1704099 (Refugee)

[2021] AATA 2006

1704099 (Refugee) [2021] AATA 2006 (28 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704099

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Dr Colin Huntly

DATE:28 April 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 April 2021 at 8:36am

CATCHWORDS
REFUGEE – protection visa – Malaysia – indebted to illegal moneylenders – credibility concerns – failure to seek any assistance in Malaysia – multiple voluntary returns to Malaysia – new claims raised late in process – COVID-19 pandemic crisis – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5LA, 36, 65, 104, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   APPLICANT IDENTITY

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 11 October 2016, and the delegate notified the applicant that the application had been refused by letter dated 7 March 2017.

3. The applicant arrived in Australia [in] August 2016 as the holder of [a] Visitor ETA visa.  The Tribunal has had regard to the Departmental files and the information on which the decision of the delegate, relating to identity, was based. 

4. Accordingly, on the basis of the foregoing evidence, the Tribunal finds that the applicant is a national of Malaysia.  Having established the applicant’s identity to the Tribunal’s satisfaction, the Tribunal finds that the receiving country with respect to the applicant is Malaysia. 

   ISSUES TO BE DETERMINED AND DECISION SUMMARY

5. The delegate refused to grant the visa on the basis that being indebted to illegal moneylenders in Malaysia does not place a person within any of the categories of persecution at s.5J(1)(a) of the Act for the purposes of protection in Australia, grounded on the refugee criterion at s.36(2)(a) of the Act. 

6. The delegate further found that the applicant was not eligible for a protection visa by reference to the complementary protection criteria at s.36(2)(aa) of the Act because effective protection was available in Malaysia to such persons (as per s.36(2B)(b) and s.5LA of the Act).

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

8. The law relevant to this application for review is discussed at ‘Attachment - Extract from Migration Act 1958’.

   PRESIDENT’S DIRECTION

9. I have had regard to the President’s COVID-19 Special Measures Practice Direction, Migration and Refugee Division 27 April 2020.  I have also had regard to the President’s Direction, Conducting Migration and Refugee Reviews 1 August 2018.  In particular:

   ·     That Members are to take all reasonable steps to complete cases allocated to them as quickly as possible;[1] and

   ·     That generally, in reviewing a decision to refuse the grant of a protection visa, Members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.[2]

   [1]Consistent with the Administrative Appeals Tribunal Act 1975, s.33(1)(b) at [2.1].

   [2]At [8.1]

   NEW CLAIMS AND EVIDENCE

10. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  On this view, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim, or to establish or assist in establishing a claim.  This is consistent with the well-settled proposition that it is for an applicant to make their own case.[3]  Applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. 

    [3]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

11. Two obligations here are particularly relevant.  First, the ongoing requirement under s.104 of the Act for an applicant to ensure their relevant details are correct and to change any incorrect information at the first reasonable opportunity. 

    CRITERIA FOR A PROTECTION VISA

12. The criteria for a protection visa are set out in s.36 of the Act and Sch.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) of the Act. 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.

13. 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.

14. 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.[4]  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.[5]

    [4]Section 5H(1)(a) of the Act.

    [5]Section 5H(1)(b) of the Act.

15. Under s.5J(1) of the Act, 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 s.5J(2)–(6) and ss.5K–5LA of the Act, which are extracted in the attachment to this decision.

16. If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, he or she may nevertheless meet the criterion for the grant of the visa at s.36(2)(aa) of the Act 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 (‘the complementary protection criterion’).

17. 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 s.36(2A) and (2B) of the Act, which are extracted in the attachment to this decision.

    Findings relating to applicant credibility

18. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[6]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

    [6]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

19. In Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton,[7]  Foster J stated that ‘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.’[8]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

    [7](1996) 40 ALD 445.

    [8]At 482.

20. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[9] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[10]

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.

    [9](1996) 185 CLR 259.

    [10]At [25].

21. The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that ‘where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.’[11]  Nevertheless, as Burchett J counselled,[12] it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

    [11][1997] FCA 1198 ( accessed 15 February 2021).

    [12]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

22. The Full Court of the Federal Court noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[13]  On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84–86.  Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[14]  Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[15]  In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[16]  The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[17]

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

    [13]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 ( accessed 15 February 2021).

    [14]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558–9.

    [15]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

    [16]MIMA v Rajalingam (1999) 93 FCR 220.

    [17](1999) 197 CLR 510 at [191].

23. The Tribunal notes, however, that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.

24. If the decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied.  The Tribunal notes that in Iyer,[18] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.  The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim.  This decision was affirmed on appeal.[19]

    [18]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

    [19]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

    Mandatory and other considerations

25. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

26. The Tribunal has also had regard to Migration and Refugee Division guidelines on the assessment of credibility, issued in July 2015, which provides:[20]

    It is in the nature of an application for protection that determinations are made, at least in part, on an assessment of the applicant’s credibility, and on the credibility of claims themselves.

    [20]At [8].

27. Further:[21]

    In relation to protection visa applications made on or after 14 April 2015, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, and the Tribunal is satisfied that the applicant does not have a reasonable explanation why their claim was not raised, or the evidence was not presented before the primary decision was made, the Tribunal must rule an inference unfavourable to the credibility of the claim or evidence.  This refers to the requirements of section 4.3.2A of the act.

    [21]At [13].

28. Also:[22]

    Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case.  The Tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal. 

    A member should maintain, and be seen to have, an open mind when conducting a hearing.  There is a duty to clearly and unambiguously raise with the applicant critical issues on which his or her application may depend. 

    An applicant may be favourably fronted with matters that would be adversely on his or her credit, or which bring his or her account into question.  However, the Tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.

    [22]At [17]–[19].

29. With respect to contradictions, inconsistencies and omissions:[23]

    Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. 

    The Tribunal will consider all of the evidence before it recesses, whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.

    [23]At [27]–[28].

    COUNTRY INFORMATION

30. In addition to the country information referred to in the delegate’s decision record which was provided to the Tribunal by the applicant with his application for review, the Tribunal has had regard to the most recent DFAT country information for Malaysia (dated 13 December 2019).  In particular, the discussion in this publication relating to the treatment of returnees. 

31. I note that this publication provides as follows:[24]

    Many thousands of Malaysians enter and leave the country every day.  People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return on account of their absence.

    [24]At [5.35].

32. I have also had regard to the Department of Home Affairs publication, Malaysia, Common Claims, COISS 3 July 2018. 

    HEARINGS

33. The applicant appeared before the Tribunal at two hearings held over three dates, to give evidence and present evidence.  The first hearing on 14 September 2020, took place by teleconferencing due to precautions surrounding the COVID-19 pandemic emergency. 

1. Shortly after the hearing commenced, it became apparent that the applicant was not in a private location, and the beachside shelter at which he was located did not provide sufficient reception or privacy to conduct a protection hearing.  The hearing was then adjourned for resumption in person at the Perth Registry on a date to be advised.

2. The first hearing was resumed, and completed, in person at the Perth Registry of the Tribunal on 22 September 2020.  At the outset of the resumed first hearing I explained what documents the Tribunal had in its possession.  I read to the applicant the summary of claims contained at Part 4 of the delegate’s decision record which was as follows:

   ·     The applicant claims that he and his partner decided to open a [specified] shop.  He tried to get a loan from the bank but his request was rejected.  So he asked the loan shark for the funds which was approved very fast.

   ·     He said that his business was making profit so he was able to make the payment bit by bit.  However, a few months later when he was ready to pay the debt, his partner ran away with all the business money.  He said that he had to bear the consequences from the loan shark.

   ·     The applicant said that he was physically assaulted and threatened with a knife by three men who followed him.  They threatened to kill him if he did not settle the debt in two months.  The applicant said after two months they came to the old house that he rented and threw red paint at the door and house. 

   ·     The applicant said that he reported the matter, but there was nothing the authorities did to help him.

   ·     He said that the loan shark will find him anywhere he goes within the country.  He also indicated that the loan shark is an illegal syndicate and they have a lot of manpower all around the places.

   ·     The applicant said that if he returns to his country, he will be hurt or maybe killed if the loan shark finds him. 

3. The applicant confirmed that the delegate had rendered a fair and accurate summary of his written claims for protection. The applicant confirmed that he did not wish to amend or add anything further to any of these claims. The applicant stated that he did not wish to introduce any new claims or evidence.  The applicant stated that he did not wish to change any information in the documents held by the Tribunal.  He also stated that he was content for the Tribunal to proceed based on the information discussed above.

4. I advised the applicant that, at the next hearing I would be questioning him in detail about his life in Malaysia.  I reminded the applicant that it was for him to understand and make out his own case to be a person in respect of whom Australia owes protection obligations, and that he would be expected to provide relevant evidence.  In this respect, I reminded the applicant of the requirements of s.5AAA of the Act, which relevantly provides that:

   (1)This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

   (2)For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

   (3)      The purposes of this Act include:

   (a)      the purposes of a regulation or other instrument under this Act; and

   (b)      the purposes of any administrative process that occurs in relation to:

   (i)       this Act; or

   (ii)       a regulation or instrument under this Act.

   (4)To remove doubt, the Minister does not have any responsibility or obligation to:

   (a)specify, or assist in specifying, any particulars of the non-citizen's claim; or

   (b)      establish, or assist in establishing, the claim.

5. I also explained to the applicant how this provision related to the requirements of s.423A of the Act, which relevantly provides that:

   How Tribunal is to deal with new claims or evidence

   (1)This section applies if, in relation to an application for review of an RRT-reviewable decision (the primary decision) in relation to a protection visa, the applicant:

   (a)raises a claim that was not raised in the application before the primary decision was made; or

   (b)presents evidence in the application that was not presented in the application before the primary decision was made.

   (2)In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

6. Hard copies of these provisions were provided to the applicant at the hearing.

7. I also explained to the applicant that, at the next hearing, I would need to understand how the applicant’s multiple voluntary returns to Malaysia (at least three times between 2014 and 2015) were consistent with the applicant’s claim to fear harm in that country from any agents of harm.  I indicated that I had not formed a view about this matter, but that it was something we would need to discuss.

8. I asked the applicant if he had anything further at this point in terms of evidence or questions for the Tribunal.  When the applicant responded in the negative, the hearing was concluded.

9. No written submissions were received from the applicant following the first hearing.

   Second hearing

10. The applicant attended a second hearing in person at the Perth Registry of the Tribunal on 18 March 2021.  After reviewing what had transpired at the first hearing, I invited the applicant to make any further verbal submissions.  The applicant made no further submissions.

11. I took a personal history from the applicant.  The applicant is the second of four children, born to parents both still living in Selangor, Malaysia.  The applicant’s father is a retired former [Occupation 1].  He does not enjoy good health, having multiple chronic health conditions deriving from his occupation and has recently received a cancer diagnosis.  The applicant’s mother, who is younger and enjoys better health, works as a [Occupation 2] on an informal basis. 

12. The applicant’s father had a previous spouse with whom he had three children, one of whom is deceased.  Although divorced, the applicant’s parents enjoy an amicable relationship with the step-family and they are close.  The applicant has an older brother, a younger brother and a younger sister.

13. The applicant does not enjoy a good relationship with his older brother.  He experienced long-term physical abuse at the hands of this brother and the two have not spoken in over seven years.  This abuse led the applicant to move away from home and live separately from a young age.  The applicant is in constant contact with his long-term girlfriend in Malaysia.  The two met at school after the applicant suffered serious injuries in a hit-and-run road accident.

14. The applicant’s younger brother is currently serving a term of imprisonment, having been found guilty of [specified offences] following his critical injury in a road accident.  The applicant’s younger sister is currently unemployed, having finished studies in [discipline].  The applicant speaks with his family approximately once per month.

    Core claims

15. The applicant formed a business venture in either 2013 or 2014, he cannot recall specifically when.  The applicant attributes his poor recollection to supervening events, including the hospitalisation of his younger brother in late 2018 and his father suffering a heart attack shortly after this occurred.  Also, there was his father’s recent cancer diagnosis.  I put to the applicant that it was difficult to understand how the challenges faced by his family in Malaysia made it difficult for him to recall the circumstances surrounding his departure from Malaysia in August 2016.  This raised questions about the applicant’s reason for being in Australia.  Given his separation from his girlfriend and his family’s challenges in Malaysia, it was an open question whether he was in Australia for financial reasons rather than reasons of persecution.

16. Given the granular level of recall and detail stretching far back in time that the applicant was able to provide about his personal circumstances, and those of the people he cared for in Malaysia, his lack of recall of the specifics of his claims for protection, even at a high level, undermined the credibility of his claims.  When questioned, he could not recall with certainty what his former business partner’s name was.  The name he provided was merely a name that the person was known by in vernacular terms.  The applicant stated that he could not recall exactly how or when he met this person, but that he knew him from being part of the same [hobbies] group.  The applicant could not recall whose idea it was to form a joint business venture in the nature of a [specified] shop.  The applicant could not recall whether the business venture had started in 2013 or 2014. 

17. When asked to identify the location where the shop in question was located on a Google Maps street map of the area in which the applicant stated that the shop had operated in Puchong, Petaling, Selangor in Malaysia and asked to identify the geographical location, the applicant could not do this.  The applicant stated that, when the shop opened, the industrial area surrounding it was being developed.  Depending on what evidence once accepts, the applicant either never visited the shop or he sometimes would hang around there on weekends.

18. The applicant stated that he borrowed $MYR35,000 in cash in June 2014 from an Ah Long (illegal moneylender).  He gave this money as an investment in [the] business.  His business partner took the money.  The applicant played no part in the business operations.  The understanding was that the business would give the applicant a share of the profits.

19. After some months, the business paid the applicant nothing.  When the applicant made enquiries on return from a holiday, he discovered that the shop was closed and his business partner had disappeared.  No report was made to Royal Malaysia Police about this fraudulent action on the part of the applicant’s partner.  No approach was made to a debt assistance agency such as the Malaysian Muslim Consumers Association (PPIM). 

20. The applicant then claimed that the criminal associates of the moneylender stopped him while he was on holiday near Pahang and demanded that he repay the outstanding debt.

21. I discussed with the applicant relevant country information regarding loan sharks in Malaysia, drawn from the DFAT Country Information Report (and other sources).[25]  This information indicates that:

    ·unlicensed money lending in Malaysia is an offence under the Moneylenders Act 1951 (amended in 2003 and 2011) which gives the Royal Malaysia Police (RMP) considerable investigative powers against alleged loan sharks, including the right to search premises without a warrant and seize documents and moveable properties.  Penalties for illegal moneylending activities are a fine of up to RM1 million or a jail term of up to five years, or both.

    ·Press reporting indicates ongoing activities by the police around Malaysia addressing loan sharking and threats to harm by loans sharks and their agents (clearly, assaulting people and making threats to kill are offences in Malaysia, where the criminal code is based on British law).  The DFAT report comments that police have made several recent high profile arrests and investigations of syndicates, and notes that in October 2019 media reported that the RMP planned to embark on a ‘major war’ against loan sharks.

    ·The DFAT report and press reports indicate there are consumer support agencies in Malaysia such as the PPIM and the Malaysian Chinese Association (MCA) that assist victims of loan sharks to negotiate fair terms with loan sharks to repay their debts.  The DFAT report indicates that PPIM assisted over 10,000 cases involving loan sharks from 2012 to 2016, and sources report that the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the one per cent government rate.  DFAT also notes that formal credit agencies are able to consolidate loan shark debts and provide payment plans, and therefore engaging such agencies is an option to mitigate against potential risks posed to those in debt.

    [25]DFAT Country Information Report, Malaysia, 13 December 2019, [2.38]–[2-39], [3.108]–[3.117], [5.5]–[5.8] and [5.13]–[5.17; KL Consumer Safety Association - No need to fear the loan sharks’, Bernama, 17 February 2015 ( ‘Loan shark menace worsens in M’sia’, The Sundaily, 2 October 2013 ( ‘Malays most notorious for borrowing from Ah long, says PPIM’, Free Malaysia Today, 5 July 2016 ( ‘Police cooperate with Council to wipe out loan sharks’, Daily Express, 28 December 2013 ( ‘57% drop in commercial crime losses, say cops’, The Star Online, 2 July 2014 ( Tan, S C, ‘Crackdown on Ah Long’, The Star Online, 25 April 2014 ( ‘Largest loan shark ring busted, couple held’, Bernama (Malaysian National News Agency), 10 October 2015 ( Gomes E, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May 2015 ( ‘2,700 Ah Long materials removed’, Daily Express, 28 May 2015 ( ‘Sabah Police probe nine Ah Long cases in 2013’,The Malaysian Times, 3 January 2014, ‘Malacca police investigates 29 Ah long cases since January’, Malaysia Edition, 28 December 2013 ( ‘Police Free Man Abducted By Loan Sharks’,  Malaysian Digest, 16 October 2014 ( ‘Loan sharks caught red-handed’, The Star Malaysia, 29 May 2015 ( ‘Loan Shark Ring Busted, 31 Nabbed in Nationwide Raids’, Malaysian Digest, 18 April 2017 ( Lee, Y M, ‘Some 36,000 suspected criminals have been arrested, says minister’, The Star Online, 10 December 2013 ( ‘Colleague’s death has spurred us on, say police’, The Star Online, 24 September 2013 (>

    When I put to the applicant that country information suggested that some assistance may have been available to a person in his position at the time, the applicant indicated that he did not seek assistance because he had no faith in any agency to assist him.  He asked for advice from friends but did not approach any of the relevant assistance or policing agencies in Malaysia.  The applicant did not agree with the foregoing summary of country information, preferring to rely on his own opinion without having made any inquiries or reports while living in Malaysia.

22. The applicant stated that he instead moved away to avoid the moneylenders.  Red paint was splashed on the outside of his former rental.  The thugs cut the heads off some chickens in nearby yards and pursued him in locations around Malaysia.  No report was made to Royal Malaysia Police.  The applicant claimed that this was because he perceived the police to be corrupt.  I put to the applicant that, in addition to his failure to seek any assistance in Malaysia, during this time, he made multiple holiday trips outside of Malaysia to Singapore and Indonesia, each time voluntarily returning to Malaysia.  I pointed out to the applicant that his conduct did not amount to remaining in hiding while planning an escape to Australia.  I also put to the applicant that his narrative was confusing and illogical.

    New claim

23. At this point, the applicant introduced a new claim, namely, that the criminal associates of the moneylenders to whom he was indebted had prevailed on him to transport drugs across the border into Singapore on his motorcycle.  In response to a series of questions, the applicant claimed that he agreed to do this on one occasion in order to pay the interest on his debt, the total of which the applicant believed to have grown to over $MYR70,000 although the applicant could not recall exactly.  He then claimed that he still owes his debts to the same people.  The criminal thugs merely put more pressure on him to continue acting as a drug courier.  The nature of the applicant’s evidence was unclear, difficult to follow and lacking in context.

24. I reminded the applicant of his obligation to make his claims in as much detail as possible.  I advised the applicant that it was inappropriate for the Tribunal to extract his claims for protection by means of forensic interrogation.  I pointed out that the applicant had been in a position to articulate his claims for protection in full in Australia for over five years.  I took the applicant to his original application for protection and his detailed statement of claims in that form.  I pointed out that the applicant’s new claims were not disclosed until 18 March 2021. 

25. I gave the applicant until 16 April 2021 to provide a written submission explaining why it was not safe for him to return to Malaysia.  I stated that the submission should be in the form of a Statutory Declaration.  The applicant confirmed that he understood what was required.

26. At this point, the applicant asked for more time to respond because he wished to complete a [specified] course.  I pointed out to the applicant that, given the time over which his application and subsequent review application has extended, it was not appropriate to prolong the process more than four weeks based on available information.  I expressed concern about the applicant’s affect, which, at times appeared to be emotionally labile.  I indicated that, while it seemed apparent, I could not take this into consideration in the absence of submissions from the applicant or some form of medical report.  I told the applicant that I would await his written submissions before deciding whether a further hearing might be required.

27. As at the date of this decision, no written submissions have been received from the applicant.

    ANALYSIS

28. The applicant’s recollection of the nature, duration or geographic location of the business venture at the centre of his protection application undermines his core claim for protection in Australia.  His failure to report the fraudulent conduct of his claimed business partner to police and his failure to seek assistance from any of the acknowledged consumer assistance bodies further undermines his core claims for protection.  The applicant’s repeated returns to Malaysia from other countries at a time when he claimed to fear significant physical harassment, intimidation and threat from violent thugs who had networks of influence throughout that country is also inconsistent with a subjectively genuine well-founded fear of harm. 

1. I note that the applicant’s late claim of being an international drug courier for violent thugs associated with illegal moneylenders in Malaysia was made for the first time at the second hearing with the Tribunal on 18 March 2021, almost four and a half years after his original application for protection and more than four years after the refusal of that application by the Department.  By any measure, this would appear to meet the statutory test at s.423A of the Act.  When I asked the applicant why he had not disclosed this claim for so long, he initially suggested that he was embarrassed or afraid to confess to such a serious crime.

2. I gave the applicant a copy of s.423A at the first hearing.  The applicant was also given four weeks to seek assistance and make written submissions explaining his claims to fear harm in Malaysia now and for the reasonably foreseeable future and to explain his new claim in greater detail.  I suggested that he may wish to seek assistance for his emotional affect.

3. The applicant has made no further submissions.  It is reasonable to infer that, if the applicant had a reasonable explanation for his late claim to having been forced to be an international drug courier for violent thugs associated with illegal moneylenders in Malaysia, he would have provided such an explanation to the Tribunal when given an extension of time to so do.

4. On this basis, I find that the applicant has no reasonable explanation for raising his late claim to be a person in respect of whom Australia owes protection obligations for the purposes of s.423A of the Act.  Accordingly, I draw the requisite adverse inference about the credibility of this claim provided at s.423A(2) of the Act.

   COVID-19

5. I acknowledge that the international public health crisis arising from the current COVID-19 pandemic is a factor weighing heavily on decisions for visa applicants in Australia, however, I note that this decision is not a decision on return.  That being said, I am though mindful, that this decision has the potential to give rise to such a decision in the reasonably foreseeable future.

6. In the absence of additional considerations, I find that whatever measures may be applicable to the population of Malaysia generally in response to the present COVID-19 crisis do not, constitute an intentional act or omission for the purposes of the refugee or complementary findings as to claims considered in this review.

   FINDINGS

7. Based on the foregoing analysis of the applicant’s evidence and the credibility issues identified above, I find that applicant’s core claims for protection and his late claim for protection are not credible.  I find that he is not indebted to illegal moneylenders or any other person in Malaysia for any reason.  I find that he is not the target of adverse interest by violent thugs associated with illegal moneylenders in Malaysia or any other person for any reason. Accordingly, I find that the applicant does not subjectively hold a genuinely well-founded fear of harm from any person, for any reason now or in the reasonably foreseeable future.[26]  Judicial authority provides that, in such cases, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.[27] 

   [26]Emiantor v MIMA (1998) 98 ALD 635. In that case, the Court concluded that the Tribunal had assumed that the applicants had a subjective fear and therefore did not err. On appeal, the Full Federal Court (Emiantor v MIMA, unreported, Federal Court of Australia, Olney, Sundberg and Marshall JJ, 20 July 1998) found that although there was no express finding, in disbelieving the applicants’ evidence, the Tribunal must have concluded that they did not have a subjective fear.

   [27]See SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34]. In Iyer, the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.  The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it needed to go no further in its analysis of the basis of the claim.  On appeal, the Full Federal Court affirmed that once the Tribunal rejects an applicant’s claim that there is a subjective fear, it is not necessary to determine whether the non-existent fear was well-founded: Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMIA (2003) 129 FCR 137 in which Cooper J, at [19], found that the question of objective fear does not even arise if no subjective fear arises on the facts of the case.

   Refugee criteria

8. The Tribunal’s finding on the refugee criterion at s.36(2)(a) of the Act with respect to the applicant, based on the foregoing, is that the Tribunal is not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act due to the absence of a genuinely subjective well-founded fear of persecution in Malaysia from any person, for any reason.

9. Accordingly, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations as outlined at s.36(2)(a) of the Act.  As the Tribunal has found that the applicant is not a refugee as defined by s.5H(1) of the Act, no further assessment is required in that regard. 

   Complementary protection criteria

10. The Tribunal has considered the applicant’s eligibility for protection under s.36(2)(aa) of the Act, which applies where a decision-maker is satisfied that an applicant is a non-citizen in respect of whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to the receiving country, there is a real risk that the non-citizen will suffer significant harm. 

11. As discussed above in this decision, the Tribunal finds that the applicant does not subjectively hold a genuinely well-founded fear of persecution if he were to return to Malaysia now, or in the reasonably foreseeable future from any person for any reason.  The Tribunal notes that s.36(2)(aa) of the Act refers to a real risk of the applicant suffering significant harm.  The Tribunal notes that the real risk test imposes the same standard as that adopted in the real chance test for the purposes of assessing a well-founded fear.

12. For the reasons canvassed above, the Tribunal finds, that with respect to the applicant, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia that there is a real risk he will suffer significant harm now, or in the reasonably foreseeable future from any person, for any reason.  Therefore, the applicant is not a person in respect of whom Australia has protection obligations as provided at s.36(2)(aa) of the Act. 

    CONCLUSIONS

13. The Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations by virtue of s.36(2)(a) of the Act.

14. Having concluded that the applicant is not a person in respect of whom Australia has protection obligations by virtue of s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion at s.36(2)(aa) of the Act.  The Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations, by virtue of s.36(2)(aa) of the Act.

15. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act, and who holds a Protection visa.  Accordingly, the applicant does not satisfy any of the criteria in s.36(2) of the Act.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Dr Colin Huntly
    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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 the 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.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …