1504251 (Refugee)

[2015] AATA 3958

1504251 (Refugee) [2015] AATA 3958 (18 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504251

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Paul Windsor

DATE:18 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 18 December 2015 at 11:50am

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 Malaysia, applied for the visa [in] October 2014 and the delegate refused to grant the visa [in] March 2015.

3. The applicant applied to the Tribunal for review of this decision on 27 March 2015.

4. The applicant appeared before the Tribunal on 4 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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).

7. 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.

8. 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’).

   Mandatory Considerations

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal took 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

10. The applicant claims to be a citizen of Malaysia who was born in [his home town] in Perak State, Malaysia on [date].  According to his Protection visa application he speaks Mandarin, Malay and English.  His application indicates that he departed Malaysia legally [in] December 2011 from the ‘bus terminal from Taiping’ and arrived in Australia [later in] December 2011.

    Summary of Claims from the Protection visa application

11. The applicant’s claims from his Protection visa application lodged [in] October 2014 (at folios 35-38 and 45-46 of departmental file [number]) can be summarised as follows:

    ·He left Malaysia to escape from [Country 2] loan sharks, who have bribed the Malaysian police.  He was intimidated by the Malaysian police.  He has suffered a direct threat to his personal safety in Malaysia.

    ·He borrowed money ‘on usary’ to assist [his fiancé], a [Country 1] woman of [another ethnic] background, fund an operation in Australia for her father who had a [medical condition].  Two sums of money were borrowed: the first was [an amount] which his fiancé borrowed using him as a guarantee.  The second was also [the same amount] which he borrowed, using his fiancé as guarantee.

    ·Two weeks after his fiancé went to Australia to accompany her father for the operation, he could no longer contact her.

    ·Because the interest rates were too high, he couldn’t pay the money back.

    ·The loan sharks started harassing him in his workplace in [Country 2] which led to him losing his job.  He returned to Malaysia but the loan sharks found him and bribed the police to intimidate him into returning his debt.  This caused him significant psychological harm and drove away all his family and friends who wouldn’t risk interaction.

    ·The loan shark group can easily locate him with the Malaysian police’s help.

    ·He had to take shelter in Australia to hide from the loan sharks.  The money he owes must have accumulated into a huge amount which he can never repay.  He fears that if he returns to Malaysia he will be found by the Malaysia police and the [Country 2] loan sharks and will either be beaten to death or forced to do something illegal for them.

    ·Since the Malaysian police force has been used by the [Country 2] loan sharks, he has nowhere to turn to for help in Malaysia.

    Evidence from the hearing on 4 December 2015

12. At the hearing on 4 December 2015, the applicant indicated that he was living and working in [Country 2] when he met [his fiancé] at the end of March 2011.  She was studying at the time.  [His fiancé] was [age] years old and the applicant was [age] years old.  The applicant commented that two weeks in to their relationship they were madly in love and they then decided to marry.  While his family opposed the idea, the applicant decided to marry regardless.  He planned to marry in Johor Bahru in Malaysia because his [sibling], who was to be a witness, lived there.

13. The applicant indicated that [his fiancé’s] family was to attend the wedding but the day before her parents were to arrive he could not contact [his fiancé].  Subsequently, the day before the date of the wedding, she called the applicant and advised that her father had passed out at home and had been diagnosed with a [medical condition].  The family had decided to send him to Australia for better medical treatment and [his fiancé] asked the applicant to loan her [an amount in] [Country 2] [dollars].  The applicant had about [amount] and borrowed [amount] from a friend but as they were still short of the required amount they decided to borrow [amount] from an ‘underground lender’.  He borrowed [amount] with her as his guarantor and she borrowed [the] same amount] with him as her guarantor.  The money had to be paid back in a month, with interest. He did this because he was deeply in love with [his fiancé].

14. The applicant claimed he could not accompany [his fiancé] to Australia as he could not get time off work so he saw her off at the airport.  They spoke by phone for about 2 weeks but then he could not find her again.  The loan sharks started harassing him to repay the loan and harassed him to the extent that he couldn’t continue his work and had to return to Malaysia.  When the loan sharks couldn’t find him in [Country 2] they started harassing his parents and friends.  His parents were threatened that they had better pay the money and their door was sprayed with paint.  His parents phoned him to ask if it was true that he owed money.  They then told him it was his liability because they objected to the marriage.

15. The Tribunal asked the applicant what happened after that.  He responded that his parents tried to borrow some money but the rates were too high and eventually they kicked him out.  The Tribunal asked when that happened and the applicant replied that it was ‘around November 2011’.  When asked where he stayed after his parents kicked him out the applicant commented that he went to stay with his [sibling] in Johor Bahru for a little over [number] weeks, and then bought a one way ticket to Australia as he was anxious to find out about his fiancé.  When asked how he could afford to do that the applicant said he borrowed some money from his [sibling] and [amount] from a friend.  The Tribunal queried the applicant about why people would be prepared to lend him more money and he replied that he told them that he wanted to find his fiancé and find out why she left him and why she tricked him.

16. The applicant indicated that he has not had any further contact with [his fiancé] – his calls do not go through - and while he tried to locate her in [Country 1] communities in Australia he could not.

17. The Tribunal questioned the applicant at length regarding why he and [his fiancé] borrowed money from loan sharks and how they arranged this, whether they put up any securities, why loan sharks would give a [amount] loan to an [age] year old student from [Country 1], or accept her as a guarantor on a [amount] loan provided to him.  The applicant indicated that he earned [salary range] a month and they were expected to repay [amount] after a month.  The applicant indicated that they did not put up any securities (while he provided his [Country 2] and Malaysian identity cards his fiancé did not provide her [Country 1] address details); that he borrowed the money because he was ‘so into her’; and that the loan sharks don’t care how much they loan as long as it’s paid off.

18. The Tribunal asked the applicant why he quit his job in [Country 2].  He indicated that the loan sharks kept making trouble for him.  They assaulted him once, asking him to make payment as soon as possible.  He said he was living with 5-6 friends and they came knocking on the door in the middle of the night harassing him, so his friends asked him to move out.  The Tribunal asked the applicant if he went to the [Country 2] police.  He said he didn’t because it was an illegal loan.  The Tribunal put to the applicant that it is illegal to harass people for repayment of loans.  He replied that he did not think of that because he took out an illegal loan.  The tribunal asked the applicant to comment on country information[1] indicating that there are severe penalties in [Country 2] for loan shark harassment ([details of penalties]).  The Tribunal also asked the applicant to comment on country information[2] regarding action taken by the Royal Malaysian Police in relation to loan sharks.  He replied that in his neighbourhood some police are bribed.

    [1] [Source deleted].

    [2] CX320161: ‘Police  to track down “Ah Long” by contact numbers in ads’, The Malay Mail Online’ 23 December 2013 <>

    The Tribunal asked the applicant whether he had made any repayments.  He commented that he sent some money back to his parents asking them to make payments.  The Tribunal asked him how much.  He replied it was a while ago and he thought it was [amount] three times, for a total of [amount].  The Tribunal asked the applicant whether that meant he had made arrangements to pay the money back.  He replied that he still hasn’t paid off the loan, his parents had negotiated with the loan sharks and ‘it seems’ like he can’t go back until the loan is paid off.  When asked if he was making arrangements to pay off the loan why couldn’t he go back the applicant replied that [this amount] is only the interest payment.

19. The Tribunal asked the applicant why he is living in [Town 3].  He indicated that he works there for a company involved in [item] production. He said that he heard from friends that there are job opportunities there.  The Tribunal asked the applicant if he went straight to [City 4] when he came to Australia to which he replied that he went to [City 5] first but could not find a job there.  Where asked what visa he entered Australia on he indicated it was a [temporary] visa.  When asked if that allowed him to work he responded that he didn’t work at the time and started work later, in 2012.  When asked if he got a work visa he replied ‘no’ and indicated that he could not ‘hide’ anymore.

20. The Tribunal asked the applicant why he waited until October 2014 to apply for a Protection visa and put to him that this seems inconsistent with fearing for his safety in Malaysia.  He indicated that he only heard about this visa later.  When asked why he hadn’t tried to find out straightaway if he was fearful he replied that he just thought he would avoid going back.  When asked what he thought would happen if he was caught, he replied that he did not think this far ahead and it was not until 2014 that he heard from friends about this kind of visa.

21. The Tribunal also asked the applicant if he attended an interview with the department.  He indicated that he did not.  When asked why that was the case, the applicant indicated that he had moved from [City 5] in January 2015 so did not receive the letter.  When asked why he did not advise the department of his change of address, he commented that he was not sure how long he would be staying in [City 4] and that he asked his housemates to pay attention to letters that arrive.  At the hearing the applicant handed the tribunal a copy of the department’s decision and decision advice letter.  The decision record indicated on page 4 that the applicant had been invited to attend an interview scheduled for [a date in] February 2015 but did not attend the scheduled interview.  The Tribunal asked the applicant whether his friends would have forgotten to tell him about the letter inviting him to attend the interview.  The applicant responded that he missed that letter.

22. The Tribunal asked the applicant what he fears will happen to him if he returns to Malaysia.  He responded that he fears ‘they’ are going to do something and that his life may be at risk because he won’t be able to repay the debt.  He said he was too scared to go back in the next year or two.  As the applicant had previously advised the Tribunal that he had repaid [amount] in three instalments, via his parents, the Tribunal put to him that it seemed he had been able to agree arrangements to repay the debt.  The Tribunal also asked the applicant whether anything had happened to his parents in Malaysia.  He replied that he has not called much, due to money related problems, and that since he sent the [amount] he had not sent money in a very long time.  The Tribunal questioned the application regarding why, if the loan sharks are as dangerous as he claims, they hadn’t harmed his parents or his siblings.  The applicant replied that they are waiting for him to get back to Malaysia.  He added that they will leave his family alone as his parents have made clear that, as the loans were taken out by him, it is his personal issue.  The Tribunal questioned the applicant regarding why, if that was the case, his parents had assisted to make some payments to the loan sharks in the past.  He did not respond to this question. 

23. The Tribunal also asked the applicant to comment on country information, from the Australian Department of Foreign Affairs and Trade, indicating that the Royal Malaysian Police is considered by credible local and international sources, overall, to be a professional and effective police force[3].  He replied that Malaysia is too corrupted and he has no faith in the police, and that when a robbery occurs and burglars break in, police haven’t done much.

    [3] Australian Department of Foreign Affairs and Trade, DFAT Country Report, Malaysia, 3 December 2014.

    Findings and Reasons

24. The issues in this review are whether there is a real chance that, if the applicant returns to Malaysia, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

25. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

26. On the basis of the copy of the applicant’s Malaysian passport provided to the Department, the Tribunal finds that the applicant is a citizen of Malaysia.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Malaysia.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Malaysia, the Tribunal also finds that Malaysia is the applicant’s ‘receiving country’ for the purposes of s.36(2)(aa).

27. The Tribunal has concluded that the key elements of the applicant’s account of what happened to him in [Country 2] and Malaysia are not true.  The Tribunal finds that the applicant did not borrow money from [Country 2] loan sharks, and therefore that [Country 2] loan sharks have not harassed him in [Country 2] and bribed Malaysian police to harass and intimidate him and his family in Malaysia to repay a debt owed to [Country 2] loan sharks.   The Tribunal has reached this conclusion for the following five reasons, taken together.

28. First, the Tribunal finds the applicant’s account of borrowing a total of [amount] from [Country 2] loan sharks to be implausible.  When asked who he borrowed the money from the applicant said he did not know who they were other than they were gangsters.  He said he was not asked to put up any security just asked to provide personal documents.  He said he gave the loan sharks his permit in [Country 2] but that was not enough so he provided his personal documents with his address in Malaysia.  The applicant indicated that he was the guarantor for the [amount] loan given to his fiancé and she was the guarantor for the [amount] loan given to him.  He indicated that they were expected to repay a total of [amount] after one month. He indicated that his fiancé, even though she was an [age] year old student from [Country 1], was not required to provide her contact details in [Country 1], so the loan sharks could not locate her and were now harassing him for repayment of both loans.  The Tribunal put to the applicant that it seemed difficult to accept that loan sharks in [Country 2] would either loan an [age] year old student from [Country 1] [amount] or accept her as a guarantor on a loan to him of [amount], that had to be repaid with interest after a month, when he earns only [salary range] a month, and that loan sharks would want some sense they could get their money back before giving that amount of money. The applicant commented that his fiancé had a student visa so that means she is from a reasonably wealthy family, and she was going to marry him, and indicated that the loan sharks don’t care how the loan is to be paid off as long as it’s paid off.  The Tribunal does not accept these arguments. A 2009 article from [a media source][4] on loan sharks in [Country 2] indicates that loan sharks usually lend small amounts of money - often the equivalent of just a few hundred pounds - but charge extremely high interest rates.  The Tribunal considers that this is how loan sharks are able to ensure a high return on their loans and minimise the risks to them of borrowers defaulting on their loans.  The Tribunal does not accept that [Country 2] loan sharks would have provided the large sums indicated by the applicant, without any security or any other indication that the applicant and his fiancé had the capacity to repay the loans and associated interest charges.  While the applicant indicated that he borrowed the money from a loan shark because he was deeply in love with his fiancé, the Tribunal also does not accept that the applicant would have acted so irrationally as to have entered into such an arrangement, after giving his fiancé all his savings totalling about [amount] and separately borrowing [amount] from ‘a friend’, given he clearly could not possibly repay the money.

    [4] [Source deleted].

1. Second, given the applicant’s statement in his application that the loan sharks bribed Malaysian police to intimidate him into returning his debt, and that this drove away all his friends and family as they wouldn’t risk interaction with him, The Tribunal does not accept that the applicant, having already borrowed [amount] from a friend or friends, owing [amount] to loan sharks, having exhausted his savings and having left his employment in [Country 2], and having his parents being intimidated by agents of loan sharks, would have been able to convince his [sibling] to lend him money and ‘his friends’ to loan him [amount] to travel to Australia to look for his fiancé.

2. Third, the applicant’s account of what the [Country 2] loan sharks and the Malaysian police, who were allegedly bribed by the [Country 2] police, did in Malaysia lacked detail and consistency.  The applicant indicated that, before he returned to Malaysia, agents of the loan sharks had approached his parents, spraying paint on their door and seeking repayment of the monies owed.  The applicant indicated that his parents said it was his liability because they objected to his relationship with his fiancé.  However, he indicated that his parents did try to borrow some money but the interest rates were too high and then eventually they kicked him out in November 2011 so he went to live with his [sibling] in Johor Bahru for about [number] weeks before coming to Australia.  The applicant did not indicate that agents of the loan sharks ever came back to his parents’ house either while he was still there or after he had left, or that he or his parents experienced any further difficulties with agents of the loan sharks, whether Malaysian police or otherwise.  The Tribunal asked the applicant whether he had made any repayments.  He indicated that he had, that it was a while ago, but he thought he had made three repayments of [amount], totalling [amount].  He commented that his parents had negotiated with the loan sharks, but said ‘it seems’ like he cannot return until the loan is paid off.  When asked whether anything else had happened to his parents and siblings the applicant initially replied that he hasn’t called much, due to money problems; and that since the [amount] was repaid, he has not sent money for a very long time.  The Tribunal questioned the applicant regarding whether, if these people are as dangerous as he indicates, they would have done further things to his parents.  The applicant replied indicating that he thought the loan sharks were waiting for him to go back.  The applicant commented that, from what he had heard from his parents, his parents had made clear to the loan sharks that the applicant had taken out the loan, and the loan sharks accept it is the applicant’s personal issue and will leave his family alone.  The Tribunal does not accept this explanation.  Country information on the activities of loan sharks in [Country 2][5] and Malaysia[6] makes clear that loan sharks continue to harass relatives of borrowers and others (including new tenants of properties previously occupied by debtors).  The Tribunal does not accept that loan sharks, especially after having secured some sizeable repayments through the applicant’s parents, would then cease harassing the applicant’s parents for repayments on the basis that they would wait until the applicant returned to Malaysia. 

   [5] [Source deleted].

   [6] AKPK 2013, Loan sharks and their illegal activities, 2 July <>

   Fourth, the applicant did not apply for a Protection visa until October 2014, nearly three years after he arrived in Australia.  He indicated in his Protection visa application that he lived in [Town 3] from December 2011 (shortly after his arrival in Australia), until March 2014.  At the hearing he indicated that he moved to [Town 3] because he heard there were job opportunities there, but said he did not work until later on in 2012 because he did not have work rights.  The applicant said he did not apply for a Protection visa earlier because he did not know about Protection visas.  The Tribunal considers that it is most likely that the applicant came to Australia to work illegally and that he travelled to [Town 3] in December 2011, shortly after arriving in Australia, to do this.  The Tribunal considers that if the applicant had a genuine fear for his safety should he return to Malaysia after coming to Australia in December 2011, he would have made inquiries and found out about Protection visas well before October 2014.

3. Fifth, the applicant did not take the opportunity to attend an interview with the department to discuss his claims to a Protection visa.  The applicant said he did not receive the advice regarding an interview, which had been scheduled for [February] 2015, because he had left [City 5] for [another state] in January 2015 and did not advise the department of a new address because he was not sure where he might end up living.  He indicated to the Tribunal that he asked friends to check his mail.  The Tribunal considers that, having applied for a Protection visa, if the applicant had a genuine fear for his safety in Malaysia, he would have wanted to take the opportunity to discuss his claims at an interview.  The Tribunal therefore considers that the applicant would have ensured that he was advised of any mail arriving for him from the department while he was in [the other state], and would have received advice from the department inviting him to attend a scheduled Protection visa interview.

4. Considering the five factors above together, the Tribunal concludes that the applicant has concocted his story to have borrowed large sums of money from [Country 2] loan sharks and finds that he does not face a real chance of persecution amounting to serious harm, or a real risk of significant harm from [Country 2] loans sharks, their agents, or the Malaysian police.

5. As the Tribunal has found that the applicant has not been harassed or intimidated by [Country 2] loan sharks, their agents, or the Malaysian police at the behest of [Country 2] loan sharks, the Tribunal finds that the applicant would not require the protection of the authorities in Malaysia.

   Does the applicant have a well-founded fear of persecution if he returned to Malaysia?

6. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution amounting to serious harm, if he were to return to Malaysia, now or in the foreseeable future.

7. Accordingly, 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).

   Complementary protection

8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

9. Having regard to the findings of fact set out above, the Tribunal also does not accept that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, now or in the foreseeable future.  The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. 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

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

    Paul Windsor
    Member