1615588 (Refugee)

1615588 (Refugee) [2017] AATA 2201 (30 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615588
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Rosa Gagliardi
DATE:30 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 October 2017 at 1:04pm
CATCHWORDS
Refugee – Protection visa - Malaysia – No Convention grounds – Economic – Fear of loan sharks – Inconsistent evidence – Credibility concerns
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K-LA, 36, 65, 424AAA, 499
Migration Regulations1994, Schedule 2
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] September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia applied for the visa [in] May 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations. In particular, the delegate was not satisfied the applicant faces a real chance of persecution for one or more of the reasons mentioned in subsection 5J(1)(a) of the Act. The delegate therefore found the applicant is not a refugee as defined by s.5H of the Act and the criterion in s.36(2)(a) of the Act.
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In his application the applicant wrote:
·That he left his country to work legally in Australia that was to have been organised by a work agent in Malaysia.
·After he arrived in Australia he was asked to work on a [workplace]. He then realised that he had been manipulated by the work agent to work in Australia illegally.
·The agent asked for [amount] Malaysian Ringgit (MYR), the equivalent of roughly AUD [amount] for the services fee. The applicant then wrote, “Afraid to been hand over to authorities”.
·He considered that he would face financial hardship and harm by the “work agent’s gang”;
·He thought the work opportunity that was offered by the job agent was legitimate;
·He might be harmed because he ran away from the job agent and he reported their crime;
·The Malaysian authorities would not be in favour of his case as they tend to blame the victim; and
·He could not relocate because it would be hard for him to rebuild his career.
The applicant is [an age] Muslim male born in Selangor. He stated at hearing that his family consisted of his mother, [and siblings]. They were all working apart from [a sibling] who was still at school. The applicant stated that their life was ok. He had only studied to Year [number] because he was not interested in studying.
Asked what the applicant feared on return to Malaysia, he stated that he had borrowed money from loan sharks, about MYR [amount]. He did not have enough money to come to Australia so he borrowed the money from a loan shark. He wanted to work here but he was cheated by an agent. The Tribunal asked what work he was hoping to do in Australia and he responded that he would have liked to work legally in a [workplace]. Instead, he just got odd jobs working on [workplaces].
The Tribunal tried to ascertain who exactly the applicant would fear on return to Malaysia and he responded that if he returned he may be threatened by the loan sharks because he had not paid his loan.
The Tribunal noted that most of his family members were working so why did he resort to a money lender. He stated that his mother and siblings were only able to support themselves. The Tribunal asked the applicant whether he had saved the money he owed the Ah Long in Australia. The applicant stated that he only had AUD [amount] and it was not enough yet. He stated that he just made enough money to survive in Australia.
The applicant stated that the agent told him that there were job opportunities to work lawfully in Australia so he borrowed money from a loan shark. When he arrived, however, there was no job and he was sent to work on a [workplace] instead. Asked who sent him to work on the [workplace] the applicant stated that it was the agent in Malaysia. He came to Australia to find a job to help his mother as she was getting on in years and he was hoping to stay here indefinitely.
The Tribunal asked the applicant what he feared in terms of the loan sharks and he stated that he would be beaten up. Asked if he feared harm from anyone else, the applicant stated, “No, just the loan sharks”.
The Tribunal noted that in his application he had made different claims and set these out under s.424AA of the Migration Act, noting that he had not been consistent about the harm he feared on return to Malaysia and that if the Tribunal relied on this information it would find that the applicant’s claims were so different as to lead the Tribunal not to accept any of his claims.
The applicant stated that he owed money to the loans sharks. Asked whether it was loan sharks or the job agent and gangs he feared, the applicant stated that he owed money to loan sharks. The Tribunal highlighted that at Question 95 the applicant had stated in response to a question about who he feared in Malaysian, “I may harm since I already run away from the job agent and report their crime”. The Tribunal asked who he reported the crime to and he responded it was a friend. Asked to give specific details about the friend, the applicant stated, “A friend from Malaysia”. He confirmed it was not the police.
The Tribunal asked the applicant to specify what crime the job agent had committed and the applicant stated that the agent cheated him by telling him there were jobs in Australia. There were no jobs so he ran away to work on a [workplace]. He stated that he was not afraid of the agent. He was only afraid of Ah Long.
The Tribunal put to the applicant country information which reflected that the authorities have been cracking down on the Ah Long and that in fact it was an offence for money lenders to operate in Malaysia. The Malaysian police force was also considered to be relatively effective if he had concerns about his safety. The applicant stated that the police would not take any action because they would see it as his fault. The Tribunal reiterated that if it was an offence to operate an unregulated money lending business then he would be seen as a victim of that offence. He again stated that the police would not take any action as they would say it was his fault for having engaged with the loan sharks.
The Tribunal put to the applicant under s.424AA of the Act that his claims at the time of application were not consistent with those he had provided the Tribunal. In his application at Question 91, the applicant had been asked “What do you think will happen if you return to Malaysia” and the applicant had written, “Financial hardship and work agent’s gang”. The Tribunal explained that if it relied on this information it would find that the applicant’s evidence was so confusing and inconsistent that it could not accept any of his claims.
The applicant then stated that yes, the agent’s gang would harm him. Asked how and why, he responded “Because I ran away from him. I do not work with him”. The Tribunal noted that the applicant had paid the job agent and he had come to Australia and that that would have been the end of the transaction. The applicant stated that yes; that was correct. The Tribunal encouraged the applicant to discuss why the job agent would want to harm him. The applicant responded that he was supposed to go to work at a specified place but he did not go there. Asked how the job agent in Malaysia would be aware as to where he had gone to work in Australia, the applicant stated that the agent rang a contact person here and now the contact person was looking for him. He did not go to the police in Australia because he cannot speak English.
The Tribunal explained that it was not clear why the agent would pursue him to harm him if he had paid the agent the money owed. He stated that they might have been worried that he did not meet the designated contact person. The applicant then provided a confusing response, stating the contact person over here might beat up the agent because he did not go and work where they wanted him to work.
Asked again who the applicant feared on return to Malaysia, the applicant stated that he would be beaten up by the loan sharks. The Tribunal asked was there anyone else he feared and he responded, “No just the loan sharks”. The Tribunal asked whether he feared the job agent’s gang. He stated no, but that he will definitely “get it” on return to Malaysia because he had no repaid his loan to the loan sharks.
The Tribunal highlighted that in addition to the police combatting loan sharks, there was an organisation in Malaysia that assists people who have had a bad experience with loans sharks. The applicant stated that the group could not assist him because the loan sharks belong to a big gangster group.
FINDINGS AND REASONS
From the summary of the applicant’s evidence at hearing it was difficult for the Tribunal to establish the facts, although it seems that initially he was only afraid of the job agent who helped him come to Australia to get work and is gangs. Then the applicant’s evidence changed to indicate that he was also afraid of the loan sharks from whom he had loaned money. The applicant then went to stating that it was both the work agent and the loan sharks he was afraid of, including the work contact person in Australia. By the end of the hearing the applicant stated that it was only the loan sharks he feared.
The Tribunal is cautious to attribute inconsistency in his application to the applicant because as is often the case in this caseload some other person may have assisted the applicant and it’s not always the case that applicants are even aware of what claims have been put forward for them. At hearing when asked the applicant initially only stated that he feared he would be harmed by the loan sharks. It was when the Tribunal put to the applicant under s.424AA of the Migration Act, that his claims in his application were of a totally different nature, that he then advanced that he was also fearful of his work agent and his “gangs”. When the Tribunal put the inconsistency to the applicant, the applicant was unable to resolve the different claims in any plausible manner, but changed his evidence to also attribute to himself the claims initially written in his application.
The Tribunal is also cautious in discrediting the applicant without careful consideration of all his claims given that he has had limited education and may have been nervous at hearing. Taking into account all of these considerations, however, the Tribunal has concluded that the well has been poisoned and the Tribunal is unable to accept any of the applicant’s claims. Not only did the applicant keep revising his account when it suited his narrative to do so, his evidence was so internally inconsistent, as well as inconsistent with the claims put forward in his application, that the Tribunal finds that the reasons for the applicant’s lack of credibility is because none of the claims put forward by him are ground in reality and consequently, the Tribunal rejects them in their entirety.
The Tribunal considers that even with the applicant’s lack of education he would have been able to provide a basic narrative about the events that had happened to him and who specifically would harm him. The Tribunal finds, instead, that the reason the applicant was not able to provide a basic and rational account of his claims and shifted his evidence over time during the hearing, is because the none of the events he claims occurred did so and that none of the persons referred to by the applicant in vague terms exist.
The Tribunal accepts that the applicant’s purpose in coming to Australia was to work. The Tribunal is also prepared to accept that the agent he was dealing with may have told him that there was lawful work to be had in Australia. From then on, however, the applicant’s claims strain credulity.
For example, as put to the applicant at hearing it is not plausible the applicant after having handed his agent RYM [amount] would be wanted by him because he did not go to work where the agent wanted him to go. The Tribunal’s views are reinforced because the applicant was able to provide little detail about who this agent was.
Of concern to the Tribunal also is that it is unclear why the applicant would not pursue work that might have been arranged by the agent, even if unlawful, given that the applicant’s intention always was to work in Australia. That the applicant refused the work which the applicant could not provide details about, provided to him by an unidentified person, because the applicant was focussed on working only in a [workplace], is not credible. The Tribunal appreciates that had the applicant been able to work in a [a specified workplace] he may have been able to earn more, but that presumes that any such vacancy existed and that he would have been able to work full-time.
The Tribunal encouraged the applicant to discuss how and why the gangs would harm him but the applicant could only say that it was because he ran away from his agent and he did not “work with him”. The applicant has provided little information about the so-called gangs working for the work agent and, as such, the Tribunal does not accept that they exist. It is for the applicant to set out his claims in as much detail as possible, providing a realistic account so as to persuade the Tribunal that events actually happened or could happen. In the case of the applicant, given that he did not mention that he feared harm from gangs at hearing initially, and given that he was unable to provide any meaningful information about why the gangs would be so enraged as to hurt the applicant because did not work with the agent except to say that he would be beaten by them, the Tribunal does not accept that the applicant has a fear of gangs, who the applicant could only refer to in general and vague terms.
If the applicant considers that the agent cheated him (and the Tribunal does not accept this) it is the applicant who should fear harm from the work agent who took RYM [amount] from him without honouring their claimed agreement. In terms of his claims that he was afraid to be handed over to the authorities, it is not clear whether the applicant feared the authorities in Malaysia and why or whether he genuinely had a realistic fear of being detained for having worked in Australia unlawfully, as could have been the case. If the applicant fears harm in Malaysia by the authorities because he had been cheated by an agent (and the Tribunal does not accept this claim), the Tribunal has found country information as put to the applicant at hearing which indicates that the police force in Malaysia would not automatically blame him, “the victim”.
The most recent report on Malaysia by the Department of Foreign Affairs and Trade states, among other things, of the Royal Malaysian Police (RMP), ‘Credible local and international sources consider the RMP to be a professional and effective police force’, noting, however, that the quality of the RMPs officers responses varies depending on levels of training, capacity or engagement in corruption. Police officers are poorly paid and training is limited, particularly in the area of human rights. Nonetheless, the government is undertaking targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP. Further, the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption as being a problem. In response, the government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion.[1]
[1] Department of Foreign Affairs and Trade, Malaysia, 19 July 2017, at 5.5 and 5.6, accessed on

The applicant’s account of how the agent was in contact with a “contact person” who he claims was arranged by the agent, possibly to give the applicant work, although the applicant did not elaborate, is also not plausible. The Tribunal from the applicant’s evidence was not able to ascertain why a contact person in Australia would organise an overseas agent to work for him/her in Australia.
The Tribunal also finds that the applicant fabricated at hearing the specific claim that the agent might pursue him because the contractor might go after the agent similarly unrealistic as it was not supported by any further information that would lead the Tribunal to find that such an event would occur. This is particularly so as the applicant did not provide the Tribunal with a detailed account of who the contact person might be, and where this contact person is located (in Australia). For these reasons the Tribunal does not accept that this contact person exists or that if he were being pursued by the contact person in Australia the could not report the matter to the police via an interpreter.
The claim that this contact person was now looking for the applicant to possibly harm him is also not plausible. The Tribunal is unaware of any significant labour shortage in either the skilled or unskilled areas which would move an employer to wreak revenge on someone for not taking a job (unspecified).
When the Tribunal put to the applicant his claims in his protection visa application involving that he would be harmed because he had run away from the agent and he reported “the crime”, the Tribunal was attempting to establish whether the applicant feared the job agent because he would seek retribution for the applicant having reported him to the police, but the applicant stated that he had reported it to a friend; a Malaysian friend, without providing any details of who this friend might be.
The Tribunal finds that the applicant provided this response without giving an explanation as to why telling a friend would lead to the job agent pursuing him through gangs, because the applicant never did report the matter about the work agent cheating him and being in pursuit of him to anyone, because the Tribunal does not accept that any work agent is in pursuit of the applicant.
The applicant’s claims about the work agent and the gangs pursuing him for not cooperating with the agent have also been significantly undermined because towards the end of the hearing the applicant abandoned his claims about the agent altogether, stating he had no fear of the agent. He only feared the loan sharks.
As the applicant’s credibility is significantly marred, for the following reasons, the Tribunal also rejects in their entirety, the applicant’s claims about fearing loan sharks on return to Malaysia.
The Tribunal considers that even had the applicant asked somebody to fill in his application for him, had he genuinely held a fear of harm on return to Malaysia on account of having borrowed money from a loan shark to come to Australia, that he would have ensured that such claims were included in his application. The fact that these claims were not spontaneously raised at the time of application leads the Tribunal to seriously question whether the applicant did not fabricate these later claims at review for the purpose of enhancing his account. Even if someone else had filled in the application for him, the Tribunal would have expected that the applicant would have mentioned to this person that he genuinely feared harm from loan sharks, even if the applicant had not been interested or unaware of other claims written for him in the application.
In addition, given the applicant claims he was cheated by an agent in Malaysia, the Tribunal considers that the applicant would have been less trusting of an individual who was purporting to assist him gain protection in Australia, if the applicant did not indeed prepare the application form himself.
The Tribunal notes that the evidence about the loan sharks at hearing was cursory and the applicant was unable to substantiate his claims with any details about the loan sharks. The applicant was only able to talk in generalities about “the loan sharks” without providing the Tribunal any real information about how he organised the loan and which individuals were actually involved.
The applicant stated that the police would blame him for having borrowed from the loan sharks but the Tribunal does not accept that this approach is consistent with the country information which indicates that the authorities are taking action against Ah Long and that it is an offence in Malaysia to operate such an activity. Illegal money lending or loan sharking, colloquially known as ‘Ah Long’ is an offence 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.[2]
[2] ‘KL Consumer Safety Association - No need to fear the loan sharks’ 2015, Bernama (Malaysian National News Agency),
Various media reports indicate that the practice of illegal money lending is widespread in Malaysia and that police operations targeting Ah Long are not uncommon. According to a Daily Express 22 April 2014 report, ‘police are tracking down members of unlicensed moneylending syndicates … through contact numbers printed in their advertisements, including flyers, posters, banners and business cards...’ The article notes that one of the most significant barriers to prosecuting Ah Long syndicate members is the ‘lack of cooperation from the public, especially those who had fallen victims to the syndicate.’ This problem stems from threats by syndicate members. Police in Perak made 88 arrests during an eight month period and continue to combat Ah Long syndicates by removing marketing materials, such as advertisements, from the public space.[3]
[3] ‘Police cooperate with Council to wipe out loan sharks’ 2013, Daily Express, 28 December < Accessed 27 October 2017 <CX320164>.
Police action against the Ah Long includes a police operation in Kuching, conducted from

23 May 2014 to 23 June 2014, which reportedly resulted in 1,051 illegal advertisements and posters for illegal loans being removed in the 135 police raids conducted.[4] In April 2014, the police and local authorities in Penang ‘pulled down 238 banners and streamers promoting illegal moneylending’.[5] The Malaysian Communications and Multimedia Commission also disconnected the telephone lines of contacts printed on the materials.[6] Between March and May 2015 police in Kota Kinabalu seized between 2,700 and 6,700 ‘posters, banners and name cards of illegal money lenders’.[7] Reportedly, ‘City Police chief ACP M. Chandra said the police and City Hall had carried out numerous operations under Ops Vulture’.[8]
[4] ‘57% drop in commercial crime losses, say cops’ 2014, The Star Online, 2 July < Accessed 27 October 2017 <CX1B9ECAB11425>
[5] Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April < Accessed 27 October 2017 <CX1B9ECAB11426>
[6] Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April < Accessed 27 October 2017 <CX1B9ECAB11426>
[7] 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>
[8] Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May < Accessed
Numerous media reports were located regarding the effectiveness of police investigations and arrests related to Ah Long syndicate crimes. Police in Sabah reported that ‘16 men believed to be Ah Long members were arrested in 2013 compared to 12 arrested in 2012’ during Operation Vulture.[9] In 2013, Malacca police investigated 29 Ah Long related cases and arrested 20 people. Thirteen cases involved preventative measures with cases being ‘investigated under Section 5(2) of the Money Lenders Act 1951 for operating without a licence’.[10]
[9] ‘Sabah Police probe nine Ah Long cases in 2013’ 2014, The Malaysian Times, 3 January < Accessed 27 October 2017 <CX1B9ECAB11427>
[10] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December < Accessed
Additionally, ‘four more cases and seven individuals were investigated under Section 29AA of the same Act for putting up posters.’[11] The Malaysian Digest reported on 16 October 2014 that ‘police rescued a 21-year-old after he was abducted by three men, believed to be loan sharks … One day after the incident, police apprehended a 24-year-old man and a 29 year-old woman … believed to be involved in the incident’.[12] The Malaysian Star reported on 29 May 2015 that two loan sharks were arrested during a police surveillance operation when collecting money from a victim. The arrested persons were wanted by police ‘for suspected involvement in several other cases of illegal moneylending in the district.’[13]
[11] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December < Accessed
[12] ‘Police Free Man Abducted By Loan Sharks’, 2014, Malaysian Digest, 16 October < Accessed
[13] ‘Loan sharks caught red-handed’ 2015, The Star Malaysia, 29 May < Accessed 27 October 2017 <CXBD6A0DE13543>
The Tribunal has also located country information that as recent as 12 July 2017, the Pahang police had busted an illegal money-lending syndicate with the arrest of two men under Operation Vulture. During the operation police seized money lending advertisement posters and phone numbers. It appears that the syndicate openly approached customers by circulating cards displaying the company name and telephone numbers, hanging posters at electrical poles and other places.[14]
[14] Astro Awani, Police Bust Ah Long syndicate in Pahang,
The Tribunal does not accept that had the applicant had concerns with loan sharks that he would not approach the police because they would blame him and that he would not receive effective state protection in Malaysia.
The Tribunal also considers that the loan sharks would risk drawing attention to themselves by pursuing what is, in effect, a minor loan from the applicant over a period of almost two years, implausible. The loan is equivalent to about AUD [amount]. The applicant at hearing stated that he arrived in Australia in February 2016 and had been undertaking [certain] work. Even if the Tribunal were to accept that the applicant had taken a loan of about $[amount] from loan sharks (and it does not), it is not credible that he could not either through family and friends make up the remaining $[amount], he would owe after handing over the $[amount], the applicant claims he has saved. At hearing the applicant stated that his siblings and his mother were also working. Even accepting that their earnings may be minimal, together with money the applicant may have been able to raise in Australia, the Tribunal does not accept that this debt could not be extinguished, even if slowly.
Given the applicant’s credibility is so in doubt, the Tribunal does not accept that the applicant is in debt of any amount to loan sharks of any kind and it follows that the Tribunal does not accept that the applicant will be harmed or pursued by loan sharks if he were to return to Malaysia now or in the reasonably foreseeable future.
In summary, the Tribunal therefore rejects the applicant’s initial claims that:
·After he arrived in Australia he was asked to work on a [workplace]. He then realised that he had been manipulated by the work agent to work in Australia illegally.
·The agent asked for [amount] Malaysian Ringgit (MYR), the equivalent of roughly AUD [amount] for the services fee and he was “Afraid to been hand over to authorities”.
·He considered that he would face financial hardship and harm by the “work agent’s gang”;
·He thought the work opportunity that was offered by the job agent was legitimate;
·He might be harmed because he ran away from the job agent and he reported their crime to a friend or the police;
·The contact person in Australia would be beaten up by the work agent in Malaysia because the applicant did not go to work where they wanted him to work;
·The Malaysian authorities would not be in favour of his case as they tend to blame the victim;
·He would need to relocate and therefore rebuild his career.
Nor does the Tribunal accept the applicant’s new and additional claims at hearing that:
·He borrowed the agent’s fee of RYM[amount] to pay the loan sharks;
·That he would be beaten up by the loan sharks on return to Malaysia for not having repaid the RYM [amount]; and
·The Malaysian police or authorities would not offer him protection because they would see it as the applicant’s fault for having engaged with loan sharks.
Residual claims – financial hardship
The applicant is a resident of Selangor, close to Kuala Lumpur. The Tribunal has also considered the applicant’s claims to have a real chance of serious harm arising from his economic destitution for any of the reasons mentioned in s.5J(1)(a), if he were to return to Malaysia in the reasonably foreseeable future.
The Tribunal accepts that the applicant’s limited education to Year [number] may mean he will have difficulty find a skilled job in Malaysia and accepts that the applicant was motivated to come to Australia to assist his mother who is elderly. The applicant’s mother is currently working as are [number] of his siblings, meaning that his household were he to return to his familial home is not devoid of an income. Furthermore, the applicant [is] fit and was able to find work in Australia on a [workplace]. This strongly indicates to the Tribunal that the applicant is adaptable and able to earn a living, even if it is in unskilled jobs.
In respect of the applicant’s claim therefore that he faces a real chance of serious harm now or in the reasonably foreseeable future arising from his economic circumstances, the Tribunal does not accept this to be the case. Malaysia is well known to have an expanding economy that is growing in size, diversity and sophistication. The Tribunal is unable to discern why the applicant would not be able to work in a big city centre such as Kuala Lumpur or other places where the demand for unskilled labour would exist. For these reasons, the Tribunal finds that the prospects of finding work in Malaysia does not amount to the applicant facing a harm that will amount to serious harm, in the sense that the applicant or his family will experience severe economic hardship or deny them the capacity to earn livelihoods that will threaten the applicant’s or the applicant’s family’s capacity to subsist or that the applicant and his family will be denied access to basic services, where the denial threatens the person’s capacity to subsist.
Accordingly, the applicant does not have a real chance of serious harm arising from his economic circumstances for reasons mentioned in s.5J(1)(a) or any other claimed reasons, if he were to return to Malaysia, now or in the reasonably foreseeable future.
Having assessed all of the applicant’s claims individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason. The Tribunal is not satisfied, therefore, that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
The Tribunal has also 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). The Tribunal has made earlier findings that the applicant does not face a real risk of serious harm because the Tribunal does not accept that the applicant is being pursued by a work agent or loan sharks. It follows that the Tribunal does not accept that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of significant harm, including torture, being subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment. 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.
Rosa Gagliardi
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.
…

27 October 2017.

17 February < Accessed 27 October 2017 <CXBD6A0DE1580>.

27 October 2017 <CXBD6A0DE13537>

27 October 2017 <CXC28129414704>

27 October 2017 <CX1B9ECAB11430>

Accessed on 27 October 2017.

[2017] AATA 2201

30 October 2017

Key Legal Topics

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