1419595 (Refugee)

[2016] AATA 4173

1419595 (Refugee) [2016] AATA 4173 (5 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419595

COUNTRY OF REFERENCE:                  Singapore

MEMBER:Stuart Webb

DATE:5 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 05 July 2016 at 3:53pm

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 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 Singapore, applied for the visa [in] August 2013 and the delegate refused to grant the visa [in] October 2014.

3. The applicant appeared before the Tribunal on 16 June 2016 to give evidence and present arguments. The applicant provided a copy of the delegate’s decision to the Tribunal.

   RELEVANT LAW

4. 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, the applicant 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.

   Refugee criterion

5. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

15. 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 a protection 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 the applicant 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’).

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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

19. The applicant provided the following statement with his application.

    My name is [name]. I am Chinese, born in Singapore on [date], aged [age], having been staying in Singapore all my life. After my military service, I went to become [occupation] which I have been doing for the past [number] years.

    All was well during the first few years; I worked hard, [to] get more clients. I started to have a steady income. However during the financial crisis in 2009, my clients suffered losses and they couldn't pay up. [I] was bound to make payment for them. Despite using up all my savings, I still didn't have enough to pay. A friend recommended me to borrow funds from his associates. I took up the loan from them at 10% monthly interest rate because I didn't have other choice. If I didn't repay my clients' debts I could be discharged from my job or be sued bankrupt. I started to return them the interest monthly. But with my job income going downhill my income flow decreased. I started having problems paying interest to them and they got me to take up more loans at higher interest to service the old loans. I went to become a part-time [occupation] since 2010 to get more income. I went to [work] until the wee hours in the morning. Because of my debts, problems arose from everywhere. After every 6 months they will just raise the interest making it impossible for me to service the loans. I have been paying for the past 4 years, but my debt never decreased. Instead it just kept ballooning. They would threaten me to pay up on time. if not they will do harm to me. They would be abusive to me. I had suicidal thoughts but I could not bear to leave my family behind.

    I came to Australia hoping to get a new life and to start over. When I reached here, my mum told me they came to look for me and threatened to kill me if they found me. They got officers from the government sectors and found out I was in Australia. They are going through government officers to locate me because they are rich and influential. I have no means to go against them and the government officers are on their side. I will be harmed before I can do anything. If the officers are just and fair, they should know that I had been paying unreasonable high interest so that they would not choose to side with them. The creditors don't have a license to operate money lending activities but nothing happens to them. Obviously the governors take the side of those illegal creditors.

    To the dear sir/madam reviewing my case, I just want to be truthful to you. I have been living in Singapore for the past [number] years. I am educated and can make a decent living. I served my country. All my loved ones are in Singapore. I left because I didn't have a choice. My life will be in danger if I return to Singapore. All I hope for is a chance for me to start anew and to keep my life safe. I will contribute to Australia in any way that I can. I will pay my taxes and contribute to society. I won't ever be a burden to Australia. I can settle down anywhere in regional Australia and do any type of job there is. I just hope to live normally, being treated like a human being.

20. The applicant provided some further documents. This included a letter from [business name] that he owed [amount] SGD; a letter from ‘[business name] stating he owed [amount] SZGD. He provided documents pertaining to training and licence to [work].

21. The applicant attended an interview with the Department. He provided the following additional information. He had been [occupation] with [Company 1] from 2003 to 2013. He lost money in the financial crisis of 2009, as did his [clients]. The applicant stated he became liable for repayments on his client’s behalf, equating to SGD$[amount]. He borrowed money from 2 registered and 1 unregistered creditor to make repayment. The interest rose. He fled Singapore. He fears he will be harmed because of the debts owed.

22. The delegate accepted that the applicant owed money and that he was generally credible. He provided evidence that he owed 2 registered financial institutions over SGD$[amount]. The delegate noted that these institutions can legally pursue civil or criminal actions against those who breach loan contracts. These avenues are available to all and are a law of general application for a legitimate purpose.

23. The delegate had concerns with the claim he owed money to an unlicensed creditor, as there was limited information about this debt. However the delegate determined to give the applicant the benefit of the doubt with respect to this claim.

24. The delegate did not consider that the applicant’s claims were Convention based, as the identification of people owing money to unlicensed creditors was not fixed or unchangeable, or fundamental to a person’s identity. The delegate did not consider this group distinguishable in the Singaporean community.

25. The delegate noted country information that the authorities have taken actions against loan sharks, including criminal proceedings that had led to a reduction of such activities. Laws were referenced with detailed how this action was illegal. The applicant had not claimed to have been threatened or harmed during his time in Singapore. He borrowed the money in 2009 but remained in Singapore until coming to Australia in May 2013. During that time he remained working [for] [Company 1], as well as working as [occupation], without being harmed. The delegate considered that the applicant would not be denied state protection should he seek assistance. The delegate determined that the applicant did not have a real risk of significant harm on return to Singapore.

26. The applicant provided further details regarding his claims at the Tribunal hearing. He provided a cogent explanation as to his [work] experience in Singapore. The applicant stated that he was employed as [occupation] in [industry] by [Company 1][1]. The applicant found his own [clients] and [undertook work] through the [Company 1]. The applicant did not receive a salary, he received a commission, 40% went to him and 60% to [Company 1].  The applicant stated he signed a document with  [Company 1] that he would be liable for any losses, and that he had to deposit $[amount] SGD as a security with [Company 1] to conduct his business. The applicant stated he earned around $[amount] to $[amount] SGD per month though his commission. The applicant also stated he earned around $[amount] to $[amount] per month selling [products].

    [1] [Information deleted].

27. The applicant explained[details of business transaction deleted].

28. The applicant explained that in 2009 his clients made losses through this [transaction] because of the financial crisis. The money being lost was significant. The applicant accepted [deleted] as they were his clients, and he did not want them going to other [businesses]. However these clients then went bankrupt. [Company 1] covered the losses and approached the applicant to repay the money paid out on the applicant’s purchases for his [clients]. The losses were greater than the security held by [Company 1].

29. The applicant stated he went to a number of banks and borrowed money. He stated that he received around $[amount] SGD from these banks. He stated that he had paid them back over time. The Tribunal noted that the documents as provided to the Department showed he was overdrawn on the two accounts he held, and had not paid these back. The Tribunal noted that there were civil court options available for the banks to recover their money or bankrupt the applicant, these were legitimate and legal steps that could be taken. The applicant agreed with this, and stated he did not fear harm from the banks and the debts he had incurred with them.

30. The applicant stated he borrowed $[amount] SGD from a private money lender. The applicant stated it was at 5% interest per month. The Tribunal determined that the money required to repay per month was significantly higher than the applicant’s monthly wages. The Tribunal questioned how a competent financial man would enter into an agreement of this nature, where the money he would have to pay was beyond his stated means. The applicant agreed it was a very stupid thing to do. The applicant stated he did not think, he wanted to keep his job. The Tribunal noted that the applicant could have pursued other options, such as going bankrupt or resigning his position. The applicant stated he did not want to do this as [it] was his dream career. These other options would have ended that dream.

31. The Tribunal questioned the timing of the applicant’s difficulties. The Tribunal noted that the applicant had borrowed money in 2009, yet maintained his position at [Company 1] till April 2013. The applicant stated he resigned at that time. The Tribunal noted that the applicant left in a very orderly manner from [Company 1]. The applicant stated that if he just left they would have tried to find him in order to arrange a transfer of his clients. This way made it easier for him and them.

32. The Tribunal expressed its concern with the nature and length of this private debt, given that the applicant was not in a financial position to pay the interest from the outset yet had managed the debt for 4 years. The applicant stated he made bank transfers to pay for the debt. The Tribunal asked if he had records of this. The applicant stated his accounts had been frozen, his parents had received letters from the banks about this. In 2011 he started [working part-time] to make more money.

33. The applicant stated he was struggling to pay. He missed a two payments, the money lender went to his house and threatened him. They said they would break his legs. The applicant stated he had to run away. He confirmed he had never been to the authorities to report the threats that had been made. The applicant stated that the authorities could not guarantee his safety. The applicant stated that the money lenders had been to his home looking for him. They had not threatened his parents.

34. The Tribunal discussed country information about the Singaporean police and authorities in general.  The Tribunal noted that the police had a good reputation and Singapore was noted for the security it had. The applicant agreed with this summation. The Tribunal noted that it had serious concerns that the applicant had not sought effective protection in his own country.

35. The Tribunal asked if the applicant faced any criminal charges in Singapore arising out of his actions. The applicant stated he did not. He stated that he had never received any charges, and his parents, with whom he lived, had not received any charges or letters from the police regarding him. The Tribunal noted that some time had passed since the financial issues and the time the applicant has been out of the country.

36. As discussed at the hearing, the Tribunal considers that if the applicant was a person of interest to the authorities arising out of his financial activities prior to coming to Australia, he or his parents would have been informed of this, either through direct enquiry or through correspondence received at the applicant’s home address, where his parent’s reside. There has been no such enquiry made nor any correspondence received, either when the applicant was in Singapore or in the subsequent 4 years the applicant has been in Australia. The Tribunal noted that there was no reference on the Interpol website regarding the applicant, which would be present if he was wanted internationally. The Tribunal finds that the applicant is not facing criminal charges on return to Singapore.

1. The applicant stated he wanted to make a new life in Australia. He was [working], paying tax. He had never made a claim on Medicare, though he was entitled to do so, because he did not want to be a burden to the community. He wanted to contribute to the community.

   Findings and reasons

   Country of nationality

2. The applicant claims to be a citizen of Singapore and provided copies of his Singaporean passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Singapore, and that Singapore is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.

   Third country protection

3. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

   Claims

4. The applicant’s claims revolve his borrowing money from a private money lender in 2009 to pay off debts arising from his [clients]. The applicant detailed how these debts could be created and accrued to him via his employer, [Company 1]. The Tribunal accepts that the applicant had a debt as claimed with a private moneylender.

5. The Tribunal has some concerns regarding the extent of the debt. The applicant was unable to explain how he could service a monthly interest payment which was higher than his monthly salary, even when he added extra activities to supplement his activities. He claimed to have borrowed money from various legal financial institutions, but also claims to have been paying them off as well.  The numbers as provided by the applicant do not add up. The Tribunal considers that the applicant has embellished the amount he borrowed from a private money lender. However the Tribunal does accept that there was a debt that the applicant was able to service for 4 years from the time he borrowed the money to when he left for Australia.

6. The Tribunal questioned the applicant about the threats that were made. After failing to make two instalment payments, some people came to his house and threatened to harm him, to break his legs, and shouted at him. After receiving these threats, the applicant arranged an orderly departure from his work at [Company 1], resigning in April 2013 so that there was closure, as the applicant put it. He then remained in Singapore for a further month prior to his coming to Australia [in] May 2013. As put to the applicant by the Tribunal, it was a very organised arrangement to leave Singapore over a couple of months. The Tribunal is concerned the delay on the part of the applicant in departing Singapore  demonstrates that he did not have a subjective fear of harm from money lenders at the time of his departure. The applicant was living at this family home throughout this period.

7. The Tribunal also notes that this period of time provided ample opportunity for the applicant to approach the authorities to report the intimidation and threats he said he received. The applicant never approached the authorities, despite the competent and effective reputation of the authorities, including in the area of moneylending. The failure of the applicant to approach the authorities in his country to provide him with effective protection is a relevant consideration in this matter.  

8. The US State Department makes the following observations regarding the role of police and security services in Singapore, and comments on the judicial process.

   Role of the Police and Security Apparatus

   The national police, under the direction of the Ministry of Home Affairs, maintains internal security; the armed forces, under the direction of the Ministry of Defense, are responsible for external security.

   Civilian authorities maintained effective control over the police force and the armed forces, and the Ministry of Home Affairs and the Corrupt Practices Investigation Bureau had effective mechanisms to investigate and punish abuse and corruption. There were no reports of impunity involving the security forces during the year.

   …

   The constitution provides for an independent judiciary, and the government generally respected judicial independence. Nevertheless, constitutionally authorized laws limiting judicial review continued to permit restrictions on individuals’ constitutional rights. The president consults with the prime minister but has discretion in appointing the chief justice and judges to the Supreme Court. The president appoints subordinate court judges on the recommendation of the chief justice. The Legal Service Commission, chaired by the chief justice, determines the term of appointment. Under the ISA and the CLA, the president and the minister for home affairs can exercise executive discretion, which explicitly (in the case of the ISA) or implicitly (in the case of the CLA) excludes normal judicial review. These laws empower the government to limit, on vaguely defined national security grounds, the scope of certain fundamental liberties that otherwise are provided for in the constitution.

   Some commentators and representatives of international NGOs noted that the Legal Service Commission’s authority to rotate subordinate court judges and magistrates and the ability of both the commission and the chief justice to extend, at their discretion, the tenure of Supreme Court judges beyond the age of 65 could undermine the independence of the judiciary.

   The law provides all defendants with the right to a fair trial, and independent observers viewed the judiciary as generally impartial and independent, except in a small number of cases involving direct challenges to the government or the ruling party. The judicial system generally provides citizens with an efficient judicial process.[2]

   [2] SINGAPORE 2015 HUMAN RIGHTS REPORT >

   The applicant has not claimed to fear harm from the Singaporean authorities or is seeking to challenge the government. The country information cited shows that in matters like that of the applicant’s he can rely on the services as available to him from the police and an independent judiciary.

9. Harassment and intimidation by loan sharks or persons acting on their behalf is criminalised under the Moneylenders Act 1959 and the Moneylenders Act (Revised Edition 2010).[3] An article published by Asian One News on 13 October 2012 quoted the Commander of Ang Mo Kio Police Division, Deputy Assistant Commissioner of Police Keok Tong San, as warning that “Police take serious views of individuals who seek loans from illegal moneylenders using their old addresses and cause inconvenience and misery to the innocent parties”. He further stated that “[t]hose arrested will be dealt with severely”.[4]

   [3] Moneylenders Act 1959 (Singapore), Ordinance 58 of 1959, promulgated 11 September 1959 (revised 30 March 1987), Attorney-General’s Chambers < Moneylenders (Amendment) Act 2010 (Singapore), Article 33, Act No. 5 of 2010, promulgated 12 January 2010 and assented to by the President 29 January 2010 (effective 11 February 2010), Attorney-General’s Chambers <

   [4] ‘Woman, 39, arrested for giving false information to loansharks’ 2012, Asia One News, 13 October <

10. An article featured on the Singapore Police Force website and published by The Straits Times on 24 October 2011 states that “first-time offenders found guilty of helping or attempting to help unlicensed moneylenders commit acts of harassment can be jailed for up to five years, given three to six strokes of the cane, and fined between $5,000 and $50,000”.[5] Article 1A of the the Moneylenders Act (Revised Edition 2010) provides that a second-time offender may also be liable to punishment by caning of not more than 12 strokes.[6] According to the Singapore Police Force website, a significant quantity of arrests of persons on loan shark harassment charges has taken place since January 2013.[7] The website also contains a public awareness campaign aimed at curbing youth involvement in loan sharking and harassment, including posters and videos.[8]

    [5] ‘Two suspected teen loanshark runners nabbed’ 2011, The Straits Times, 24 October, : Singapore Police Force 2013, News Releases on Unlicensed Moneylending <

    [6] Moneylenders (Amendment) Act 2010 (Singapore), Act No. 5 of 2010, promulgated 12 January 2010 and assented to by the President 29 January 2010 (effective 11 February 2010), Attorney-General’s Chambers <

    [7] Singapore Police Force 2013, News Releases on Unlicensed Moneylending < Accessed 21 February 2013 <Attachment>. See also ‘4 Malaysians prosecuted for loanshark harassment in Singapore’ 2013, New Straits Times, 23 January <

    [8] Singapore Police Force 2012, Resources, 6 February <

11. According to a news article published by Asia One News in October 2012, Second Minister for Home Affairs S. Iswaran stated that the government is focussing on “preventive education, enforcement, and community engagement” to tackle the loan shark intimidation problem.[9] Further, Singapore Law Review reported that police have collaborated with banks to freeze moneylenders’ accounts and have also formed “dedicated Anti-Unlicensed Money-lending Taskforces (AUML TFs) in every major Police division”.[10] An additional tactic employed by the government to protect individuals from harassment by loan sharks is the creation of “Citizens on Patrol” (COP) and Neighbourhood Watch Groups (NWGs), trained by police to identify “suspicious characters” and report on environmental factors that could be ameliorated, such as dimly lit streets. A separate October 2012 Asia One News article stated that there were 600 COP groups and 2,400 NWGs in Singapore at the time of writing, quoting the Deputy Superintendent of Police of Ang Mo Kio district, Tan Boon Heng.[11]

    [9] Lim, A 2012, ‘Going online, loan sharks get slicker’, Asian One News, 17 October <

    [10] Hakim, D 2012, ‘The Spectre of Loansharks’, Singapore Law Review, 14 October <

    [11] Lim, A 2012, ‘Vigilant residents help fight loan sharks’, Asia One News, 15 October < See also Sim, W 2012, ‘Citizen patrols to deter loan sharks’, The Straits Times, 5 November <

12. An article in The Straits Times on 12 January 2013 reported that “[o]fficers from Ang Mo Kio Police Division have managed to reduce loan sharking activities in their beat, particularly harassment cases, which fell by 30 per cent in 2012 from the previous year”. The article also cites statements by Deputy Assistant Commissioner Keok Tong San of Ang Mo Kio Police Division, who stated the commander of the station claims that some loan sharks in the area “have shifted to milder tactics”, including targeting neighbours and posting warning letters.[12]

    [12] Liang, L Y 2013, ‘Loanshark harassment cases down 30% in areas under AMK police’, The Straits Times, 12 January <

13. In 2012, information on the Singapore Police Force website claimed that through its “relentless commitment in tackling the loan sharking situation”, cases of harassment have steadily declined since the peak previously mentioned in 2009. In 2010, 15,525 cases of loan shark harassment were reported to police, which dropped to 11,776 cases reported in 2011, representing a 24 per cent decrease. The website also states that arrests on loan shark harassment charges have commensurately increased by 50 per cent over the same timeframe, with 253 arrests being made in 2010 and 373 being made in 2011. Further, according to information contained on the website, the government has instituted a “multi-pronged” strategy to combat loan shark harassment, strengthening relevant legislative provisions, “collaborating with strategic partners”, and increasing enforcement measures.[13]

    [13] Singapore Police Force 2012, Loansharking Situation In Singapore, 6 March <

14. An article published by the Singapore Law Review in 2012 reported that the Ministry of Home Affairs utilised the Criminal Law (Temporary Provisions) Act (CLTPA) in a novel way to detain “loan sharks against whom witnesses were afraid to come forward to openly testify”. The CLTPA, the article states, has traditionally been used to suppress secret societies. According to the Singapore Law Review, “[t]he ability to detain and place such individuals under supervision, with the consent of the Public Prosecutor, has been exercised several times in conjunction with the usage of the Moneylenders’ Act”. The article states that the measures implemented by the government are indicative of their desire to stamp out the problem.

15. The Tribunal has considered the law pertaining to effective protection as provided in the context of refugee and complementary protection assessments.

16. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

17. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).

18. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

19. As noted above, Singapore has an effective police force that is effectively managed by the civilian authorities. There are specific law relating to money lending and the country information details that the police have been effective in implementing these laws, with time and resources being put into stopping intimidating behaviour by money lenders. From the information it appears to be successful.

20. In the applicant’s circumstances he stated he was threatened on one occasion with physical violence if he did not make payments. The applicant left the country after organising his affairs. The applicant stated that his parents were asked where he was in 2013, but that they have not been approached since. It is now 3 years after the applicant has departed and the applicant has not disclosed any further threats to him.

21. The Tribunal considers that, based on the evidence before it, that the applicant can access effective protection in Singapore from the threats that have been made, that this protection is durable, and there is appropriate criminal law to punish the offenders, an effective police force and an impartial judicial system to deal with those who threaten the applicant. The Tribunal considers that effective protection measures are available for protection against persecution could be provided to the applicant by the State of Singapore.

22. Accordingly, the Tribunal considers that the applicant does not have a real chance of serious harm for this reason, on return to Singapore. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.

23. Further, given the findings regarding the protection that is readily available for the applicant in Singapore, the Tribunal considers that there is protection such that there would not be a real risk that the applicant will suffer significant harm on return to Singapore. The protection that is available from the effective police force is such that the Tribunal does not consider that the applicant has a real risk of significant harm for this reason.

24. As discussed at the hearing, the applicant also has debts arising from his dealings with established banks. The Tribunal noted that the loan agreements, an example of which was on the Department file, demonstrated that there was an established legal process that could be pursued by the banks in the event of the applicant defaulting. The Tribunal noted that this was a legitimate and legal process that could be used against the applicant in a civil court in Singapore, and questioned whether the applicant feared harm because of this process. The applicant agreed with this summation, and stated he did not fear harm from the banks arising from the debts he had incurred with them. The Tribunal considers that the banks that the applicant owes money to have a legal process that is available to them to seek compensation from the applicant, that this legal process has been established for a legitimate purpose, is applied uniformly to the general population in Singapore where necessary. As stated by the applicant, he does not fear harm arising out of any debts owed to banking institutions in Singapore. Given the evidence of the applicant and the information as detailed above, the Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason.

25. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

26. 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).

27. 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

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

    Stuart Webb
    Member