1725585 (Refugee)

1725585 (Refugee) [2023] AATA 3323 (14 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1725585
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Joseph Lindsay
DATE:14 July 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 July 2023 at 12:47pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – victim of crime and fear of harm from Muslim organisation/gangsters – estrangement from family – depression and thoughts of self-harm/suicide – no mental health diagnosis or treatment – economic hardship and corruption – imputation of atheism because applicant not ‘really religious’ – country information – economic growth, anti-corruption measures and reasonable access to state protection and mental health services – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 13 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Malaysia, applied for the visa on 24 April 2017. The applicant appeared before the Tribunal on 2 May 2023 to give evidence and present arguments. The applicant expressly stated that he did not want an interpreter and at no stage in the hearing did he request an interpreter.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).
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–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s handwritten claims from his form 866 protection application are as follows. He stated:
I am starting a new life. My family for one didn’t want anything to do with me. To them I’m a failure. I’ve been stabbed, mugged and robbed of my friendship. My family thought I was a waste of their valuable time and resources. My relatives didn’t even acknowledge me. I have no friends because I am an introvert and really no one that loves me, that is alive anyways. The only real father figure I had passed away last October and that almost killed me too. Feeling all alone and depressed, I was having suicidal tendencies, knowing full well that my religion (Islam) prohibits it. [Mr A] was the only one who took care of me and genuinely wanted to help. I was in [a business] with my brother, but my brother didn’t pay my salary for most of the time I was working with him, and seeing that he was family, I gave him the benefit of the doubt and kept working until I can’t take it anymore. [Mr A] helped me most of the time, but when he passed away and his family moved away, I have no one else and nowhere to turn to (sic).
In response to the question of what he thought would happen to him if he returned to Malaysia, the applicant wrote:
When things became too overwhelming and I got depressed, I was leaning on to killing myself. I tried explaining this to my parents but when I do, they said I was too soft and I was more like seeking for attention rather than depressed. Feeling like nobody wanted me, I turned to [Mr A], but he left me too. I tried to see the positive side in al of this but it just seems like the universe is trying to get me. Crime has been on the rise as well and I’m more afraid of my safety when I have been mugged before in Malaysia.
In response to the question as to whether he experienced harm when he was in Malaysia, the applicant ticked the “yes” box and wrote:
I was mugged once not so long ago and they took the only thing I worked so hard for and no matter how hard I tried running away, trouble seems to follow me. The mugging happened while I was on my way home. A machete was placed on my neck and another guy took my motorcycle, the only means I have to move around, not to mention it was bought with my hard earned money. I was stabbed a few years back by my cousin, saying that he does not want me near his family or his favourite uncle (my dad). Even though it was only with a pen knife, I didn’t get hurt too bad, this incident made me fear to be there any longer and that is also why I didn’t report this to the police.
In response to the question as to whether he sought help within Malaysia after the harm, the applicant ticked the “yes” box and wrote:
[Mr A] was always there, since I was studying in university. He provided shelter, food, clothing and most of the time, a comfort only families can give. He shared his family with me, and wherever he goes, I will be there. But when he passed away due to cancer, it all went wrong and I found calamity on every corner. After he passed away I tried moving to other states, living off needed help and washing dishes, etc. I still feel depressed, still wanted to kill myself.
In response to the question as to whether he moved, or tried to move, to another part of Malaysia to seek safety, he ticked the “yes” box and wrote:
I moved back to Penang where my uncle owns a farm of palm plantation and I tried working there for a few months after the passing of [Mr A], but was met with hostility and screams by my uncle. I only lasted about three months before getting myself over here. When I finally got to Australia, surprisingly everybody was so nice to me that at first I thought they wanted something from me.
In response to the question as to whether he thought he would be harmed or mistreated if he returned to Malaysia, he ticked the “yes” box and wrote:
As written before, I am not wanted by my family members and relatives, even my neighbours think I'm crazy because my family put on such great acts in front of others. I was harmed before, be it by beating, slapped numerous times, even stabbed, it wouldn't be a surprise if it were to happen again. Besides, my cousin clearly said not to be near my family/his favourite uncle (my Dad), or he will do something worse.
In response to the question as to whether he thought the Malaysian authorities could or would protect him if he went back to Malaysia, he ticked the “no” box and wrote:
Since this falls under domestic disturbance and I am above 21, also capable of making adult decisions, the authorities are not able to do anything. This abuse was reported by [Mr A] once, but the authorities can't do anything about it. The government of Malaysia doesn't emphasise on human rights, let alone depression, so cases like get thrown out and neglected. To everybody else, I could have done this myself and deal with it alone. No one else needs to care.
In response to the question as to whether he thought he would be able to relocate within Malaysia he ticked the “no” box and wrote:
Tried moving to numerous locations throughout the time and it just didn't work out. Since I only had my SPM (Sijil Pelajaran Malaysia) and I dropped out of university, it is hard to find a decent job and in Malaysia, the cost of living is expensive, plus with my depression, it makes it even harder to do anything. Money is also a problem because I can't get work over there and they want to hire people with experience, I can't get a decent job to support myself.
In the hearing, the Tribunal spoke to the applicant about his claims. The Tribunal asked the applicant what happened in Malaysia that made him decide to come to Australia. In response he said that he, at first, did not know that he wanted to come to Australia but that he followed his best friend to Australia.
When again asked why he left Malaysia, the applicant said he was having “very vivid suicidal thoughts” about “pretty much everything.” He then said that his family did not want him. He said he had been “feeling their wrath.”
When asked who he meant when he said his family did not want him, the applicant responded that it was his mother and father that did not want him. He then said that his father had married twice, and that there were siblings from his father’s first wife whereas he was born from his father’s second wife. He said he felt as if he was the “black sheep” of the family. When asked why he felt that way, he said it could be because he did not excel – whether it be at school or in other pursuits. He said that, compared to his other siblings, there were “high standards” in the family. For example, he said that his sister was [an Occupation 1] in [Country 1]. He said his other siblings were well educated. He said that he did not want to go down “that path” but rather he wanted to go into business and go work in [Occupation 2]. He said he took a gap year after finishing high school. He said that he got involved in multi-level marketing work. He indicated that his family did not approve of this work. He said he was involved in a business selling things online. He said he was working late and generally didn’t come home. In addition to that he said his father was a conservative person. He said he moved around with his father, who worked in [Work sector 1] with his mother. He said his father used to be in [Work sector 2] and that was why he was strict.
He said his father worked in “[Job task]” and his mother was [an “Occupation 3].” He then said his high school was right next to their office, so whenever something happened the teacher would tell his parents.
When again asked why he left Malaysia he said he was having “suicidal thoughts everywhere.”
When asked why he was having suicidal thoughts, he responded throughout his whole life he never felt like he was wanted. He said that everywhere he went he felt like it was never enough. He said he got beaten by his father, but not to the point where it was “excessive.” He indicated that whatever he did for his family, he felt like it was never enough for them. He said he did his studies in [Occupation 2] and then after that he went and worked in [that industry]. However, he said he felt that whatever he was earning was not even close to what his brother and sister were earning.
The applicant spoke about his brother, [Mr B], and his [store]. He said that his brother sold [products]. When asked why he went and worked for his brother after he had been working in [Occupation 2], he said his brother asked him to. He said his brother played “the family card.” He said that all this time he was “trying to fix” whatever he felt that he was lacking.
When asked what he meant when he said he felt he was lacking, he said he once got a girl pregnant. He said the girl then had an abortion. He said that to his family members this was a bad thing that he did. He indicated that his family members had expectations of him that he did not match up to.
When again asked why he left Malaysia, he said he didn’t want to do anything with his family. He said that he felt his brother took advantage of him when he worked for his brother. He said his brother did not pay him properly for the work he did. He said he has since gotten married to another Malaysian girl – [Ms C] – who also had recently been to the Tribunal with her own protection claims.
When asked what he feared about returning to Malaysia, the applicant said he would have “nobody there.” He said he would have “no ways” of earning money. He said he was scared if he went back to Malaysia he would have these thoughts of killing himself again. When asked why he said this, he said it was overwhelming. He said he knew it seemed like nothing but his brother had taken advantage of him at every point he could.
When it was put to him that he did not have to go near his family if he went back to Malaysia, he said “that’s actually true – I don’t.”
However, he said that he felt that his past had “kept following him around.” When asked what he meant by this, he said he wanted to be close to his family and that he knew the value of family. He said he was depressed. When asked if he had obtained mental health treatment while he had been in Australia, he said he had been just calling the “suicide hotline” – but that’s it. The Tribunal put to the applicant that there is mental health treatment in Australia, just as there is mental health treatment in Malaysia as referenced in the DFAT Country Information Report for Malaysia dated 29 June 2021. In response the applicant said he didn’t know there was mental health treatment available in Malaysia. He said that Malaysia was a Muslim country and that he was not really a religious person in the way that his parents would like him to be. He explained that when he had these suicidal thoughts he felt that he couldn’t talk to his parents. When it was again put to the applicant that there are mental health services available in Malaysia, he did not respond.
When he was asked whether he feared anyone in Malaysia he said he feared the “Pekida organisation.” When asked who these people were, he said these were the people who were supposed to help their “Muslim brothers.” However, he said he felt that they were just gangsters. When asked why he feared the “Pekida organisation” he said he did “some work” for them before as a “bodyguard.” However, he said he did not have any particular skills or attributes that qualified him for work as a bodyguard. He said he has no martial arts skills, and he is not trained as a boxer. He said he does not have any qualifications in security. However he said the “Pekida organisation” have “connections” who could help people get jobs as “bouncers” because they are gangsters. He said he went to work with them for a month. He then started talking about doing three jobs at a time, including working with his brother and “[Occupation 2] work.”
When asked if he had ever been harmed in Malaysia, he said he had previously been mugged. When asked to provide more detail around this incident, he said he had previously provided a police report about the incident in his original protection application. The Tribunal then discussed the documentation that the applicant had provided with his protection application. In respect to the person named “[Mr A]” the applicant indicated that “[Mr A]” was just a person he met through his [Occupation 2] work who took an interest in him and his welfare. The Tribunal then spoke to the applicant about the police report he had provided, and put to him that he had provided a document that had not been translated into English by an accredited translator. The Tribunal put to the applicant that the document indicated that something happened to the applicant on 24 April 2014, to which he said “that’s correct.” The applicant indicated that the essence of the report was that around 24 April 2014 he had been mugged. However, the applicant said he did not know who had mugged him and the police never caught them (Tribunal emphasis). He said the muggers, whoever they were, stole his bike and his laptop, and some money. The applicant said that after this incident the “Pekida organisation” beat him with a rod. He said they hit him on his knee and on his shin. When asked when this additional incident happened, he initially answered that it was somewhere in 2016 and then changed his answer to say somewhere in early 2015 and then changed his answer again to say somewhere in late 2015. The applicant indicated that he was not harmed in any other incidents when he was in Malaysia.
The Tribunal put to the applicant that, given what the DFAT report had said about access to state protection, the applicant would reasonably be able to access state protection from the Royal Malaysian Police (RMP) should he return to Malaysia in the foreseeable future. In response the applicant said he was not suggesting that he would not be able to get help from the RMP, but that he said this was not (Tribunal emphasis) the main reason why he was afraid of returning to Malaysia. He said he was now not asserting (Tribunal emphasis) that getting assaulted in Malaysia was one of the main reasons why he did not want to return to Malaysia. When the Tribunal asked the applicant what was his fear in returning to Malaysia, he said he did not want to be with his family again. When it was put to him that he did not have to be with his family again he said “that’s true Member, I don’t have to be.” When asked if he was concerned about what he would do for a living if he returned to Malaysia he said this was one of the things he was concerned about. The Tribunal again referred to the DFAT report which indicated that Malaysia’s economy was growing strongly at this time. In response the applicant did not contest this information and indicated that he was aware that the Malaysian economy was growing strongly. Then the applicant said that, since he has been in Australia, he has found that the Australian culture has helped him feel better about himself and to focus more on his life priorities. The applicant indicated that since he has been in Australia, he has grown in his sense of resilience and in his self-confidence. The applicant indicated that he just felt happier being in Australia.

When the Tribunal asked the applicant whether he felt like self-harming, he said that he did not feel like self-harming at this time (Tribunal emphasis). He said that his wife is [an Occupation 3] in [Work sector 3], and she has been a great support to him. However, the applicant confirmed he had never actually had any mental health treatment. He confirmed that he had never seen a medical practitioner for any mental health concerns and that he had never had any medication for mental health treatment. The Tribunal put to the applicant that if there were mental health issues, that those issues would exist whether he was in Australia or Malaysia. In response he said “yes that’s true.”
When asked if there was any other reason why he didn’t want to go back to Malaysia, he did not respond. When asked what work he would do if he went back to Malaysia, he said he did not know. He then said he was concerned that he did not have a diploma because he got into a fight with his lecturer. The applicant then relayed what he considered to be a “funny story” about the lecturer’s concerns with a mosquito. He said his lecturer was actually a substitute lecturer, but when it came to the time she said the word “mosquito” the applicant laughed. The applicant said because he laughed the lecturer failed him. The applicant said he thought that he wrote it down in his claims, but he wasn’t sure. The applicant said that the point he was trying to make is that if he went back to Malaysia, he would probably have to do further study to obtain a qualification.
When asked if he came from a “well off” family in Malaysia the applicant said his family had “sufficient means.” When asked to describe his uncle’s farm he said it was a “paddy field.” When the Tribunal asked what the uncle grew on the farm the applicant said his uncle grew rubber trees.
The Tribunal asked the applicant if he had been giving truthful information to the Tribunal. In response the applicant asked the Tribunal why the Tribunal would question whether he had been giving truthful information. The Tribunal put to the applicant that it was because he had been hesitating before answering questions. In response the applicant said “that’s fair.” The applicant then said that his uncle only had a small rubber tree farm, and he had a big family consisting of five children and two wives. He said that he only had visited his uncle once.
The Tribunal then discussed the written claims that the applicant had made. In response, the applicant spoke about his close friendship with [Mr A]. He said that at the time in Malaysia he felt like “the universe was trying to get him” but now he didn’t feel that way anymore.
When asked about his claim where he indicated his cousin stabbed him with a pen knife the applicant said that his cousin was a “very mad person.” He said that he and his cousin actually got in an argument over drugs. He then said that the stab was not a “deep stab” but that “it did hurt.” When asked what his cousin’s name is, he said his cousin was called “[Nickname].” He said he thought that his cousin was in rehabilitation because he heard this from his family members. When it was put to him that he indicated he was still speaking to his family members he said “I try.”
The Tribunal put to the applicant that in his written claims he said the stabbing did not hurt him too badly and said “this incident made me fear to be there any longer and that is also why I didn’t report this to the police.” In response, the applicant said he did not (Tribunal emphasis) really feel fear about this matter. Rather, he said it was one of the incidents that led up to the moment that he decided to come to Australia to “relax.”
When the Tribunal asked the applicant what he had in Australia that he did not have in Malaysia, he responded “peace of mind.” The applicant further explained that he doesn’t think about his family, or being mugged, much anymore. The applicant said he thought about fixing things up with his mother and father.
When asked what work he would do if he went back to Malaysia, the applicant said that he did not know but he thought that he could get work back in [Occupation 2] given he had previous experience. When asked where he would go if he went back to Malaysia, he indicated he did not know.
When asked if there were any further claims he wished to make or anything he wished to speak about that the Tribunal had not already spoken to him about, the applicant said he wanted to be the best version of himself. He said he didn’t feel like he was that religious. He said he didn’t know why things didn’t work so well for him, whereby he felt that he had been cast out by his family. He said that in Australia he felt that he was becoming the better version of himself and an asset to the community. He said he felt shame that he got the girl pregnant when he was on a school camp. He said he does not know where that girl is now. However, the applicant said he got married in August 2018.
The applicant said he wanted the protection visa so he could go towards his goal of being the best version of himself.
The applicant then said he was concerned that if he was not religious that that may cause issues for him going back to Malaysia. The applicant then indicated that he thought he would be persecuted on the basis of not being really religious if he returned to Malaysia. When the Tribunal asked him how he thought he would be persecuted on this basis, he said that his claims were made in his application. The Tribunal asked the applicant what the single biggest factor was as to why he thought he would face a real chance of serious harm or a real risk of significant harm if he returned to Malaysia in the foreseeable future. In response, he said the single biggest risk would be harm to himself because he would not know what to do or where to go. The Tribunal put to the applicant that self-harm may not of itself satisfy the grounds for a protection visa. In response, the applicant said he knew this and agreed with what the Tribunal had said. The Tribunal put to the applicant that he was not suggesting that he would have a persecutor but rather he was suggesting that he would hurt himself if he returned to Malaysia. In response the applicant said that, his risk in harming himself, was the single biggest issue why he did not want to return to Malaysia. The Tribunal asked him, if it was the case that he had mental health issues, why had he not obtained relevant mental health treatment whilst he had been in Australia for at least the last six years. In response the applicant indicated that he did not have the finances to pay for the treatment.
The applicant indicated he had given all the information to the Tribunal that he wanted to give.
Analysis and findings
The Tribunal has carefully considered the applicant’s claims and the evidence before the Tribunal.
Mental health claims
A standout feature of the applicant’s claims to the Tribunal is that in respect to his mental health. The applicant made numerous references to his mental health in his evidence, yet he has not been diagnosed with any mental health condition by a medical practitioner and he has not received mental health treatment from a medical practitioner. As discussed in the hearing with the applicant, the Tribunal has had regard to the DFAT report and accepts that the applicant would reasonably have access to mental health treatment should he return to Malaysia in the foreseeable future. The Tribunal accepts that the applicant may have some anxiety in respect to returning to Malaysia in the foreseeable future. However, the applicant’s concerns about the potential for self-harm do not reasonably cause the Tribunal to find that the applicant would face either a real chance of serious harm or a real risk of significant harm should he return to Malaysia in the foreseeable future.
Claims of harm
The Tribunal has considered the applicant’s claims that he was harmed in Malaysia. The Tribunal accepts that there have been various instances of harm to the applicant when he was in Malaysia, including:
-An incident on or around 24 April 2014 when he was assaulted by a person or persons unknown and some of his belongings were stolen.
-An incident where the applicant’s cousin “[Nickname]” once stabbed him with a pen knife, and that the stab was not a “deep stab” but that “it did hurt” the applicant.
-An incident that occurred somewhere in 2016 or early 2015 or late 2015 where the “Pekida organisation” beat him with a rod and hit him on his knee and on his shin.
-Various instances of harm from his family members where the applicant may have been slapped or assaulted in some way.
The Tribunal has also considered the DFAT report in respect to state protection in Malaysia as follows:
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.
…
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.
The Tribunal has considered the DFAT report in regard to corruption in Malaysia as stated:
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).
In respect to the DFAT report, the Tribunal accepts that there is an issue of corruption in Malaysia, and amongst some members of the RMP, but that there is an ongoing effort to address issues of police misconduct.
The Tribunal has also considered more recent reporting in relation to a resurgent determination by the Malaysian authorities to deal with corruption. The Tribunal has considered the article “‘Absolutely glorious’: Malaysians hail jailing of Najib Razak” that states:
Malaysians say they hope Najib’s jailing serves as a warning against corruption as the former prime minister spends his first day in prison at a complex outside the capital.
Najib Razak has become Malaysia’s first former prime minister to go to prison after the country’s top court upheld his corruption conviction and 12-year jail sentence, in a case linked to the multibillion-dollar scandal at the 1MDB state fund.
Malaysians on Twitter called Tuesday’s verdict historic and said they hoped it would send a “strong warning to other politicians who even think of siphoning public funds”, while Najib’s political opponents hailed it as proof of judicial independence in the country.
Najib’s jailing marked a stunning fall for a politician who, until four years ago, had governed Malaysia with an iron grip and suppressed local investigations of the looting of the 1MDB fund. Investigators have said some $4.5bn was stolen from the state fund – cofounded by Najib in 2009 to supposedly drive new investment in Malaysia – and that more than $1bn went to accounts linked to the former prime minister.
The 69-year-old was taken to the Kajang Prison, about 40km (25 miles) away from the capital Kuala Lumpur.
“This is unprecedented. Najib will be remembered for his many firsts, the first prime minister to lose a general election, the first to be convicted,” said Adib Zalkapli, director at political-risk consultancy BowerGroupAsia.
The British-educated son of Malay nobility, whose father and uncle were the country’s second and third prime ministers, respectively, held the premiership from 2009 to 2018. He was toppled when public anger over the fraud scandal brought election defeat.
Dozens of corruption charges were lodged in the following months.
Najib was found guilty by a lower court in July 2020 of criminal breach of trust, abuse of power and money laundering for illegally receiving about $10m from SRC International, a former unit of 1MDB. He had been out on bail pending appeals.
“Let’s take a moment to soak this in,” wrote Rohan Javet Beg in a Twitter post.
“Najib Tun Razak, a former PM and heir of an esteemed political dynasty, both of which should have made him untouchable in Malaysia, has been tried and convicted in a court of law.
“This should be the norm. Not the exception.”
Lim Wei Jet said the fact that Malaysia’s “most powerful man can be held accountable in courts sends a positive message on our nation’s judicial independence” and said he hoped the verdict served as a warning to all politicians.
“Judgment day may be delayed, but it will eventually arrive.”
Twitter user, Freyr, called Najib the “epitome of political corruption” in Malaysia and said that having him sent to jail during the month that Malaysia marks its independence from the British is “absolutely glorious”.
“Najib is in jail because Malaysians came out in 2018 and voted,” wrote Twitter user, Qyria. “Have hope, don’t give up.”
Others wished Najib a “safe trip” to prison.
Leader of the Opposition Anwar Ibrahim meanwhile said the decision “proves that the people are in power”.
“The people made a decision in 2018 to ensure an independent judiciary and a country free from corruption,” he said. “It is the people’s decision that allows the judiciary to make professional and courageous decisions based on the facts and the law instead of political dictators and the powerful people we have seen for decades.”
Najib faces several more trials over the 1MDB allegations but remains politically influential in Malaysia. His United Malays National Organisation (UMNO) leads the current government after the defections of legislators caused the collapse of the reformist government that won the 2018 polls.
Malaysian Prime Minister Ismail Sabri is yet to comment on Najib’s jailing.
But UMNO said it would stand by the disgraced former prime minister. Party President Ahmed Zahid Hamidi, who also faces 47 charges over the 1MDB scandal, said on Wednesday that the court’s decision “cannot erase the great service of Najib as a prime minister who brought Malaysia up as a beacon of success”.
Najib could now apply for a review of the Federal Court decision, though such applications are rarely successful. He can also seek a royal pardon. If successful, he could be released without serving the full 12-year term.
Malaysia’s longest-serving leader Mahathir Mohamad told Bloomberg News ahead of Tuesday’s verdict that he saw a “50-50 chance” that Najib will eventually receive a pardon.
“Of course he’s going to ask for a pardon,” Mahathir said on Monday. “There is that 50-50 chance that he will succeed in getting a pardon and returning to politics … He will come back and he wants to become prime minister once again.”[1]
[1] Al Jazeera, 24 August 2022, “‘Absolutely glorious’: Malaysians hail jailing of Najib Razak”, accessed 11 July 2023.
There has been considerable reporting about these recent developments. The Tribunal has considered the article “Malaysia Flexes New Graft-Busting Muscle with Jailing of Ex-PM” that states:
It was a moment few Malaysians could have imagined a few short years ago in a country, and a region, where the political elite are seen to exist beyond the law.
On August 23, the Southeast Asian country’s Federal Court upheld a 2020 conviction for corruption against Najib Razak, sending a man who stood at the peak of Malaysia’s political power pyramid only four years ago as prime minister to jail with a 12-year sentence.
Najib had been out on bail for the past two years and was still serving as an elected lawmaker while fighting the original verdict, even after losing his first appeal in December.
For anti-corruption campaigners, the top court’s decision to stand behind Najib’s conviction and put a former prime minister behind bars, affirmed the newfound independence of a judicial system long seen to be lacking it.
Until 2018, when Najib lost the prime minister’s seat in a seismic election upset, “the public perception ... was the independence of the judiciary was questionable, always thinking that there is executive involvement,” said Muhammad Mohan, president of Transparency International Malaysia, the local chapter of the global graft-fighting watchdog.
Seeing the Federal Court hold firm and send Najib to jail, he added, “has given confidence to the public that the judiciary is independent and there is no interference from the government.”
Advocates and observers find the courts’ resolve all the more impressive given that Najib’s party, the United Malays National Organization, having been pushed out of office in the same election that ousted Najib, is back in power. The allegations behind the conviction first surfaced under Najib’s watch but went nowhere until just after UMNO’s defeat.
James Chin, a professor of Asian studies at the University of Tasmania, said Malaysia has finally broken with the “unofficial immunity” leaders enjoy not only there but across the region.
“One of the problems we face in Southeast Asia, or Asia generally, is that we lack a very simple item in good governance, which is that a political leader can be held accountable for what they did when they were in office,” he said. “This was broken in the case of Malaysia.”
Pardon potential
Cynthia Gabriel, executive director of Malaysia’s non-government Center to Combat Corruption and Cronyism, agreed.
“The important message for the Malaysian public would be that they will now be telling every politician that if you’re corrupt then there [are] institutions that can actually hold you to account,” she said.
The Federal Court ruling affirmed that the former prime minister was guilty on seven counts of money laundering, abuse of power and criminal breach of trust for illegal receipt of $9.4 million from SRC International, a former unit of Malaysian state development fund 1MDB.
But Najib’s legal troubles don’t end there.
U.S. and Malaysian authorities say a total of $4.5 billion was looted from 1MDB over the years and that some $1 billion of that ended up in Najib’s bank accounts. He still faces 35 charges in four other related cases.
Najib has consistently denied any wrongdoing, however, and even his critics suspect his time in jail may be short-lived.
While the former prime minister has exhausted his chances to appeal the 2020 conviction, he can still ask for a royal pardon from King Al-Sultan Abdullah. Najib is believed to be close to several of Malaysia’s powerful sultans and was photographed earlier this year celebrating Eid with the king himself.
Najib also remains popular among UMNO’s base. The day after the Federal Court ruling, hundreds of his supporters rallied outside the royal palace urging the king to pardon him.
“Najib has people in powerful places, he’s been in power for so long and he’s among the elite class of politicians, and so it becomes incredibly real that there could be an option in the future for a pardon,” said Gabriel.
Royal pardons in Malaysia are typically granted only after at least half of a court sentence has been served. Pardoning Najib much sooner than that, especially with four more cases pending, said Mohan, would “make a mockery of the judicial process.”
Victory by inches
Chin said a pardon seemed likely, but only after the next general elections, which are due by September 2023 but may be called early. He said Najib’s incarceration at least until then could help UMNO, heavily tainted itself by the 1MDB scandal, pick up votes by campaigning on the message it can now be trusted not to meddle in the courts.
The professor also questioned whether Najib’s jailing is quite the watershed moment some are hailing it as. He credits much of the courts’ recent performance to one woman — Chief Justice Tengku Maimun Tuan Mat, who was appointed in 2019 in the brief interlude between UMNO governments.
“In most [court] systems in Asia, it depends on who is the chief justice,” said Chin. “As long as she’s there you can expect the judiciary to behave more independently, but there’s no guarantee that the next chief justice will be similar.”
Chin sees little sign that the rest of Southeast Asia is making even that much progress.
Gabriel is at least hopeful that new digital tools are making it tougher for kleptocrats to hide their ill-gotten cash. She cites the Panama and Paradise Papers, two troves of financial records of the world’s rich and powerful leaked to the media in recent years, as promising examples.
Mohan is also encouraged by the jailing of ex-presidents in Brazil and South Korea on corruption-related charges over the past few years. Just last year in South Africa, too, the Constitutional Court sent former President Jacob Zuma to prison in an ongoing corruption trial for contempt of court.
“That is the trend,” said Mohan, who believes the sharp rise in poverty and inequality triggered by the COVID pandemic is also making people around the world less tolerant of leaders who pilfer public purses.
“Globally, I would say that because of this post-COVID situation people are becoming very aggressive, they are asking questions, and I think they demand that these leaders are removed,” he said. “I hope that trend continues.”[2]
[2] VOA News, 29 August 2022, “Malaysia Flexes New Graft-Busting Muscle with Jailing of Ex-PM”, accessed 11 July 2023.

The Tribunal has considered the article “How Malaysia’s Judiciary Fought Back and Convicted a Former PM” that states:
After decades of subordination to politicians, the conviction of Najib Razak on corruption charges was a powerful assertion of independence by the country’s judiciary.
In the morning of his final court appearance, Malaysia’s former prime minister, Najib Razak, left his glitzy Pavilion residence in Kuala Lumpur surrounded by bodyguards and outriders. This was the same place where in 2018 the police seized assets worth RM114 million ($25.5 million), including 72 bags of cash and jewelry, boxes of designer handbags (mainly Hermès), watches, and a few tiaras, as part of the investigation into the massive corruption scandal involving the state investment fund 1Malaysia Development Berhad (1MDB).
Much has changed since May 2018, when Najib became the first sitting prime minister to suffer an election defeat in the country’s 60-year history. The night of the historic defeat filled Najib with “agonizing frustration.”
“It was the kind of defeat I had never before felt in my life… I was going down in history as the first Malaysian leader to leave with a change of government,” he told The Malay Mail.
But what Najib said next proved ominous. The beauty of democracy, he continued, is that those who have come up short have the opportunity to reinvent themselves. And this is exactly what he did. Through a combination of disinformation and lies, laced with casual humor, his expensive social media team transformed a scandal-ridden, defeated former prime minister into the most popular politician in Malaysia.
Hundreds thronged to catch a glimpse of Najib wherever he went. His online posts generated thousands of reactions that turned viral within minutes. His party, the United Malays National Organisation (UMNO), made him the unofficial poster boy for a succession of state election campaigns in which the party secured landslide victories. His biggest dissenters, the ethnic Chinese groups, started inviting him to business conferences and community events.
Najib Against the World
Despite having a number of ongoing criminal cases against him, these carefully crafted lies and the passage of time softened Najib’s image. No longer a disgraced and corrupt former prime minister, now his tagline was “Malu Apa Bossku” – “What is there to be ashamed of, my boss?.” Just as Philippines’ Ferdinand “Bongbong” Marcos Jr. cleansed his family name of its connotations with massive corruption and abuses of power by winning the presidency in May, the possible return of Najib as prime minister no longer seemed like an impossibility.
In four short years, Najib has regained the sense of invincibility he felt when he was prime minister. During his 9-year premiership, he bent every government institution in his favor. He sacked the attorney-general who was about to charge him over the 1MDB scandal and replaced him with another who exonerated him of any wrongdoing. He got rid of Cabinet ministers who raised concerns about 1MDB. He passed oppressive laws and shut down media outlets. 1MDB was a financial blackhole that sucked out as much as RM42 billion ($9.4 billion) from the Malaysian state coffers, forcing him to overreach his executive boundaries into government-linked funds and institutions to plug the 1MDB hole.
In feudal Malaysia, institutions are hollow and corrupt politicians have long run the show.
There is perhaps no better example of political interference than the Malaysian judiciary. In 1988, the government under Mahathir Mohamad suspended six Supreme Court judges and dismissed half of them, including the Lord President, to prevent them from ruling against the government. The constitution was then amended to restrict judicial power, even removing the word “Supreme” from the name of the country’s highest court, violating the sacred principles of separation of powers and judicial independence.
The ensuing decades were filled with allegations of corruption, judge-fixing, foul-play, and dubious judgments, giving rise to the impression that the courts were mere tools of the government.
During his tenure, Najib took advantage of this judicial vulnerability to convict the popular opposition leader, Anwar Ibrahim, in trials and hearings that were largely considered a sham. Nurul Izzah Anwar, a member of parliament and the eldest daughter of Anwar, told me that a United Nations Working Group concluded that Anwar’s imprisonment was arbitrary and politically motivated.
The Judiciary as the Final Bastion of Democracy
Last week, Najib took this same invincibility mindset to his final appeal against the 2020 conviction and 12-year prison sentence, just the first of five cases against him relating to 1MDB. He changed lawyers at the eleventh hour, hiring a counsel that hadn’t seen the case documents, in an attempt to delay proceedings. His legal team unsuccessfully adduced evidence to show that the previous High Court judge was conflicted and thus biased. He tried to discharge his entire legal team and leave himself unrepresented to cry foul about the legal process. He even asked two lawyers to casually walk in and argue his case even though they were not counsels on record.
“[I remember] seeing senior lawyers walking in halfway through an appeal to attempt to argue the case, as if this was a common coffee shop,” lawyer Lim Wei Jiet told The Diplomat. “It is utterly shocking seeing fellow lawyers abuse the court process in such a manner.”
Running out of options, Najib’s lawyers pulled one last stunt on the final day of the proceedings, filing to recuse the Chief Justice herself, arguing that a Facebook post by her husband four years ago rendered her biased.
Tengku Maimun, the first-ever female chief justice of Malaysia, was immune to political manipulation as she earned her way up on merits. She refused all requests to delay the court proceedings. “We are here not to waste time,” she told the defense lawyers.
Against Najib’s lawyer’s request for more time, she said, “You have Saturday, Sunday, and Monday, that’s three days. Don’t tell us you’re not prepared.” When Najib’s former lawyer walked in and said he was too busy to argue Najib’s case due to an ongoing conference, the chief justice asked him what the point of the story was since he wasn’t the lawyer on record, and proceeded to ask him to leave.
And on the question of whether she was biased by her husband, she simply stated that her husband’s post had no relevance to the current case, neither in time nor fact. In other words, her mind was her own, not influenced by her husband’s. When left to argue the case on its own merit, the defense couldn’t present a single new argument.
How the Judiciary Fought Back
“It was an absolutely watertight case,” the former attorney-general, Tommy Thomas, who initially charged Najib in all 1MDB-related cases, told me. “Even at the start, I was convinced we had a strong case because of the paper trail. We had minutes of meeting[s], bank statements, vouchers, company resolutions… Najib’s fingerprints were everywhere.”
In the first case against him, all levels of the court found Najib guilty of money laundering, abuse of power, and criminal breach of trust after RM42 million ($9.4 million) was transferred into his private bank accounts from SRC International, a unit of 1MCB. He was the “overall master” who used his directors as “puppets on a string” to pressure the pension fund to loan money to a shell company, and eventually transfer it to his bank accounts. His defense of the money being a Saudi donation was “nothing but an impossible concoction.” There was no national interest in these actions, the appellate court said, only a “national embarrassment.”
At the fall of Tengku Maimun’s gavel, history changed. Twelve years of prison and a fine of RM210 million ($47 million) was imposed on the former prime minister – an unprecedented development in a land where corrupt elites routinely act with impunity. In the face of smear campaigns and mudslinging against a judiciary long considered submissive, the courts at every level fought back and discharged their duties in a professional fashion, without regard to the political pressure that has hung over their heads since 1988.
Nobody knows how long Malaysia could hold as one of the few countries in the world that convicted its former leader for corruption. As I write, UMNO is plotting a nationwide petition campaign for a royal pardon. Though nearly legally impossible, the undercurrents of interfering with the judicial process haven’t ceased.
I still remember the day Anwar Ibrahim was thrown into prison for the second time. It was 2015 and I was a law student whose idealism was crushed by the transparently political charges against the longtime opposition leader. Anwar’s angry words against the judges still ring in my ears:
“You had the best opportunity to redeem yourselves – to right the wrongs of the past and put the judiciary on a clean slate and carve your names for posterity as true defenders of justice. But instead, you chose to remain on the dark side… You have become partners in crime for the murder of judicial independence and integrity. You have sold your souls to the devil.”
Perhaps in time, Najib’s conviction will be seen as the second coming of the Malaysian judiciary, led by courageous judges who will no longer bow to any political master.[3]
[3] The Diplomat, 31 August 2022, “How Malaysia’s Judiciary Fought Back and Convicted a Former PM”, , accessed 11 July 2023.
The Tribunal has carefully considered and balanced the information before the Tribunal. The Tribunal accepts that the applicant might have some concerns in respect to corruption issues in Malaysia. However, the Tribunal is not persuaded that, in light of more recent developments as highlighted above, the RMP and the Malaysian judiciary is incapable of offering a reasonable level of state protection to the applicant, whether it be from his family members or members of the “Pekida organisation” or anyone else in Malaysia.
In spite of the ongoing challenges of corruption in Malaysia, the country information clearly indicates that the Malaysian authorities are taking steps with the challenges of corruption. The Tribunal is satisfied that the applicant, on his return to Malaysia, would reasonably be able to obtain assistance from the RMP should he require it.
The applicant’s economic circumstances
The Tribunal has considered the applicant’s potential employment circumstances should he return to Malaysia. However, the Tribunal accepts that the applicant has a solid work history. The Tribunal has considered the DFAT report in respect to Malaysia’s economy:
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 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.
Given the applicant’s solid work history, as well as the prevailing economic conditions in Malaysia, the Tribunal does not accept that the applicant, in returning to Malaysia, would face significant economic hardship that would threaten his capacity to subsist.
Applicant’s claim that he is not “really religious”
The Tribunal has considered the applicant’s claim in respect to his concern that he is not “really religious.” On his protection application form, the applicant claimed that his religion is Islam. In the hearing, the applicant did not claim to have converted to a different religion or that he had formally left Islam, rather that he just did not feel as if he was “really religious” anymore. The applicant did not go as far as to claim to be an atheist or that he had ever renounced, or would ever renounce, Islam for atheism or for any other religion.
To this end, the Tribunal has considered the DFAT report. The information in the DFAT report does not expressly refer to the circumstances of a Malaysian Muslim person who does not feel if they are “really religious.” Indeed, the information in the DFAT report does not reasonably support any assertion that the applicant would face either a real chance of serious harm or a real risk of significant harm should he return to Malaysia in the foreseeable future. The Tribunal has alternatively considered whether there would be an imputation that the applicant is an atheist because he is not “really religious.” On this issue, the DFAT report states:
Atheism
3.72 Malaysian courts have not tested the constitutional legality of atheism. As outlined in the previous section, Muslims who leave the faith can be charged with apostasy under state syariah laws. Non-Muslims could potentially also face charges under the country’s non-propagation laws if it could be proven they sought to spread atheism to Muslims. In November 2017, a former deputy minister in the Prime Minister’s Department, Dr Asyraf, said in Parliament that atheism should not be allowed and that it contradicted both the Constitution and Malaysia’s National Principles. Referencing the Constitution, he said ‘freedom of religion is not freedom from religion’, and asserted the government could draft legal provisions necessary to prevent such beliefs and doctrines.
3.73 Malaysian lawyers have contested Dr Asyraf’s claims that atheism is unconstitutional in Malaysia, stating that being an atheist is protected under the Constitution, while also noting there are no constitutional provisions specifically prohibiting the spread of atheism. Media has reported that some known atheists have received death threats and been forced to hide their beliefs from family.
3.74 With limited data available, the 2010 census estimates approximately 300,000 individuals could be considered atheists; professing to belong to what may be described as non-religious belief systems or belief systems that do not include a deity. This represents less than 1 per cent of the Malaysian population.
3.75 In August 2017, the Malaysian government commenced investigating the Kuala Lumpur branch of the international organisation, Atheist Republic, after a photo of their annual general meeting went viral. The Religious Department investigated whether any Muslims were involved in the meeting, and Dr Asyraf claimed if it was ‘proven that Muslims are involved in atheist activities that could affect their faith, the state Islamic religious department could take action’. Dr Asryraf said ex-Muslims found to be part of the atheist gathering would be counselled, while anyone found spreading atheist ideas could be prosecuted. Former minister Datuk Seri Shahidan Kassim called for public support to ‘hunt them down’, claiming that atheism went against the Constitution. There has not been subsequent media reporting on the incident. In a global index released by Humanists International in October 2020, Malaysia was listed as a country where ‘Government figures or state agencies openly marginalize, harass, or incite hatred or violence against the non-religious’.
3.76 DFAT assesses that atheists, especially non-Malay atheists, face a low risk of societal harassment. DFAT assesses that Muslims who attempt to renounce their faith for atheism, or who are believed to be proselytising towards atheism, face a high risk of official discrimination.
As indicated above, the country information suggests that there is a sizable number of atheists in Malaysia but that these numbers represent a relatively small percentage of the overall Malaysian population. The DFAT report assesses that “Muslims who attempt to renounce their faith for atheism, or who are believed to be proselytising towards atheism, face a high risk of official discrimination.” Again, as indicated above, there is insufficient evidence before the Tribunal that would reasonably cause the Tribunal to find that the applicant has renounced or has attempted to renounce his faith for atheism, or that the applicant is proselytising or has attempted to proselytise towards atheism. In considering the circumstances as a whole, and the country information, the Tribunal is not satisfied that the applicant would reasonably face either a real chance of serious harm or a real risk of significant harm should he return to Malaysia in the foreseeable future based on an imputation that he is an atheist.
Complementary protection considered
The Tribunal also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear.”
With regards to the applicant’s accepted claims about being a Muslim who is not “really religious”, the Tribunal has made earlier findings that the applicant does not face a real risk of serious harm arising from the applicant’s religion. 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 religion or any other potential claim.
With regards to the applicant’s concerns of harm whether it be from his family members or members of the “Pekida organisation” or anyone else in Malaysia, the Tribunal has no substantial grounds to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to anywhere in Malaysia, will face a real risk of any significant harm of any kind because he would have reasonable access to state protection. Neither does the Tribunal have any substantial reasons to believe that the applicant will have a real risk of significant harm arising from general crime rates in Malaysia.

Based on the findings above and having assessed all of the applicant’s claims, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk of significant harm, including the considerations as to whether the applicant will suffer harm by way of being arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subjected to torture; or that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treating or punishment, pursuant to s 36(2)(aa) of the Act.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
Member

ATTACHMENT – Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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.
…
36     Protection visas – criteria provided for by this Act
…
(2)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.
…

[2023] AATA 3323

14 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies