1935294 (Refugee) - [2025] ARTA 1265

1935294 (REFUGEE) [2025] ARTA 1265 (14 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1935294
Tribunal:General Member S Fitzsimons
Date:14 April 2025

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:
·s36(2)(a) of the Migration Act.

Statement made on 14 April 2025 at 4:52pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from money lender – responsibility for debt after father’s death – financial support for mother and siblings – new claims of fear of harm from police because of Indian ethnicity and as former gang member – harassment, bribery, detention and beatings – police inquiries to applicant’s mother after applicant’s departure – consistent, detailed and persuasive evidence – police records unobtainable – country information – disproportionate imprisonment and harm to Indian Malaysians by police – profile as former gang member – effective protection measures not available – fear of economic harm – work history and resilience, workplace injury and treatment – fear of harm or forced recruitment by gang – gang well-organised and connected – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Calado v MIMA (1998) 81 FCR 450
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 Immigration and Multicultural Affairs on 5 December 2019 to refuse to grant the applicant a protection visa under s65 of the Migration Act 1958 (Cth) (the Act).
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 13 December 2019. On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). The Tribunal can continue this review that commenced in the AAT and consider and determine the matter accordingly.[1]
[1] Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
The applicant who claims to be a national of Malaysia, applied for the visa on 28 September 2019. The delegate refused to grant the visa on the basis that he was neither a refugee nor owed complementary protection.
The applicant appeared before the Tribunal on 20 December 2024 and 31 March 2025 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Tamil and English languages. The applicant was not represented.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s36 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 s36(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: s5H(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: s5H(1)(b).
Under s5J(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 ss5J(2)-(6) and ss5K-LA, which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues to be determined in this case are whether the applicant is either a refugee or entitled to complementary protection as set out in s36(2) of the Act. The applicant fears harm from the police because of his ethnicity, harm from a gang as a former member of that gang, and economic harm.
For the following reasons, the Tribunal has concluded that the decision under review should be set aside and remitted on the basis that the applicant is a refugee and therefore meets s36(2)(a) of the Act.
The applicant’s identity and country of nationality
The Tribunal has before it a copy of the applicant’s Malaysian passport which was included with his protection visa application. The delegate was satisfied of the applicant’s identity. At the first hearing the applicant told me he is a Malaysian citizen which I accept. The applicant also told me that he does not have a right to enter and/or reside in a third country nor is he a citizen of any country other than Malaysia which I also accept. I find that he is a Malaysian citizen and I have assessed his protection claims with Malaysia as the receiving country. I am satisfied that s36(3) of the Act does not apply.
The applicant’s personal background
The applicant was born on [Date] in Wilayah Persekutuan, in the Federal State of Kuala Lumpur.
His father was born in Malaysia and passed away in 2011. His mother was also born in Malaysia and she currently lives in Selangor in Malaysia. The applicant has one older brother and one younger sister. The applicant is single.
The applicant arrived in Australia [in] July 2019 and has been here ever since.
The Tribunal accepts each of the above matters to be true.
The applicant’s claims for protection before the delegate
The applicant’s protection claims were contained in his visa application form.[2] The only other document he provided to the delegate was his Malaysian passport. In his protection visa the applicant claimed that his family ran a [store] that got into debt with a money lender and when his father had died the debt became his responsibility because his brother was “insane” and his sister was at that time too young to work. He claimed he could not get work in Malaysia and so came to Australia to earn money to repay the debt. He claimed he did not experience harm in Malaysia, that he did not fear harm if he returned to Malaysia.
[2] Protection visa application form, Department File No: [Reference], document ID: 6736073.
The applicant was not interviewed by the delegate.
The delegate refused the applicant’s visa application on the basis that he was not a refugee as he was not claiming harm for a reason in s5J(1)(a) nor was he owed complementary protection on the basis of economic hardship because country information indicated that Malaysia’s economic outlook was positive and that any economic harm suffered by the applicant did not constitute significant harm.
Written Evidence before the Tribunal
In support of his review application, in addition to the delegate’s decision record, the applicant has provided to the Tribunal:
oAn email from the [Hospital] to the applicant dated 29 April[3]
oA death certificate of his father dated [February] 2011[4]
oWhatsapp screenshots of message conversations between the applicant and his Malaysian lawyer that are dated from 1 July 2024 to 22 January 2025[5]
oThe business card of his Malaysian lawyer
oNews reports[6] that he claims is evidence of police brutality and discrimination towards Malaysian citizens of Indian ethnicity
oA news report published by Malaysian news agency Bernama, that he claims is a report of the shooting deaths of his friends by the police and a photograph of the applicant with a group of young men, one of which he claims was shot dead by police[7]
[3] On the Tribunal file the document ID is: 12563192.
[4] On the Tribunal file the document ID is: 14141102.
[5] On the Tribunal file the screenshots were sent on 22 January 2025 attached to three separate emails and the document ID for each: 14482727, 14483710 and 14483745.
[6] On the Tribunal file the document ID is: 14982772.
[7] On the Tribunal file the document ID is: 15082636.
Oral Evidence and Findings
The applicant spoke freely and convincingly at both hearings, and for the majority of the time, he spoke in English without the use of the interpreter. He was confident in using the interpreter when required and confident in his use of English and this contributed greatly to the ease at which he gave his evidence to me. To the extent relevant to the matters under review, the applicant’s evidence at the hearings is discussed below.
At the first hearing I discussed with the applicant his claims in his protection visa application form. He told me that were true in that he did fear economic harm as he has a responsibility to financially support his mother and brother. Very early in the first hearing, he told me that he also fears harm from the police in Malaysia because of his ethnicity, and he also fears harm from a gang because of his status as a former member of the gang.
I asked the applicant why he did not include these new claims based on his ethnicity and former membership of a gang in his visa application. He told me that he feels a constant burden to look after his mother and brother, and that his brother has a disability, and at the time when he first arrived in Australia, all he could think about was the welfare of his mother and brother and that their welfare was his focus when he was completing the visa application form.
During both hearings, from the first time (and then every time thereafter), whenever the applicant spoke of the circumstances of his mother and brother, and the responsibility he feels towards them, he spoke with passion and integrity and he convinced me that he feels a genuinely heavy responsibility to financially provide for his mother and his brother, particularly given his brother’s disability. For this reason, I accept the applicant’s explanation for not including his subsequent claims in his visa application and I do not draw an adverse inference as to the credibility of the new claims.[8]
[8] As per s367A of the Migration Act 1958.
The applicant’s family and life in Malaysia
At the first hearing the applicant told me he is a practising Hindu and he is of Indian ethnicity. He told me father was born in Malaysia and that his father’s parents were born in India. I asked him if he had a right to Indian citizenship through his grandparents and he said no. I accept the applicant’s evidence and find that he is of Indian ethnicity and he is a Hindu.
The applicant told me that his father passed away in February 2011 when the applicant was [Age] years old and he provided the Tribunal with a copy of his father’s death certificate.[9] Based on this evidence I accept that the applicant’s father passed away in February 2011.
[9] As above at 4.
The applicant told me that he has a younger sister and an older brother, both of whom are Malaysian citizens. He told me that currently his sister lives in [Country], she is a single mother and has [children], all of whom are in her care. He told me that his brother, who lives with the applicant’s mother, has autism and he has reduced intellectual capacity that has meant he cannot work and has never worked. The applicant said that his brother left school in Grade 6 because he was so badly bullied due to his disabilities. I asked the applicant how old his brother is and he told me that his brother was born in [Year] and that he is about a year older than the applicant.
I asked the applicant about his mother’s health. He told me that she is [Age] years old and she is in reasonable health, but just prior to the second hearing, she had fallen and broke her knee cap. He told me she is recovering from surgery on her knee and that he has been paying for her health insurance and her medical expenses associated with the surgery. He also told me that his mother cannot work because she needs to care for his brother.
We discussed the applicant’s childhood. He told me that living in Malaysia as an Indian Malay meant they were poor. He said that his family lived in Selangor and that his mother and brother still live in Selangor. He said that from the time he was born they lived in huts, and his parents struggled financially. He told me that his father ran a [shop] and his mother could not work as she was caring for the applicant, his brother and sister. He said that the family’s sole income was from his father’s work in the [shop]. He told me that by the time the applicant was about four or five years old, his mother was struggling with caring for them and managing his brother’s disabilities and so the applicant went to live with his aunt. He told me his sister also lived with their aunt for period of time too.
The applicant said that when he was about 12 years old he wanted to live with his family again but after he moved home, the government demolished the hut they were living in and so he and his family moved into an apartment which was situated in a building of similar apartments. The applicant told me that the apartment was in an area of the neighbourhood where there was a lot of drug activity and crime and as his mother was still struggling, the applicant was sent to live in an orphanage in Petaling Jaya in Selangor.[10] He told me that he lived in the orphanage for about two years and that he was living there when his father passed away.
[10] The name and location of the orphanage is known to the Tribunal.
The applicant told me that when his father passed away he moved back to the apartment in Selangor with his mother and brother and that his mother and brother still live in that same apartment.
I asked the applicant about his education in Malaysia. He told me that he completed primary school in about [Year] and that for most of his primary education he was living with his aunty. He told me that he did undertake some secondary schooling when he lived at the orphanage but that when his father passed away he went and lived with his mother and brother again and because his sister was still young, he had to leave school and start working to support his mother and his siblings. He told me that his mother could not manage the [shop] and the care of the applicant and his siblings and so by the time the applicant was [Age] years old he was the sole income earner for their family. The applicant told me his mother would cry and ask him to look after his brother when she dies.
The applicant told me that he found it hard to get work because of his young age and lack of education. He claimed that he would do whatever work he could manage to find but that it was very hard and that he started getting into bad habits. I asked the applicant what he meant and he claimed that through some friends, who were also Indian Malay, he was recruited into a criminal gang that was involved in crimes centring on drugs and theft.
The applicant’s life in Australia and his health
The applicant told me that when he first arrived in Australia, he lived in [City] and worked on a [workplace]. During the covid pandemic, he continued working part-time. He lived in [City] for about two years before moving to Melbourne. He told me that since he has been living in Melbourne he has worked hard and since about August 2021, he has been working for the same employer working in [work sector] particularly working with [equipment]. He told me that he was hit by a [vehicle] at work which injured his [body part] and that in mid-2024 he had to have [body part] surgery. He told me that he has tried going back to work but he would be in too much pain and as he needs to stand at work he found standing for long periods difficult. He told me that he is receiving Workcover for his workplace injury but that his [body part] is improving and he has regular appointments with a physiotherapist.
The applicant told me since he has been in Australia he speaks regularly with his mother and his brother, at least a couple of times a week.
Towards the end of the hearing I asked the applicant if there was anything else he wanted to tell me and he said that if he had not come to Australia he does not think he would still be alive as he would not have had a job and would have ended up in jail or killed by the police. He said he feels safe and happy in Australia and can continue to support his mother and brother. He said that since living in Australia he has learnt how to really be a good person and he feels he has reformed himself.
Claim of a fear of harm due to the applicant’s ethnicity
Harm from the police
The applicant claimed that he had experienced harm in the past in Malaysia from the police in the form of unlawful arrest and detention, beatings, harassment and he was forced to pay the police bribes to be released from detention and that the harm he suffered was because he is ethnically Indian. The applicant also claimed that Indian Malays experience discrimination in relation to housing security, employment and education.
The applicant claimed in both hearings that for the few years before he left Malaysia, he had gained experience working in [work task]. He told me he enjoyed the work and his focus was on supporting his family. He told me that he found it difficult to keep a job for the long term, because, as his involvement with a gang, he was known to the police and that on several occasions he was unlawfully arrested and detained by the police, which would result in him losing his job.
The applicant claimed that the reason he was targeted by police is because he is of Indian ethnicity. In support of his claims the applicant provided the Tribunal with various news articles from the Malay media.
The applicant told me at the very beginning of the first hearing that he had engaged a lawyer in Malaysia to apply to the police headquarters in Kuala Lumpur to request his police records that the applicant claimed would show that he had been arrested and detained unlawfully. He told me that he had been asking the lawyer for the past few months to obtain his police records because the applicant wanted to prove to the Tribunal that he was arrested and detained unlawfully but that his lawyer still does not have the documents and his lawyer is confused as to why the police will not release them.
The applicant claimed that on at least three occasions between 2017 and 2018, when he was between the ages of about [Ages], the police took on suspicion of a crime that he says he did not commit. He claimed that he was known to the police from his association with the gang. He claimed that on one occasion he was charged with the theft of [items] (which he did not do) and he was kept in police custody for two weeks. He claimed he was then released on bail but then the police dropped the charges and he does not know why.

He claimed on the other two occasions he was charged and on one of those occasions, his case went to court but before the court case was finalised, the police asked him to pay MYR3,000.00[11] which his employer at the time paid, at which point he was then released, the court case dropped and he was able to go back to work.
[11] MYR = Malaysian Ringgit.
He told me that the most recent time he was detained by the police was for three months in about November 2018 when he was charged with stealing [an item]. He told me he did not steal the [item], that it was actually his [item] that had been stolen and that it had been stolen by the gang and even though he did not commit a crime, the police falsely accused him, detained him, and beat him. I asked about the beatings. He told me the police sat on him and used a rod and beat his legs 60 times (three instances of 20 beatings each). He said he was treated by a doctor in jail. He told me that he was then released in early 2019 after the charges against him were dropped and this was the catalyst for him moving to his cousin’s house and then departing Malaysia. I asked him why the charges were dropped and he said he did not know.
I asked the applicant if he had any police records or reports that would corroborate his claims and he said that he did not but that is why he had engaged a lawyer in Malaysia, to get that paperwork. He told me that he thinks the police have a report that he made about his [item] being stolen and he thinks there may also be records showing the instances he was arrested and detained, which he claimed were unlawful.
The applicant provided the Tribunal with whatsapp messages between him and his Malaysian lawyer, across seven months (up to January 2025).[12] The messages indicate that the applicant had engaged the lawyer to obtain records from the Malaysian police headquarters in Kuala Lumpur and that the applicant had followed up with his lawyer multiple times as to when those records would be released to him. The applicant told me at the second hearing that his lawyer does not know why the police have not released records to his lawyer.
[12] As above at 5.
The applicant also claimed that in addition to the three times he was detained, he was caught numerous times by the police (at least seven times), often stopping him when he was riding his motorbike to work, handcuffed and questioned on the side of the road and then once he paid the police a bribe, they would let him go.
At both hearings the applicant claimed that three of his friends (who were, like him, associated with Gang 36 and of Indian ethnicity), were shot and killed by police. I asked him to explain to me what happened. He told me that he did not know the specific details because it happened since he has been in Australia but that his mother saw a report on the TV news that named his friends and she called him and told him. He told me that he thought his friends might have been involved in theft acting for the gang, and that they were shot dead by the police in the middle of a highway.
After the second hearing the applicant sent the Tribunal two documents he claimed are evidence of a photo that he claimed shows him and some of his friends that were later killed by police as well as a news report of the killing of those friends. He claimed that his friends were targeted and then killed by the police because they were Indian Malay. He also claimed that the police are never held to account for their actions in targeting and harming Indian Malays.
I asked the applicant if the police have been looking for him since he has been in Australia. He told me that his mother told him that the police did come to her apartment twice not long after he left Malaysia and on the second occasion she told the police that he had gone overseas to work and so after that they left her alone but that they did visit her again most recently in October 2024 looking for him. The applicant said that the police do now know that he is in Australia because his Malaysian lawyer has told the police where he is.
I asked the applicant what he feared would happen to him if he returns to Malaysia. He said that as he is known to the police, and as the police know he is in Australia, he fears once he arrives back in Malaysia, he will be falsely arrested and detained upon arrival and physically harmed by the police.
Across both hearings the applicant was consistent in his evidence regarding the previous encounters he has had with police in Malaysia. I found his evidence to be persuasive and detailed, particularly in relation to the beatings he was subject to.
The news reports provided to the Tribunal by the applicant[13] corroborates his claims of social and educational discrimination experienced by Indian Malays and also of harm from the police towards Indian Malays and therefore I give those news articles some weight.
[13] As above at 6.
The applicant has provided two news articles[14] that he claims are reports of his friends being killed by the police in 2020. The news articles do not name the individuals killed by the police and so for this reason they do not satisfy me that they do report the deaths of the applicant’s friends, they are consistent with the applicant’s oral evidence of the circumstances of his friends shooting deaths by the police and so I give those news reports some weight.
[14] As above at 7.
The applicant has also provided a photograph[15] of him with nine other males, one of which he says was killed by the police. As I do not know the identity of any of the males in the photograph with the applicant I cannot be satisfied that the individual in the photograph that the applicant says was killed by the police was actually killed by the police and so I give the photograph no weight.
[15] Ibid.
For the reasons given in paragraphs [51] to [53] I accept that the applicant was, on at least three occasions between 2017 and 2018, falsely arrested and detained by the police. I also accept that in about November 2018 he was unlawfully detained by the police for three months and that he was subject to physical violence by the police whilst in custody. I accept that this experience was the catalyst for him moving to his cousin’s house and then departing Malaysia. I also accept that the applicant has been trying to obtain records from the police through his Malaysian lawyer to support his claims. I accept that the reason the applicant was targeted by the police is because of his ethnicity. I find that the applicant has a profile with the police because of his ethnicity and his profile with the police is heightened because of his status as a former member of Gang 36. I accept that the police have shown an interest in locating the applicant since he left Malaysia and I accept that through the applicant’s lawyer, the Malaysian police know that the applicant is in Australia.
Country information supports the applicant’s claims in relation to the harm he fears from the police because of his ethnicity. A disproportionate number of Indian Malaysians are in prison.[16] Indian Malays make up approximately 6% of Malaysia’s population yet 55 per cent of prison deaths between 2010 and 2017 were Indian Malaysians.[17] The harm experienced by Indian Malays in particular, by police, is serious. Deaths of Indian Malays in police custody have been reported as well as torture and violence in detention.[18] This leads me to find that the applicant would be subject to harm in the form of physical violence, torture and possible death by the police if he was to return to Malaysia.
Economic harm
[16] DFAT Country Information Report Malaysia 24 June 2024, paragraph 3.20, page 16.
[17] Ibid, paragraphs 3.16 and 3.20, page 16.
[18] and and and and
The applicant told me that living in Malaysia as an Indian Malay meant that throughout his childhood they were poor.
The applicant claimed that because of his ethnicity, and being targeted by the police, he would not be able to get a job in Malaysia and he would not then be able to support his mother and brother. He said that he thinks the only job he could get would be a manual labour job and that at the moment he has a [body part] injury from work that would make it hard for him to get a job in Malaysia. He claimed that even if he could get work in Malaysia it is hard to get a good paying job because he did not finish secondary school.
DFAT assesses that many Indian Malays are relatively poor and that they experience discrimination in relation to tertiary education access.[19] DFAT indicates that “Malaysia’s strong economic performance over the last few decades has led to a significant reduction in poverty.”[20] DFAT also indicates that there are labour shortages in many sectors.[21]
[19] As above at 16, paragraph 3.17 and paragraph 3.19, page 16.
[20] Ibid, paragraph 2.8, page 9.
[21] Ibid, paragraph 2.10, page 9.
Whilst I accept that if the applicant returned to Malaysia, he may not get a job that pays as much as he is paid in Australia, I consider the resilience that the applicant has shown in moving to Australia and supporting himself and his mother and brother, would assist him in finding work in Malaysia. On the basis of the country information quoted in paragraph [59] and due to the applicant’s resilience, I am not therefore satisfied that the applicant would suffer serious or significant economic harm for any reason if he returned to Malaysia now or on the reasonably foreseeable future.
Claim of a fear of harm from Gang 36
The applicant claimed that as he was associated with a gang in Malaysia, and that he would be harmed by that gang because of his status as a former gang member. He feared he would be harassed, beaten and forced to work for the gang.
I asked the applicant to tell me how he was recruited into the gang. He told me that some of his friends he had known when he was at school introduced him when he was a teenager (after his father died).
I asked the applicant about the gang and if it has a name. He told me that the gang is called “Gang 36” and that Indian Malaysians who are often teenagers are the prime group targeted for recruitment. He said the gang is involved in theft and selling drugs and the gang bosses are very powerful and have a lot of money and they bribe the police. He claimed that in some cases the police work for the gang.
In both hearings the applicant told me about his experiences with the gang in the past. He told me that once someone has been associated with the gang it was impossible to leave. He told me that it is the procedure of the gang bosses that once someone is recruited into the gang they do not let that gang member leave. I asked him if he knows of anyone who has ever successfully left the gang and he told me that he is the only person he knows of who has left the gang safely and that he is only safe because he is in Australia. The applicant told me of the names of some former gang members that he knows, who were friends of his, who have either been killed by the police or jailed.
The applicant told me that for a couple of years between about 2012 and 2014, in an effort to get away from the gang, he moved to [Town] and lived on a farm but as he needed to earn more money than he could earn on the farm, to support his mother and brother, he moved back to his mother’s apartment and got a job as [an occupation]. The applicant claimed that once he was back living with his mother and brother he was recruited back into the gang again. He claimed that he did not like the violent activities of the gang and wanted to “live a good life.” He told me that even with his best efforts staying away from the gang they would find him.
He claimed that even when he was not involved with gang members, as he is of Indian ethnicity and as the police knew of him from his association with the gang, the police would arrest him unlawfully which added to fear that he would be harmed, either by the police or by the gang members and he felt the only way he could be safe was to leave. He claimed that by 2018 he was determined to have nothing to do with the gang and so in March 2019 he went and lived with his cousin until he then came to Australia.
I asked the applicant if any of the gang members have contacted his family since he has been in Australia. He claimed that since 2020 some gang members have visited his mother’s apartment asking for the applicant by name and that this has occurred on several occasions. He told me that his mother was scared and she told the gang members that she did not know where the applicant was, hoping that they would then leave her alone. He claimed that in about 2021, after his mother told the gang this, some boys from the gang then tried to recruit the applicant’s brother into the gang for the purpose of selling drugs. The applicant said that his brother’s intellectual disability meant that he did not understand what was being asked of him, which resulted in his brother being arrested by the police. The applicant said that his mother had to explain to the police about her son’s disabilities and that after that the police released his brother without charge.
In the second hearing, the applicant claimed that as recently as three weeks prior, a fight between rival gangs occurred in the apartment building where his mother and brother live, and that some Gang 36 members again asked his mother where the applicant was (referring to the applicant by name) and threatened both her and his brother.
I asked the applicant if he did return to Malaysia, whether he could move elsewhere, to avoid Gang 36 and he said no because if the police could find him (and the police know he is currently in Australia) then the gang members could find him.
I asked the applicant what harm he fears if he returns to Malaysia and he told me that he fears that he will be targeted by existing Gang 36 members, harassed, physically harmed and forced to work for the gang.
The applicant’s claims regarding gang activity in Malaysia are consistent with country information. “Gangs continue to operate in Malaysia. In 2022, local media reported that 72 underworld gangs were being monitored by police as potential threats to the country. In-country sources reported that many street-level gang members were Indian Malaysians, in part reflecting their relative economic vulnerability.”[22]
[22] As above at 16, paragraph 2.30, page 12.
Advice[23] before me indicates that Gang 36 has a membership of over 8500 and is active in peninsula Malaysia and that “36” signifies “Triad 6” which is an offshoot of a long existing Chinese triad.[24] Consistent with the applicant’s claims is that over 70% of gang membership across Malaysian criminal gangs is of Indian ethnicity.[25] Corroborating the applicant’s claims is country information specifically about Gang 36 indicating that it does operate extensively in Selangor.[26]
[23] Raviechandran, S., & Tharshini, N. K. (2023). Gang Membership among Malaysian Indian Young Adults. International Journal of Academic Research in Business and Social Sciences, 13(7), 1325 – 1344.
[24] Ibid, page 1330.
[25] Ibid, page 1329.
[26] and and
Consistent with the applicant’s claims, a 2019 study about gang crime in Malaysia found that recruitment often begins at schools: “Recruitment into the gang usually starts in the middle school where the age group is between 10 and 13. Most gangs target youth that are easily talked into doing work for the gang. Current gang members will often use peer pressure or fear and intimidation tactics to get others to join their gang.”[27] As recently as 2024, advice before me indicates how school students are targeted by organised crime gangs specifically for recruitment.[28]
[27] Exploring the Profile of Gangsterism in Malaysia from the Perspective of Experts’, Moorthy, T N., Inbaraj D A., Rahim K M., Journal of Forensic and Crime Studies, volume 3, issue 1, pp.3-5.
[28]
The applicant was consistent and convincing in his evidence over both hearings. Throughout both the first and second hearings, when discussing his years in Malaysia after his father died, the applicant consistently referred to his desire to try and avoid the gang activity and work hard and “live a good life” because of the responsibility he felt towards his brother and his mother. I accept that his brother suffers from autism and an intellectual disability. I accept that the applicant’s mother cannot work due to her responsibilities caring for her older son (the applicant’s brother). I accept that the applicant’s sister cannot financially support the applicant’s mother and that the applicant’s income is the only source of income for the applicant’s mother and brother. I accept he has a genuine responsibility to financially support his mother and brother and that his responsibility is made more acute because of his brother’s disabilities.
Based on the applicant’s evidence and the country information above, I accept that the applicant was recruited into Gang 36 shortly after his father passed away. I accept that he attempted to leave Gang 36 on several occasions but that he was recruited back into the gang again. I accept that the applicant left his mother’s home and lived with his cousin prior to coming to Australia and that the reason he did so, was to escape from Gang 36. I accept that Gang 36 members have continued to harass his mother and brother since the applicant has been in Australia and that his brother was targeted by Gang 36.
The applicant spoke frequently and persuasively in both hearings of the instances when he had tried leaving Gang 36. He also told me that he is a reformed person since he has been living in Australia and he knows how to live a “good life.” I found the applicant’s evidence convincing that he has realised the detrimental effect of associating with a criminal gang in Malaysia and this leads me to find that he has left Gang 36 and that he would not voluntarily associate with Gang 36 if he returned to Malaysia. Accordingly, I find that he is a former member of Gang 36.
I consider that the instances of Gang 36 members continuing to attempt to locate the applicant through his mother and brother in the years since the applicant has been in Australia, indicate that Gang 36 are still interested in the applicant I find that the applicant has a profile as a former member of Gang 36.
Is the applicant a refugee?
I have considered the applicant’s claims individually and cumulatively. Whilst I am not satisfied that the applicant would suffer serious or significant economic harm for any reason if he returns to Malaysia, based on my findings above, and as assessed below, I am satisfied that there is a real chance the applicant would suffer serious harm from the police because of his ethnicity and that the real chance is exacerbated by his profile as a former Gang 36 member.
For the applicant to be considered at law a refugee,[29] he must have a well-founded fear of persecution. Well-founded fear of persecution is defined in s5J(1) of the Act which requires the satisfaction of three elements:
(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.
[29] s5H(1)(a) of the Migration Act 1958.

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.[30]
[30] 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.
Section 5J(1)(a) of the Act sets out five reasons for which a person must hold a fear of persecution in order to meet the definition of ‘refugee.’ One of those reasons is race not ethnicity. The visa application form asks which ethnic group the applicant belongs to not which race he belongs to. In Calado v MIMA[31] the Court held: “When considering the meaning of the expression “race” in a case such as the present, it is appropriate to take into account the “popular” understanding of the term which accords importance to physical appearance, skin colour and ethnic origin. There can be no single test for the meaning of the expression “race” but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins…”[32]
[31] Calado v MIMA (1998) 81 FCR 450.
[32] Ibid, at 455.
I have accepted above that the applicant is ethnically Indian. The applicant’s fear of persecution from the police is because of his ethnicity. Section 5J(1)(a) is satisfied.
For the reasons above, on the material before me, I have accepted that the reason the applicant was targeted by the police is because of his ethnicity. I have also found that the applicant has a profile with the police because of his ethnicity and his profile with the police is heightened because of his status as a former member of Gang 36. I accept that the police have shown an interest in locating the applicant since he left Malaysia and I accept that through the applicant’s lawyer, the Malaysian police know that the applicant is in Australia. I have found that the applicant would be subject to harm in the form of physical violence, torture and possible death by the police if he was to return to Malaysia. Of concern to me are reports of corruption within the Malaysian police force and a lack of accountability.[33] Also of concern the fact that the police have continued to contact the applicant’s mother in an effort to locate the applicant since he has been in Australia (and that they contacted her as recently as October 2024), combined with the fact that the police know that the applicant is in Australia. These concerns, combined with the ethic profile of the applicant, the fact that he has a profile as a former Gang 36 member, and the fact that the applicant has been targeted by the police in the past, satisfy me that there is a real chance that the applicant will be persecuted because of his ethnicity, if he returns to Malaysia now or in the reasonably foreseeable future. Section 5J(1)(b) is satisfied.
[33] and and Malaysia: IPCC bill is a step backwards for police accountability - Amnesty Malaysia and as above at 16, paragraphs 5.6 to 5.8 page 42.
I consider that the instances of Gang 36 members continuing to attempt to locate the applicant through his mother and brother in the years since the applicant has been in Australia indicate that the applicant is still at risk of harm from current Gang 36 members. The advice before me (quoted above) indicates that Gang 36 is a well-organised, well connected criminal enterprise. I consider that the applicant has a profile as a former member of Gang 36 that puts him at risk of harm from current Gang 36 members if he were to return to Malaysia. Whilst I consider the risk of harm from current Gang 36 members and the police is most acute in Selangor, where the applicant’s mother and brother live, I consider that his profile as a former Gang 36 member, in combination with the interest the police have shown in him since his departure from Malaysia, satisfy me the risk of serious harm is more than remote for Selangor and the rest of Malaysia. Section 5J(1)(c) is satisfied.
I am satisfied effective protection measures[34] are not available to the applicant as the primary source of the persecution in his case is the state (the police).
[34] s5J(2) of the Migration Act 1958.
The applicant’s ethnicity cannot be modified or concealed and therefore s5J(3) is not relevant.
I am satisfied that the applicant fears persecution because of his ethnicity and that this is the essential and significant reason for the persecution. I am satisfied that the persecution involves serious harm directed to the applicant in the form of a threat to life or liberty, significant physical harassment and significant ill treatment, and that the persecution involves systematic and discriminatory conduct. Section 5J(4) is satisfied.
On the material before me, I am satisfied that the applicant has a well-founded fear of persecution for reasons of his ethnicity if he returns to Malaysia now or in the reasonably foreseeable future. For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s36(2)(a) of the Migration Act.
Dates of hearing:   20 December 2024 and 31 March 2025
Representative of 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.
…
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.
…