passport biodata page. [Dept file number], Doc ID 9171866

3. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that she is a citizen of Malaysia and as such her protection claim will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.

Migration history

1. The applicant first arrived in Australia on a UD-601 Electronic Travel Authority visa on [in] December 2016. The applicant lodged an application for a XA-866 Protection visa and the associated Bridging visa was granted on 30 March 2017.[4]

   [4]    Protection visa application form, Dept file [number], Doc ID no: 9171866,

Applicant’s Claims

1. The applicant first submitted claims for protection when she applied to the Department for protection on 8 September 2017.[5] The applicant’s claims are as follows:

   [5] Protection visa application form, Dept file [number], Doc ID no: 9171866, PDF page 40

   Why did you leave that country(s)?

   ‘I LEAVE MY COUNTRY (MALAYSIA) BECAUSE RACIST START FLOWING IN            MALAYSIA. I’M CHINESE WHO BORN IN MALAYSIA. BUT I WAS TREAT            DIFFERENTLY BY MALAY PEOPLE BECAUSE THEY DON’T LIKE CHINESE     PEOPLE. MALAY PEOPLE WAS THE BIGGEST RACE IN MALAYSIA. THEY THINK WE CHINESE PEOPLE WANT TO STEAL THEIR SPECIALTY IN MALAYSIA. BECAUSE OF THAT, THERE’S MANY PROVOCATIONS HAPPENED BETWEEN CHIESE AND MALAY PEPLE. THEY ALSO DISCRIMINATION AMONG US. I FEEL NO MORE FREEDOM IN MY COUNTRY BECAUSE NOW RACIST BECOME MOST WORST. CHINESE PEOPLE SLOWLY HAS BEEN SENT AWAY.THAT’S WHY I DECIDED TO SEEK PROTECTION AND SAFETY LIFE MATTERS.THANKS TO AUSTRALIA GOVERNMENT’. 

   What do you think will happen to you if you return to that country(s)?

   ‘BECAUSE RACIST BECOME MORE WORST NOW, IF I RETURN, MY LIFE WILL       BE IN DANGEROUS BECAUSE NOW MALAY PEOPLE FIND A WAY TO CHASE        US OUT FROM MALAYSIA’. 

   Did you experience harm in that country(s)?

   ‘No’

   Did you seek help within the country(s) after the harm?

   NO ANSWER GIVEN

   Did you move, or try to move, to another part of that country(s) to seek safety?

   ‘MALAYSIA IS JUST A SMALL COUNTRY. MOVE TO ANOTHER PART DOESN’T       BRING ANY DIFFERENT BECAUSE MOSTLY IN ALL OVER STATE FILL UP WITH    MALAY PEOPLE’.  

   Do you think you will be harmed or mistreated if you return to that country(s)?

   ‘Yes. MALAY PEOPLE DOESN’T LIKE US THEY WILL FIND ALL WAY TO CHASE US FROM MALAYSIA’.

   Do you think the authorities of that country(s) can and will protect you if you go back?

   ‘No. AUTHORITIES NEVER TAKE ACTION BECAUSE THEY THINK IT’S NOT NECESSARY (IMPORTANT)’.

   Do you think you would be able to relocate within that country(s)?

   ‘No. MALAYSIA IS JUST A SMALL COUNTRY. MOVE OR RELOCATE DOESN’T HELP ME AT ALL’.

2. The delegate summarised the applicant’s claims as:[6]

   [6] Protection visa application form, Dept file [number], Doc ID no: 9171866, PDF page 10

   ·      The applicant claims she is Chinese and was born in Malaysia.

   ·      The applicant claims she left Malaysia because she was treated “differently by Malay people because they don’t like Chinese people”.

   ·      The applicant claims Malay people believe the Chinese “want to steal their specialty”. The applicant claims as a result of this, there is “provocation” between the Chinese and Malay people.

   ·      The applicant claims she has no “freedom” and is “discriminated” against in Malaysia because she is Chinese.

   ·      The applicant claims the Chinese people in Malaysia are being “sent away”.

·      The applicant claims if she returns to Malaysia, her “life will be in dangerous”.

·      The applicant claims Malaysian authorities would be unable to protect her if she returns because “the think it’s not necessary (important))”.

• The applicant claims she would be unable to relocate if she returns to Malaysia because it is a “small country”; therefore, relocating would not help.

Applicant’s Evidence.

1. The applicant did not appear before the Tribunal to give evidence or present submissions in support of her application for review. If the applicant had have presented herself at the hearing the Tribunal would have asked questions about her background in Malaysia including her family history, education, and work history. In addition, the Tribunal would have asked the applicant about her claim that she was persecuted in Malaysia because of her being an ethnic Chinese Malaysian. The Tribunal would have asked the applicant to detail how she claims to have been subjected to serious and significant harm in Malaysia and how she claims there is a real chance or a real risk she will be seriously or significantly harmed if she is returned to Malaysia.

2. The evidence of the applicant in her protection application was that she was born on [date] in Kuching, Sarawak, Malaysia. [7] She claims to be ethnic Chinese and that her religion is Christian (‘Kristian’).[8] The applicant claims she can speak, read and write in Mandarin and English.[9]

   [7]    Protection visa application form, Dept file [number], Doc ID no: 9171866, p. 22

   [8] Ibid.

   [9] Protection visa application form, Dept file [number], Doc ID no: 9171866, PDF page 24

3. The applicant claimed that she has never married or been in a de facto relationship.[10] She has a sister who continues to live in Malaysia. The applicant did not provide any evidence in relation to her parents or other family members. The applicant claimed that she was educated in Malaysia having attended [School 1] from [year] to [year]. She did not provide any information regarding attendance at  University or College. The applicant claimed that she was unemployed and did not provide any  details as to any kind of occupation or activities she was engaged in in Malaysia.

   [10] Protection visa application form, Dept [file number], Doc ID no: 9171866, PDF page 24

4. The applicant claims that because she is ethnic Chinese Malaysian she was treated differently by the Malaysian people. She claims that she suffered discrimination. She claims that Malaysia is becoming a racist country and that she does not feel freedom in Malaysia. She claims that if  she is returned to Malaysia the Malaysian people will find a way to chase her out of the country.    

COUNTRY INFORMATION

1. In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s.499 of the Act, the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal has referred to the latest DFAT report on Malaysia dated 29 June 2021 (the DFAT Report’) marked as ‘Annexure A’ to this decision.

CONSIDERATION OF Claims and evidence

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Credibility

1. When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, 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 may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a 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 enough 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.[11] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[12]

   [11]   Section 5AAA of the Act

   [12]  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

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[13] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.

   [13]  Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at 482

4. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[14] 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.

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

5. In this case, the Tribunal, in all the circumstances, has given the applicant the benefit of the doubt in assessing each of her  claims.

Accepted facts  

1. Based on the evidence provided by the applicant in her application for a protection visa,[15] the Tribunal finds and accepts that:

   [15]  Protection visa application form, Dept file [number], Doc ID no: 9171866

   (a)the applicant born on [date] in Kuching, Sarawak, Malaysia.

   (b)is ethnic Chinese Malaysian and that her religion is Christian (‘Kristian’).

   (c)speaks, reads and writes in Mandarin and English.

   (d)is  not married or in a de facto relationship.

   (e)has a sister who continues to live in Malaysia.

   (f)was educated in Malaysia having attended [School 1] from [year] to [year].

Applicant’s refugee claim

Relevant grounds

1. To be considered a refugee pursuant to s 36(2)(a) of the Act, it is necessary that an applicant has a well-founded fear of persecution, if she is returned to Malaysia by reason of her race, religion, nationality, membership of a particular social group (PSG) or political opinion pursuant to s 5J(1)(a) of the Act. In this case the applicant claimed a fear of persecution by reason of her race as an ethnic Chinese person.

2. Based on the applicant’s application for a protection visa and the documentary evidence provided by the applicant to the Department, the Tribunal accepts that the applicant is ethnic Chinese as claimed. As such it accepts and finds that her claims fall within the scope of s 5J(1)(a) of the Act by reason of her race.

Applicant’s well-founded fear

1. An applicant must have a well-founded fear of persecution. Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country. In the case of a PSG, as claimed by the applicant, the persecution said to be feared by the applicant must be for reasons of membership or perceived membership of the group.[16]

   [16]   Section 5H(1) and section 5J(1)(a) of the Act; see Applicant A v MIEA (1997) 190 CLR 225 at 240

2. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[17] Section 5J(4) of the Act requires that the reason for the persecution must be the essential and significant reason and that it must involve systematic and discriminatory conduct.

   [17] Chan Yee Kin v MIEA (1989) 169 CLR 379

3. In this case, the applicant claims that she will be seriously harmed because of her Chinese ethnicity. For the reasons expressed below, the Tribunal finds that the applicant does not have a well-founded fear of persecution for the reasons claimed, either on a subjective or objective basis.

Applicant’s claim as a refugee.

Applicant as an ethnic Chinese

1. The applicant claimed that as an ethnic Chinese person there is a real chance she will be seriously harmed if she is returned to Malaysia. The applicant claimed that in Malaysia she was treated differently by the Malay people because they don’t like Chinese people. The applicant claimed that the Malay people believe the Chinese Malaysians want to steal their ‘specialty’ and as a result there is ‘provocation’ between the Chinese and the Malay people. The applicant claimed that she is discriminated against in Malaysia as an ethnic Chinese Malaysian and as a result there is no freedom in the country. She claims that if she returns to Malaysia she will be chased out of the country.

2. The applicant did not provide any details as to how she was discriminated against or treated differently in Malaysia. If the applicant appeared before the Tribunal, it would have asked the applicant to provide details and examples of how she was treated differently and discriminated against in Malaysia as claimed to the extent that she was seriously or significantly harmed.  

3. The country information reports[18] that government policies have included numerous preferential programs to boost the economic position of ethnic Malays and other indigenous groups (known as ‘Bumiputera’) in Malaysia.[19] These programs include increased opportunities to access higher education, and careers in the Civil Service, commercial opportunities, and housing.[20] In addition come industries such as the tertiary education and distributive trade maintain a race based requirement that mandates a certain level of Bumiputera ownership and preferential treatment by government  in the procurement of goods.

4. The country information reports that an estimated 6.7 million Chinese Malays live in Malaysia (approximately 20 percent of the population).[21] Its reported that the Chinese Malaysians comprise a high portion of the professional and educated class in Malaysia. They are prominent in business and commerce and tend to be more affluent than other groups in Malaysia.  There are no laws that directly discriminate again the Chinese Malaysian but by implication as the second largest ethnic group in Malaysia they are affected by government preferential treatment given to the Bumiputera.[22] Nevertheless, it is reported that the Chinese Malaysians participate freely in the political process including as Ministers in the government and in-opposition parties.[23] Chinese Malaysians are eligible to access national primary and high school education but generally choose to attend one of the 1300 Chinese schools that teach Mandarin (together with Bahasa Malaysian).[24]  DFAT assess that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry onto state tertiary system, Civil Service (including promotion opportunists) or owning and operating a business.

5. Therefore, based in the available country information the Tribunal accepts and finds that the applicant as an ethnic Chinese Malaysian may experience some discrimination if she is returned to Malaysia.  However, based on the available country information, the Tribunal does not accept that as an ethnic Chinese Malaysian any discrimination the applicant may suffer will not amount to serious harm as defined pursuant to section 5J(5) of the Act.  While the applicant may experience some discrimination in obtaining employment with the Civil Service or accessing public educational facilities, the country information states that Chinese Malaysians are well represented in the private sector and that many small and medium enterprises and large corporations are Chinese owned.[25] As a result the country information suggests that  that many ethnic Chinese Malaysian work in the private sector without experiencing any serious level of discrimination. 

6. Therefore, based on the available country information, the Tribunal does not accept that the applicant will be seriously harmed in Malaysia by reason of her being an ethnic Chinese Malaysian.  As such the Tribunal finds that there is no real chance the applicant will suffer serious harm if she is returned to Malaysia by reason of her being an ethnic Chinese Malaysian as claimed.

Applicant as a Christian.

[18] DFAT Report at p.20

[19] ibid

[20] ibid

[21] DFAT Report at p.21

[22] ibid

[23] ibid

[24] ibid

[25] DFAT Report at p.22

1. The applicant did not make a specific claim in relation to her religion but it was open to her to claim that there is a real chance she would be seriously harmed if she was returned to Malaysia as a result of her being a Christian. If the applicant had attended a hearing before the Tribunal the Tribunal would have raised with her any potential claims she may have as a result of her religion.

2. In any event country information states that Christians account of approximately 10 percent of the total population in Malaysia.[26] It is reported that while a broad range of ethnicities practice Christianity, approximately twenty percent of the Chinese Malaysian community is Christian.[27] Further it is noted that that there is a growing number of converts to Christianity amongst the middle class ethnic Chinese community.[28]

3. There are official bans in place preventing Christians from using the word ‘Allah.’ In 2008 the Home Affairs Ministry banned the Catholic newspaper, ‘The Herald,’ from using the word ‘Allah’ under the Printing Presses and Publications Act (1984). While the Malaysian Court of Appeal and Federal Court upheld the ban, in 2021 the High Court of Kuala Lumpur ruled that Christians can use the word ‘Allah’ with the judge calling the ban ‘unconstitutional’

4. The DFAT report assessed that Christians are generally free from social discrimination and are able to worship freely on a day-to-day basis.[29] It is reported that those proselytising or promoting Christianity to Muslims face a moderate risk of assessment by the state.[30] If the applicant had have appeared before the Tribunal it would have asked if she had engaged in any activities which may be considered by the authorities as proselytising or promoting Christianity. However, in circumstances where the applicant made no specific claim in relation to any real chance that she would be seriously harmed due to her religion if she was returned to Malaysia, the Tribunal finds that she did not engage in any such activities. As such, based on the available country information and the information provided in the applicant’s application for protection visa, the Tribunal finds that here is no real chance she will be seriously harmed if she is returned to Malaysia by reason of her religion. 

   [26] DFAT Report at p.29

   [27] ibid

   [28] ibid

   [29] ibid

   [30] ibid

5. Therefore, having considered the applicant’s claims both individually and cumulatively the Tribunal finds that the applicant does not have a well-founded fear of persecution if she returns to Malaysia and finds that the applicant does not satisfy s 36(2)(a).

6. Accordingly, the Tribunal finds that the applicant does not have a real chance of serious harm arising from her economic circumstances for reasons mentioned in s 5J(1)(a) or any other claimed reasons, if she was to return to Malaysia from Australia, now or in the reasonably foreseeable future.

7. Having assessed all the applicant’s claims individually and cumulatively, the Tribunal finds that she does not face a real chance of serious harm, now or in the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s 5J(1) of the Act if she is returned to Malaysia and she does not satisfy the criterion in s 36(2)(a).

Complementary protection criterion

1. The Tribunal also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[31] 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.

   [31]    MIAC v SZQRB [2013] FCAFC 33

2. The Tribunal has made findings that the applicant does not face a real risk of serious harm arising from her claim that she will be harmed if she is returned to Malaysia as an ethnic Chinese Malaysian and as a result of her religion as a Christian.  Based on the valuable country information and the information provided in her application for a protection visa, the Tribunal has found that there is no real chance that she will be seriously harmed if she is returned to Malaysia. As the ‘real risk’ test is the same as the ‘real chance’ standard, it follows that the Tribunal does not accept that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of significant harm, including torture, being subjected to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment, for reasons based on the applicant’s ethnicity and religion as claimed.

1. At no stage did the applicant advance any other reason in her written that she is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

2. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is no real risk the applicant will suffer significant harm if she is returned to Malaysia as a result of her economic circumstances as claimed pursuant to s 36(2)(aa) of the Act.

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 the Act for the reasons mentioned in s 5J(1)(a). Therefore, the applicant does not satisfy the criterion set out in 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 complementary protection criterion in s 36(2)(aa) and is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

3. There is no suggestion that the applicant satisfies s 36(2) based on 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 criteria in s 36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Jason Pennell
Senior Member

Attachment ‘A’

ECONOMIC OVERVIEW[32]

[32] DFAT Report at p.11

1.9The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2019 its real GDP growth was 4.3 per cent, while per capita GDP was USD11,418 (approx. AUD 15,000). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia is the world’s second largest producer and exporter of palm oil. Manufactured goods comprised 86.5 per cent of Malaysia’s exports in 2020. Malaysia is the Association of South East Asian Nations’ (ASEAN’s) largest energy exporter and income from oil and gas provides the government’s largest single revenue source.

2.10 According to the World Bank, following the Asian financial crisis of 1997-98, Malaysia’s economy was on an upward path (until COVID-19), averaging growth of 5.4 per cent from 2010. Malaysia’s progression from an upper-middle income economy to high-income status, according to the World Bank’s measure, had been anticipated to occur between 2024 and 2028. This may be delayed somewhat by the effects of COVID-19, while some commentators have suggested Malaysia cannot sustain the high levels of growth required to make this transition.

2.11 Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (MYR2,208 (AUD700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, the so-called ‘B40’ who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. Furthermore, the UN Special Rapporteur on Extreme Poverty gave the view in 2019 that Malaysia’s official poverty line is artificially low and that a more accurate measurement results in a poverty rate of around 16-20 per cent. The UNDP’s Human Development Index ranked Malaysia 62 of 189 countries in 2020, placing it in the ‘very high human development’ category.

2.12 In 2020, Malaysia’s economy was hit with the dual shock of COVID-19 and a decline in oil prices. According to the Malaysian government, the Malaysian economy contracted by 5.6 per cent in 2020 due to COVID-19. The economy is expected to rebound in 2021, with Malaysia’s central bank forecasting growth between 6 and 7.5 per cent. The Malaysian government undertook robust measures to limit the impact of the pandemic on the economy, both through the 2021 Budget and through multiple economic stimulus packages. Measures included wage subsidies for lower-paid employees, a moratorium on loans by financial institutions, special grants of MYR3,000 (AUD 950) to qualifying SMEs and direct cash grants to the poorest Malaysians, as well as investment incentives and measures to protect Malaysia’s role in global supply chains.

…………………

Corruption[33]

[33] DFAT report at p.12

2.17 Transparency International’s 2020 Corruption Perceptions Index ranked Malaysia 57th out of 180 countries and territories, a fall of six places on 2019. According to international observers, procurement is subject to corruption, and bribes and irregular payments are sometimes exchanged in return for favourable court decisions. One perceptions survey found that Malaysians regarded the police as the most corrupt institution in the country (see Royal Malaysia Police (RMP)), while another found that more than a third of Malaysians regarded Members of Parliament as corrupt, the highest level for any institution. Transparency International’s Corruption Barometer survey in 2020 found that 72 per cent of Malaysians consider corruption in the government to be a big problem and that 13 per cent had paid a bribe with respect to a public service in the last year. While this represents a significant concern about corruption, these levels are lower than in neighbouring Asian countries.

2.18 The most prominent recent corruption case in Malaysia is that involving the government investment fund, 1 Malaysia Development Berhad (1MDB), implicating Najib Razak, former Prime Minister and Chairman of the 1MDB Advisory Board. In July 2020, in the first verdict of a series of trials, former Prime Minister Najib was convicted on seven charges and sentenced to twelve years in prison. In April 2021, Najib appealed these convictions. Further trials have been delayed by COVID-19. Former United Malays National Organisation (UMNO) President Seri Ahmad Zahid Hamidi’s trial for 47 corruption-related charges was held in March 2021 after numerous postponements.

2.19 The Malaysian Anti-Corruption Commission (MACC) has arrested hundreds of civil servants in recent years (467 in 2020, down from 525 in 2019). These arrests came from a variety of different areas within government, for example: in January 2021, five officers from the Malaysian Quarantine and Inspection Services Department were arrested as part of an alleged meat cartel; 27 Immigration Department officers were arrested in November 2020 for their role in an alleged human trafficking syndicate; former PH government finance Minister Lim Guan Eng was charged for alleged bribery in connection with the construction of an undersea tunnel (though he contends that the charge is politically motivated as he is now an outspoken opposition figure); and a deputy public prosecutor was arrested on suspicion of accepting bribes.

2.20 In 2020, several high-profile corruption trials of prominent political figures ended with Discharge Not Amounting to Acquittal (DNAA) verdicts, including one trial of former Minister Tengku Adnan Tengku Mansor in his MYR1 million corruption trial (though he was convicted of a separate offence in another trial). In this case, the order was granted after Deputy Public Prosecutor (DPP) Julia Ibrahim told the court she had received instructions from the Attorney-General’s Chambers (AGC) to seek the DNAA order citing new developments in the case that warranted further investigation. While a DNAA order does not prevent the prosecution from charging the accused again based on the same facts, some commentators have suggested that ending such cases without a definitive verdict and without hearing all the evidence delivers a form of impunity to those charged.

…………………..

Ethnic Malays and Indigenous Groups - Bumiputera[34]

[34] DFAT report at p.20

3.2 Under Article 160 of the Constitution, a Malay person is an individual with characteristics that include professing the religion of Islam, habitually speaking the Malay language, conforming to Malay customs and being the child of a Malay parent. Consequently, all Malay children are automatically registered as Muslim and this is specified on their identity card. Article 153 of the Constitution gives ethnic Malays and other indigenous groups special status (see Demography). These groups are collectively known as ‘Bumiputera’, although the term is not established in the Federal Constitution or any form of statutes. According to the Minister of Law, the term is often used by the government for policy and often used to refer to Malaysian citizens who are either Malay, ‘Anak Negeri’ (indigenous peoples of Sabah and Sarawak, including Malays of these states), or ‘Orang Asli’ (indigenous peoples of peninsular Malaysia). The Malaysian Department of Statistics estimates there were 20.07 million Bumiputera in Malaysia in 2018, making up over 60 per cent of the entire population and nearly 70 per cent of citizens. In the last public data available on the composition of Bumiputera (2015), there were over 14 million ethnic Malays (about 55 per cent of Malaysian citizens) while other Bumiputera constituted just over 3 million people (around 12 per cent of Malaysian citizens). While Malays, Anak Negeri and Orang Asli are all categorised as Bumiputera—in contrast to Chinese and Indian Malaysians who are not Bumiputera—they are treated quite differently from one another within Malaysia (see Indigenous Peoples).

3.3 Government regulations and policies have included numerous preferential programs to boost the economic position of Bumiputera. Such programs promote increased opportunities for Bumiputera to access higher education, careers within the Civil Service (see Civil Service), commercial opportunities and housing. Some industries (including tertiary education and distributive trade) maintain race-based requirements that mandate a certain level of Bumiputera ownership, and the government and many government-linked companies maintain procurement policies that favour Bumiputera-owned supplies. National budgets continue to allocate large amounts of funding intended to benefit Bumiputera. In the 2021 Federal Budget, for example, the government increased its funding for its ‘Bumiputera agenda’ from MYR8 billion in 2020 to MYR11.1 billion in 2021, with the largest share of that money focused on education. Such positive discrimination policies have succeeded in creating a significant urban Malay middle class. However, Malays still constitute a relatively high percentage of individuals in poverty. Despite their constitutionally privileged position, Bumiputera households are over-represented in the bottom 50 per cent of Malaysian households by income.

………………..

Chinese Malaysians[35]

[35] DFAT report at p.22

3.8 The Malaysian Department of Statistics estimated there were 6.7 million Chinese Malaysians in Malaysia in 2020, making up around 20 per cent of the population. Chinese Malaysians are one of the largest overseas Chinese communities in the world, and are Malaysia’s second largest ethnic group. Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia. Chinese Malaysians are concentrated in the west coast states of peninsular Malaysia, living in large urban centres, including within Kuala Lumpur and Penang, and the populous states of Johor, Perak and Selangor, where they comprise approximately 30 per cent of the population.

3.9 There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians (though, by implication, as the second largest ethnic group, they are the principal group affected by the constitutional preference for Bumiputera). Chinese Malaysians freely participate in political life, including as ministers (one in the current cabinet, down from four in the PH government) and in opposition parties, but ethnic Chinese politicians have occasionally faced public criticism for interfering with ‘Malay rights’. The Democratic Action Party (DAP) – a predominantly ethnic Chinese party – currently holds 42 of the 222 federal parliamentary lower house seats. Chinese Malaysian community members advised that the 1MDB corruption scandal (see Corruption) had galvanised anti-government sentiment among Chinese Malaysians (as well as others) and had led to greater political engagement.

3.10 There are relatively few Chinese Malaysians in the Malaysian civil service. The predominant use of the Malay language can be a barrier to Chinese Malaysian employment in the civil service but does not preclude it (see Civil Service). Chinese Malaysians often do not apply for government positions, as they believe the positions are more likely to be awarded to Bumiputera and provide limited promotional opportunity. Conversely, Chinese Malaysians are well represented in the private sector and many small and medium enterprises and large corporations are Chinese Malaysian-owned. However, Chinese Malaysians report discrimination against the community in the business sector and claim unequal access to certain industries due to Bumiputera ownership laws (see Federal and State Law Enforcement Entities). Chinese Malaysians report obtaining and maintaining a business license can be difficult, due to Bumiputera ownership quotas and pressures to pay significant bribes. Chinese Malaysians also claim Inland Revenue Board (IRB) raids of Chinese Malaysian businesses leading to fines are common. Sources claim that IRB raids for ‘verification purposes can close down a business for months at a time, with significant economic consequences including loss of income and frozen bank accounts.

3.11 Chinese Malaysians are eligible to access national primary or high school education, but generally choose to attend one of the nearly 1,300 national-type Chinese primary schools that teach in Mandarin (along with Bahasa Malaysia) (see Education). This is reportedly usually due to concerns about the quality of education elsewhere and perceptions that the curriculum has a strong focus on Islam. Chinese Malaysians report there are insufficient national-type Chinese schools in urban areas to meet enrolment demands and cite anecdotes of families driving their children to Singapore to access non-Islamic, Chinese schools. Chinese Malaysians report that members of the community living in rural areas have better access to national-type Chinese schools, although many families are unable to live in rural areas due to lack of economic opportunity. The 2019 Federal Budget specified funding for independent Chinese schools for the first time but this was not continued in the following Budgets. The Chinese school qualification Unified Examination Certificate (UEC) is still not recognised for the purposes of Malaysian public university entry.

3.12 DFAT assesses Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector……

…………………………………….

Christians[36]

[36] DFAT Report at p.29

3.53 Christians accounted for close to 10 per cent of the total population in 2010, the last year for which official data is available, and are predominantly located in Sabah and Sarawak. While a broad range of ethnicities practises Christianity, approximately 20 per cent of the Chinese Malaysian community is Christian, and reports indicate a growing number of converts to Christianity are ethnic Chinese middle-class individuals who were originally Buddhists or Confucianists. While Christian politicians are present in most political parties, they tend not to represent specifically Christian interests.

3.54 There are comparatively few Malays who practise Christianity in proportion to the overall population. This is because it is very difficult to convert from Islam (the religion of most Malays – see Ethnic Malays) and illegal to proselytise to Malays (see Religious Conversion and Apostasy). Christians of a Malay background, in particular, may be forced to hide their faith from family, friends and colleagues. Christianity is portrayed by some Malay/Muslim political parties such as PAS as a threat to Islam.

3.55 Although Christians claim to have used the word ‘Allah’ (Arabic for God) for centuries in their religious practice in Malaysia, official impediments are in place on their use of the word. The Home Affairs Ministry banned the Catholic newspaper, The Herald, from using the word ’Allah‘ under the Printing Presses and Publications Act (1984) in 2008. The Malaysian Court of Appeals and Federal Court upheld the ban at the time. Religious tensions escalated in 2017-18 including attacks on churches, following an October 2017 decision by the High Court of Kuala Lumpur to reject a Sabah church’s request for a judicial review of the ban on Christians’ use of the word ‘Allah’. However, in March 2021, the Court ruled that Christians could use ‘Allah’ with the judge calling the ban ‘unconstitutional’. The Government announced it would appeal the decision.

3.56 Four Christian pastors suspected of proselytising disappeared between 2016 and 2017, with probable state involvement (see Enforced or Involuntary Disappearances). Church leaders have called on the government to take steps to clarify and separate the jurisdictions of the religious authorities and the RMP.

3.57 In November 2016, Pope Francis appointed Archbishop Emeritus Anthony Soter Fernandez as Malaysia’s first-ever Cardinal, serving until his death in October 2020. In June 2016, Pope Francis received Malaysia’s first Resident Ambassador to the Holy See; the government announced his appointment in March 2016, with a successor commencing in June 2019.

3.58 DFAT assesses that Christians generally live free from societal discrimination on a day-to-day basis. They are usually able to worship freely without significant official interference. Those proselytising or promoting Christianity to Muslims face a moderate risk of harassment by state authorities that, in some cases, has included violence or abduction.

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.

…

5H    Meaning of refugee

1. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

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 the 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.

…

1. Protection visas – criteria provided for by this Act

…

1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

(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.

…

Annexure A

ECONOMIC OVERVIEW

2.9 The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2019 its real GDP growth was 4.3 per cent, while per capita GDP was USD11,418 (approx. AUD 15,000). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia is the world’s second largest producer and exporter of palm oil. Manufactured goods comprised 86.5 per cent of Malaysia’s exports in 2020. Malaysia is the Association of South East Asian Nations’ (ASEAN’s) largest energy exporter and income from oil and gas prov

2.10 According to the World Bank, following the Asian financial crisis of 1997-98, Malaysia’s economy was on an upward path (until COVID-19), averaging growth of 5.4 per cent from 2010. Malaysia’s progression from an upper-middle income economy to high-income status, according to the World Bank’s measure, had been anticipated to occur between 2024 and 2028. This may be delayed somewhat by the effects of COVID-19, while some commentators have suggested Malaysia cannot sustain the high levels of growth required to make this transition.

2.11 Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (MYR2,208 (AUD700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, the so-called ‘B40’ who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. Furthermore, the UN Special Rapporteur on Extreme Poverty gave the view in 2019 that Malaysia’s official poverty line is artificially low and that a more accurate measurement results in a poverty rate of around 16-20 per cent. The UNDP’s Human Development Index ranked Malaysia 62 of 189 countries in 2020, placing it in the ‘very high human development’ category.

2.12 In 2020, Malaysia’s economy was hit with the dual shock of COVID-19 and a decline in oil prices. According to the Malaysian government, the Malaysian economy contracted by 5.6 per cent in 2020 due to COVID-19. The economy is expected to rebound in 2021, with Malaysia’s central bank forecasting growth between 6 and 7.5 per cent. The Malaysian government undertook robust measures to limit the impact of the pandemic on the economy, both through the 2021 Budget and through multiple economic stimulus packages. Measures included wage subsidies for lower-paid employees, a moratorium on loans by financial institutions, special grants of MYR3,000 (AUD 950) to qualifying SMEs and direct cash grants to the poorest Malaysians, as well as investment incentives and measures to protect Malaysia’s role in global supply chains.

SECURITY SITUATION

2.44 Malaysia’s overall security situation is generally stable. Petty crime is common: thieves snatch handbags, shoulder bags, jewellery, mobile phones and other valuables from pedestrians, and pickpocketing and residential burglaries frequently occur. There is a high threat of kidnapping in the coastal areas of eastern Sabah. Extremists based in the southern Philippines are particularly active in the area between the towns of Sandakan and Tawau in eastern Sabah.

2.45 Protests and demonstrations occur from time to time and are largely peaceful. Malaysian police reported that approximately 55,000 protestors attended a largely peaceful December 2018 anti-ICERD rally. However, in a protest in Kuala Lumpur in March 2020 against the circumstances that saw the end of the PH coalition, the Government was criticised for arresting and detaining pro-democracy activists. Some protests are accompanied by violence, as occurred at an incident at a major Hindu temple outside Kuala Lumpur (the Seafield Hindu Temple) in November 2018 (see Buddhists and Hindus).

2.46 Consistent with global trends, terrorism is a long-standing concern in Malaysia. Malaysian security forces are responsive and generally capable. Following a terrorist attack in Jakarta on 14 January 2016, Malaysian security forces increased their visible presence and security measures on Malaysian streets. Despite this, Da’esh (also known as the Islamic State in Iraq and the Levant or the Islamic State) sympathisers were involved in a grenade attack in Kuala Lumpur on 28 June 2016. Although Malaysia has not experienced further Da’esh-related attacks, and the overall number of foreign terrorist fighters from Malaysia has reportedly decreased, the country remains a source, transit, and, to a lesser extent, a destination country for suspected Da’esh supporters. This includes suspected third-country Da’esh supporters deported from Turkey and those planning to travel to the southern Philippines. Between January 2013 and May 2019, Malaysian authorities claim to have made 519 counter-terrorism related arrests, while the Royal Malaysia Police (RMP) Special Branch Counter-Terrorism Division has reportedly disrupted several domestic terror plots. It was reported that Malaysia made seven counter-terrorism arrests in 2020, down from 72 and 119 arrests (of Da’esh suspects) in 2019 and 2018 respectively, but this was attributed chiefly to coronavirus-related movement restrictions.

Trafficking in Persons

2.48 Malaysia is a destination, source and transit country for human trafficking. The 2020 US Trafficking in Persons Report reports that men, women, and children are commonly trafficked into forced labour, and women and children are subject to sex trafficking. The majority of victims of trafficking (VoT) are documented and undocumented migrant labourers. In the reporting period, Malaysian authorities identified 2,229 potential VoTs and confirmed 82 VOTs, an increase on the previous year (2018-19) but fewer than in previous years, compared to 2,224 potential and 721 confirmed VoTs in 2017, and 3,411 potential and 1,558 confirmed VoTs in 2016.

2.49 The third National Action Plan Against Trafficking in Persons 2021-2025 was launched on 1 April and sets out Malaysia’s national goals for preventing and combating trafficking in persons. In March 2018, the then-government established an anti-trafficking court in the state of Selangor, which has historically had the highest number of trafficking cases. The government has not yet implemented plans to create such courts elsewhere in the country. The then government did, however, expand trafficking investigations, prosecution, and convictions for those involved in trafficking activities. The 2020 US Trafficking in Persons report stated that some Malaysian immigration officials had accepted bribes to allow undocumented border crossings, and that complicity among law enforcement officials had hampered some anti-trafficking efforts. To date, culpable officials have typically avoided prosecution and punishment, although arrests of junior syndicate members occur periodically. In January 2019, a Royal Commission of Inquiry was set up to investigate an illegal transit camp at Wang Kelian where the skeletal remains of 130 people were found. Media reports suggest official complicity in the trafficking activities and a ‘massive coordinated cover-up’ of the mass grave. The findings of the RCI report were submitted to the Malaysian Cabinet in February 2020 but had not yet been made public at the time of publication of this report.

2.50 While UNHCR and NGOs provide the majority of VoT support services, the government also provides basic VoT services, including food, shelter, medical care, social and religious activities, and security. The Ministry of Women, Family, and Community Development maintains seven facilities specifically to house VoTs (four for women, one for men, and two for children).

Chinese Malaysians

3.8 The Malaysian Department of Statistics estimated there were 6.7 million Chinese Malaysians in Malaysia in 2020, making up around 20 per cent of the population. Chinese Malaysians are one of the largest overseas Chinese communities in the world, and are Malaysia’s second largest ethnic group. Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia. Chinese Malaysians are concentrated in the west coast states of peninsular Malaysia, living in large urban centres, including within Kuala Lumpur and Penang, and the populous states of Johor, Perak and Selangor, where they comprise approximately 30 per cent of the population.

3.9 There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians (though, by implication, as the second largest ethnic group, they are the principal group affected by the constitutional preference for Bumiputera). Chinese Malaysians freely participate in political life, including as ministers (one in the current cabinet, down from four in the PH government) and in opposition parties, but ethnic Chinese politicians have occasionally faced public criticism for interfering with ‘Malay rights’. The Democratic Action Party (DAP) – a predominantly ethnic Chinese party – currently holds 42 of the 222 federal parliamentary lower house seats. Chinese Malaysian community members advised that the 1MDB corruption scandal (see Corruption) had galvanised anti-government sentiment among Chinese Malaysians (as well as others) and had led to greater political engagement.

3.10 There are relatively few Chinese Malaysians in the Malaysian civil service. The predominant use of the Malay language can be a barrier to Chinese Malaysian employment in the civil service, but does not preclude it (see Civil Service). Chinese Malaysians often do not apply for government positions, as they believe the positions are more likely to be awarded to Bumiputera and provide limited promotional opportunity. Conversely, Chinese Malaysians are well represented in the private sector and many small and medium enterprises and large corporations are Chinese Malaysian-owned. However, Chinese Malaysians report discrimination against the community in the business sector and claim unequal access to certain industries due to Bumiputera ownership laws (see Federal and State Law Enforcement Entities). Chinese Malaysians report obtaining and maintaining a business license can be difficult, due to Bumiputera ownership quotas and pressures to pay significant bribes. Chinese Malaysians also claim Inland Revenue Board (IRB) raids of Chinese Malaysian businesses leading to fines are common. Sources claim that IRB raids for ‘verification purposes’ can close down a business for months at a time, with significant economic consequences including loss of income and frozen bank accounts.

3.11 Chinese Malaysians are eligible to access national primary or high school education, but generally choose to attend one of the nearly 1,300 national-type Chinese primary schools that teach in Mandarin (along with Bahasa Malaysia) (see Education). This is reportedly usually due to concerns about the quality of education elsewhere and perceptions that the curriculum has a strong focus on Islam. Chinese Malaysians report there are insufficient national-type Chinese schools in urban areas to meet enrolment demands, and cite anecdotes of families driving their children to Singapore to access non-Islamic, Chinese schools. Chinese Malaysians report that members of the community living in rural areas have better access to national-type Chinese schools, although many families are unable to live in rural areas due to lack of economic opportunity. The 2019 Federal Budget specified funding for independent Chinese schools for the first time but this was not continued in the following Budgets. The Chinese school qualification Unified Examination Certificate (UEC) is still not recognised for the purposes of Malaysian public university entry.

3.12 DFAT assesses Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector.

RELIGION

3.21 Article 3(1) of Malaysia’s Constitution states ‘Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation’. Article 11(1) states every person has the right to profess and practise his religion and, subject to clause (4), to propagate it.

3.22 The government automatically classes individuals born in Malaysia of Malay ethnicity as Muslim. Some indigenous persons have adopted Islam, but many choose to practise traditional spirituality or Christianity. Ethnic Chinese Malaysians are generally Buddhist, Christian or Taoist, practise traditional Chinese folk religion and ancestor worship, or do not follow a religion. The majority of the ethnic Indian Malaysian population practises Hinduism, although a significant minority practises Christianity.

3.23 According to Malaysia’s last Population and Housing Census in 2010, Muslims comprise 61.3 per cent of the population, Buddhists 19.8 per cent, Christians 9.2 per cent, Hindus 6.3 per cent, and Confucianism, Taoism, and other traditional Chinese religions 1.3 per cent. Other minority religious groups include animists, Sikhs, and Baha’i. Rural areas, especially in the east coast of peninsular Malaysia, are predominantly Muslim, whereas the states of Sabah and Sarawak have relatively higher numbers of non-Muslims. Media estimates approximately 75 per cent of Malaysian Christians live in Sabah and Sarawak, around 65 per cent of whom are indigenous.

3.24 While the Constitution guarantees freedom of religion, the practice of religions other than Sunni Islam is subject to some constraints. Laws such as Selangor state’s Non-Islamic Religions (Control of Propagation amongst Muslims) Enactment (1988) control and restrict the propagation of other religions, including non-Sunni versions of Islam. The UN Special Rapporteur in the field of cultural rights raised concerns over a trend of growing religious intolerance in Malaysia in September 2017, particularly toward Muslim minorities.

3.25 Several organisations advocate the rights of minority religions, including the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, an inter-faith committee established in 1983. Although religious bodies are required to be registered under the Societies Act (1966; amended 2006), some religious groups report they have instead registered under the limited guarantee category under Companies Act (2016) (see Human Rights and Civil Society Organisations).

3.26 The religious status of Muslims is recorded on their birth certificates and on their national identification cards (MyKad), reportedly to assist with the application of syariah law. National identification cards do not distinguish between Sunni and Shi’a Muslims. Other religious affiliations are not reflected visibly on the surface of the card, but are encrypted on a smart chip in the card instead. Married Muslims must carry a photo identification of themselves with their spouses as proof of marriage. This requirement has reportedly been enforced in practice, particularly in the northern states. Some vigilante groups have also attempted to enforce these and similar requirements, in accordance with Islam. In July 2019, a controversial Kedah-based anti-vice ‘Badar Squad,’ reportedly harassed unwed Muslim couples who did not have what the group deemed to be proper supervision.

3.27 Malaysia has a two-track legal system: common law, administered at the federal level; and syariah-based law, administered at the state level, which varies by jurisdiction. In June 2019, however, the office of the Islamic Affairs Minister announced the National Council for Islamic Affairs had agreed on a proposal to standardise syariah criminal laws in all states. Although the proposed changes had not yet come into effect at the time of publication, it is envisaged that a uniform set of syariah criminal laws would be made through amendments to the existing provisions, as well as adding new provisions to the Syariah Criminal Offences (Federal Territories) Act.

3.28 Family and personal laws governing Muslims, as well as laws relating to religious offences, are promulgated at the state level (see Family Law). Parliament can only pass legislation on such matters when it comes to the Federal Territories. Customary law (adat) – ancient unwritten laws that are found in a particular place where no rules have ever been enacted by the legislative authority – can also apply in Malaysia. Customary laws are generally concerned with matters of personal status (for example landholding and inheritance, or marriage).

3.29 Matters considered by states under syariah-based law relate to succession, betrothal, marriage, divorce, adoption, guardianship, approval of mosques or any Islamic place of worship, and the ‘determination of matters of Islamic law and Malay customs’. The federal government delivers national rulings and provides guidance to state religious departments through the National Department of Islamic Development (JAKIM) and the National Fatwa Council (see Federal and State Law Enforcement Entities). These bodies sit within the Prime Minister’s portfolio.

3.30 The manner in which Islamic affairs are organised at the state level is laid out in the Administration of Muslim Law Enactments. These state-based Enactments are generally similar in content – but not identical to one another. State religious authorities issue fatwas to resolve problems when there is doubt over whether a practice is permissible or forbidden in Islam. Fatwas have been issued on a range of topics, from ‘vaping’ to business dealings with non-Muslims. Syariah-based law applies only to ‘persons professing the religion of Islam’. However, the enforcement of syariah sometimes affects non-Muslims, particularly on matters involving religious conversion and family.

3.31 The government has prohibited many publications in Malaysia based on an assessment that they contain ‘deviant’ teachings that could incite religious disharmony (see Shi’a Muslims). The use of the word ‘Allah’ by non-Muslims to refer to their god(s) was banned by the courts in 2013, on the basis that Article 10 of the Constitution on freedom of expression must be read in conjunction with other provisions, namely Article 3(1) that holds Islam as the religion of the federation (see Islam and Malaysian Christians). TheFederal Court unanimously upheld this ruling in 2015. In March 2021 the Sidang Injil Borneo Church discontinued its appeal against this decision.

3.32 While the government rarely intervenes in instances of religious persecution or criticism of non-Muslims, there are reports of the harassment of non-Muslims for commenting on any matter pertaining to Islam. According to SUARAM, in 2020, there were around 10 arrests or investigations of people who made comments or allegedly derogatory remarks about Islam. JAKIM reportedly has a team that monitors complaints of provocation towards Islam, and people can report complaints directly via WhatsApp. The current King, Sultan Abdullah, has reportedly warned Malaysians against making any ‘insinuating comments’ regarding Islam, and Malay-dominated parties, led by the United Malays National Organisation (UMNO, the dominant party in the previous BN coalition) have also warned the non-Muslim community in Malaysia not to meddle in the Islamic affairs of the country. Self-censorship by non-Muslims also occurs; during 2019 Chinese New Year, which marked the Year of the Pig, many businesses refused to display images of the pig due to perceived Islamic sensitivities.

3.33 Islamic groups and leaders have criticised, and in some cases harassed, commentators and community groups for expressing concern over a perceived increase in the Islamisation of government, and over shrinking space and freedom for non-Muslims to practise their faith. In 2016, the Mufti of Pahang labelled DAP leaders as ‘Kafir Harbi’ (non-Muslims against Islam) for protesting a private member’s Bill seeking to extend and increase punishments under syariah-based law. DFAT is aware of a few reported incidents of violence against religious ‘dissenters’. DFAT is also aware of reports of increasing religious segregation of school entrances, exits and canteens, and of reports of Malaysians being arrested for consuming alcohol. Under the PN government, increasing calls for a crackdown on drink driving are reportedly connected to Islamic intolerance for alcohol, with PAS calling for a ban on alcohol sales until the issue of drunk driving is ‘resolved’.

3.34 The UN Special Rapporteur for cultural affairs reported in 2019 that ‘Islamization’ was increasingly leading to the pre-Islamic history of Malaysia, as well as non-Muslim cultural heritage, being omitted from textbooks, so the contributions of Chinese and Indian Malaysians and indigenous people were marginalised.

STATE PROTECTION

Federal and State Law Enforcement Entities

5.1 Law enforcement entities operate at both federal and state levels. The RMP reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide. JAKIM standardises syariah-based law and regulates halal certification for food. JAKIM played a central role in shaping and enforcing the practice of Islam in Malaysia under the former BN government. The PH government signalled its intention to review and reform the department, though little change apparently occurred before the commencement of the PN government. JAKIM enforces syariah over Muslims in the three federal territories of Kuala Lumpur, Putrajaya and Labuan. State Islamic bodies enforce syariah at the state level. The RMP and JAKIM operate independently. While relevant state religious departments or the RMP can investigate misconduct by religious enforcement officers, the RMP is generally unwilling to involve itself in state religious matters. JAKIM saw its budget increase from MYR1.2 billion to 1.3 billion in 2020, and then again to 1.4 billion in 2021.

5.2 The People’s Volunteer Corps (RELA), a federal paramilitary civilian corps under the jurisdiction of the Ministry of Home Affairs, assists security forces. Private individuals can hire RELA for crowd control at events such as weddings and funerals. RELA membership totals approximately 3 million. Their engagement in law enforcement activities has significantly reduced in recent years. NGOs have reported that inadequate training has left RELA members poorly equipped to perform their duties. In 2020, RELA were active in imposing the MCO together with army and police.

5.3 State-level Islamic religious departments enforce syariah through Islamic courts and have jurisdiction over Muslims in each state in matters of family law and religious observances. Syariah-based laws and the degree of their enforcement vary from state to state, although religious enforcement officers (see State Islamic Religious Departments) can accompany police on raids in all states. The federal law limits some penalties imposed by syariah courts.

Military

5.4 The Malaysian Armed Forces have three branches of service – the Malaysian Army, the Royal Malaysian Navy and the Royal Malaysian Air Force – with approximately 110,000 active military personnel and 52,000 reserve personnel. The minimum age for voluntary service is 17 years and 6 months. There is no conscription. Military expenditure was 1.03 per cent of GDP in 2019. The premier unit in the Malaysian Army is the Royal Malay Regiment which is comprised of Bumiputera only. The Ranger Regiments and Border Regiments are not restricted to Bumiputera: the former is the second largest unit in the army and dates back to 1862; the latter was established in 2006 with a specific mandate of border control. The Royal Malaysian Air Force operates a diverse fleet of aircraft from a wide range of suppliers, including a fast jet fleet consisting of 8 F/A-18Ds and 18 Sukhoi Su-30MKMs. The Royal Malaysian Navy is a modern, professional Navy and operates 52 vessels across its fleet, including two French built Submarines. The Malaysian Armed Forces are a professional military force and have increasingly been utilised by the government in domestic roles. Through 2020 the Malaysian Armed Forces were deployed to help enforce the pandemic MCO, contribute to the border operation, Operation BENTENG, and respond to a number of natural disasters.

Royal Malaysia Police (RMP)

5.5 The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates over 800 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, state Islamic religious authorities and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.

5.6 According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). 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 the RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.

5.7 External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission, which was created in 2009 as part of the government’s response to police corruption, which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts. Perceptions of the EAIC’s ineffectiveness contributed to calls for a new police accountability body (see IPCMC below).

5.8 In-country sources claim the RMP has engaged in the practice of ‘chain of remand’ whereby police arrest someone, hold them until a court will not or cannot extend their remand, and release them only for police from a different police station to re-arrest that same person. Human rights observers claim this practice occurred regularly in 2020.

5.9 The then-Inspector General of Police announced the establishment of an Integrity and Standards 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. SUHAKAM’s investigation into the disappearance of Pastor Raymond Koh concluded that RMP Special Branch was responsible for the disappearance (see Enforced or Involuntary Disappearances). With regard to police accountability, see also Deaths in Custody.

State Islamic Religious Departments

5.10 Religious enforcement officers, known locally as religious police, have a range of powers that vary depending on the particular syariah-based laws that apply in each state. Section 72(2) of the Constitution grants states the authority to define crimes and punishments for Muslims in matters that are not covered by federal law. Religious enforcement officers can detain and charge individuals to go before syariah courts for a range of reasons, including indecent dress, alcohol consumption, the sale of restricted books, or close proximity to members of the opposite sex. Ministers of the then-PH government stated their intention to curtail this policing of ‘morals’. State-level syariah-based law imposes a range of penalties (see Judiciary). Although state religious officers have no jurisdiction over non-Muslims, their considerable range of powers means their actions can directly impact non-Muslims, who may (for example) feel compelled to comply with Islamic dress codes.

5.11 Relevant state religious departments or the RMP can investigate misconduct by religious enforcement officers, but the RMP is reportedly generally unwilling to involve itself in state religious matters. DFAT understands most complaints against religious enforcement officers historically related to mistreatment of people who identify as transgender, domestic violence victims and non-Muslim parents in situations of unilateral child conversion to Islam. DFAT does not have access to current information on complaints against religious enforcement officers.

5.12 Sources claim Islamic religious and political NGOs financed by JAKIM (see Federal and State Law Enforcement Entities) pay staff to recruit people to convert to Islam in Sabah, and are able to incentivise potential converts with monetary payments, and the potential for food and government welfare available to Muslims. Sources claim poor communities have been targeted for conversion due to potential income and support, and many converts are not aware they have converted to Islam. Sources also claim Christians from the southern Philippines and Indonesia have been approached for conversion to Islam in return for residency in Sabah (red identification card), with a view to applying for citizenship (blue identification card, only available to Bumiputera). DFAT is also aware of reports of university students doing home stays with Orang Asli to teach them about Islam and encourage them to convert, incentivising them with financial benefits, the promise of housing and welfare available to Muslims.

5.13 Media reporting in June 2019 quoted the Kelantan Islamic Religious and Malay Customs Council (Maik) stating that it intended to convert all Orang Asli within its state borders to Islam by 2049. Media quoted Maik’s Deputy Chairman claiming the council had over 100 preachers, including personnel from JAKIM, and was working with the Universiti Kebangsaan Malaysia on a proselytisation mission. Maik had developed a preaching plan based on three main modules, preparing a database with Orang Asli profiles and their religious identification, creating a uniform curriculum, and training preachers how to preach to Orang Asli. Approximately 5,000 of the 16,000 Orang Asli living in Kelantan had reportedly already embraced Islam at that time. In July 2019, media also reported that the Temiar Orang Asli in Gerik, Perak, had ‘Islam’ added to their MyKad identity cards without their consent, and that the villagers had never converted to Islam.

Judiciary

5.14 The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level, and subordinate courts. Syariah 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. Seven of 11 members of the Federal Court are Malay Muslims which is roughly equivalent to their proportion of the population.

5.15 Sources report issues of judicial independence, arbitrary verdicts, selective prosecution, delays to court-ordered relief for civil plaintiffs, and preferential treatment of some litigants and lawyers persist in Malaysia. 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. Although strict rules of evidence apply in court, defence counsel may be impeded by limited pretrial discovery. According to a leading human rights NGO, a Court of Appeal judge claimed he had been reprimanded by a senior judge after writing a dissenting statement in 2018. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods: in mid-2018, 26.7 per cent of the total prison population comprised pre-trial detainees (see Detention and Prison).

5.16 State-level syariah courts apply syariah-based law in accordance with their rules of procedure (see Religion). Native (Indigenous) courts operate in Sabah and Sarawak, and are mechanisms for settling disputes regarding breach of customary law. In accordance with the Constitution, native courts and the enforcement of native customary law are considered state matters, regulated by state legislation.

5.17 Mobile courts, which sit as the Magistrates and Sessions Court and are empowered by roaming magistrates, operate in remote areas of Sabah and Sarawak. The courts operate in an effort to register undocumented people, allowing the court magistrate to capture late birth registration with government officials from the National Registration Department present to process paperwork. Prior to presenting at a mobile court, applicants are required to register their applications online, providing available documentation (if any). Online checks are performed by the National Registration Department. When applicants present at the mobile court, they require a witness, often the midwife and the village head, to testify to the unregistered birth, and language checks will be performed. If an application is approved, a birth certificate can be issued on the spot while the applicant is at the mobile court. Single and unmarried mothers are permitted to register their children’s births at mobile courts in Sabah.

5.18 DFAT assesses that, while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.

INTERNAL RELOCATION

5.26 Although the Constitution provides for freedom of internal movement, Sabah and Sarawak have autonomy over their own immigration. Non-Sabah or Sarawak residents, whether Malaysian citizens or foreigners, must present national identity cards (or passports for foreigners) to gain entry and can visit for a maximum period of three months. The federal government can overrule immigration decisions made by Sabah or Sarawak in limited circumstances, including for national security reasons.

5.27 Sabah and Sarawak both issue working visas to non-residents (including other Malaysians), but these can be difficult to obtain. Both states limit purchase of land by non-residents. Far more people migrate from Sarawak and Sabah to peninsular Malaysia than in the other direction, due to better work opportunities and higher salaries.

5.28 DFAT assesses that, subject to the restrictions outlined above in relation to Sabah and Sarawak, Malaysians can and do freely relocate internally, generally to larger urban areas in peninsular Malaysia for economic reasons. Individuals likely to attract official attention under state syariah-based law, including people who identify as LGBTI, women escaping domestic violence, or Muslims wishing to marry non-Muslims, may also move to large urban centres to avoid attention (see Women, Sexual Orientation and Gender Identity, Religious Conversion and Apostasy and Atheism).

TREATMENT OF RETURNEES

Exit and Entry Procedures

5.29 Sources indicate Malaysia has at least 59 sea, 25 land and 33 air-based formal entry and exit points. Not all entry points allow for visas on arrival. The Immigration Department is responsible for conducting exit and entry checks. Malaysia keeps records of entries and exits (which are not always complete); authorities do not always capture details of arrival/departure ports and destinations. Authorities may prevent the departure of individuals who are facing serious criminal charges, or who have defaulted on repayments of government tertiary education loans. Authorities check travellers against a Travel Status Inquiry (SSPI) system maintained by the Immigration Department prior to departing from an airport or port. However, DFAT understands that, despite being in place, the Interpol database may not have always been activated in the past.

5.30 During the COVID-19 pandemic, the Malaysian Government tightened entry and exit requirements. These requirements and procedures are subject to change to respond to the pandemic globally and within Malaysia itself. Prior approval is needed to enter Malaysia, this includes issue of Social Visit Passes (tourist visas), which have predominately been granted on compassionate grounds. Entry into Malaysia for the purpose of social visits or holiday is not presently permitted. Applications to enter, exit or to exit and re-enter Malaysia are completed online. Mandatory quarantine, testing and registration on the MySejahtera mobile application are required on entry into Malaysia.

5.31 When leaving Malaysia, Malaysians must present a valid passport and, where required, a valid visa for their destination country (a criterion imposed by airlines’ destination countries rather than Malaysian immigration). During the COVID-19 pandemic, Malaysian nationals have been required to seek permission from the Malaysian Department of Immigration to leave the country. Overseas travel for tourism purposes is not permitted.

5.32 There are no laws prohibiting single women from travelling abroad by themselves, and the number of women doing so had been increasing prior to COVID-19. Travel agencies offer special programs for women to protect their safety. Some conservative Islamic families may, however, discourage single women from travelling alone, particularly abroad.

5.33 While not a requirement, when travelling overseas with a child and only one legal guardian present, the Malaysian immigration department advises the parent to carry a copy of the child’s birth certificate or legal guardian identification details, and a letter of consent from the absent parent. Authorities may ask to view these documents. DFAT is aware of allegations of corruption made against border officials patrolling Malaysia’s porous northern border with Thailand, an area linked with people trafficking, but is not aware of any cases in which officials have been charged (see Trafficking in Persons and Prevalence of Fraud).

5.34 In November 2018, the government commenced fingerprinting every refugee who departed Malaysia, including infants. The government also fingerprints refugees when it issues refugee exit permits.

5.35 In recent years, Sabah and Sarawak have denied entry (or threatened to do so) to a small number of individuals. In September 2020, DAP secretary-general Lim Guan Eng, facing three corruption charges, was temporarily barred from entering Sabah, allegedly on the instruction of MACC; MACC and Sabah have claimed it was a misunderstanding. In September 2018, a Kuala Sepetang State Assembly member was removed from an official dinner in Sarawak by State Immigration Officials and deported to Kuala Lumpur. During the Sarawak state election in May 2016, a number of prominent opposition figures were denied entry on arrival in Sarawak. DFAT is not aware of any instances of authorities denying an individual’s exit from Sabah or Sarawak.

5.36 Sources advise there have been cases in which Immigration Department officers have been arrested for immigration-related corruption. In November 2020, 33 immigration officers were caught in a nationwide immigration crime ring, specialising in falsifying entry and exit stamps at Malaysia’s main entry and exit points, in order to help international syndicates smuggle people from China, Vietnam, Indonesia and Bangladesh into Malaysia through the main airports in Kuala Lumpur. In April 2021, five individuals within the Immigration Department were arrested for allegedly printing hundreds of thousands of falsified work passes sold at between MYR6,000 and MYR8,000 each to undocumented migrants working illegally in Malaysia.

Conditions for Returnees

5.37 Many thousands of Malaysians enter and leave the country every day. People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return because of their absence. Authorities generally pay little attention to Malaysians who over-stay their work or tourist visas or breach visa conditions in other countries upon their return to Malaysia. Likewise, failed asylum seekers would be unlikely to face adverse attention, as the Malaysian government would not typically know the individual was a failed asylum seeker, although it is possible that some individuals might be questioned upon entry or have their entry delayed, particularly if their passport had expired while abroad. There is widespread media reporting on the issue of Malaysian nationals travelling to other countries and applying for asylum for the purpose of obtaining work rights. The International Organization for Migration (IOM) assists voluntary returnees, and Malaysian authorities cooperate with the IOM in these arrangements.

5.38 Nevertheless, under Malaysian immigration law, Malaysians who overstay their visa or breach visa conditions in other countries (whether or not they apply for asylum) may be blacklisted and prevented from further travel, normally for a period of up to two years. Cases are unlikely to come to attention, unless the Malaysian is removed (i.e. deported) from another country or applies to renew a passport through a diplomatic mission overseas. If removed on an emergency travel document, a Malaysian national will be directed to report to Immigration in Putrajaya and may face a fine for not returning on a full passport.

5.39 If an individual has committed an offence in Malaysia prior to departure, they could face trial for the offence upon return to Malaysia. The Constitution states that an individual cannot be tried more than once for the same offence, unless there is a substantial change in evidence. In June 2016, the Deputy Inspector General of Police publicly indicated that the RMP might seek extradition of a convicted British paedophile if the 71 counts of sexual assault he was charged with in the UK did not include his Malaysian victims (this crime does not carry the death penalty in Malaysia). The following day the then-Deputy Minister for Home Affairs denied this, stressing the issue fell under the UK’s jurisdiction. The Malaysian government also withstood public pressure to charge another individual who returned to Malaysia in 2017 after serving a prison sentence in Canada for sex offences, although Sabah and Sarawak both banned entry.