1907645 (Refugee) - [2024] ARTA 765

1907645 (REFUGEE) [2024] ARTA 765 (16 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1907645
Tribunal:General Member A Anderson
Date:16 December 2024

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(aa) of the Migration Act.

Statement made on 16 December 2024 at 5:18pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from gang – bullied at school and work and beaten – members detained after applicant and mother’s report to police – further beating and threats – continuing harassment of family, and inquiries of whereabouts – key claims and evidence consistent – clear and credible evidence from mother and documentary evidence provided – real chance of serious harm in home area not for refugee criteria reason – complementary protection – no treatment for mental health, need for mother’s support and relocation not reasonable – gangs continue to operate despite police operations – real risk of significant harm – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 March 2019 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 national of Malaysia, applied for the visa on 28 December 2018. The delegate refused to grant the visa on the basis that the applicant was not owed protection obligations.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 29 October 2024 and 21 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s mother. The Tribunal hearings were conducted with the assistance of an interpreter in the Tamil (Malaysian) and English languages.
BACKGROUND
The applicant is a [Age]-year-old man from Alor Setar, Kedah, in Malaysia. He is of Indian ethnicity and Hindu faith. The applicant’s father resides in Australia. His mother and [siblings] are still living in Alor Setar.
The applicant finished his secondary education in Malaysia and worked various jobs thereafter, including as [an occupation].
He arrived in Australia as the holder of a UD-601 Electronic Travel Authority [in] September 2018 and applied for protection on 28 December 2018.
Evidence before the Department
In his protection visa application, the applicant stated that he had been a victim of bullying since high school and that he was then bullied by old schoolmates at his workplace when he tried to get a job. The applicant stated that on 18 October 2017 he was attacked by a group of Indian men who hit him with a blunt object, badly injuring him and requiring him to go to hospital.
The applicant stated that his mother reported this to the police, which resulted in one of the men going to prison. When this man was released in August 2018, he came looking for the applicant to get revenge. The applicant’s car mirror was broken, and his car splashed with red paint. The applicant stated that there was no point in moving within Malaysia because they threatened to find him anywhere.
The departmental file indicates that the applicant was not interviewed by a delegate. On 20 March 2019 the delegate made a decision to refuse the visa on the basis that the applicant’s feared harm did not arise for a reason or reasons listed in s 5J(1)(a) of the Act and that, in relation to complementary protection, state protection was available such that the applicant did not face a real risk of significant harm as a necessary and foreseeable consequence of being returned to Malaysia from Australia.
The applicant lodged an application for review of that decision on 30 March 2019.
Evidence before the Tribunal
On 11 March 2024, the Tribunal sent a ‘pre-hearing information’ form to the applicant, informing him that his case was being prepared to be given to a Tribunal Member and inviting the applicant to confirm his contact details, hearing requirements and to provide further information about his claims for protection.
On 14 March 2024, the applicant provided the completed pre-hearing information form in response, in which he referred to his claims in his protection visa application and stated that he did not believe the Malaysian authorities would provide any protection to him.
At the first hearing, the applicant stated that he was bullied and insulted by Indian boys at high school who said degrading things about his parents and who assaulted him from time to time. After high school, these boys joined a [gang] and continued to cause the applicant problems.
He told the Tribunal that to escape these issues he moved to various parts of Malaysia where he worked and tried to hide from the gangsters but that whenever he went home to live in Alor Setar, thinking that the problems would have died down, he was assaulted. The applicant elaborated on the incident occurring around Diwali in 2017 mentioned in his visa application form, stating that he was collected from work by one of the boys who had bullied him at school and taken to a place known as [Location] where there was a group of men waiting. The applicant stated that he knew these men and gave the Tribunal their names. They were the same people he had had problems with at high school, but they were now gangsters. The men gathered around him and beat him with their fists and a cable and hit him on the head with a beer bottle. The attack lasted a few hours before the men left him there. The applicant stated that he went and hid in an empty house overnight and then went home. His mother helped him to report the attack to the police.
The applicant told the Tribunal that the police took photographs of his injuries and then he went to the hospital where he had a scan for his head and was given some medication. He found out later that the police arrested six men who were held in jail for some time. During the time they were locked up, other members of the gang tried to pressure the applicant’s mother to withdraw the charges but she refused.
The applicant stated that once the men got out of jail he was beaten again. He was taken to a playground and beaten with a chain. He was able to run away and was assisted by a passerby to get home. He feared that the gangsters would kill him because they were angry that he had reported them to the police and that they had been imprisoned. He decided to leave to come to Australia.
The applicant told the Tribunal that since he came to Australia, his mother had told him that she had heard from others in their local area that the gang members had been asking about him and when he would be back. She had also told him that they rode their motorbikes around his family home and parked nearby. The last time they had done this was in July 2024. From this, the applicant knows that they still want to find him and kill him.
During the hearing, the applicant informed the Tribunal that talking about these experiences had made them all come back to him and that he was panicking. The Tribunal initially allowed the applicant a break and resumed when the applicant stated that he felt able to continue. However, based on the applicant’s presentation, the Tribunal then determined to adjourn the hearing to hear from the applicant’s mother at a subsequent hearing.
At the first hearing, the Tribunal received from the applicant a scanned copy of a letter signed by [Mr B] of Kota Setar police as well as its English translation. The letter was dated [December] 2017. It was headed ‘notification of results for case investigation regarding Alor Setara report [Reference]’ and stated as follows:
a.That [in] October 2017 the police received a report from a complainant, named as the applicant, of being bludgeoned by a blunt object by some Indian males.
b.That the case was investigated by Inspector [Mr C] under s 148 of the Penal Code (Rioting).
c.That the police apprehended six Indian males to assist in the investigation and statements from all suspects were recorded.
d.That [in] November 2017 the investigation report was referred to His Honor the Deputy Public Prosecutor for the State of Kedah with a suggestion of charges and that the Deputy Public Prosecutor instructed that no charges be brought forward.
At the second hearing, the Tribunal asked the applicant about how he feels his memory is of the events in Malaysia. He told the Tribunal that as a result of the events he had become stressed out and gone into depression. He stated that he could remember some of the things that happened to him clearly but that he could not remember some things. He also stated that when he thinks of what happened to him that he feels like ‘he is having a phobia’. He said he had been extremely worried for the past few days before the second hearing. The applicant had never seen a medical professional about his mental health because he did not know he could get help of this sort. The Tribunal discussed with the applicant that counselling or mental health support can have benefits and encouraged him to seek help.
The Tribunal asked the applicant if he could safely live in another area of Malaysia to avoid the gang members. The applicant stated that [the gang] has members all over Malaysia. He also stated that wherever he went he would be living in fear and unable to work because he would be so afraid.
The Tribunal also took oral evidence from the applicant’s mother, [Ms A], via telephone. The applicant’s mother stated as follows:
a.At Diwali time, the applicant was taken somewhere and brutally attacked. The applicant’s mother saw him the next morning and his head was bleeding. He told her that he had been beaten on the head with a beer bottle and on the chest by cable wire;
b.The applicant told her that the men put a gun to the applicant’s head and told him that if he told anyone about what happened they would shoot him;
c.The applicant’s mother told him that whatever happens they had to go to the police. She took the applicant to Alor Setar police station where she lodged the complaint that morning;
d.The police took the complaint. They went to the area where the applicant had been attacked and found the beer bottle and cable he was beaten with;
e.The police arrested the people who had attacked him. After about a week, they were released on bail. They asked the applicant’s mother to withdraw the case but she refused, telling them that they had nearly killed her son;
f.The case was closed after this;
g.For about six months, nothing happened. Then one day the applicant was sleeping at home when a person came and said there was a job for the applicant to do;
h.This person took the applicant to see the people who had been in the lockup and they attacked him with a dog chain. They threatened to kill the applicant. The applicant was saved by another person who helped him in his car and brought him home;
i.They did not report this incident to the police because the men kept threatening the applicant that they would kill him. The applicant’s father was also away and the applicant’s mother was scared as she was at home alone with her two daughters;
j.The applicant has not lived anywhere else in Malaysia other than Alor Setar;
k.The applicant’s mother kept the applicant at home until they could arrange for him to go to Australia because she was so scared to keep him in Malaysia. He is her only son and she knew he was in danger;
l.The applicant’s mother has been told by friends that they are still looking for the applicant. They ask where in Australia he is and when he is coming back. They say they will not leave him alive;
m.The men come near the house on their motorbikes and wait around. This happens every 2-3 months. Sometimes they ask neighbours who is inside the applicant’s mother’s house. The last time they did that was July this year;
n.The applicant’s mother has not reported this to the police because she fears they would hurt her daughters;
o.The men who hurt the applicant are friends of his friends. Some of them are brothers and they are all in a gang. The first attack happened because the applicant had talked to other people about these men having a gun. The later attack and the threats have happened because they are angry about being locked up and want to take revenge.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or 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), they 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 they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Country of reference
The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of the biodata page of which is contained on the Department’s file. At all times he has stated that he is a national of Malaysia and has been assessed on that basis by the Department. The Tribunal finds that the applicant is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.
Findings of fact
The Tribunal found it difficult in some respects to get clear evidence from the applicant about past events in Malaysia. The applicant was focused on the Diwali incident and returned to recount its details many times when the Tribunal sought to enquire about or clarify events pre- and post-dating that incident. The applicant’s evidence about living in other parts of Malaysia was also not clear or internally coherent.
However, the applicant gave a core account which remained consistent between the visa application form and his oral evidence to the Tribunal across the two hearings. The core account was that:
a.The applicant was beaten on the head and chest by a group of men around Diwali in 2017, requiring medical attention;
b.The applicant reported this to the police with his mother;
c.The people who attacked him were arrested and held in detention for a time;
d.The applicant was subsequently beaten with a chain and threatened;
e.The men are still looking for the applicant.
Based on what the Tribunal observed of the applicant at hearing, the Tribunal accepts the applicant’s evidence that he does not remember past events well or consistently and that he is likely experiencing mental health issues as a result of his past experiences.
The Tribunal has taken this into account when assessing the applicant’s evidence and the credibility of his account. In this regard, the Tribunal notes that it is well-understood that traumatic experiences may impact on the consistency of evidence or the ability to describe events in detail or chronological order. Studies have shown that high levels of emotionality and stress during an event, and having an emotional disorder, can have various effects on people’s ability to recall, organise and describe autobiographical memories.[1]
[1] Jane Herlihy, Laura Jobson and Stuart Turner, ‘Just Tell Us What Happened to You: Autobiographical Memory and Seeking Asylum’ (2012) 26(5) Applied Cognitive Psychology 661, 664-665.
While the Tribunal did not find aspects of the applicant’s evidence outside of his core account reliable for the reasons outlined in paragraph [33] above, the Tribunal accepts the applicant’s core account, noting that it was also supported by the evidence of the applicant’s mother, who has direct knowledge of the events in Malaysia and the applicant’s claim relating to the harm he fears from members of [the gang]. The Tribunal found her evidence to be clear, convincing and credible. The applicant’s mother was also able to provide insight into the reason why the applicant was targeted by the gang in the Diwali attack.

Where the applicant’s evidence and his mother’s evidence differ, the Tribunal prefers the applicant’s mother’s evidence. In this regard the Tribunal notes that the applicant’s mother’s account also matches the documentary evidence. Specifically, the police letter accords with the applicant’s mother’s evidence that the offenders were held in custody for a short period before the case was closed.
On the basis of the applicant’s mother’s evidence, the applicant’s consistent core account, and the documentary evidence, the Tribunal accepts as follows:
a.The applicant was assaulted by a group of men who belong to [the gang] in October 2017. He was beaten with a beer bottle and cable wires, sustaining injuries;
b.He was threatened with a gun and told not to tell anyone or he would be shot;
c.The applicant and his mother reported the attack to the police and named the attackers, who were subsequently held in custody while the event was investigated;
d.The gang tried to pressure the applicant’s mother to drop the charges. She refused but the men were released from custody and charges were not pursued by the prosecutor;
e.About six months later, the men lured the applicant to a deserted location and whipped him with a chain and threatened to kill him;
f.Since the applicant has been in Australia, the men have continued to ask for his whereabouts and harass the applicant’s family.
The applicant’s risk of harm on return to Malaysia is assessed below on the basis of these accepted facts.
Does the applicant satisfy the refugee criterion for protection?
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.
As set out above, the Tribunal has accepted that the applicant was seriously assaulted by members of [the gang] and that when he reported this to the police, the gang members were held in custody for investigation. The Tribunal has also accepted that the applicant was beaten again and threatened with death after the gang members were released from custody and that they continue to ask his whereabouts.
In Malaysia, on-going police operations target criminal gangs and crime syndicates. Numerous media reports show that targeted police operations disrupt gang criminal activity across the country[2] and police operations of this nature have been occurring for a number of years.[3]
[2] 'Cops cripple five-gang alliance with arrests of 21', The Star Online, (Malaysia) (29 May 2024) < 'Kedah police bust 'Gang Bri', group leader arrested', New Straits Times, (21 November 2023) < ‘Cops nab ‘Eddy Gang’ responsible for string of daytime burglaries’, Bernama (14 July 2023) < ‘Melaka police nab six Faiz Tanah Merah Gang members, including 13-year-old’, Bernama (9 June 2023) < ‘Shah Alam police nab two motorcycle theft gangs’, Bernama (2 June 2023) < ‘Tawau cops nab trio linked to armed gang robberies’, The Star (Malaysia) (18 May 2023) < ‘Police cripple luxury car theft gang, 14 including mastermind nabbed’, New Straits Times (18 February 2023) < ‘Police bust White Harrier Gang, nab four’, Bernama (30 December 2022) < ‘Cops nab 11 suspected members of Gang 35 in Kulim... following TikTok video on Father’s Day celebration’, Malay Mail (22 June 2021) < ‘Seven men charged in Ipoh over alleged involvement in gang-related activities’, Malay Mail (6 May 2021) < ‘Cops rearrest 25 members of ‘TCB 21’ gang over several serious crimes in KL’, Bernama (13 November 2020) < ‘Police bust ‘Muniandy Gang’ as eight nabbed for spate of burglaries around Hulu Selangor’, Bernama (13 November 2020) < ‘Cops detain 29 suspects allegedly involved in gangsterism, organised crime in Selangor’ MalayMail (5 November 2020) <>
However, as DFAT reports, gangs continue to operate in Malaysia and in 2022, local media reported that 72 underworld gangs were being monitored by police as potential threats to the country.[4] [The gang] was named on an August 2013 list of 49 secret societies deemed illegal under domestic legislation.[5] [Additional information].[6]
[4] Department of Foreign Affairs and Trade (DFAT), Country Information Report Malaysia (24 June 2024) [2.30].
[5] A Bohowmik, ‘Malaysian Home Ministry Discloses Names of 49 Illegal Gangs with 40,313 Criminal Members’ International Business Times (29 August 2013).
[6] S Raviechandran and NK Tharshini ‘Gang Membership among Malaysian Indian Young Adults’ (2023) 13(7) International Journal of Academic Research in Business and Social Sciences, 13(7) 1325.
[Additional information].[7] [The gang] is reportedly active in Peninsular Malaysia and its members actively involved in various illegal activities such as loan sharking, kidnapping, robbery, theft, murder and rapes.[8]
[7] Ibid.
[8] Ibid.
In light of this information and the evidence accepted by the Tribunal, the Tribunal accepts there to be a real chance that members of [the gang] will again seek to harm the applicant should he return to his family home in Alor Setar. In making that assessment, the Tribunal has had regard to the serious criminal offending of [the gang], including assaults and murders, their past violence towards the applicant, their threats to kill him, and their ongoing interest in his whereabouts. The Tribunal accepts that the harm may include significant physical harassment and ill-treatment of the applicant amounting to serious harm in accordance with s 5J(5) of the Act. For these reasons, the Tribunal finds there to be a real chance the applicant will suffer serious harm from [the gang] members if he returns to his home area of Kedah, now or in the foreseeable future.
However, as discussed with the applicant at hearing, the refugee assessment requires that a fear of persecution arise for one of the reasons mentioned in s 5J(1)(a) of the Act and that this reason be the essential and significant reason for the persecution.
The Tribunal does not accept that the applicant’s fear of harm arises for one of the reasons listed in s 5J(1)(a). The Tribunal finds that the reason the gang members have harmed the applicant in the past was because he talked about their criminal activities, including reporting them to the police. Any future harm would likely be carried out as revenge for those actions. In that respect, the Tribunal finds that the essential and significant reason giving rise to the harm feared is retributive. It follows that the applicant does not satisfy the refugee criterion in s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
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).
For the reasons set out above, the Tribunal has accepted there to be a real chance the applicant will face serious harm from members of [the gang] if he returns to Malaysia, now or in the foreseeable future. The Tribunal notes that section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test has been held to impose the same standard as the ‘real chance’ test applicable to the refugee criteria in s 36(2)(a) of the Act.[9] For the same reasons, the Tribunal accepts there to be substantial grounds for believing there is a real risk the applicant will face significant harm from [the gang] as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
[9] MIAC v SZQRB (2013) 210 FCR 505, per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The Tribunal accepts that the harm feared by the applicant involves severe physical and mental pain and suffering which would be intentionally inflicted on him by gang members. The Tribunal considers such harm would include ‘cruel or inhuman treatment or punishment’ as defined in s 5 of the Act.
Having accepted that the applicant faces a real risk of significant harm in Malaysia, the Tribunal has turned its mind to the circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
The Tribunal has considered whether it would be reasonable for the applicant to relocate to an area of Malaysia where there would not be a real risk of suffering significant harm for the purposes of s 36(2B)(a) of the Act. While, as mentioned above, [the gang] is active throughout Peninsular Malaysia,[10] there is no evidence before the Tribunal that the gang members pursuing the applicant would have the ability to locate an individual in Kuala Lumpur or another large city. In this regard, the Tribunal notes DFAT’s advice that Malaysia has an estimated population of 32.9 million people and that around three quarters of the population reside in urban areas.[11]
[10] S Raviechandran and NK Tharshini ‘Gang Membership among Malaysian Indian Young Adults’ (2023) 13(7) International Journal of Academic Research in Business and Social Sciences, 13(7) 1325.
[11] DFAT, Country Information report – Malaysia (24 June 2024) [2.6].
However, in this case, the Tribunal is not satisfied that the applicant could reasonably relocate to Kuala Lumpur or other large urban centre in his personal circumstances. Given the Tribunal’s observation of the applicant and his mental state at hearing, the Tribunal considers that on return to Malaysia the applicant would need his mother’s support to survive financially and otherwise in Malaysia. While the applicant has been living and working in Australia for the last several years, he has the emotional support of his father, who also resides in Melbourne. In light of the applicant’s particular vulnerability, the Tribunal finds that relocation is not reasonable in the applicant’s circumstances. It therefore finds that that s 36(2B)(a) does not apply in this case.
The Tribunal has further considered whether the applicant could obtain protection from the Malaysian authorities such that there would not be a real risk of suffering significant harm, as contemplated by s 36(2B)(b). The country information above suggests that the police have run successful operations against gangs aimed at disrupting their activities and that they have responded after the fact of serious crimes by arresting the perpetrators in some cases. However, it is clear from the country information that gangs continue to operate in Malaysia and perpetrate serious assaults, murders, and other crimes against Malaysian citizens.
The Full Federal Court has rejected the proposition that s 36(2B)(b) of the Act requires only the existence of an effective legal system for the detection, prosecution and punishment of offenders.[12] Whether an applicant can obtain protection under s 36(2B) requires a decision-maker to be satisfied that any protection available is such as to reduce the level of risk of significant harm to something less than real.[13]
[12] MIAC v MZYYL [2012] FCAFC 147 [36]-[40].
[13] Ibid. See also Department of Immigration and Border Protection, Complementary Protection Guidelines (29 February 2020) [3.6.2].
In this case, the applicant reported an assault to the police which was investigated. However, he was again beaten after the police involvement. It is evident that being investigated by the police did not deter the gang members from acting against the applicant or prevent the applicant from coming to harm. Above, the Tribunal has found the applicant to be of ongoing interest to [the gang] as a result of his past actions of reporting gang members to the police. In these circumstances, and on the available country information indicating that numerous gangs continue to operate despite police action against these groups and syndicates, the Tribunal is not satisfied that the applicant could obtain sufficient protection from the Malaysian authorities such that there would not be a real risk that he will again suffer significant harm and therefore s 36(2B)(b) does not apply.
The Tribunal is also satisfied that the real risk faced by the applicant is one faced by him personally and not faced by the population of the country generally and therefore s 36(2B)(c) does not apply to the applicant.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. In this case, there is no evidence to suggest that the applicant has any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Date of the hearing: 29 October 2024, 21 November 2024
Representative for the Applicant: N/A
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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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