1510495 (Refugee)

[2017] AATA 2072

1510495 (Refugee) [2017] AATA 2072 (18 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510495

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Peter Vlahos

DATE:18 July 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 18 July 2017 at 10:36am

CATCHWORDS

Refugee – Protection visa – Malaysia – Ethnicity – Chinese Malaysian – Social group – Gambler – Fear of money lenders and loan sharks

LEGISLATION
Migration Act 1958, ss 36, 65
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997)191 CLR 559 at 596
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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] December 2012 and the delegate refused to grant the visa [in] July 2015.

3. The applicant appeared before the Tribunal on 16 May 2017 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

CONSIDERATION OF CLAIMS AND EVIDENCE

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, 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.

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 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).

3. 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.

4. 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’).

5. 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

10.  The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Country of Nationality

11.  The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Department of Immigration and Border Protection (the ‘Department’).[1] The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s country of nationality for the purposes of s.36(2)(a) of the Migration Act (as amended) (the ‘Act’) and receiving country for the purposes of complementary protection assessment, s.36(2)(aa) of the Act. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

The applicant’s claims before the Tribunal

[1]

12.  The applicant made the following claims for protection in his original protection visa application:

§  From 2006 to 2008, he (the applicant) borrowed money from moneylenders to expand his [business] and his wife’s [brother] acted as a guarantor for the loan.

§  Until 2008, he repaid the loan in agreed instalments. He claims to have borrowed a total sum of RM[amount] over a two year period. However, with interest and the down-turn of the economy he estimates that the debt grew to RM[amount].

§  He is in debt to his wife, with whom he is now separated, and his situation will bankrupt him. He has repaid money borrowed from the family and friends but has not repaid the moneylenders because the interest rate is unreasonable.

§  He has been working on and off since he arrived in Australia in 2009, his wife sent his savings to him via a friend who was travelling to Australia.

§  When asked about his savings later in the interview, the applicant changed his statement and stated that his wife did not send him any savings.

§  Although the money was borrowed from moneylenders on set terms in a verbal agreement and he was unable to meet their demands.

§  After he explained that the new terms were not within their agreement, he was threatened and his property damaged.

§  In the weeks prior to leaving Malaysia, he thought he would be seriously harmed or killed.

§  After he left Malaysia, the moneylenders threatened his wife in 2008 and 2009 and threw rocks at his car and paint at his house and posted information about him around the neighbourhood indicating that he does not repay his debts.

§  Nothing has happened to his wife in recent times although the moneylenders approached her at a Chinese New Year and other family events in order to determine if he had returned to Malaysia.

§  He cannot afford to repay the moneylenders so he fears they will assault him and break his leg. He contacts his wife every day and she has warned him to remain outside Malaysia.

§  His brother-in-law [visited] Australia in 2010. Prior to this visit, his brother-in-law was assaulted by the moneylenders.

§  While in Australia, his brother-in-law was admitted to hospital for a [medical condition] and returned to Malaysia so that he access treatment and be cared for by the applicant’s wife.

§  In 2012, his wife submitted a police report for her protection and it relates to her brother who guaranteed the applicant’s loans. The police investigated the case.

§  The applicant cannot relocate within Malaysia because the moneylenders have connections in Malaysia.

13.  The Tribunal put the above claims [in paragraph 12] to the applicant to have him confirm that they were his claims and to determine if the applicant had any further claims he would wish the Tribunal to consider. The Tribunal read each claim that was in the original application to the applicant and he confirmed to the Tribunal that he had no further claims to make.

Background

The applicant’s Migration history

14.  [In] November 1996, the applicant was granted a [(Student)] visa that remained valid until [March] 1999. [In] February 1997, the applicant arrived in Australia and remained in Australia until he departed [in] November 1997. The applicant returned to Australia [in] January 1998 and remained here until [December] 1998. [In] October 2008, the applicant was granted [another] visa that was valid until [January] 2009.

15.  [In] October 2008, the applicant arrived in Australia and has not departed.

16.  [In] December 2008, the applicant advised the Department that he intended to work and was advised that, as he was not a genuine tourist, it was more appropriate for him to apply for a [work] visa.[2] Although receiving the Department’s advice, [in] January 2009, the applicant applied for [a] (Tourist) visa and was granted a bridging [visa] that was valid until [April] 2009. In that application the applicant made it known to the Department that his intentions was to travel around Australia. The Tourist visa application was refused [in] April 2009, as the applicant failed to comply with a request from the Department to provide evidence to support his application. The applicant did not appeal this decision to then Migration Review Tribunal (MRT). The applicant remained in Australia unlawfully from [April] 2009 until [July] 2012. He advised the Department that he was no aware of this because his previous migration agent had provided him with a letter indicating that his application for permanent residency had been successful. There are no records on the Department file to indicate that the applicant had submitted an application for a visa or was granted a permanent resident visa. The applicant was detained from [date to date] July 2012 as he did not hold a valid visa. It was during this detention period he became aware of protection visas.

[2]Department of Immigration & Border Protection File [no.], (Folios 167 &168)

17.  [In] July 2012, the applicant advised the Department that he intended to depart voluntarily, would obtain a passport, finalise his bank details and contact his friends.[3] [In] July 2012, the applicant submitted a Bridging visa [application] form on which he wrote, “Wish to apply for a replacement passport and ticket to go back to Malaysia. I am prepared to pay bond if I am required. I currently hold about AUD$[amount] in my property.” [4]

[3]Ibid (Folio 138)

[4]Ibid (Folio 163)

18.  [In] July 2012, the applicant was released from Immigration detention and granted a Bridging [visa] that was valid until [July] 2012. [In] July 2012, the applicant was granted another Bridging [visa], on departure grounds, that was valid until [August] 2012. At that time, the applicant advised the Department that the [police] were pursuing a Criminal Justice visa for him. The Department contacted [the Police] and was advised that they were not pursuing a Criminal Justice visa for the applicant – although he (the applicant) had informed them that his previous migration agent “…had ripped him off…”[5]

[5]Ibid (Folio 166)

19.  [In] August 2012, the applicant was granted another Bridging [visa] that was valid until [August] 2012. [In] August 2012, the applicant was granted another Bridging [visa] that was valid until [September] 2012. At that time the applicant provided a copy of a valid passport and travel itinerary for departure [in] September 2012.[6] The applicant also advised the Department that he was taking his former migration agent to court and wished to remain in Australia until [October] 2012, when he had a scheduled court hearing. The applicant remained unlawfully in Australia from [date to date in] September 2012, when he submitted an application for a Protection visa and was granted an associated bridging visa. [In] October 2012, the applicant application for Protection visa was deemed invalid because the applicant had not submitted personal identifiers. The applicant remained unlawfully in Australia from [date to date in] December 2012. [In] December 2012, the applicant submitted a second application for protection visa and the subject of this review.

[6]Ibid (Folio 145)

20.  The applicant also provided the following documents at the hearing:

§Written submissions dated 15 May 2017 from his registered migration agents, [in] the name of the applicant’s [representative].

§Copy of ‘translation’ in ‘English’ (unsourced) of Royal Malaysian Police Report dated [in] October 2008.

§Copy of ‘translation’ in ‘English’ (unsourced) of Royal Malaysian Police Report dated [in] January 2009.

Applicant’s background

21.  The applicant [was] born in [year], [in] Perak Darul Ridzuan, Malaysia. He is a Chinese Malaysian and is a Christian. He has also completed studies in Australia, a [degree] in 1997-98 at [a university]. He claims to be divorced from his wife and has [children], ([daughter], born [in date]) and his [son], (born in [year]) and both live with their mother in Malaysia.

The applicant’s problem/issues-debts-threats-Ah Long

22.  At the Tribunal hearing the applicant told the Tribunal that his problem first began in 2006. He was then, [age] years of age, had succeeded in completing his studies in Australia and had returned to Malaysia to work hard with the aim of establishing himself in [industry] circles. For a period of time, he worked as a [an occupation]. In this same period, he involved himself with a group of businessmen and ‘friends’ and within that social set, he was exposed to the world of high-living and the vice of ‘gambling’. This type of lifestyle demanded, according to the applicant ‘a lot of money’ so he started ‘borrowing’ from various source. The Tribunal was told to begin with the applicant’s borrowing were in the vicinity of MR[amount]. His wage during this period was MR[amount]. He procured this loan from a group he described as the [name] Group. According to the applicant the agreement provided as follows: - a loan of RM[amount] at [number] percent to be repaid within a week. If that amount was not paid within the specified time, the borrower (the applicant) was required to a penalty of [number] percent.

23.  As the applicant’s gambling adventures expanded from continuous on-line gambling to regular attendances at casinos his appetite for more gambling increased. The Tribunal was told that to test his luck, the applicant borrowed RM[amount] from his father’s ‘good friend’ and business partner who he described as ‘uncle’. This person, the applicant told the Tribunal died in 2004. However, in order to repay this loan, the applicant procured further loans from ‘[loan] sharks’. The applicant was asked to name the ‘loan sharks’ he had dealings with and was told that they were [several] groups. The applicant had difficulties remembering the [others]. The Tribunal was told that loans with these groups of loan sharks totalled RM[amount] and required the applicant to pay RM[amount to amount] per week in interest. The situation became so difficult for the applicant in that he had to sell all of his valuable possessions and belongings and still, he could not reduce the original amount borrowed and the interest payments continued to spiral out of control.

24.  The Tribunal was also told that the applicant had misappropriated an amount of RM[amount] from the family business he co-owned with his brother-in-law to fund his gambling debts and habit.

25.  According to the applicant his problems began in 2006 and spiralled out of control by October 2008.

26.  The Tribunal asked the applicant what happened when he could no longer meet the repayment of interest demanded of him by the loan sharks. The applicant told the Tribunal that his personal property was damaged. This damage included ‘paint thrown on his home’s front’ and ‘[other items]’ thrown at his home’s front door. The applicant also told the Tribunal that his ‘mother-in-law’ had been harassed by unidentified persons. More threats were received that further damage would occur to his home and that ‘they (the loan sharks) would ‘break his legs if he did not pay the money…’ and these threats were reported to the police who, according to the applicant, did nothing to protect him or his family members.  Also, in this period of time, 2006-2008, the  [business] owed by the applicant’s family was also experiencing major financial difficulties which included serious cash flows and this added to the applicant’s increasing pressures and personal strife.

27.  The applicant was asked if he felt threatened and had not been helped by police did he flee to another part of Malaysia. The Tribunal was told that fleeing to another part of Malaysia and carrying on with his life was not an alternative open for him to take. Malaysia was a ‘small country’ and the loan sharks had many connections throughout Malaysia and a ‘network of information’ which made re-location within Malaysia difficult and impossible. The applicant contemplated going to [another country] before coming to Australia in 2008 but decided against this as an option but offered no further explanation. However, he did receive a five month sanctuary from the loan sharks when he lived with his ‘aunt’ but was quickly discovered when he telephoned his wife. The result of that call caused his whereabouts to be ‘tracked down’.

28.  Thereafter, the applicant would continuously threatening calls on his mobile phone from the loan sharks which forced him to flee to Australia.

29.  Moreover, the applicant was asked, if the loan sharks he feared had such extensive and updated networks of contacts within Malaysia, how did he manage to leave for Australia in late 2008? The applicant explained to the Tribunal that when he had decided that he would leave for Australia, he continued with his normal daily routines so that he did not create any suspicions. He then told the Tribunal he made arrangements, organised himself, told no-one, took a bus to [another country] for his flight and did so leave for Australia by leaving from [another country].

While in Australia what has the applicant done with his life?

30.  The applicant has been in Australia for nine years, the Tribunal was told. In that time, the applicant worked and lived in [Australia] as [an occupation] at first, when he arrived and after much hard work, long hours and his loyalty to his employer, he earned the position of ’[another occupation]’. He currently earns up to AUD$[amount] per week.

31.  During his time in Australia, the applicant has sent money to Malaysia not in order to repay his loans that his has outstanding with the loan sharks but to his family and friends. He has provided no money to his business partner or specifically transferred any money to assist the family business. In addition to his already increasing financial woes, the applicant told the Tribunal that he cannot meet the re-payments on his home in Malaysia and is considering filing for bankruptcy. Also, the applicant told the Tribunal that he could not sell his property (home) in Malaysia because the property’s title was not in his name only but also had his ‘former’ wife as a co-proprietor and matters need to be worked out still between the two on this issue.

Contacts between the applicant and his family members in Malaysia

32.  The last time the applicant contacted his children in Malaysia was [in] April 2017. Keeping regular contact with them has been difficult because the applicant has since [April], lost all contact with his home. The Tribunal was told that his former wife does not allow the children to contact their father using the mobile telephone.

Does the applicant plan to return to Malaysia in the reasonably foreseeable future?

33.  The applicant told the Tribunal that he had no intention of returning to Malaysia. A return to Malaysia was not possible because of the ‘issues there.’ He also pointed out to the Tribunal that he had his fears reported to the local police but they chose to do nothing. The applicant told the Tribunal that the police told him that his problem with the loan sharks was a ‘personal matter…’ The Tribunal was also told that in 2009/2010, the applicant’s wife came to Australia to visit him. On that visit, the applicant’s wife came on her own, leaving the couple’s children with family back in Malaysia. Also, the applicant’s brother-in-law came to Australia but had to leave suddenly due to a [medical condition] for which has accessed professional medical help in Malaysia. However, the applicant provided no specific dates for his brother-in-law’s visit to Australia.

The applicant’s migration history and application for protection visa

34.The Tribunal asked the applicant to explain his migration/visa history while in Australia. The applicant did confirm for the Tribunal that he was placed in detention for a period of [number] days after being reported to the Department as an illegal worker. This detention period occurred in the period 2001-2003, according to the applicant. The applicant went on to say that when he was released from detention although he did tell the Department he would make preparations for his departure from Australia, he also wished to pursue legal action against a migration agent who took advantage of him. It was in this period that the applicant applied for his protection visa. He had not applied for protection previously, because he could not find anyone to assist him.

Confirmation of the applicant’s debt position currently in Malaysia

35.  The applicant confirmed for the Tribunal that his current debts are (1) owing to the ‘loan sharks’ approximately RM[amount] and (2) RM[amount] owing to his brother-in-law and business partner. The applicant also confirmed that the family business [is] an on-going concern.

Country Information discussed with the applicant

36.  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.

37.  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.

38.  The applicant was invited to comment on this information and noted that the totality of the country information that had been discussed suggested that effective state protection was available to the applicant and the Tribunal asked him if he would like to comment.

39.  The Tribunal was told that it was his experience that Malaysian police had done little to assist him and his family and as a result he had been forced to leave Malaysia to seek sanctuary in Australia. The applicant concluded his remarks by telling the Tribunal that he could not under any circumstances return to Malaysia because if he did, his life would be in danger due to his debts and the loan sharks’ wanting to do harm to him because he had not repaid them.

Post-Hearing submissions by the applicant

40.  The Tribunal provided the applicant and his registered migration agent a period of time (until 22 May 2017) to provide to the Tribunal further submissions on the claims the applicant had made in his application and discussed with the Tribunal at the hearing on 16 May 2017.

41.  The applicant’s registered migration agent [provided] the following written submissions:

§In Malaysia, the loan sharks roam the whole country with impunity and the normal response of the police is “we have no evidence against them”. The visa applicant said he could not go to the police to lodge a police report against the loan sharks because he believes the police are corrupt and not able to investigate the threats and the attacks because of lack of evidence. (see, attached news articles on police corruption in Malaysia, AAT File no.1510495, folios 118-132)

§Operating illegally and most often under the patronage of unseen public officials and corrupt police, today, the Ah Long in Malaysia operates via the convenience of a wide of third party mercenary thugs and corrupt off-duty policemen.

§In 2007, the applicant’s car was rammed by the loan sharks and abducted him at knifepoint, beat and kicked him and held a knife to his throat [and] threatened him to death. [the migration agent made reference to a number of news articles which as evidence of the possible dangers the applicant would face if he was to return to Malaysia] (see AAT File no.1510495, folio 133)

42.  The applicant’s migration agent concluded his written submission by stating:

§The findings above explain [that] the applicant would face cruel or inhuman treatment or punishment from the loan sharks if he returns to Malaysia. We would request the Tribunal to take into consideration the above evidences against the Malaysian Police force in corruption and bribery.

Country Information – Malaysia

43.  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.[7]

[7] ‘KL Consumer Safety Association - No need to fear the loan sharks’ 2015, Bernama (Malaysian National News Agency), 17 February < Accessed 19 February 2015 <CXBD6A0DE1580>  

44.  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’.[8]

[8] ‘Loan shark menace worsens in M’sia’ 2013, The Sun Daily, 2 October < Accessed 22 April 2014<CX320169>  

45.  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.[9]

[9] ‘Police cooperate with Council to wipe out loan sharks’ 2013, Daily Express, 28 December < Accessed 22 April 2014 <CX320164>  

46.  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.[10] In April 2014, the police and local authorities in Penang ‘pulled down 238 banners and streamers promoting illegal moneylending’.[11] The Malaysian Communications and Multimedia Commission also disconnected the telephone lines of contacts printed on the materials.[12] 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’.[13] Reportedly, ‘City Police chief ACP M. Chandra said the police and City Hall had carried out numerous operations under Ops Vulture’.[14]

[10] ‘57% drop in commercial crime losses, say cops’ 2014, The Star Online, 2 July < Accessed 30 August 2016 <CX1B9ECAB11425>  

[11] Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April < Accessed 30 August 2016 <CX1B9ECAB11426>  

[12] Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April < Accessed 30 August 2016 <CX1B9ECAB11426>

[13] Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May < Accessed 30 August 2016 <CXBD6A0DE13537>;

‘2,700 Ah Long materials removed’ 2015, Daily Express, 28 May < Accessed 2 June 2015 <CXBD6A0DE7469>  

[14] Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May < Accessed 30 August 2016 <CXBD6A0DE13537>  

47.  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.[15] 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’.[16] Additionally, ‘four more cases and seven individuals were investigated under Section 29AA of the same Act for putting up posters.’[17] 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’.[18] 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.’[19]

Criminal gangs

[15] ‘Sabah Police probe nine Ah Long cases in 2013’ 2014, The Malaysian Times, 3 January < Accessed 30 August 2016 <CX1B9ECAB11427>  

[16] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December < Accessed 30 August 2016 <CXC28129414704>  

[17] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December < Accessed 30 August 2016<CXC28129414704>  

[18] ‘Police Free Man Abducted By Loan Sharks’, 2014, Malaysian Digest, 16 October < Accessed 30 August 2016 <CX1B9ECAB11430>  

[19] ‘Loan sharks caught red-handed’ 2015, The Star Malaysia, 29 May < Accessed <CXBD6A0DE13543>  

48.  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.[20]

[20] ‘Police make 5,505 arrests in three weeks in crackdown on gangs, organised crime’ 2013, Malaysian Insider, 9 September

49.  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.[21]

[21] ‘Cops deal crime a crippling blow since Ops Cantas Khas launch’ 2013, Star Online, 23 September,

50.  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%.[22]

[22] “79,414 individuals detained throughout 'Ops Cantas Khas’” 2014, Bernama (Malaysian National News Agency), 10 June

51.  In July 2014 Al Jazeera reported:

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.[23]

[23] ‘Malaysia's gang menace’ 2014, Aljazeera, 11 July

52.  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.[24]  No independent analysis on the operation was found.

[24] ‘Police crackdown on gangsters still in full swing, IGP says’ 2014, Malay Mail on line, 9 October,

53.  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’.[25] 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.[26]

Law enforcement and the legal system in Malaysia

[25] Hasnan, H A 2016, ‘Ops Cantas 2 to involve three elite police teams’, 1 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8261>  

[26] ‘Op Cantas crackdown on triads: 1,444 arrested’, 13 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8262>

54.  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.

55.  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.

56.  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.[27]

[27] No answers, no apology: Police abuses and accountability in Malaysia, Human Rights Watch, 2 April 2014 pp 22-23.

57.  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

58.  Based on the country information the Tribunal accepts that loan sharks or Ah Long operate in Malaysia and many of these 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 from the loan sharks and gangs varies, depending on the area, the capacity of the police and in some instances on corruption.

59.  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 any 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) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70)

60.  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 number of loans from unlicensed moneylenders and has not repaid any of the money. 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 the applicant and his family was threatened and his property damaged. However, the Tribunal does not accept as credible the applicant’s claim that even though incidents and threats were reported to the Malaysian police twice in 2008, again in 2009 and in 2012 by the applicant’s wife, no further incidents have been directed towards the wife or the applicant’s family home since 2012. The Tribunal notes that the country information indicates that the Malaysian authorities including the police and judiciary are reasonably effective in combating criminal gangs and there has been a great deal of coverage in the Malaysian media regarding the various operations by law enforcement authorities to combat this. The Tribunal also notes that although there is corruption within the system, there is nothing in the information provided by the applicant to indicate that the Malaysian state is unable or unwilling to protect him in his particular circumstances either because he has dealt with moneylender nor because of his ethnicity as Chinese Malaysian or because he is a Christian as claimed.

61.  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 [another country] to Australia. The applicant provided no credible reason why he could not take advantage of this protection or seek the assistance of the Malaysian judicial system, except to claim that he had not been helped and that he had no other alternative but to flee Malaysia via [another country].

62.  The Tribunal acknowledges country information referred to earlier, particularly to DFAT’s assessment of the Malaysian police who are generally considered to be professional and effective. The Tribunal also notes the advice from DFAT regarding police corruption, however this is recognised by the authorities and measures have been put in place to deal with this issue.

63.  In relation to the overall effectiveness of 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.

64. 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.

65. 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.

66.  Relevant to this consideration, is s.36(2)(aa) which refers to a “real risk” of the applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in Refugee Convention definition (MIAC v SZQRB [2013] FCAFC 33).

67.  The ‘real risk’ test for the Act’s complementary protection provisions is the same as the real chance test. The applicant’s claims to complementary protection are essentially the same he made in his application for protection as a refugee. Those claims have failed because the Tribunal has found that state protection is available to him. The country information also confirms that the Malaysian State has an appropriate criminal law system, a reasonably effective police force and an impartial judicial system. The Tribunal is not satisfied that the applicant has effectively availed himself of any protection from the authorities in relation to the threat from the loan sharks.

68.  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

69. 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.

70. 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).

71. 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

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

Peter Vlahos
Member