1908186 (Refugee) - [2024] ARTA 558

1908186 (Refugee) [2024] ARTA 558 (28 October 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs

Tribunal Number: 1908186
Tribunal:General Member J Kotsifas
Date:28 October 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 28 October 2024 at 10:33am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – leaving a triad group – physical assault – threats from criminal gang – extortion – fear of killing – damage to the applicant’s car – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALO 347
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 3 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old man[1] who claims to be a national of Malaysia. He first arrived in Australia [in] November 2018 holding an Electronic Travel Authority (Subclass UD 601) visa and has not departed since his arrival. He applied for his protection visa on 27 February 2019.
[1] Department file: [Number], Tribunal case 1908186
On 3 April 2019, the delegate refused to grant the applicant’s visa on the basis that he is not a person to whom Australia has protection obligations.
The applicant applied to the Tribunal for a review of the delegate's decision on 4 April 2019.
The applicant appeared before the Tribunal on 17 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant was not represented at the hearing.
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.
BACKGROUND
The applicant’s personal background
The applicant was born in Terengganu, Malaysia. The applicant was married in Australia [in] May 2019.
His parents reside in Malaysia and he has [specified family members] who also reside in Malaysia.
The applicant travelled to [Country 1] [in] 2018. The applicant arrived in Australia [in] November 2018
Since arriving in Australia, the applicant has lived in [Town 1], Victoria, where he currently resides with his wife.
He completed his [grade] school in [specified year] and between 2011 and 2018 the applicant was employed in the different [Business 1s], initially as a [Occupation 1] and subsequently as a manager of [Occupation 1s] and [other employees] of those [Business 1s].
Since his arrival to Australia, the applicant had predominantly been employed on various farms in the [Town 1] area performing seasonal harvest and general farm work. He currently earns approximately $1,200 per week from his current employment.
The Tribunal accepts the above matters to be true.
Evidence before the Department
The applicant’s initial claims for protection
The applicant’s initial claims can be summarised as follows:
·The applicant joined a triad group upon the influence of his friend. One year later, he attempted to leave the group, but he was not allowed to do so.
·The group beat him, damaged his vehicle and watched him at all times.
·The applicant did not report the incidents to the authorities because he felt it was his own mistake for joining the triad group.
·The applicant does not believe the authorities can protect him if he returns to Malaysia because he fears something worse might happen if he seeks assistance.
·The applicant fears being beaten again by the group if he returns to Malaysia.
The interview
Department records indicate that the applicant was not invited to attend a protection visa interview.
The delegate’s decision
The delegate found that the Malaysian authorities can provide protection to the applicant, and they are willing and able to offer such protection. In addition, the delegate found that the applicant can access the protection of the Malaysian authorities, the protection is durable, and the protection consists of an appropriate criminal law, a reasonably effective police force and impartial judicial system. The delegate was satisfied that there are effective protection measures available to the applicant in the receiving country and that the applicant does not have a well-founded fear of persecution. The delegate found that the applicant is not a refugee as defined in s 5H of the Act and the criterion in s 36(2)(a) of the Act is not satisfied for this reason.
With respect to complementary protection, the delegate found that 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 as outlined in s 36(2B)(b).The delegate found that there was not a real risk that the applicant will suffer significant harm and the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(aa) of the Act.
Evidence before the Tribunal
The Tribunal asked the applicant whether he had prepared his own protection application. He indicated that he prepared his own application. The Tribunal asked the applicant whether his original claims were true and correct and the applicant confirmed that they were true and correct.
The Tribunal asked the applicant if he could recall what claims for protection he originally made in February 2019 and he stated that his claims related to his involvement with a gang when he was young.
The Tribunal asked the applicant when he joined the gang and he stated that he joined the gang when he was just [age] years of age and remained a member of the gang until he was [age range] years of age. The applicant stated that he could not recall the precise year he left the gang. The Tribunal also asked the applicant to explain the gang’s activities and he stated that the gang was one of the largest gangs and that he and other members were involved in extortion, making threats, beating up people and engaging in other criminal activities.
The Tribunal asked the applicant when he tried to leave the group and why he was not allowed to leave, and he stated that in 2009 he ran away from Terengganu and went to Ipoh, Perak to work in a [business 1] and after about one and-a-half years some gang members came to his place of work. He told the Tribunal that this occurred in 2010–2011 but he cannot recall precisely when. The applicant stated that the gang members warned him not to talk to anyone about his activities in the gang and particularly the gang’s involvement with certain unlawful and criminal activities. He stated that the gang also wanted to extort money from him in return for protection.
He told the Tribunal that the gang threatened to harm his parents and siblings if he attempted to run away and avoid paying them the money they had demanded. The Tribunal asked the applicant to describe the extortion and he said that the gang wanted money from him and that he paid them RM700–800 on three separate occasions. He told the Tribunal that this was a lot of money as he was only earning RM1,000 per month from his employment in the [business 1]. The applicant confirmed that he did not pay any further money to the gang and his family members were never harmed.
The Tribunal asked the applicant if he had approached the police for help and he stated that he did not do so because he was part of the gang and the police were already looking for him. Prior to the hearing the applicant provided the Tribunal with an untranslated document which contained a photo of the applicant. When asked to explain what the documents was, the applicant stated that it was a police poster of him showing that he was wanted by the police.
The Tribunal asked the applicant why the police would be looking for him and he stated that the police had published the photo of him in 2009, 2014 and again in 2017. He told the Tribunal that the poster showing a photo of him states that he was wanted by the police and that anyone with information about his whereabouts should contact the police. The applicants stated that he became aware of the wanted poster when a friend of his saw it published on the local police Facebook page in 2009. The applicant stated that it was posted again on the police Facebook page in 2014 but that in 2017, the photo of him also appeared in local newspapers and on local TV. The applicant stated that he was never able to seek police protection from the gang members because he himself was wanted by the police.
The applicant stated that when the gang members started to come to his place of work at the [business 1], his manager became concerned, and he was asked to leave his job. He stated that his manager also saw his wanted poster on social media. The applicant stated that in 2017 when he saw his photo on TV, he contacted the local police by phone asking why they were publishing a photo of him so many years after he had left the gang. He stated that the police advised him to surrender himself to the police. The applicant stated that he did not do this because he feared being charged with criminal offences and also feared that he would be sent to jail for a period of time.
After losing his job in Ipoh, Perak the applicant said that he moved to Kuala Lumpur in 2011 where he began working at another [business 1]. He said that he stayed there until 2013.The applicant stated that in late 2013 he moved to Johor Bahru to work for another [business 1] and remained in this employment until November 2018.
The Tribunal asked the applicant if he or any of his family members had ever been harmed by gang members. The applicant stated that in 2020, [his brother] was approached by a gang member asking about the applicants whereabouts. He stated that the gang wanted to recruit [this] brother as a replacement for himself, but his mother intervened to prevent this. He stated that he had never physically been harmed but fears returning to Malaysia with his wife because the gang may harass and intimidate him and may try to get him to rejoin the gang and take part in criminal activities.
The Tribunal asked the applicant about his claim that he was assaulted by the gang members. Specifically, the Tribunal asked the applicant when he was assaulted, why he was assaulted and by whom he was assaulted. The applicants stated that he was not assaulted but was threatened with harm in 2010–2011, on the three occasions they extorted money from him.
After the applicant had given evidence, the Tribunal put to the applicant that his original claim stated that his car had ben damaged by the gang members and that he had been beaten by gang members but his evidence to the Tribunal was that he had never been harmed. The applicant then told the Tribunal that his car was damaged and that he was slapped and punched on one occasion. He stated that this occurred in 2010–2011. When questioned as to why the applicant had not referred to the damage to his car when giving evidence to the Tribunal, he stated that he had forgotten to mention this.
The Tribunal raised with the applicant the information he had provided the Tribunal in his prehearing information form dated 12 March 2024 which stated the following:
·That the applicant’s family had abandoned him.
·That the applicant had borrowed some money from gangs and that he worked in a number of places to pay back the money he had borrowed.
·That he received death threats from gang members.
The Tribunal asked the applicant why these claims were not included in his original protection application and pointed out that the applicant had not provided the Tribunal with any evidence of this so far. The Tribunal noted that the applicant did not give any evidence of his family abandoning him or that he had ever borrowed money from gang members or that he had received death threats from gang members.
The applicant stated that he had used Google Translate to fill in his prehearing information form and that what he meant to say is that if he returns to Malaysia, he may be forced to work different jobs in order to pay the gang money so they can leave him alone, without fear of harm. The applicant confirmed that he did not intend to claim that he had borrowed any money from gangs. The applicant did not provide any evidence about his family abandoning him.
The Tribunal noted that the applicant left Malaysia in November 2018, nearly 6 years ago and that his evidence to the Tribunal was that he had left the gang when he was [age range] years of age (2007–2008) some 16 or 17 years ago. The Tribunal put to the applicant that given the passage of time, it may find that the gang members may no longer have any interest in him and that it was unlikely that he would be harmed if he returned to Malaysia. The Tribunal informed the applicant that for this reason, the Tribunal may not accept that the applicant faces a real chance of serious harm from gang members. The applicant was invited to comment on this observation, and he stated that his main fear about returning to Malaysia was that he may be arrested if the police are still looking for him and that there may be a warrant for his arrest and that he would be apprehended at the airport when he arrives in Malaysia. The applicant told the Tribunal that he is now married, has matured and lives a peaceful and fulfilling life in Australia and that he does not want to return to Malaysia. He told the Tribunal that he regrets being involved with gangs and engaging in criminal activity when he was young.
The Tribunal asked the applicant if his parents or any other family members had been threatened with harm and he stated that they had not been harmed.
The applicant was asked if he could relocate to another part of Malaysia upon his return so as to avoid the gang members and any potential harm from them. He stated that he was not sure where he could relocate to because the gang members were in all parts of Malaysia and that he would be found.
The Tribunal asked the applicant is there was any other reason he would fear harm if returned to Malaysia apart from the reasons given to the Tribunal and he confirmed that there was not.
Country information
The Tribunal also shared with the applicant additional country information which it considered relevant to the applicant’s case. Specifically, the Tribunal discussed with the applicant the Department of Foreign Affairs and Trade (DFAT) Country Information Report[2] regarding the security situation in Malaysia.
[2] DFAT Country Information Report Malaysia, 24 June 2024
The Tribunal summarised and canvassed with the applicant country information, including both from DFAT[3] and an open source[4] suggesting that state protection is available for him if he returns to Malaysia. Whilst acknowledging that the DFAT report highlights concern about police corruption, the police are generally regarded as a professional and effective police force. According to DFAT:
The RMP is based on the British constabulary model, employs approximately 115,000 officers, and operates over 800 police stations across Malaysia. Multiple local and international sources consider the RMP to be a professional and effective police force, although note the quality of its members’ responses varies depending on levels of training, capacity, and engagement in corruption. RMP officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians, and Indian Malaysians.[5]
[3] Ibid
[4] Selangor police cripple 10 Ah Long syndicates | Malay Mail,
[5] DFAT Country Information Report Malaysia, 24 June 2024 at 5.5
According to the Global Organised Crime Index 2021[6], Malaysia ranks in the top 25% of countries with high levels of organised crime. Despite this, same report suggests that Malaysia has made strides in crime prevention by establishing institutions to promote awareness and rehabilitate offenders.[7] The report notes that Malaysia is home to a number of gangs that exhibit mafia style behaviour and are also involved in criminal markets including the drug trade. One of the largest gangs is Gang 04, also known as Hua Kee. Though many of them have been crippled by high profile arrests or killings, other prominent gangs in Malaysia include Mamak, Gang 07 and Gang 08.[8]
[6] The Global Organized Crime Index 2021 - Malaysia, Criminality in Malaysia - The Organized Crime Index
[7] Ibid
[8] Ibid
The report notes that Malaysia has implemented campaigns against drugs, mobilizing communities to address the local drug problems and increase access to treatment and rehabilitation services.[9]
[9] Ibid
A Malaysian Risk Report published in 2020[10], reports the following:
Business perceives the police to be reliable in relation to enforcing law and order and in protecting companies from crime (GCR 2015-2016). Authorities have mechanisms in place to investigate and punish abuse among the security forces and the Human Rights Commission of Malaysia (SUHAKAM) investigated alleged abuses within the police (HRR 2015). Notwithstanding, Malaysians perceive the police as the most corrupt institution in the country (GCB 2013). Long-standing allegations of corruption within the police force have created a state of antagonism between the force and the Malaysian public over the years (TMI, Apr. 201
[10] Malaysia country risk report | GAN Integrity – 5 November 2020
According to Federal police Crime Investigation Department (CID) director Datuk Seri Abd Jalil Hassan[11], throughout 2016 to March 2022, a total of 3,983 gang members were caught under the Penal Code, Firearms Act 1971 and Corrosion, Explosives Act and Dangerous Weapons 1958. A total of 3,644 individuals were caught under the Societies Act 1966 for involvement with gangs with offences relating to ownership of logos or signs, swearing in ceremonies, tattoos and showing gang symbols on signboards, 589 members of the groups were held under Poca for committing violent crimes and 319 individuals were nabbed under Sosma due to organised crime activities.
[11]72 underworld gangs on police radar - Sinar Daily – 16 June 2022
The applicant was invited to respond to the DFAT report and other country information about gang activity, the effectiveness of the police in combating such gangs and access to police protection. He stated that he did not agree with the DFAT report regarding police protection and that the police are corrupt, and many members of the police are also members of gangs.
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). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent report from DFAT at the time of hearing was the Country Information Report for Malaysia dated 24 June 2024.[12] The Tribunal has considered this report, together with other relevant country information referenced in this decision.
[12] DFAT Country Information Report Malaysia, 24 June 2024
REASONS AND FINDINGS
The issue in this case is whether there is a real chance that if the applicant returns to Malaysia he will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Based on the evidence before the Tribunal, the Tribunal accepts and finds that the applicant does not have a right to enter and reside in a country other than his own country of origin – Malaysia. Therefore, the Tribunal accepts that s 36(3) of the Act does not apply to the applicant’s circumstances.
The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained in his Departmental file.[13] He has at all times stated that he is a citizen of Malaysia and has been assessed on that basis by the Department. Accordingly, 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.
[13] Department File: [Number]
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’ or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant him or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any and all allegations made by an applicant.[14]
[14] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters and nervousness and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time and cultural issues which affect how an applicant answers 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 taken into account in these findings.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.[15]
[15] Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J, Selvadurai v MIEA & Anor (1994)
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
Applicant’s fear of harm from gangs
The Tribunal accepts the applicant’s evidence that he joined a gang at [age] years of age and remained with this gang and engaged in criminal activity as part of the gang until he left the gang in 2007–2008, some 16–17 years ago. The Tribunal also accepts that on three occasions between 2010–2011, gang members extorted RM700–800 from the applicant. The Tribunal accepts the applicant’s evidence that some gang members came to his place of work in 2010 or 2011 to warn him about not speaking to anyone about the gang’s activities.
The Tribunal finds that between 2003 when the applicant joined the gang and 2007–2008 when he left the gang, the applicant was never harmed by any gang members apart from being slapped and punched on one occasion. This finding is consistent with the applicant’s own evidence to the Tribunal.
The Tribunal does not accept that the applicant’s car was damaged twice by gang members around the time he left the gang in 2007–2008. At the conclusion of the applicant’s evidence, the Tribunal pointed out to the applicant that he had not provided the Tribunal with any evidence about damage to his car as claimed in his initial application. The applicant indicated that he had forgotten to raise this part of his claim. The applicant’s evidence about gang members damaging his car was also vague and lacking in detail. There was no evidence before the Tribunal about the extent of the damage to his car, why it was damaged, who had caused the damage and when the damage was caused. The Tribunal finds that the applicant’s evidence about this aspect of his claim lacks credibility.
The Tribunal finds that there was no evidence before the Tribunal to support the claims made in the applicant’s prehearing information form, namely, that he borrowed money from gang members, had been abandoned by his family and that he had received death threats from gang members The applicant confirmed that the claims made in his prehearing information form were not correct and that an error occurred because he used Google Translate to fill in the form. The applicant confirmed that he did not borrow money from gang members and there were no death threats. Accordingly, the Tribunal finds that the applicant did not borrow money from gang members and that gang members have not gone to his family home to issue death threats.
With respect to the applicant’s involvement with a gang, the evidence before the Tribunal which the Tribunal accepts was as follows:
- The applicant joined the gang in 2003 some 21 years ago.
- The applicant left the gang in 2007 or 2008 some 16 or 17 years ago.
- Then gang members extorted money from the applicant in 2010 or 2011 some 13 or 14 years ago.
- Between leaving the gang in 2007 or 2008 and arriving in Australia in 2018, a period of some 10 or 11 years, neither the applicant nor his family members were ever harmed, except for the one occasion when the applicant was slapped and punched in 2010 or 2011 some 13 or 14 years ago.
- Since arriving in Australia in November 2018, nearly 6 years ago, the applicant’s family members have not been harmed by any gang members.
The Tribunal is not satisfied on the evidence before it that there are persons who will target the applicant upon his return to Malaysia. The claim that the applicant would still be of interest to gang members, or any other persons is speculative and remote. The Tribunal does not accept that the applicant was or is likely to be the subject of scrutiny by gang members or any other persons who would seek to harm him upon his return to Malaysia. As previously highlighted, the applicant left the gang 16–17 years ago and has been living in Australia for nearly 6 years and in that time, neither his parents nor any of his family members have ever been harmed or threatened with harm. The only evidence from the applicant about having been physically harmed was his evidence that he was slapped and punched once in 2010–2011 some 13–14 years ago.
Even if the Tribunal were to accept, which it does not, that there is a real chance that the applicant will be subjected to serious harm by gang members upon his return to Malaysia, the Tribunal finds that the applicant would be able to access effective protection measures should he return. The Tribunal acknowledges that while the DFAT report identifies some problems with corruption in the Malaysian police force, there is no indication that assistance from the police would be withheld from the applicant if incidents of threats of harm were reported to the police. The Tribunal accepts that the police and the courts would be willing and able to offer protection to the applicant and could provide such protection if he were to return to Malaysia, by the relevant State through its courts or by the police.
Moreover, there is nothing to suggest that the applicant could not access such protection which is clearly durable and which consists of appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2). Accordingly, the Tribunal finds that effective protection measures, as set out in s 5LA, would be available to the applicant if he returned to Malaysia, so that he does not have a well-founded fear of prosecution as required by s 5J(2).
The Tribunal finds on the evidence before it that there is no real chance that the applicant would be subjected to significant harm at the hands gang members or others. The Tribunal is not satisfied that there is a real chance the applicant will face harm, now or in the reasonably foreseeable future, if he returns to Malaysia. Consequently, the Tribunal is not satisfied that he has a well-founded fear of persecution in relation to this claim.
Fear of being arrested by the police
When asked by the Tribunal what was the main reason why the applicant feared returning to Malaysia, the applicant’s evidence was that he was wanted by the police because of his criminal activities when he was a member of his gang and that he fears being arrested upon his return to Malaysia. The applicant told the Tribunal that his fear that this would occur is supported by the police poster he has provided the Tribunal. He stated that the police were trying to locate him in 2009 and 2014 when images of the applicant were posted by the local police on their Facebook page and in 2017 the same poster showing a photo of him was shown on local television.
At the conclusion of the hearing, the Tribunal requested that the applicant provide the Tribunal with a translation of the police poster he had provided the Tribunal. On 23 October 2024 the applicant provided the Tribunal with the translation which shows the following:
- The document is issued by the Head Office of the [named location’s] Police.
- It is dated [in] October 2017.
- The applicants name appears on it.
- It contains a photo of the applicant.
- The applicant’s Malaysian Identity number is shown as is his home address.
- The document states that the applicant is wanted in relation to section 392 of the Penal Code of Malaysia.
- The document states that any information about the applicant should be referred to a designated person and the person’s contact numbers appear.
The Tribunal is prepared to accept the authenticity of the police document that has been provided to the Tribunal which shows that the applicant was wanted by the police in 2017 for certain offences that were alleged to have been committed by the applicant. The Tribunal finds that the applicant was a person of interest to the police in 2017.If the applicant has an adverse profile with the Malaysian police, it is possible that the police may wish to speak to him upon his return however, the applicant has not provided any details or context, such as formal charges, arrest warrants, or any explanation of how he was able to leave Malaysia unhindered on his lawfully issued passport that was issued to him [in] 2018.
The police document provided to the Tribunal is dated [in] October 2017 and the applicant departed Malaysia [in] November 2018 more than one year later. The fact that the applicant was never spoken to by the police in the 12-month period before his arrival in Australia and was able to depart Malaysia without any hindrance in 2018, suggests that his fear that he will be apprehended immediately upon his return is mere speculation. The Tribunal does not have sufficient evidence before it to conclude that the applicant is still a wanted man in 2024 who will be arrested, tried, or face any other adverse attention or harm of any kind from the Malaysian authorities should he return.
The Tribunal finds that there is no other information before the Tribunal indicating that the applicant will be otherwise targeted or harmed for one or more of the reasons in s 5J(1)(a). The Tribunal is not satisfied that there is a real chance the applicant will face harm, now or in the reasonably foreseeable future if he returns to Malaysia. The Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason, should he return to Malaysia.
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).
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), 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 his receiving country, there is a real risk that he will suffer significant harm.
In this case, the Tribunal has found that the applicant is a national of Malaysia, and the Tribunal therefore finds that Malaysia is his ‘receiving country’ for the purposes of s 5(1).
‘Significant harm’ is exclusively defined in s 36(2A) as follows:
(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.
The Tribunal asked the applicant whether there was any other reason, apart from what he had already told the Tribunal, why he would fear harm if he returned to Malaysia. The applicant indicated that there was no other reason apart from the reasons he had already explained to the Tribunal.
For the reasons set out above, the Tribunal has found there is no real chance of the applicant suffering serious harm if returned to Malaysia. In Minister for Immigration andCitizenship v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows that the Tribunal does not accept that there is a real risk that the applicant would face significant harm if returned to Malaysia on account of his fear of harm from gang members or the Malaysian police.
The Tribunal is not satisfied that the applicant meets the requirements of s 36(2)(aa).
Family unit member assessment
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

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v MIEA (1985) 6 FCR 155 at 169–70

34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547