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1606358 (Refugee) [2017] AATA  2188  (17 August 2017)

Last Updated: 17 November 2017

1606358 (Refugee)  [2017] AATA 2188  (17 August 2017)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1606358

COUNTRY OF REFERENCE: Malaysia

MEMBER: Peter Vlahos

DATE: 17 August 2017

PLACE OF DECISION: Melbourne

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


Statement made on 17 August 2017 at 12:13pm


CATCHWORDS
Refugee – Protection visa – Malaysia - Illegal money lenders – Debt owed by applicant – Threats for failure to repay - Did not inform police - Unwilling to relocate – Effective police force

LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997)191 CLR 559
Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 at 169-70

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] May 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
  2. The applicant, who claims to be a citizen of Malaysia, applied for the visas [in] March 2016 and the delegate refused to grant the visas [in] May 2016.
  3. The applicant appeared before the Tribunal on 24 May 2017 to give evidence and present arguments.
  4. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
  5. The applicant was not represented in relation to this review by a registered migration agent or legal representative.

CRITERIA FOR A PROTECTION VISA

  1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
  2. 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.
  3. 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 themself 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).
  4. 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.
  5. 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

  1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

  1. The issue in this case is whether Australia has protection obligations in respect of the applicants and for the reasons contained in this decision the Tribunal has concluded that the decision under review should be affirmed.

Country of Nationality and Identity

  1. Based on copy of the passport of the applicant, which was provided to the Department of Immigration and Border Protection (the ‘Department’) and to the Administrative Appeals Tribunal (the ‘Tribunal’) the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and assessed her claims against that country in relation to ss.36(2)(a) and 36(2)(aa) of the Migration Act (Cth, as amended).
  2. On the basis of the above-mentioned evidence, the Tribunal further accepts the applicant’s identity as claimed.
  3. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.

Background – Migration History of the Applicant

  1. The applicant first arrived in Australia [in] February 2016. [In] March 2017 the applicant applied for Protection visa and was granted the associated bridging visa.

Background – the Applicant

  1. The applicant is [age] male Malay, who was born in [location], Pahang, Malaysia. According to the applicant he lives with his family which consists of his parents and [number] siblings. The applicant is the [placement] of his family’s siblings. His parents ran their own [business] and [a] brother owns and runs his own [business]. [Another] brother, according to the applicant works as [occupation] and his sister is married and resides away from home with her husband. The Tribunal was also told that the applicant had completed his education in December [year] graduating with a [qualification].
  2. Before deciding to come to Australia, the applicant was working in [occupation] for one of his [colleagues]. That employment lasted for approximately seven (7) months and after he left that employment, the applicant has been unemployed.
  3. The Tribunal was told that when he commenced working his salary was RM[amount] per month. When considered with the cost of living the applicant encountered he was left with very little in order to save. Due to these financial concerns, the applicant left his work and returned to his village in order to try his hand at establishing his own business in partnership with [a] brother.

The applicant’s claims

  1. The applicant made the following claims in support of his application for Protection visa and the subject of review before the Tribunal:

Deals with the moneylender (s) or loan sharks (Ah Long)

  1. The applicant told the Tribunal that once he had decided to go into business, it was then, he decided to borrow money. At first, he decided to borrow from the banks but his loan application was rejected.
  2. The applicant told the Tribunal that his loan applications with the banks had been rejected because he had not settled his “...student loan with the government.” Having failed to get a loan from the banks, the applicant decided to borrow the required capital from the loan sharks (Ah Long).
  3. The applicant negotiated a loan of RM[amount] with the local “[certain]” loan shark syndicate. The basis of the applicant’s agreed to “repayment plan” was “for every amount] ringgit that was borrowed [the applicant] would repay [amount] ringgits.
  4. The Tribunal was told that the applicant met these [certain] loan sharks on a side road and in order to secure the loan, he provided them with copies of his ‘[document]’ and a ‘current photo of himself’.

When did the applicant’s problems with loan sharks begin?

  1. The applicant encountered problems with the [certain] loan shark when he failed to meet his monthly repayment obligations, sometime in 2015. The applicant had secured the loan and had endeavoured to establish his own business but the business venture never took off.
  2. When the repayment became due and not paid, the applicant did not encounter the original loan shark he had dealt with but told the Tribunal that “his people came and visited me...” The applicant was requested to provide the money. Having not provided the money, the applicant told the Tribunal that after that visit he had “[colour] paint” “sprayed at the front of his home” and suffered from regular visits from individuals demanding payments to be made.
  3. The applicant did not choose to report these threats and intimidation to the local police but decided thereafter to come to Australia. The applicant then told the Tribunal that “...he telephoned the police” but he was “...told off by the police” and no police report was filed by the applicant. After that encounter with the local police he decided to come to Australia.

Incidents of intimidation towards family members in the applicant’s absence

  1. The applicant told the Tribunal that on one occasion, unknown persons attended his parent’s home and left a copy of the applicant’s [document] and photo at the front of the house but did not directly threaten the applicant’s parents.

How did the applicant leave Malaysia?

  1. The Tribunal was told that the applicant borrowed the sum RM[amount] for his needs from a friend and left for Australia.

Why not re-locate to another part of Malaysia?

  1. The applicant did not feel that he could be safe in any other part of Malaysia. He told the Tribunal that one of “their men” (loan sharks) could locate his whereabouts in any part of Malaysia. The applicant explained to the Tribunal that loan sharks have their agents in different parts of Malaysia and given that they had his personal details they could locate him in any part of Malaysia.

The applicant’s intentions concerning the outstanding loan

  1. The Tribunal asked the applicant – how much of the original loan had he paid to the Chinese loan shark. The applicant’s response was that he had provided a “[amount]” ringgits without being specific on the amount actually repaid. However, this repayment was not made on a monthlybasis.
  2. The applicant also told the Tribunal that he tried to make “full settlement” of the outstanding loan but the loan shark did not allow him to do so. The Tribunal asked the applicant to explain why the loan shark would not want their loan paid if the applicant desired to pay it in full. The applicant’s response was that the loan shark wanted to extract more money from the applicant.
  3. The Tribunal asked the applicant when faced with this dilemma of wanting to repay the loan and being faced with a refusal – why did he not go to the police. The applicant’s response was “...I do not know about that ... [it] never occurred to me...”

Country Information discussed with the applicant

  1. The Tribunal also referred to country information on Malaysia from DFAT in relation to police in Malaysia. DFAT reports that credible and local and international sources indicate that the police are a professional and effective force. DFAT acknowledge that the police responses depend on their levels of training or whether they are engaged in corruption themselves. While acknowledging that corruption in the police force is a concern, measures have been put in place to look at and investigate the issue of police integrity and accountability. Some police have been prosecuted and found to be guilty of corruption but overall, DFAT assesses that there is an effective police force who generally do investigate crimes. The Tribunal also noted, in relation to Malaysia’s judicial system that, while the ability for individuals to seek legal redress through Malaysian courts is mixed, credible sources advised that defendants generally had adequate time to prepare a defence the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.
  2. The Tribunal explained to the applicant that it was obliged to put information to him that addressed some of the issues he had raised in particular about moneylenders in Malaysia and lack of protection available to him. The Tribunal explained that it was obliged to take this into consideration in assessing his claims. The Tribunal referred to both Malaysia and other media outlined herein that the police are very concerned about the issue of illegal moneylenders in Malaysia because it is a big problem and there have been a lot of reports in the Malaysian media to try to make people aware about the problem of illegal moneylenders and their illegal activities and they have encouraged people to report these. The media on this issue indicates there has been a concerted effort to address illegal money lending and they appear to have targeted moneylenders and associated criminal gangs.
  3. The applicant was invited to comment on this information and it was noted that the totality of the country information that had been referred to suggested that effective state protection was available to the applicant and the Tribunal asked him if he would like to comment.
  4. The applicant told the tribunal “...I did not know this...” However, the applicant expressed his doubts that the local police would protect his interests even if he had reported the loan sharks activities to them.

What is the applicant doing while in Australia?

  1. While in Australia, the applicant has been working [occupation]. His wages depends on the availability of work. Indeed, he could work an entire week but usually works (because it is seasonal work) 2-3 times a week.
  2. The applicant owns his own car which he debut scribed the model as a [name] model. He provided no further details concerning other personal property acquired while in Australia.

What does the applicant fear if he was to return to Malaysia?

  1. The Tribunal was told that if he was to return to Malaysia, he would found by the loan shark because they have their agent in every region of Malaysia. They also have the applicant’s personal details and photo. Once they locate the applicant’s whereabouts these agents would deal with him and ask for money, according to the applicant.
  2. In his concluding remarks the applicant conceded to the Tribunal that the local authorities could help but “they take time to assist...”

Country Information – Ah Long – Gangsters – Legal enforcement and Judicial system in Malaysia

  1. Illegal money lending or loan sharking, colloquially known as ‘Ah Long’ in Malaysia, is an offense under Section 5(2) of the Moneylenders Act 1951. If prosecuted, a fine of not less than RM20,000 and not exceeding RM100,000 or imprisonment of up to five years can apply.[1]
  2. In October 2013, The Sun Daily reported that figures supplied by the Malaysian Chinese Association (MCA) Head of Public Services and Complaints Department, Datuk Seri Michael Chong, showed that ‘The loan shark menace is worsening with Malaysians expected to be in debt by more than RM40 million this year – compared to last year’s RM39.5 million’. Loan sharks reportedly lent RM34,400,000 to financially-strapped Malaysians up to September 2013, and at the time of the article, ‘426 people were in debt to loan sharks, with each person owing an average of RM80,751’. According to Chong, ‘people continued to borrow from loan sharks despite continuous reminders by the authorities of the repercussions of doing so’. He also said that ‘of the 426 cases, 80% were by gamblers while the rest were drug abusers, failed businessmen and those living beyond their means’. Seven per cent or 32 people were reported to be repeat borrowers, and Chong said that ‘most of the repeat borrowers were involved in drug abuse and that their families were the ones who ended up being harassed by loan sharks’. Chong also said that the ‘police were powerless against loan sharks as the transactions were on a “willing seller willing buyer” basis’. Police, however, ‘can take action if loan sharks resort to violence or extortion to recover their money’.[2]
  3. Various media reports indicate that the practice of illegal money lending is widespread in Malaysia and that police operations targeting Ah Long are not uncommon. According to a Daily Express 22 April 2014 report, ‘police are tracking down members of unlicensed moneylending syndicates ... through contact numbers printed in their advertisements, including flyers, posters, banners and business cards...’ The article notes that one of the most significant barriers to prosecuting Ah Long syndicate members is the ‘lack of cooperation from the public, especially those who had fallen victims to the syndicate.’ This problem stems from threats by syndicate members. Police in Perak made 88 arrests during an eight month period and continue to combat Ah Long syndicates by removing marketing materials, such as advertisements, from the public space.[3]
  4. Police action against the Ah Long includes a police operation in Kuching, conducted from 23 May 2014 to 23 June 2014, which reportedly resulted in 1,051 illegal advertisements and posters for illegal loans being removed in the 135 police raids conducted.[4] In April 2014, the police and local authorities in Penang ‘pulled down 238 banners and streamers promoting illegal moneylending’.[5] The Malaysian Communications and Multimedia Commission also disconnected the telephone lines of contacts printed on the materials.[6] Between March and May 2015 police in Kota Kinabalu seized between 2,700 and 6,700 ‘posters, banners and name cards of illegal money lenders’.[7] Reportedly, ‘City Police chief ACP M. Chandra said the police and City Hall had carried out numerous operations under Ops Vulture’.[8]
  5. Numerous media reports were located regarding the effectiveness of police investigations and arrests related to Ah Long syndicate crimes. Police in Sabah reported that ‘16 men believed to be Ah Long members were arrested in 2013 compared to 12 arrested in 2012’ during Operation Vulture.[9] In 2013, Malacca police investigated 29 Ah Long related cases and arrested 20 people. Thirteen cases involved preventative measures with cases being ‘investigated under Section 5(2) of the Money Lenders Act 1951 for operating without a licence’.[10] Additionally, ‘four more cases and seven individuals were investigated under Section 29AA of the same Act for putting up posters.’[11] The Malaysian Digest reported on 16 October 2014 that ‘police rescued a 21-year-old after he was abducted by three men, believed to be loan sharks ... One day after the incident, police apprehended a 24-year-old man and a 29 year-old woman ... believed to be involved in the incident’.[12] The Malaysian Star reported on 29 May 2015 that two loan sharks were arrested during a police surveillance operation when collecting money from a victim. The arrested persons were wanted by police ‘for suspected involvement in several other cases of illegal moneylending in the district.’[13]

Criminal gangs

  1. The Tribunal also notes that country information indicates that the Malaysian authorities have from time to time instigated operations against criminal gangs and crime syndicates. The country information suggests that these gangs and criminal syndicates are not tolerated by the authorities. For example, in August 2013 the Royal Malaysian Police Force launched Ops Cantas Khas against criminal gangs and crime syndicates. In September 2013, Gambling and Secret Societies Division (D7) principal assistant director Senior Assistant Commissioner Datuk Abdul Jalil Hassan told the Malaysian Insider that the police had arrested 5,505 people for various crimes, including armed robbery, theft, vehicle theft, extortion and secret society activity:

Abdul Jalil, adding that the police also seized other weapons, including 21 swords, 70 knives, six axes, 11 brass knuckles and a stun gun. Ops Cantas Khas was launched following a spate of shootings in the country, believed to be related to turf war among gangs and linked to illegal activities. Among those shot dead were gang members or leaders, with the latest incident involving the shooting of a former air force man, whom the police claimed was the head of Geng 36 in Batu Gajah, Perak.[14]

  1. The Star also reported in September 2013 that three phases of the operation would focus on weapon seizure, targeting gang members and then gang leaders and their assets. According to statistics provided by police:

In the last 36 days (from Aug 17 to Sept 22), serious crime has gone down by 12.48% with murder cases lowered by 33.78%, gang robbery decreased by 23.58% and robbery dipped by 26% compared to the similar number of days between July 12 and Aug 16.[15]

  1. In June 2014 the House of Representatives, or Dewan Rakyat, was told that 79,414 individuals involved in various crimes were detained since the operation codenamed Ops Cantas Khas was launched. Home Minister Datuk Seri Dr Ahmad Zahid Hamidi lauded the success of the operation in reducing the number of murders and robberies, stating that:

Murder cases declined from 504 cases to 433 cases, a drop of 14%, gang robberies using firearms from 83 cases to 54 cases which showed a drop of 34%. Gang robbery without using firearms declined from 13,533 to 12,048, a drop of 9%, while armed robbery from 20 cases to 14 cases, a drop of 13%.[16]

In 2013, police identified 49 illegal gangs nationwide, with nearly 40,000 known members. More than 70 per cent of felons are ethnic Indians, who make up just 7 per cent of Malaysia’s population. Though small in number, they have been linked to a wide array of crimes - such as armed robberies, drug and prostitution rings, loan-sharking, gambling and extortion rackets, and even contract killings.

101 East spoke exclusively with a senior gang member, who reveals how these criminal organizations provide protection and work opportunities for many Malay Indians who live in poverty. The gangs prey on vulnerable youngsters with the lure of fast money and bonds of brotherhood.[17]

  1. In October 2014, quoting Inspector-General of Police Tan Sri Khalid Abu Bakar, the Malaymail Online reported that Ops Cantas Khas was ongoing, ‘Ops Cantas was never put off at any point of time and the operations are still in top gear’. Penang’s police chief Datuk Abdul Rahim Hanafi said there were 12 active secret societies in the state, mostly involved in extortion, protection rackets and drug-related activities.[18] No independent analysis on the operation was found.
  2. Astro Awani reported on 1 August 2016 that following a spate of shootings in the country, Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi requested Ops Cantas be ‘further enhanced’.[19] On 6 August 2016 ‘Op Cantas Khas 2’ was launched on 6 August. Astro Awani reported that on 13 August 2016 1,444 individuals had been arrested since the start of the crackdown.[20]
  3. The Tribunal notes the most recent (19 July 2016) Malaysian country information report by the Department of Foreign Affairs and Trade (DFAT) remains essentially unchanged regarding law enforcement, police corruption and the legal system in Malaysia. Law enforcement entities in Malaysia operate at both federal and state level. In relation to the Royal Malaysian Police (RMP) DFAT reports that credible local and international sources consider it to be a professional and effective police force:

Royal Malaysian Police (RMP)

5.5 The RMP employs approximately 102,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Home Affairs Minister. Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption. RMP officers receive limited training, particularly on human rights.

Suhakam does conduct some human rights training and workshops for police and prison officials. Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern (see ‘Police Integrity and Accountability’, below). The RMP is 80–85 per cent ethnic Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.

  1. In relation to police corruption in Malaysia, the Tribunal notes the following information by DFAT:

Police Integrity and Accountability

5.6 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion.

  1. The Tribunal also considered a report by Human Rights Watch in 2014 which has credited the Malaysian government for implementing many of the Royal Commission’s recommendations but have also noted that some of the key recommendations including improving investigative capabilities of the police and creating effective external accountability mechanisms have not been implemented.[21]
  2. In its Country Information Report – Malaysia, DFAT provides the following summary regarding Malaysia’s judicial system:

Judiciary

5.11 The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level and subordinate courts. Sharia courts operate at state level with jurisdiction over Muslims. The majority of Malaysia’s criminal, civil and family law matters are heard in the subordinate civil courts. Judicial appointments are made by a Judicial Appointments Commission; however the Prime Minister has final approval. The majority of the members of the Federal Court are Malay Muslims. Malaysia’s highest courts are somewhat influenced by political or religious affiliation. For example, credible local and international human rights organisations considered the prosecution of Anwar Ibrahim to be politically motivated (see ‘Political Opposition Members’, above). In July 2015, the government removed the Attorney General, Abdul Gani, who had been leading an investigation into 1MDB.

5.12 Credible sources advised that defendants generally had adequate time to prepare a defence, particularly where they had financial means to engage private counsel. Government legal aid resources were limited and generally of poor quality. Strict rules of evidence apply in court. However, state-held evidence was not consistently made available to the defence. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods; the International Center for Prison Studies reported that in mid-2014 24.8 per cent of the total prison population were pre-trial detainees.

5.13 The ability for individuals to seek legal redress through Malaysian courts is mixed. Judges receive relatively low salaries, limited training, and appointments were often made directly from university. Selective prosecution and arbitrary verdicts occurred, particularly in instances involving high-profile opposition politicians and human rights defenders. However, the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.

FINDINGS AND REASONS

  1. Based on the country information the Tribunal accepts that loan sharks or Ah Long operate in Malaysia and many of these individuals or syndicates are unregistered and unlicensed operators. The Tribunal also accepts that many of these loan sharks resort to criminal means to enforce their contracts with borrowers or their guarantors. The Tribunal also accepts that the authorities are working against these unlicensed money lenders and the ability of the authorities to protect borrowers from harm caused by the loan sharks and gangs varies, depending on the area, the capacity of the police and in some instances on corruption.
  2. Nevertheless the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded”. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have the responsibility or obligation to specify, or assist in specifying any particulars of the claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant. (MIEA v Guo (1997)191 CLR 559 at 596, Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70)
  3. While it has doubts about the applicant’s credibility, the Tribunal has considered the applicant’s claims separately and cumulatively and is prepared to accept that the applicant took out a loan from a [certain] unlicensed moneylender and has not repaid all of the money borrowed or the interest accrued. The Tribunal accepts on the basis of consistent country information that unlicensed moneylenders resort to physical threats and assault to recover monies owed and that although the applicant told the Tribunal he had faced such threats while in Malaysia. Nevertheless, the Tribunal accepts the applicant’s claim that if he was to return to Malaysia in the reasonably foreseeable future his whereabouts could be discovered by the [certain] moneylenders and the applicant could face threats to his person and property. However, the Tribunal does not accept as credible the applicant’s claim that even if he was to return to Malaysia the local police could not provide him with protection and assistance if required such protection against the [certain] moneylenders who he fears would cause him harm because he owes them money. While the Tribunal accepts that there are difficulties and inadequacies in the policing and in the judicial system in Malaysia generally speaking, having regard to the advice of the Department of Foreign Affairs and Trade, the Tribunal finds that the protection provided by the authorities in Malaysia consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system as required by s.5LA (2)(c) of the Act. The Tribunal considers on the evidence before it that this protection is durable and that the applicant can access it if he so desired. The Tribunal does not accept that, as the applicant claimed, the police are not willing to protect him because he had dealt with an unlicensed [certain] (Ah Long) moneylender. The Tribunal therefore considers and finds that effective protection measures as defined in s.5LA of the Act are available to the applicant in Malaysia and that the applicant therefore does not have a well-founded fear of persecution in accordance with s.5J(2) of the Act.
  4. Accordingly, the Tribunal does not accept that the authorities would be unwilling or unable to protect the applicant in his circumstances. There is no evidence before the Tribunal that the applicant seriously contemplated seeking the assistance of the police prior to his escape via Kuala Lumpur International Airport to Australia. The applicant provided no credible reason why he could not take advantage of this state protection or seek the assistance of the Malaysian judicial system, except to claim that he had not chosen to file a police report when threatened because he had not chosen to do so but feared for his life if he was to return to Malaysia.
  5. The Tribunal acknowledges country information referred to earlier, particularly to Department of Foreign Affairs and Trade’s assessment of the Malaysian police who are generally considered to be professional and effective. The Tribunal also notes the advice from Department of Foreign Affairs and Trade regarding police corruption, however this is recognised by the authorities in Malaysia and measures have been put in place to deal with this issue.
  6. In relation to the overall effectiveness of the authorities in Malaysia, as noted earlier, the Tribunal has relied on the country information showing that Malaysia’s protection system consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system and measures have been put in place to address corruption. Police and indeed, the government, have been making a concerted effort since at least 2013 to combat moneylending and there is no evidence that the police would refuse the applicant any assistance, if he were to request it. The country information and media reports indicate the government has taken this issue seriously and has committed extensive resources to do so. This in the Tribunal’s view demonstrates that effective protection measures are available, namely that protection against serious or significant harm could be provided to the applicant by the Malaysian State, that protection is durable and the Malaysian State is willing and able to offer such protection.
  7. For the reasons given above, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Malaysia in the reasonably foreseeable future and therefore the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
  8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion – complementary protection in s.36(2)(aa) of the Act.
  9. Overall the Tribunal is satisfied that if in the future, the loan sharks threaten or attempt to harm the applicant, there are mechanisms in the Malaysian legal system, including a reasonably effective State police force (that country information demonstrates is active and committed to taking action in relation to the claimed fear) that means the applicant could obtain protection sufficient to reduce the likelihood of harm to something less than a real risk in accordance with s.36(2B)(b). Therefore, the Tribunal finds that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

CONCLUSIONS

  1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
  2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
  3. 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 the criterion in s.36(2).

DECISION

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


Peter Vlahos
Member




































ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

...

cruel or inhuman treatment or punishment means an act or omission by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c) that is not inconsistent with Article 7 of the Covenant; or

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
...

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 them 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 illtreatment 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 wellfounded 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 wellfounded 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

...

(2A) A noncitizen will suffer significant harm if:

(a) the noncitizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the noncitizen; or

(c) the noncitizen will be subjected to torture; or

(d) the noncitizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the noncitizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a noncitizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the noncitizen to relocate to an area of the country where there would not be a real risk that the noncitizen will suffer significant harm; or

(b) the noncitizen could obtain, from an authority of the country, protection such that there would not be a real risk that the noncitizen 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 noncitizen personally.

...


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