1702839 (Refugee)

1702839 (Refugee) [2017] AATA 2830 (13 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702839
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Peter Vlahos
DATE:13 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 November 2017 at 6:38am

CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Victims of loan sharks – Threats of physical violence – Criminal gangs – State protection – Judicial system

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 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 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] February 2017 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] October 2016 and the delegate refused to grant the visa on the basis that the applicant’s application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant applied for review of the delegate’s decision by the Tribunal on 18 February 2017.
The applicant appeared before the Tribunal on 23 October 2017 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 by legal representative or migration agent.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect to the applicant.
For the reasons that follow in this decision, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality and Identity
Based on copies of the applicant’s passport which was provided to the Department of Immigration and Border Protection (the Department), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has assessed his claims against that country in relation to sections 36 (2) (a) and 36 (2) (aa).
On the basis of the abovementioned reasons, the Tribunal further accepts the applicant’s identity as is claimed.
Background
The applicant arrived in Australia from Malaysia as the holder of [a temporary] visa [in] July 2016 and [in] October 2016 he applied for a Protection Visa (Class XA) visa and was also granted by the Department a bridging visa.
The applicant’s claims
The applicant’s claims can be summarised as follows:
§He (the applicant) claims that he was declared bankrupt by [his] bank and all his assets were frozen. He also lost his job and his job applications were rejected.
§He also claims he tried to borrow from loan sharks to settle his debt but he failed to pay them back on account of (he) being jobless. The interest (on the loan shark loan) was high.
§The loan sharks blackmailed and threatened the applicant unless he repaid his loan.
§The applicant sought assistance from the police but no action was taken.
§The applicant did not relocate because of limited job opportunities and they (loan shark) will find him no matter where he relocates until he clears his debts.
The Tribunal read the above-mentioned claims to the applicant at the hearing and asked the applicant, if he wished to vary, amend or to add to his claims. The Tribunal was told that the applicant had no changes to make and wished the Tribunal to consider his evidence and submissions as they are based on his claims.
The applicant provided the Tribunal with the following document:
§Personal reference and support letter from [a labour hire company], dated [in] October 2016.
EVIDENCE AT THE HEARING
The applicant, [named] was born in Malaysia in [year], in the town, Sibu, in Sarawak state. He is of Muslim by faith. He has family living in Malaysia which consists of his wife and [children] and lives with his wife’s family in Kuching. His father passed away [number] years ago. Before leaving Malaysia for Australia, he had been employed for [number] years as [an occupation].
What was the cause that forced the applicant to leave Malaysia to seek refuge in Australia?
The Tribunal was told that [his bank] in Malaysia had ‘declared’ him a ‘bankrupt’ because the applicant could not meet the repayments of his RM[amount] car loan. The applicant told the Tribunal that he had only managed to repay approximately [one sixth of the loan] and total of RM[remaining amount] and interest was still outstanding.
The applicant was asked – whether [his bank] had taken any legal action against the applicant because he had not made any repayments towards his car loan. In response, the Tribunal was told that in haste, the applicant searched for the means to settle his outstanding loan with [his bank]. As a result of his endeavours to find a source of money, he found a person who assured him that he could assist him in servicing his loan with the bank. Then, one day, the applicant discovered that this ‘person’ had disappeared with his car.
Indeed, this unidentified individual the applicant had placed all his hopes on had taken money in the applicant’s name from a local loan shark in the amount of RM[amount] at an exorbitant interest rate. The applicant told the Tribunal that he was now liable for a loan to a loan shark for approximately [three times as much] and interest.
While still in Malaysia, the applicant told the Tribunal that the loan shark had ‘…visited his home’ and as a warning to him ‘…had splashed paint in the front of the house…’ The loan shark also threatened the applicant’s family.
The applicant was asked whether he reported these threats to the local police. His response was to tell the Tribunal that he ‘…did not make a police report because he wished to deal with the problem ‘…myself…’ This willingness to ‘deal with the problem’ of the loan shark without any police intervention and on his own terms, saw the applicant take up a second job – as a ‘[a different occupation].’ This (according to the applicant) was not enough for the local loan shark. The loan shark confronted the applicant, the Tribunal was told, and though ‘no violence…’ was actually suffered by the applicant, he was subjected to very ‘violent’ ‘verbal’ abuse. This incident occurred two to three years ago (according to the applicant).
The Tribunal asked the applicant – did he report this incident to the local police. His response was that he ‘did not report it because he was afraid…’ Thereafter, the applicant decided to come to Australia. The main reason for the applicant’s decision to come to Australia was because he could find work and gain for himself the ability to earn money allowing him to repay his debts.
Did the applicant experience any problems leaving Malaysia because of the loan shark or bank?
The applicant told the Tribunal that before he left Malaysia, he was contacted a ‘representative’ of the ‘bank’ to discuss settlement of his bank loan. The bank (according to the applicant) wanted the loan to be settled sooner than later. The applicant told the Tribunal that he worked very hard to service the bank loan while in Malaysia but his personal salary was ‘very low’ and this made it impossible. His difficulties financially, were further compounded by his responsibilities to his wife and children and to his ‘caring’ for his deceased elderly father.
Has the applicant’s family been the target of threats from the loan shark or others?
The applicant told the Tribunal that his family in his absence while here in Australia has not been threatened by anyone.
Has the applicant been legally bankrupted by the bank to which he owes money to?
The applicant told the Tribunal that he was nearly declared ‘bankrupt’ but after talking to the bank officials at length that threat of bankruptcy was put on hold. The applicant’s appeals were acknowledged and he was given time to repay his loan with the bank. (According to the applicant) he was given an extension of four (4) years to settle his loan with bank and he has been making a contribution to that loan of RM[amount] per month.
This arrangement with the bank was finalised two months ago.
Has the applicant made any arrangements with the loan shark?
The Tribunal was told that no repayments have been made to the loan shark while the applicant has been in Australia and that loan is still outstanding.
The applicant was asked what he meant by the phrase that the loan shark ‘blackmailed’ him.
The Tribunal asked the applicant what did he meant when stated that he had been ‘blackmailed’ by the loan shark. The applicant told the Tribunal that he meant that the loan shark would directly threaten him and also threaten his family members if he did not repay the amount he owed it.
What work has the applicant been involved in while in Australia?
The applicant has been employed in a [products] company, in [a named town] for the last six (6) months (since April) and earns approximately AUD$[amount] per week.
If the applicant returns to Malaysia in the reasonably foreseeable future what fears does he think he would face?
In no uncertain terms, the applicant told the Tribunal, he fears the loan shark. He has made no repayments to the loan shark and fears immediate reprisals from the loan shark against him if he returns to Malaysia. He also expressed concerns about servicing his bank loan which he would find difficult by working in Malaysia.
Again, the applicant told the Tribunal that the local police would not provide him or his family with protection if they were threatened because ‘…they do not really care…’
It was the applicant’s wish to remain for a while in Australia, to work hard and to settle all of his debts and to provide some money to his family. In the long-term, the applicant hoped to stay in Australia and to work and eventually bring his entire family here to live.
Country Information – Malaysia: Loan Sharks, Police and Legal system
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.[1]
[1] ‘KL Consumer Safety Association - No need to fear the loan sharks’ 2015, Bernama (Malaysian National News Agency), 17 February < Accessed 19 February 2015 <CXBD6A0DE1580>
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’.47 The Malaysian Communications and Multimedia Commission also disconnected the telephone lines of contacts printed on the materials.[5] 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’.[6] Reportedly, ‘City Police chief ACP M. Chandra said the police and City Hall had carried out numerous operations under Ops Vulture’.[7]
[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] Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May < Accessed 30 August 2016 <CXBD6A0DE13537>;
[7]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.[8] 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’.[9] Additionally, ‘four more cases and seven individuals were investigated under Section 29AA of the same Act for putting up posters.’[10] 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’.[11] 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.’[12]
[8] ‘Sabah Police probe nine Ah Long cases in 2013’ 2014, The Malaysian Times, 3 January < Accessed 30 August 2016 <CX1B9ECAB11427>
[9] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December < Accessed 30 August 2016 <CXC28129414704>
[10] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December < Accessed 30 August 2016<CXC28129414704>
[11] ‘Police Free Man Abducted By Loan Sharks’, 2014, Malaysian Digest, 16 October < Accessed 30 August 2016 <CX1B9ECAB11430>
[12] ‘Loan sharks caught red-handed’ 2015, The Star Malaysia, 29 May < Accessed <CXBD6A0DE13543>

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.[13]
[13]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.[14]
[14] 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”’.[15]
[15] 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.[16]
[16] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 3.78, p.18 <CIS38A80121311>
In October 2014, quoting Inspector-General of Police Tan Sri Khalid Abu Bakar, the Malaymail Online reported that Ops Cantas Khas was ongoing, ‘Ops Cantas was never put off at any point of time and the operations are still in top gear’. Penang’s police chief Datuk Abdul Rahim Hanafi said there were 12 active secret societies in the state, mostly involved in extortion, protection rackets and drug-related activities.[17] No independent analysis on the operation was found.
[17] ‘Police crackdown on gangsters still in full swing, IGP says’ 2014, Malay Mail on line, 9 October, < Accessed 30 August 2016 <CX1B9ECAB11433>
Astro Awani reported on 1 August 2016 that following a spate of shootings in the country, Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi requested Ops Cantas be ‘further enhanced’.[18]
[18] Hasnan, H A 2016, ‘Ops Cantas 2 to involve three elite police teams’, 1 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8261>
On 6 August 2016 ‘Op Cantas Khas 2’ was launched on 6 August. Astro Awani reported that on 13 August 2016 1,444 individuals had been arrested since the start of the crackdown.[19]
[19] ‘Op Cantas crackdown on triads: 1,444 arrested’, 13 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8262>
Law enforcement in Malaysia
In its 2014 country report, the Australian Department of Foreign Affairs and Trade (DFAT) provided a brief overview of the state of law enforcement in Malaysia:
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 federal 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. The Malaysian army is not heavily engaged in domestic activities apart from some anti-terrorist campaigns and is not relevant to State protection under this report.
The same report also draws the reader’s attention to the following:
§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.
§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 percent ethnic Malay. In 201 4, the Government commenced a campaign to increase the number of women, ethnic Chinese and Indians in the RMP.
§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 interest.
§The National Human Rights Commission (Suhakam) also receives complaints against RMP and has conducted investigations into police behaviour. However, the Government is not required to formally consider Suhakam’s reports or recommendations.
Freedom House reported 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.
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.[20]
[20] ‘freedom in the World 2015:Malaysia’, Freedom House, 5 May 2015<NG5A1E6BC218>
According to Transparency International’s corruption index for 2014, Malaysia’s situation has improved and, out of a total of 175 countries, moved up three spots from 53 to 50.[21] However, survey results also showed “…that the perception of the government’s anti-corruption efforts has deteriorated, with 38% of Malaysians saying they are ineffective.”[22]
[21] ‘Corruption Perceptions Index 2014’, Transparency International, 5 December 2014.
[22] ‘Political parties perceived to be most corrupt, says survey’, Malaysian Insider, 14 May 2014.
Regarding malpractice in Malaysia’s security forces, DFAT in its country report – Malaysia, dated 19 July 2016 reports that:[23]
[23] Department of Foreign Affairs and Trade (DFAT) Country Report – Malaysia, 19 July 2016, at pp.25-26
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. ….
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.
Judiciary
5.11 The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level and subordinate courts. Sharia courts operate at state level with jurisdiction over Muslims. The majority of Malaysia’s criminal, civil and family law matters are heard in the subordinate civil courts. Judicial appointments are made by a Judicial Appointments Commission; however the Prime Minister has final approval. The majority of the members of the Federal Court are Malay Muslims. Malaysia’s highest courts are somewhat influenced by political or religious affiliation. For example, credible local and international human rights organisations considered the prosecution of Anwar Ibrahim to be politically motivated (see ‘Political Opposition Members’, above). In July 2015, the government removed the Attorney General, Abdul Gani, who had been leading an investigation into 1MDB.
5.12 Credible sources advised that defendants generally had adequate time to prepare a defence, particularly where they had financial means to engage private counsel. Government legal aid resources were limited and generally of poor quality. Strict rules of evidence apply in court. However, state-held evidence was not consistently made available to the defence. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods; the International Center for Prison Studies reported that in mid-2014 24.8 per cent of the total prison population were pre-trial detainees.
5.13 The ability for individuals to seek legal redress through Malaysian courts is mixed. Judges receive relatively low salaries, limited training, and appointments were often made directly from university. Selective prosecution and arbitrary verdicts occurred, particularly in instances involving high-profile opposition politicians and human rights defenders. However, the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.
FINDINGS AND REASONS
The Tribunal does accept (though the applicant provided no written evidence) that he had experienced considerable financial pressures applied to him by his bank demanding the settlement of his car loan. Also, the Tribunal accepts the applicant’s claim that he had come to an arrangement with his bank as far as it concerned the time provided to him to make repayments towards settlement of his car loan (see paragraph [28]). The Tribunal also accepts that the applicant may have issues concerning a loan a third person negotiated for him with a local loan shark and the Tribunal also accepts the applicant’s claim that threats had been made against the applicant prior to his leaving Malaysia for Australia and that the loan shark’s loan and accumulated interest has not been settled. However, the applicant’s version of events as submitted to the Tribunal at the hearing raises certain issues of credibility.
Based on the country information the Tribunal accepts that loan sharks or as they are commonly referred to in Malaysia as the ‘Ah Long’ operate in Malaysia and many of them are unregistered and unlicensed operators. The Tribunal also accepts that many of these loan sharks resort to criminal means and practices to impose their demands upon borrowers or upon their guarantors and in most instances may be associated or administered by criminal gangs or crime syndicates. The Tribunal also accepts that the authorities are working against these unlicensed loan sharks and the ability of the authorities to protect borrowers from harm from loan sharks and their associated gangs varies, depending on the area, the capacity and in some instance on corruption.
Nevertheless the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded”. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have the any responsibility or obligation to specify, or assist in specifying any particulars of the claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant. (MIEA v Guo (1997)191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal was told by the applicant in his evidence that his problems with the loan shark or Ah Long commenced when he approached an unidentified third person for help who negotiated the applicant’s loan and then after a while disappeared from the scene with his motor vehicle and leaving with the applicant to deal with an unpaid loan to a local loan shark and the loss of his motor vehicle. Overtime, a loan of RM[amount] blew out (according to the applicant) to [three times as much] and the loan shark gave the applicant a warning to settle his debt and also caused damage by throwing paint at his home. On another occasion, the loan shark confronted the applicant and although the loan shark did not physically assault him as a reprisal for non-payment he did direct (according to the applicant) verbal abuse which caused him to feel threatened not only for himself but also for his family. However, the applicant, the Tribunal was told refused on both occasions to report these incidents to the local Malaysian police. First, claiming he was afraid to tell the police and second, a little later, he did not report these incidents because the police would do nothing. The Tribunal does not find the applicant’s explanation of the circumstances which compelled him to leave for Australia and to seek protection here as credible. In reference to the applicant’s issues with his bank loan, though his ‘bankruptcy’ as claimed had been settled by the applicant coming to a repayment arrangement with his bank even if in the reasonably foreseeable future, this arrangement were to be frustrated by the applicant’s inabilities to meet the repayment as negotiated, he has unfettered access to the Malaysian legal system. On this, the Tribunal is guided by DFAT assessments of the Malaysian judicial system. According to country information “…the ability for individuals to seek legal redress in the Malaysian courts is mixed…However, the majority of cases in Malaysian civil courts are processed with the rule of law and legal procedure.”[24] As for the applicant’s continuing issues with the loan shark, regardless, of how the applicant may have felt on any particular occasion which led him not to report his encounters with the Ah Long (loan shark) to the police, 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 persons 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) and (c) of the Act.
[24] Department of Foreign Affairs and Trade Country Information Report- Malaysia, 19 July 2016, see p.26.
While the Tribunal has doubts about the applicant’s credibility, it has considered the applicant’s claims separately and cumulatively and is prepared to accept that the applicant had been involved in a dispute with an Ah Long because he chose through a third party to procure a loan to settle his debts with his bank as far as it concerned the timely repayment of his car loan. The Tribunal accepts on the basis of consistent country information that Ah Long (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 his issues with Ah Long to the local police because he thought that doing so would have persisted in its intimidation and threats against him, 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 local Ah Long he fears and the applicant could face threats to his person, family 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 are difficulties and inadequacies in the policing and judicial system in Malaysia generally speaking, having regard to the advice of DFAT 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 the applicant can access it. The Tribuanl does not accept, as the applicant claimed, the police would be unable to provide him with the protection he needed because this would have further aggravated the Ah Long in further intimidating and threatening him. The Tribunal therefore considers that effective protection measures as defined in s.5LA of the Act are available to the applicant in Malaysia and that he 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 in Malaysia would be unable to protect the applicant in his circumstances. There is no evidence before the Tribunal that the applicant seriously contemplated seeking the assistance of the police prior to his leaving Malaysia via Kuala Lumpur International Airport to Australia. 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, except to claim that he had not chosen to file a police report when threatened because he believed that doing so would excite further intimidation and threats committed against him by the Ah Long and that the police could not provide him with effective protection as he required it for himself and his family if he was to return to Malaysia.
The Tribunal acknowledges country information referred to earlier, particularly to DFAT’s assessment of the Malaysian police who are generally considered to be professional and effective. The Tribunal also notes the advice from DFAT regarding police corruption, however this is recognised by the authorities 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 Ah Long 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 2830

13 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction