1804061 (Refugee)

[2022] AATA 3364

1804061 (Refugee) [2022] AATA 3364 (30 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  [Applicant]

REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBER:  1804061

HOME AFFAIRS REFERENCE(S):          [File Number]

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Deputy President J.L Redfern PSM

DATE:30 September 2022

PLACE OF DECISION:  Sydney

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

Statement made on 30 September 2022 at 4:04pm

CATCHWORDS

REFUGEE – Protection (Class XA) (Subclass 866) visa – Malaysia – Fear of harm from criminal gangs – Involvement with Gang 36 – Religion – Hindu – Ethnicity – Tamil – Interfaith relationship – Threatened by gang members – Lack of details to support claim – Inconsistent evidence – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36(2), 36(2)(a), 36(2)(aa), 36(2A), 5H(1)(a), 5H(1)(b), 5J, 5J(1)(a), 5J(1)(b), 5J(4), 5J(5), 65, 423A, 423A(2), 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

AIE15 v Minister for Immigration and Anor [2018] FCA 610
Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

SECONDARY MATERIALS

Department of Foreign Affairs and Trade Country Information Report on Malaysia, 29 June 2021

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 – Consideration of Protection Visa applications, 24 June 2019

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

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 24 September 2017. The delegate refused to grant the visa on the basis that she was satisfied the applicant could obtain protection from the Royal Malaysia police and other Malaysian authorities such that there would not be a real risk that he would suffer significant harm from gangs in Malaysia who he alleged had targeted and injured him before he left Malaysia.

3. This case was constituted to a member and listed for hearing before the member on 10 November 2021, 20 December 2021 and 6 April 2022. The matter was reconstituted to another member and listed for hearing on 20 July 2022 and 12 September 2022. The applicant appeared before the Tribunal on each occasion to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Indian) and English languages. The applicant was represented in relation to the review.

4. For the reasons outlined below I have concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. In accordance with Ministerial Direction No.84, [1] made under s 499 of the Act, the Tribunal must take into 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.

    [1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.

11. The most recent report from DFAT is the Country Information Report for Malaysia dated 29 June 2021. I have considered this report, together with other relevant country information. I have also considered the Department guidelines to the extent that these are relevant to the consideration of the decision under review. Generally, these guidelines contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. There is little by way of policy and the guidelines were of limited assistance in the circumstances of this case. My analysis of the country information and any relevant guidelines are set out later in these reasons.

    PROCEDURAL BACKGROUND

12. The applicant lodged a review of the decision of the delegate with the Tribunal on 15 February 2018. He lodged his application and provided a copy of the delegate’s decision, together with the notification. The documents provided by the applicant in support of his claims comprised of newspaper articles about gangs in Malaysia, his birth certificate, his national identity card and passport, details of a course completed by him and a report on a form which was date stamped 2 June 2016, relating to an injury sustained by the applicant.

13. The Tribunal was notified in October 2018 that the applicant was to be represented in the review by Mr Mahalingam Sutharshan of Parish Patience Immigration Lawyers.

14. The matter was constituted in September 2021 and the matter was first scheduled for hearing on 12 October 2021. In the hearing invitation dated 27 September 2021 the applicant was requested to provide a written submission setting out all claims made and maintained by the applicant by 5 October 2021. It was also requested that the submission should be accompanied by a signed declaration from the applicant and that the submission had been read and explained and that it correctly and completely presents the claims. It was also noted that if a witness was proposing to give evidence at the hearing, a witness statement should be provided by 5 October 2021.

15. On 30 September 2021 the applicant’s representative made a request that the hearing be postponed to a date after 25 October 2021 because the applicant was scheduled to have his second COVID-19 vaccination in coming weeks. The Tribunal agreed to this request and by letter dated 11 October 2021, rescheduled the hearing to 10 November 2021. On 3 November 2021 the applicant provided a statutory declaration sworn on 2 November 2021. There were no further submissions provided and the hearing proceeded on 10 November 2021 by MS Teams video.

16. The hearing was not completed on this day and was rescheduled for a further hearing on 20 December 2021. In response to the hearing invitation, the applicant lodged a hearing response indicating that they will advise in due course on whether any witnesses would be giving evidence at the hearing. The applicant did not provide any further documentation. By letter dated 2 December 2021, the Tribunal requested that if any further witnesses were proposed to give evidence, the applicant should provide contact details of the witnesses and their witness statements by 13 December 2021. No further witness statements were provided but prior to this hearing, the applicant provided to the Tribunal documents in support of his claim, being a police report regarding an accident that was said to have occurred in 2015, together with an English translation, a copy of a panel doctor assessment report regarding the applicant’s injury, together with an English translation, photographs relating to scars said to be caused by the accident and a medical report from the applicant’s social worker.

17. The hearing proceeded on 20 December 2021 in-person. The matter could not be finalised and was adjourned to a date to be fixed. A further hearing was scheduled on two occasions, 7 March 2022 and 14 March 2022 however both hearings were postponed as the presiding member became unavailable on the first occasion and there were no available interpreters on the second occasion.

18. A further hearing was then scheduled for 6 April 2022. The interpreter participated in the hearing remotely by MS Teams. There were difficulties in communication between the applicant and the interpreter. The presiding member provided the audio recording of the hearing to the applicant at the request of the applicant’s lawyer. In a statutory declaration dated 2 May 2022, the applicant raised concerns about the interpreter, and in particular, adverse comments made by the interpreter. The applicant also provided a response to concerns raised by the previous presiding member at the hearing on 6 April 2022. Following consideration of this material, the presiding member requested that the matter be reconstituted to another member.

19. The matter was reconstituted to me and the applicant was notified of this by letter dated 27 May 2022. I obtained the written transcripts for each of the hearings and provided this to the applicant. The written transcript wrongly recorded me as the presiding member at the second hearing on 20 December 2021.The corrected transcript was subsequently provided to the applicant on 20 July 2022.

20. The matter was listed for an in-person hearing on 20 July 2022. In the hearing invitation, the applicant was again requested to provide a written submission setting out all claims made and maintained by the applicant by 13 July 2022, accompanied by a signed declaration from the applicant that the submission has been read and explained and that it accurately and completely presents his claims.

21. At this hearing, the applicant expressed concerns about the last hearing before the previous presiding member on 6 April 2022. Given the confusion in miscommunications in relation to this hearing, I determined not to have regard to the transcript of the hearing and advised the applicant, and his lawyer, accordingly at the opening of the hearing. The applicant gave evidence, and he was questioned about his background and the claims made in his application. This evidence was not completed, and the matter was rescheduled for a further hearing. There were no apparent difficulties with communication and the interpreting of evidence during the course of this hearing, which was assisted by the fact that the interpreter was present in-person during the hearing. Efforts were made to reschedule a hearing to a time so that the same interpreter could be obtained. This was with the express agreement of the applicant and his representative. The matter was accordingly relisted for a further hearing on 29 August 2022. However, the interpreter became unavailable on this day, thus the matter was subsequently listed for hearing on 12 September 2022. Even though the interpreter from the previous hearing was not available on this day, the matter proceeded with a Tamil (Indian) interpreter who was present in-person during the hearing. There were no apparent difficulties with communication and the interpreting of the evidence during the course of this hearing and no issues were raised by either the applicant or his lawyer.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this case is whether Australia owes protection obligations to the applicant, either because he is a ‘refugee’ within the meaning of the Act or because he is owed complementary protection under the provisions of the Act. The applicant was represented but his lawyer did not provide written or oral submissions in support of the claims, although further evidence was provided before the hearing. In the absence of written submissions outlining claims, I have made my assessment on the basis of the claims made in the application and in the written and oral statements provided by the applicant prior to and during the course of the hearing.

23. In essence, those claims are to the effect that the applicant fears that he will face serious or significant harm on his return to Malaysia by members of a criminal gang, known as Gang 36, who he claims attacked and injured him in 2015 and 2016. It is claimed that the reason for the attacks was his relationship with a sister of one of the members of the gang who objected to the relationship because the applicant was an Indian Tamil Hindu and the sister of the gang member is a Muslim. He also claims that he was associated/member of Gang 36 and that the gang members will harm him on his return because of fear that he knows too much about the gang. It is further claimed that the government and authorities would not protect the applicant from harm, that he will be targeted on his return and that he may be the subject of scrutiny by authorities because of his scarring and association with Gang 36.

    Outline of evidence

24. The written or documentary claims provided by the applicant can be summarised as follows.

25. In an online application for protection submitted on 24 September 2017, the applicant made the following claims:

    ·He was born in the province of [state] in Malaysia in [year];

    ·His family, including his mother and brothers, live in [state] in Malaysia;

    ·At the time of the application the applicant was living in [suburb] and he was assisted in the preparation of the application by a person known as [Mr A]. It is recorded in the application that the applicant was residing at the same address as [Mr A];

    ·The applicant noted his previous residential addresses as [state] from [year] to December 2011, [state] from January 2012 to June 2013, [city] in the province of [state] from July 2013 to October 2015, [state] from September 2015 to December 2016, [island] for about six months in 2017 and [state] prior to coming to Australia in June  2017;

    ·The applicant arrived in Australia on [day] June 2017 on a visitor visa; and

    ·The applicant set out his previous employment history, as a kitchen hand in 2011 in [state], as a cook from January 2012 to June 2013 in [state], as a cook with the [hotel] [city] Resort from June 2013 to September 2015, unemployed from September 2015 to December 2016, noting that during this period the applicant was involved in an accident and was recovering and was financially supported by his family, and employed as a cook at the [hotel] on [island], [state], between January and June 2017.

    ·In response to the question about why the applicant left Malaysia the applicant included the following information:

    After I leave school I did short cooking course as I like cooking . I worked in [city] before I got a job in another state called [state] [removed]. I went there to work and rent a room. When I was living there I made friends with some Indian boys and all of them were members of Gang 36. They said if you want protection must join the gang and I also join the gang. I am not a gangster but they force me to follow them. Sometimes I just run away and they always scold me or beat me up for being scared. They also tell me that I cannot leave the gang and sometimes force me to do things that I dont like . In the gang I had a good friend and he was my mentor and always fight for me if I was bullied. I fell in love with one of the member's sister and the brother was angry with me . One day they came to my work place and hit me badly threatening to kill me but my friend helped me and I escaped and left to another state [state] where I got a job in the hotel . I was happy and thought they would forget it but the gang have members everywhere and they traced me . They started harassing me and my family for money . My mother gave rm7000 to them so that they stop harassing but they didn’t stop. They also harass me at my work place which is a 5 star hotel . One day they cornered me after work and started asking for money . I was on my motorbike and try to escape from them and met with an accident . They thought I was dead and left the scene but I was injured . I was hospitalised and recovery took more than a year . I had serious injuries in my stomach and intestines and fractured my leg . I went back to my hometown and lived with mum. While we were there ,there were some members who harassed us but they knew I was unfit to work and no money. So they didn’t do anything serious . When I got better I was afraid to work anywhere as they have members even in the political party and some police officers . When I got a job to work in an island off the coast of [state], I took it start of 2017 thinking maybe I will be safe. I was working there until my friend told me that they found out about me and they started harassing my mother again . Another friend from the gang died and it was believed that the gang killed him . My mother was terrified to hear the news and decided that I should get away as far as I can . This is when I decided to come to Australia.

    ·In response to the question of the type of harm that the applicant had experienced and why the applicant had been harmed, the application included the following information:

    They hit me and threatened to shoot me if I don’t give them money. The 36 gang members - I went into their blacklist when I fell in love with one of the members sisters that made them angry. After that I ran away. So now they ask me money for protection, each member who trace me threatening to inform the head member. Everyone knows that he will shoot to kill.

    ·The applicant responded that he did not seek help within Malaysia after the harm was inflicted and the reason why he did not was expressed as follows:

    I have been warned that if I try to go to the police they will harm my mother and brother and even myself. We are so afraid of this gang in Malaysia as everyone knows they have connection in big places police and politicians are their friends.

    ·In response to the question as to why the applicant was concerned he would be harmed if he returned, the following information was provided:

    They will keep harassing me and eventually kill me by beating me up or shoot me. I am unable to live a normal life as I am continuously fearing for my life. They are everywhere even in the government bodies and authorities. It is very hard to make a living without coming to their knowledge.

    The police think all Indian boys are gangsters and they treat innocent boys like criminals. It is known fact.

    This gang is so widespread that they get the information and come looking for you.

1. As already noted, there were no written submissions provided by the applicant or on his behalf by his representative, but he provided a statutory declaration sworn 2 November 2021, said to be a statement in support of his application for a protection visa review application.

2. The applicant noted that there were some errors in his application. He stated that there was an error in the record of his employment history and that he finished work at the [hotel] in September 2014 and opened his own restaurant in [city] from 2014. The applicant also stated that he was kept in “illegal detention” for three days by Gang 36 in [state] and that after his release he went to [city] and then immediately to [state]. It is noted that he stayed in [state] for six months and after that moved back to [city]. It is further recorded that in November/December 2015 he lived in [state] and stayed there until April 2018 and that from April to May 2018 he went to [city] and from there came to Australia. [As the applicant arrived in Australia in 2017, it is apparent that the reference to 2018 is an error that should be a reference to 2017].

3. The applicant stated that he decided to open his own small restaurant called [name] in September 2014 in[city]. He stated that he needed to pay a monthly ransom to the gangs and that in his area Gang 36 was ‘the famous gang which had networks in other areas of Malaysia’. According to the applicant, many Indian and Chinese young people joined the gang, and he became part of the gang. They used his restaurant as a meeting place to discuss their business and dealings with drugs. The applicant further stated that as a result of his association with them, the police would come and harass him and that his mother would pay money to have him released.

4. The applicant stated that he met [Ms A], who was a sister of one of the gang members, and that they continued their relationship discreetly. [Ms A]’s brother found out about the relationship and became furious because it was an interfaith relationship. He and his family became very angry and because he was one of the leaders of Gang 36 in the area, he and his gang considered the applicant as a ‘traitor’ who destroyed the honour of their gang members. An interfaith relationship with a Muslim girl was considered a serious matter and as a result of this relationship, the applicant was threatened, beaten and attacked by Gang 36. The applicant stated that he decided to go to [Ms A]’s house to ask her parents for consent to marry her. When he went to [state] to meet with [Ms A]’s family, her brother and his gang, abducted him in a car and kept him in an unknown place in [state]. They took his wallet and beat and tortured him in a room. The applicant begged another gang member to give him his phone so he could speak to his mother to pay this gang member money so he could be released from detention. This gang member said that if the applicant gave him 7000 Malaysian ringgit he would help. The applicant’s mother promised to give him the money and as a result the applicant was allowed to escape.

5. After the applicant escaped, he went to live in his aunt’s place in [state] where he stayed for six months. He returned to [city] at the end of that time. While the applicant was living in [city], he commenced work in a hotel called [name], being a five-star hotel. The applicant stated that [Ms A]’s brother and his friends continued to intimidate him and on [day] October 2015, when he was on his way from work to home at around 1pm, gang members planned an accident to kill him. As a result of this accident, the applicant states that he was seriously injured and was admitted to [city]Hospital in [state] where he stayed for three weeks. Because the injury related to his workplace the applicant was able to obtain compensation.

6. After he was released from hospital, he had to go to hospital for 2 to 3 days in a week for further treatment. His family decided to send him to [state] to his aunt’s house. The applicant also stated that he was concerned that he would be targeted by the gang members because he had inside information about their gang activities. The applicant stated that he decided to leave the country and applied for a visitor visa in June 2017, stating that he initially wanted to apply for a student visa as it was originally his intention to complete his studies and look for a work-related visa in Australia. After meeting some Sri Lankan boys at a restaurant in Australia he was given information about obtaining a protection visa, which he subsequently applied for.

7. The applicant stated that he heard from his friends that [Ms A] was married due to pressure from her family, but her husband had left her after hearing about her relationship with the applicant. The applicant further stated that people had made false statements about their relationship, namely that they had had sexual intimacy and [Ms A] had become pregnant. The applicant stated that relatives of [Ms A] and Gang 36 believed her marriage life was destroyed because of the applicant. He said that he was informed by friends that the members of the gang would seek revenge against him as a person who destroyed their honour and their religious values.

8. The applicant stated that he feared if he returned to Malaysia ‘now and in the foreseeable future’ that he would face harm due to his previous interfaith relationship with [Ms A] and that Muslim religious extremists would consider him as a person who has destroyed the honour of Muslim family and that his death was the only thing that would restore honour and dignity. He was also concerned that due to his previous association and alleged membership with the criminal Gang 36 that he would be considered as a traitor who deserved the death penalty. He stated that he was concerned about his Hindu religion and Tamil ethnicity. There was a further claim made by the applicant as follows:

   Due to my previous association with the criminal gang and my scars in my body, the authorities will consider...

9. It is difficult to understand the nature of this claim as it was incomplete but in paragraph 15 of his statement the applicant stated that he would not be able to get state protection because Malaysian authorities would either be unwilling or unable to protect someone from a criminal gang such as Gang 36. He was concerned that Gang 36 had a presence throughout Malaysia and that he would not be able to be protected.

10. The applicant provided further documents in support of his claim on 13 December 2021.

11. He provided an English translation of a Royal Malaysia Police Report dated [day] October 2015. This police report was from the district of [city] and stated as follows:

    On [date] at approximately 11:30 AM, I was driving my car, number plate [removed] from [name] Hotel [removed] towards  [city]. At that time, when I arrived at [place], suddenly a motorcycle, uncertain of number plate, on the left side of the road entered my lane and stopped suddenly to enter the right junction, I braked and swerved to the left then my car skidded to the left and hit a signboard and into the bushes on the left side of the road. In that incident, I tore my intestine and was treated at [city] for 6 days. Damage to my car was a broken front bumper, front headlights damaged on both sides, dented back bumper, front fender damaged on both sides, damaged front windscreen, dented front bonnet, other damages and unsure of estimated cost of damage. This is my report.

12. The applicant also provided an English translation of a document headed ‘Panel Doctor Assessment (Permanent Disability)’ undated which attached the handwritten form provided by the applicant to the Department of Immigration and Border Protection at the time of his application. This form was apparently dated 1 June 2016. The Assessment refers to the applicant as the insured and notes that the date of work accident was [day] October 2015. It is further noted that the panel of doctors have examined the insured on [day] June 2016 and confirmed that the insured suffered permanent disability due to ‘intra-abdominal injury with small bowel mesenteric tear. Reporting done’. It was noted that the disability was permanent but the applicant’s inability to work was temporary.

13. The applicant also provided a letter dated 10 December 2021 from [name], an accredited mental health social worker. It is noted that the applicant was referred by his general practitioner in November 2021 to provide ‘psychological intervention for worsening symptoms of depression and anxiety’. The letter notes as follows:

    It is noted that he suffered severe physical and psychological trauma that had significantly impacted his mental health. He admitted to having flash backs of the trauma and reported waking up feeling distressed and agitated. He also admitted to consuming alcohol to self-medicate to manage his sleep, anxiety and agitation. On Mental status examination, he displayed symptoms of anxiety and depression including poor concentration, hyper vigilant, agitation, feelings of hopelessness and helplessness. He demonstrated extreme fear for is safety if he were to be deported back to Malaysia. From the details that he provided during the sessions and in his Statutory Declaration, it could be concluded that he is at real significant risk harm if he returns back to Malaysia. Currently I am seeing him fortnightly and planning to refer him back to his GP to refer him to a Psychiatrist for review and medication…

14. The photographs provided by the applicant revealed scars on his body.

15. The applicant provided a statutory declaration sworn on 2 May 2022 setting out his concerns in relation to the interpreting during the hearing on 6 April 2022. He noted that there were differences between Sri Lankan Tamil and Indian Malaysian Tamil. The applicant submitted that there were ‘serious issue regarding the total interpretation during the hearing’ and he objected to what he believed were adverse comments made by the interpreter during the hearing about his personality. The applicant also explained that the reference in his application about his accident on a motorbike was incorrect. In response to issues about the police report that was lodged, the applicant stated that he told information to his friend who wrote the police report and passed it on to the police after the accident and while the applicant was still in hospital.

16. At the first hearing in November 2021, the applicant gave evidence that he was assisted in preparing the application by a lawyer but his evidence in this regard was confusing because he originally said that he prepared the application himself and then said that he wrote down all that had happened to him and that it was converted into English. He then later confirmed that he discussed what had happened to him with the lawyer who wrote it down, which was subsequently clarified to mean that the lawyer typed the information into the online application form. The applicant said that he came to Australia to continue his education but after coming here, the people who said they would assist him with this did not do so, so he decided to make an application for a protection visa after speaking to some Sri Lankans. According to the applicant, he came to live with the owner of the restaurant where he worked, being [Mr A], who the applicant referred to as ‘uncle’. The application was actually filled out by a lawyer and it was subsequently confirmed in later evidence before me that this lawyer was a friend of [Mr A]. He paid the lawyer $500 to complete the application but he could not recall his name.

17. The applicant was asked about the statement made in his statutory declaration that he had identified errors in his application. He said that he became aware of those errors after he thoroughly read the statement. He discovered these errors after about two or three weeks of lodging the application but did not notify the Department of the errors because he did not know what to do. The applicant was asked questions about discrepancies between the information provided in the application and information provided during the hearing. In his evidence to the Tribunal he said that he started working at the [removed] hotel the end of 2011 and that he worked there for five years. In the application it is stated that the applicant worked at the [removed] hotel from June 2013. The applicant did not respond to this question during the first hearing.

18. At the second hearing in December 2021, which was in person, the applicant was asked about media articles provided by him from various websites about gangs in Malaysia. The applicant said that these articles did not relate to things that had happened to him and confirmed that they were articles about what was happening with gangs in Malaysia.

19. The applicant was referred to the information in his statutory declaration about the restaurant that he opened and operated from 2014, as referred to in paragraph 2 of his statutory declaration sworn on 2 November 2021. The applicant was asked why this information was not included in his application for protection. The applicant responded that he did not know that it was significant to mention but it was not something that he could forget happened in his life. The applicant was asked whether there was anything further that he wanted to say about why he had not included this information in his application and the applicant said that it was around about this time that he started seeing a girl and this was a time when he lost everything. This response did not explain why the applicant had not included the details of working in his own restaurant in the original application and the presiding member then noted that there were a number of discrepancies in the application which made her question whether his claims were genuine. The applicant raised a concern about the interpreter and it was noted during the hearing by the previous member that she had requested the audio recording of the previous hearing to be provided to the applicant and his representative to identify any concerns about the interpreting. There was a lengthy discussion about this, and the applicant’s lawyer responded as follows:

    Due to the difference in the accent of the interpreter, because he is not speaking the Indian Tamil, so that because of the accent difference he couldn’t understand sometimes the exact meaning. But in relation to the meaning itself, it’s not an issue.[2]

    [2] See transcript dated 20 December 2021, pp 22 – 25, commencing T3.

20. The thrust of this evidence and submissions by the applicant’s lawyer is to the effect that the applicant may have misunderstood some questions because of the interpreter’s accent but did not disagree with the substance of the interpreting at the first hearing.

21. The applicant was asked about his relationship with the Muslim girl. He said that he first met the girl when he opened his restaurant in 2014. He said the girl was a sister of one of the members of Gang 36 and he met her at his restaurant because members of the gang came to his restaurant to have meals. He said there were two problems arising from his dealings with Gang 36. First, there were issues because of his relationship with a girl and, secondly, members of Gang 36 came to his restaurant to exchange drugs. The applicant was asked why the gang member’s sister would come to his restaurant which was four hours away from where she lived and he responded that she came with her brother.

22. The presiding member asked the applicant whether he had an accident on a motorbike or whether he was in a car. The applicant said that he was in a car. He was then asked why he had written in his application that the accident occurred while he was on a motorbike. The applicant’s response was unclear. The applicant stated that the accident happened about six or seven months before he was kidnapped by the members of the gang when he went to [state]. The applicant stated that the accident happened on [day] October 2015. The applicant had provided a police report to the Tribunal before the second hearing and he was asked by the previous presiding member why this report was not provided to the Department when he made his application for protection. The applicant said that he did not provide this report because he did not know what documents to provide at the time that he made the application. The applicant was also questioned about the assessment made by the panel doctors. The applicant was asked why this referred to a workplace accident. He was further questioned about whether this accident had anything to do with Gang 36. The applicant responded that this accident was related to the gang and the reason why he did not mention this in the police report was that he did not want to risk his life by stating this. He stated that he was concerned about the gang members and that they would kill him and had marked his house with red paint and threw stones at his house. He said he had reported this to the police but they had taken no action.

23. The applicant was questioned about the kidnapping incident by the gang members. He said that they beat him, took photos and left him naked. The applicant was asked whether there was anything else that happened to him from gang members and he said that the gang members were monitoring him and they punctured his car tyre. He said that they kept watching him for about a month in around September 2015.

24. The applicant was asked why the gang would still be looking for him since he had been in Australia for around 4 and a half years. The applicant responded that he knew they were still looking for him and that they were going to his mother. The applicant said that he would be unable to relocate to another part of Malaysia to live because Gang 36 was a very big gang. The applicant said that the girl he loved was divorced from her husband and that she became pregnant to him. When the applicant was asked how he found out about this he said that his friends were telling him. He also said ‘they’ (meaning his friends) told his mother.

25. I conducted two further hearings with the applicant and while I had regard to the evidence given by the applicant in the first two hearings and not the third for the reasons already explained, I found that the previous evidence to be confusing. I therefore sought to clarify a number of issues raised by the applicant in his statement, his application for protection and during the first two hearings.

26. The applicant said that he had a mother and two siblings who were still alive. His older brother lived with his mother in [city] and his younger brother lived in Singapore. He said when he first came to Australia he worked as a chef in [suburb] and then at [suburb]. He was now working as a packer. He said that he spoke to his mother regularly but not his brothers. He had a fall out with them after he opened his restaurant in 2014. His brothers were angry that he had not listened to them and there had been problems when he opened his restaurant. His mother was the only one who helped him with the restaurant. He said that he came to Australia because his life was ‘at risk’ and because he wanted to pursue his studies. He was advised to make a protection visa application once he arrived. He explained that he and the lawyer, who was a friend of [Mr A], sat at the computer and the lawyer typed his words into the application in English while he was telling him his story.

27. The applicant said that although this job was included in his application, he had not worked at a pizza place in [state]. He worked at the [removed] hotel for two years. His restaurant opened in 2014 and was open for about six months. He said that it was not included in the application that he had opened up his own restaurant, but he could not explain why. The applicant said he no longer had contact with his ‘uncle’. He did not know who the lawyer was.

28. The applicant said that he made friends with Gang 36 when he was living in [city]. The applicant said there about 20 members in the gang. He socialised with them. The applicant was asked whether they were involved in criminal conduct and he said he did not know although he said that they told him ‘if you want protection you will have to join the gang’. He said this is why he joined the gang. He explained that ‘protection’ meant that he would not be hurt by other people and he would not have problems in running his business. He said that he initially did not know whether they were undertaking criminal activities but as time went on he realised they were.

1. Because there was confusion about the applicant’s history before he came to Australia and there were inconsistencies in the application, in his statement and his evidence, the applicant was questioned about these matters. He said that he was qualified in cooking in 2011. He said that he worked at the [removed] hotel from about 2012 and worked there for about two years, towards the end of 2013, early 2014. He set up his own restaurant from early 2014 and began trading in about September 2014. He operated the restaurant for about six or seven months and closed down in about March or April or possibly as late as June or July 2015. He said that he closed down because the members of Gang 36 were harassing him and beating him. The applicant said he had joined the gang when he opened the restaurant. Members of the gang came to eat at the restaurant on a regular basis.

2. One of the members of the gang had a sister named [Ms A]. He met [Ms A] at the restaurant and fell in love with her. The applicant was again asked why [Ms A] would travel four hours to attend his restaurant with her brother when she lived in [state]. He said that many people would come from [state] to go to the casinos in [city] and he believes that she and her brother stayed with family friends nearby. He said that he met her in person on around six occasions and spoke to her by video frequently. He said that her brother found out about the relationship and [Ms A] told him that her brother had injured her finger when he found out.

3. When he went to [state] to ask for her hand in marriage, he was detained by members of the gang for three days. They assaulted him but gave him food. He had a shoulder injury and a cut on his eye. He did not know why they took photos of him while he was in detention. He spoke to one of the gang members who was a money lender. The money lender told him that he would be released if he paid money to him. The money lender allowed him to call his mother and she paid 7000 ringgit to this person. The applicant was able to escape. He returned to his mother’s house then went to live with his aunt in [state]. He returned after six months. The applicant said that he did not go to the police because they would not protect him.

4. The applicant was asked why he did not mention he was kidnapped in his application for protection. He said that he did not mention this because he had just arrived in Australia and did not know what to include.

5. He returned to [city] in late 2015 got a job at the [name] hotel, which was located in [city]. He said that he finished work one day and was driving his car when another car smashed into him from the left-hand passenger side. His car crashed and lost control. He believes the people in the car were Tamils. He said they drove away and left him there. Bystanders came to assist, and he was taken to the hospital. He stayed at his auntie’s place after he left hospital and did not go back to work immediately while he recovered. The English translation of the police report provided by the applicant was read to him. The applicant was asked why his evidence about the accident was different from the information contained in the police report. The applicant said that the information given to police was given to them by his mother and that his mother did not want to include any detail about the gang members to protect him. I note this is inconsistent the information contained in his statutory declaration of May 2022 where he stated that a friend completed the complaint on his behalf. The applicant was asked why he did not include this detail in his application for protection. He said he did not know.

6. In his application for protection the applicant stated that one day members of Gang 36 cornered him and started asking him for money and that he was on his motorbike and tried to escape from them and then met with the accident. This is different to the story given by the applicant in his statement sworn on 2 November 2021 and in the evidence he gave to the Tribunal. The applicant was asked whether what was included in his application happened. He said that it did not and could not explain why this information was included in this application.

7. The applicant was asked why he was still concerned about harm from Gang 36 after so many years and in circumstances where there was country information to the effect that the police had apparently taken strong enforcement action against the gang so that they had been ‘smashed’. The applicant said that he believed they would still be looking to him because of what had happened to [Ms A] and because he knew their secrets. He believed that if he returned to Malaysia he would be killed.

   Relevant country information

8. The applicant provided media articles with his application for protection about gangs operating in Malaysia. The media articles included an article dated 7 September 2013 titled ‘Wanted gang leaders names revealed as police raids detain over 4000 criminals’. This article described the action taken by police to combat criminal gangs. The article referred to number of gangs, including Gang 36. A further article provided by the applicant was dated 22 September 2017 and referred to the gunning down of the right-hand man of millionaire drug lord and leader of Gang 36 by a rival gang. Further articles included an article in the Star online headed ‘Gang 36 one of the most feared in the nation’; a further article headed ‘Gang killings on the rise in KL’, an online article dated 10 September 2012 about an anonymous letter to the Prime Minister warning about Indian gangs, and an article on Retamil titled ‘Gangsterism and Malaysian Indians’ and further articles of similar effect and content about criminal gangs in Malaysia.[3]

   [3] Gang member survives ride-by shooting’ dated 3 March 2015, published by Malaymail online; ‘Indian Youth Gangsterism, a source of concern in Malaysia’ dated 23 November 2012, published by Global Organization of People of Indian Origin; ‘Gang killings on the rise in Klang over drug trade war’ dated 16 February 2015, published by Malaymail online; ‘Gangsters financed by VIPs: Malaysian police’ dated 9 February 2017, published by Todayonline; ‘Singaporean fighter appears in ISIS video calling for jihad, ISD aware of his activities: MHA’ dated 24 September 2017 published by Todayonline.

9. The applicant was questioned by the previous Tribunal member about these articles, and he said that none of these articles specifically related to him but rather had been provided to the Department (and to the Tribunal) to illustrate the problem of gangs in Malaysia, particularly Indian gangs.

10. According to the DFAT Report dated 29 June 2021, Malaysian media citing official police statistics in early 2018 reported that over 100 illegal gangs, with an estimated 9000 members, operated in Malaysia. It is further noted that 65 were reported to be Chinese Malaysian, 20 were Malay and 18 were Indian Malaysian run gangs. While DFAT reported that they were not able to verify these statistics, sources reported that many street level gang members were Indian Malaysian is that high level crime, including drug trafficking, was more typically associated with Chinese Malaysian gangs.[4]

    [4] Refer DFAT Country Information Report Malaysia are dated 29 June 2021 at [2.47].

11. DFAT also reports that Indian Malaysians constitutes the third largest ethnic group in Malaysia.[5] It is also reported that poverty and lack of access to tertiary education opportunities can lead to members of the Indian Malaysian community becoming involved in criminal activities, colloquially known as ‘gangsterism’, which exposes them to violence. DFAT assesses that Indian Malaysian face low levels of official discrimination, but that Indian Malaysians involved in gangsterism face a moderate risk of violence, potentially from other gangsters and from the police and more likely due to their activities and on the basis of their ethnicity.[6]

    [5] Ibid at [3.13].

    [6] Ibid at [3.17] and [3.20].

12. DFAT reports that law enforcement entities in Malaysia operate at both federal and state levels. It is reported by DFAT that local and international sources consider the Royal Malaysia police to be a ‘professional and effective police force’, although it is also noted that the quality of its members’ responses varies depending on the levels of training, capacity and engagement in corruption. It is further noted that the Royal Malaysia Police receive limited training, are among the lowest paid members of the Malaysian civil service and there is a high level of corruption.[7]

    [7] Ibid at [5.5] to [5.6].

13. While the applicant did not make a claim to fear harm as a returnee or as a failed asylum seeker, is relevant to note the DFAT report as follows:

    Many thousands of Malaysians enter and leave the country every day. People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return because of their absence. Authorities generally pay little attention to Malaysians who over-stay their work or tourist visas or breach visa conditions in other countries upon their return to Malaysia. Likewise, failed asylum seekers would be unlikely to face adverse attention, as the Malaysian government would not typically know the individual was a failed asylum seeker, although it is possible that some individuals might be questioned upon entry or have their entry delayed, particularly if their passport had expired while abroad. There is widespread media reporting on the issue of Malaysian nationals travelling to other countries and applying for asylum for the purpose of obtaining work rights. The International Organization for Migration (IOM) assists voluntary returnees, and Malaysian authorities cooperate with the IOM in these arrangements.[8]

    [8] DFAT Report at [5.37].

14. Further country information was identified in relation to Gang 36, being an online news article in The Sun dated 30 November 2020. This news article was headed ‘Police smash Selayang’s notorious Gang 36’. This article was drawn to the applicant’s attention because it suggested that the police had busted Gang 36 Selayang after arresting its leader. The applicant stated that there were a number of regional branches of Gang 36 and the fact that the Gang 36 Selayang had been busted by police did not mean that the gang that he was involved with had been similarly impacted.

15. In summary, there is country information that supports the applicant’s contention about the presence of gangs in Malaysia and, in particular, the existence of a gang known as Gang 36. However, the country information also suggests that any potential for harm relates to the involvement in criminal activity and there is no evidence of a claim by the applicant that he was involved in criminal activity or that this is his intention on his return to Malaysia. Indeed, it is the applicant’s evidence that prior to leaving Malaysia, he attempted to avoid any contact with criminal gangs. The country information also suggests that the Royal Malaysia Police have been active in combating crime and there is no evidence provided by the applicant, other than an unsupported assertion to this effect, that he would be targeted by the police simply because he was a member of Gang 36 over seven years ago. It is also relevant to note that the applicant’s description of the role that he undertook was as a minor and somewhat unwilling gang member. The country information from DFAT also suggests that the applicant would be able to return to Malaysia without incident or adverse attention.

    Findings of fact

16. There are many inconsistencies in the information provided by the applicant in his written application, his written statements and his oral evidence.

17. Notably, there are inconsistencies between the account that he gives about his accident in October 2015, which I accept happened, and his written and oral evidence. This is a material event because it underpins his claims about fearing harm from members of Gang 36 if he returns to Malaysia.

18. The applicant stated in his application that he was cornered by members of Gang 36 and they started asking him for money. It stated that the applicant was on his motorbike and tried to escape from them and was met with an accident. In his statement dated 2 November 2021, the applicant said that there were errors in his application and what immediately followed this statement or number of dot points about his employment history and where he lived. It is not clear whether he is referring to the account of the accident in his written application when he says that there were some errors. In any event, the applicant sets out an account in paragraph 10 of his statutory declaration of the accident that occurred on [day] October 2015. He stated that he was on his way home from work and that gang members planned an accident to kill him and as a result of that accident he was seriously injured and admitted to [city] Hospital where he stayed for three weeks. This written evidence is not inconsistent with the more detailed account that the applicant gave at the hearing before me where he said that a car deliberately hit him on the left side, causing his accident and subsequent injury and hospitalisation. The applicant also said that he saw the people in the car and believe they were Tamils and that they left the scene of the accident.

19. However, this account is completely different from the account that is recorded in the English translation of the police report provided by the applicant prior to the second hearing before the previous Tribunal member. The account claimed to be given by the applicant in the police report sets out details of how the accident is said to have occurred. It is stated that the accident was work-related and that a motorcycle entered his lane and stopped suddenly to enter the right junction. It is further stated that the applicant swerved to miss the motorcycle and his car left the road. There is no mention of another car side swiping the applicant. When asked about why this account was different from the account given during the hearing, the applicant said that his mother provided this statement, not him because he was in hospital, and she did not want to refer to the gang. In his evidence to the previous Tribunal member, when questioned about this he said his mother provided the information. This is inconsistent with what the applicant stated in his statutory declaration of May 2022 and also appears to be inconsistent with the content of the police report itself. It is also relevant to note that the date the statement is said to be provided to the police was [day] October 2015, some eight days after the accident and that the police report notes that the applicant was the complainant who made the statement. This does not preclude the possibility that the statement to police was provided by third party but this would seem highly unusual.

20. When asked to explain why this was not included in the written application for protection, the applicant said that the ‘uncle’ and lawyer who assisted him in the preparation of his application typed the information into the application after he told them his story. Even though the applicant said on several occasions when giving evidence that he told the story to the lawyer, he could not explain why this version of his account of the accident was so different from what he set out in his statutory declaration, in his evidence to the Tribunal and in the police report.

21. I accept that the applicant was involved in an accident in October 2015, from which he sustained injuries. Having regard to all of the information before me, I do not accept the evidence of the applicant at the hearing as to how he says the accident occurred. This evidence is materially different from the account included in the application for protection. It is inconsistent with the evidence contained in the police report and, while broadly consistent with the information included in his statutory declaration, the evidence contained in this statutory declaration about the accident was vague and did not include any of the detail provided by the applicant in the hearing. The applicant was advised by the Tribunal to provide details of his claims prior to the hearing and the lack of detail in relation to this incident, which was very different to the information included in his application, should have been the subject of a more detailed written account. The fact that it was not tends to undermine the account given by the applicant at the hearing. This, together with the other inconsistencies which are material in nature, impact the credibility of this account. I therefore rely on the evidence contained in the police report as an accurate account of the accident. I accept the police report and panel doctors’ assessment report are genuine documents recording a workplace injury sustained by the applicant in October 2015.

22. Section 423A(2) of the Act provides that if an applicant presents evidence in the application for review that was not presented before the primary decision was made, in making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the evidence was not presented before the primary decision was made.

23. In this case, the evidence about the accident was included in the application for protection and therefore was presented before the primary decision was made. The difficulty is that the account given in the application was completely different from the account given to the Tribunal and the account set out in the police report. The only explanation provided for this difference is that the applicant did not complete his application and he was assisted by others. He says that he told them the story and that the story was typed into the application. He cannot explain why the information in the application is so different from what he now says the evidence is about the accident. When asked whether his ‘uncle’ who assisted with the application was available to give evidence about this, the applicant, through his lawyer, advised that [Mr A] was not available and that he had not seen him for many years. Section 423A requires the Tribunal be satisfied that the applicant does not have a reasonable explanation as to why the evidence was not presented and if so, it must draw a negative inference about the credibility of the evidence. In circumstances where there is inconsistency, as opposed to a complete absence of evidence, drawing a negative inference as required under the section seems heavy-handed. Despite this, I have drawn a negative inference about the credibility of the applicant’s evidence in relation to the accident because of the overall inconsistencies in the evidence as outlined above.

24. The second incident referred to by the applicant at the hearing, which is relevant to the applicant’s claim to fear harm from Gang 36 if returns to Malaysia, is the kidnapping claim which he alleges took place before he closed his restaurant in March or April or possibly June or July 2015.

25. I accept that the applicant may have become involved with gangs but I am not satisfied about the credibility of the applicant’s claim that gang members detained him for three days because of his relationship with a gang member’s sister. This was a significant event and it is material to the credibility of his claims about fearing harm from Gang 36.

26. The applicant did not refer to the kidnapping in his application and recounted this incident for the first time in his statutory declaration of 2 November 2021. In his evidence before me, the applicant said that the October 2015 accident occurred about six or seven months before the kidnapping. This means that the kidnapping would have been in about March or April 2016. I accept that the applicant was confused when he gave this evidence because in his statutory declaration of 2 November 2021, he recounts details of the kidnapping before the accident in October 2015. I therefore accept what the applicant meant was that the kidnapping occurred about six months before his accident in October 2015. This means this incident is alleged to have taken place in about March or April 2015 which is consistent with his oral evidence about why he closed his restaurant. Despite this, I do not accept the credibility of this claim.

109.   Having regard to my findings about whether the applicant will face a real chance of serious harm if he returns to Malaysia, it follows that I am not satisfied he will face a real risk of significant harm on his return to Malaysia. Relevantly, I am not satisfied that there is a real risk the applicant will be targeted or harmed by members of Gang 36, Muslim extremists, government officials, politicians or the police on his return to Malaysia. I am also not satisfied on the evidence before me that there is any reason why the applicant would be subject to particular scrutiny at the airport or at all on his return to Malaysia by government officials, including police and politicians. Having regard to the country information from DFAT to the effect that it is not uncommon for failed asylum seekers to return to Malaysia and to be processed without incident, I find that this is likely to be the experience of the applicant on his return to Malaysia.

110. As such, I am not satisfied that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of his return to Malaysia. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

[10] Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

Conclusions

1. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

112. Accordingly, I am not satisfied that the applicant meets the criterion in s 36(2).

DECISION

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

J.L Redfern PSM
Deputy President