1731113 (Refugee)

1731113 (Refugee) [2024] AATA 2989 (24 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731113
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Rachelle Johnston
DATE: 24 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 24 April 2024 at 1:30pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Indian Malaysian – harm from gang members in Malaysia – applicant was repeatedly harassed and targeted by multiple members of the gang group – individuals with gang tattoos – significant harm from the gangsters – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 423, 499
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 December 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 11 September 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The applicant lodged a protection visa application on 11 September 2017. In that application he provided the following:
·     He was born in [year] in Kuala Lumpur.
·     He identifies as an Indian and a Hindu. He speaks, reads, and writes Tamil, Malay, and English.
·     He has a mother, father, three younger sisters, one older brother, and two younger brothers in Malaysia. He has contact with them once a week.
·     When in Malaysia he lived in Petaling Jaya, Selangor.
·     He attended primary and middle school.
·     In 2017 he was working as an [occupation].
·     He travelled to [Country 1] in November 2013 and December 2015 and to [Country 2] in December 2016.
The applicant makes the following claims in his protection visa application form:
·     He was targeted by a gang in Malaysia who were previously friends that he grew up with and knew through school. They live in the same place as him.
·     The gang are drug addicts and create a lot of problems.
·     He did a police report against them.
·     The gang was arrested and jailed for eighteen months. After coming out of gaol they started to chase him.
·     When he was going to work the gang would disturb and bully him until he was beaten by them. He was threatened with a knife.
·     He did not seek help because the report he made against them is the problem he has now due to corruption.
·     He did not move anywhere because of lack of finances. If he relocates, he will be bullied and live a depressed life.
·     His family feel he is not safe living there anymore.
·     He fears he will be beaten and bullied by the gang.
Interview with the delegate
The applicant was not interviewed by the Department.
The delegate’s decision
On 7 December 2017, a delegate of the Minister refused the applicant’s protection visa application. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that he will suffer significant harm as defined in s36(2)(aa) of the Act.
Claims and evidence before the Tribunal
Review application
On 10 December 2017, the applicant applied for a review of the delegate’s decision. He provided the Tribunal with a copy of the delegate’s decision.
Pre-hearing claims and evidence
On 21 August 2023 the applicant provided the Tribunal with a pre-hearing information form within which he included the following claims:
· He was attacked and targeted by gangs. He did a police report, but he continued to be attacked and targeted.
· The gang kidnapped his brother for seven days and beat him continuously. The gang asked him to come and pick up his brother because they wanted to attack him.
Prior to the hearing, on 9 March 2024, the applicant provided the Tribunal with a certified translation of a Royal Malaysian Police Report from [June] 2013 related to an attack on his older brother by some Indian youths.
The hearing
The applicant appeared before the Tribunal on 18 March 2024 and 11 April 2024 to give evidence and present arguments.
The hearings were conducted with the assistance of an interpreter in the Tamil and English languages. The Tribunal confirmed with the applicant they were able to understand the interpreter at both hearings. The applicant speaks English and did not always require the interpreter. The applicant was able to answer questions asked of him without hesitation and his answers demonstrated an understanding of the questions being put to him.
The Tribunal is satisfied that the applicant had a meaningful and genuine opportunity to be heard, present their case, and participate fully in the hearings. Where relevant, the applicant’s oral evidence to the Tribunal is referred to in the analysis below.
Post-hearing evidence
At the first hearing the applicant referred to several Royal Malaysian Police reports that he believed he had provided to the Tribunal prior to the hearing, along with the report he sent on 9 March 2024. The Tribunal did not have the additional reports and obtained a copy of the reports during the hearing. They comprise five certified translated Royal Malaysian Police reports dating from [October] 2013 to [July] 2016 concerning the applicant and his younger brother. The Tribunal requested the applicant provide the Tribunal with the original Malaysian police reports from which the certified translations had been made.
On 20 March 2024 the applicant provided the Tribunal with a copy of the original Malaysian police reports.
On 20 March 2024 the applicant also provided the Tribunal with a copy of the Death Certificate pertaining to his older brother.
On 29 March 2024 the applicant provided the Tribunal with a copy of his Marriage Certificate confirming his marriage in NSW on 23 January 2021 and the Birth Certificate for his daughter born on [date].
The above documents were discussed with the applicant at the hearing on 11 April 2024.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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.
Nationality
The applicant claims to be a citizen of Malaysia and provided a copy of the bio-data page of his Malaysian passport to the Department. The delegate was satisfied that the applicant is using his own identity and that he is a citizen of Malaysia. In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicant is a citizen of Malaysia and Malaysia is his receiving country for the purposes of assessing his claims for protection.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
In the hearing, the applicant was asked about his protection visa application, and he confirmed his uncle who was living in Australia at that time assisted him to complete it. He explained he told his uncle his problems in Malaysia and his uncle completed the forms for him. When asked if what was stated in his protection visa application was true and correct, he indicated that his uncle wrote what he had told him in the document, but he has only been given one page of that document to keep, which included some of his claims. The Tribunal confirmed the applicant did not have any English at the time of completing his application and relied on his uncle’s record of his claims in that document.
The applicant updated the Tribunal that he has since married in Australia on 23 January 2021, to a temporary resident, that he has a daughter who was born on [date], and that his wife is currently pregnant. He explained to the Tribunal that his older brother (hereafter referred to as Brother A), who is referred to in one of the police reports, took his own life two years ago. He confirmed one of his younger brothers (hereafter referred to as Brother B), who also experienced issues from the gangs in Malaysia, has also arrived in Australia and is on a bridging visa. His other younger brother does not live with his family and resides in another location in Malaysia. His mother, father, and younger sisters remain in Malaysia in his home area.
The Tribunal discussed the applicant’s protection claims, what he claims occurred in Malaysia, why he fears returning to Malaysia, and his work, family, education, travel, and residential history. He explained he fears returning to Malaysia on account of the gangsters from his hometown who have harassed and harmed him, Brother A and Brother B since he was in school and who have extensive networks throughout Malaysia on account of their gang membership. The applicant explained he was not involved in a gang in any way himself and always resisted being involved in any gang activities, but he was targeted by the gang members and consistently harassed, disturbed, and harmed because he was unwilling to stand up to them and because he made police reports about their behaviour. The applicant identifies as an Indian Malaysian and confirmed at hearing the gang members who targeted him comprise Indian Malaysian males and Muslim males. He fears they will beat him or kill him if he returns to Malaysia.
At the second hearing the applicant raised an additional claim. He stated he has a tattoo on his [body part] that is the same as the identifying tattoo of the gang known as ‘Gang 36’ in Malaysia. He explained his fear that on account of that tattoo and new laws that came in a few years ago in Malaysia, he would be arrested if he returns to Malaysia. He fears the police would arrest him and he would be in prison for several years whilst he defends himself and proves he is not a gang member.
Claims related to harm from gang members in Malaysia
The applicant explained in detail to the Tribunal at hearing his history with the gangsters in his home area and the past harm he, Brother A, and Brother B experienced. He outlined the following:
·     He attended school in Petaling Jaya where he came to know a small group of gangsters who lived in his hometown. He was not friends with this group of people but sat with one of them for study purposes. The person who he sat with had an older brother who was in the gang group, named [Mr C].
·     During his school days the gangster group created many problems for him, both in school and outside of school. In school they would bully him, disturb him, and fight with him. Parents, teachers, and the principal were involved. The gangsters were disciplined but it did not change their behaviour.
·     The gang group were mixed Hindus, Indians and Muslims and included members of [various gang groups]. Although they were from different gang groups, they mixed together in his home area at this time.
·     Outside of school the gangster group attacked, bullied, and disturbed the applicant. They were also disturbing Brother A and Brother B, but it started with the applicant. His brothers were targeted because of him.
·     Before he finished school, in around 2013, he made a police report at the station about the behaviour of six of the gang members, including their involvement with drugs. As a result of his report to the police, three gang members were taken to prison and one, [Mr C], was sentenced to eighteen months in prison.
·     After he made the police report Brother A was beaten by the group of gangsters when he went to play football one day.
·     After his report other members of the gang continued to harass and attack the applicant whenever he went anywhere, saying to him they would not leave him alone and they will hit him, make a problem for him, and kill him.
·     In October 2013 he was riding his motorbike and was hit from behind by a car. He believes it was the gangsters as they were constantly harassing him. He did a police report, but the police did not give him any camera footage as they said the camera was not working. He believes the police were colluding with the gangsters and did not want to give him the records. He was in hospital for a few weeks and had memory loss, head injuries, and required a period of six months of rest at home. His medical team advised him not to go anywhere, he did not work, and he was looked after by family at home for six months.
·     Once he recovered from the accident the gangsters started giving him trouble again. When he was working [the] gangsters hassled him and he made another police report. The gangsters continued to harass him and his brothers.
·     The applicant saw the gangsters attack people with a gun and a knife, and he made another police report.
·     In 2015 the applicant was beaten and harassed many times. He was kidnapped by a large group of about 40-50 gangsters. A friend had asked him initially to come meet him, then after traveling on his motorbike to meet his friend his friend left him with the gang. The applicant was blindfolded, taken to a different location, beaten, injured in the face, stripped of his clothing, and had a video taken of him naked. The gangsters, including [Mr C], threatened him in relation to his earlier police report. He was told the video would be put on social media if he made a further police report. He was left in the midway, which is a complex with a carpark in his hometown. He did not make a report after that incident, but the gangsters continued to threaten and harass him.
·     The applicant moved to Melacca to stay with a cousin after the kidnapping. He did not work and was cared for by his cousin and sent money by his family.
·     In January 2016 the gangsters kidnapped and beat Brother B for seven days. The gangsters called the applicant and demanded he return to his hometown and pay them MYR50,000. The applicant returned to his hometown and attended the police station to seek their help. The police used his phone to track the gangster group, however when they went to the tracked location it was empty. Brother B was able to escape from six gangsters, who had moved him to a hotel room, and he went with his mother to the police station to make a report. He knew three of the gangsters, one of whom was [Mr C]. They were arrested for a brief time. Some other gangsters from the larger gang group came to the applicant’s house after this incident and threatened the applicant. Some of the parents of the gangsters came to his house and asked his parents to withdraw the police report. The gangsters who were identified and arrested were released after one month, including [Mr C].
·     The gangsters were only ever put in gaol for two or three months, other than the period they went away for drug possession. The same gangster group continued to harass the applicant, even though it was different people who targeted him on each occasion.
·     He moved around Malaysia over 2016-2017 to avoid the gangsters.
The Tribunal discussed with the applicant why the gangsters targeted him, what their intention was, and why they never followed through with their threats on his life. He explained the gangster group created problems for many people, but he would complain about it and tell the teachers and then he did a report on them and told the police they were doing drugs. He stated he was beaten and assaulted many times and they threatened to kill him, including with a knife. He explained he experienced so much harassment and so many threats within a short period of time in Malaysia and could not go out anywhere or live happily. He explained if he stayed longer in Malaysia, he would have been killed.
The Tribunal also queried why the applicant was such a target when only one member of the gang group went to prison after his report about the gang’s drug use. The applicant explained if it were only one person that was targeting him, he wouldn’t need to be scared of him, but that person who went to prison is connected to a larger gang who gave him problems. He stated he made many reports about the gang because the gang were coming back and harassing and hitting him. In discussing why the gang gave him so many problems, he stated he was threatened and assaulted about his police reports. As to the operation of the gangs, the applicant explained, when the Tribunal queried why the gangs would all be mixing together, that although the gangs operate in different locations, they are friends and after his reports they were angry and gave him trouble. He explained they attacked him and threatened him as he reported them for taking drugs and for beating him. This led him to leave his family and live in different states in Malaysia.

At multiple times throughout both hearings the applicant explained he was disturbed, bullied, and harassed by the gangsters. The Tribunal queried with the applicant what this specifically involved. He explained he was beaten, kidnapped, attacked, and given problems. When pushed for specific details of the harm he experienced he explained he could not go anywhere, and if he tried to go out in the community and members of the gang saw him, they would grab him or his motorbike and then attack him. He provided an example of not being able to go to temple as they would see him leave his home to go to temple and they would attack him and hit him on the head. If he tried to go outside to do things he was dragged into problems. He separately described driving in his hometown on return from [Country 2] and being beaten and having his keys, bag, wallet, and money taken by members of the gang group who approached him and threatened him with a knife. He explained he wasn’t the only one disturbed by this group, but what he did was report to the police on them, and that is what they did not like. He also explained he was a target as he was unwilling to fight back and did not want to make any problems.
At hearing the applicant provided the Tribunal with several police reports dating between 2013 and 2016 that relate to some of the incidents with the gangsters that he had described to the Tribunal. The Tribunal has reviewed the original Malaysian reports and the certified translations and has no reason to doubt the authenticity of the documents. The Tribunal asked the applicant where he obtained the translated copies and he explained he was sent the original documents and translations from his mother in Malaysia and his younger sister obtained the translations, so he is not sure where the translations are from. The Tribunal notes the translated copies contain stamps from [a] Court, Selangor, Malaysia. The original police reports are each signed, contain significant personal details of the person making the report, and the reports vary in structure, text, and format in between reporting years.
As to the availability of police reports, the applicant explained he made many more police reports than he can provide to the Tribunal, but the Malaysian police would not release police reports to his family in Malaysia and will only release them directly to him in Malaysia. He has only been able to provide the Tribunal with those reports that his family were able to obtain directly from the police because the report was made by his mother or father or that his mother was able to find in the family home in their records. The Tribunal accepts the applicant would have difficulty obtaining relevant Malaysian records from Australia and that he has produced only those police reports that were saved by his mother or otherwise able to be accessed by her or his father directly through the police station as they had been made in their names.
The police reports provided by the applicant are largely consistent with his oral evidence and refer to incidents involving the applicant, Brother A, and Brother B. They record the following details:
·     [In] June 2013 the applicant’s father received a call informing him that Brother A had been attacked with a machete by some Indian youths at a football field and he had been taken by the police to hospital with injuries to the head, hands and right leg and would undergo surgery on his hands and feet. The report was made by the applicant’s father.
·     [In] October 2013 the applicant was involved in a motorbike accident. It was a hit and run and the details of the vehicle that hit the applicant were unknown. The report was made by the applicant’s father.
·     [In] September 2015 the applicant’s motorbike was stolen from the parking area underneath his house. The report was made by the applicant.
·     [In] January 2016 the applicant received a call that Brother B had been taken from his home address by a man named [Mr C] and two others and they had asked the family to pay MRY50,000 and provide a bike for his release, otherwise he would be beaten and killed. The report was made by the applicant’s mother.
·     [In] February 2016 it was reported the Indian males who took Brother B were still dissatisfied with the applicant and Brother B and will cause problems for them owing to the police report made [in] January 2016. It is stated although Brother B had escaped there is concern for the safety of the applicant and Brother B. The report was made by the applicant’s mother.
·     [In] July 2016 the applicant was provoked by two Indian males and two other people in the elevator of his housing block and was verbally abused and beaten. The altercation continued into his yard where his mother and many other people became involved until the police arrived, and the men escaped. The applicant suffered head injuries after being hit with a helmet and fork lock. The report was made by the applicant.
Following the hearing the applicant provided the Tribunal with a death certificate for Brother A which provides the cause of death to be alleged [deleted]. At hearing the applicant explained Brother A took his own life because his problems in Malaysia were too much for him.
The applicant was unable to produce documentation of his 2013 police report which led to the arrest of [Mr C] and the subsequent retaliation of the gangsters against him. Nor was he able to produce reports he made directly to the police detailing other instances of harm from the gangsters, including the attack on him in early 2017 in his hometown when he was threatened with a knife and had his money taken or the instances he was physically attacked or verbally threatened following his initial police report, such as when he attempted to go to the temple. In the context of the other police reports which the applicant was able to produce and given his straight-forward, spontaneous and consistent evidence over both hearings, the Tribunal accepts he made additional reports to the police detailing the harm he experienced from the gangsters which he has not been able to obtain copies of.
Considering the applicant’s consistent oral and written evidence and his responses to its concerns at hearing the Tribunal accepts the applicant was targeted by gangsters beginning in school in approximately 2013, including from [Mr C], and that he made a police report in 2013 about six gangsters that ultimately led to the arrest and imprisonment of [Mr C] for eighteen months. The Tribunal accepts the applicant was repeatedly harassed and targeted by multiple members of the gang group in his hometown after this time, which included physical attacks and verbals threats.
Whilst the Tribunal does not doubt the authenticity of the police reports, the Tribunal raised with the applicant some concerns it had with the content of the police reports in relation to his claims. In relation to the report concerning his motorbike accident [in] October 2013, the Tribunal raised with the applicant the police report does not indicate anything about the gangsters or gang activity. The Tribunal referred the applicant to the police report and the details within it that state the vehicle that violated him had run away and there was no car registration, but the hospital had given the phone number of the driver who had violated him. The Tribunal explained those details were included in the police report. The Tribunal raised with the applicant that the report did not suggest the incident was associated with the gangsters and indicated it may find it difficult to accept this was a premeditated hit and run by the gangsters where there was no evidence to suggest that is the case.
The applicant responded by indicating he is sure the gangster group hit him with their car as they were always creating problems for him, and they had told him they would kill him. He stated when he went to the police a couple of times to find out who was involved the police would never give him the camera footage. He explained he was not provided with the details of the driver, and it was deemed a hit and run, although he believes it was the gangsters as the police would not act on his report. He explained the name and phone number that appears in the report is not the driver but the person who dropped him off at the hospital. He stated he is not sure why a doctor would give a name and number for the driver when the police did not. The Tribunal queried if the gang claimed responsibility for his accident. He stated no one claimed they hit him, but the gangsters created the same problems for him after he recovered, and he knows it was them. When asked if he saw the vehicle that hit him or the gangsters during the incident he stated no and that he has memory loss from the accident.
The Tribunal has considered the applicant’s oral and written evidence and accepts he was hit by a car [in] October 2013 on his motorbike. The Tribunal accepts the applicant’s evidence that the name and phone number that appears in the police report is not the name of the driver that hit him and is the name of the person who assisted him to get to the hospital. The Tribunal accepts the accident was a hit and run. On the evidence before it, where the applicant did not see the gang in any way, the report does not refer to gang activity, and where road accidents of an unexpected and unfortunate nature regularly occur, the Tribunal is not prepared to accept the applicant was intentionally hit on his motorbike by a gang member. The Tribunal did not find persuasive the applicant’s evidence that the inability of the police to provide him with camera footage of the road accident was indicative of their collusion with the gangsters.
In respect of the [June] 2013 report concerning Brother A, the Tribunal raised with the applicant that the incident appeared to be at a football park 40km away and queried how he knew the attack on his brother involved the gangsters from his hometown. He explained his brother told him the people who attacked him were from the gang group in their town, but his brother did not know why he was assaulted. The Tribunal explained it may find it difficult to accept the incident was connected to the applicant in any way given it occurred away from his home location, was an attack on his older brother, and there is no reference to him in the police report. He responded that his brother was playing football and the two people belonging to the gang came and assaulted him. He explained that this occurred after the incidents had first arisen between himself and the gang group. The Tribunal accepts on the evidence before it that Brother A was attacked by the gang members known to the applicant. Given the intensity with which the applicant was a target of the gang group, the timing of this attack after the applicant’s report of the gang to the police, and Brother A did not know why he was attacked, the Tribunal is prepared to accept the attack on Brother A is linked to the applicant’s police report.
In relation to the report from [January] 2016 concerning the kidnapping and beating of Brother B and demand from the applicant for MYR50,000, the Tribunal raised with the applicant that the report suggests the incident was related to a work problem. The applicant appeared genuinely surprised at this suggestion and indicated at the time Brother B was kidnapped he had been working [and] the issue with the gangsters was not a work issue. He explained Brother B was at school at this time and was not working. He stated the gangsters contacted him directly to ask him for money and a motorbike and wanted him to come and get his brother. He explained [Mr C], who is named in the report, was his classmate’s older brother and that [Mr C] had gone to prison for eighteen months because of his 2013 police report. He stated [Mr C] and the gangsters used to create problems for him at school and when he was working. He suspects his mother was trying to say when he used to work these people created issues for him at his workplace. He explained his mother is not educated and he’d tell her what to say to the police and they would record what was said, but in Malay they would miss some words.
The Tribunal has considered the applicant’s response and in the context of the report having been made by his mother based on second-hand information, and Brother B being in school at the time of the report, accepts the reference to the workplace incident may relate to the issues the applicant experienced from the gangsters at work or was a translation error between his mother and the Malay police. The corresponding report of [February] 2016 related to the same incident refers to blackmail and ongoing safety concerns and does not refer to any workplace dispute. The Tribunal is prepared to accept the incident was part of the gang violence the applicant and his brothers experienced in their hometown and that Brother B was kidnapped by [Mr C] and two others in a coordinated attempt to target and blackmail the applicant.
The Tribunal queried with the applicant why the gangsters did not do anything more serious to him at times, beyond threatening him. In discussing the kidnap of Brother B, the Tribunal asked why the gangsters only threatened the applicant when he returned to his hometown and didn’t harm him, given they had got him to return and had previously kidnapped him. He explained in relation to this incident that the gangsters who had taken Brother B did not come to his house after this incident as they were arrested. However, other members of the gang group came to his home to threaten him. He stated they could not do anything then as the others wouldn’t have been released. The applicant explained to self-protect himself he would make police reports, so that he could indicate to the gangsters if they did anything more serious to him, the police would know and take action against them. He explained that was the reason they couldn’t harm him further. He explained he was still targeted and was attacked, physically harmed, and that after this incident two of [Mr C]’s friends threatened him with a knife and took his motorbike from him. The Tribunal found the applicant’s response persuasive in the context of the cumulative police reports the applicant made that named the gangsters and the risk to them of police investigation and imprisonment if the applicant’s life was harmed to a significant degree or ultimately taken, rather than the limited action the police could take if they continued their physical harassment, beatings, and attacks on the applicant.
In respect of the motorbike theft in September 2015, the Tribunal queried how the applicant could be certain the theft was related to the gangsters. He explained he could not state who it was that stole his bike, but the group were always at his place and fighting with him and creating problems and he had no issues with anyone else. He explained if he knew the name of the person who took the bike, he would have reported them, but he just reported the bike as missing. The Tribunal accepts the applicant’s motorbike was stolen from his home location and given the frequency with which he experienced difficulties from the gangsters at this time, and their knowledge of his address, accepts the gangsters were responsible for its theft.
The report of [July] 2016 details an incident in the applicant’s home building. The Tribunal queried if the people he had the incident with lived in the same building. He indicated they did not, and they lived in another street. He explained these people had caused him harm before and he was coming home after playing football and they started using swear words at him and about his mother and family and then started to physically assault him. The applicant’s oral evidence at hearing was consistent with what is described in the police report and the Tribunal accepts the applicant was deliberatively provoked and then physically assaulted by the gangsters as part of the consistent focus on harassing and attacking him given his prior reports to the police.
The Tribunal asked the applicant about his movements around Malaysia to avoid the gangsters. He explained he lived in Melacca with his cousin after his kidnapping in 2015 and before his brother’s kidnapping in early 2016. He was there for around five months. He returned to his hometown in late January 2016 when his brother was kidnapped. In late 2016 he stayed with a friend in Perak, before his [Country 2] trip. Whilst he was in Perak a friend told him ‘they know you are in Perak’, in reference to the gangsters who had been harassing him in his hometown. He explained in doing prayers it was very easy to find him in Perak, and the gangsters had a large well-connected group there, although they did not find him in that location before he went to [Country 2] as he did not go out much or work. From Perak he went to [Country 2] in late 2016. When he returned to Malaysia in early 2017, he briefly returned to his hometown. There he was attacked by the gangsters, and so departed to stay with a friend in Shah Alam. From there he moved to stay with an uncle in Seremban. The applicant explained he also moved to Johor Bahru, however he did not feel safe there as there were too many Indians and he was scared the gangsters knew those people, so he moved to Malacca again, where his cousin was still living. The applicant explained he always felt scared that anything could happen, given how connected the gangsters are. He then returned to Perak to stay with his friend before coming to Australia.
The Tribunal asked why he moved to so many locations across Malaysia. He explained the gangs were in the different locations in Malaysia, so he moved frequently. When asked if anyone from his home location approached him across Malaysia, he stated no one came up to him but the hometown gang operated in the different places. He recognised them from their tattoos and knew the gangs were connected across states. When asked why anyone in other locations across Malaysia would recognise him, he stated the gang was not small and operated across the fourteen states and they would know him as they would have been given a photo of him to identity him. He explained Malaysian gangs are dangerous and connected and they would have given his photo to the other gangs to find him out. That is why he did not stay in one place and moved to different places. Even whilst in a place, staying in different accommodation, he didn’t normally go out, in fear the gang would cause him trouble.
The dates of the police reports are largely consistent with the applicant’s evidence as to when the gangsters were harassing him and when he was travelling or moving around Malaysia to avoid the gangsters. The June 2013 report of Brother A being attacked on the football field is consistent with the applicant’s evidence that he reported the harassment he was experiencing at school and the drug taking of the gangsters at approximately this time, leading to retaliation against himself and his brothers. The applicant’s evidence to the Tribunal was that at least one of the gangsters, [Mr C], was sentenced to eighteen months in prison for his drug offending after his 2013 report, during which time there is an absence of police reports. This period also corresponds with the time the applicant was recuperating at home after his motorbike accident. The applicant’s evidence was he continued to be harassed by other gang members once he recommenced working and going to the temple, but he could not produce all the police reports he made.
Whilst the applicant’s evidence at hearing was that he was in Melacca for approximately five months after his 2015 kidnapping and before Brother B’s kidnaping in late January 2016, the Tribunal notes the report regarding his stolen motorbike from [September] 2015 indicates he was in Selangor until at least mid-September and suggests his period of travel to Melacca was less than five months. The reports available to the Tribunal illustrate the intensity of the harassment increased across 2016, consistent with the period [Mr C] was released from prison. The absence of a police report after mid-2016 is consistent with the applicant’s evidence he moved to Perak in late 2016. The applicant’s evidence was after each police report the gangsters were only put away for a couple of months at most, so the harassment of him and his family continued.

The Tribunal accepts given the passage of time since 2016-2017 the applicant may have difficulty recalling the exact months and duration of time he was in any specific location. Overall, the Tribunal found the applicant’s evidence to be consistent across both hearings and that the police reports, and his period of overseas travel, are consistent with his account of his domestic relocation in an attempt to distance himself from the gangsters. The Tribunal accepts the applicant moved to Melacca to live with his cousin after September 2015 and that he travelled to [Country 1] before he returned to Melacca and then his hometown in late January 2016. The Tribunal also accepts in late 2016 the applicant moved to Perak, before traveling to [Country 2], returning to his hometown, and then relocating to Shah Alam, Seremban, Johor Bahru, Melacca, and Perak once more before traveling to Australia.
The Tribunal also discussed with the applicant his overseas travel to [Country 1] and [Country 2]. He explained he travelled to [Country 1] for prayers whilst the gang harassment was taking place, in December 2015. He explained once he got back from [Country 1], the harassment continued, which is consistent with the report from January 2016 concerning the kidnapping of Brother B and the gangsters’ attempt to get him to return to his hometown. The applicant also explained he travelled to [Country 2] in December 2016, with his cousin, who took him on that trip to get him away from the troubles he was experiencing in Malaysia from the gangsters. He explained he was staying in Perak at the time his cousin was travelling to [Country 2], and he arranged for his things to be collected from his hometown and given to him for the travel to [Country 2].
When asked why he did not seek protection in [Country 1] or [Country 2], given the trips occurred after the incidents with the gangsters commenced, the applicant explained he did not know how to claim protection. He stated it was his mother and father who contacted an uncle in Australia after he returned from the [Country 2] trip, and he continued to have problems from the gangsters that he came to Australia and was assisted to claim protection. Given he was [age] whilst travelling to [Country 1], [age] at the time of travel to [Country 2], and had no familiarity with protection visas and relied on his family to assist him to travel, the Tribunal accepts he was unaware he could seek protection in [Country 2] or [Country 1] and did not become aware of the option to lodge a protection visa until his parents arranged for his uncle to assist him once in Australia.
In terms of his extended family and their interaction with the gangsters in Malaysia, he explained Brother A and Brother B were harassed and harmed because of their relationship with him and his association with the gangsters and the police reports he made. Whenever the gangsters would see his brothers or sisters, they would ask them where he was. They also asked his parents where he was, however, he explained the gangsters never went into his house to harm him, including whilst he has been in Australia. The Tribunal raised its concern with the applicant that it found it difficult to understand why the gangsters wanted to target and harm him, yet they did not attend his home to harm him and did not harm his other family members to get to him. He responded by stating they wanted to get to him and whenever he was outside of his home, they would trouble him, so he started moving around. Then they started to create problems for Brother B as they wanted the applicant to return. He confirmed they did not come into his family house, but the harassment occurred whenever he went outside, and they saw him. He explained during the time he has been in Australia, Brother B continued to be harassed, leading him to move to Sepang to avoid the gangsters, and ultimately depart from the country at [age] years of age to Australia.
When asked if the applicant knows if the gangsters are still in his hometown, he stated he has not asked his family about them in the last two to three years. He explained he knows the gangsters asked about him two or three years ago, before Brother A passed away. At that time his mother told him they were still in the area and not to return home, however he has not brought it up with his mother in the last few years given the circumstances of his brother’s death. The Tribunal acknowledged his brother’s passing and the difficult circumstances of his family but raised with the applicant its concern as to why he had not asked about the gangster group with his family in several years given his fears of them. He responded after he left Malaysia he asked his family about them, then he stopped as he was safe and happy and peaceful in Australia. He didn’t see any use in asking about their location. He has a baby here now and when he speaks to his family he talks about his family. He doesn’t want any problems and he doesn’t want anything to do with the gangs, so he doesn’t ask about them. His family are happy in Malaysia because he is not there, but if he returns to Malaysia the problems will start again and it’ll become a problem for his family again and impact them. The Tribunal considered the applicant’s response and accepts he has intentionally avoided asking about the gangsters in order to preserve his happiness and peace. The Tribunal accepts the gangsters asked after him two to three years ago. The Tribunal accepts Brother B was harassed after the applicant’s departure to Australia, leading him to depart Malaysia at [age].
The Tribunal queried with the applicant what makes him think the gang group or anyone connected to them would harass him now, in 2024. He responded they gave him so many problems before so he is scared if he goes back, they will do something to his life. When the Tribunal raised with the applicant it has been over six years and queried why they would remember or target him now six years have passed, he stated the gangsters threatened, harassed, and assaulted him in Malaysia and whilst they may not be focussed on him whilst he’s in Australia, if he returned to Malaysia and they saw him, they would cause problems and do something to his life. When asked why he would still be a target he stated because of the problems he had when he was in Malaysia, and he knows the problems they gave him before and when he thinks of those things it scares him as he can’t live peacefully or happily in Malaysia.
The Tribunal also raised with the applicant DFAT’s assessment that provides Indian Malaysians involved in gangsterism face a moderate risk of violence potentially from other gangsters and from the police and explained it does not appear from his evidence that he is specifically involved in gangsterism and instead he has avoided joining any gang. When raising with the applicant that the country information does not suggest there is any reason why gang members would continually target the applicant over several years in such a consistent and prolonged manner, the applicant explained if he returns to Malaysia his life may not end the next day but anything could happen to him by this gang and if he reports them they will harm him again and there is no guarantee for his life.
Claims related to the tattoo on his [body part]
At the second hearing the applicant claimed he has a tattoo on his [body part] that matches the symbol for Gang 36 in Malaysia, and he fears if he returns to Malaysia he will be arrested, suspected of being a gang member, and put in prison.
The applicant explained the tattoo is not a gang tattoo and is a religious tattoo he obtained in 2014 or 2015 and is a symbol of a god. When he obtained his tattoo there were no laws in Malaysia about tattoos. He stated Gang 36 use the exact same symbol to represent their gang and he understands the government in Malaysia now arrest and put in prison anyone who has a gang tattoo on their body. The Tribunal queried if he had this fear when he submitted his protection visa application and he stated he did not and he was never arrested in Malaysia, and it was only later that he came to realise people in Malaysia were getting arrested for having gang tattoos.
The applicant stated he believes the issue with the tattoo arrests started to happen in Malaysia in 2016 or 2017. When asked if he had any problems in 2016 or 2017 in Malaysia with his tattoo, he stated he did not as he was in [Country 2] at the end of 2016 and then in 2017, he came to Australia. He explained he then saw in the news that the police were catching people with gang tattoos. For the purposes of s423A of the Act, the Tribunal accepts there is a reasonable explanation why this claim was not raised before the primary decision was made.
The Tribunal asked if he could explain to the police his religious beliefs and what his tattoo represents. He stated he could explain himself to the police, but the police would need to accept what he says, and some people are still in prison.
The Tribunal raised with the applicant its concern why he had not discussed this claim with the Tribunal at the first hearing given his fears. He explained at the first hearing he was discussing his police documents and explaining the detail from that documentation, so he didn’t remember to raise the tattoo. The Tribunal is prepared to accept this explanation given the volume of police reports the applicant provided to the Tribunal at the first hearing, the number of instances of past harm he described to the Tribunal, and the unfamiliar setting of the Tribunal itself.
The Tribunal observed the applicant’s tattoo at hearing. It covers his [body part] and resembles [a symbol]. The Tribunal has also considered country information in relation to Gang 36 logos and imagery and accepts the applicant’s tattoo strongly resembles the logo adopted by Gang 36[1]. On [another body part] the applicant has a [different tattoo].
[1] Figure 1: Logos and Tattoos used by the gangs in Malaysia as per Royal Malaysian Police, as detailed in Nataraja Moorthy T, Aaron Inbaraj D and Mohammad Rahim K, ‘Exploring the Profile of Gangsterism in Malaysia from the Perspective of Experts’, Journal of Forensic and Crime Studies, Vol 3, Issue 1, 2.
Country information before the Tribunal provides that individuals with tattoos or symbols of any secret societies or unlawful organisations on their body can be arrested in Malaysia[2]. Gang members who have tattoos or logos of their gangs on them can be prosecuted under section 52(3) of the Societies Act 1966[3], with sentences of up to three years in prison, or a maximum fine of RM5,000 if found guilty[4]. There are reports of arrests occurring as a result of criminal tattoos from August 2016[5], consistent with the applicant’s oral evidence at hearing. Country information indicates Gang 36 is active in peninsular Malaysia, had 8,512 members in 2023, and is mostly made of Indian members[6]. Recent news articles indicate arrests have been made in 2023 of Gang 36 members, with identification of members made through body tattoos and pictures of the symbol 36 on phones[7].
[2] ‘Have a gang tattoo? Police can arrest you, says Bukit Aman’, Malay Mail, 24 February 2019.
[3] ‘Malaysia on path to becoming gangsters’ paradise, senior police official warns, Today Online, 17 February 2021.
[4] ‘Individuals with gang tattoos face up to 3 years’ jail’, Malaysia Kini, 24 February 2019.
[5] ‘Tattoos lead to downfall of 76 “gangsters” in Malaysia’, Today Online, 23 August 2016.
[6] Shathesh Raviechandran, N. K. Tharshini, Gang Membership among Malaysian Indian Young Adults, International Journal of Academic Research in Business and Social Sciences, Volume 13, No 7, 2023, 1330.
[7] ‘Ten members of “Geng 36” arrested in Bahau’, The Star, 13 May 2023.
The Tribunal raised the relevant country information with the applicant at hearing and explained there was nothing before the Tribunal that suggests the applicant himself would be suspected of being a gang member, especially where he had made so many police reports against gang members and could explain the religious significance of his tattoo. The applicant responded that the police would put him in prison and would not ask questions and as far as they would be concerned his tattoo would not be a religious tattoo but a gang tattoo. He stated he could explain his circumstances but by the time he got bail it could be one or two years. He explained there are many Indian Hindus in Malaysian gangs, and the police may consider him to be a gang member as an Indian Hindu with tattoos on his body so whatever reason he gives the police they will not accept it. He stated he does not want to remove his tattoo as it is of his God.
The Tribunal has considered the evidence before it, the applicant’s response to its concern, and the country information referred to above and which was discussed with the applicant at hearing and accepts the applicant has a tattoo on his [body part] of the [symbol] and that he does not want to remove it. The Tribunal accepts Gang 36 bares a logo similar to the [symbol] and they are still active in Malaysia and are mostly comprised of Indian members. The Tribunal accepts individuals with gang tattoos in Malaysia can be arrested by police and sentenced to three years in prison or a fine of RM5,000.
Findings
The Tribunal has considered the applicant’s evidence at hearing and the written evidence in support of his claims, and for the reasons set out above finds as follows.
The Tribunal accepts the applicant was targeted by gangsters in school in 2013, including from an Indian Malay man named [Mr C], and that he made a police report in 2013 about six gangsters that ultimately led to the arrest and imprisonment of [Mr C] for eighteen months.
The Tribunal accepts the applicant was harassed and targeted by multiple members of the gang group in his hometown after his 2013 police report, which included physical attacks and verbals threats.
The Tribunal accepts [in] October 2013 the applicant was involved in a hit and run accident. The Tribunal does not accept the applicant was intentionally hit on his motorbike by a gang member.
The Tribunal accepts Brother A was attacked by members of the gang group [in] June 2013 in connection with the applicant’s police report.
The Tribunal accepts the applicant was kidnapped in 2015 by members of the gang group, including [Mr C], and that he was beaten, stripped naked, and threatened not to make further police reports.
The Tribunal accepts Brother B was kidnapped by the gang group, including [Mr C], in late January 2016 and held by the gang group for several days in connection with the applicant and in retaliation for the applicant’s earlier police reports.
The Tribunal accepts the applicant’s motorbike was stolen from his home location in September 2015 by the gangsters.
The Tribunal accepts the applicant was deliberatively provoked and then assaulted by the gangsters in June 2016 and they left once the police arrived at the scene.
The Tribunal accepts in early 2017 the applicant was beaten and threatened with a knife by members of the gang group and that his keys, bag, wallet, and money were taken.
The Tribunal accepts the applicant moved to Melacca to live with his cousin after September 2015 and that he travelled to [Country 1] before he returned to Melacca and then his hometown in late January 2016. The Tribunal also accepts in late 2016 the applicant moved to Perak, before traveling to [Country 2], returning to his hometown, and then relocating to Shah Alam, Seremban, Johor Bahru, Melacca, and then Perak before he came to Australia.
The Tribunal accepts the applicant was unaware he could seek protection in [Country 2] or [Country 1] and did not become aware of the option to lodge a protection visa until his parents arranged for his uncle to assist him to travel to and seek protection in Australia.
The Tribunal accepts the gangsters asked after him in Malaysia two to three years ago. The Tribunal accepts Brother B was harassed after the applicant’s departure to Australia.
The Tribunal accepts the applicant has a tattoo on his [body part] of [a] symbol and that he does not want to remove it. The Tribunal accepts Gang 36 bares a logo highly similar to the [symbol] and they are still active in Malaysia and comprise mostly Indian members. The Tribunal accepts individuals with gang tattoos in Malaysia can be arrested by police and sentenced to three years in prison or a fine of RM5,000.
Does the applicant meet the refugee criterion?
The applicant claims to fear harm from gangsters operating in his hometown and across Malaysia because of his former police reports in relation to gang members and owing to their former persistent harassment of him. He also fears harm from the police on account of a tattoo on his [body part] that is of [a] symbol but that also resembles the Gang 36 logo.
The Tribunal, for the reasons set out above, has accepted the applicant was targeted by gangsters starting in approximately 2013 when he was in school, including from a man called [Mr C], and that he made several police reports about the gangsters, including in 2013 which led to [Mr C]’s arrest and imprisonment for eighteen months. The Tribunal has accepted the applicant was harassed and targeted by multiple members of the gang group in his hometown after this time, which included physical attacks, verbals threats, his kidnapping in 2015, the theft of his motorbike in 2015, a physical altercation in June 2016, and threats and a physical assault involving a knife in early 2017. The Tribunal has accepted Brother B was kidnapped in January 2016 to target the applicant, and that earlier in 2013 Brother A was attacked by the gang group in connection with the applicant’s police report. The Tribunal has also accepted the applicant moved to Melacca to live with his cousin after September 2015, travelled to [Country 1] in late 2015, and returned to Melacca and then his hometown in late January 2016. The Tribunal has accepted in late 2016 the applicant moved to Perak, before traveling to [Country 2], returning to his hometown, and then relocating to Shah Alam, Seremban, Johor Bahru, Melacca, and Perak once more before travelling to Australia. The Tribunal has accepted the gangsters asked after him two to three years ago, that Brother A took his own life in January 2022, and that Brother B was harassed after the applicant’s departure to Australia.
In relation to his tattoo, the Tribunal has accepted the applicant has a tattoo on his [body part] of [a] symbol and that he does not want to remove it. The Tribunal has also accepted Gang 36 bares a logo similar to the [symbol] and they are still active in Malaysia and mostly comprise Indian members. The Tribunal has accepted individuals with gang tattoos in Malaysia can be arrested by police and sentenced to three years in prison or a fine of RM5,000.
The applicant did not raise at hearing that he fears harm from the gang members or the police on account of his ethnicity, race, membership of a particular social group, political opinion, or religion. The applicant’s evidence to the Tribunal was that he was not a member of a gang and was targeted as he was unwilling to fight back to the gangsters and because he made police reports. He explained the police would target him because of his tattoo and in connection to possible gang links.
DFAT assess that whilst Indian Malaysians face low levels of official discrimination, including being disadvantaged by quotas when attempting to gain entry into the state tertiary system or the civil service, Indian Malaysians involved in ‘gangsterism’ face a moderate risk of violence, potentially from other gangsters and from the police, more likely due to their activities than on the basis of their ethnicity[8]. The applicant explained on multiple occasions at the hearings that he was never a member of a gang in Malaysia.
[8] DFAT, Country Information Report - Malaysia, 29 June 2021, 3.20, 24.

The Tribunal raised with the applicant at hearing that the harm perpetrated against him did not appear to be for reason of his race, religion, nationality, membership of a particular social group, or political opinion, as is required by s 5J(1)(a) of the Act. In response he reiterated the harm he experienced was from gang members and had been persistently happening since he was in school. The Tribunal does not accept the applicant’s fear of harm from the gang members or police arises from one of the reasons set out in s 5J(1)(a).
Given this, the Tribunal is not satisfied that if the applicant returns to Malaysia now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, the applicant does not meet the definition of refugee in s 5H(1) and does not satisfy the criterion set out in s 36(2)(a).
Does the applicant meet the complementary protection criterion?
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).
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[9].
[9] MIAC v SZQRB [2013] FCAFC 33.
Country information before the Tribunal indicates as of 2018 over 100 illegal gangs operated in Malaysia, with an estimated 9,000 members. Of these gangs, 65 were reported to be Chinese Malaysian, 20 were Malay and 18 were Indian Malaysian-run gangs[10]. DFAT report that many street-level gangs are Indian Malaysians, reflecting their relative economic vulnerability, although high-level crime, including drug trafficking, is more typically associated with Chinese Malaysian gangs[11].
[10] DFAT, Country Information Report - Malaysia, 29 June 2021, 2.47, 18.
[11] DFAT, Country Information Report - Malaysia, 29 June 2021, 2.47, 18.
Whilst gang group numbers are reported to be higher amongst Chinese Malaysian and Malay communities, country information suggests Indian Malays have the most active and extensive gangs. As of 2018, Chinese Malaysian gangs numbered 65 secret societies and 167 branches and 3,113 active members, Malays had 20 gangs with 120 branches and 1,513 active members, and Indian Malays had 18 gangs, but with a total of 267 branches and 4,143 active members[12]. It is reported Indian Malay gangs have a loyal membership, rarely form splinter gangs, and are long established[13]. Recent research suggests gangsterism in Malaysia has seen a marked increase, with reports of over 40,000 gang members as of 2023, with 71.75% of them Indians, totalling 28,926[14]. DFAT report that details of gang activities are difficult to obtain, as victims of gang-related crimes do not generally report them[15].
[12] ‘Chinese have the most gangs; Indian gangs the most members: Police’, Sun Daily, 11 March 2018.
[13] ‘Chinese have the most gangs; Indian gangs the most members: Police’, Sun Daily, 11 March 2018.
[14] Shathesh Raviechandran, N. K. Tharshini, Gang Membership among Malaysian Indian Young Adults, International Journal of Academic Research in Business and Social Sciences, Volume 13, No 7, 2023, 1329.
[15] DFAT, Country Information Report - Malaysia, 29 June 2021, 2.47, 18.
A recent study of gangsterism in Indian Malay youths in Selangor, Malaysia indicates most respondents were single, male, drug dealers, aged between 23 and 24 years old, and had completed education up to lower secondary level[16]. Other research on the profile of gangsterism in Malaysia outlines gangsterism often starts in schools in the form of bullying, with recruitment into the gang usually starting in middle school where the age group is between 10 and 13[17]. Amongst Indian Malays in particular, gang members actively recruit Indian students, and it is reported gangs make themselves publicly visible within school settings[18]. News reports indicate children of school age have been attacked in Malaysia for refusing to join gangs[19]. This accords with the applicant’s experience of the gangsters in his hometown.
[16] Shathesh Raviechandran, N. K. Tharshini, Gang Membership among Malaysian Indian Young Adults, International Journal of Academic Research in Business and Social Sciences, Volume 13, No 7, 2023, 1329.
[17] Nataraja Moorthy T, Aaron Inbaraj D and Mohammad Rahim K, Exploring the Profile of Gangsterism in Malaysia from the Perspective of Experts, Journal of Forensic and Crime Studies, Vol 3, Issue 1, 3.
[18] Shankar Durairaja, Geshina Ayu Mat Saat, and Mohammad Rahim Kamaluddin, Psychological and Criminogenic Factors Underlying Gangsterism Among Indians in Malaysia From the Perspective of Ex-Gangsters and Police Personnel, Psychological Thought, Volume 12, No 1, 2019.
[19] ‘Three 14-year-old boys attacked for refusing to join gang’, Free Malaysia Today, 28 November 2020.
The Tribunal considered the general situation for Indian Malaysians in Malaysia. DFAT report that Indians comprise 6.2% of the Malaysian population[20] and are the third largest ethnic group in Malaysia, with the Malaysian Department of Statistics estimating there were 2.02 million Indian Malaysians in Malaysia in 2020[21]. The country information indicates that Indian Malaysians typically live in major urban centres, including Kuala Lumpur, Penang, Negeri Sembilan, Selangor, and Perak[22].
[20] DFAT, Country Information Report - Malaysia, 29 June 2021, 2.5, 9.
[21] DFAT, Country Information Report - Malaysia, 29 June 2021, 3.13, 22.
[22] DFAT, Country Information Report - Malaysia, 29 June 2021, 3.13, 22.
Where the statistics show a disproportionate impact on Indian Malaysians is the high number of incarcerated persons. DFAT report that despite being just 7% of the population, Indian Malaysians comprise 55% of the prison deaths between 2010 and 2017 and as of June 2019, of the 47,630 Malaysians in prison, 5,429 were Indian Malaysians, which is close to double their proportion of the total population. DFAT indicate the Indian Malaysian community report poverty and lack of access to tertiary education opportunities can lead to members of the community becoming involved in criminal activities and gangsterism[23].
[23] DFAT, Country Information Report - Malaysia, 29 June 2021, 3.17, 23.
DFAT assess that whilst Indian Malaysians face low levels of official discrimination, including being disadvantaged by quotas when attempting to gain entry into the state tertiary system or the civil service, Indian Malaysians involved in ‘gangsterism’ face a moderate risk of violence, potentially from other gangsters and from the police, more likely due to their activities than on the basis of their ethnicity[24].
[24] DFAT, Country Information Report - Malaysia, 29 June 2021, 3.20, 24.
The applicant’s oral evidence at hearing is consistent with the country information. He was targeted at school initially in the form of bullying and the gangsters comprised men who were caught up in drug activity and well-connected to gangs operating across Malaysia. The applicant’s experience of the gangsters, including their repeated targeting of him over multiple years in retaliation for reporting gang members to the police, accords with the country information that suggests Indian Malay gangs have loyal membership and are long established. Whilst the applicant’s evidence was that the gang in his hometown included members of different ethnicities, the Tribunal takes note of the police reports which consistently refer to Indian Malay offenders and the applicant’s evidence that [Mr C], one of the main perpetrators of the violence against him, and who was connected to the initial police report he made, his own kidnapping, and Brother B’s kidnapping, is Indian Malay.

100. The Tribunal has considered the frequency with which the gangsters targeted the applicant, and the number of police reports he has made. The applicant gave evidence that the gangsters did not target him in his home, including after his vehicle accident in late 2013 when he was recuperating at home and regaining his memory and strength for a six-month period. However, the Tribunal has accepted that the gangsters continued to target the applicant once he re-entered the community after a period of more than six months and was visible to the gangsters, and once [Mr C] was released from prison and sought retaliation against the applicant for reporting him for drug abuse and his continued harassment of the applicant.
101. The police reports and instances of past harm which the Tribunal has accepted indicate the actions of the gangsters increased in frequency and intensity over time, which is also consistent with the country information which indicates gangsterism often starts in school and escalates. The applicant gave evidence that he was initially bullied and harassed at school, harassed attending temple, physically attacked, then kidnapped and beaten in 2015, then threatened with a knife and had his motorbike stolen in early 2017. The Tribunal has accepted the gangsters kidnapped Brother B in early 2016 in retaliation against the applicant, keeping Brother B for multiple days in a confined environment rather than a single day like the applicant in 2015. The evidence before the Tribunal suggests the violence perpetrated by the gangsters increased as they aged and were entrenched in gangsterism.
102. The Tribunal raised concerns with the applicant as to why he did not seek protection in [Country 1] in 2015 and [Country 2] in 2016 and whether the gangsters would still be interested in him now given six years have passed since he departed Malaysia. The Tribunal has accepted, given his age and lack of familiarity with visa processes and the possibility of seeking protection, that the applicant was unaware that he could seek protection in either [Country 1] or [Country 2]. Both trips were arranged for him by family and his evidence was he travelled with his cousin. His evidence, which the Tribunal has accepted, is that his travel to Australia to escape the gangsters and his circumstances in Malaysia was similarly arranged by family.
103. As to the whether the gangsters would continue to harass and harm the applicant if he were to return to Malaysia in the reasonably foreseeable future, the applicant explained the gangsters were still asking after him two to three years ago, being at least three years after he departed Malaysia. The Tribunal has accepted the gangsters continued to target the applicant in Malaysia after periods of his absence in the community. As soon as the applicant recuperated from his accident and resumed entering the community in 2014, the harassment of him continued from the gangsters. Similarly, when he returned to his home area after being in [Country 2], he was threatened, physically harmed, and had his motorbike stolen. The Tribunal has accepted when he attempted to move to Melacca to distance himself from the gangsters, he remained inside and did not work, and the gangsters kidnapped Brother B in an attempt to get him to return to his hometown.
104. The Tribunal considered DFAT’s assessment that Indian Malaysians involved in gangsterism face a moderate risk of violence, potentially from other gangsters and from the police. Whilst the applicant is not in a gang or involved in gangsterism, the Tribunal accepts in circumstances where the applicant grew up with the gangsters, consistently reported the gangsters, his police report led to the imprisonment of one of the gangsters for eighteen months, and the country information provides Indian Malay gangs have loyal membership, he would become a target of the gangster group and they would cause him harm in retaliation.
105. Considering the continued attacks on the applicant over multiple years and after periods of absence, relocation, travel, injury, and rehabilitation in hospital and at home, the Tribunal accepts the gangsters, and in particular [Mr C] and the gangsters he is connected to, are likely to remember the applicant and resume their harassment and harm of him if he were to return to Malaysia. The applicant grew up with the gangsters and attended school with [Mr C]’s brother. He had persistent contact with them in his home location over a number of years and made several police reports over that time in relation to several gangsters. Whilst the applicant has not asked about the gangster group in two to three years and does not know if they are continuing to search for him or look for him or if they are active in his home area, the Tribunal cannot discount that [Mr C] or the gangsters he is connected with are still operating in his home area given the length of time they lived in that area and given they were active only two to three years ago in that location. Nor can the Tribunal be certain they would not identify the applicant if they are operating given the frequency of their past contact, length of time they have known each other, and the intensity with which they targeted him in the past.
106. The possibly of members of the gang targeting the applicant and continuing to harass him, in the context of the past harassment he experienced over five years and the country information as to the conduct of gangs in Malaysia, is not remote. Whilst the Tribunal does not accept the car accident was a targeted attack from the gangsters, it has accepted the applicant experienced intimidation in high school, followed by multiple physical attacks, a kidnapping, verbal threats, and beatings. The pattern of harassment and harm appears to be escalating. The applicant left Malaysia when he was [age] years of age, when the gang members were similarly young men. He would be returning to the gang members as adult men, potentially continuing to have escalated their behaviour, and with strong gang connections and the capacity to retaliate against the applicant in relation to his past police reports.
107. The Tribunal has also considered that the applicant is an Indian Malay male with identifying tattoos on his hands, one of which is strikingly similar to the logo adopted by Gang 36 and the other one states his name. The country information indicates Indian Malays constitute less than 7% of the Malaysian population. It also provides, and the Tribunal has accepted, individuals with gang tattoos in Malaysia can be arrested by police and sentenced to three years in prison or a fine of RM5,000. The Tribunal finds in these circumstances, where the Indian Malay population is small and he has features that distinguish him, the applicant is more likely to be readily identifiable by the gangsters on return to Malaysia and come to their attention. It also finds if he were to be arrested by the police or questioned by the police in relation to his tattoo, he would similarly have a heightened risk of coming to the attention of the gangsters, given the country information which provides there is a disproportionate number of Indian Malaysians in prison, almost double their proportion of the total population. The Tribunal finds there is a likelihood, albeit small, some of those prisoners or people in the police station the applicant would have contact with would be connected to the gangsters known to the applicant and come to understand the applicant’s connection to them.
108. In view of the above, and having considered those factors individually and cumulatively, the Tribunal is satisfied that the applicant faces a real risk of harm from the gangsters, including [Mr C], if he were to return to Malaysia in the reasonably foreseeable future.
109. The Tribunal has considered next whether the harm the applicant would face amounts to ‘significant harm’, which is exhaustively defined in s 36(2A). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel of inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act.
110. On the evidence before it, the Tribunal is satisfied the consistent harassment, physical attacks, beatings, kidnappings, threats to the applicant’s life, and theft of his belongings cumulatively amounts to acts which cause severe pain or suffering intentionally inflicted on him. The Tribunal is satisfied the harm the applicant would be subjected to amounts to ‘cruel or inhuman treatment or punishment’ in s 5(1) of the Act. The Tribunal is therefore satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm in Malaysia.
111. The Tribunal has considered whether the applicant could obtain state protection from the Malaysian authorities such that there would not be a real risk of suffering significant harm. One of the qualifications to s 36(2)(aa) is contained in section 36(2B)(b) which provides 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 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.
112. DFAT report that local and international sources consider the Royal Malaysian Police to be a professional and effective police force, although the quality of its members’ responses vary depending on levels of training, capacity and engagement in corruption[25]. Country Information provides the Malaysian government have variously reported through the media the mass arrests of members of gangs over the last decade, including Criminal Investigation Department operations in 2024[26].
[25] DFAT, Country Information Report - Malaysia, 29 June 2021, 5.5-6, 58.
[26] ‘Police detain 1,502 individuals in Klang over three-week operation’, New Straits Times, 9 February 2024.
113. The Tribunal put it to the applicant at hearing that country information suggests the police are able to combat gang violence and that his evidence to the Tribunal suggests the police have done so in the past. The applicant responded that there have been many gangsters arrested in Malaysia, but the gangs still exist, and they come back again and continue their harassment. He stated there is not one day in Malaysia where he could not say he would not have a problem with the gangsters. He explained some police support the gangsters, obtain money from gangsters, although he noted there are police genuinely working against the gangsters. He stated there are many different gangsters, they still created problems for him, he didn’t always know who it was that caused him harm, and the problem still caught up with him every time.
114. News articles confirm the police continue to target and arrest gangsters in Malaysia and that the gangster networks are prolific and extensive and gang violence continues despite multiple arrests[27]. The applicant’s evidence, which the Tribunal has accepted, is that the police arrested the gangsters for short periods of time, often for a maximum period of three months, after which they were released and continued to target him, other than the period [Mr C] was imprisoned for eighteen months. Country information refers to in-country sources claiming police arrest people, 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 the same person[28]. This is consistent with the applicant’s account of the frequent arrests and release of the gangsters despite his multiple police reports.

[27] ‘Murders spoke in Malaysia’s Melaka state amid spate of rapes and gang robberies’, South China Morning Post, 18 July 2023; ‘Rising gang numbers pose threat to national security’, The Sun, 12 September 2023; ’72 underworld gangs on police radar’, Sinar Daily, 16 June 2022; ‘Bukit Aman team rounds up over 100 suspected gang members in Klang’, The Star, 21 January 2024; ‘11 charged with links to ‘Gang Upik’, New Straits Times, 22 January 2024; ‘Malaysia on path to becoming gangsters’ paradise, senior police official warns’, Today Online, 17 February 2021.
[28] DFAT, Country Information Report - Malaysia, 29 June 2021, 5.8, 58.
115. The harm the applicant experienced from the gangsters was consistent, pervasive, regular, and occurred at times amongst witnesses. Despite multiple police reports about the gangsters being made by the applicant, the evidence before the Tribunal is that the applicant continued to be targeted and attacked and the gangsters were not given a significant prison sentence. The country information suggests the strong links amongst the Indian Malay gangster network contributed to the applicant continuing to be targeted, despite some gangsters being imprisoned for short durations after his police reports. The Tribunal has accepted the applicant’s evidence that multiple gangsters harassed and harmed him from the broader gang network in retaliation for reporting on gang members and that there was not one single person that targeted him on each occasion of harm.
116. Considering the country information before it, the nature of the harm experienced by the applicant, and the police reports that illustrate the multiple interactions the applicant had with the police in relation to the gangsters to little long term effect, the Tribunal is not satisfied the level of protection available to the applicant is such that the risk of the applicant being significantly harmed would be reduced to something less than a ‘real risk’. It is clear even whilst the applicant was consistently reporting the gangsters when he was living in Malaysia the police were unable to prevent him from being physically harmed and attacked on a regular basis.
117. The Tribunal has considered whether it would be reasonable for the applicant to relocate to an area of Malaysia where there would not be a real risk that he will suffer significant harm, in accordance with the qualification in s 36(2B)(a) of the Act.
118. The Tribunal asked the applicant at hearing what he would do if he had to return to Malaysia and if there was anywhere in Malaysia he could avoid harm. He stated he did not think there was anywhere in Malaysia he could go to avoid harm as he had tried to stay in other places and never felt safe. The Tribunal has accepted the applicant moved to Melacca to live with his cousin after September 2015 and that he travelled to [Country 1] before returning to Melacca and then his hometown in late January 2016. The Tribunal has also accepted in late 2016 the applicant moved to Perak, before traveling to [Country 2], returning to his hometown, and then relocating to Shah Alam, Seremban, Johor Bahru, Melacca, and Perak before departing for Australia.
119. The applicant explained at hearing that he was not found in any other states across Malaysia by the gang group, but he was told the gangsters knew he was in Perak. His evidence was that he was not working or circulating amongst the community and that he stayed indoors and his parents and other family members provided him with income and support. The applicant explained the gangsters were connected across Malaysia and he observed the gang groups operating in each of the locations he travelled to, so he did not feel safe. He feared his photograph would be circulated amongst the gang group and he would be found and harmed.
120. The country information before the Tribunal indicates gangs are connected across Malaysia and do not operate within isolated areas. Research indicates gangs operate across states and regions, frequently listed to be active in cities such as Kuala Lumpur, Selangor, Kedah, Perak, Johor, Melacca, Penang, and Sembilan[29]. News reports frequently reference arrests of gangs across multiple states, including Perak, Kuala Lumpur, Melacca, and Johor[30]. The country information provides Indian Malay gangs, the ethnicity of which many of the gangsters targeting the applicant belong to, total 267 branches and 4,143 active members[31]. The Tribunal considers on the evidence before it that it is likely the gangsters operating in the applicant’s hometown and that targeted him are connected to gangsters operating across multiple states in Malaysia.
[29] Shathesh Raviechandran, N. K. Tharshini, Gang Membership among Malaysian Indian Young Adults, International Journal of Academic Research in Business and Social Sciences, Volume 13, No 7, 2023, 1329-30.
[30] ‘Sakai Gang leader, 23 members arrested in four states’, New Straits Times, 22 June 2021; ‘6 Datuks among 114 suspected gangsters arrested’, Free Malaysia Today, 8 February 2017; ‘Malaysia: 82 arrests in crackdown on organised crime’, Vietnam Plus, 10 April 2018.
[31] ‘Chinese have the most gangs; Indian gangs the most members: Police’, Sun Daily, 11 March 2018.
121. The Tribunal considered whether the applicant would remain at risk of significant harm if he relocated across Malaysia where gang networks are operating and likely to be connected to the gangsters from his home location. In circumstances where the country information provides Indian Malaysians comprise less than 7% of the population[32], Indian gangs are considered the most active and constitute the most loyal members[33], the applicant is an Indian Malay with a distinguishing tattoo on his [body part] that may draw his attention to the authorities or other gang networks, including Gang 36, the Tribunal finds he is likely to be at an enhanced risk of being found across Malaysia and come to the attention of gang networks connected to those in his hometown. The Tribunal has placed weight on the country information that provides gang tattoos are used to identify people as belonging to particular gangs and finds the prominent position of the applicant’s tattoo on his [body part], and its striking resemblance to the Gang 36 tattoo, in combination with his Indian Malay ethnicity, would likely bring him into contact with the authorities or gang networks across Malaysia. The Tribunal finds the applicant’s ethnicity, [tattoos], volume of prior police reports, and long history with the gangsters in his hometown increases the possibility he would be more readily located across Malaysia in the event his details or a photograph of him is circulated amongst gang networks.
[32] DFAT, Country Information Report - Malaysia, 29 June 2021, 3.13, 22-23.
[33] ‘Chinese have the most gangs; Indian gangs the most members: Police’, The Sun, 11 March 2018.
122. Given the connection between gang networks across Malaysia, the veracity with which the applicant was targeted when he was in Malaysia in his hometown, the chance the applicant will come into contact with the gang networks or the authorities in relation to his tattoo which resembles the Gang 36 logo, and the Tribunal’s acceptance that gang members were still seeking the applicant out at least two to three years ago, the Tribunal accepts there is not an area the applicant could relocate to within Malaysia where there would not be a real risk of suffering significant harm. There is no necessity for the Tribunal to consider whether it is reasonable for the applicant to relocate within Malaysia given this finding.
123. The Tribunal is satisfied that the significant harm the applicant faces from the gangsters is one faced by him personally and not faced by the population of the country generally for the purposes of s 36(2B)(c) of the Act.
124. The Tribunal is satisfied the applicant does not have the right to enter and reside in any other country. The Tribunal therefore finds s 36(3) does not apply in the circumstances of this case.
125. Given the above findings, the Tribunal has not proceeded to separately consider the applicant’s claimed fear of harm specifically from the police under the complementary protection criterion.
Conclusion
126. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
127. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Rachelle Johnston
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.
…

[2024] AATA 2989

24 April 2024

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