1808148 (Refugee) - [2024] AATA 2488

1808148 (Refugee) [2024] AATA 2488 (8 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1808148
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Jason Pennell
DATE:8 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 8 April 2024 at 12.42pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnic Chinese and fear of harm from criminal gang – demand for protection money for father’s business – business ransacked and applicant attacked – inaction by police – relocated then returned, with continuing harassment – credibility – delay in applying for protection – applied after onshore tourist visa refused – no supporting evidence provided – education and employment – passage of time – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Savvin v MIMA [1999] FCA 1265
Subramanium v MIMA (1998) VG310 of 1997
Zhang v RRT [1997] FCA 423

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 March 2018 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 18 December 2017. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in
s 36(2)(a) or s 36(2)(aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 23 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

APPLICANT’S CLAIMS AND EVIDENCE
Identity and Country of reference

The applicant claims that he was born on [Date]in [Location 1], Kuala Lumpur Selangor, Malaysia.[1] The applicant has provided a copy of the biodata page of his Malaysian passport to the Department.[2] There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant’s identity.
[1] Protection visa application form; Dept File No [Reference], Doc ID no 10188598, f 18.
[2] Applicant’s passport; Dept File No [Reference], Doc ID no 10188598, f16.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that he is a citizen of Malaysia and as such his protection claim will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.

Migration history

The applicant arrived in Australia [in] May 2017 on a UD-601 Electronic Travel Authority visa and has not departed since.[3] The applicant applied for a protection visa on 8 November 2017 which was invalidated on 22 November 2017.[4] The applicant then made a new application for a protection visa on 18 December 2017.[5] Prior to arriving in Australia, the applicant had never travelled to any other countries.

Applicant’s claims

[3] Applicant’s Movement Records; AAT file No 1808148 Dc ID: 11990830

[4] Protection Visa Decision dated 18 March 2018; AAT file No 1808148 Doc ID: 4158028

[5] Protection visa application form, Dept File No [Reference], Doc ID no 10188598, f 18.

The applicant claims for protection are detailed in his application for protection as follows (including spelling and grammatical errors):[6]
[6]   ibid
‘76.      Why did you leave that country/those countries?
I leave my country because I offended an extremely brutal triad in Malaysia, and I was intimidated and hurt me being a friend of the high school to help him from being hurt by them. They found me again and again and hurt me, I moved a lot of time to live in few week. They still find me and use weapon to attack me, I was again kidnapped by them but fortunate I fled to the crowd.
77. What do you think will happen to you if you return to that country/those countries?
If go back to my country, they will be able to find me and then intimidate me in the way to continue to intimidate me if I live my parent’s home they will definitely deal with my family.
78.      Did you experience harm in that country/those countries?
I am in my country wherever they fled where they will be someone to hurt me and intimidate me, they tried to take the hammer to hit my body and driving the bike with an iron bar beat my head, I almost a week more than three days frightened and hurt by them.
79.      Did you seek help within the country/those countries after the harm?
Yes. I have tried to ask my parents to take me to the police station for help, but that police only say they cannot help me because I have no real evidence to prove what is the triad and who has been intimidating has been hurt me, the police only call me be careful to go out.
80. Did you move, or try to move, to another part of that country/those countries to seek safety?
Yes. I have tried to move toother area of my country, but they are still able to find me and hurt me, they also told me wherever they go where they have gang to deal with me.
81. Do you think you will be harmed or mistreated if you return to that country(s)?
Yes. If I go back to my country, I will be the gang of black society will continue to intimidate me and hurt me, I go back to my country wherever I go where they will hurt my way to abuse my life, they are a group of no conscience. As well as the extremely brutal triad.
82. Do you think the authorities of that country/those countries can and will protect you if you go back?
Because I had been there before the police station, the police told me not to report because there was no evidence that the gang had hurt me and they had no reason to protect me, they told me to be carful.
83. Do you think you would be able to relocate within that country/those countries?
No. because no matter where I move, they are still able to find me and hurt me, they say I am in any of my country they can find me, unless I leave my country.
The delegate summarised the applicant’s claims as follows:[7]
·     He left Malaysia because he was intimidated and hurt by a brutal gang in Malaysia because he had offended them.
·     The gang attempted to hit him with a hammer and beat his head with an iron bar.
·     If he returns to Malaysia the gang will continue to intimidate him and his family.
·     He sought safety by moving to another part of Malaysia, however, the gang were able to find him and harm him.
·     The police were unable to provide him protection because he had no evidence of the harm from the gang members. They told him to be careful.

Applicant’s evidence.
[7] Protection Visa Decision dated 18 March 2018; AAT file No 1808148 Doc ID: 4158028

The applicant evidence was that he was born on [Date] in [Location 1], Kuala Lumpur Selangor, Malaysia.[8] The applicant speaks reads and writes Mandarin, Malay and English.[9] He is ethnic Chinese his religion is Buddhism.[10] The applicant is currently in a relationship in Australia. His girlfriend is ethnic [Ethnicity] and an Australia permanent resident. She has a child who is approximately [Age] years old.
[8] Protection visa application form; Dept File No [Reference], Doc ID no 10188598,
[9] ibid
[10] ibid
The applicant evidence was that his parents continue to live in Kuala Lumpur, Malaysia. The applicant father works as [an occupation 1] and his mother works as [an occupation 2].
The applicant has [brother and sister] who both continue to live in Kula Lumpur Malaysia. The applicant’s brother works [doing work task 1] and his sister is a school student.
The applicant evidence was that he attended school in Kuala Lumpur. The applicant claimed that he attended primary and middle school at SJK [Name 1][11] and high school at SMJK [Name 2].[12] The applicant evidence was that he completed school but did not attend University or College.
[11] ibid
[12] ibid
After school the applicant worked as [an occupation 3] for approximately 6 months at a [workplace 1] known as [Workplace name] in [Suburb], Lula Lumpur. In addition, he worked part time as [an occupation 4] for around 6 months [doing job task 3] in [Location 2], Kuala Lumpur, Malaysia. The applicant’s evidence was that after 6 months he moved to Australia due to threats he was receiving from gang members of a Gang known as ‘[Gang name]’.
The applicant evidence was that when he was about 13 years of age, he would help in [a workplace 2] in Kuala Lumpur, that was owned and operated by his father. The applicant claims that approximately 6 members of the Gang [name] would come to the shop and demand that his father pay protection money. The applicant’s evidence was that his father initially agreed to pay them the money, although he did not say how much his father paid to the gang members.
The applicant evidence was one day 3 or 4 members of the gang came into the shop and ordered a ‘table full of [product].’ During the order, they asked for payment of the protection money. The applicant claims that because the [workplace 2] was not trading well the applicant’s father refused to pay the protection money as demanded. As a result, the gang members overturned the table spilling the [product] onto the floor and burning the applicant’s arm. In addition, another 3 members of the gang went to the shop and smashed the interior of the shop.
The applicant evidence was that he went with his other to the police to report the shop had been smashed by the gang members. The applicant claims that the police were not willing to help. The applicant claims his mother said to him that the police would not take the case because they take bribes.
The applicant evidence was that the gang members led by a person known as [Mr A] then went ot his family’s home and smashed his father motorcycle and their home. As a result, the applicant and his family had to move to Ipor. The applicant evidence was that while he was living in Ipor he and his family were not threatened by the gang members. However, he continued to attend the same school in Kuala Lumpur. His evidence was that his mother would drive him to school each morning, go to her [work task 2] job and then pick him up in the evening before returning to Ipor. A round tip of approximately 2 hours. After a couple of year (when the applicant was 16 years of age) the applicant and his family moved back to Kuala Lumpur so that his father could find work.
Upon returning to Kuala Lumpur the applicant’s father commenced work as [an occupation 1] and has continued to work in several restaurants as an employee [occupation 1]. The applicant claims the gang members continued to harass him and his family when they returned to Kuala Lumpur. The applicant claims that they discovered their address and would visit them at home. In addition, he claims that he was harassed at school to the point that on one occasion his teacher was forced to drive him home. Finally, the applicant’s evidence was that after he left school, the gang members contoured to harassed him at work. As a result, he was forced to leave the restaurant at which he was employed. The applicant claims that they went to the police, but they did not accept the complaint.
The applicant claims that as an ethnic Chinese person in Malaysia he is subjected to harassment and discrimination and is a reason why he and his family have been targeted by the gang members.
The applicant claims that if he is returned to Alaysia he will be seriously or significantly harmed by the members of Gang [Name].

Applicant’s documents.

The applicant provided a certified copy of the biodata page of his Malaysian passport to the department. The applicant otherwise did not provide any further documents in support of his claims.

COUNTRY INFORMATION

The Tribunal in accordance with the Ministerial Direction No. 84 made under s 499 of the Act also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the DFAT Country Information Report Malaysia dated 29 June 2021 (the DFAT Report).[13]
[13] DFAT Country Information Report Malaysia 29 June 2021.

CONSIDERATION OF CLAIMS AND EVIDENCE
Credibility

When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[14]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[15]
[14] Section 5AAA of the Migration Act 1958.
[15] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70.)
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[16] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.
[16] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J at p 482.
If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[17] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

Delay

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

Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[18] Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be considered when assessing the genuineness or depth of an applicant’s fear of persecution.[19]
[18] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[19] Subramanium v MIMA (1998) VG310 of 1997.
In this case the applicant arrived in Australia on a UD-601 Electronic Travel Authority visa (‘the tourist visa’). He then made application for a FA-600 tourist visa on 30 July 2017, which was refused on 4 September 2017. The applicant made his initial protection visa application on 8 November 2017 (which was invalid) and his final application on 18 December 2017.

The applicant evidence to the Tribunal was that because of poor English he initially did not know how to make application for a protection visa application when he arrived in Australia. The applicant evidence that the cost of applying for a protection visa through an agent when he arrived was $3,500.00 which he was not able to afford. Subsequently, the applicant’s friend showed him how to make the application for protection visa.
Prior to traveling to Australia, the applicant applied for and obtained a tourist visa that allowed him to remain in Australia for a limited time. In circumstances, where the applicant had made an application for a tourist visa and claims he travelled to Australia because of a well-founded fear of persecution, the Tribunal does not accept that the applicant was unable to make a protection visa soon after his arrival in the country. On the applicant’s own evidence, he was aware he could make a protection application. Despite not being able to initially afford the cost of an agent, it was open for the applicant to make his own enquires into make a protection visa application. Having arrived in Australia due to a fear of being seriously or significantly harmed in Malaysia, it is reasonable for the Tribunal to expect the applicant to seek asylum soon as soon as possible after his arrival in Australia.
Therefore, based on the applicants’ delay in making his application for protection, the Tribunal, on an objective basis, has reservations about the genuineness and depth of the applicants’ fear of persecution[20] as claimed. Given his delay of around seven months after his arrival in Australia until the time of making his application for a protection visa, the Tribunal has placed little weight on the applicant’s evidence in relation to each of his respective claims.

Applicant’s refugee claim

A past fear of persecution is not sufficient

[20] Subramanium v MIMA (1998) VG310 of 1997.

A past fear may be a relevant consideration in determining if the applicant has a well-founded fear of persecution. However, the approach as applicable to s 5H(1) of the Act is whether the applicant is outside his country owing to a present, well-founded fear of persecution for a reason that falls within the scope of s 5J(1)(a) of the Act and he is unable or unwilling, due to the present and well-founded fear, to avail himself of the protection of that country.[21]

Relevant grounds
[21] Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [60], referring to Chan v MIEA (1989) 169 CLR 379, s 5H of the Act.

The applicant did not specifically claim a particular ground pursuant to s.5 J(1) of the Act upon which his claim is based. Nevertheless, it was open to the applicant to claim that he holds a well-founded fear of persecution if he is returned to Malaysia as an ethnic Chinese person and as a member of a particular social group (PSG) as a person threatened by gang members.
As to the applicant’s ethnicity as a Chinese person, in Calado v MIMA[22] when considering the expression of ‘race,’ the court stated that it was appropriate to consider the “popular” understanding of the term that accords with a person’s physical appearance, skin colour and ethnic origin.[23] The court stated:
‘There can be no single test for the meaning of the expression “race” but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins.’
[22] Calado v MIMA (1998) 81 FCR 450 at 455.
[23] ibid
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status also refers to the expression of ‘race’ in the broadest of terms stating:[24]
‘68. Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.
[24] Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ [68]; >
The applicant claims he is ethic Chinese and as a result is subjected to discrimination and harassment in Malaysia that amounts to serious harm. Based on the applicant’s evidence, the Tribunal accepts and finds that the applicant is an ethnic Chinese as claimed. As such, the Tribunal accepts that his claim falls within s 5J(1)(a) of the Act by reason of his race as an ethnic Chinese.
As to the applicant’s claim of a well-founded fear of persecution if he is returned to Malaysia by gang members, it was open to him to claim he is a member of a particular social group (PSG) under s 5J(1)(a) of the Act. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. Section 5L provides:
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.

To be considered a member of a PSG it is necessary for the applicant to share (or be perceived to share) an innate or immutable characteristic with each member of the group or it is fundamental to a member’s identity or conscience or distinguishes the group apart from society.[25] In this case the Tribunal has some doubt that being a victim of a gang constitutes a characteristic that can be described as innate or immutable or that each are a characteristic that is fundamental to the applicant’s identity or conscience as required under s 5L(c) of the Act. Nevertheless, the Tribunal does accept that it may be described as a characteristic that distinguishes the group from the rest of society. As such, the Tribunal accepts that the applicant is a member of a PSG as claimed.

Applicant’s well-founded fear

[25] Section 5L of the Act.

Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
In this case the applicant claims that he has been threatened with serious harm by a group of men who accused him of possessing a quantity of drugs which they demanded the return to them. He claims he was beaten and kicked by the men and threatened with death if he did not return the drugs.’ For the reasons expressed below the Tribunal has serious concerns about the applicant’s evidence in relation to the attack on him by gang members as claimed. Having considered the applicant evidence and the available country information for the reason expressed below the Tribunal does not accept that the applicant holds a fear of returning to Malaysia on either a subjective or objective basis.

Accepted facts.

Based on the applicant’s evidence and the documentary evidence provided to the Department and the Tribunal, the Tribunal finds that:

(a)The applicant born on [Date] in [Location 1], Kuala Lumpur Selangor, Malaysia.[26]
(b)The applicant speaks reads and writes Mandarin, Malay, and English.[27]
(c)The applicant is ethnic Chinese.
(d)The applicant’s religion is Buddhism.[28]
(e)The applicant has a girlfriend in Australia who is a permanent resident and has a child.
(f)The applicant’s parents continue to live in Kuala Lumpur, Malaysia. His father works as [an occupation 1] and mother works as [an occupation 3].
(g)The applicant has [brother and sister] who both continue to live in Kula Lumpur Malaysia.
(h)The applicant attended school in Kuala Lumpur but did not attend University or College.

Applicant’s claim as a refugee

The applicant as ethnic Chinese.

[26] Protection visa application form; Dept File No [Reference], Doc ID no 10188598,

[27] ibid

[28] ibid

The applicant claims if he is returned to Malaysia, as an ethnic Chinese person, he will he will suffer serious harm by being subjected to discrimination and harassment. In addition, he claims that he will be denied opportunities in relation to employment and training. The applicant conceded that there are wealthy ethnic Chinese in Malaysia but claimed that as a poor Chinese person he would be subject to discrimination and harassment that would amount to serious harm.
The country information reports that Chinese Malaysians are the second largest ethnic group in Malaysian.[29] Its reported that in 2020 there was approximately 6.7 million Chinese Malaysian constituting around 20 percent of the population.[30] Its reported that the Chinese Malaysian population tends to be wealthier than other ethnic groups in Malaysia. They are prominent in the business community and constitute a high proportion of the professional and educated class.[31] Chinese Malaysians are eligible to access national primary or high school education but generally choose to attend the 1300 national type primary schools that teach Mandarin. [32]
[29] DFAT report at p.21
[30] ibid
[31] ibid
[32] DFAT report at p.22
While there are no laws or constitutional provisions that directly discriminate against the Chinese Malaysian, they are affected by the constitutional preference for ethnic Malays and other indigenous groups (known as Bumiputera).[33] Article 153 of the Malaysian Constitution gives the Bumiputera special status including preferential programs designed to give them a boost to their economic position.[34] These include increased opportunities to higher education, careers in the civil service commercial opportunities and housing.[35] In addition some industries maintain certain levels of Bumiputera ownership to which the government maintains procurement policies in favour of Bumiputera supplied goods.[36] As a result, there are very few ethnic Chinese in the public service. They tend to not apply for government positions in the belief they are more likely to be awarded to Bumiputera and that any promotional opportunities will be limited. As a result, they tend to be well represented in the business community.
[33] ibid
[34] ibid
[35] ibid
[36] ibid
The country information reports[37] that Chinese Malaysians experience low levels of official discrimination when attempting to enter the state tertiary system or the civil service, including seeking promotion opportunity or operating a Chinese Malaysian owned business in the private sector. They can suffer discrimination in the business community due to unequal access to certain industries due to the Bumiputera ownership laws.[38] In addition, obtaining and maintaining necessary business licenses can be difficult due to Bumiputera ownership quotas and pressure to pay bribes.[39] Finally, it’s reported that Chinese Malaysian business may also be subjected to raids by the Inland Revenue Board.[40]
[37] ibid
[38] ibid
[39] ibid
[40] ibid
In this case the applicant has been able to complete his school education and has been able to find employment after leaving school. There was no suggestion that he intended or sought a career in the public service where he may have experienced some discrimination. The Tribunal also notes that both his parents continue to live and work in Malaysia. Further his brother continues to live in Malaysia and work in a [factory]. While the applicant claimed that his family had bene threated by the gang members, there was no independent evidence to suggest that they had been threatened as claimed or that they had experienced discrimination or harassment in their employment. The applicant did not provide the Tribunal with any statements from his family members as to their circumstances and any threats or discrimination that may have suffered as ethnic Chinese people living in Malaysia.
Therefore, based on the available country information the Tribunal does accept that Chinese Malaysians in Malaysia do experience some discrimination in certain circumstances. However, the Tribunal does not accept that the level of discrimination experienced by the Chinese Malaysian constitutes a level of harm as to be considered serious harm in accordance with section 5J(5) of the Act. Therefore, while the Tribunal accepts that the applicant as a Chinese Malaysian may experience a level of societal and official discrimination, it finds that any discrimination that he may suffer upon his return to Malaysia will not constitute serious harm in accordance with the Act. As a result, the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Malaysia by reason of being an ethnic Chinese Malaysian.

Applicant threats by gang members.

The applicant claims that there is a real risk he will be seriously harmed if he is returned to Malaysia by reason of the fact that he was harassed and threatened by members of the Gang [Name]. However, the applicant’s evidence in relation to the harassment and threats he claimed to have received from the Gang [Name] members lacked credibility as it was vague and lacking in detail.
The applicant’s evidence was that his father owned and operated a [workplace 2] and had previously paid protection money demanded by the gang members of Gang [Name]. In or about [Year] (when he was about 13 years of age), his father refused to pay protection money to the gang members because his business had not been trading well, and he did not have the money. As a result, the gang members overturned their table and smashed the interior of the shop during which the applicant was injured. The applicant claimed that a gang member attempted to hit with a hammer and beat his head with an iron bar. The applicant did not give any evidence to the Tribunal which supported this claim. Accordingly, the Tribunal does not accept that a gang member attempted to hit him with hammer and beat his head with an iron bar as claimed. In addition, the applicant claimed that he and his mother reported the gang’s actions to the police. The applicant did not provide the Tribunal with any independent evidence of having reported the matter to the police including a statement for his mother or copy a police report.
Further, the applicant did not provide any independent evidence of his father refusing to pay protection money to the gang members or of them smashing the shop as claimed. In circumstances where the applicant’s family continue to live and work in Malaysia, the Tribunal would have expected the applicant to be able to provide some independent evidence (witness statements or affidavits and/or documentary evidence such as photos of [workplace 2], repair receipts or shop lease) in relation to the gang members having demanded protection money as claimed. The applicant did not provide the Tribunal with any independent evidence of his father owning and operating a [workplace 2] as claimed or of the gang members having demanded protection money as claimed.
In addition, given that the gangs demand for protection money had been made against the applicant’s father, and in circumstances where the applicant was only 13 years of age, the applicant did not say why any threat or demand by gang members should be made against him. It was not clear to the Tribunal why gang members would continue to threaten the applicant in circumstances where the demand for the protection money was made against his father (who had closed the shop) and he was still at school. Therefore, based on the applicant evidence, the Tribunal does not accept that gang members demanded protection money as claimed and as a result threatened the applicant or his family as claimed.
The applicant’s evidence was that gang members led by a person known as [Mr A] then went to his family’s home and smashed his father motorcycle and their home. The applicant did not provide any independent of the gang members attending his family home or smashing his father motorcycle as claimed. The applicant did not provide any statements in support of his evidence or other documentary evidence (such as photos) evidence the gang members having attended his family home as claimed. Based on the applicant evidence that Tribunal does not accept that gang members went to the applicant’s family home or smashed this father motorcycle as claimed.
The applicant claimed that he and his family moved to Ipor to avoid the gang members. The applicant claims that he continued to attend the same school in Kuala Lumpur while living in Ipor. The applicant claims he and his mother would travel the round trip of 2 hours for him to attend school and her to attend work each day. The applicant did not provide any independent evidence of his family having moved to Ipor as claimed. Bed on the applicant evidence the Tribunal does not accept that the applicant family moved to Ipor as claimed.
The applicant claims the gang members continued to harass him and his family when they returned to Kuala Lumpur. The applicant claims that they discovered their address and would visit them at home. In addition, he claims that he was harassed at school to the point that on one occasion his teacher was forced to drive him home. The applicant did state how the gang members knew his family’s address or which school he attended. In addition, the applicant did not provide any independent evidence of the gang members having attended his home or school. There was no independent evidence of him having been escorted home by a teacher a claimed. No statement by the school was provided in relation to threats he claimed to have received or of the need for him to be escorted home as claimed. Based on the applicant evidence and the lack of supporting documentation the Tribunal does not accept that the applicant was threatened at home or school as claimed.
The applicant’s evidence in relation to the threats received from gang members creditability. Therefore, based on the vague nature of the applicant’s evidence and in the absence of any independent evidence, the Tribunal does not accept that the applicant or his family were threatened by gang members as claimed. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed by gang members as claimed if he is returned to Malaysia.
Access to state protection

In the alternative, if the Tribunal was to accept that the applicant was threatened by gang members as claimed (which it specifically does not), then based on the available country information the Tribunal finds that the applicant would be able to obtain effective protection to the extent that there would be no real chance that he would be seriously harmed if he returned to Malaysia.

The country information provides that over 100 illegal gangs with an estimated membership of 9,000 members operate in Malaysia.[41] Of these gangs it’s reported that 65 are Chinese Malaysian, 20 are Malay and 18 are Indian-Malay run gangs.[42] Its reported that high level crime including drug trafficking is more typically associated with Chinese Malaysian gangs while other gangs engage in extortion and loan shark practices.[43]
[41] DFAT report at p.18
[42] ibid
[43] ibid
It’s reported[44] that the Inspector General of Police (who reports to the Minister of Home Affairs) is responsible Royal Malaysian Police (RMP). The RMP employs approximately 115,000 officers and operates over 800 police stations across Malaysia. Approximately 80 per cent of the RMP are Bumiputera however targeted recruitment does take place to increase the number of women, Chinese Malaysians, and Indian Malaysians within the RMP.[45] Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption.[46]
[44] DFAT Report at p.58
[45] ibid
[46] ibid
The country information[47] reports that the 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP.[48] A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.[49] It is reported[50] that a bill creating an Independent Police Complaints of Misconduct Commission was submitted to the Malaysian parliament in 2019. The police complaints commission was reported to be an important step toward accountability for abuses by police.[51] Nevertheless, following the collapse of the former Pakatan Harapan government in February 2020, the Bill now is undergoing review by the Law and Parliamentary Affairs and Home Ministers of the new Perikatan Nasional (PN) government which formed in early March 2020.[52]
[47] ibid
[48] ibid
[49] ibid
[50] Human Rights watch Malaysia: Ensure Effective Police Complaints Commission 22 July 2019; ibid
[52] IPCMC Bill to be reviewed before reaching Cabinet’, Malay Mail website, March 2020
Therefore, having considered the operation of s 5J(2) alongside the available country information, the Tribunal is satisfied that, if it did accept that the applicant was threatened by the four men as claimed, effective protection measures are available to the applicant in Malaysia. The Tribunal finds that the effective protection measures are available to the applicant by the State[53] and that the State is able and willing to provide such protection.[54] The applicant can access the available protection and the protection provided is durable.
[53] Section 5LA(1)(a) of the Act.
[54] Section 5LA(1)(b) of the Act.
In any event, the Tribunal notes that the applicant arrived in Australia in 2017. If the Tribunal was to accept that the applicant was threatened by gang members as claimed (which it specifically does not) then given the passage of time, it’s unlikely that the applicant will come to the attention of gang members upon his return to Malaysia. In circumstances where the threat was originally for protection money to be paid by his father in 2012 and the fact that the applicant’s family appeared to have contoured to work and live in Malaysia without harm, the Tribunal finds that there is no real chance the applicant will be seriously harmed by members of the Gang [Name] if he is returned to Malaysia.

Complementary protection

The Tribunal also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.
Based on the applicant’s evidence and the available country information the Tribunal has not accepted that there is a real chance the applicant will be seriously harmed by reason of being an ethnic Chinese. Given that the real chance test is the same as the real risk test, for the reason expressed above the Tribunal does not accept there is a real risk the applicant will be significantly harmed if he is returned to Malaysia because he is ethic Chinese as claimed.
The Tribunal has not accepted the applicant’s evidence that he was threatened and beaten by gang members who had demanded protection money from his father as claimed. As such, the Tribunal does not accept that the applicant has a real risk of significant harm as outlined in s 36(2A)(c) and (d). Accordingly, the Tribunal finds that there is no real risk the applicant will be significantly harmed by gang members as claimed if he is returned to Malaysia.
However, in circumstances where the Tribunal accepts there is a real risk of significant harm to the applicant as a result of being threatened and beaten by gang members as claimed (which it specifically finds there is not) then under s 36(2B) of the Act, there is no real risk of significant harm if the applicant can ‘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’.[55] To satisfy s 36(2B)(b),[56] the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[57] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s 36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[58] However, the test in s36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection. That is, s 36(2B)(b) requires the Tribunal to be satisfied that the protection available would remove the real risk of significant harm.
[55] Section 36(2B)(b) of the Migration Act 1958.
[56] MIAC v MZYYL (2012) 207 FCR 211.
[57] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s 36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s 36(2)(a) of the Act.
[58]In MIAC v MZYYL (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s 36(2)(aa) necessarily involves consideration of the matters referred to in s 36(2B).
Having considered the country information and the accepted circumstances of the applicant as discussed under the Tribunal’s effective protection findings for s 36(2)(a), the Tribunal finds that the level of protection from the state available to the applicant, if removed from Australia to anywhere within the applicant’s country of reference, would remove the real risk of significant harm. That is, the Tribunal finds that the RMP will provide effective protection to the applicant from physical harm. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Malaysia, protection such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s 36(2B)(b), there is no real risk that the applicant will suffer significant harm in Malaysia and does not satisfy s 36(2)(aa) in this regard.
In all the circumstances, the Tribunal finds that, pursuant to s 36(2)(aa) of the Act, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to their receiving country, that there is a real risk that he will suffer significant harm of any kind.
At no stage did the applicant advance any other reason, such as his nationality, or political opinion in his written or oral claims that he is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s 36(2)(a) and s36(2)(aa) of the Act.
Having considered his claim and accepted circumstances, both individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk he will suffer significant harm, including that he will be arbitrarily deprived of his life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s 36(2)(aa) of the Act.

CONCLUSION

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s 5J(2). Therefore, the Tribunal finds that the applicant does not satisfy the criterion set out in s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations and finds that he does not satisfy s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) based on being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the tribunal finds that applicant does not satisfy the criterion in s 36(2) of the Act.

DECISION

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

Jason Pennell
Senior 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

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

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.
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.
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.
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.
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.
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

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.

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.

…

Protection visas – criteria provided for by this Act

…

A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Annexure ‘A’
Corruption
2.17 Transparency International’s 2020 Corruption Perceptions Index ranked Malaysia 57th out of 180 countries and territories, a fall of six places on 2019. According to international observers, procurement is subject to corruption, and bribes and irregular payments are sometimes exchanged in return for favourable court decisions. One perceptions survey found that Malaysians regarded the police as the most corrupt institution in the country (see Royal Malaysia Police (RMP)), while another found that more than a third of Malaysians regarded Members of Parliament as corrupt, the highest level for any institution. Transparency International’s Corruption Barometer survey in 2020 found that 72 per cent of Malaysians consider corruption in the government to be a big problem and that 13 per cent had paid a bribe with respect to a public service in the last year. While this represents a significant concern about corruption, these levels are lower than in neighbouring Asian countries.
2.18 The most prominent recent corruption case in Malaysia is that involving the government investment fund, 1 Malaysia Development Berhad (1MDB), implicating Najib Razak, former Prime Minister and Chairman of the 1MDB Advisory Board. In July 2020, in the first verdict of a series of trials, former Prime Minister Najib was convicted on seven charges and sentenced to twelve years in prison. In April 2021, Najib appealed these convictions. Further trials have been delayed by COVID-19. Former United Malays National Organisation (UMNO) President Seri Ahmad Zahid Hamidi’s trial for 47 corruption-related charges was held in March 2021 after numerous postponements.
2.19 The Malaysian Anti-Corruption Commission (MACC) has arrested hundreds of civil servants in recent years (467 in 2020, down from 525 in 2019). These arrests came from a variety of different areas within government, for example: in January 2021, five officers from the Malaysian Quarantine and Inspection Services Department were arrested as part of an alleged meat cartel; 27 Immigration Department officers were arrested in November 2020 for their role in an alleged human trafficking syndicate; former PH government finance Minister Lim Guan Eng was charged for alleged bribery in connection with the construction of an undersea tunnel (though he contends that the charge is politically motivated as he is now an outspoken opposition figure); and a deputy public prosecutor was arrested on suspicion of accepting bribes.
2.20 In 2020, several high-profile corruption trials of prominent political figures ended with Discharge Not Amounting to Acquittal (DNAA) verdicts, including one trial of former Minister Tengku Adnan Tengku Mansor in his MYR1 million corruption trial (though he was convicted of a separate offence in another trial). In this case, the order was granted after Deputy Public Prosecutor (DPP) Julia Ibrahim told the court she had received instructions from the Attorney-General’s Chambers (AGC) to seek the DNAA order citing new developments in the case that warranted further investigation. While a DNAA order does not prevent the prosecution from charging the accused again based on the same facts, some commentators have suggested that ending such cases without a definitive verdict and without hearing all the evidence delivers a form of impunity to those charged.
………………………….
SECURITY SITUATION
2.44 Malaysia’s overall security situation is generally stable. Petty crime is common: thieves snatch handbags, shoulder bags, jewellery, mobile phones and other valuables from pedestrians, and pickpocketing and residential burglaries frequently occur. There is a high threat of kidnapping in the coastal areas of eastern Sabah. Extremists based in the southern Philippines are particularly active in the area between the towns of Sandakan and Tawau in eastern Sabah.
2.45 Protests and demonstrations occur from time to time and are largely peaceful. Malaysian police reported that approximately 55,000 protestors attended a largely peaceful December 2018 anti-ICERD rally. However, in a protest in Kuala Lumpur in March 2020 against the circumstances that saw the end of the PH coalition, the Government was criticised for arresting and detaining pro-democracy activists. Some protests are accompanied by violence, as occurred at an incident at a major Hindu temple outside Kuala Lumpur (the Seafield Hindu Temple) in November 2018 (see Buddhists and Hindus).
2.46 Consistent with global trends, terrorism is a long-standing concern in Malaysia. Malaysian security forces are responsive and generally capable. Following a terrorist attack in Jakarta on 14 January 2016, Malaysian security forces increased their visible presence and security measures on Malaysian streets. Despite this, Da’esh (also known as the Islamic State in Iraq and the Levant or the Islamic State) sympathisers were involved in a grenade attack in Kuala Lumpur on 28 June 2016. Although Malaysia has not experienced further Da’esh-related attacks, and the overall number of foreign terrorist fighters from Malaysia has reportedly decreased, the country remains a source, transit, and, to a lesser extent, a destination country for suspected Da’esh supporters. This includes suspected third country Da’esh supporters deported from Turkey and those planning to travel to the southern Philippines. Between January 2013 and May 2019, Malaysian authorities claim to have made 519 counter-terrorism related arrests, while the Royal Malaysia Police (RMP) Special Branch Counter-Terrorism Division has reportedly disrupted several domestic terror plots. It was reported that Malaysia made seven counter-terrorism arrests in 2020, down from 72 and 119 arrests (of Da’esh suspects) in 2019 and 2018 respectively, but this was attributed chiefly to coronavirus-related movement restrictions. Gang Activity
2.47 Malaysian media citing official police statistics in early 2018 reported that over 100 illegal gangs, with an estimated 9,000 members, operated in Malaysia. Of these gangs, 65 were reported to be Chinese Malaysian, 20 were Malay and 18 were Indian Malaysian-run gangs. DFAT is not able to verify these statistics. Sources report many street-level gang members are Indian Malaysians, reflecting their relative economic vulnerability. High-level crime, including drug trafficking, is more typically associated with Chinese Malaysian gangs. Some gangs engage in extortion and loan shark practices. Details of gang activities are difficult to obtain, as victims of gang-related crimes do not generally report them.
……………………………
Ethnic Malays and Indigenous Groups - Bumiputera
3.2 Under Article 160 of the Constitution, a Malay person is an individual with characteristics that include professing the religion of Islam, habitually speaking the Malay language, conforming to Malay customs and being the child of a Malay parent. Consequently, all Malay children are automatically registered as Muslim, and this is specified on their identity card. Article 153 of the Constitution gives ethnic Malays and other indigenous groups special status (see Demography). These groups are collectively known as ‘Bumiputera’, although the term is not established in the Federal Constitution or any form of statutes. According to the Minister of Law, the term is often used by the government for policy and often used to refer to Malaysian citizens who are either Malay, ‘Anak Negeri’ (indigenous peoples of Sabah and Sarawak, including Malays of these states), or ‘Orang Asli’ (indigenous peoples of peninsular Malaysia). The Malaysian Department of Statistics estimates there were 20.07 million Bumiputera in Malaysia in 2018, making up over 60 per cent of the entire population and nearly 70 per cent of citizens. In the last public data available on the composition of Bumiputera (2015), there were over 14 million ethnic Malays (about 55 per cent of Malaysian citizens) while other Bumiputera constituted just over 3 million people (around 12 per cent of Malaysian citizens). While Malays, Anak Negeri and Orang Asli are all categorised as Bumiputera—in contrast to Chinese and Indian Malaysians who are not Bumiputera—they are treated quite differently from one another within Malaysia (see Indigenous Peoples).
3.3 Government regulations and policies have included numerous preferential programs to boost the economic position of Bumiputera. Such programs promote increased opportunities for Bumiputera to access higher education, careers within the Civil Service (see Civil Service), commercial opportunities and housing. Some industries (including tertiary education and distributive trade) maintain race-based requirements that mandate a certain level of Bumiputera ownership, and the government and many government-linked companies maintain procurement policies that favour Bumiputera-owned supplies. National budgets continue to allocate large amounts of funding intended to benefit Bumiputera. In the 2021 Federal Budget, for example, the government increased its funding for its ‘Bumiputera agenda’ from MYR8 billion in 2020 to MYR11.1 billion in 2021, with the largest share of that money focused on education. Such positive discrimination policies have succeeded in creating a significant urban Malay middle class. However, Malays still constitute a relatively high percentage of individuals in poverty. Despite their constitutionally privileged position, Bumiputera households are over-represented in the bottom 50 per cent of Malaysian households by income.
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Chinese Malaysians
3.8 The Malaysian Department of Statistics estimated there were 6.7 million Chinese Malaysians in Malaysia in 2020, making up around 20 per cent of the population. Chinese Malaysians are one of the largest overseas Chinese communities in the world and are Malaysia’s second largest ethnic group. Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia. Chinese Malaysians are concentrated in the west coast states of peninsular Malaysia, living in large urban centres, including within Kuala Lumpur and Penang, and the populous states of Johor, Perak and Selangor, where they comprise approximately 30 per cent of the population.
3.9 There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians (though, by implication, as the second largest ethnic group, they are the principal group affected by the constitutional preference for Bumiputera). Chinese Malaysians freely participate in political life, including as ministers (one in the current cabinet, down from four in the PH government) and in opposition parties, but ethnic Chinese politicians have occasionally faced public criticism for interfering with ‘Malay rights’. The Democratic Action Party (DAP) – a predominantly ethnic Chinese party – currently holds 42 of the 222 federal parliamentary lower house seats. Chinese Malaysian community members advised that the 1MDB corruption scandal (see Corruption) had galvanised anti-government sentiment among Chinese Malaysians (as well as others) and had led to greater political engagement.
3.10 There are relatively few Chinese Malaysians in the Malaysian civil services. The predominant use of the Malay language can be a barrier to Chinese Malaysian employment in the civil service but does not preclude it (see Civil Service). Chinese Malaysians often do not apply for government positions, as they believe the positions are more likely to be awarded to Bumiputera and provide limited promotional opportunity. Conversely, Chinese Malaysians are well represented in the private sector and many small and medium enterprises and large corporations are Chinese Malaysian-owned. However, Chinese Malaysians report discrimination against the community in the business sector and claim unequal access to certain industries due to Bumiputera ownership laws (see Federal and State Law Enforcement Entities). Chinese Malaysians report obtaining and maintaining a business license can be difficult, due to Bumiputera ownership quotas and pressures to pay significant bribes. Chinese Malaysians also claim Inland Revenue Board (IRB) raids of Chinese Malaysian businesses leading to fines are common. Sources claim that IRB raids for ‘verification purposes can close down a business for months at a time, with significant economic consequences including loss of income and frozen bank accounts.
3.11 Chinese Malaysians are eligible to access national primary or high school education, but generally choose to attend one of the nearly 1,300 national-type Chinese primary schools that teach in Mandarin (along with Bahasa Malaysia) (see Education). This is reportedly usually due to concerns about the quality of education elsewhere and perceptions that the curriculum has a strong focus on Islam. Chinese Malaysians report there are insufficient national-type Chinese schools in urban areas to meet enrolment demands and cite anecdotes of families driving their children to Singapore to access non-Islamic, Chinese schools. Chinese Malaysians report that members of the community living in rural areas have better access to national-type Chinese schools, although many families are unable to live in rural areas due to lack of economic opportunity. The 2019 Federal Budget specified funding for independent Chinese schools for the first time but this was not continued in the following Budgets. The Chinese school qualification Unified Examination Certificate (UEC) is still not recognised for the purposes of Malaysian public university entry.
3.12 DFAT assesses Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sect.
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Royal Malaysia Police (RMP)
5.5 The RMP is based on the British constabulary model and employs approximately 115,000 officers and operates over 800 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. SUHAKAM conducts some human rights training and workshops for police, state Islamic religious authorities and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
5.6 According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.
5.7 External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission, which was created in 2009 as part of the government’s response to police corruption, which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts. Perceptions of the EAIC’s ineffectiveness contributed to calls for a new police accountability body (see IPCMC below). 5.8 In-country sources claim the RMP has engaged in the practice of ‘chain of remand’ whereby police arrest someone, hold them until a court will not or cannot extend their remand, and release them only for police from a different police station to re-arrest that same person. Human rights observers claim this practice occurred regularly in 2020. 5.9 The then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department in July 2014 to enhance police integrity and image. It sits within the RMP. SUHAKAM also receives complaints against the RMP and has investigated police behaviour. The government is not formally required to consider SUHAKAM’s reports or recommendations. SUHAKAM’s investigation into the disappearance of Pastor Raymond Koh concluded that RMP Special Branch was responsible for the disappearance (see Enforced or Involuntary Disappearances). With regard to police accountability, see also Deaths in Custody.