1704380 (Refugee)

[2018] AATA 1879

1704380 (Refugee) [2018] AATA 1879 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704380

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Peter Vlahos

DATE:30 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 30 April 2018 at 11:09am

CATCHWORDS

Refugee – Protection visa – Malaysia – Particular social group – Victims of loan sharks – Money lenders – Forced responsibility for loans of missing family – Physical violence – Fear of killing – Internal relocation – Effective protection – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 on 23 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 23 November 2016 and the delegate refused to grant the visa on the basis that the applicant application for Protection visa did not satisfy subsection 36(2) of the Act.

3. On 11 December 2017 the applicant appeared before the Tribunal to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

5. The applicant was not represented in relation to this review by a registered migration agent or legal representative.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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

12. The issue in this case is whether Australia has protection obligations in respect to [the applicant]. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

13. Based on a copy of the applicant’s passport, which was provided to the Department of Immigration and Border Protection (the Department) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Migration Act.

14. On the basis of the above-mentioned evidence, the Tribunal finds and accepts the applicant’s identity as claimed.

15. The Tribunal also has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision of the Tribunal with the review application.

    Migration History of the Applicant

16. The applicant arrived in Australia on a [temporary] visa on 6 September 2016 and on 22 November 2016 he applied for an XA-866 Protection visa and was granted by the Department the associated bridging visa.

    EVIDENCE AT THE SCHEDULED HEARING

17. The [applicant] is [an age] year old Malay national from Kulim in the state of Kedah, Malaysia. He is a Muslim by faith and is not married. He has family living in Malaysia which consists of mother and [sibling]. The applicant told the Tribunal that he has no contact with his [sibling] and does not know the whereabouts of his father. The applicant also told the Tribunal that his parents are divorced. While living in Malaysia, the applicant was self-employed selling ‘[products]’ to the public and worked [at a business].

    The applicant’s claims for protection as submitted to the Department[1]

    [1] see DIBP File [number] folio 61

18. The applicant’s claims for protection can be summarised as follows:

    §The applicant claims that he fears returning to Malaysia because he is indebted to money lenders.

19. The applicant went on to explain to the Tribunal that the debts to the money lenders were not incurred by him but by his father (who was nowhere to be found) and a ‘…gambler.’ The applicant went on to tell the Tribunal that his father had borrowed significant amounts of money from the money lenders he engaged with and had not made any re-payments. In admitting this to the Tribunal the applicant was unable to tell the Tribunal exactly what amounts of money and interest were still outstanding.

20. Indeed, the applicant told the Tribunal that he was now considered responsible for his father’s debts and his life placed in jeopardy because the money lenders wanted him now to be solely responsible for all debt and interest re-payments.

21. The Tribunal asked the applicant what was the actual amount that he believed was owing to the money lenders. The applicant’s response was to repeat his earlier claim that it was a significant amount and included interest but could not state an actual figure.

    What happened to the applicant when the money lenders told him that he was responsible for his father’s debt?

22. The applicant told the Tribunal that the money lenders came to his home to see him at first, telling him that they now considered him responsible for his father’s debts. They then ‘…splashed ‘[paint]’…’ at the front of the applicant’s home and the Tribunal was also told that they also caused ‘…damage…’ to the applicant’s home.

    Following the attacks on the applicant’s home did the applicant seek assistance from the authorities?

23. The applicant did not seek the protection of the local police but told the Tribunal that he ‘…ran away to another place’ Kelantan but the money lenders had ‘friends there’ and he was located and forced to return. The applied made an attempt to lodge a police report but when this was discovered by the money lender the applicant was ‘…beaten up…’

    What was the amount of money demanded by the money lender when the applicant encountered him at his home?

24. The applicant told the Tribunal that when the money lender came to his home he demanded ‘…whatever money he (the applicant had in his possession). The Tribunal was also told that when the applicant requested to be told the actual amounts borrowed by his father and the interest charged, the money lender (according to the applicant) refused to provide him with that information. Then, the money lender ‘punched…’ the applicant in face with his fist and the applicant for time was unconscious.

25. Following this incident, the applicant again tried to escape the money lender by moving to Terengganu where he worked selling ‘[products]’ but was again located by the moneylender and was again faced with demands for money.

26. After the applicant had been found in Terengganu he decided that the only way to escape the moneylender was to go to Kuala Lumpur and from there to leave Malaysia.

    Did the applicant experience any issues before leaving Kuala Lumpur International Airport for Australia?

27. The applicant told the Tribunal that he was able to leave Malaysia without any further incident or problems created by the moneylender. When asked to explain to the Tribunal why it was possible for him to leave Kuala Lumpur without being discovered by the moneylender as was the case on two previous occasions, the applicant told the Tribunal that prior to coming to Kuala Lumpur he ‘…lived at a remote village…’ (the name was not disclosed) for two months and then when he had made his preparation to leave for Australia, he went to the airport.

    What has the applicant been doing while in Australia?

28. The Tribunal was told that the applicant arrived in Australia 6 September 2016 and for the first three months; the applicant stayed at home and did not seek employment. After that, he worked on a rural property (as farm employee) earning for himself AUD$[amount range] on a weekly basis. Then, the applicant worked at a local [business] in [a named town] earning AUD$[amount] per day and working 7 to 8 hour shifts.

    Has any member of his family in Malaysia been threatened by the moneylender in his absence?

29. The applicant told the Tribunal that the only threats that have been made by the moneylender have been directed against the applicant and no towards any other member of his family.

    What are the applicant’s main concerns if he was to return to Malaysia in reasonably foreseeable future?

30. The Tribunal was told that if he was to return to Malaysia, he had fears of being located by the moneylender and being unable to re-pay his father’s loan, this would put his life in jeopardy. He even recalled an incident when he was in Kedah, when the moneylender held a gun to his head and warned him that if he did not pay the money his father had borrowed he would be killed.

    Why would the applicant faced with such threats in the past not engage the local Malaysian police in an effort to protect him from the moneylender if, he returned to Malaysia?

31. The applicant’s response was that he could not report the moneylender to the local police because he (the moneylender) would find him and threaten him. The applicant also feared that if he reported his circumstances to the police he could even be ‘…killed…’ 

    How will the loan shark find the applicant if he returned to Malaysia?

32. The Tribunal was told that the moneylender had no problems in locating him if he wanted to do so. He would go to his home and would receive information about his whereabouts from his friends.

    Closing remarks by the applicant to the Tribunal

33. The applicant requested from the Tribunal to be allowed to remain in Australia in order to continue to work to earn enough money enabling him to redeem his estranged father’s debts to the moneylender. Although he could not provide the Tribunal with an actual amount of money borrowed, the applicant stressed to the Tribunal that the amount was ‘lots…’ and that the interest (which he did not specify) was always increasing. In such circumstances he (the applicant) could not repay the moneylender and no police force could assist him.

    Country Information – Malaysia: Loan sharks, Police and legal system

    Loan sharks

34. 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.[2]

    [2] ‘KL Consumer Safety Association - No need to fear the loan sharks’ 2015, Bernama (Malaysian National News Agency), 17 February < Accessed 19 February 2015 <CXBD6A0DE1580> 

35. 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’.[3]

    [3] ‘Loan shark menace worsens in M’sia’ 2013, The Sun Daily, 2 October < Accessed 22 April 2014<CX320169> 

36. 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.[4]

    [4] ‘Police cooperate with Council to wipe out loan sharks’ 2013, Daily Express, 28 December < Accessed 22 April 2014 <CX320164> 

37. 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.[5] 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.[6] Between March and May 2015 police in Kota Kinabalu seized between 2,700 and 6,700 ‘posters, banners and name cards of illegal money lenders’.[7] Reportedly, ‘City Police chief ACP M. Chandra said the police and City Hall had carried out numerous operations under Ops Vulture’.[8]

    [5] ‘57% drop in commercial crime losses, say cops’ 2014, The Star Online, 2 July < Accessed 30 August 2016 <CX1B9ECAB11425> 

    [6] Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April < Accessed 30 August 2016 <CX1B9ECAB11426>

    [7] Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May < Accessed 30 August 2016 <CXBD6A0DE13537>; 

    [8]Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May < Accessed 30 August 2016 <CXBD6A0DE13537>  

38. Numerous media reports were located regarding the effectiveness of police investigations and arrests related to Ah Long syndicate crimes. Police in Sabah reported that ‘16 men believed to be Ah Long members were arrested in 2013 compared to 12 arrested in 2012’ during Operation Vulture.[9] In 2013, Malacca police investigated 29 Ah Long related cases and arrested 20 people. Thirteen cases involved preventative measures with cases being ‘investigated under Section 5(2) of the Money Lenders Act 1951 for operating without a licence’.[10] Additionally, ‘four more cases and seven individuals were investigated under Section 29AA of the same Act for putting up posters.’[11] The Malaysian Digest reported on 16 October 2014 that ‘police rescued a 21-year-old after he was abducted by three men, believed to be loan sharks … One day after the incident, police apprehended a 24-year-old man and a 29 year-old woman … believed to be involved in the incident’.[12] The Malaysian Star reported on 29 May 2015 that two loan sharks were arrested during a police surveillance operation when collecting money from a victim. The arrested persons were wanted by police ‘for suspected involvement in several other cases of illegal moneylending in the district.’[13]

    [9] ‘Sabah Police probe nine Ah Long cases in 2013’ 2014, The Malaysian Times, 3 January < Accessed 30 August 2016 <CX1B9ECAB11427> 

    [10] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December < Accessed 30 August 2016 <CXC28129414704> 

    [11] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December < Accessed 30 August 2016<CXC28129414704> 

    [12] ‘Police Free Man Abducted By Loan Sharks’, 2014, Malaysian Digest, 16 October < Accessed 30 August 2016 <CX1B9ECAB11430>

    [13] ‘Loan sharks caught red-handed’ 2015, The Star Malaysia, 29 May < Accessed <CXBD6A0DE13543> 

1. The DFAT 2016 Country Information Report – Malaysia notes that while the Royal Malaysian Police (RMP) are considered a ‘professional and effective’ police force by ‘local and international sources,’ the integrity of RMP responses are compromised by the ‘level of training, capacity or engagement in corruption’:

   5.5 The RMP employs approximately 102,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Home Affairs Minister. Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam does conduct some human rights training and workshops for police and prison officials. Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern (see ‘Police Integrity and Accountability’, below). The RMP is 80–85 per cent ethnic Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.[14]

   [14]Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 5.5, p.25 <CIS38A80121311>  

2. Notwithstanding, a 23 May 2016 article published by the Sun Daily reports that police have ‘busted the largest illegal money-lending syndicate in the country’ ‘following a report lodged by a 48-year-old-man who claimed that the loan sharks have been harassing him’:

   "Following the report, we monitored and trailed the syndicate members for seven months. They have been lending up to RM8 million in total to victims every month, making this the largest syndicate we have busted in recent years," Roslan [Commercial Crime Investigation Department deputy director (Intelligence and Operations) Senior Asst Comm Roslan Abd Wahid] said.[15]

   [15] Mun, S B 2016, ‘Police bust largest money-lending syndicate (Updated)’, The Sun Daily, 23 May < Accessed 16 August 2016 <CX6A26A6E7820> 

3. A 24 May 2016 article in The Star cites Roslan who indicates that loan shark victims ‘“do not want to come forward to lodge police reports because they likely feel embarrassed”’.[16]

   [16] Kumar, M 2016, ‘So long, Ah Long syndicate’, The Star, 24 May < Accessed 16 August 2016 <CX6A26A6E7847> 

4. In its 2016 Country Information Report – Malaysia, DFAT noted the following in relation to loan sharks:

   3.78 Al Jazeera reported in 2014 that there were approximately 49 illegal gangs operating in Malaysia, with almost 40,000 members. The majority of street-level gang members tend to be Indian Malaysians, reflecting their relative economic vulnerability. However, high-level crime, including drug trafficking is more typically undertaken by Malaysian Chinese gangs. All gangs have the potential to engage in extortion and loan shark practices. However, obtaining details on these activities is difficult as victims of gang-related crimes do not generally report to law enforcement. Credible contacts advised that Malaysian authorities would likely view individuals who access loan shark services as having participated in an illegal practice.[17]

   [17] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 3.78, p.18 <CIS38A80121311> 

5. 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.[18] No independent analysis on the operation was found.

   [18] ‘Police crackdown on gangsters still in full swing, IGP says’ 2014, Malay Mail on line, 9 October, < Accessed 30 August 2016 <CX1B9ECAB11433> 

6. 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’.[19]

   [19] Hasnan, H A 2016, ‘Ops Cantas 2 to involve three elite police teams’, 1 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8261> 

7. 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.[20]

   [20] ‘Op Cantas crackdown on triads: 1,444 arrested’, 13 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8262>

   Law enforcement in Malaysia

8. 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.

9. 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.

10. 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.[21]

    [21] ‘freedom in the World 2015:Malaysia’, Freedom House, 5 May 2015<NG5A1E6BC218>

11. 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.[22] 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.”[23]

    [22] ‘Corruption Perceptions Index 2014’, Transparency International, 5 December 2014.

    [23] ‘Political parties perceived to be most corrupt, says survey’, Malaysian Insider, 14 May 2014.

12. Regarding malpractice in Malaysia’s security forces, DFAT in its country report – Malaysia, dated 19 July 2016 reports that:[24]

    [24] 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’s conclusions about the applicant’s claims

13. The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 194:

    ….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….

14. The Tribunal also accepts that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…” (see, The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph [196]). However, the Handbook states at (paragraph [204]):

    …The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts…

15. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

16. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).

17. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

    The issue of Credibility

18. First, the applicant told the Tribunal that his problems with a local moneylender commenced when his father who was a ‘gambler’ borrowed from the moneylender large sums of money and subsequently did not repay them back and disappeared. As a result of the applicant’s father not honouring his debt commitments to the moneylender, the Tribunal was told that the moneylender held the applicant responsible for the repayment of the father’s debt and interest which were not disclosed to even the applicant when that information was requested by him. The Tribunal was also told that the applicant endured a number of ordeals at the hands of this moneylender. His home was vandalised with ‘[paint]’. It also suffered damage. His person was assaulted on one occasion and on another the moneylender threatened him with a gun. Also the applicant on two occasions tried to re-locate but was in both instances found by the moneylender and forced to return.  Following each of these incidents the applicant did not choose to inform his local police because he feared further reprisals by the moneylender. The Tribunal does not find this explanation of events as credible. The applicant provided no evidence to the Tribunal to suggest that a report to the local police would not have provided him with some effective protection against the extortion and threats he was subject to over a period of time as he claimed by the moneylender. Also, the country information available and referenced by the Tribunal reports that the authorities’ actions against the illegal moneylenders (or Ah Long) have been more proactive in recent years. The Tribunal does not accept that, as the applicant claimed that a report of the moneylender to the police would not have afforded him the necessary personal protection he was seeking despite his fearing reprisals for doing so from the moneylender. The Tribunal therefore considers that effective protection measures as defined in s.5LA of the Act were and are available in Malaysia and that the applicant does not have a well-founded fear of persecution in accordance with s.5J(2) of the Act.

19. Second, the applicant claimed that he could not escape the moneylender while in Malaysia because the moneylender was able to locate him. Indeed, on one occasion the applicant claimed that he re-located to ‘Kelantan’ but was discovered there by the moneylenders wide circle of ‘friends’ and was forced to return to his home. On another occasion, the Tribunal was told that the applicant re-located to Terengganu but there too he was discovered because of his work (selling ‘[products]’). Finally, after living in an ‘un-named village’ for ‘two months’ the applicant re-located to Kuala Lumpur and then without any hindrances he left Malaysia for Australia. The Tribunal does not accept this explanation of events concerning the applicant’s movements inside Malaysia as credible. The applicant provided no credible explanation to the Tribunal of how the moneylender could find him without issue in Kelantan and Terengganu as he claimed and yet lost the applicant for a period of two months in an un-named village allowing him thereafter to go Kuala Lumpur International Airport and to leave for Australia.

20. Third, at various stages of the proceedings the Tribunal asked the applicant what was the amount of money and interest charged which the moneylender had demanded him to repay in full. Again, the applicant’s responses were vague and lacking in detail. In one instance during the hearing the applicant told the Tribunal that the moneylender came to his house and demanded and took whatever amount of money that was given by the applicant. At no stage during the proceedings did the applicant provide a figure on what was actually owed by his estranged father to the moneylender even though he claimed he was being held liable for. Therefore the Tribunal does not find or consider credible that the applicant was being held to account for an undisclosed debt amount procured by his estranged father who was a gambler (who had disappeared) and owed to a moneylender.

21. For the reasons given in paragraphs [56] to [58] above, the Tribunal does not accept that the applicant was held by a moneylender as obligated to repay in full his estranged father’s debt, as he has claimed, nor that there is a real chance that he will face persecution involving serious harm because he has failed to repay money to the moneylender if he returns to Malaysia now. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Act.

22. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect to whom Australia has protection obligations under s.36 (2) (a).

23. The Tribunal 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). For the reason given in paragraphs [56] to [58] above, the Tribunal does not accept that the applicant was obligated to repay an undisclosed sum of money being a debt procured by his estranged farther from a moneylender, as he has claimed, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm because he has failed to repay money his had borrowed from a moneylender. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36 (2)(aa).

1. 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).

2. 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

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

   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.

   …