1609878 (Refugee)

1609878 (Refugee) [2017] AATA 2540 (13 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609878
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Sophia Panagiotidis
DATE:13 September 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 September 2017 at 12:38pm
CATCHWORDS
Refugee – Protection Visa – Malaysia – Economic hardship – Loan sharks – Fear of violence – State protection
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v MZYYL (2012) 207 FCR 211
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] February 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background and claims
The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] February 2016.
The applicant arrived in Australia [in] December 2015 as the holder of a [temporary] visa.
According to the application for the protection visa, the applicant's claims are as follows:
·He was unable to pay a debt to a bank and a loan shark because he needed to financially support and assist families because of economic uncertainty. One of the guarantors for his wife was declared bankrupt.
·The loan to the loan shark was getting high and he could pay as scheduled. The loan shark blackmailed him and threatened him with violence and he was living in fear so he decided to come to Australia to seek protection.
·If he returns to Malaysia the loan shark will find him and do violence to him to get back their money. They used verbal violence, blackmail and physical violence when he failed to pay back according to what they wanted.
·He tried to get help form his family and community but no one could help him.
·If he moves to another part of the country they will burn his house and will kill him.
·According to friends and families the loan shark is still looking for him and has visited his previous work and home bringing [weapons].
·He had gone to the police but there was no reaction and they could not help him.
·He is unable to relocate because the loan shark has many branches in every state in Malaysia.
The delegate’s decision
In refusing to grant the visa, the delegate noted that the applicant has provided vague claims lacking in detail and no supporting evidence. The delegate also noted that the applicant lodged his application for protection two months after his arrival and there was no information as to why he did not do so earlier. This delay led the delegate to doubt the genuineness of the applicant's fear of persecution in Malaysia. The delegate also considered country information which indicates that the Malaysian authorities including the RMP and judiciary are reasonably effective in combating illegal money lending. The delegate noted that while there is some corruption in the system, the applicant does not claim to have personal experience of this. The delegate found that the applicant would receive effective protection from the RMP and judiciary in Malaysia against any threats he faces from loan sharks. The delegate concluded that the state could provide protection to the applicant and is willing and able to do so. Further, the delegate considered that the applicant can access the protection; the protection is durable and consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
The hearing
The applicant confirmed he was born in Perak but raised in Penang. He lived in Kuala Lumpur in 2014 for less than a year and then returned to Penang.
The applicant confirmed his religion as a Muslim and that he is ethnic Malay. The applicant confirmed he has two wives and they both live with their respective parents in Malaysia. He said he had a third wife but they are divorced. He has children from all three wives and they live with their mothers. The applicant told the Tribunal that his mother live in Penang and his father had passed away. He had one [brother] who passed away and [a number of] sisters and [a number of] brothers. His mother is living with and is supported by his sisters and he also sends money to her. The applicant said he has a [diploma] in Malaysia and had previously worked for [Company 1] in Kuala Lumpur, [as occupation]. He worked for the company for four years in various locations and has also worked for them [with different duties] in Kedah. The applicant said he is currently working in [Town 1] at [a business] and he found the job through Gumtree. Before that he was working in [Town 2] and then transferred to [Town 1]. He has also previously worked in [the same industry] in [Town 3].
The applicant had not previously travelled overseas apart from a trip to Australia for a [short] holiday. He does not have any family in Australia and did not know anyone prior to his arrival.
The applicant said he had help in completing his application for a protection visa. He was asked if he agrees with the contents of the application. He said he does and that he does not want to return to Malaysia because he is bankrupt. When he was working in Malaysia, the banks harassed him so he could not work properly and he needed to work to take care of his family. He took out a loan with a Chinese Chetty (Ah Long) an unlicensed money lender. When he was in Penang they came to the house and threatened and [vandalised] the house. He decided to move to another area in Penang but they located him and when he went to Kuala Lumpur they were still able to find him.
The applicant said he became a bankrupt first and then took out a loan and this was because the house was auctioned off by the bank and he was declared a bankrupt by them because he was unable to repay the loan. This was because of marriage problems with [one of his wives] and they had a dispute and neither wanted to repay the housing loan. They were both made bankrupt by the bank. He said he was lucky because they did not block his passport to prevent his being able to travel. At the time the bank made him bankrupt he only owed around [amount] AUD. After the sale of the house, he did not end up with any money and still owed money. They took bankruptcy proceedings against him anyway. He and [the wife involved in the dispute] are now divorced. His other two wives were living in a separate house which he was renting.
The applicant told the Tribunal that he was declared bankrupt in 2010. He then took out a loan because he needed money although he was working but they were also about to repossess the car. He borrowed [amount] Ringgit ($[amount] AUD) but not with one loan shark but used four borrowing [a portion] from each. These loans were taken out from 2013 to 2015 – some he paid off and borrowed more and then he was unable to repay subsequent loans. At the time he left Malaysia he owed [a much larger amount] which included credit card debts and the loan from bank.
The applicant said he also had loans from other banks including [named banks]. He said that after he was declared bankrupt the bank was still after him for money even though the debt should have been wiped. All he knew was that he was blacklisted and his credit cards were declined as he had exceeded the limits. He said the credit card debts were accrued before 2010 and he did not know he still had these debts and he never sought advice about them. The applicant said he does not know how much money he still owes the loan sharks as there were several. The applicant was asked what the bank had done about the outstanding loan. He said he does not know as they had his old address and did not receive any correspondence from them at his house in Penang.
The applicant was asked if he had made any arrangements to repay any of his debts. He said he has not done so yet. He is unclear about his situation and only knows he is still bankrupt. He said he is able to withdraw money from his provident fund to be used to repay his debts but he has never discussed doing this with a lawyer or an accountant. He said that in 2012 [one of his creditors] did try to contact him to repay his debts by [amount] Ringgit instalments but he was unable to do so. He said that from 2012 to 2015 his earnings were barely enough to cover expenses as he was supporting his [wives], [children], his mother and himself. He said he left Malaysia in 2015 because he had enough money to come to Australia and he borrowed [an amount] from a friend to be able to come and start a new life. He has repaid his friend the money he borrowed. He said that in Malaysia he is unable to work and earn enough to support his family. He said that some of his children are working and [one of his wives] is also working. His [other] wife takes care of the younger children.
The applicant said he received so many threats in Malaysia that he felt he was no longer safe. The threats were from loan sharks and they would call him many times and when he moved house they found him within a short time. They would leave notes threatening to kill him. The applicant was asked if he reported any of these threats to the police. He said he did not because he would be asked why he had borrowed money from loan sharks in the first place. In 2014, he had some friends who were in similar situations and the police took no action in 2014. He had not tried to complain to the police.
The applicant told the Tribunal that he had moved houses [a number of] times and each time the loan sharks found him. They would call him and tell him they knew where he was. Every time they came they would leave a note threatening him. At that time, he had been working for the same company but different divisions, in Kedah, Penang and Kuala Lumpur. He said whenever he took out a loan with a loan shark, they would take a photo. He had to provide payslip, [utility] bills and his thumb print. He has no idea how much he still owes. Has not tried to contact or renegotiate terms since coming to Australia. He came here in December 2015 because of threats and could no longer earn a living to support his family. If he was continue to work the banks would try and get money from him. He had been working until he came to Australia with [Company 1] in different sections. The bank was still trying to get money from him and he told them he could not pay. The bank called his boss who told him to repay the loan. This was embarrassing. He chose to quit and tried to find another job. He quit from [a subsidiary of Company 1] and joined [Company 1]. This was in January 2014 until the end December 2014. He has worked for [another subsidiary] and then [Company 1] for six months. This is one company with [Company 1] and has [a number of] subsidiaries.
The applicant's main reason for not wanting to return to Malaysia is because of the loan sharks and if he were to return he would not be able to take care of his family. At the moment his family are being supported by him and they are living with their families. They are living in Kedah.
The applicant was asked if his family have they been bothered by loan sharks since he left. He said no and perhaps the banks to not have their phone numbers.
The applicant was asked if he could relocate elsewhere and start afresh. He said he could not do so because the loan sharks will be able to find him because they have good connections. Even if he was working, the bank would chase him.
The Tribunal referred to country information dealing with illegal money lending in Malaysia and summarised the gist of this to the applicant (see attached). The Tribunal in particular referred to an article from the Rakyat Post, dated 29 March 2016[1] which reports that the government is worried about loan sharks and that the Home Ministry is prepared to take the lead in weeding out illegal money lenders or loan sharks in the country. This was in response to the call by the government by a member of parliament and other MPs for the government to exercise political will to curb the activities of loan sharks which are still rampant despite various measures taken by the authorities. This article reports that over 350 illegal money lenders were arrested and a number were charged and prosecuted and the authorities have been trying to make people aware that they need to report threats by these money lenders. The Sun Daily reported that there was no need to fear loan sharks. This article reports:
Lack of exposure on law to 'ah long' or loan sharks and the fear of making a police report after being threatened are among the factors causing the victims of these illegal moneylenders to endure endless debts.[2]
[1] The Rakyat Post Govt getting worried about loan sharks, 29 March 2016
[2] The Sun Daily KL Consumer Safety Association: No need to fear the loan sharks, 17 February 2015
The article goes on to say that the Kuala Lumpur Consumer Safety Association has appealed to people not to be afraid to report threats made by loan sharks because they are not immune from the law but when victims are too afraid to make a police report, that makes them immune.
Another article referred to by the Tribunal was from the Borneo Post which referred to the police having seized up to 6,700 posters and other materials of illegal money lenders or Ah Long since March 2015[3]. This has been in an effort to combat illegal activity around the state capital. The Tribunal referred to other media reports that the police are more interested in catching these illegal money lenders involved in threats and illegal activities, not their victims. The Tribunal explained that it was not suggesting that this issue is not a big problem for people like the applicant; however the media reports demonstrate that the authorities are very concerned and efforts are being made to try to combat this problem.
[3] The Borneo Post, 6,700 ‘Ah Long’ posters, banners, name cards seized, 28 May 2015
The applicant stated that he was aware that loan sharks are illegal and that is why the police will not act to protect him.
The Tribunal asked the applicant why he thought the police would not assist him in his circumstances. The applicant said he just tried to handle the matter himself and that friends who had sought police assistance had found that nothing was done.
The Tribunal referred to country information on Malaysia from the Department of Foreign Affairs and Trade (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.
The applicant was invited to comment on this information. The applicant said there a now a lot of victims who fail to make a police report because if they do nothing happens anyway. The police are only trying to make themselves look good but they do nothing about loan sharks. He said that the media is only reporting what the police feed them because the police are trying to protect their reputation. Some police are corrupt and also accept bribes from loan sharks.
The applicant was asked if there was any reason he thought he could not take advantage of Malaysia’s judicial system. The applicant said that it was not that he didn’t want to take advantage of the system but that he felt he could deal with it himself and that the police could not help him.
The Tribunal noted that the totality of the country information that had been discussed suggested that effective state protection was available to applicant and asked him if he would like to comment. The applicant said he had too many loans and could not survive in Malaysia as everyone continued to chase him for money.
The Tribunal also asked the applicant if he had ever looked into the conditions of his bankruptcy or sought any help, particularly in light of the bank’s continued requests that he repay the loan owing. He said he had not and was trying to keep ahead of the banks and the loan sharks and he simply trying to survive. He said he was lucky because the authorities did not take away his passport which they usually do and so he was able to come to Australia.
The applicant was asked if he had any personal experience of police corruption or corruption in the legal system. He said he had not but had heard about this from others.
The applicant was asked why he waited two months before he lodged his application for a protection visa. He said that his friend told him that if he put in his application earlier it would be rejected and he wanted more time to be able to work to provide for his family. He has also been made a permanent staff member at work and needs a bit more time.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant claims and the Tribunal is satisfied on the basis of the personal details provided, that he is a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing the applicant’s claim for protection.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).
Credibility
In assessing the applicants’ credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 -70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
Assessment of the evidence and findings
The Tribunal has considerable concerns regarding the applicant's claims. He claims to owe money to a number of loan sharks and has been threatened by them. He has however not reported these threats or claims of property damage to the authorities. He also claims to owe a considerable amount of money to banks and claims to have been made bankrupt by a bank because he was in a dispute with his former wife and neither would pay the mortgage of a house they both owned. He claims he continued to borrow money from loan sharks but has no idea how much he owes. He has not made any enquiries about these. He has also not made any enquiries regarding the terms of his bankruptcy, its duration and has not made any attempts to find out what his legal situation is in Malaysia. The applicant also claims that he came to Australia in order to avoid having to repay any of the loans but may do so in the future. He also has the responsibility of financially supporting his [wives], [children] and his mother and came to Australia to find work and wishes to remain.
The Tribunal accepts that the applicant has accumulated number debts, the amount of which remains unclear and that he was forced into bankruptcy by one of the banks in Malaysia. The Tribunal accepts that the applicant has some very pressing issues concerning his personal finances and future financial status in Malaysia, however there is nothing he presented to the Tribunal to suggest that he would not be able to access the legal system in Malaysia and attempt to clarify his position regarding bankruptcy or consolidate his legitimate loans through the legal system. In saying this, the Tribunal is guided by the DFAT assessment of the Malaysian judicial system which according to the country information the ability for individuals to seek legal redress through the Malaysian courts is mixed… However, the majority of cases in Malaysian civil courts are processed with the rule of law and legal procedure.[4]”
[4] Department of Foreign Affairs and Trade (DFAT) 2016, DFAT Country Information Report – Malaysia, 19 July
In considering the applicant's claims in relation to his bankruptcy the Tribunal does not consider this issue constitutes serious harm. In making this assessment the Tribunal has considered the non-exclusive list of matters that may constitute serious harm as contained in s.5J(5) (see attached). It is not suggested and nor does the Tribunal accept that the act of bankruptcy or the consequence that may follow constitute a threat to applicant's life, liberty, significant physical harassment or mistreatment and the Tribunal so finds. Nor does the Tribunal accept that the act of bankruptcy will cause the applicant severe economic hardship such as would threaten his capacity to subsist or deny him the capacity to earn a livelihood of any kind. In making this assessment the Tribunal accepts that although bankruptcy may make it difficult to the applicant to resume employment, it does not accept that it will prevent him from being employed at all such as would threaten his capacity to subsist. The Tribunal notes the applicant's evidence that he was working in Malaysia until he left and has been able to find employment in Australia and there is no reason why he could not do so on his return to Malaysia. The Tribunal is not satisfied that should the applicant find employment in Malaysia that his lower earning capacity compared to Australia or his bankruptcy mean that he faces a real chance of significant harm capable of amounting to persecution.
For these reasons the Tribunal finds the applicant does not have a well-founded fear of persecution for any reason relating to his bankruptcy or any outstanding bank loans.
In considering the applicant's claims to have borrowed money from money lenders and has been threatened when he was unable to repay these, the Tribunal is prepared to accept that he has borrowed money. The only date the applicant was clear about was that he was declared bankrupt in 2010 and it appears that he borrowed money after that date. The applicant's evidence was that he was unsure how much money he owes and to who. He also claimed to have moved house on a number of times and also to have worked in Kuala Lumpur but the money lenders were able to find him. He indicated that since his departure from Malaysia his family has not been approached by any of the money lenders.
While the Tribunal accepts on the basis of consistent country information that unlicensed money lenders resort to physical threats and assault to recover monies, the applicant's evidence regarding his experiences of threats and harassment were vague. Again, while the Tribunal is prepared to accept that he was approached and threatened he did not make any complaints to the police about these. He has claimed that the police will not be able to protect him, however, the Tribunal has carefully considered country information as outlined above and does not agree with this assessment. The applicant has not made a complaint to the police of the threats made to him. The country information indicates that the authorities are very concerned and have been making a concerted effort to combat illegal money lending and this also indicates that there are recourses available to people who find themselves in situations similar to the applicant. The country information indicates that the police in Malaysia are generally considered to be professional and effective and while noting the applicant's concern that there is corruption, the Tribunal notes that the country information indicates that the Malaysian authorities have taken and continue to take measures to address this.
Overall, in the Tribunal’s view the country information indicates that effective protection is available to the applicant in Malaysia namely that protection measures against persecution, threats of harm by the money lenders or their associates could be provided to the applicant by the Malaysian state and that they are willing and able to offer such protection. The Tribunal also notes that the Malaysian state is taken to be able to offer protection against persecution where the person can access the protection, the protection is durable and the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
On the available evidence the Tribunal was not satisfied that the police would fail to act to afford the applicant protection from the money lenders or their associates if requested to do so. On the basis of the available evidence, the Tribunal is not satisfied that effective state protection is not available to the applicant and the Tribunal finds there is not a real chance of serious harm by the money lenders or their associates. The Tribunal is not satisfied that the applicant would be unable to avail himself of effective state protection in Malaysia for any reason.
For the reasons given above, the Tribunal is not satisfied that the applicant faces a real chance of serious harm in Malaysia in the reasonably foreseeable future.
Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not face a real chance of serious harm in Malaysia for reason of his race, religion, nationality, political opinion or membership of a particular social group. Therefore he does not have a well-founded fear of persecution if he returns to Malaysia now or in the reasonably foreseeable future. Therefore the applicant does not satisfy the criterion as set out in s.36(2)(a) of the Act.
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), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.
“Significant harm” for these purposes is exhaustively defined in s.36(2A) of the Act: 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 is 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” are further defined in s.5(1) of the Act. The Tribunal notes that Article 7 of the International Covenant on Civil and Political Rights (ICCPR) prohibits torture and cruel, inhuman or degrading treatment or punishment.
According to the Act, “torture” does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. The Tribunal notes that, according to the Act, all three of these definitions of “significant harm” require that there be an intention to inflict harm by some act or omission.
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)(a), (b) and (c) of the Act.
Under s.36(2B)(b), there is taken not to be a real risk of significant harm if the non-citizen 'could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm'. This requires consideration as to whether the protection available would remove the real risk of significant harm: MIAC v MZYYL (2012) 207 FCR 211.
The Tribunal has found earlier that state protection would be available to the applicant. The evidence given at the hearing indicates that the applicant did not seek to avail himself of this protection after he was threatened. The Tribunal is satisfied that the country information referred to earlier indicates that the Malaysian police are generally considered to be professional and effective and in relation to police corruption, the Tribunal reiterates that country information indicates that illegal money lending is a recognized problem by the authorities and measures have been put in place to address this. The country information demonstrates that the authorities are very concerned about illegal money lending and associated criminal gangs and have dedicated significant resources and measures to address this. Further the country information also demonstrates that apart from an effective police force, there is an appropriate criminal law and an impartial judicial system that would prosecute an assault or threats on a person. For reasons discussed earlier, the Tribunal was not satisfied that the police would fail to act if the applicant was threatened with harm. This demonstrates in the Tribunal's view that effective protection measures are available and the applicant is able to obtain protection such that there would not be a real risk that he will suffer significant harm.
For these reasons and considering the applicant’s individual circumstances, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm from money lenders or their associates.
Further, for the reasons outlined earlier the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk he will suffer significant harm for reasons of his bankruptcy.
Considering the applicant’s individual and cumulative circumstances and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm. The Tribunal is therefore not satisfied that the applicants meet the alternative provisions in s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sophia Panagiotidis
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Attachment – Country information
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.[5]
[5] ‘KL Consumer Safety Association - No need to fear the loan sharks’ 2015, Bernama (Malaysian National News Agency), 17 February; October 2013, The Sundaily 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’.[6]
[6] Loan shark menace worsens in M’sia’ 2013, The Sun daily, 2 October; 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 member 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.[7]
[7] ‘Police cooperate with Council to wipe out loan sharks’ 2013, Daily Express, 28 December; 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.[8] In April 2014, the police and local authorities in Penang ‘pulled down 238 banners and streamers promoting illegal moneylending’.[9] The Malaysian Communications and Multimedia Commission also disconnected the telephone lines of contacts printed on the materials.[10] 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’.[11] Reportedly, ‘City Police chief ACP M. Chandra said the police and City Hall had carried out numerous operations under Ops Vulture’.[12]
[8] ‘57% drop in commercial crime losses, say cops’ 2014, The Star Online, 2 July; Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April; Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April; Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May; ‘2,700 Ah Long materials removed’ 2015, Daily Express, 28 May; Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May; 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.[13] 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’.[14] A more recent report from 2015 confirms that the police are willing and able to protect debtors who receive threats from loan sharks.[15]
[13] ‘Sabah Police probe nine Ah Long cases in 2013’ 2014, The Malaysian Times, 3 January; ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December; The Malaysian Times ‘No need to fear the loan sharks’, 17 February 2015,
Additionally, ‘four more cases and seven individuals were investigated under Section 29AA of the same Act for putting up posters.’[16] 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’.[17] 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.’[18]
[16] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December; ‘Police Free Man Abducted By Loan Sharks’, 2014, Malaysian Digest, 16 October; ‘Loan sharks caught red-handed’ 2015, The Star Malaysia, 29 May; the police arrested 13 individuals, including the leader, involved in one of the largest money-lending syndicates, which had operated in Selangor, Kuala Lumpur and Johor.[19]
[19] ‘Police bust largest money-lending syndicate (Updated)’, The Sun Daily, 23 May 2016; information indicates that there are some concerns expressed about the court system due to judicial inexperience and salary, some selective prosecution and arbitrary verdicts (although these have largely been in relation to high-profile opposition politicians and human rights defenders), but that the majority of case in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.[20]
[20] Department of Foreign Affairs and Trade (DFAT) 2016, DFAT Country Information Report – Malaysia, 19 July
Law enforcement and the legal system in Malaysia
Country information indicates that there are some concerns expressed about the court system due to judicial inexperience and salary, some selective prosecution and arbitrary verdicts (although these have largely been in relation to high-profile opposition politicians and human rights defenders), but that the majority of case in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.[21]
[21] Department of Foreign Affairs and Trade (DFAT) 2016, DFAT Country Information Report – Malaysia, 19 July
The Tribunal notes the most recent Malaysian country information report by 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.[22]
[22] Department of Foreign Affairs and Trade (DFAT) 2016, DFAT Country Information Report – Malaysia, 19 July.
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.
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.[23]
[23] No answers, no apology: Police abuses and accountability in Malaysia, Human Rights Watch, 2 April 2014 pp 22-23.
DFAT also advise the following in relation to the judiciary and legal 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.

[2017] AATA 2540

13 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Standing

Jurisdiction

Statutory Construction