1616162 (Refugee)

1616162 (Refugee) [2017] AATA 2575 (8 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616162
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Peter Vlahos
DATE:8 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 November 2017 at 8:44am

CATCHWORDS
Refugee – Protection visa – Malaysia – Threatened by loan sharks – Seeking economic opportunities in Australia – No well-founded fear of persecution
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J(1), 5J(2), 5LA, 32(2), 36, 36(2)(a)-(c), 36(2A) -(2B), 65, 499,
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR
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 and the delegate refused to grant the visa on the basis that the applicant’s application for protection did not satisfy sub-section 32(2) of the Act.
On 3 October 2016 the applicant made an application to the Tribunal to review the Department’s refusal to grant a Protection visa.
On 16 October 2017 the applicant appeared before the Tribunal to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was not represented in relation to this review by a registered migration agent or legal representative.
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 Australia has protection obligations in respect to [the applicant]. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality and Identity
Based on a copy of the applicant’s passport, which was provided to the Department of Immigration & Border Protection (the Department) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has had her claims assessed against that country in relation to sections 36(2) (a) and 36(2)(aa) of the Migration Act (the Act).
On the basis of the above-mentioned evidence, the Tribunal further accepts the applicant’s identity as claimed.
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.
Background – Migration History of the Applicant
The applicant first arrived in Australia [in] March 2016. [In] May 2016 the applicant applied for a Protection visa (XA class) and was granted the associated bridging visa.
EVIDENCE AT THE SCHEDULED HEARING
Background of the Applicant
The applicant [is] a [age] year old Malay national from [Melaka], Malaysia. He is also Muslim by faith. He has family living in Malaysia. The applicant told the Tribunal that he has his father and mother both living in Malaysia and [siblings] which are living in Kuala Lumpur. Before deciding to come to Australia, the applicant worked as a [worker]. He also told the Tribunal that he served in the Malaysian [defence force] and his education level achieved was – year 11 and had gained for him a ‘Malaysian Certificate of Education’ (according to the applicant). The applicant provided no copies of documents either to the Tribunal or to the Department concerning his claim that he had served in the [defence force] or that he qualified for the ‘Malaysian Certificate of Education.’
The applicant’s claims for Protection as submitted to the Department[1]
[1] AAT File no. 1616162 Folio no. 8
The applicant’s claims before the Tribunal can be summarised as follows:
§He believes the Democratic system practised in Malaysia has ruined the country.
§He had to borrow from financial companies which were not licensed.
§He is unable to repay the debt.
§The authorities are unable to protect him because they are corrupt.
The Tribunal asked the applicant to confirm that the above claims were correct and formed the basis of his claims for protection.
The applicant’s financial problems in Malaysia
According to the applicant his problems in Malaysia were caused by his borrowing the amount of RM [amount] from a Malaysian bank and still further borrowings from a local loan shark in order to meet his commitment to make instalment repayments for his bank loan. He had taken out a loan with the bank because he wanted to start a business but what he had originally planned to do did not come to fruition. He claimed that he was ‘cheated by his business partner’ and the ‘money borrowed’ was lost trying to ‘sell [goods]’.
After the applicant’s funds had ‘run out’ he still had the ‘problem’ of honouring his loan commitments with the bank. In order to do this (according to the applicant) he decided to borrow the amount of RM [amount] ringgits from a local loan shark.
The Tribunal was told that his agreement with the loan shark for the loan was not a formal written document. Accordingly, the applicant provided to the loan shark a copy of his Malaysian national identity card and his residential address. After that, the loan shark provided the applicant with the money requested.
What happened next in the relationship between the loan shark and the applicant?
Following his negotiations and the securing of his second loan from the local loan shark, the applicant told the Tribunal that he was unable to service the loan and survive at the same time because he had no income.
What happened when the applicant could not meet the loan shark’s loan repayment and his existing commitments with the bank?
The Tribunal was told that overtime the bank ‘blacklisted him’ for non-repayment of his loan repayments. As for the loan shark, the applicant told the Tribunal that the ‘interest’ charged ‘increased’. The Tribunal asked the applicant how much interest was currently owed by him to the loan shark. In his response, the applicant told the Tribunal he did not know what the current interest on his loan shark loan was. However, he did add the comment that it would be significant having regard to other peoples’ problems (similar to him) when dealing with local loan sharks. In other words, the interest would be more and would accumulate and increase on a daily basis but the applicant provided the Tribunal with no actual figures or an estimation of what the applicant believed he would owe the loan shark.
Has the applicant been threatened by the loan shark?
Initially, the applicant was not subjected to any threats. However, when he was unable to meet an interest repayment deadline he would receive verbal ‘threats’. After a period of ‘two months’ of not having paid the loan shark, the applicant told the Tribunal that the loan shark would come to ‘look for him.’
Why did the applicant leave Malaysia?
The applicant decided to leave Malaysia to come to Australia because he ‘could not live there’ and ‘support himself.’ It was difficult to find work in Malaysia and this caused him difficulties when he also had loan commitments to repay. The Tribunal asked the applicant – was your departure from Malaysia caused by your inability to repay the loan shark and you had received threats. The applicant told the Tribunal that he would be threatened if he did not make a repayment of the loan shark loan as required but he left Malaysia ‘before’ he was threatened.
Could the applicant (if threatened) request assistance from the local police?
The Applicant, the Tribunal was told that he could report to the local police any ‘threats’ the loan shark would make against him but that would also result in reprisals against his family members currently living in Malaysia being made. That was why in the end, the applicant decided to flee Malaysia for Australia.
What is applicant currently doing in Australia?
Currently, the applicant is working [and] is earning approximately AUD$[amount] per hour – working five days a week. He earns in total, approximately AUD$[amount] per week.
How much money does the applicant owe to the loan shark currently?
The applicant told the Tribunal that his current loan with loan shark was for RM [amount] ringgits but the interest on that money would be ‘high’ and he was not sure what the actual figure would be but it would be high. The Tribunal was also told that the applicant was of aware of ‘others’ who had placed themselves in similar situations and had to pay ‘more money.’ Basically, when one borrowed money from a loan shark (according to the applicant) the ‘borrower’ would ‘always be in debt with him’ and this was happening throughout Malaysia.
Would the applicant receive protection from the local police if he was to return to Malaysia in the reasonably foreseeable future?
The Tribunal discussed with applicant the Department of Foreign Affairs (DFAT) country information and independent media information (as provided and included in the delegate’s decision) where it was reported that the Malaysian authorities had in recent years initiated some successful protection initiatives for people that had dealt and had been threatened by the loan sharks. The Tribunal also emphasised the point which was sourced in this available information that the Royal Malaysian police had successfully ‘cracked down’ on many Ah Long (loan shark) practices. The applicant told the Tribunal that he did not think that this was the actual situation in Malaysia. Although the applicant had a general foreboding as far as it involved the ability of the local police to protect him, if he was in Malaysia, he made no criticism but only to say that the police (in Malaysia) was different to the police in Australia.
Moreover, the applicant feared that ‘something would happen to him’ if he returned to Malaysia. He did not think that relocating to another part of Malaysia was possible for him to consider because Malaysia was not as ‘big’ a country as Australia and the loan shark would locate him because it had his national security card and could get ‘gangs’ and ‘thugs’ to ‘look for him’ and would locate him.
The applicant, also told the Tribunal, that he had definite ‘fears’ of returning to Malaysia because the loan shark would deal with him because he had not settled his loan and associated interest.
Concluding remarks of the applicant to the Tribunal
The applicant told the Tribunal that he liked it more living and working in Australia than in her own country of Malaysia and hoped to be given an opportunity to stay here.
Country Information – Malaysia - Loan Sharks – Police action against them and police corruption
In October 2013, The Sun Daily reported that figures supplied by the Malaysian Chinese Association (MCA) Head of Public Services and Complaints Department, Datuk Seri Michael Chong, showed that ‘The loan shark menace is worsening with Malaysians expected to be in debt by more than RM40 million this year – compared to last year’s RM39.5 million’. Loan sharks reportedly lent RM34,400,000 to financially-strapped Malaysians up to September 2013, and at the time of the article, ‘426 people were in debt to loan sharks, with each person owing an average of RM80,751’. According to Chong, ‘people continued to borrow from loan sharks despite continuous reminders by the authorities of the repercussions of doing so’. He also said that ‘of the 426 cases, 80% were by gamblers while the rest were drug abusers, failed businessmen and those living beyond their means’. Seven per cent or 32 people were reported to be repeat borrowers, and Chong said that ‘most of the repeat borrowers were involved in drug abuse and that their families were the ones who ended up being harassed by loan sharks’. Chong also said that the ‘police were powerless against loan sharks as the transactions were on a “willing seller willing buyer” basis’. Police, however, ‘can take action if loan sharks resort to violence or extortion to recover their money’.[2]
[2] ‘Loan shark menace worsens in M’sia’ 2013, The Sun Daily, 2 October < Accessed 22 April 2014<CX320169>
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 22 April 2014 <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 30 August 2016 <CX1B9ECAB11425>
[5] Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April < Accessed 30 August 2016 <CX1B9ECAB11426>
[6] Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April < Accessed 30 August 2016 <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 30 August 2016 <CXBD6A0DE13537>
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] 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]
[9] ‘Sabah Police probe nine Ah Long cases in 2013’ 2014, The Malaysian Times, 3 January < Accessed 30 August 2016 <CX1B9ECAB11427>
[10] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December < Accessed 30 August 2016 <CXC28129414704>
[11]‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December < Accessed 30 August 2016<CXC28129414704>
[12] ‘Police Free Man Abducted By Loan Sharks’, 2014, Malaysian Digest, 16 October < Accessed 30 August 2016 <CX1B9ECAB11430>
[13] ‘Loan sharks caught red-handed’ 2015, The Star Malaysia, 29 May < Accessed <CXBD6A0DE13543>
56 Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 5.5, p.25 <CIS38A80121311>

The DFAT 2016 Country Information Report – Malaysia notes that while the Royal Malaysian Police (RMP) are considered a ‘professional and effective’ police force by ‘local and international sources,’ the integrity of RMP responses are compromised by the ‘level of training, capacity or engagement in corruption’:
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.[14]
[14] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 5.5, p.25 <CIS38A80121311>
Notwithstanding, a 23 May 2016 article published by the Sun Daily reports that police have ‘busted the largest illegal money-lending syndicate in the country’ ‘following a report lodged by a 48-year-old-man who claimed that the loan sharks have been harassing him’:
"Following the report, we monitored and trailed the syndicate members for seven months. They have been lending up to RM8 million in total to victims every month, making this the largest syndicate we have busted in recent years," Roslan [Commercial Crime Investigation Department deputy director (Intelligence and Operations) Senior Asst Comm Roslan Abd Wahid] said.[15]
[15] Mun, S B 2016, ‘Police bust largest money-lending syndicate (Updated)’, The Sun Daily, 23 May < Accessed 16 August 2016 <CX6A26A6E7820>
A 24 May 2016 article in The Star cites Roslan who indicates that loan shark victims ‘“do not want to come forward to lodge police reports because they likely feel embarrassed”’.[16]
[16] Kumar, M 2016, ‘So long, Ah Long syndicate’, The Star, 24 May < Accessed 16 August 2016 <CX6A26A6E7847>
In its 2016 Country Information Report – Malaysia, DFAT noted the following in relation to loan sharks:
3.78 Al Jazeera reported in 2014 that there were approximately 49 illegal gangs operating in Malaysia, with almost 40,000 members. The majority of street-level gang members tend to be Indian Malaysians, reflecting their relative economic vulnerability. However, high-level crime, including drug trafficking is more typically undertaken by Malaysian Chinese gangs. All gangs have the potential to engage in extortion and loan shark practices. However, obtaining details on these activities is difficult as victims of gang-related crimes do not generally report to law enforcement. Credible contacts advised that Malaysian authorities would likely view individuals who access loan shark services as having participated in an illegal practice.[17]
According to DFAT’s 2016 Country Information Report – Malaysia, ‘Malaysia’s Constitution provides for freedom of internal movement’[18] and that citizens freely locate to various parts of the country for economic reasons:
5.19 DFAT assesses that Malaysians can and do freely relocate internally. Individuals likely to attract official attention under state sharia-based law, including transgender individuals, women escaping violent husbands or Muslims wishing to marry a non-Muslim, often move to large urban centres to avoid attention. People also move to different parts of Malaysia for economic reasons.[19]
[17] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 3.78, p.18 <CIS38A80121311>
[18] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 5.16, p.27 <CIS38A80121311>
[19] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 5.19, p.27 <CIS38A80121311>
According to DFAT’s 2016 Country Information Report – Malaysia, provides an overview of law enforcement in Malaysia:
State Protection
Federal and State Law Enforcement Entities
5.1 Law enforcement entities operate at both federal and state level. The Royal Malaysian Police (RMP) reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide. The National Department of Islamic Development (JAKIM) enforces sharia law and has jurisdiction over Muslims in Kuala Lumpur and the two other federal territories. The RMP and JAKIM operate independently and only occasionally work together.
5.2 The People’s Volunteer Corps (RELA), a federal paramilitary civilian corps under the jurisdiction of the Ministry of Home Affairs, assists security forces. RELA membership was 2.9 million in September 2013. RELA volunteers receive limited training. RELA’s engagement in law enforcement activities has significantly reduced in recent years. NGOs have reported that inadequate training has led to abuses by RELA members such as extortion and theft.[20]
[20] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, sections 5.1 & 5.2, p. 25 <CIS38A012311>
In its 2016 Country Information Report – Malaysia, DFAT assess that the Royal Malaysian Police (RMP) is ‘professional and effective’, however, prone to corruption. According to the report:
• Credible local and international sources consider the RMP to be a professional and effective police force.
• RMP officers receive limited training, particularly on human rights.
• Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern.
• 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.[21]
[21] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia, 19 July, section 5.5, p.25 <CIS38A80121311>
In its Country Reports on Human Rights Practices for2015 the USDOS reported:
The Royal Malaysia Police (RMP) is a national police force that is well trained and equipped… However, the RMP is sometimes limited in its effectiveness in investigations.[22]
[22] US Department of State 2016, Malaysia 2016 Crime and Safety Report, 29 February, p.11 < Accessed 23 August 2016 <CIS38A80121034>
In 2016, Amnesty International, Human Rights Watch and the USDOS reported that the government continued to reject calls for the establishment of an Independent Police Complaints and Misconduct Commission, despite the recommendation by a Royal Commission in 2005 and lobbying from the Malaysian Bar Council and civil society groups.[23]
[23] Amnesty International 2016, Amnesty International Report 2015/16 – Malaysia, February, p.2 < Accessed 2 August 2016 <NGE43874C106>;
Human Rights Watch 2016, World Report: Events of 2015, January, p.392
Prevalence of corruption and impunity
In relation to state level corruption, Freedom House noted in 2015 that:
Government and law enforcement bodies have suffered a series of corruption scandals in recent years. The Malaysian Anti-Corruption Commission (MACC) has itself come under scrutiny for its interrogation practices, as two suspects have died after falling from MACC office buildings since 2009.[24]
[24] Freedom House 2015, Freedom in the World 2015: Malaysia, 5 May < <NG5A1E6BC218>
The report also notes that:
Government favouritism and blurred distinctions between public and private enterprises create conditions conducive to corruption. Officials regularly move back and forth between the private and public sectors, fostering many opportunities for collusion and graft. Political parties are allowed to own or have financial holdings in corporate enterprises. The Whistleblower Protection Act took effect in 2010 but has not significantly improved accountability.[25]
[25] Freedom House 2015, Freedom in the World 2015: Malaysia, 5 May < <NG5A1E6BC218>
A 2013 KPMG corruption survey, which polled executives from 100 listed companies, found that:
71% of respondents believed that bribery and corruption is an inevitable cost of doing business whilst 64% believed that business can’t be done in Malaysia without paying bribes.[26]
[26] KPMG International Cooperative 2013, KPMG Malaysia fraud, bribery and corruption survey 2013, 10 December, p.42 < <CIS36DE0BB2150>
Based on findings from a survey by the Malaysian chapter of Transparency International, the Malaysia Insider wrote in May 2014:
Of the 2,000 respondents surveyed, 45% of Malaysians perceive political parties to be the most corrupt, followed by the police (42%), public officials and civil servants (31%) and parliament and legislature (23%).
[…]
The MCB [Malaysian Corruption Barometer] findings also showed that 45% of the respondents had been asked to pay bribes in the past. The highest incidence of bribery in the past 12 months is recorded for the police followed by registry and permit, with the most common excuse given being to "speed things up".
The willingness of the public to report incidents of corruption declined from last year's GCB results (79%) to 51% this year. Most respondents who said they would not report these incidents admitted they are afraid that there would be negative consequences.[27]
[27] ‘Political parties perceived to be most corrupt, says survey’ 2014, Malaysian Insider, 14 May < Accessed 29 January 2015 <CX1B9ECAB9553
In its 2016 Country Information Report – Malaysia, DFAT noted a royal commission into the operation and management of the Royal Malaysian Police (RMP) prompted the Malaysian government to implement reforms aimed at addressing corruption within RMP:
5.6The 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.[28]
[28] Department of Foreign Affairs and Trade 2016, Country Information Report – Malaysia, 19 July, section 5.6, p.25<CIS38A0121311>
That same report goes on to hold:
5.7 There is no legal requirement for the state to investigate deaths in RMP custody. Investigations generally occurred at the request of the Attorney-General but were often instigated as a result of public pressure and were significantly delayed. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts (see –‘Detention Conditions—Deaths in Custody’, above).
5.8 The Inspector General of Police announced the establishment of an Integrity and Standard Compliance Department in July 2014 to enhance police integrity and image, however as it sits within the RMP organisational structure, it is not an independent body. Suhakam also receives complaints against the RMP and has conducted investigations into police behaviour. However, the Government is not required to formally consider Suhakam’s reports or recommendations. In January 2016, Human Rights Watch reported that the government has not established an independent police complaints and misconduct commission, despite lobbying from the Malaysian Bar Council and civil society groups.[29]
[29] Ibid, see p.26
The same DFAT report provided the following as with regards to the state of the legal and judicial system in Malaysia:
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. 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.[30]
FINDINGS AND REASONS
[30] Ibid, see DFAT Report- Malaysia, July 2016, p. 28
Credibility
The Tribunal does accept that the applicant was faced with a personal crisis as far as it concerned his personal finances. Although the applicant did not provide the Tribunal with evidence of his loan with a ‘Malaysian bank’ as he claimed, the Tribunal accepts that he owed RM [amount] to a financial institution and the Tribunal accepts that the applicant may face legal proceedings as a consequence of this loan no having been paid. Indeed, the Tribunal accepts the applicants claim that he (due to the economic circumstances he encountered) was attracted to and did negotiate a ‘loan’ for the amount of RM [amount] which remains unpaid from a loan shark or moneylender and this has caused for him issues and concerns about his personal safety. However, the applicant’s version of events as submitted to the Tribunal at the hearing raise certain issues of credibility.
Nevertheless, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded.” Similarly, that an applicant claims to face a risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him. It is the responsibility of the applicant to specify all particulars of the claim and to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant (MIEA v Guo (1997)191 CLR 559 at 596, Nagalingam v MILGEA (1992)38 FCR 191, Prasad v MIEA (1985) 6 FCR at 169-70).
The Tribunal was told that the applicant had initially borrowed RM [amount] from a local bank in order to go into business with a ‘friend’ ‘selling [goods]’ and that friend had ‘disappeared’ leaving the applicant with the bank loan to repay on his own. Unable to find the funds to make repayments of the bank loan, the applicant negotiated with a loan shark for the amount of RM[amount] to make the required part ‘loan re-payment’ to the bank and subsequently (the Tribunal was told) he was unable to meet the repayment demands of the loan shark. The applicant feared reprisals emanating from the loan shark and he left for Australia. The applicant also chose not to report his fears concerning possible threats from the loan shark because he feared for his family. The Tribunal does not find the applicant’s explanation of his circumstances which compelled him to leave for Australia and to seek protection here as credible. In reference to his issue with the local bank that he claimed had him blacklisted for not repaying the loan of RM [amount], there is nothing in his evidence submitted to the Tribunal to suggest that he would not be able to access the legal system in Malaysia and attempt to represent his defence in any bankruptcy proceedings. On this, the Tribunal is guided by DFAT assessments of the Malaysian Judicial system. 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.”[31] Therefore, the Tribunal does not find as credible the applicant’s claim that though he had been ‘blacklisted’ by the bank, he could still seek a reconsideration of that ‘blacklisting’ within the Malaysian judicial system which he had access and a right to. With regard to his dealing with the loan shark and his fears about what the loan shark would do to him if the applicant could not meet his demands, the country information referenced by the Tribunal reports that the Malaysian authorities have been more proactive in recent years and effective in providing protection to individuals who have been affected by the illegal activities of organised gangs and illegal moneylending syndicates. Therefore the Tribunal finds that the applicant does not have a well-founded fear of persecution in accordance with s.5J(1)(a) or (c) of the Act.
[31] Department of Foreign Affairs and Trade Country Information Report – Malaysia, 19 July 2016, p. 26.
While it has doubts about the applicant’s credibility, the Tribunal has considered the applicant’s claims separately and cumulatively and is prepared to accept that the applicant had been involved in a dispute with his local bank over a loan he procured with his friend in order to start a business selling [goods] and with a loan shark because he had not made any payment towards repaying the amount he had borrowed. The Tribunal accepts on the basis of consistent country information that loan sharks in Malaysia resort to physical threats and assault to further their aims and if owed money and that although the applicant told the Tribunal he did not report incidents to the police because he thought the police could not protect him while in Malaysia, nevertheless, the Tribunal accepts, the applicant’s claim that if he was to return to Malaysia in the reasonably foreseeable future his whereabouts could be discovered by the loan shark he fears and that the applicant could face threats to his person and property. However, the Tribunal does not accept as credible the applicant’s claim that even though he was threatened the Malaysian police would not provide him with adequate protection should he require it. While the Tribunal accepts that there difficulties and inadequacies in the policing and judicial system in Malaysia generally speaking, having regard to the advice of the Department of Foreign Affairs and Trade, the Tribunal finds that the protection provided by the authorities in Malaysia consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system as required by s.5LA (2)(c) of the Act. The Tribunal considers on the evidence before it that this protection is durable and that the applicant has access to it. The Tribunal does not accept that, as the applicant claimed, the police would not be willing or unable to protect him or his family because he had dealt with and has had personal disputes with a loan shark or illegal moneylending syndicate. The Tribunal therefore finds that effective protection measures as defined in s.5LA are available to the applicant in Malaysia and that he therefore does not have a well-founded fear of persecution in accordance with s.5J(2) of the Act.

Accordingly, the Tribunal does not accept that the authorities would be unwilling or unable to protect the applicant in his circumstances if he approached them. There is no evidence before the Tribunal that the applicant seriously contemplated seeking the assistance of the police prior to his escape via Kuala Lumpur International Airport to Australia. Also, the applicant provided no credible reason why he could not take advantage of this state protection or seek the assistance of the Malaysian judicial system with regards to his dispute with his bank, except to claim that he had not chosen to file a police report because he feared reprisals by the loan shark against his family members and that even if he returned to Malaysia the police could not provide him with effective protection.
The Tribunal acknowledges country information referred to earlier, particularly to Department of Foreign Affairs and Trade’s assessment of the Malaysian police who are generally considered to be professional and effective. The Tribunal also notes the advice from Department of Foreign Affairs and Trade regarding police corruption, however this is recognised by the authorities in Malaysia and measures have been put in place to deal with this issue.
In relation to the overall effectiveness of the authorities in Malaysia, as noted earlier, the Tribunal has relied on the country information showing that Malaysia’s protection system consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system and measures have been put in place to address corruption. Police and indeed, the government, have been making a concerted effort since at least 2013 to combat organised gangs and crime syndicates and there is no evidence that the police would refuse the applicant any assistance, if he were to request it. The country information and media reports indicate the government has taken this issue seriously and has committed extensive resources to do so. This in the Tribunal’s view demonstrates that effective protection measures are available, namely that protection against serious or significant harm could be provided to the applicant by the Malaysian State, that protection is durable and the Malaysian State is willing and able to offer such protection.
For the reasons given above, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Malaysia in the reasonably foreseeable future and therefore the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion – complementary protection in s.36(2)(aa) of the Act.
Overall the Tribunal is satisfied that if in the future, the gang members threaten or attempt to harm the applicant, there are mechanisms in the Malaysian legal system, including a reasonably effective State police force (that country information demonstrates is active and committed to taking action in relation to the claimed fear) that means the applicant could obtain protection sufficient to reduce the likelihood of harm to something less than a real risk in accordance with s.36(2B)(b). Therefore, the Tribunal finds that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
Peter Vlahos
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.
…

[2017] AATA 2575

8 November 2017

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Immigration

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Statutory Interpretation

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