1704645 (Refugee)

1704645 (Refugee) [2020] AATA 4307 (14 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704645
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Tamara Hamilton-Noy
DATE:14 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 July 2020 at 2:53pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from loan shark – threats to repay business loan to first husband, current whereabouts unknown – applicant’s role in husband’s business – divorce and remarriage – claim that Australian-born child with second husband will be considered illegitimate – second husband’s separate protection claim – inconsistent and implausible evidence – country information about loan sharks and legal enforcement – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 14 July 2016. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is, whether she is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on a Malaysian passport and has at all times claimed to be a citizen of Malaysia. The Tribunal accepts the applicant is a Malaysian citizen and has assessed her claims against Malaysia as her country of nationality.
Claims for protection
The applicant arrived in Australia [in] April 2016 and lodged a claim for protection on 14 July 2016. In her written protection application, she stated that her former husband borrowed money for his business from a loan shark, but his business failed and was closed. After she divorced her husband, the loan shark came and threatened the applicant. Her former husband could not be reached. The applicant paid the debts. The loan shark followed her car when she went to work and her car window was broken twice. Each month she also had to repay her husband’s debts to the bank and her salary could not cover all of the debt. She sold her land to cover expenses to run away and stopped work and left her family to start her life in Australia. Also in the written protection application, the applicant stated that she had not experienced harm in Malaysia. She did not try and move to another area of Malaysia as the loan shark syndicate has people around Malaysia. If she returns to Malaysia, loan sharks may hurt her or burn her if she refuses to pay the debt.
First Tribunal hearing
The first hearing before the Tribunal was held on 22 November 2019 and the Tribunal was assisted during the hearing by a Malay interpreter. The applicant gave evidence on oath. She was not represented at the hearing.
The Tribunal spoke separately to the applicant’s husband at the hearing, in relation to his protection application. The Tribunal discussed relevant country information with both applicants together during the hearing.
At the hearing the applicant told the Tribunal that she was born in Sabah. Prior to travelling to Australia, she had visited [Country 1] in 2008 and [Country 2] between 2007 and 2009 for holidays. Her parents live in northern Sabah, [number] hours from Kota Kinabalu, in the village [Village 1]. She has [number of] siblings, [number] from the same mother and [number] from a different mother. None of her family are in Australia. Her father passed away in 1997 and her mother is living in the house the applicant grew up in, with her younger sister.
The applicant told the Tribunal that she left Malaysia on a valid passport and had no problems at the airport with authorities. She had obtained a passport in 2003 and as this was ‘full’ she obtained a further one in March 2016. It was filled with stamps as she was working as [an Occupation 1] and had to travel out of Malaysia for her work.
The applicant stated that she was married to her first husband in a religious ceremony by an Imam in the village, although the marriage was never registered with the sharia court. This was because her first husband was polygamous and as he was not following the law they were supposed to pay a fine of 3,000 MYR. He never went back to sharia court so they never received a divorce letter, but received an official letter from the court about their divorce which she had provided to the Tribunal.
The applicant stated that she had been married for a second time [in] April 2016, one week before she and her current husband came to Australia. She had known her second husband before she married her first husband and they met again after her divorce.
The Tribunal asked the applicant what she had told her second husband about her first husband and she stated that after they were married her second husband noticed that sometimes she would not answer phone calls and he was suspicious about why she was not picking up the calls. She explained to him that her first husband had obtained a loan from a loan shark. As to why she had not told her second husband about the loan shark earlier, she said that the only thing she told him was that she was divorced and that she didn’t like to talk about her first husband.
The applicant told the Tribunal that she had been divorced in June 2014. After that she resided in a rental house in [location]. Before the divorce she had been living in her first husband’s house. The applicant stated that she stayed in her rental property from 1998 to 2016 because it is a cheap council house and she stayed there under her brother’s name. She only returned when her first husband went to his parents’ house.
The Tribunal asked the applicant when she had started living with her second husband and she said that after they were married they didn’t live together as he has two other wives. His other wives didn’t come to Australia with them; the first wife was not threatened and the second wife had a job. After she had a child, her second husband was unable to work because of an operation on his [body part], and she is now sending money back to his wives from her work in a [workplace].
The applicant told the Tribunal that she last had contact with her first husband in around 2015 when he asked for his clothes that she still had. She does not know where he currently is and the last information she had was from his second wife who said he was in Kuala Lumpur.
The applicant stated that her first husband had a business making [products] in a [factory]. He worked in [Sector 1] and usually obtained projects and subcontracted to other people. He had a Chinese partner, [Mr A] and there was also a person called [B] involved in the business. The applicant stated that her involvement in the business was to prepare letters. Her husband’s other two wives were not involved in the business, just the applicant. The applicant was involved in faxing and sending emails and making phone calls so her husband took her along with him. She was also with him when he went to the loan shark.
The Tribunal asked the applicant about the circumstances in which she had separated from her first husband and she said that at that time he had taken a fourth wife and there were other women in Kuala Lumpur and Kota Kinabalu. The applicant met with the fourth wife, [Ms C], and asked whether she was serious and when [Ms C] said yes, they were getting married, the applicant decided to look at her own situation. Her husband’s business wasn’t making enough profit to support her and he was coming to the house she was renting whenever he wanted. When he started his relationship with his fourth wife, he started insulting her, stating she was barren and couldn’t have children because they had been married for a long time and were without children. She felt that her first husband used her for his business and to help buy his car and obtain money from people and support him if he didn’t have enough money.
The Tribunal asked about the applicant’s divorce and she said that her first husband did not want to divorce and they had ‘the polygamy issue’ that was never settled. Her first husband had also never registered the form about them having been married in sharia court, so the issue at that time was that they could not register a divorce. Everything was arranged at sharia court and then everything was submitted. The sharia court called the people who had married them and who had witnessed the marriage. As to how the Imam was prepared to marry the applicant and her second husband if she was not divorced from her first husband, she said that after she provided all of the proof to the sharia court, they issued a letter of confirmation that the marriage was legal. That document was used to file for divorce.
The Tribunal asked for further details about the applicant’s first husband’s business and she said that she helped him manage the business and her first husband asked her to write letters to the minister as he was not very good at using computers. She did a lot of work for her first husband’s business, including arranging the office, settling a summons for a council hearing and preparing an appeal. She helped him with his business from the time they were married until they had problems, about five hours per week. She was also working as [an Occupation 1] from October 1997 until she came to Australia. Prior to this she had obtained [qualifications] and had then worked for a number of years in the same company.
The applicant stated to the Tribunal that she has one child. In response to further questions by the Tribunal she stated that her passport was issued on the same date as her second husband’s as she is the one who brought her second husband to Australia.
The Tribunal asked why the applicant had not put a protection application in earlier and she said that at the time she didn’t understand the Australian visa system. She talked to people who had been in Australia longer and explained the issues she had had and they told her to apply for a protection visa. She and her second husband had booked return flights to Malaysia for one week after they arrived, because it had been explained to them that if they came to Australia without a return ticket they wouldn’t be allowed entry. After they arrived she looked at a skilled visa but had had to apply before she arrived in Australia. The protection visa allowed her to study and she thought she could apply to study in Australia. Before she came she was looking at applying for a student visa but had not had enough time; this was the only visa she had checked because she just wanted to run away.
The applicant stated that she had completed her written protection application and that of her second husband. As to her reasons for coming to Australia, she said there were a ‘hundred thousand’ reasons and she ‘won’t discuss the other things’. The applicant stated that one of her first husband’s business friends, she thinks [Mr D], disappeared. A Chinese person they had taken the money from said if they didn’t arrange the business, they would kill [Mr D]. Her first husband declared bankruptcy in 2006 and his other business was not doing well. At that time they didn’t threaten her first husband, only to kill [Mr D] who is one of her first husband’s friends. As to why she had not mentioned [Mr D] in her written claims, the applicant said that she had only been talking about her first husband’s and her circumstances. The Tribunal asked the applicant to clarify who [Mr D] was and she said he has his own company and her husband had his own company. She thinks they arranged business together with each receiving a percentage. This did not relate to her husband’s [products] or [Sector 1] business, but was about supplying [a commodity] in [Country 3], where her first husband and [Mr D] were intermediaries for the [commodity].
The applicant stated that her first husband declared bankruptcy in 2006 and also borrowed money from the loan shark in around 2006. She does not know the Chinese man’s name but was there when he took the money. The Chinese man bought tickets for her first husband and arranged his journey to [Country 3]. Chinese people arranged her first husband’s travel in 2006, 2007 and 2008. As to how this was relevant to the applicant’s claims to fear returning to Malaysia, she stated that her first husband borrowed 100,000 MYR and she was there and the Chinese man who loaned the money knows her. The Tribunal observed that it had been the applicant’s first husband’s business and his debt and she had been divorced from her first husband for five years and queried why she would be of any interest to a loan shark her first husband had borrowed money from and she said it is because her first husband ran away to Kuala Lumpur and nobody is able to see where he is; by rights they should be looking for him.
The applicant stated that she had been present when the 100,000MYR was borrowed, [at location] in a restaurant. She cannot remember the name. At the restaurant was a Chinese man, [Mr D], her first husband and herself. [Mr D] was there because he was ‘sort of involved’ in her husband’s business. The Tribunal observed that the applicant had said earlier that [Mr D] was not involved in her husband’s business and the applicant said that the business was the [commodity] they were doing. The Tribunal sought clarification that the applicant’s first husband had also had a [commodity] business and she said they didn’t really sell [commodity] but were middlemen.
The applicant stated that her first husband had borrowed the money in 2006 and before that had borrowed more money. If his business was successful, the repayments were to be the entire money from his business. The Tribunal asked what percentage rate the repayments were to be made at and the applicant stated in response that, for example, if her first husband got 5% of the business he had to pay back how much was issued. The Tribunal asked whether the applicant’s first husband had made repayments and she stated that she doesn’t know whether he did or not as he always hid things from her.
The Tribunal asked the applicant whether anything had happened before she left Malaysia and she said that in early 2016 she received calls from a Chinese man asking where her first husband was. She told him she had been divorced in 2014 and had no idea where he was. The Chinese man recalled he had taken money from her, as she had obtained money from sponsors and had paid for her first husband’s insolvency and discharge from bankruptcy, over 30,000MYR. The Tribunal observed that the applicant’s first husband had declared bankruptcy in 2006 and she had had calls in 2016 and asked whether anything else had happened between 2006 and 2016 and she stated that in this time her first husband was arranging things for them so there were no issues. As to why a loan shark would pursue her, she said that he had said that she took money from him and her first husband needed to pay or she needed to pay, or she knows what would happen to her.
As to whether anything else had happened before the applicant left Malaysia, she stated that they kept calling but she didn’t pick up the phone and became frightened of them. In January 2016, she was driving to her office and felt as though someone was following her which made her frightened. The only thing she could think was that it was the loan shark. Her front driver’s window was broken in. She thinks it was the loan shark because if it was a robber they would have stolen something. She called the police and two officers attended and said it was only a robber. One month later, her car was parked near her house and a window was broken and her car tyre was flattened. Nothing was missing from the car. She also received unknown calls. As to why these had not been mentioned in her written protection application, she stated it was because she didn’t know how much detail she had to go into.

The applicant was asked whether she wanted to add anything else and she said she believes the incidents were the work of the loan sharks. At that time she was still working and didn’t have time to resign from her job, and sent a letter to her company after arriving in Australia. She believes that the loan shark went to her house in 2017 and was shouting and calling for her, and at that time her nephew and niece were in the house and were frightened and made a police report. After that time her nephew and niece went to and from her brother’s house as they were frightened. More recently the loan sharks have returned again and when her niece returned from work, she saw a notice on the door and they had sprayed red paint on the door. The notice was a police report telling her to pay back the money. During the hearing the applicant showed the Tribunal a photo on her phone of a door with red paint and a notice on it.
As to why the applicant had not mentioned her first husband had a [commodity] business prior to the hearing, she said that he has so many businesses and so many projects and she does not have all of the documents with her. Her first husband had given her a [valuable item] to keep, marked as [detail deleted] and gave her a letter to keep and told her they would be rich. She doesn’t know the value of the [item]; she tried to google it but doesn’t know how much it is worth.
The Tribunal observed that it did not make sense that the applicant was so scared she left Malaysia because of a debt and had something potentially worth a lot of money but didn’t investigate its value any further. The applicant stated in response that she doesn’t know if it is [valuable] or not and she tried to sell it but was offered 10,000MYR only, after her divorce.
The Tribunal observed that the applicant had told the Tribunal she was quite involved in her first husband’s company, working five hours per week over a number of years, and that his first two wives had not been involved in the company at all. The Tribunal observed that in her written information provided to the Tribunal, the applicant had stated that she was not sure about the details of the business since the business belonged to him and his other two wives. The applicant stated that her husband had only asked her to prepare letters when he was being declared bankrupt and the factory had some issues with city hall who summoned him. She arranged that and helped in the office only and the rest she does not know as it belonged to the first and second wife.
The Tribunal observed that the applicant had stated to the Tribunal that her first husband had married his fourth wife in 2010 and in her written application had stated that this was 2007. The applicant stated in response that it was 2010.
The Tribunal also observed that the applicant had given evidence both that she had had no contact with her first husband after their divorce but also that she had spoken to him in 2015 about his clothes. She stated in response that that was their last contact, when he phoned her to ask for his things.
The Tribunal asked whether the applicant believed she could reside in another area of Malaysia and she said that the loan sharks have members and are everywhere and will try to locate them. The Tribunal observed that the population of Malaysia was 31.6 million and asked how the loan sharks would find them and the applicant stated that ah longs are everywhere and will find her; she feels safer in Australia.
The Tribunal asked the applicant whether she believed the authorities could protect her and she said she had made a police report and they said if the loan shark came and threatened her at her house they could assist. If she makes a police report about the loan shark, the police will ask her for information she doesn’t have and she has no idea of their details.
As to any other basis she fears returning to Malaysia, the applicant stated she thinks of her child. When she married her husband in a traditional manner, they had no chance of registering the marriage in sharia court. Her child is considered to have been born out of wedlock and won’t have the surname of his father, so will be given the name bin Abdullah and may be ashamed of his future. If he does not carry his father’s surname, he will not obtain any inheritance. Her child was born in Australia in [year] and the other day she went to the embassy and they told her to obtain a temporary passport in Australia and to provide a marriage certificate and, if not, her child will be ‘bin Abdullah’.
Country information was put to the applicant and her husband jointly, given the related nature of the claims. During the first hearing the Tribunal discussed with the applicants a number of media reports about police action against loan sharks between 2015 and 2018.
In an ongoing operation between police and City Hall employees, 2,700 posters were torn down between March and May 2015, in addition to 4,000 name cards having been seized and six men arrested who were directly involved in loan shark activities.[1]
[1] Daily Express, ‘2,700 Ah Long materials removed’, 28 May 2015 at
The applicant stated in response to this information that she agrees but would say that if anything happens, it is better not to return to Malaysia.
Second Tribunal hearing
At the time of the first hearing the most recent DFAT report for Malaysia was dated 19 April 2018. Subsequent to this hearing, DFAT issued an updated Country Information Report for Malaysia, dated 13 December 2019. Given the new report provided new country information relevant to the applicant’s claims, the Tribunal invited the applicant to a further hearing which was conducted on 26 February 2020. The applicant and her husband were present together at this hearing and the Tribunal was assisted by a Malay interpreter during the hearing.
The following information was summarised and discussed with the applicant and her second husband at the second hearing, held on 26 February 2020, and they were invited to comment on the information during the hearing.
The most recent DFAT report estimates Malaysia’s population at 32.4 million.[2] The Tribunal asked the applicant how she would be located in another area of Malaysia given the population.
[2] DFAT Country Information Report Malaysia, 13 December 2019, at 2.5.
The applicant stated in response to this information that perhaps for the majority of people who are not under threat from loan sharks, it may be safe to move from Sabah to peninsular Malaysia. She may be safe for a few months or a few years, but they will find her because they have a large network and gang members will never give up.
The applicant’s husband stated in response to this information that the ah long will never stop finding their victims.
Loan sharks, pau-day financers, or ah long, carry out moneylending activities without a licence and charge high interest rates to do so. Loan sharks operate publicly in Malaysia and advertisements listing phone numbers and offers of cash loans appear on public property, despite the practice being illegal. Loans typically carry an interest rate of 30 to 40 per cent per month and can be as high as 15 per cent per day. In-country sources state that loan sharks do not seek protection money.[3]
[3] DFAT Country Information Report Malaysia, 13 December 2019, at 3.108.
Sources report on loan sharks entering ‘sell and purchase agreements’ in Sabah. DFAT is aware of houses being used as collateral for loans and, if the borrower defaults, the loan shark exercises the sell and purchase agreement to transfer the house into their name. DFAT is also aware of a case of an individual in peninsular Malaysia who engaged a loan shark for a loan to repay their mortgage, signing the house over as collateral after becoming involved in gambling, and when unable to repay the loan shark, the individual’s family supported them to engage a formal credit agency to obtain a loan to repay the loan shark.[4]
[4] DFAT Country Information Report Malaysia, 13 December 2019, at 3.109 – 3.110.
Sources report that an individual unable to service a debt to a loan shark risks threats or actual physical violence, having their home splashed with red paint, which is culturally understood as a symbol that an individual has defaulted on a loan and brought shame to their family, or having their family’s physical safety threatened. Sources claim that loan sharks engage gangsters to collect debts and harass and threaten borrowers and their family members, and those borrowers and their family members have been shot at gunpoint and had fingers cut off. Due to the underground nature of the loan shark activity, DFAT had been unable to verify these claims.[5]
[5] DFAT Country Information Report Malaysia, 13 December 2019, at 3.111.
The applicant stated in response to this information that this was reported on local news but she doesn’t know how they can get evidence of this.
There is significant social shame around not repaying a loan shark and sources report that many people see suicide as the only way out. DFAT is aware that individuals in debt to loan sharks have been advised to put their family into safety and travel overseas to earn a foreign income to repay the debt faster, and to reduce risks and shame to their family. Authorities tend to be unsympathetic to individuals who have accessed loan shark services as they regard them as having participated in an illegal practice.[6]
[6] DFAT Country Information Report Malaysia, 13 December 2019, at 3.111 – 3.112.
The applicant stated in response to this information that this has been happening and has happened to her too, because as recently as October the loan sharks came to her house, which means they are still looking for her.
The applicant’s husband stated to the Tribunal in response to this information that there is no evidence of this but that authorities have been given bribes by loan sharks.
Local media reported that the Commercial Crimes Investigation Department reported 3,903 cases and made 2,698 arrests between January and November 2018. Local media also reported that loan sharks have become more publicly visible and more ‘corporate’ and have increased promotion of their services on social media platforms. In October 2019 the media reported that the RMP planned to start a ‘major war’ against loan sharks, following reports that ah long syndicates are becoming more aggressive.[7]
[7] DFAT Country Information Report Malaysia,13 December 2019, at 3.112.
The applicant stated in response to this information that it is true that operations were conducted and she may be able to escape attention for a while, but she can’t be sure the authorities will apprehend the loan sharks who are threatening her. While she understands that borrowers have gone to loan sharks, in her case her former husband took money from them and they will not ‘let go of her’ that easily.
The Malaysian Chinese Association’s (MCA) Public Services and Complaints Department plays an intermediary role and receives 500 to 600 complaints each year and sources report the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the one per cent government rate. The Malaysian Muslim Consumers Association (PPIM) was involved in over 10,000 cases involving loan sharks from 2012 to 2016 and also maintains a website where people can report cases. Sources provide differing views on the reasons individuals engage illegal moneylenders, with some claiming that up to 80 per cent of borrowers are supporting gambling activities and other debts and others claiming that borrowers are public servants trying to cover daily living expenses or businesses excluded from mainstream finance due to insufficient documentation, bankruptcy or a poor credit history.[8]
[8] DFAT Country Information Report Malaysia, 13 December 2019, at 3.113 & 3.115.
The applicant stated in response to this information that this is true but it relates to small amounts where people may be able to work out instalments. In her case, her former husband took money to start a business and the Chinese man who gave her former husband money wanted an introduction to the business, to receive part of the profits of the business.
Police have made several high profile arrests and investigations of syndicates, including arresting 21 people in Johor in September 2019, arresting 13 suspects in January 2019, arresting 11 members of a nationwide syndicate and arresting 21 people in November 2018.[9]
[9] DFAT Country Information Report Malaysia, 13 December 2019, at 3.116.
The applicant stated in response to this information that this is a commendable effort by police but loan sharks sprout up like mushrooms, and others sprout up somewhere else.
DFAT reports that very limited research is available on loan sharks and the individuals who engage their services, possibly due to their links to gangs and corruption. DFAT is unable to verify the percentage of borrowers who are supporting other illegal activities, their likelihood of seeking police protection or the level of protection offered by police. DFAT assesses that those who are unable to service debts to loan sharks, and their family members, may face societal discrimination due to familial shame and may face a real or perceived risk of harassment and violence from loan sharks or gangsters. DFAT does note, however, that formal credit agencies can consolidate loan shark debts and provide payment plans, and engaging these agencies is an option to mitigate the potential risks posed by loan sharks.[10]
[10] DFAT Country Information Report Malaysia, 13 December 2019, at 3.117.
The applicant stated in response to this information that if someone is blacklisted, it is impossible to obtain loans from banks. She has read about the NGOs that assist, and if someone has property or land they can consolidate their debts but she has nothing. If someone has nothing, there is nothing that can be done to help them.
The applicant’s husband stated in response to this information that the NGOs may be able to help borrowers where not much money is involved, but his wife’s former husband borrowed a large sum of money.
In October 2019, the Inspector General of Police announced that police would embark on a major war against loan sharks, following reports that ah long syndicates were becoming more aggressive. This was described by the Inspector General as a multi-prong legal approach, with anyone found to be involved in loan shark activities to be arrested and prosecuted. The Inspector General also noted in the media report that the Criminal Investigations Department and the Commercial Crimes Investigations Department had stepped up their efforts to combat illegal gambling activities in the city and that there had been arrests ever week and a greater resolve in the police force to clean up Kuala Lumpur.[11]
[11] ‘We are coming after you, IGP warns loan sharks’, 22 October 2019, Free Malaysia Today at
In November 2019, Malaysian media reported that 3,211 ah long had been detained by police since 2010 and that among those arrested, 1,114 had been prosecuted. The Commercial Crimes Investigation Department director told the media that the number of cases and number of ah long detained had spiked since 2018 and that as of October 2019, 117 people were wanted in connection with loan shark activities, of which 67 had surrendered and been detained.[12]
[12] ‘Over 3,000 loan sharks held since 2010 for 5,655 cases involving RM142mil’, F. Zolkepli, 15 November 2019, Star at
The applicant stated in response to this information that the report is correct and she is aware of it. But when it comes to loan sharks, they have no office so she doesn’t know their place of operation unless they come looking for her. She did make a police report in 2017 and in October 2019 they were still ‘out and about’.
The Moneylenders Act 1951 gives police considerable investigative powers against alleged loan sharks and allows them to visit, enter, inspect or search premises without a warrant and to seize moveable properties and business documents to assist with investigations against alleged loan sharks. Individuals involved in illegal money lending activities face conviction, fines and up to five years in prison.[13]
[13] DFAT Country Information Report Malaysia, 13 December 2019, at 3.116.
Law enforcement entities operate in Malaysia at federal and state levels.[14] The Royal Malaysia Police (RMP) is based on the British model and employs 115,000 members and has 837 stations across Malaysia. Local and international sources consider the RMP to be professional and effective, although the quality of members’ responses varies depending on levels of training, capacity and engagement in corruption. MP officers receive limited training, particularly on human rights, and are among the lowest paid members of the Malaysian civil service.[15]
[14] DFAT Country Information Report Malaysia, 13 December 2019, at 5.1.
[15] DFAT Country Information Report Malaysia, 13 December 2019, at 5.5.
The applicant stated in response to this information that she doesn’t see it that way. In January 2016 when she felt that loan sharks were looking for her, the police told her she needed to tell them who the loan shark was, where their office is and to give further details. The police said they could only act on what information was given to them. When they broke her car’s window the police thought it was a thief but there was nothing missing from her car and they said if she is afraid, she needed to give them all of the details. The Tribunal asked how the applicant would then repay the loan sharks if she didn’t have any of their details and she stated they said they would contact her.
Malaysians perceive the police to be one of the most corrupt institutions in the country. The government has publicly acknowledged this and has implemented a number of reforms including establishing compliance units within the RMP, trial of police officers in criminal and civil courts and disciplinary action taken, including suspension, dismissal and demotion.[16]
[16] DFAT Country Information Report Malaysia, 13 December 2019, at 5.6.
There are courts at federal, state and subordinate levels in Malaysia, in addition to sharia courts. Sources have reported on issues of judicial independence, arbitrary verdicts, selective prosecution, delays in court-ordered relief for civil plaintiffs and preferential treatment of some litigants and lawyers. The ability of individuals to seek legal redress through courts is described as variable.[17]
[17] DFAT Country Information Report Malaysia, 13 December 2019, at 5.13 & 5.14.
However, DFAT has assessed that while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.[18]
[18] DFAT Country Information Report Malaysia, 13 December 2019, at 5.17.
The applicant stated in response to this information that she can make a report, but she doesn’t know how the police will keep an eye on her. The police will take her report, but she queried what would happen to her if the loan sharks locate her.
The applicant’s husband stated in response to this information that he has been indirectly involved in his wife’s case and if they were to return, he would have no faith that the authorities would give them adequate protection.
In considering this matter, the Tribunal also had regard to documents provided by the applicant to the Tribunal which included her university qualifications, registration details of her first husband’s business, a statement setting out her claims, a document in Malay which the applicant stated was a police report made by her nephew [in] May 2017 about ah long coming to her house looking for her, a medical certificate stating the applicant had a high risk pregnancy as of May 2018, a declaration as to marital status, a birth certificate for her [child], a police report (in English) stating that [in] October 2019 a letter had been left on the door of the applicant’s rented house stating that the applicant was to pay a debt and that red paint had been splashed on the door, photos of what appear to be a [valuable item] and a ‘full corporate offer’ for [the item], and a media article regarding a Federal Court case in Malaysia in which it was found that an illegitimate Muslim child could not bear a father’s name.
Findings of the Tribunal

The Tribunal accepts that the applicant was born in Sabah, Malaysia. The Tribunal accepts that her father is deceased, her mother lives with a younger sister in the house she grew up in in northern Sabah and that she has [anumber of] siblings. The Tribunal accepts that the applicant was previously married and that the marriage took place through an Imam in a village and was not registered with the sharia court. The Tribunal accepts that the applicant divorced her first husband in 2014 and is prepared to accept that she obtained an official letter form the court confirming the divorce had taken place.
The Tribunal accepts that the applicant was married for a second time [in] April 2016, a week before she left Malaysia for Australia. The Tribunal accepts that the applicant gave birth to a [child] on [date] in Melbourne. A copy of the child’s birth certificate, provided to the Tribunal, states that the child’s family name is registered as [Surname 1] and that [the child’s] parents’ marriage had taken place [in] April 2016.
The Tribunal accepts that the applicant obtained [qualifications] while she was living in Malaysia. The Tribunal accepts that the applicant worked for the same company as [an Occupation 1] in Malaysia between 1997 and 2016.
Aspects of the applicant’s claims for protection have been put consistently in her written application, the detailed statement she provided to the Tribunal (undated) and in her oral evidence to the Tribunal. The applicant’s claims that her husband borrowed money from a loan shark for business expenses is consistent with the country information considered by the Tribunal that loan sharks carry out moneylending activities without a licence and that they charge high interest rates to do so. The Tribunal is prepared to accept that the applicant’s first husband, who she married in 2003, had a [business], but that he had other aspects to his business dealings including a [Sector 1] business and trading in [commodity]. The Tribunal is prepared to accept that the applicant’s husband’s business had financial problems in 2006 and that he borrowed money from a loan shark. The Tribunal is prepared to accept that the applicant’s husband borrowed 100,000MYR from a loan shark when he attended a restaurant [at location] in 2006. The Tribunal is prepared to accept that the applicant was required to repay a bank loan while living in Malaysia because a car loan had been taken out in her name by her first husband.
In a statement provided to the Tribunal (undated), the applicant stated that her first husband married his fourth wife in October 2007 and that she continued her life as usual and her husband lived with his other three wives after his fourth marriage. The applicant stated that they were divorced in 2014 and she returned to her old house to live. The Tribunal is prepared to accept that the applicant and her first husband divorced in 2014 and that she returned to her old house to live after they were divorced.
The applicant has given varying evidence to the Tribunal about her level of involvement in her first husband’s business. In her statement provided to the Tribunal, she stated that ‘I am not very sure the details about the business since the business is belong to him and his other two wives’; and that she was working as [an Occupation 1] at the time and was able to ‘support her own life’ with the job she had. In contrast, at the Tribunal hearing the applicant asserted that she had helped her husband manage the business and had done a lot of work for the business. The inconsistencies in the applicant’s evidence lead the Tribunal to have significant doubts that she was involved in her husband’s business. The Tribunal does not accept that the applicant helped her first husband manage his business, that she did a lot of work for his business, that she sent letters to a minister for the business or arranged the office or settled a summons for a council or prepared an appeal.
Because the Tribunal does not accept the applicant was involved in her husband’s business, the Tribunal does not accept that the applicant was present at the meeting [at location] when her first husband borrowed money from a loan shark. The applicant raised for the first time at the Tribunal hearing that her husband’s business friend, [Mr D], was threatened by a Chinese man and that [Mr D] subsequently disappeared. The applicant did not provide a reasonable explanation for why this had not been raised earlier in her written protection application and the Tribunal finds it implausible that the disappearance of her first husband’s business associate would not have been given in her written protection application as part of the reasons for her seeking protection. The Tribunal does not accept that the applicant’s first husband had a business associate, [Mr D], who was threatened by a loan shark or who disappeared.
The applicant stated in her written protection application that she had sold her land to accommodate expenses to run away from Malaysia. She provided to the Tribunal a photo of a [valuable item] and gave evidence at the Tribunal hearing that she had been given and gave evidence that her husband had given her [the item] and a letter, and had told her that they would be rich. The Tribunal considers it implausible that, if the applicant was being pursued by loan sharks as she has asserted, she would not have investigated the value of [the item] that could have been used to repay part of the debt. The Tribunal also considers it implausible that the applicant would not have used proceeds from the sale of her house to repay any debt owed to a loan shark. The Tribunal does not accept the applicant was pursued by a loan shark over her former husband’s 2006 debt, in or around 2016. The Tribunal does not accept that she received a phone call in 2016 from a loan shark about any amounts borrowed by her husband in 2006. The Tribunal does not accept that a loan shark threatened to hurt the applicant if she did not repay her husband’s debt. The Tribunal does not accept the contents of two police reports provided by the applicant to the Tribunal, the first stating that [in] May 2017 the applicant’s niece was approached at her home by two men asking about a former debt the applicant owed, and the second stating that [in] October 2019 the applicant’s niece found a note at her home cautioning the applicant to pay her debt and also found a splash of red paint on the door. The Tribunal does not accept that a photo shown to the Tribunal during the hearing, with red paint on a door, was a photo of the door of the applicant’s former home.
The applicant gave evidence of loan sharks tailing her when she went to work and of her car window being broken twice. Her evidence as to her reasons for believing that someone was tailing her was given in a vague manner and the Tribunal does not accept the applicant was followed on the way to work in Malaysia, that her car window was broken twice or that on the second occasion her tyre was flattened.
The Tribunal finds that the applicant would not be targeted by loan sharks who dealt with her first husband in 2006, if she returns to Malaysia now or in the reasonably foreseeable future. While the country information considered by the Tribunal states that loan sharks may threaten or use physical violence against people who are unable to repay their loans, and against their family members, the Tribunal is not satisfied that the applicant was previously known by the loan sharks who her first husband dealt with. She has been divorced from her first husband since 2014 and does not know her first husband’s current whereabouts, and the Tribunal finds that any harm to her as a former family member of a person who borrowed money from loan sharks is remote. The Tribunal finds that there is not a real chance the applicant would face serious harm upon return to Malaysia because her first husband borrowed money from a loan shark in 2006.
The applicant states that she also fears harm upon return for her [child], as [the child] was born out of wedlock and will be required to use the name ‘bin Abdullah’ upon return to Malaysia. The Tribunal accepts the applicant’s evidence that she received an official letter from the sharia court recognising she is divorced from her first husband, that she met her second husband after her divorce in 2014 and that she and her second husband were married in 2016. Their child was conceived and born after their marriage. A ‘declaration as to marital status’ provided by the applicant to the Tribunal, prepared by a village head in [Village 1], states that the applicant married her second husband [in] April 2016 at her parents’ home in the village, and that the declaration was being made while they register their marriage at the Islamic Office according to Islamic legal procedures as set down in Malaysia.
The applicant’s child is not listed as an applicant in the protection application. The Tribunal finds that the applicant and her second husband were married at the time their child was born. The applicant’s [child]’s Australian birth certificate registers as [the child’s] surname the same surname as [the] father. The Tribunal finds that the applicant’s [child] would not be considered as illegitimate if she and her [child] return to Malaysia, on the basis that she was married at the time [the child] was both conceived and born. The Tribunal finds that there is not a real chance the applicant would face serious harm upon return to Malaysia because her [child] may be required to use the surname ‘bin Abdullah’.
The applicant stated to the Tribunal that she would have to return to Malaysia with her child and that her second husband and she have been providing financially for his other wife. The Tribunal finds that the applicant was consistently employed in Malaysia between 1997 and 2016 and has not accepted that she would be targeted because of her first husband’s debt. The Tribunal finds there is not a real chance the applicant would face serious harm upon return to Malaysia for economic reasons or because she would be required to take her [child] back to Malaysia with her.
The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any reason if she returns to Malaysia now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. For the reasons stated above, the Tribunal is not satisfied there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The Tribunal has found, in the applicant’s husband’s application, that he is not owed protection. The Tribunal therefore finds that the applicant is not a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tamara Hamilton-Noy
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.
…

[2020] AATA 4307

14 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction