1827090 (Refugee)
[2021] AATA 5171
•30 November 2021
1827090 (Refugee) [2021] AATA 5171 (30 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1827090
COUNTRY OF REFERENCE: Malaysia
MEMBER:Jason Pennell
DATE:30 November 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 30 November 2021 at 2.51am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – fear of money lenders – economic conditions – business debts – fear of bankruptcy – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MZZIA v MIBP [2014] FCCA 717
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 September 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 6 June 2018. The delegate refused to grant the visa on 13 September 2018 on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) 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).
3.The applicant appeared by video hearing before the Tribunal on Wednesday 24 November 2021 to give evidence and present arguments. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold it by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
4.The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
5.The applicant was not represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
6.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.
7.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.
8.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).
9.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 (PSG) or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.
Mandatory considerations
10.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 (the Department), 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.
APPLICANT’S CLAIMS AND EVIDENCE
Applicant’s identity
11.The applicant claims that he was born on [date] in Taiping, Perak, Malaysia. He claims to be a Sunni Muslim.[1] The applicant provided the Department with a certified copy of his Malaysian passport and Malaysian identity cards.[2]
[1] Part C - Application for a protection visa application form dated 4 June 2018, Department File [number], Doc ID [No:].
[2] Dept file [number], Doc ID [No:] and Doc ID [NO:].
12.The document provided by the applicant is consistent with his evidence to the Tribunal in relation to his identity. 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 information provided by the applicant the Tribunal finds that he is a citizen of Malaysia, and as such his protection claims will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.
Migration history
13.The applicant first arrived in Australia [in] March 2018 on a [specified] visa granted on 26 February 2018 and applied for a protection visa on 6 June 2018. The applicant has not travelled outside of Australia since his arrival.[3] The applicant is presently lawfully onshore in Australia on a Bridging A visa granted on 27 June 2018.[4]
[3] Department of Home Affairs - Mainframe Movement Records dated 1 October 2021, Tribunal case number 1827090, Doc ID [No:].
[4] Ibid.
Claims for protection and other supporting documentation
14.The applicant’s claims for protection are provided in his application for a protection visa[5] as follows:
[5] Ibid.
Why did you leave that country/those countries? Provide specific details.
I left my country because of financial difficulties and contributed by a factor such as politics, corruption, high debt and unbalance salary and expenses. My country currently on downfall in economy and so many of us is struggling to survive and it’s hard to make a living, due to a few failed business attempts. I am currently holding a huge debt and loans. I don’t have any ways to settle the debts and make living in my country. The government not helping me to settle my problems.
What do you think will happen to you if you return to that country/those countries?
If I’m return to my country, I’ll suffer great depression from huge of debts and hard for me to make a living because of debts, small income, and huge daily expenses, I’ll never settled my debts and I’ll go to prison, will declare bankruptcy. my family will loss daily expenses, my daughter can’t go to school. I’ll loss my house to stay for my family too and a lot of bad things will happen to my family.
Did you experience harm in that country/those countries?
No.
Did you seek help within that country/those countries after the harm?
No. Because of organisation or government they need a bribe and in my country, we don’t have a lots of social services that can help my problem.
Did you move, or try to move, to another part of that country/those countries to seek safety?
No. I came here because of currency and I need to settle my debt as soon as possible.
Do you think you will be harmed or mistreated if you return to that country/those countries?
Yes. Debt collector and court because of my debts that I can’t pay.
Do you think the authorities of that country/those countries can and will protect you if you go back?
No. The government doesn’t have any procedure to protect me.
Do you think you would be able to relocate within that country/those countries to an area where you would not be harmed?
No. Because all place is same, I can’t to make or to find money to settle my debt.
15.The delegate summarised the applicant’s claims as follows:[6]
(a)He left Malaysia because of his financial difficulties.
(b)He is struggling to survive and make a living.
(c)If he returns to Malaysia, he will continue to be in debt and will be declared bankrupt.
Documentation
[6] Department of Home Affairs Protection Visa Decision record refusal, Tribunal file 1827090, doc ID [number].
16.Apart from the certified copy of his Malaysian passport and Malaysian identification cards and his claims for protection contained in Form 866C, the applicant did not provide any further documents to the Department in support of his claim for Australian protection.
Applicant’s evidence
17.The applicant’s evidence was that he was born on [date] in Taiping, Perak, Malaysia. The applicant claims that he can speak, read and write in Malay and English.[7]
[7] Part C - Application for a protection visa application form dated 4 June 2018, Department File [number], Doc ID [No:].
18.The applicant’s parents continue to live in Malaysia. The applicant’s father was the village chief, known as a Penghulu, and his mother was engaged in home duties. His evidence was that his parents have divorced but have since remarried. The applicant has [specified family members] who continue to live in Malaysia.[8]
[8] Ibid
19.The applicant’s evidence was that he is married. He claims that he met his wife in or about 1994 and was married [in] June 1999 in [Country 1].[9] The applicant has [specified children]. His evidence was that [one child] has left school and is now employed [in] Malaysia. His wife and children continue to live in Malaysia.[10] His evidence was that he speaks to his family everyday via ‘WhatsApp.’
[9] Ibid.
[10] Ibid.
20.The applicant was educated in Malaysia having completed his high school at [school name] in Perak in [year].[11] After school he was employed as [an occupation 1]. In his application the applicant claims that he was employed at [Employer 1] from [year] to 2018. However, his evidence to the Tribunal was that in or about 2010 he was convicted of a drug offence and served a prison sentence [between specified years].
[11] Ibid.
21.In Australia the applicant has worked as [an occupation 2] at [Employer 2], Victoria since 2018.[12]
[12] Ibid.
22.The applicant’s evidence was that he came to Australia ‘to do good things for his family.’ His evidence was that he has worked while he has been in Australia and has managed to settle debts with siblings and support his family. His evidence was that he has supported his daughter in attending school and completing her [grade]. The applicant did not give any evidence in relation to the debt owed to his siblings.
23.The applicant’s evidence was that he wanted a protection visa because he felt more comfortable living in Australia than Malaysia. The applicant’s evidence was that in or about 2008 or 2009 he borrowed approximately MYR[amount] (approximately AUD[amount]) from people introduced to him by friends. His evidence was that the lenders were not loan sharks. He claimed that he had borrowed approximately [amount] from each lender and he was to repay [amount] at the end of the terms of the loan. The applicant did not give any evidence in relation to the terms of the loans but stated that the loans were not documented. The applicant claimed that he borrowed the money to commence [an occupation 1] business. However, he was not able to compete with the bigger [occupation 1] companies and as a result, his business failed.
24.The applicant’s evidence was that he had not paid the money back to his lenders. His evidence was that in or about 2010 his friends and the lenders attended his mother’s house looking for the applicant about repayment of the loans. When asked why they went to his mother’s house and not his own home, he stated that he was living with his mother at the time. He also states that they had been to his own home and his wife told them he would be at his mother’s home. He also claimed that he left his car at his mother’s house and as a result they would have known to go there. In any event, his evidence was that he was not home when the lenders visited his mother’s home as claimed.
25.The applicant’s evidence was that he would not be physically harmed if he was returned to Malaysia. He accepted that due to the passage of time the lenders may not be interested in pursuing him for the outstanding loans. However, he claimed that if he was returned to Malaysia, he feared that, if the lenders learnt of his return to the country, they would seize his possessions for repayment of the loans.
COUNTRY INFORMATION
26.In accordance with the Ministerial Direction No.84 made under s 499 of the Act the Tribunal has had regard to the country information assessments prepared by the DFAT, being the DFAT report on Malaysia dated 29 June 2021 (the DFAT Report)[13]. In particular, the Tribunal has considered the relevant country information for the DFAT report as set out in Annexure A of these reasons.
[13] DFAT Country Information Report Malaysia 13 December 2019.
CONSIDERATION OF CLAIMS AND EVIDENCE
27.The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
28.When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
29.The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[14] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[15]
[14] Section 5AAA of the Act.
[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.
30.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 of the totality some evidence where a portion of it could reasonably have been accepted.
[16] Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at 482.
31.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.
[17] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
32.In this case, the applicant has refused to provide any oral evidence or make any submissions to the Tribunal in support of his claim. Nevertheless, the Tribunal in all the circumstances has given the applicant the benefit of the doubt in assessing each of his claims.
Accepted facts
33.Based on the documentary evidence provided by the applicant to the Department and the Tribunal and in the absence of any additional oral or written evidence from the applicant, the Tribunal finds and accepts that the applicant:
(a)was born on [date] in Taiping, Perak, Malaysia.
(b)can speak, read and write in Malay and English.[18]
(c)is a Sunni Muslim.
(d)has parents who are divorced and continue to live in Malaysia.
(e)has [specified family members] who continue to live in Malaysia.[19]
(f)is married and has [specified children].
(g)was educated in Malaysia and completed his high school at [school name] in Perak in [year].[20]
(h)was employed as [an occupation 1].
(i)was convicted of a drug offence and served a prison sentence [between specified years].
(j)has worked as [an occupation 2] in Australia at [Employer 2], Victoria since 2018.[21]
[18] Part C - Application for a protection visa application form dated 4 June 2018, Department File [number], Doc ID [No:].
[19] Ibid
[20] Ibid.
[21] Ibid.
Applicant’s refugee claim
Relevant grounds
34.To be considered a refugee pursuant to s 36(2)(a) of the Act, it is necessary that an applicant has a well-founded fear of persecution, if he is returned to Malaysia by reason of his race, religion, nationality, membership of a PSG or political opinion pursuant to s 5J(1)(a) of the Act. In this case it was possible for the applicant to submit that his claim falls within the scope of s 5J(1)(a) of the Act by reason of his membership of a PSG as a person who will suffer serious harm as a person who owes money and would not be able to subsist due to his economic circumstances in the event he was returned to Malaysia.
35.When a person claims to fear being persecuted for reasons of their membership of a PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a PSG (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.[22]
[22] Section 5L of the Act; Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.
36.The Tribunal has reservations as to whether the applicant’s economic circumstances or the fact that he claims to owe money in Malaysia constitutes a characteristic that can be innate or immutable or that it is so fundamental to his identity or conscience that he should not be forced to renounce it or that it distinguishes the group from society as required under the Act.[23] Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept that the applicant is a member of a PSG within the scope of s 5J(1)(a) of the Act.
Applicant’s well-founded fear
[23] Section 5L of the Act.
37.An applicant must have a well-founded fear of persecution. Section 5J of the Act states that for the purposes of an application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country. In the case of a PSG, as claimed by the applicant, the persecution said to be feared by the applicant must be for reasons of membership or perceived membership of the group.[24]
[24] Sections 5H(1) and 5J(1)(a) of the Act; see Applicant A v MIEA (1997) 190 CLR 225 at 240.
38.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.[25] Section 5J(4) of the Act requires that the reason for the persecution must be the essential and significant reason and that it must involve systematic and discriminatory conduct.
[25] Chan Yee Kin v MIEA (1989) 169 CLR 379.
39.In this case, the applicant’s evidence was that he would not be seriously harmed by the lenders or because of the economic issues in Malaysia. Nevertheless, for the reasons expressed below, the Tribunal considered the possibility of harm and finds that the applicant does not have a well-founded fear of persecution for the reasons claimed, either on a subjective or objective basis.
Applicant’s claim as a refugee
40.The applicant claims that if he is returned to Malaysia, he will suffer harm because of debts he owes in Malaysia together with the low income he will earn in Malaysia together with rising costs. The applicant’s evidence was that he did not fear being physically harmed if he was returned to Malaysia. His evidence was that the lenders from whom he borrowed the money were not loan sharks. Rather, he claimed that he fears that if he is returned to Malaysia, he will not be able to settle his debts resulting in his property being repossessed or that he will ultimately be sent to prison.
41.The available country information states that Malaysia is an upper middle-class country. In 2019 its GDP growth was 4.3 percent. It has transformed itself from a commodity-based economy to a leading producer of electrical parts and products, oils and natural gas and a variety of manufacturing products.[26] It reports that Malaysia’s economic performance over several decades has resulted in significant reduction of poverty with the share of households living below the poverty line falling from 50 percent in the 1950s to less than one percent in 2021. Nevertheless, it reports that significant inequalities remain for indigenous people and the poorest 40 percent, who are the recipients of government assistance.[27]
[26] DFAT Report at 11.
[27] DFAT Report at 11.
42.In addition, the country information reports that in February 2021 the Malaysian Department of Statistics reported a labour force participation rate of 68.5 percent and an overall unemployment rate of 4.8 percent. Prior to the COVID-19 pandemic, the Malaysian unemployment rate was 3.3 percent in 2019. In November 2018 it was reported that the average unemployment rate for Indian Malaysians was 4.7 percent compared to 4 percent for Bumiputera and 2.4 percent for Chinese Malay.
43.In this case, the applicant’s evidence was that he travelled to Australia to earn a better salary so that he could help support his family and repay his debts. The applicant’s evidence was that he had been in jail for a period because he was convicted of drug offences. The applicant did not provide any evidence of him having been convicted of any offence and did not raise the matter before the Department. Nevertheless, the Tribunal accepts that he was convicted of offences and imprisoned as claimed.
44.Therefore, the Tribunal accepts that the applicant travelled to Australia for the purposes of earning a living. However, there was no evidence that the applicant would not be able to find employment in Malaysia. The applicant has previously been employed as [an occupation 1] and has worked since arriving in Australia in the [specified] industry. As such the applicant has a skill as [an occupation 1] and has displayed an ability and motivation to find work, both in Malaysia and in Australia.
45.While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work if he is to return to Malaysia, it does not accept he will not be able to access paid employment given his work experience and motivation to find work for the benefit of his family. The Tribunal acknowledges the applicant fears that he has the burden of generating an income for his family (including the tuition fees for his children) and that he has a genuine personally held fear regarding the cost of living being too high and the remuneration for work being too low if he was to return to Malaysia. However, the Tribunal has placed considerable weight on the country information that the Malaysian economy is growing in sophistication. In this regard, the Tribunal notes the relatively negligible poverty rates in Malaysia. For these reasons, the prospects of finding work in Malaysia based on the applicant’s circumstances does not amount to the applicant facing a harm that can be considered serious harm pursuant to s 5J(5) of the Act. That is, the Tribunal finds that any economic hardship the applicant or his family incur will not amount to serious harm in the sense that it would threaten his capacity to subsist. Further, the Tribunal finds that given his skill as [an occupation 1] and his motivation for work he would not be denied the capacity to earn a living that would threaten his capacity to subsist, nor would he be denied basic services, where such denial would threaten his capacity to subsist. Accordingly, the Tribunal finds that there is no real chance the applicant would be seriously harmed if he is returned to Malaysia by reason of his economic circumstances.
46.In addition, the applicant claims that he will not be able to repay his debts if he is returned to Malaysia. The applicant’s evidence in relation to the loan was vague and lacking any detail. His evidence was that there was no loan documentation evidencing the loans. However, he was not able to inform the Tribunal of the total amount of the money he borrowed (his evidence was that it was between [amount range]), how much he borrowed from each lender or the identity of the lenders. In addition, he did not provide any independent evidence of having received the money (for example banks statements) or any demands for repayment. In such circumstances, given the vague nature of the applicant’s evidence and the lack of any independent evidence in support of his evidence in relation to having borrowed the money as claimed the Tribunal does not accept that he borrowed the money as claimed. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Malaysia by reason of having the debts as claimed.
47.Nevertheless, if the applicant did incur the debts as claimed (which the Tribunal has specifically found he did not) then his evidence was that the debtors were not loan sharks but rather ‘people known to his friends.’ His evidence was that he would not be physically harmed, but rather feared that his possessions would be repossessed in repayment of the loans if he returned to Malaysia. The applicant accepted that a creditor in Malaysia would be legally entitled to enforce their rights against him for repayment of a loan.
48.In addition, the Tribunal notes the age of the loans. The applicant conceded to the Tribunal that it was likely his debtors would not pursue the loans given that they were now over 10 years old. In addition, the Tribunal notes the country information[28] which reports that there are several agencies in Malaysia that will assist debtors in the repayment of loans. The Malaysian Muslim Consumer Association (PPIM)[29] provides services (primarily to people who have borrowed for loan sharks) that help educate people about borrowing money and assist in the settlement of debts. The applicant’s evidence was that he was not aware of such agencies but did not deny they existed in Malaysia. Therefore, given the applicant’s admission that he would not be physically harmed by his creditors upon his return to Malaysia, the age of the loans and the fact that assistance is available from organisations such as PPIM for the applicant to resolve and settle his debts, the Tribunal finds that, if the applicant had borrowed the money as claimed (which it does not accept) there is no real chance he will be seriously harmed, if he is returned to Malaysia, by reason of not having repaid his debts as claimed.
[28] DFAT Report at 41.
[29] www-ppim-org-my.translate.goog/profil-strategi- perlaksanaan/?_x_tr_sl=ms&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=nui,sc
49.Finally, the applicant did not make any claim in relation to his evidence of him having served a prison sentence in Malaysia. There was no evidence before the Tribunal that indicated that the applicant would be subjected to serious harm upon his return to Malaysia as a result of him having been convicted and served a jail sentence. The country information[30] reports that a person who has committed an offence prior to their departure from Malaysia but has not been charged or convicted may face trial for the offence upon their return. This is not the case with the applicant. As such, based on the available country information the Tribunal finds that there is no real chance the applicant will be seriously harmed upon his return to Malaysia by reason of him being convicted of an offence and having served a prison sentence.
[30] DFAT Report at 64.
50.Accordingly, the Tribunal finds that the applicant does not have a real chance of serious harm arising from his economic circumstances for reasons mentioned in s 5J(1)(a) or any other claimed reasons, if he was to return to Malaysia from Australia, now or in the reasonably foreseeable future.
51.Having assessed all the applicant’s claims individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm, now or in the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s 5J(1) of the Act if he is returned to Malaysia and he does not satisfy the criterion in s 36(2)(a).
Complementary protection criteria
52.The Tribunal also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[31] The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.
[31] MIAC v SZQRB [2013] FCAFC 33,
53.The Tribunal has made earlier findings that the applicant does not face a real risk of serious harm arising from his claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, it follows that the Tribunal does not accept that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of significant harm, including torture, being subjected to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment, for reasons based on the applicant’s economic circumstances.
54.The Tribunal has considered if there are any reasons to believe the applicant will face a real risk of significant harm arising from his economic circumstances, including his debts, as contemplated by s 36(2)(aa). Significant harm is different from the concept of serious harm as required by s 5J(4)(b) in the context of s 36(2)(a).[32] The Tribunal has already made a finding that the applicant has the capacity and inclination to find work anywhere in Malaysia. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work to support himself and his family, it does not accept he will not be able to find paid employment anywhere in Malaysia, given his overall experience as a necessary and foreseeable consequence of being removed from Australia or that those challenges amount to significant harm as required by s 36(2A).
[32] In MZZIA v MIBP [2014] FCCA 717 at [34] (Judge Riethmuller, 16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms (e.g. a risk of being killed is sufficient to fulfil both).
55.For the reasons expressed above the Tribunal has not accepted that the applicant incurred the debts as claimed. As a result, the Tribunal finds that there is no real risk the applicant will suffer significant harm if he is returned to Malaysia by reason of his failure to repay his debts as claimed. In addition, if the applicant had incurred the debts as claimed (which the Tribunal has specifically found he did not) then for the reasons expressed above the Tribunal finds that there is no real risk he would be significantly harmed for not repaying his debts as claimed.
56.The Tribunal finds there is no intention on the part of the Malaysian Government in its role of managing the economy in combination with market forces to inflict significant harm, including subjecting the applicant to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to Malaysia. The Tribunal, accordingly, does not accept that the applicant faces a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, based on his economic circumstances, that will amount to significant harm, including being subjected to cruel or inhuman treatment or punishment or being subject to degrading treatment or punishment.
57.Finally, as also noted above, the applicant made no claim in relation to his evidence of him having served a prison sentence in Malaysia. There was no evidence before the Tribunal that indicated that the applicant would be subjected to significant harm upon being returned to Malaysia due to him being convicted of a drug offence and having served a jail sentence. The country information[33] reports that a person who has committed an offence prior to their departure from Malaysia but has not been charged or convicted may face trial for the offence upon their return. This is not the case with the applicant. As such, based on the available country information the Tribunal finds that there is no real risk the applicant will be significantly harmed upon his return to Malaysia by reason of him being convicted of an offence and having served a prison sentence.
[33] DFAT Report at p.64
58.At no stage did the applicant advance any other reason 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.
59.Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is no real risk the applicant will suffer significant harm if he is returned to Malaysia as a result of his economic circumstances as claimed pursuant to s 36(2)(aa) of the Act.
CONCLUSION
60.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s 5J(1)(a). Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).
61.Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa) and is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
62.There is no suggestion that the applicant satisfies s 36(2) based on being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
63.The Tribunal affirms the decision not to grant the applicant a protection visa.
Jason Pennell
Senior MemberATTACHMENT - EXTRACT FROM MIGRATION ACT 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
ANNEXURE A
Economic overview
1.1 The World Bank classifies Malaysia as an upper middle-income, export‑oriented economy. In 2019 its real GDP growth was 4.3 per cent, while per capita GDP was USD11,418 (approx. AUD 15,000). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia is the world’s second largest producer and exporter of palm oil. Manufactured goods comprised 86.5 per cent of Malaysia’s exports in 2020. Malaysia is the Association of South East Asian Nations’ (ASEAN’s) largest energy exporter and income from oil and gas provides the government’s largest single revenue source.
1.2 According to the World Bank, following the Asian financial crisis of 1997-98, Malaysia’s economy was on an upward path (until COVID-19), averaging growth of 5.4 per cent from 2010. Malaysia’s progression from an upper-middle income economy to high-income status, according to the World Bank’s measure, had been anticipated to occur between 2024 and 2028. This may be delayed somewhat by the effects of COVID-19, while some commentators have suggested Malaysia cannot sustain the high levels of growth required to make this transition.
1.3 Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (MYR2,208 (AUD700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, the so-called ‘B40’ who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. Furthermore, the UN Special Rapporteur on Extreme Poverty gave the view in 2019 that Malaysia’s official poverty line is artificially low and that a more accurate measurement results in a poverty rate of around 16-20 per cent. The UNDP’s Human Development Index ranked Malaysia 62 of 189 countries in 2020, placing it in the ‘very high human development’ category.
1.4 In 2020, Malaysia’s economy was hit with the dual shock of COVID-19 and a decline in oil prices. According to the Malaysian government, the Malaysian economy contracted by 5.6 per cent in 2020 due to COVID-19. The economy is expected to rebound in 2021, with Malaysia’s central bank forecasting growth between 6 and 7.5 per cent. The Malaysian government undertook robust measures to limit the impact of the pandemic on the economy, both through the 2021 Budget and through multiple economic stimulus packages. Measures included wage subsidies for lower-paid employees, a moratorium on loans by financial institutions, special grants of MYR3,000 (AUD 950) to qualifying SMEs and direct cash grants to the poorest Malaysians, as well as investment incentives and measures to protect Malaysia’s role in global supply chains.
Employment
1.5 In February 2021, the Malaysian Department of Statistics reported a labour force participation rate of 68.5 per cent and an overall unemployment rate of 4.8 per cent. Prior to the pandemic, Malaysia’s unemployment rate was 3.3 percent in 2019. In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera, and 2.4 per cent for Chinese Malaysians. In 2018, 28.6 per cent of the Malaysian labour force had tertiary level education, 55.6 per cent had secondary level education, 13.1 per cent had primary level education and 2.7 per cent had no formal education.
1.6 The International Labour Organization estimated in 2020 that around 3 million migrants (including irregular migrants) worked in Malaysia, constituting up to 30 per cent of the country’s workforce. Of the migrant worker population, 1.7 million were registered, and an estimated 1.9 million were undocumented (irregular) migrants, as at 2017. Recent years have witnessed a rise in increasingly virulent rhetoric against migrants within the popular media, blaming migrants for a host of social problems ranging from electoral fraud to increases in street crime. Scapegoating of migrants, regardless of realities, has contributed to an environment where exploitation and abuse are sometimes viewed as acceptable. In May 2020, during the COVID-19 pandemic, the government conducted mass arrests of undocumented migrants in coronavirus hotspots in order to prevent the spread of the disease to its own ‘innocent citizens’, according to one government minister.
1.7 Reports have documented serious labour rights abuses against migrant workers in Malaysia, including cases of forced labour and human trafficking (see Trafficking in Persons). These allegations have been corroborated by recent US Customs and Border Protection findings that indicators of forced labour and other abuses were evident in the production of rubber gloves and palm oil by two major Malaysian companies, Top Glove and Sime Darby. The Global Detention Project reports that potential trafficking victims may be charged with immigration offences and detained in the criminal justice system due to the lack of formal victim identification procedures. Migrant domestic workers employed in Malaysia lack protection under labour laws. Due to the physical isolation of workplaces, restrictions on movement and inadequate mechanisms established to ensure accountability of employers, a large number of domestic workers are also exposed to abusive working conditions. Economic migrants rarely obtain permanent residence status.
1.8 Male undocumented migrant workers from the Philippines and Indonesia tend to be employed in the construction, palm oil and fishing industries in Sabah and Sarawak. DFAT is aware of reports of ethnic tensions in recent years between Indonesian and Filipino migrant workers working on plantations in Sabah, which have led in some cases to fatalities. DFAT is also aware of reports of the children of undocumented migrant workers working on plantations in Sabah. Undocumented workers have been particularly hard hit by COVID-19, due to cramped accommodation and unsanitary conditions, poor access to healthcare, and the lack of legal protection.
Corruption
1.9 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.
1.10 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.
1.11 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.
1.12 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.
Health
1.13 Malaysia spends approximately 3.9 per cent of GDP a year on health (roughly half public and half private), and has recorded significant improvements in health standards in recent decades. Life expectancy in Malaysia is 73 years for males and 78 years for females. The infant mortality rate is 11.4 per 1,000 births. Non-communicable diseases account for 73 per cent of deaths, including 35 per cent of deaths among people under 35.
1.14 Malaysia has a well-established universal health care system, accessed by around 78 per cent of the population, and modelled on the United Kingdom’s system. Malaysia’s two-tiered health system consists of nation-wide public health care centres and hospitals administered by the Ministry of Health, and a growing private health sector, which predominantly offers services in urban areas. Primary healthcare treatment or a first line treatment via public healthcare would incur a fee ranging from MYR1 – MYR5 (approx. AUD0.30 to AUD 1.6) per visit, and a visit to a private GP would cost MYR30-MYR125 (AUD 9.50-AUD40). Health care is generally accessible to all residents in urban areas in peninsular Malaysia, with health facilities generally available within five kilometres of residence. However, health services in Sabah and Sarawak are less well provisioned, and many residents of these states are required to travel long distances to access basic health care services. Most health facilities in Sabah and Sarawak are located near the coastline, and sources report significant overcrowding at district hospitals.
1.15 Foreign nationals, stateless people, asylum seekers and refugees technically have the same access to the public health system as a Malaysian citizen, but are required to pay ‘first class’ treatment charges (also referred to the ‘real cost’ of their treatment). First class fees can range from three to 10 times more than would be paid by a Malaysian citizen, although fees can vary as medical staff and hospitals can apply discretion. According to media reporting, in April 2017, the Ministry of Health also announced a sharp increase in up-front deposits for migrants seeking treatment at public hospitals, raising deposits by 130 to 230 per cent. Furthermore, undocumented people who present for health care treatment may risk arrest or deportation.
1.16 The Malaysian Government’s response to COVID−19 - including a lockdown known as the Movement Control Order (MCO) - came into effect on 18 March 2020 and successfully reduced the spread of the virus in the early stages. However, large clusters linked to factories, construction sites and prisons, as well as the Sabah state election in September 2020, contributed to a rise in COVID−19 case numbers. As at 26 June 2021, there were 722,659 confirmed cases; and 4,803 deaths. At their peak in January 2021, there were more than 5,000 cases per day before falling significantly and rising again in mid-2021. New case clusters in November 2020 were centred upon foreign workers, particularly within Top Glove factories, the world’s largest manufacturers of rubber gloves.
1.17 People with disabilities were also hit hard by the economic impact of COVID-19 due to the typically more insecure and public-facing nature of their employment. UNICEF reports that people living with disabilities, especially children, are often hidden, portrayed negatively or excluded from society, face daily stigma and discrimination, and are prevented from accessing their rights due to gaps in legislation.
Mental Health
1.18 The Ministry of Health’s 2018 National Health and Morbidity Survey found that just under one in three Malaysians aged 16 years and above were living with a mental health issue, but public mental health services remain limited. Due to a lack of mental health professionals, public services are generally provided by general practitioners and non-mental health specialists. Private mental health services can cost upwards of MYR300 (AUD95) per consultation. Because most private health insurance does not cover mental health services in Malaysia (as of July 2019, Malaysia AIA became the only such company to provide coverage), access can be cost prohibitive. There is also significant stigma attached to mental health issues in Malaysia. The word gila (crazy), or the term ‘gila monster’ is often used in society to describe people with a mental illness. A belief in supernatural spirituality can also compound mental health issues, and misdiagnosis of mental health issues reportedly occurs due to widespread reliance on spiritual healers and exorcisms. While spiritual healers are particularly common in Sabah and Sarawak, especially in rural areas where health services are lacking, middle class, well-educated Malaysians will also often choose spiritual remedies. It was reported that half the respondents of a survey conducted by a Malaysian thinktank experienced mental health issues, typically anxiety, during the various COVID-19 Movement Control Orders.
Education
1.19 Primary school education (six years of education, beginning at age seven) is free and compulsory in Malaysia. The Education Act (1996) requires parents to register their children at the nearest school before the child reaches the age of six, and the child must remain in school for a minimum of six years. Parents who do not comply can face a fine or imprisonment for up to six months. The United Nations reported that national net enrolment ratios were 99.6 per cent for primary school in 2017 and 72.2 per cent for secondary school (2018), the latest years for which data is available. In 2017, the total number of out-of-school children (11 years and below) was 10,381 and out-of-school adolescents (12 to 17 years) was 205,877. Malaysia’s adult literacy rate is 93.7 per cent.
1.20 As of July 2018, there were 7,776 primary national schools, including about 1,300 national-type Chinese schools and around 700 national-type Tamil schools, and 2,426 secondary national schools. All national schools use Bahasa Malaysia as the language of instruction. National-type Chinese and Tamil schools use their mother tongue as the main medium of instruction and teach Bahasa Malaysia as a compulsory subject. There are around 60 Chinese independent secondary schools, and each state in Malaysia has a number of Islamic and religious schools (sekolah agama rakyat).
1.21 As of June 2019, Malaysia had 20 state-funded universities, 47 private universities, 6 branch campus universities, 5 branch campus college universities, 34 private university colleges, 10 foreign university branch campuses, 347 private colleges, 36 polytechnics and 103 community colleges. In addition, 178 private higher education institutions are licensed to enrol international students.
1.22 Public universities were historically required to enrol 70 per cent Bumiputera students before admitting students of other ethnicities (see Chinese Malaysians and Indian Malaysians). Despite the removal of government-sanctioned ethnic quotas in public universities in 2002, Bumiputera continue to secure the majority of public university places and Malaysia’s ethnic minorities remain underrepresented in public universities. Many pre-university programs have Bumiputera quotas, and public universities must provide a certain number of university places to these programs.
Welfare Recipients
1.23 The Department of Social Welfare, Ministry of Women, Family and Community Development, provides financial support to the elderly (aged 60 years and above), the economically disadvantaged, children, people living with a disability, those affected by natural disasters, victims of domestic violence, victims of trafficking, and the otherwise vulnerable.
1.24 According to media reporting, the government approved the introduction of unemployment benefits including allowances and support for training in October 2017. Businesses and NGOs also have various programs to support the poor; the ‘Mykasih program,’ a private sector program which is assisted by the government, also provides a platform to give food aid to the poor through a centralised system (the platform allows people to use their MyKad for payment at selected supermarkets). Malaysian culture places significant emphasis on family support. Food kitchens are available within large cities to alleviate urban poverty and homelessness. Government-provided shelters are also available.
1.25 The government offered various welfare measures during the COVID-19 pandemic to lessen the impact, especially upon vulnerable populations. Two rounds of welfare payments, known as Bantuan Prihatin Nasional (BPN), provided assistance to the poorest households. The second round of BPN, paid in January 2021, provided MYR2.38 billion to 11.06 million eligible recipients. The welfare measures also included wage subsidies for lower-paid employees and tax exemptions on fees for childcare, alongside eVouchers for childcare services booked online to help parents (especially women) remain in the workforce. More than 300,000 disabled persons and single mothers received one-off financial assistance worth MYR300 (AUD95).
State Protection
Federal and State Law Enforcement Entities
1.26 Law enforcement entities operate at both federal and state levels. The RMP reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide. JAKIM standardises syariah-based law and regulates halal certification for food. JAKIM played a central role in shaping and enforcing the practice of Islam in Malaysia under the former BN government. The PH government signalled its intention to review and reform the department, though little change apparently occurred before the commencement of the PN government. JAKIM enforces syariah over Muslims in the three federal territories of Kuala Lumpur, Putrajaya and Labuan. State Islamic bodies enforce syariah at the state level. The RMP and JAKIM operate independently. While relevant state religious departments or the RMP can investigate misconduct by religious enforcement officers, the RMP is generally unwilling to involve itself in state religious matters. JAKIM saw its budget increase from MYR1.2 billion to 1.3 billion in 2020, and then again to 1.4 billion in 2021.
1.27 The People’s Volunteer Corps (RELA), a federal paramilitary civilian corps under the jurisdiction of the Ministry of Home Affairs, assists security forces. Private individuals can hire RELA for crowd control at events such as weddings and funerals. RELA membership totals approximately 3 million. Their engagement in law enforcement activities has significantly reduced in recent years. NGOs have reported that inadequate training has left RELA members poorly equipped to perform their duties. In 2020, RELA were active in imposing the MCO together with army and police.
1.28 State-level Islamic religious departments enforce syariah through Islamic courts and have jurisdiction over Muslims in each state in matters of family law and religious observances. Syariah-based laws and the degree of their enforcement vary from state to state, although religious enforcement officers (see State Islamic Religious Departments) can accompany police on raids in all states. The federal law limits some penalties imposed by syariah courts.
Military
1.29 The Malaysian Armed Forces have three branches of service – the Malaysian Army, the Royal Malaysian Navy and the Royal Malaysian Air Force – with approximately 110,000 active military personnel and 52,000 reserve personnel. The minimum age for voluntary service is 17 years and 6 months. There is no conscription. Military expenditure was 1.03 per cent of GDP in 2019. The premier unit in the Malaysian Army is the Royal Malay Regiment which is comprised of Bumiputera only. The Ranger Regiments and Border Regiments are not restricted to Bumiputera: the former is the second largest unit in the army and dates back to 1862; the latter was established in 2006 with a specific mandate of border control. The Royal Malaysian Air Force operates a diverse fleet of aircraft from a wide range of suppliers, including a fast jet fleet consisting of 8 F/A-18Ds and 18 Sukhoi Su-30MKMs. The Royal Malaysian Navy is a modern, professional Navy and operates 52 vessels across its fleet, including two French built Submarines. The Malaysian Armed Forces are a professional military force and have increasingly been utilised by the government in domestic roles. Through 2020 the Malaysian Armed Forces were deployed to help enforce the pandemic MCO, contribute to the border operation, Operation BENTENG, and respond to a number of natural disasters.
Royal Malaysia Police (RMP)
1.30 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.
1.31 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.
1.32 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).
1.33 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.
1.34 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.
Internal Relocation
1.35 Although the Constitution provides for freedom of internal movement, Sabah and Sarawak have autonomy over their own immigration. Non-Sabah or Sarawak residents, whether Malaysian citizens or foreigners, must present national identity cards (or passports for foreigners) to gain entry and can visit for a maximum period of three months. The federal government can overrule immigration decisions made by Sabah or Sarawak in limited circumstances, including for national security reasons.
1.36 Sabah and Sarawak both issue working visas to non-residents (including other Malaysians), but these can be difficult to obtain. Both states limit purchase of land by non-residents. Far more people migrate from Sarawak and Sabah to peninsular Malaysia than in the other direction, due to better work opportunities and higher salaries.
1.37 DFAT assesses that, subject to the restrictions outlined above in relation to Sabah and Sarawak, Malaysians can and do freely relocate internally, generally to larger urban areas in peninsular Malaysia for economic reasons. Individuals likely to attract official attention under state syariah-based law, including people who identify as LGBTI, women escaping domestic violence, or Muslims wishing to marry non-Muslims, may also move to large urban centres to avoid attention.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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