1619915 (Refugee)

1619915 (Refugee) [2018] AATA 3089 (28 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619915
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Brendan Darcy
DATE:28 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 June 2018 at 5:23pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Victims of loan sharks – Chinese money lenders – Forced marriage – Physical violence – Intimidation – No Convention link – Effective protection – Royal Malaysia Police – Members of the Same Family Unit

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2

CASES
MIAC v MZYYL (2012) 207 FCR 211
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 November 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 the Federation of Malaysia, applied for the visa on 24 August 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy s.5J(1)(a) for refugee status and did not satisfy s.36(2A)(b) for the Act’s complementary protection provisions.
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 themselves 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.
Background
The applicant claimed to be born on [date] in the Malaysian state of Terengganu and claimed to be a citizen of the Federation of Malaysia.
A certified copy of the applicant’s valid passport issued by the authorities in Malaysia is on departmental file ([number]) indicating it was issued [in] 2016.[1]
[1] DIBP Folio 2-26
There is also a certified copy of the applicant’s national identification, indicating that the applicant resides in the Malaysian state of Kedah.[2] Also folioed is certified copy of the applicant’s national identification and driver’s licence, indicating that the applicant resides in Kuala Terengganu, in the Malaysian state of Terengganu.[3]
[2] DIBP Folio 27
[3] DIBP Folio 28
The applicant arrived in Australia on 23 June 2016 while holding a [temporary] visa.
The applicant lodged a class XA subclass 866 protection visa on 24 August 2016.
In the submitted 866C Form, the written claims of the applicant were very limited and are summarised below:
·The applicant claimed he was chased and threatened by illegal money lenders in Malaysia and they had threatened to kill him;
·The applicant claimed he lived his life in fear and received death threats, so the applicant came to Australia to save his life and work to solve his debts;
In addition to these very limited and vague claims, the applicant’s submitted forms claimed the applicant to be able to speak, read and write in Malay (or Bahasa Malaysia), and English; that his religion is Islam and that his ethnicity is Malay.
The applicant also claimed that he was married [date] in Kedah; that his wife’s name is [Ms A] (born [date] in the Malaysian state of Kedah); and he and his wife have a daughter named [name] (born [date]).
No documents to support the applicant’s claims was attached to the application or provided to the Department at a later date.
A delegate for the Minister refused to grant the applicant a protection visa on 23 November 2016.
On 27 October 2017, the applicant appeared before the Tribunal to provide evidence and argument as to the reasons he is owed Australia’s protection obligations. He was assisted by an interpreter in the Bahasa Malaysian and English languages.
At the scheduled hearing, the applicant’s wife, [Ms A], provide oral evidence in support of the applicant’s claims as witness. A copy of her passport is on the Tribunal’s file.[4]
[4] AAT Folio 22
It was also noted at the hearing that the applicant’s daughter arrived in Australia at a later date than the applicant’s arrival and that they had both applied for protection visas and that that their review application was currently with the Tribunal.
The applicant raised an additional claim that he and his wife, [Ms A], were forced into marriage with his current wife after his she fell pregnant in [year]. The applicant elaborated that this was part of the background leading to the applicant borrowing money from a loan shark.
At the end of the hearing the applicant was invited to provide additional documents but that it may be necessary to have a hearing for wife before making a decision on his own application.
On 15 January 2015, the applicant, as a witness, returned to the Tribunal to provide evidence for his putative wife (primary review applicant 1720331) and his putative daughter, [named] (secondary review applicant 17201331).
On 16 January 2018, the Tribunal wrote to the applicant and his putative wife under s.424A of the Act to put to him a number of issues that may make up the reason or part of the reason for affirming the delegate’s decision not to grant the applicant a protection visa. At the end of the hearing, the Tribunal undertook to formally write to the applicant to formally put adverse information to the applicants and the witness.
On 22 January 2018, the applicant responded to its s424A letter by providing written explanations about apparent discrepancies between his testimony at his scheduled hearing and as a witness at the schedule hearing for review applicants 17201331, and the reasons there was a lack of documentary evidence.[5] There was also proof of the witness’ last employment submitted.
[5] AAT Folio 25
On 1 March 2018, the applicant’s putative spouse submitted a photograph claiming to be of their house back in Kuala Terengganu where red paint had been splashed by loan sharks.[6]
[6] AAT 1720331 Folio 31-33
No further submissions or documents have been forwarded by the applicant or on his behalf at the time of making this decision.
Country Information
Arranged marriages
The following country information is an extract from an extended Q&A report prepared by the Department of Immigration (dated 20 April 2015) regarding arranged marriage, unmarried mothers and children out of wedlock:
Arranged marriages and unarranged marriages are reported in Malaysia[7], although a 2010 Asia Research Institute[8] working paper does indicate that arranged marriages have declined in Malaysia in past decades.[9] While there are laws protecting against forced marriage in most states, forced marriages do occur particularly in the form of child marriage. Information indicates that incidents of child marriage are rising.[10] Malaysian Muslim women, subject to the Islamic Family Law Act, “are only entitled to marry with the consent of their wali [legal guardian, usually father or brother], a judge, or a person authorised by a judge (section 13).[11] According to the information located, using force or threat to compel a woman to marry against her will is an offence punishable by fine or imprisonment.[12] Nevertheless, according to one source, there are circumstances in which a woman may be compelled to marry, including if she has had premarital sex and is pregnant.[13]
[7] ‘Couples okay with arranged marriage’ 2012, Asia One News, 7 February < Accessed 17 April 2015 <CX>; ‘Should love be arranged?’ 2011, New Sunday Times, 8 May <FACTIVA>
[8] ‘The Asia Research Institute (ARI) was established as a university-level institute in July 2001 as one of the strategic initiatives of the National University of Singapore (NUS). The mission of the Institute is to provide a world-class focus and resource for research on the Asian region.’ (‘About ARI’ n.d., National University of Singapore website < Accessed 20 April 2015
[9] Jones, G 2010, Changing Marriage Patterns in Asia, Asia Research Institute, Working Paper Series No. 131 < Accessed 17 April 2015 <CIS>
[10] Department of Foreign Affairs and Trade 2014, DFAT Country Report: Malaysia, 3 December, p.16 <CIS2F827D91671>; US Department of State 2014, Country Reports on Human Rights Practices 2013 – Malaysia, 27 February, Section 6 < <OG1F18C90107>
[11] Equal Rights Trust in partnership with Tenaganita 2012, Washing the Tigers: Addressing Discrimination and Inequality in Malaysia, November, p.53 < Accessed 8 July 2014 <CIS28954>
[12] Organisation for Economic Co-operation and Development 2014, Social Institutions and Gender Index 2014 – Malaysia < Accessed 17 April 2015 <CIS>
[13] Women Living Under Muslim Laws (WLUML) 2006, Knowing Our Rights: Women, family, laws and customs in the Muslim world, p.78 < Accessed 13 August 2012 <CIS23704>
The Organisation for Economic Co-operation and Development (OECD) Social Institutions and Gender Index 2014 reports that under Malaysian civil law, all marriages shall be based on mutual consent. Under Islamic Family Law, however, marriages are not fully recognised without the consent of the wali, the woman’s male guardian. It is also noted that using ‘force or threat to compel a woman to marry against her will or to prevent her from contracting a valid marriage once she attained the age of 16 is an offence punishable with a fine or imprisonment.’[14]
[14] Organisation for Economic Co-operation and Development 2014, Social Institutions and Gender Index 2014 – Malaysia < Accessed 17 April 2015 <CIS>
A 2012 Equal Rights Trust report on discrimination in Malaysia provides the following information on Malaysia’s obligations under the Convention on the Elimination of Discrimination against Women (CEDAW) to which it is a party, noting that Malaysian Muslim women do not necessarily have ‘the same right freely to choose a spouse and enter into marriage only with their free and full consent’:
Article 16(b) of CEDAW requires that men and women should have the “same right freely to choose a spouse and enter into marriage only with their free and full consent”. The CEDAW Committee has said that, “A woman’s right to choose a spouse and enter freely into marriage is central to her life and to her dignity and equality as a human being”. In spite of Malaysia’s obligations in this respect, women subject to the Islamic Family Law Act are only entitled to marry with the consent of their guardian, a judge, or a person authorised by a judge (section 13). A man does not require consent of a guardian to marry. Further, while a Muslim man is permitted to marry a non-Muslim woman in certain circumstances, a Muslim woman is never permitted to marry a non- Muslim man (section 10).[15]
[15] Equal Rights Trust in partnership with Tenaganita 2012, Washing the Tigers: Addressing Discrimination and Inequality in Malaysia, November, p.53 < Accessed 8 July 2014 <CIS28954>
A 2006 report by the organisation Women Living Under Muslim Laws (WLUML)[16], titled Knowing Our Rights: Women, family, laws and customs in the Muslim world, provides detailed information on Islamic Family Law in Malaysia. The report notes that state Muslim family laws in Malaysia (which recognize ijbar[17]) ‘are clearly based on the assumption that the wali has a woman’s best interest at heart.’ The report indicates that forced marriage is nevertheless not practiced ‘because other aspects of laws and social attitudes prevent it.’ However, it is noted that the ‘only circumstances under which a couple may be “forced” into marriage are those in which the couple has had pre-marital sex and the woman is pregnant. In most cases, they are expected to marry unless the woman undergoes an abortion.’[18] (It should be noted that other sources indicate that abortion ‘is illegal unless the woman’s physical or mental health is endangered’[19]. This has led to an increase in ‘baby dumping’, more information on which is provided in Question 3)
[16] ‘Women Living Under Muslim Laws is an international solidarity network that provides information, support and a collective space for women whose lives are shaped, conditioned or governed by laws and customs said to derive from Islam.’ (About WLUML’ n.d., Women Living Under Muslim Laws website < ‘The power to compel an unmarried virgin into marriage, recognized by certain Schools. The power usually resides in the father and paternal grandfather.’ (Women Living Under Muslim Laws (WLUML) 2006, Knowing Our Rights: Women, family, laws and customs in the Muslim world, Glossary < Accessed 13 August 2012 <CIS23704>)
[18]Women Living Under Muslim Laws (WLUML) 2006, Knowing Our Rights: Women, family, laws and customs in the Muslim world, p.78 < Accessed 13 August 2012 <CIS23704>
[19] Gooch, L 2010, ‘Malaysia Struggles With Baby Abandonment’, New York Times, 8 December < Accessed 16 April 2015 <CX744258516867>
The WLUML report mentioned above provides the following information on forced marriage, noting that the legal situation is ‘confusing’:
Consent of both parties is mandatory for a marriage to be recognized and registered (S.13 of the federal territory law). Any person who uses any force or threat to compel a person to marry against his will commits an offence and shall be punished with a fine not exceeding RM 1,000 (approx. US$ 265) or with imprisonment not exceeding 6 months or with both such fine and imprisonment (S.37 of the federal territory law). Although this provision appears to be weakened by the statement ‘unless permitted under Hukum Syariah’[20] (which can be interpreted as opening the door to ijbar), the law also allows dispensation of consent in circumstances recognized by Hukum Syariah. The legal situation is thus confusing.[21]
[20] ‘Hukum Syara’/Hukum Syarak: Used in Malaysia, Singapore, Indonesia with reference to the general principles of Muslim laws of the Sunni school’ (Women Living Under Muslim Laws (WLUML) 2006, Knowing Our Rights: Women, family, laws and customs in the Muslim world, Glossary < Accessed 13 August 2012 <CIS23704>).
[21] Women Living Under Muslim Laws (WLUML) 2006, Knowing Our Rights: Women, family, laws and customs in the Muslim world, p.83 < Accessed 13 August 2012 <CIS23704>
According to this information, under S.52(1)(j) of the federal territory law ‘a woman coerced into marriage may apply for faskh, meaning that the law does not differentiate between annulment and divorce.’[22]
[22] Women Living Under Muslim Laws (WLUML) 2006, Knowing Our Rights: Women, family, laws and customs in the Muslim world, p.91 < Accessed 13 August 2012 <CIS23704>
The WLUML report also provides information on the conditions of ijbar, which is recognised in Kelantan and Kedah states:
Ijbar is recognized
Malaysia (Kelantan and Kedah States): Despite provisions requiring the bride’s consent, if the woman is an unmarried virgin (anak dara), the father or paternal grandfather (wali mujbir) can marry her to anyone of his choice without her consent. Three conditions have to be satisfied: (a) the wali mujbir and the groom are not in enmity with each other; (b) the groom is of the same social status as the bride; (c) the groom is in the position to pay a reasonable maskahwin (mahr).[23]
Incidences of arranged child marriages are reportedly rising.[24] The Department of Foreign Affairs and Trade (DFAT) country report on Malaysia, dated 3 December 2014, states that statistics on forced marriages were not available, but provides the following information on child marriage:
Official figures demonstrate an increase in the number of females aged 15 to 19 married in 2010 (82,382) as compared to 2000 (55,915). Marriage laws differ under civil law versus Sharia-based law. Under civil law the minimum age of marriage is 18 for males and 16 for females. However, Muslim females under the age of 16 may marry with the approval of a sharia court. In October 2013, the Malaysian Shariah Judiciary Department (JKSM) reported that sharia courts had approved 446 of 600 applications for marriage involving girls under the age of sixteen. In 2012, 1165 applications were made for marriage where one party, commonly the female, was younger than the civil law marrying age. The majority of these applications were approved. Statistics on forced marriage were not available. [25]
One article was found describing the situation for a young woman who was forced into an arranged marriage by her family at the age of 17. She and her 19 year old husband had been accused of khalwat (close proximity) and to save face, their families forced them into marriage. The woman was the victim of domestic violence from her husband for a number of years before she divorced him. The article further reports on the mixed reactions to the move by the Islamic Religious Council in the state of Malacca ‘to allow male Muslims below the age of 18 and female Muslims below 16 in the state to wed’.[26]
Policing
[23] Women Living Under Muslim Laws (WLUML) 2006, Knowing Our Rights: Women, family, laws and customs in the Muslim world, p.84 < Accessed 13 August 2012 <CIS23704>
[24] Women’s Aid Organisation 2012, CEDAW and Malaysia: Malaysian Non-Government Organisations’ Alternative Report assessing the Government’s process in implementing the UN CEDAW, April, pp.170-172 < Accessed 10 October 2012 <CIS24169>
[25] Department of Foreign Affairs and Trade 2014, DFAT Country Report: Malaysia, 3 December, p.16 <CIS2F827D91671>
[26] ‘Too much to lose if you rush to wed’ 2010, New Strait Times, 5 August <FACTIVA>

The report on Malaysia in 2016 by the Department of Foreign Affairs and Trade states the following about the Royal Malaysia Police (RMP) (The Tribunal notes that the most recent DFAT report on Malaysia was published in April 2018 and that country information in this regard does not significantly deviate in its assessment.):
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.
Police Integrity and Accountability
5.6 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion.
Loan Sharks
The following is sourced from 30 September 2015 County Information on Common Claims I he Malaysian Onshore Protection Caseload issued by the Department of Immigration and Border Protection:
Illegal money lending or loan sharking, colloquially known as ‘Ah Long’ in Malaysia, is an offense under Section 5(2) of the Moneylenders Act 1951. If prosecuted, a fine of not less than RM20,000 and not exceeding RM100,000 or imprisonment of up to five years can apply. [27]
In October 2013, The Sundaily reported that figures supplied by the Malaysian Chinese Association (MCA) Head of Public Services and Complaints Department, Datuk Seri Michael Chong, showed that ‘The loan shark menace is worsening with Malaysians expected to be in debt by more than RM40 million this year – compared to last year’s RM39.5 million’. Loan sharks reportedly lent RM34,400,000 to financially-strapped Malaysians up to September 2013, and at the time of the article, ‘426 people were in debt to loan sharks, with each person owing an average of RM80,751’. According to Chong, ‘people continued to borrow from loan sharks despite continuous reminders by the authorities of the repercussions of doing so’. He also said that ‘of the 426 cases, 80% were by gamblers while the rest were drug abusers, failed businessmen and those living beyond their means’. Seven per cent or 32 people were reported to be repeat borrowers, and Chong said that ‘most of the repeat borrowers were involved in drug abuse and that their families were the ones who ended up being harassed by loan sharks’. Chong also said that the ‘police were powerless against loan sharks as the transactions were on a “willing seller willing buyer” basis’. Police, however, ‘can take action if loan sharks resort to violence or extortion to recover their money’.[28]
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 member of unlicensed moneylending syndicates … through contact numbers printed in their advertisements, including flyers, posters, banners and business cards...’ The article notes that one of the most significant barriers to prosecuting Ah Long syndicate members is the ‘lack of cooperation from the public, especially those who had fallen victims to the syndicate.’ This problem stems from threats by syndicate members. Police in Perak made 88 arrests during an eight month period and continue to combat Ah Long syndicates by removing marketing materials, such as advertisements, from the public space.[29]
ASSSESSMENT OF CLAIMS AND FINDINGS
[27] ‘KL Consumer Safety Association - No need to fear the loan sharks’ 2015, Bernama (Malaysian National News Agency), 17 February < <CXBD6A0DE1580>
[28] ‘Loan shark menace worsens in M’sia’ 2013, The Sundaily, 2 October < <CX320169>
[29] ‘Police cooperate with Council to wipe out loan sharks’ 2013, Daily Express, 28 December < <CX320164>
Country of nationality
The applicant claims to be a citizen of the Federation of Malaysia and provided a copy of his passport to the Department with his application, as well as his identification card. With no evidence to the contrary, the Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Members of the Same Family Unit
Spousal Couple
The applicant claimed [Ms A] (primary review applicant 1720331) is his lawful spouse; that they have one child together [named] (secondary review applicant 17201331); and that they travelled to Australia to remain as a family unit. Based on the available evidence and with no information to the contrary, the Tribunal accepts the applicant is in a genuine spousal relationship with primary review applicant 1720331 and that the applicant’s spouse satisfies clause 1.12(4)(a) of the Migration Regulations, as he has membership of the same family unit as this applicant under review for the purposes of this application for review.
Biological Child in Australia
Based on the available evidence and with no information to the contrary, the Tribunal accepts the applicant is the biological father of [name] (secondary review applicant 17201331) born in Malaysia on [date] and that her biological mother is the above-mentioned review applicant founded to be the applicant’s spouse. With no information to the contrary, the Tribunal accepts that [name] born on [date] and that she is a dependent minor on the applicant and her spouse. Therefore the applicant’s daughter satisfies sub regulations 1.12(4)(b), for the purposes of this decision.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
Accepted Claims: Personal circumstances
It is accepted that the applicant is born in [year] in Kuala Terengganu in Malaysia; that his religion is Islam and his ethnicity is Malay.
During the hearing the applicant outlined his family and personal background stating that his parents both currently reside in Kuala Lumpur; that the applicant is the eldest of three siblings; that he has only married once; and that he married the same person who appeared as a witness, [Ms A], with whom he has had one daughter and no sons.
The applicant further claimed that he can only speak a little English but could otherwise speak, read and write Bahasa Malaysian. The applicant also claimed that after leaving secondary school the applicant obtained a diploma level qualification in [field] and that he been employed [as Occupation 1] in the public sector, while he resided in Kuala Terengganu until his departure.
The applicant claimed that he and his wife had pre-marital sex when they were students and that this created a fuss. The applicant claimed he was required to marry his wife because their relationship was discovered and that this was required by law. The Tribunal enquired whether the applicant considered the marriage to be forced upon him and whether he wished to be separated; to which the applicant responded by stating that initially it was a forced marriage but he was now committed to his daughter and his wife.
Claims for Protection
During the scheduled hearing, the applicant elaborated on his very limited written claims for protection.
The applicant explained the reasons he came to Australia and applied for a protection visa. He claimed that he had no source of income in 2014 as he was required to take unpaid leave to care for his wife while they resided in Kuala Terengganu. He elaborated that his wife’s pregnancy was complicated and there was no family members to assist them as new parents.
While the applicant was residing in Kuala Terengganu in 2014, the applicant claimed that he married his wife after she fell pregnant and that it was a difficult time as the applicant had to take unpaid leave to care for his wife as neither his parents nor his wife’s parents would assist his wife. Because of these circumstances, he claimed that in [year] (same month as his daughter was born) he had no choice but to borrow [amount] Malaysian ringgits from a Chinese money lender and pay [amount] Malaysian ringgits per fortnight. With the money the applicant purchases [an item] and a week later the money lender insisted the repayments include an additional [amount] Malaysian ringgits per fortnight. The applicant was threatened that if he could not repay, he would be forced into [specified illegal activity]. As the applicant was unable to repay such a high amount, he missed his repayments two months later. This led the money lender to splash red paint on his house and throw a pig’s head at their residence. When the applicant returned to his work, those working for the loan shark harassed and bothered him which his employer was compelled to dismiss the applicant.
The applicant claimed that he did not have any documentary evidence of the pig’s head or any other evidence such as photographs. He also claimed that he did not lodge a complaint to the police because ‘if you have money to investigate, the money corrupts’.
The applicant’s response to the s.424A letter issued in January 2018 following the hearing for the related applicants in review application 1720331 includes a clarification that the loan was raised [in a later month] and the explanation that his wife was distressed during her hearing so forgot to mention the use of red paint to vandalise their residence.
Noting that that the applicant’s post hearing submission and his responses to the s.424A letter, the Tribunal has provided the applicant the benefit of the doubt that the discrepancies identified between his testimonies between the applicant and his wife, the Tribunal accepts the applicant’s overall oral, written and documentary evidence that he raised a loan in [the later month] for the reasons claimed; that he used an illicit money lender of Chinese ethnicity; that the money lender had employed intimidatory and illegal tactics through vandalism (red paint) and the public humiliation by provocatively leaving a pig’s head outside his residence to extract debt from the applicant as claimed; that the applicant had a genuinely personally held fear the police would not take his complaint seriously; and although there was no physical harm against the applicant, he feared the illicit money lender will use violence against him, his wife and his daughter for debt recovery purposes and he will not be protect.
Effective Protection Measures
On balance, the Tribunal accepts that the applicant has been threatened in the past as he and his wife does owe some, but not a considerable amount of, money to a criminal in an illicit money lender of Chinese origin, if the applicant were to return to Malaysia in the reasonably foreseeable future; that in returning to Malaysia there is a chance of the threats continuing; and that the harm he has a chance of encountering will involve significant physical ill-treatment.
Notwithstanding s.5J(2), the Tribunal would ordinarily accept that the applicant does have a real chance of serious harm arising from owing at least one member of a criminal organisation, if he were to return to Malaysia. However, the Tribunal does not accept that the applicant was targeted based on his Malay ethnicity, his religion as a Muslim or any other reason mentioned in s.5J(1)(a). This is based on the Tribunal’s assessment that ah longs or loan sharks of Chinese ethnicity are criminal organisation who target vulnerable Malaysians regardless of race or religion. Even in accepting that the illicit money lender used the religiously and racially provocative measure of using a pig’s head, it still does not accept this was the essential and significant reasons for targeting the applicant as required by s.5J(4)(a). To this extent, the Tribunal finds that the applicant does not satisfy s.5J(1) and that his fear of persecution, accordingly, is not well-founded.
In any event, a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
The applicant further claimed that if he returned to his home state of Terengganu or anywhere within Malaysia, he and his family will not have effective protection available to them because the authorities will not investigate the serious threats of harm towards them because the Royal Malaysia Police have been corrupted by illicit money lenders and other criminal organisations.
In the scheduled hearing and in its s.424A letter, the Tribunal raised the independent country information from the most recent DFAT report about the police taking seriously complaints made to them about illicit money lenders and that the Royal Malaysia Police have a reasonable international reputation for integrity. It discussed the prevalence of media reports that there are arrests, charges and prosecutions against ah longs and other criminal organisation involved in illicit money lender and related violence. In particular it was raised that the information indicates that the authorities are stymied by victims who do not cooperate with them. The information provided in the s.424A letter also outlined information from the Department of Immigration (now Home Affairs) dated 26 May 2017 about the number of anti-corruption measures in Malaysia, including the role of the Malaysian Anti-Corruption Commission in investigating and prosecution corruption.
It is noted that the applicant did not respond to the specific material regarding the country information and effective protection in Malaysia as outlined in the abovementioned s.424A letter and that the information may be relevant to the Tribunal’s findings regarding the applicant’s fears in approaching the authorities, depending on his responses. At no stage did the applicant submit alternative or supplementary country information, such as media reports, to run counter to the country information discussed or provided.
In this respect, the Tribunal does not the applicant will be denied effective protection for any reason outlined in s.5(1)(a) as claimed., as the applicant's statements ran counter to generally known facts based on the available country information.
When considering the operation of s.5J(2) alongside the available country information, the Tribunal is satisfied that effective protection measures are available to the applicant in his receiving country. The Tribunal finds that that the effective protection measures are available for the relevant State to the applicant anywhere in Malaysia and therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution. Neither does the Tribunal accept the applicant will not have, if he returns to Malaysia, available effective protection measures based on his ethnicity or for any other reasons mentioned in s.5J(1)(a). Having considered both ss.5J(1)(a) and 5J(2), alongside the available country information as well as the applicant’s accepted circumstances, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and that the Tribunal is satisfied that effective protection measures are available to the applicant throughout Malaysia.
As the applicant does not satisfy s.5J(1)(a) and by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a), in this regard.
Complementary protection criterion regarding illicit money lending
The Tribunal accepts there are reasons for it to believe, that as a necessary and foreseeable consequence of the applicant being removed from Australia to his country of reference, that there is a risk of significant harm to him. This is based on the Tribunal’s findings that the applicant has presented credible claims arising from threats of harm to the applicant by members of criminal organisations to whom he credibly owes some, albeit not a considerable, amount of debt. It also finds that the significant harm will include severe physical violence and ill-treatment and that this harm will amount to significant harm as outlined in s.36(2A)(c) and (d).
Under s.36(2B), there is taken not to be a real risk of significant harm if the non-citizen ‘could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm’: s.36(2B)(b). Section 36(2B)(b) refers to an applicant obtaining, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer significant harm. In MIAC v MZYYL, the Full Federal Court held that, to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[30] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[31] However, the test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection.
[30] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.
[31] In MIAC v MZYYL (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s.36(2)(aa) necessarily involves consideration of the matters referred to in s.36(2B).

In considering the country information in the applicant’s accepted circumstances discussed under effective protection findings for s.36(2)(a) and in its s.424A letter dated 16 January 2018, the Tribunal finds that the level of protection from state authorities to the applicant if removed from Australia to anywhere within the applicant’s country of reference, will reduce the risk of significant harm to below that of a real one. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Malaysia, protection such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Malaysia.
Based on these ‘real risk’ findings arising from the applicant’s accepted circumstances, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk the applicant will suffer significant harm. Accordingly, the Tribunal finds that the applicant does not satisfy s.36(2)(aa), in this regard.
Residual claims
For completeness, the Tribunal notes that the applicant claimed that he was caught ‘in close proximity’ with a woman who would become his wife; that they were charged and compelled by family members to marry. The applicant claimed that although he did not want to marry under duress, he did not want separation and was committed to their biological child. The Tribunal has accepted that the applicant’s marriage occurred under compelling circumstances arising from Syariah laws being policed and enforced. The Tribunal notes that Sharia in Malaysia generally requires a husband’s consent for divorce, although a small but steadily increasing number of women have been able to obtain divorces under Sharia without their husband’s consent.[32] It is accepted the applicant was compelled to marry his current wife and that he has received no help from his family or his wife’s family outside of one aunt. However, the applicant has claimed that he wishes to remain in the marriage and care for his biological child. Based on this testimony, the Tribunal finds that applicant, an experienced and qualified [Occupation 1], with his wife and child will face some difficulties in returning to Malaysia, in finding work, accommodation and readjusting to Malaysian life. However it does not accept difficulties or challenges, even when onerous, amount to serious harm, including significant hardship, being denied access to services or the capacity to earn any livelihood, where the denial threatens his and his family’s capacity to subsist as required by s.5J(4)(b).
[32] Malaysia 2016 Human Rights Report, US Department of State, 3 March 2017, OGD95BE926855, p.23
For these reasons, the Tribunal accordingly finds the applicant does not face any real chance of serious harm mentioned in paragraph 5J(1)(a), including based on his religion, his race, his membership of particular social group as a person who breached a sexual and religious taboo or law, if he were to return to anywhere in Malaysia, now or into the reasonably foreseeable future, as required by s.36(2)(a).
Based on the same considerations, the Tribunal finds there are no credible or substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk the applicant will suffer significant harm of any kind mentioned in s.36(2B), and accordingly, the Tribunal finds that the applicant does not satisfy s.36(2)(aa).
Cumulative Findings
The applicant did not advance any other claims regarding his race or religion or his political opinion, imputed or otherwise, or any other reasons mentioned in s5J(1)(a) under the Act, either during his scheduled hearing or as witness during the scheduled hearing for review applicants 1720331. During the scheduled hearing for the other review application, claims for protection were reliant on those raised in this review application and no other claims were raised by the other review applicants.
The Tribunal, therefore, finds there are no more residual to consider under this review.
Having considered all the applicant’s claims, both individually and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution, and the Tribunal finds the applicant is not a refugee as defined in s.5H of the Act.
In this regard, the applicant does not have a well-founded fear of persecution that satisfies s.36(2)(a).
Having considered all the applicant’s claims, both individually and cumulatively, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk the applicant will suffer significant harm, and accordingly, the Tribunal finds that the applicant does not satisfy s.36(2)(aa), in this regard.
Other Findings
The Tribunal accepts that the review applicants mentioned in 1720331 have an interest in this review application as they are members of the same family unit for the purposes of the sub regulation of r.1.12(4) as this review applicant.
At the time of making this decision, this review applicant’s spouse and daughter will not satisfy s.36(2)(b) or s.36(2)(c) on the basis of out of them being members of the same family unit as this review applicant as he does not satisfy s.36(2)(a) or (aa) or who holds a protection visa.
Conclusion
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).
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.
Brendan Darcy
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.
…

[13] Gooch, L 2010, ‘Malaysia Struggles With Baby Abandonment’, New York Times, 8 December < Accessed 16 April 2015 <CX744258516867>

[2018] AATA 3089

28 June 2018

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