1705805 (Refugee)
[2020] AATA 2148
•15 May 2020
1705805 (Refugee) [2020] AATA 2148 (15 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1705805
COUNTRY OF REFERENCE: Malaysia
MEMBER:Joseph Lindsay
DATE:15 May 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 15 May 2020 at 5:11pm
CATCHWORDS
REFUGEE – Protection visa – Malaysia – received threats from loan sharks – fears harm from creditors – inconsistent evidence – daughter’s medical condition – support services available in Malaysia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 423, 499
Migration Regulations 1994, r 1.12, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 March 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Malaysia, applied for the visas on 19 October 2016.
The applicants appeared before the Tribunal on 12 February 2020 with the assistance of an interpreter in the Malay and English languages.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Protection claims
Mr [A]’s claims were contained in his 866 form, which stated as follows:
Q88: I am seeking protection in Australia, so that I do not have to return to:
A: Malaysia
Q89: Why did you leave that country?
AI leave Malaysia because I want get a protection for my family in Australia. It’s due to I cannot pay the debts that I borrow for my previous business from my parent, siblings, relatives and friends. Since then, the creditors threatened my family to kidnapped them for human trafficking. Me and my family faced mental abused, emotional abused and physical abused. The creditors also keep harm our neighbors. Besides that, we also get rejection from my family because of the debt. After bankrupt, the situation become worsed because of I still unemployed. In Malaysia, I must have study certificate to be employed. But my certificate had been burnt by my parent. Besides, I try to set up [a] business but I been sued by district council because we do not have [business] license. It cost me too much for apply the license and provide a proper stall on that time. End up, we had sold our car and personal belongings to survive for several month and finance the cost travel to Australia.
Q90: What do you think will happen to you if you return to that country(s)?
AIf I return to Malaysia, I will live in fear with my family because the creditors will keep come to my home and harm my family. They will repeatedly intimidate my family to kidnap them for human trafficking. The creditors might become aggressive when they come to my house. They will bring weapon along them and make some noise in my neighborhood. I will faced physical abuse because they will beating and slapping me in front of my family. My child will become trauma to adult and mentally abuse because they been forced to face hard situation. Besides that, my wife also will have anxiety disorder due to kids health concern. My kids will grow in negative environment and its not good for their grow up. In addition, I will not get any protection from the Malaysia authority and my parent. Moreover, I have sold all my belongings and my car for finance cost come to Australia. So we have nothing left in Malaysia. Besides that, I cannot pay the debt because still unemployed and concern for my family safety that only stay at home.
Q91: Did you experience harm in that country(s)?
AYes. The creditors harmed my family because of I’m not able pay back the debt according the time frame that they give. This happened due to I don’t have permenant job until employed. They threat to kidnap my child for human trafficking at [Country 1]. They intimidated to sell my child organ or make my child as forced labor. My child had mental abuse so that they are afraid to adults and trauma. My wife suffered anxiety disorder due to creditors also intimidated her too make her as sexual slavery. Besides that, the creditors was beat me in front of my family in several time. They bring along weapon to scared us. They will yelling and make some noise to ensured my neighbour know our situation. We only stayed at home for almost 2 week long because shamed with neighbor.
Q92: Did you seek help within the country(s) after the harm?
AYes. I have made statements to the police and the human rights commission of Malaysia after the creditors often come to my house. This is because I want to get protection from the authorities since my family have rejected me. But the police asked me to settle the debts first because they say this is my personal problem. If I want the police conduct an investigation into my case, I have to repeatedly go to the police station. Some of them asked for a bribe from me. But then, I do not have money. In addition, they only observe cases if have insider.
Q93: Did you move or try to move to another part of that country(s) to seek safety?
AYes. We moved from [Town 1] Selangor to [Town 2] Johor to get protection for my family. We moved at the late night to ensure the creditors will not follow us and know my new address. But they still can trace us where we are moved. They get the information from our old neighbor. My neighbor inform that the creditors will harm them if they not give the information. The creditors knock the door loudly and make some noise to intimidate my old neighbor.
Q94: Do you think you will be harmed or mistreated if you return to that country(s)?
AYes. If I return to Malaysian, Im worries the same thing happen to my family, the creditors keep come to our home to collect the debts and harm my family. They keep threat my family to kidnap for human trafficking. They also yelling to my wife to make my wife as sexual slavery and my son for forced labor or sell the organ. My family will mentally abuse because trauma face the difficult situation. Thus, it will make my wife depress and anxiety disorders due to kids health concern. My kids might have eating disorder. In addition, I also seek the physical abuse from creditors. They will beating and slapping me in front of my family. My family has poor mental health. My kids being fear to adults. Supposedly, they has right to grow up in a safe and supportive family. But, it will not happen to them.
Q95: Do you think the authorities of that country(s) can and will protect you if you go back?
ANo. The authorities will not give protection to ordinary people like me. The police says, I have to pay the debts first and then the police will take action to the creditors if they still harm us. Usually, if the case involves a death, only then the authorities will take action against my report. Besides authorities, non-governmental organization (NGO) have also offered to help anyone in need protection but it is only in the begining and temporary. Authorities will not entertain cases does not give benefit them. Moreover, I’m unemployed and have no money to bribe them.
Q96: Do you think you will be able to relocate within that county(s)?
ANo. I cannot be relocate in Malaysia because I worry that creditors can trace me like before. Creditors will ask my neighbors and will keep disturb them if they do not provide the information. If the creditors know my new address, they will harm my family again. Besides, I already sold my car and belongings to cover cost came to Australia. Furthermore, I still can’t work because does not have a study certificate. In addition, I do not have any savings account to find a new home and rebuild life in Malaysia.
Mrs [B]’s claims were contained in her 866 form (Df 49-51), stated as follows:
Q88: I am seeking protection in Australia, so that I do not have to return to:
A: Malaysia
Q89: Why did you leave that country?
AI leave Malaysia because I want get a protection for my family in Australia. It’s due to I cannot pay the debts that I borrow for my previous business from my parent, siblings, relatives and friends. Since then, the creditors threatened my family to kidnapped me and my kids for human trafficking. My family faced mental abused, emotional abused and physical abused. The creditors also keep harm our neighbors. Beside that, we also get rejection from my family because of the debt. After bankrupt, the situation become worsed because my husband still unemployed. In Malaysia, we must have study certificate to be employed. But my husband certificate had been burnt by his parent. Besides, I try to set up [a] business but I been sued by district council because do not have [business] license. It cost me too much for apply the license and provide a proper stall on that time. End up, we had sold our car and personal belongings to survive for several month and finance the cost travel to Australia.
Q90: What do you think will happen to you if you return to that country(s)?
AIf I return to Malaysia, I will live in fear with my family because the creditors will keep come to my home and harm my family. They will repeatedly intimidate my family to kidnap them for human trafficking. The creditors might become aggressive when they come to my house. They will bring weapon along them and make some noise in my neighborhood. I will face trauma because see my husband been beating and slapping. My child will become trauma to adult and mentally abuse because they been forced to face hard situation. Besides that, I also have anxiety disorder due to kids health concern. My kids will grow in negative environment and its not good for their growth. In addition, I will not get any protection from the Malaysia authority and my parent. Moreover, my husband already sold all personal belongings and car for come to Australia. So we have nothing left in Malaysia. Besides that, my husband cannot pay the debt because still unemployed and concern for my family safety that only stay at home.
Q91: Did you experience harm in that country(s)?
AYes. The creditors harmed my family because of I not able pay back the debt according the time frame that they give. This happened due to my husband don’t have permenant job until employed. They threat to kidnap my child for human trafficking. They intimidated to sell my child organ or make my child as forced labor. My child had mental abuse so that they are afraid and trauma to adults. Me suffered anxiety disorder due to creditors also intimidated I to make me as sexual slavery. Besides that, the creditors was beat my husband in front of my child in several time. They bring along weapon to scared us. They will yelling and make some noise to ensured my neighbour know our situation. We only stayed at home for almost 2 week long because shamed with neighbors.
Q92: Did you seek help within the country(s) after the harm?
AYes. I have made statements to the police and the human rights commission of Malaysia after the creditors often come to my house. This is because I want to get protection from the authorities since my family have rejected me. But the police asked me to settle down the debts first because they say this is my personal problem. If I want the police conduct an investigation into my case, I have to repeatedly go to the police station. Some of them asked for a bribe from me. But then, I do not have money. In addition, they only observe cases if have insider contacts.
Q93: Did you move or try to move to another part of that country(s) to seek safety?
AYes. We moved from [Town 1] Selangor to [Town 2] Johor to get protection for my family. We moved at the late night to ensured the creditors will not follow us and know my new address. But they still can trace us where we are moved. They get the information from our old neighbors. My neighbors inform that the creditors will harm them if they not give the information. The creditors knock the door loudly and make some noise to intimidate my old neighbors.
Q94: Do you think you will be harmed or mistreated if you return to that country(s)?
AYes. If I return to Malaysian, Im worry the same thing happen to my family. The creditors keep come to our home to collect the debts and harm my family. They keep threat my family to kidnap for human trafficking. They also yelling to me to make me as sexual slavery and my son for forced labor or sell the organ. My family will mentally abuse because trauma face the difficult situation. Thus, it will make me depress and anxiety disorders due to kids health concern. My child will have eating disorder. In addition, my husband also seek the physical abuse from creditors. They will beating and slapping my husband in front of us. Hence my family will have poor mental health. My child being fear to adults. Supposedly, they has right to grow up in a safe and supportive family. But, it will not happen to them.
Q95:Do you think the authorities of that country(s) can and will protect you if you go back?
ANo. The authorities will not give protection to ordinary people like me. The police says, I have to pay the debts first and then the police will take action to the creditors if they still harm us. Usually, if the case involves a death, only then the authorities will take action against my report. Besides authorities, non-governmental organization (NGO) have also offered to help anyone in need protection but it is only in the begining and temporary. Authorities will not entertain cases does not give benefit them. Moreover, I’m unemployed and have no money to bribe them.
Q96: Do you think you will be able to relocate within that county(s)?
ANo. I cannot be relocate in Malaysia because I worry that creditors can trace me like before. Creditors will ask my neighbors and will keep disturb them if they do not provide the information. If the creditors know my new address, they will harm my family again. Besides, I already sold my car and belongings to cover cost came to Australia. Furthermore, I still can’t work because does not have a study certificate. In addition, I do not have any savings account to find a new home and rebuild life in Malaysia.
Submissions prior to hearing on 12 February 2020
On 9 February 2020 the applicants provided further information in respect to their claims in a document entitled “statutory declaration” together with:
-A photo showing the applicants together, including photos showing the applicants participating in [Business 1] activities.
-Copies of identification documents for the applicants.
-A marriage certificate and birth certificates.
-A letter from [School] dated 5 February 2020 about Mr [C] being enrolled in school.
-A letter from [school] dated 5 February 2020 about Miss [D].
-A letter dated 6 September 2018 from [an organisation] about Miss [D].
-A letter dated 31 January 2019 from [a] Paediatric Consultant at [a] Children’s Hospital about Miss [D].
-A letter dated 22 March 2019 from [a clinic] about Miss [D].
-A copy of a contractor agreement dated 18 November 2019 for Mr [A] ([Company 1]).
-A copy of a certificate of registration for the company [Company 1] Pty Ltd dated [October] 2019.
-A copy of a “statement of attainment” for Mrs [B] dated 22 May 2018.
-A copy of a lease for the applicants dated 7 January 2020.
The “statutory declaration” document that is not signed or witnessed states:
I am [A] (applicant 1) and my wife [B] (applicant 2, use we) with my two children [C] and [D], address [deleted], make the following declaration under the Statutory Declaration Act 1959:
Background:
1. We make the following statutory declaration in support of our application for review of the decision to refuse our Protection Visa. We are Malaysian and we fled to Australia to seek safety, as we received threats from the loan sharks (Ah Long). We were under pressure and facing a lots of abuse from them.
Arrival in Australia and Initial Protection Visa Application
2. We came to Australia because we were under threat from Ah Long, threatening our family's safety. This situation interrupts my children's growth. Our lives were very difficult as I’m jobless, thus we couldn't afford to pay the debt on schedule.
3. When we applied the Protection visa application, we asked for help from our friends and did a lot of research through the website. But, there are some things in the application that are incomplete and not detailed.
4. We are not interviewed by the Department of Home Affairs about my claims, so we never had a chance to explain the real reasons why we need protection in Australia.
Family and background
I was born in Johor, Malaysia. I was raised by both my parents together with [other] [siblings]. My father is [retired] [and] my mom doesn't work. Me and my wife got married in May 2013. My wife also was born in Johor, Malaysia. She is the second born in [number of] siblings. My father-in-law is a retired pensioner and my mother-in-law didn't work. Both of us grew up in a normal simple family. All my family members are still alive.
We were trapped by the Ah Long syndicate starting after our [Business 1] suffered losses and bankrupts. We were introduced to [Business 1] by a friend of my wife at the end of year 2011. [Business 1] is a multi-level marketing (MLM) [company].
At the beginning of my involvement in [Business 1], I still have a job while my wife was furthering her study. But we were being clouded, deceived by the sweet talks as we were hoping to clear off all of our study loan debt in one go. We were hoping of living a life free of regular job stresses and pressures when we made a shallow decision to focus on [Business 1]. I used all of my savings and some moneys from my mother-in-law as the capital for the business.
In early stages, the business seems very good. But then, as we regularly attend seminars which were held within and outside country with our own expenses, our financial resources are declining. In the same time, our business was getting less and less customers, so we had succumb into borrowing money from our siblings, parents and friends. This situation keep getting worst and the burden keep increasing. Due to these financial problems, we keep lagged off for our monthly home and car rental payments.
A friend of ours gave suggestion to borrow money from Ah Long to fix our financial problems. We were initially skeptical of the proposal because we knew it was highly risky. However, we had no alternative and were desperate. One day, as I was driving a car, I saw an Ah Long money lender advertisement placed under a bridge. I picked up one of the advertised phone number, [Mr E]. I contacted [Mr E] to ask about the details for his money-lending. [Mr E] straightly asked for our home address, which then in [Town 1]. We didn't expect [Mr E] to directly come to our house as soon as that. We discussed about the details of how to request a loan and interest rate charged. We decided to borrow RM[amount] and agreed on a 5% interest rate where we would have to pay back a total of RM[amount]. The incident took place around March 2014. The process was extremely smooth as [Mr E] just gave the loan on next day, without asking for many documents. [Mr E] just took a photocopy of my identity card and a photocopy of my bank card. I gave permission for [Mr E] to keep the photocopy of the documents without a doubt. He gave the cash in front of our house.
Half of the received money, we used to pay the overdue car and home loans. During this time,we were still struggling with [Business 1] as it is our only income resources. We honestly believed in [Business 1]'s sweet talks that our lives will change with them. We put our trust with all the shines promised during every [Business 1]’s seminars.
We were given 21 months to repay [Mr E] and agreed to pay an amount of RM[amount] monthly as per contract. We've made payments twice. All transactions were made by cash in hand as [Mr E] would come to our house to collect the payment. Unfortunately, what we feared happened. [Mr E] suddenly changed the time for payment collection to twice per month as every two weeks.
This changes make us unable to pay up as [Mr E] wanted, as on the next two weeks. In addition, we can no longer afford to pay our home monthly rent and survive the expensive cost of living in city. We decided to try our luck by continue our business in my wife's hometown in Johor, at the same time trying to escape [Mr E] clutches.
We managed to escape to the village during nighttime. Only our neighbour knew where we were moving, and we asked her to keep this as a secret. Unfortunately, within a month [Mr E] was able to track us down. He harassed and threatened our poor neighbour. [Mr E] was extremely angry as we did not follow the agreement he had set. We apologised and explained the truth, and asking for an additional 6 months for repayment. Initially, [Mr E] disagreed but we kept begging because we just started our living in the village. [Mr E] finally agreed to our request, but he increased the interest rate to 15%!! The new repayment amount has totalled to RM[amount]. We have no other choices and had to agree with [Mr E]'s decision.
We continued our [Business 1] despite the disappointing results. At the same time, we were trying to find additional income by selling [products]. Without my education certificate, it was hard to get hired at that time. Our incomes barely enough to pay car loan, [Mr E]’s payment and basic necessities for my family. We had to rely on others for the rest of our expenses.
We started to stabilise our financial with our [business] but, then next test hit as we were sued by the Council officer for running an unlicensed business. We do not have a business license because we cannot afford to pay all the costs to get licensed while the business license application process was not as easy as it might seem.
However, we are still trying to fulfil the payment for [Mr E]. But, we only manage to pay for four months. This made [Mr E] extremely angry. Since then, [Mr E] and his friends kept harassing us. He kept calling angrily and it escalated to physically assaulting me by hitting and punching me whenever they collecting payments around my in-law house’s area. They also bringing weapon, making us scared things would get worse. My wife was also threatened, to be sold as prostitute to settle our debt. Not enough with that, [Mr E] also threatened to kidnap our son for trading in [Country 1]. During this time, child abduction as organ trafficking and forced labor was famous issue in our country. This causes our child traumatised and he showed signs of scared towards adults. [Mr E] threatened our nearby neighbours when they tried to help when they heard our quarrels. He also acted to threaten their safety. This incident has happened twice. The situation become worse as some of the family members started to look down on us and refused to help us.
We tried to make police report regarding the incident, but issue rise up. The police officer responsible for receiving report during that time refused to statement for police report as he asked for compensation for him taking our report, he asking us to bribe him. He also advised us to settle the case on our own if we can't pay out, it would be must easier for all of us he said. We suspected [Mr E] already have his hand in this matter, as bribing the officers in the area they operated and making it's hard for their victims to go through officials for help. This make us really disappointed, we end up didn't make any police report as it might escalate our case toward worst issue. We were heading to dead end as the ones that we trusted to help us and protecting us actually abandoned us in our need time.
After considering all the aspects and information, we have planned to flee to any country to be free from [Mr E]’s clutches. This is due to us no longer feel safe within Malaysia. We began to research which country we would choose to escape from [Mr E].
We decided to go to Australia on a tourist visa. We know that this tourist visa only lasts for three months, and we are not allowed to work or stay in Australia for longer period. But, we had no other choice at that time to ensure our family's safety. We believe the Australian government is very concerned and will be able to help us. This is due to the lovely and sympathetic act shown by Australian towards women and children.
We received Visa Protection information from ours friend when we arrived in Australia. Then, we did a research on the Home Affairs website for more information on Visa Protection. When we filled out the Protection Visa application, we realised that we were lacking information about our situation and had no written material to provide evidence for Members. But we're still doing our best to get Visa Protection for the sake of our children.
Fear on return to Malaysia
We believed that if we were to return to Malaysia, our family would still be in danger and threatened. Ah Long can take any action beyond reasonable expectation and I believe that the long-standing syndicate of them is very broad and active as they easily succeed in following us. There is nothing left in Malaysia for us as we want to build a new life in Australia, forgetting the bitter memories in Malaysia. We already sold all of our assets to cover the expenses our trip to Australia.
Furthermore, if we were to return to Malaysia, our children would also have to face harsh changing situation where they have been living in Australia since 2016 until now. They grew up in a very positive and safe environment alongside with the good moral support from teachers and the surrounding community. We as parents are very confident that we cannot provide enough for our daughter who needs special treatment and education for her hearing problems. In addition, we cannot afford the cost of special equipment and the high cost of treatment are. Whatever the case may be, we will make every effort to secure and stay in Australia as much as possible.
Hearing on 12 February 2020
At the hearing, the applicants provided the following documents:
-Documentation about the applicants’ loans in Malaysia, noting that the documentation was not in respect to the ah long loans.
-Documentation in respect to the counselling for anxiety that had been done for the applicants’ son, Mr [C].
Both Mr [A] and Mrs [B] indicated that the claims that Mr [A] made in his protection application were the same as Mrs [B]’s claims and were no different in any respect.
Mr [A] indicated that he had prepared the protection application (form 866) and that he had signed the declaration that the information he had provided was complete, correct and up to date in every detail.
Mr [A] gave an account of his background. He was born [in] Johor, Malaysia. He is of Malay ethnicity and he is a Muslim. He grew up in [Pahang], Malaysia. He has [slibings]. He completed primary and secondary school in Pahang. He completed a [qualification] in Pahang in 2010. From 2010 to 2011 he worked but he ultimately did not get a job consistent with his [training]. Then from 2011 to 2016 he worked for [Business 1] selling [Business 1] products. He met his wife, Mrs [B], in 2009 and they got married [in] May 2013. He started the business in 2011, and he was introduced to the business through his wife’s friend. His wife, Mrs [B], came into the [Business 1] with him after she finished her studies.
Mr [A] explained that he did [Business 1] for five years, but in the end things did not go well. He said that in the beginning the business promised a lot of returns and a bright future, but because he and his wife had to go for training and seminars, the costs became a very heavy burden on them. He said he and his wife had to pay for all costs of training, seminars, flights and even the meals.
Mr [A] explained that he was aware that [Business 1] was a “multi-level marketing scheme” but that when they went to the training, the [Business 1] representatives convinced them that they could make a success of the business. He explained that at the time they were young and when they entered the business they had their own study debts. He explained that, in order to get out of debt, he and his wife joined [Business 1] to try to find a way to pay back the debt they owed. He said he and his wife realised that the debt they owed every year became more and more.
Mr [A] explained that when the [Business 1] had problems, and there was not enough money, he struggled to pay for the house and the car, and neither he nor his wife could afford to pay back their study loans. He said the [Business 1] was going downwards, and he was looking to find a way through his problems. He said that one of his friends suggested that he borrow money from an ah long. He said that, at that time, he and his wife were frightened because they heard that ah longs were dangerous, but that because they were under such financial pressure, and his wife was going to have a child, they decided to get the loan from the ah long.
Mr [A] explained that he borrowed the money from an ah long named “[Mr E]” in March 2014. He explained that [Mr E] brought the money to their house. He said he borrowed [amount] ringgit at 5% interest. He was required to pay instalments of $[amount] every month. He managed to pay two instalments – in April 2014. He said that in June 2014, [Mr E] came and told them that they now had to pay every fortnight. He said that he and his wife felt very pressured in this situation. He explained that the [Business 1] was “not that good” and that now he was being forced to pay fortnightly, but that he could not afford to make the fortnightly payments because the $[amount] per month payment was already a big burden on both himself and his wife.
Mr [A] explained that, in June 2014, he and his wife realised they had no way of paying every fortnight, and so they made the decision to run away. He said they decided to run away to Johor to his mother-in-law’s house. However, in July 2014, [Mr E] found them.
Mr [A] explained that he was surprised that [Mr E] had found them so quickly. Mr [A] explained that [Mr E] was very angry, and he tried to explain to [Mr E] that he could not afford to pay. Mr [A] explained that, after much negotiation, [Mr E] agreed to defer any further payments until 2015 on the condition that the interest rate was increased from 5% to 15%.
Mr [A] explained that, in the meantime, he and his wife started doing a small [business]. He explained that he managed to make four payments in 2015, in January, February, March and April of 2015. However, he explained that his [business] had a problem because he was operating the business without a permit, and then the pressure of paying [Mr E] came back. He explained that when he could not pay [Mr E], [Mr E] started threatening them.
Mr [A] explained that he and his wife went from [Town 1] to [Town 2], but that [Mr E] then came to his house and beat him up. He explained that at that time his wife and eldest child were in the house, and that his wife was also pregnant with his second child. He said that he could not remember the exact dates he was beaten, but that he was beaten on two occasions between May 2015 and September 2015.
Mr [A] explained that he did not go to the police after the first beating but he did go to the police after the second beating. However, the police told him it was a personal issue, and there was no case because there was no receipt to prove he got a loan from an ah long. He then said the police told him he could make a report but that he would need to pay them money. He said he did not go to the hospital and get medical treatment either of the times he was beaten because he was very ashamed of his financial situation. He indicated that there were no further assaults, and then he and his family left Malaysia in September 2016 to come to Australia.
Mr [A] then said he wanted to add to his claims. He indicated that he contacted his father and asked for help, and that he and his family went to a [Location 1] in a hidden location in early 2016 until they left Malaysia to come to Australia. The Tribunal put to the applicant that this new information was not mentioned in either his written protection claims to the Department (form 866) or in the further written submissions he had provided prior to the hearing, and he agreed that he had not previously claimed that he and his family went to a [Location 1] in a hidden location until they left Malaysia to come to Australia. He explained that he did not previously mention this aspect of his claim because he did not have the address and nobody knew of the existence of the house.
When the Tribunal asked the applicant when he went to the [Location 1], he indicated that he and his family went to the [Location 1] in early 2016, and they stayed there until September 2016.
Mr [A] then said that he had tried his best so that his wife and child would not be in danger. He indicated that after he and his family came to Australia, his son was afraid of strangers. He spoke about his daughter’s hearing problems. He expressed his concern about how he was going to support his family given his failed business.
The Tribunal then adjourned the hearing to allow the applicants to have a break.
When the hearing resumed, Mrs [B] indicated that everything her husband had said was accurate and the truth. She further indicated that, as reflected in the written claims, [Mr E] threatened to make her into a prostitute and to kidnap her child and sell her child’s organs in [Country 1].
The Tribunal then spoke to the witness, Mr [F]. Mr [F] confirmed that he was not a witness to any of the events that occurred in Malaysia and that he was assisting the applicants with their protection claim. Mr [F] said he was not a migration agent, and was just assisting them. Mr [F] said he used to live in Malaysia, he understands what the applicants went through, and it is a real situation. Mr [F] gave no further evidence.
The Tribunal then spoke to Mr [A] and put to him concerns about his new claims in respect to his stay at a [Location 1] in 2016. The Tribunal referred to s.423A of the Act as follows:
423A How Tribunal is to deal with new claims or evidence
(1)This section applies if, in relation to an application for review of an RRT reviewable decision (the primary decision) in relation to a protection visa, the applicant:
(a)raises a claim that was not raised in the application before the primary decision was made; or
(b)presents evidence in the application that was not presented in the application before the primary decision was made.
(2)In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
The Tribunal indicated to Mr [A] that the claim he made in respect to the [Location 1] was not raised in his written application to the Department (form 866) or in the written submissions he had made to the Tribunal prior to the hearing. In addition, the Tribunal indicated to Mr [A] that in his written application to the Department (form 866) he had stated that he lived in [Johor] from July 2014 to September 2016, before he came to Australia, and not in any [Location 1] for any part of 2016. The Tribunal indicated to Mr [A] that, subject to his response, that the information he had provided to the Tribunal may have been inconsistent with the information in his protection application and the Tribunal may find that the applicant did not give credible evidence on this issue.
In response, Mr [A] said that he did not have an address and the [Location 1] was very hidden and very remote. He said he was sure nobody would believe what actually happened and he forgot to put it in the application. He said he did not realise that the information he put in his written protection application would cause a big effect.
The Tribunal then discussed Mr [A]’s written claims in his form 866 application, where he said that “I must have study certificate to be employed.” The Tribunal asked Mr [A] what he meant by this. He indicated in response that his family burned his certificates. The Tribunal put to him that he could get replacement certificates from the course providers, as he had a [qualification] and his wife held [a] qualification. In response, he said it was not as easy as that.
The Tribunal referred to the references in his written application about his family’s poor mental health. When asked to explain further, Mr [A] indicated that it was his son who had been having problems at school, and that when he went to school he started crying. He explained that his son was afraid of the teacher, but that the teacher referred his son to a welfare coordinator who organised for a psychologist to come to the school. Mr [A] indicated that the psychologist helped his son.
The Tribunal put to Mr [A] that no mental health report had been provided to the Tribunal, and in response he admitted that he did not have a report.
The Tribunal referred to the DFAT country information report for Malaysia (23 December 2019) and noted that the country information suggested that their son could get mental health support in Malaysia. In response, Mr [A] indicated that in Malaysia there would be issues when seeking mental health services. Mr [A] indicated that in Australia, doctors do things better than in Malaysia, and in particular that in Australia doctors stick to appointment times but in Malaysia the patient will always have to wait to see the doctor.
The Tribunal then spoke with Mr [A] and Mrs [B] about their daughter who has a hearing impediment. The Tribunal indicated to Mr [A] and Mrs [B] that the Tribunal had done some research into the information available about support services available in Malaysia for people, including children, with hearing impediments. The applicants indicated that they were in Australia when they found out that their daughter had hearing problems. They found out when their daughter was [age] year old. When they brought her to play group, the teacher identified to them that there could be an issue. They got their daughter’s hearing checked in 2018. Their daughter now has a hearing aid. They have friends in Malaysia who have children with hearing problems, but it is more costly in Malaysia to get the necessary assistance. Their daughter has been learning AUSLAN, but if she went back to Malaysia she would have to learn something else (the Malaysian equivalent of AUSLAN).
The Tribunal then spoke with the applicants about the country information from the DFAT report for Malaysia dated 13 December 2019, in particular in respect to the Royal Malaysia Police (RMP). The Tribunal spoke about the media reports about RMP actions to deal with ah longs in Malaysia. The Tribunal put to the applicants that the country information suggested that the applicants would receive assistance from the RMP in respect to any danger or threat from ah longs. The Tribunal also put to the applicants that it appears that they stayed in Malaysia for about one year after the assaults, indicating that they do not have a genuine fear of harm.
In response, Mr [A] indicated that the reason why they were not attacked or persecuted was because they were in a secretive place (the [Location 1]) and they were safe there.
The Tribunal again put to Mr [A] the Tribunal’s concerns as to his credibility where in his written protection application (form 866) he wrote that he and his family lived in [Town 2], Johor, from July 2014 to September 2016, and in September 2016 he and his family came to Australia.
In response, Mr [A] said he really regretted not including this information (about living in the [Location 1]) in his original claims. He explained that he did not mention the claim about living in the [Location 1] because the [Location 1] did not have an address.
Mrs [B] expressed concern that the amount of money they would now owe the ah long would be much higher, noting that the compounding interest would have made the overall debt much higher. She expressed her concern that they could not afford to pay the debt. She expressed concern that even given the lapse of time since they left Malaysia, the ah long would still want their money and might now also threaten her children.
Identity findings
The Tribunal finds that a) the applicants are Mr [A] born[date], Mrs [B] born [date], Mr [C] born [date] and Miss [D] born [date]; b) the applicants are citizens of Malaysia and Malaysia is their receiving country; c) the applicants do not have a right to enter and reside in any third country.
Findings
The Tribunal accepts that Mr [A] and Mrs [B] became involved with a [Business 1] in Malaysia but that the business did not, overall, make sufficient money. The Tribunal accepts that Mr [A] borrowed money from the ah long, [Mr E], and he could not afford to pay it back. However, the Tribunal does not accept that Mr [A]’s explanation was a reasonable explanation for his failure to include in his written protection application (form 866) the claim about his stay in the [Location 1] in 2016. The Tribunal finds that Mr [A]’s claim about staying in a [Location 1] in 2016 was not credible and was merely an embellishment.
Refugee criteria assessment—s.36(2)(a) of the Act
A refugee is a person who has, as defined in s.5J(1)(a), a well-founded fear of persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion”.
A person who has a well-founded fear of persecution for other reasons is not a refugee within the terms of the Act.
The applicants have not claimed to fear harm in Malaysia because of their race, religion, nationality, political opinion or as a member of a particular social group. There is no information before me to suggest the applicants will be targeted on their return to Malaysia for one or more of the reasons mentioned in s.5J(1)(a) of the Act.
The Tribunal is not satisfied that there is a real chance that, if the applicants were returned to Malaysia, they will be persecuted for one or more of the reasons mentioned in s.5J(1)(a) of the Act.
The Tribunal is not satisfied that the applicants are refugees as defined by s.5H(1) of the Act. Therefore, The Tribunal is also not satisfied the applicants are persons in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act.
Complementary protection criteria assessment—s.36(2)(aa) of the Act
In assessing this criterion, The Tribunal has considered the following country information as discussed with the applicants in the hearing.
The Tribunal discussed country information with the applicant, and referred to the relevant information from the DFAT report for Malaysia dated 13 December 2019 as follows:
Royal Malaysia Police (RMP)
5.5 The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is 80 – 85 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
5.6 According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police 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 RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.
5.7 External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission, which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts.
5.8 The then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department in July 2014 to enhance police integrity and image. It sits within the RMP. Suhakam also receives complaints against the RMP, and has investigated police behaviour. The government is not formally required to consider Suhakam’s reports or recommendations.
…..
Victims of Loan Sharks
3.108 Loan sharks or ‘pay-day-financers’(unlicensed lenders, referred to as ‘Ah Long’ by the Chinese Malaysian community, ‘Chettiar’ by the Indian Malaysian community, and ‘Ceti’ in Malay), carry out money lending activities without a licence, charging high interest rates to do so. Loan sharks operate very publicly in Malaysia and, while the practice is illegal, advertisements listing phone numbers and offers of cash loans for RM10,000 – RM20,000 (AUD3,100 – AUD6,200) appear on public property, including lamp posts and utility boxes. Loans typically carry an interest rate of about 30 to 40 per cent per month, and can be as high as 15 per cent per day. In-country sources advise that loan sharks in Malaysia do not seek protection money.
3.109 Sources report loan sharks are entering into ‘sell and purchase agreements’ in Sabah, whereby the borrower’s house is used as collateral for the loan. DFAT is aware of reports of houses valued up to RM 1 million (AUD 345,311) being used as collateral for a loan of RM100,000 (AUD34,500). If the borrower defaults on their loan, the loan shark exercises the sell and purchase agreement to transfer the house into their name. Sources report lawyers are facilitating the sell and purchase agreements, described as a house sale agreement disguised as a loan agreement, in return for a cut of the house sale profits. Sources claim borrowers agreeing to sign their house over as collateral are under significant duress, or lack sufficient education to understand the agreement they have signed.
3.110 DFAT is aware of a case of an individual in peninsular Malaysia who engaged a loan shark to obtain a loan to repay their mortgage, signing the house over as collateral under a ‘sell and purchase agreement,’ after becoming involved in gambling following the death of their spouse. 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. DFAT understands loans ranging from RM200,000 to RM300,000 (AUD69,385 to AUD104,077) accompanied by payment plans have been arranged by formal credit agencies to repay loan shark debts. However, not all debtors may be aware of the availability of such services.
3.111 Sources report that an individual who is unable to service a debt from a loan shark risks threats or actual physical violence, having their home splashed with red paint (culturally understood as a symbol that an individual has defaulted on a loan shark and brought shame to their family), and/or having their families’ 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 illegal/underground nature of loan shark activity, DFAT is not able to verify these claims. There is significant societal shame associated with not being able to repay a loan shark. Sources report many people see suicide as the only honourable way out of being unable to repay a loan shark debt. DFAT is aware that those in debt to loan sharks have been counselled by intermediaries to place their family in a safe location and travel overseas to earn a foreign income to repay their debt faster, and to reduce risks and shame to their family.
3.112 DFAT understands that authorities tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice. According to local media, the Commercial Crimes Investigation Department reported 3,903 cases and arrested 2,698 people in relation to loan scams between January and November 2018, with total case related losses estimated at RM36 million (approximately AUD12.4 million). Local media also reports loan sharks have become more publicly visible and more ‘corporate,’ and have increased promotion of their services on social media platforms such as Facebook and WeChat in 2019. In October 2019, media reported that the RMP planned to embark on a ‘major war’ against loan sharks, following reports that Ah Long syndicates are becoming more aggressive.
3.113 The MCA’s Public Services and Complaints Department (PSCD) plays an intermediary role between loan sharks and Chinese Malaysian victims of loan sharks who are unable to repay their loans, and reportedly receives an average of 500 to 600 complaints regarding loan sharks each year. According to local media, the MCA reported that 16 cases of people owing loan sharks over RM2.11 million (AUD745,000) had arisen in the first 19 days of January 2019 alone. Local media also reported that in 2018, the PSCD of the MCA received reports of 364 loan shark cases with total loan claims amounting to RM25 million (AUD8.81 million), and that 80 per cent of the loan shark borrowers were members of the Chinese Malaysian community who were involved in illegal online gambling. In 2015, the PSCD of the MCA also reported over 70 per cent of borrowers in 214 cases were Chinese Malaysian. Sources report the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the one per cent government rate.
3.114 The PSCD of the MCA held a press conference in July 2019 regarding the case of a 28-year-old woman who had enquired about a RM5,000 (AUD1,760) loan advertisement she had seen on Facebook. The woman had reportedly shared some personal information, including bank details, but had allegedly rejected the offer of a loan due to the high interest rate payable. Nonetheless, funds were banked into her account, and she was later threatened by loan sharks to either pay up or be forced into prostitution. The PSCD of the MCA also cited the case of a 91-year-old woman, who was reportedly threatened by loan sharks in relation to her estranged son’s failure to pay back money he allegedly owed.
3.115 The Malaysian Muslim Consumers Association (PPIM), which provides services predominantly for the Malay community, was also involved in over 10,000 cases involving loan sharks from 2012 to 2016, in which around 70 per cent of borrowers were Malay. The PPIM maintains a Malay language website (ahlong.ppim.org.my) where people can report loan shark cases and which lists details of prior cases. Sources provide vastly differing views on the reasons individuals engage illegal moneylenders. Some claim that up to 80 per cent of borrowers are supporting gambling activities and other debts. Others claim borrowers are public servants trying to cover daily expenses such as children’s education, or businesses excluded from mainstream finance due to insufficient documentation, bankruptcy or a poor credit history.
3.116 The Moneylenders Act (1951; amended 2003 and 2011) gives police considerable investigative powers against alleged loan sharks. Police can visit, enter, inspect or search premises without a warrant, and seize moveable properties and business documents to assist with investigations against alleged loan sharks. Individuals involved in illegal moneylending activities in Malaysia can be convicted under Section 5(2) of the Moneylenders Act, which carries a fine of between RM250,000 and RM1 million (AUD80,000 – AUD320,000) or, a jail term of up to five years, or both. Police have made several recent high profile arrests and investigations of syndicates. In September 2019, the RMP arrested 21 people in Johor allegedly involved in syndicates illegally loaning money. In January 2019, the RMP arrested 13 suspects allegedly involved in a syndicate providing fraudulent loan applications resulting in total bank losses of RM10.35 million (AUD3.65 million); district police also arrested 11 members of a nationwide syndicate that had fraudulently taken funds from borrowers totalling RM1.3 million (AUD458,161). In November 2018, RMP arrested 21 people allegedly involved in a loan scam syndicate.
3.117 Very limited research is available on loan sharks and the individuals that engage these services, possibly due to their links to gangs and corruption. DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, their likelihood of seeking police protection, or the level of protection offered by police. DFAT assesses those who are unable to service debts to loan sharks, and their family members, can face societal discrimination due to familial shame, and may also face a real or perceived risk of harassment and violence from loan sharks and/or gangsters. However, DFAT notes formal credit agencies are able to consolidate loan shark debts and provide payment plans, and therefore engaging such agencies is an option to mitigate against potential risks posed to those in debt.
The Tribunal notes recent press articles in respect to the current situation in Malaysia pertaining to the RMP’s actions against loan sharks and illegal money lenders (“ah longs”) in Malaysia.
On 22 October 2019, it was reported that the RMP was going to launch a crackdown on loan shark syndicates as part of an effort to curb loan-related scams:[1]
[1] New Straits Times, 22 October 2019, “We are coming for you next, IGP warns loan sharks”, accessed 18 November 2019.
KUALA LUMPUR: Police will launch a major crackdown on loan shark syndicates soon as part of an effort to curb loan-related scams.
In a Bernama report today, Inspector-General of Police Tan Sri Abdul Hamid Bador warned that those involved in such activities will be arrested and prosecuted.
“Not long from now.. we will launch a major operation on 'Ah Long' (loan sharks) syndicates. They will be detained and charged in court.
“They could face action under Anti-Money Laundering, Terrorism Financing and Proceeds of Unlawful Activities Act (AMLA). I will go after them with a multi-prong approach,” he told Bernama.
The move came following numerous reports of aggresive methods applied by loan sharks to secure payment from loan defaulters.
It was reported that some of them even pasted photographs of loan defaulters at residential areas in order to shame them.
On another matter, Abdul Hamid said the Criminal Investigations Department and Commercial Crimes Investigation Department were working on various methods and approaches to combat illegal gambling activities in Kuala Lumpur.
“There have been arrests every week and I have observed that there is greater resolve in the force to clean up KL of these (gambling) syndicates.
“There have also been drastic action taken against gangsterism in the capital,” he was quoted as saying.
On 14 October 2019, it was reported that a total of 305 complaints involving various types of misconduct allegedly committed by money lenders has been recorded by the Ministry of Housing and Local Government between January 1 and August 31 this year:[2]
KUALA LUMPUR (Oct 14): A total of 305 complaints involving various types of misconduct allegedly committed by moneylenders has been recorded by the Ministry of Housing and Local Government between Jan 1 and Aug 31 this year.
Minister Zuraida Kamaruddin said of the total, 17 cases involved imposing high-interest rates on borrowers.
“However, no complaint was recorded for harassing or intimidating borrowers, which is an offence under Section 29B (1) of the Moneylenders Act 1951,” she said in a written reply posted on Parliament website today.
Zuraida was replying to Pang Hok Liong (PH-Labis), who wanted to know the types of action taken by the government, as moneylending licences had been abused by loan sharks or ‘Ah Long’ as a public front to hide their illegal moneylending activities.
She said under the law, any moneylender found to have intimidated or used violence against borrowers could be fined between RM50,000 and RM250,000, or sent to jail for not more than three years, or both, if convicted.
“For the second or subsequent offence, the offender shall also be liable to whipping,” she said.
[2] The Edge Markets, 14 October 2019, “Ministry receives 305 complaints of moneylender misconduct”, , accessed 18 November 2019.
On 7 August 2019, it was reported that the RMP in Sarawak were on the lookout for a 19‑year‑old loan shark or “ah long” to facilitate investigation into an alleged harassment and threats made against a borrower:[3]
KUCHING: Sarawak police are on the lookout for a 19-year-old loan shark or "Ah Long" to facilitate investigation into an alleged harassment and threats made against a borrower.
State Commercial Crime Investigation Department chief Superintendent Mustafa Kamal Gani said a man in his 30s had lodged a police report after his house in Jalan Penrissen was splashed with red paint on July 5.
According to the victim, he was introduced to the moneylender, identified as Yap Qi Wei, through a friend and had borrowed RM1,200 from him in May.
"He was asked to sign an agreement to repay RM2,000 within 10 days. The deal was done in a car, parked by the roadside near Kuching International Airport.
"However, the victim claimed he was not given with a copy of the agreement," he said in a statement today.
"Not long after, the victim said the loan shark demanded that he paid RM4,000 instead and started a series of threats," he added.
Mustapha urged those with information of the matter to contact investigating officer Inspector Mohd Hisyam Mohd Shah at 016-4569169 or Inspector Hamizan Ismail at 016-4455695.
The case is being investigate under Section 5(2) of the Moneylenders Act 1951 and Section 29B(1) of the same Act.
[3] New Straits Times, 7 August 2019, “Sarawak cops looking for 19-year-old ‘Ah Long’” accessed 18 November 2019.
On 8 August 2019, it was reported that the RMP arrested alleged members of an unlicensed money lending syndicate following raids carried out on eight houses in the Sungai Petani vicinity:[4]
[4] Malay Mail, 13 May 2019, “Women, teens among 16 held for ‘Ah Long’ activities in Sungai Petani”, , accessed 18 November 2019.
ALOR SETAR, Aug 8 —Two women and teenagers were among 16 people arrested for being alleged members of an unlicensed money-lending (Ah Long) syndicate following raids carried out on eight houses in the Sungai Petani vicinity yesterday.
Head of the Kedah Commercial Crime Investigation Department (JSJK) Supt Annuar Amri Abd Muluf, said the operations was conducted together with a police team from the JSJK Operations and Technical Assistance Division in Bukit Aman at 8.30 am
“During the operations, police arrested 14 men and two women aged between 15 and 49, and seized eight vehicles and items used in the illegal money-lending scheme.
“Also seized were cash amounting to RM9,733 and SGUS$3,000 (RM9,079), 29 ATM cards, 16 cheques, 17 notebooks with details of the borrowers, six plastic containers of red paint and three samurai swords,” he said in a statement, today.
Annuar Amri said investigations found that the syndicate had been offering the unlicensed loans in Kedah, Perak, Penang and Perlis over the last two years, targeting government employees, private sector employees, small traders, retailers and factory workers.
He said the syndicate advertised their services through social media sites such as Facebook and the WeChat application as well as through banners and brochures.
He added that the syndicate also imposed conditions that must be met before the loan is given and imposed a 10-to-15 per cent interest depending on the loan, and offered a weekly or monthly repayment.
“Usually the loans are between RM1,000 to RM50,000 and if the borrower failed to settle the payment within the stipulated period, the syndicate would resort to violence such as threatening notes, using abusive words and splashing paint,” he said.
He added that all the suspects had no previous criminal records and would be remanded for four days from today under Section 5 (2), Section 29 (A) (1), Section 29B of the Unlicensed Moneylenders Act 1951.
Under Section 5 (2), those convicted can be fined up to RM250,000 and not more than RM1 million or a jail term of up to five years or both.
Section 29 A (1) provides for a fine of up to RM20,000 or imprisonment for two years or both, while Section 29B of the Act provides for a maximum fine of RM250,000 or a jail sentence of not more than three years or both. — Bernama
On 16 July 2019, it was reported that a lawyer had been charged at the Sessions Court with running a money lending business without a license:[5]
[5] New Straits Times, 16 July 2019, “Lawyer charged with illegal money lending activities”, , accessed 18 November 2019.
KLANG: A lawyer was charged at the Sessions Court today with running money lending business without a license five years ago.
Pannirselvam Mannar, 48, pleaded not guilty when the charge, under Section 5(2) of the Moneylenders Act 1951, was read out to him before Judge Razali Ariffin.
Pannirselvam was accused of committing the offence from May 15, 2014, to Nov 6, 2015, at a premises in Jalan Besar, Pekan Kapar by illegally lending RM6,193,160 to an individual.
The charge carries a fine of between RM250,000 and RM1 million, a five-year jail term, or both.
Deputy public prosecutor Alison Chan May Kam did not offer bail.
“However, if the court allows bail, I propose it to be set at RM300,000 with the condition that the accused surrenders his international passport to the court and reports to the nearest police station twice a month,” she said.
Pannirselvam’s counsel, K. Nathiya, pleaded for a lower bail of RM5,000 as his client, who has a wife and four schoolgoing children, was the sole breadwinner for his family.
“My client was called by the police at 3pm yesterday and he was present to assist in investigations. He met with the investigating officer and he was sent to the lock-up to face the charge today,” said Nathiya.
Razali fixed bail at RM100,000 in one surety and ordered Pannirselvam’s passport to be surrendered to the court. The judge has set Sept 4 for submission of documents.
On 3 June 2019, it was reported that the RMP had charged a 17-year-old boy and his friend with illegal money lending and threatening the borrower:[6]
TAIPING, June 3 — A 17-year old boy and his friend were charged in the Magistrate’s Court here today with illegal money lending and threatening the borrower, last month.
The juvenile together with a friend, K.Guruprasanth, 19 were charged with threatening T.Kaneshan, 36, who borrowed RM350 from them at about 3.15pm around Jalan Pokok Assam here on May 27.
Both were charged under Section 29 (B) of the Money Lenders Act 1951 and read together with Section 34 of the Penal Code which provides a maximum fine of RM250,000 or jail of up to three years or both.
No plea was recorded from the juvenile offender while Guruprasanth claimed trial when the charge was read out to him before Magistrate Mohd Hairol Jemain.
Mohd Hairol allowed the teenager bail at RM4,000 with one surety while Guruprasanth was granted bail at RM6,000 with one surety.
The court set July 24 for mention of the case.
Earlier, the juvenile and Guruprasanth were charged together with four others including another juvenile, in the same court for rioting at the same place, date and time.
Four of them pleaded guilty and were fined RM2,000 each while the court granted the two juveniles RM1,000 bail with one surety each and fixed July 24 for mention. — Bernama
[6] Malay Mail, 3 June 2019, “Juvenile among two charged with illegal money lending activities”, , accessed 18 November 2019.
On 31 July 2019, it was reported that the RMP arrested a licensed money lender who allegedly roughed up his customers.[7]
[7] The Star Online, 31 July 2019, “Cops arrest licensed moneylender who allegedly roughs up his customers”, , accessed 18 November 2019.
Findings
The country information set out above indicates to the Tribunal that the Malaysian authorities – including the RMP – are reasonably effective in taking action to deal with ah longs. While there is some corruption within the system, there is nothing before the Tribunal to indicate that the Malaysian authorities would be unable or unwilling to protect the applicants in their particular circumstances. The Tribunal acknowledges the applicants’ concerns that they may not get help from the RMP. However, the Tribunal places greater weight on the country information as detailed above and finds that the legislative mechanisms and processes as described above are available in Malaysia to the applicants should they return to Malaysia in the foreseeable future.
Accordingly the Tribunal finds on the information before the Tribunal that the applicants would reasonably receive effective assistance from the RMP in Malaysia against any potential threats of harm from any ah longs, including [Mr E], if they returned to Malaysia in the foreseeable future.
Support services to deaf children in Malaysia
The Tribunal has referred to the situation in regard to the applicants’’ daughter, and referred to the relevant information from the DFAT report for Malaysia dated 23 December 2019 as follows:
2.26 A wide range of complex environmental issues also affects the health of Malaysians, including air and water pollution and activities related to extractive industries. Persons living with disabilities, especially children, are also often hidden, portrayed negatively, excluded from society, face daily stigma and discrimination, and are prevented from accessing their rights due to gaps in legislation.
However, the Tribunal has noted that there are safeguards for persons with disabilities, including deaf persons, in Malaysian legislation. The Tribunal notes the Persons with Disabilities Act 2008[8] that specifically refers to “Malaysia Sign Language” as the official sign language for the deaf in Malaysia. Part IV of the Persons with Disabilities Act 2008 specifically addresses the promotion and development of the quality of life and wellbeing of persons with disabilities in Malaysia, including access to education for deaf children and access to education and employment. For example, section 28 of that Act states:
Access to education
28. (1) Persons with disabilities shall not be excluded from the general education system on the basis of disabilities, and children with disabilities shall not be excluded from pre-school, primary, secondary and higher education, on equal basis with persons or children without disabilities, including vocational training and lifelong learning.
(2) The Government and private educational providers shall, in order to enable persons and children with disabilities to pursue education, provide reasonable accommodation suitable with the requirements of persons and children with disabilities in terms of, among others, infrastructure, equipment and teaching materials, teaching methods, curricula and other forms of support that meet the diverse needs of persons or children with disabilities.
(3) The Government and private educational providers shall take appropriate steps and measures to enable persons and children with disabilities to learn life and social development skills in order to facilitate their full and equal participation in education including the following:
(a) to facilitate the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring;
(b) to facilitate the learning of Malaysia Sign Language and the promotion of the linguistics identity of the deaf community; and
(c) to ensure that the education of persons, and in particular children, who are blind, deaf or deaf-blind is delivered in the most appropriate languages and modes and means of communication for the individual, and in environments which maximize academic and social development.
[8] >
Section 31(4) of the Persons with Disabilities Act 2008 Act states:
(4) Persons with disabilities shall be entitled on equal basis with persons without disabilities to recognition and support of their specific cultural and linguistic identity, including Malaysia Sign Language and deaf culture.
There are a number of associations in Malaysia in respect to support for deaf persons, including the Malaysian Association of Speech-Language and Hearing[9] that provides information about how to find audiologists and speech therapists in Malaysia. There is the Malaysia Federation of the Deaf that is a national organisation that provides help and services to the deaf throughout Malaysia.[10] There is the Malaysian government website that lists some of the schools for special needs children in Malaysia[11] including schools in Selangor which is where the applicants once lived.
[9] >
The Tribunal referred to an academic article entitled “Deaf Learners’ Experiences in Malaysian Schools: Access, Equality and Communication” published in 2018 that states:
This study demonstrates that the availability of advanced audiological technology has enabled an increasing number of deaf children to develop spoken language and participate in mainstream schools in Malaysia. The significance of this study is in highlighting the specific barriers faced by deaf children in achieving their educational potential. In exploring deaf children’s experiences of mainstream schools, this article raises more questions than it is able to answer, such as: what is the purpose of schooling and education for deaf children; what would an equal education system look like; and how can there be more flexibility in relation to communication methods and approaches in the education of deaf children? Meaningful communication, whether spoken, written and/or signed, is central to the equal participation of deaf learners in any type of educational setting. Our findings highlight the fact that there is little understanding of the importance of a good quality acoustic environment in Malaysian schools, including in specialist settings, and that educationalists do not have relevant training in, or responsibility for, the maintenance of assistive technology.
The study also illustrates the varied communication practices taking place in schools, and the dominance of Hand Code of Malay as part of a total communication approach, rather than the structured use of MSL. The fact that professionals are beginning to collaborate with each other to promote more equal participation for deaf children shows some potential for the development of inclusive practices.
In summary, this study represents the beginning of a longer term and more complex evaluation of educational environments in Malaysia. One possible way forward is for schools to monitor the many different dimensions of inclusion (social, curricular, organisational, linguistic and acoustic) and so evaluate the effectiveness of educational provision for deaf learners. An appreciation of the importance of developing a broad range of flexible support structures in accommodating individual differences between deaf children would also be helpful in developing more equal education practices (Archbold, 2015). Deaf learners’ and their families’ perspectives are, arguably, an essential part of developing more comprehensive and responsive approaches to deaf equality in educational settings, and this study represents an important step in this direction.
School stakeholders, including policy makers, will need help in understanding that it is not enough to simply ‘include’ deaf children in a classroom environment. To include deaf learners on an equal basis in all the dimensions of inclusion identified in this article will require inter-ministerial collaboration, as well as a step change in the awareness of professionals about disability and deaf equality in education in line with the CRPD.
The Tribunal notes that on 4 May 2018, The Star published an article with the title “Early diagnosis, intervention gives hearing impaired kids an equal shot.” [12] The article stated:
[12] Malay Mail, 3 June 2019, “Juvenile among two charged with illegal money lending activities”, , accessed 18 November 2019.
Rhianna Rashid wants nothing more than to be seen as “just an ordinary kid” who loves going to school and playing sports.
“Even though I need my cochlear implant to help me hear, I am an ordinary girl. I enjoy going to school and playing with my friends. I like to swim, read and play badminton. I also like to craft,” says the shy but precocious 11-year-old who is in Year 5 at SK Seksyen 2, Bandar Kinrara in Puchong, Selangor.
Rhianna was born with profound hearing loss in both ears, diagnosed when she was a-year-and-a-half. However, because her mother, Ruziyanti Mokhtar, is a speech and language therapist, intervention to help Rihanna hear started early.
Rhianna received her first cochlear implant when she was two and her second one at four, which along with years of speech and language therapy, has enabled the youngster to hear.
In fact, it’s hard to keep secrets from her, says her mum, because she “eavesdrops very well”.
One reason that Rhianna has adapted so well, says senior audiologist at the Sunway Medical Centre Saravanan Selanduray, is because her condition was diagnosed early.
“Early diagnosis is very important. For children, detecting and treating hearing loss early allows them develop their speech faster and better.
“The American Pediatric Association recommends a hearing diagnosis by the time a child is six months old. We are still not there yet in Malaysia where most children are diagnosed when they are about two years old.
“Research shows that if children are diagnosed before they turn one, their speech development will be on par with other hearing children. The later the diagnosis, the longer the delay in their speech and language understanding,” explains Saravanan.
Rhianna is enrolled in a national school where she has learnt to not only adapt, but thrive.
“She came out third in her recent exams,” says Ruziyanti, beaming with pride at her firstborn’s achievements.
Early diagnosis is key
Early detection is also crucial for adults with progressive hearing loss. Unfortunately, he says, most adults resist getting hearing aids, even though their lives have been impacted by their progressive deafness, because they fear how they will be perceived by society.
“Most adults put off getting diagnosed and treated. The most common question we get asked by adults is how visible hearing aids are. They are embarrassed and worry about how their family, friends and colleagues will view them. The thing is, in most cases, the people around them have long realised that a problem exists and when they finally get an aid, everyone is relieved,” says Saravanan.
For adults, delaying treatment can also lead to other medical and cognitive complications such as early onset of dementia, warns speech and language pathologist, Dr Basyariatul Fathi Othman.
“Local research conducted on a large group of the geriatric population compared adults with visual deficits with those with hearing deficits and the latter displayed other deficiencies as a result of their impairment such as early dementia, difficulties in learning new things and so on. Those with visual deficits had only visual deficiencies.
“The loss of hearing eats into your memory and everyday processes. The longer you wait, the worse it becomes because the brain forgets. Our ears do the listening but the processing of sounds is the job of our brain. If the ear shuts down, the brain stops getting stimulated and after some time, the brain gets used to this restive state and getting better becomes exponentially more difficult,” she explains.
A family affair
Even with the help of hearing aids and devices, a hearing impaired child will need the support of his family to cope and adjust.
“It takes a lot of hard work. A hearing aid or an implant is not a miracle cure. Your child doesn’t automatically hear like other hearing children just because they have on a device that can help them hear.
“Some parents send their children for therapy and expect us to do all the work. But it doesn’t work that way. You can’t drop them off and expect them to pick up speech and language after a 45-minute or hour-long session in therapy once a week. Parents need to do a lot of work with their children,” says Dr Basya.
When Suki Cheong’s son, Bryan, was diagnosed with moderate hearing loss at age two, she quit her job in advertising to be a full-time mum.
It’s been an arduous journey for Suki and her husband Bernard Ng, who spared no effort in helping Bryan, now 17, cope with his hearing issues.
“We worried about how he would cope? Would he be able to learn and grow up as normal, hearing children? Would he be bullied and teased in school? Would he be able to learn in school? What about when we were no longer around?” shares Cheong.
But, instead on dwelling on their fears, the couple went on a crusade to find out all they could about hearing impairment as well as research treatments that were available to him.
They fitted Bryan with a hearing aid when he was two. They also considered a cochlear implant but Bryan wasn’t keen and so they didn’t force it on him.
“I think he was afraid. We do tell him that because his condition is progressive, he may one day lose his hearing. But the decision is his. Maybe one day he will decide to do it,” says Bernard.
There are different degrees of hearing loss – the most common categories of hearing loss are mild, moderate, severe, and profound.
Bryan’s parents have fully supported him through his rehabilitation – from being active in his schooling to supporting him in his interests and passions outside school, which include sports, robotics and drawing.
Bryan’s younger sister Bernie, 14, has also attended his therapies, lending him support and learning how she can help him cope.
Bryan’s hearing impairment is now rated severe to profound.
Without his hearing aid, he can only hear if people talk “very loudly”. Even with his hearing aid, he cannot hear when people talk behind his back. He can read lips though, which he says may make him a good spy.
“Hearing loss is not easy. It’s hard for me to follow conversations and I have to ask my friends to repeat what they say sometimes. Some of them do but some are impatient and don’t,” shares Bryan.
With the support and encouragement of his parents though, Bryan has gained confidence and is doing well.
He came out fourth in the Federal Territory MSSM Golf Tournament in February and his robotic’s team at school won the “Innovative Solutions Award” at the Lego League Malaysia competitions recently.
Ruziyanti recalls how difficult it was getting Rhianna adjusted to her implant.
“Rhianna rejected the implants at first. She’d pull out the processor (tucked behind her ear) out and throw it. She’d scream and cry and we had to try all means to get her to wear it even enlisting the help of other people to help persuade her.
“I know it wasn’t easy for her. After all, she’d been used to silence all her life, and all of a sudden she had these sounds in her ears. The hard part was getting her to accept the implant. And, being a toddler, it was harder but she eventually got used to it. After that, it’s been smooth sailing,” shares Ruziyanti.
For Bernard and Suki, a large part of supporting Bryan is giving him the confidence to try new things.
“We have to build his confidence to face the world. We must also get rid of the stigma attached to hearing impairment. We never back away whenever people ask us about his hearing aids. Hopefully one day there will be an invention that can help hearing impaired children hear like normal children,” says Suki.
Findings
The Tribunal finds that the applicants’ daughter, Miss [D], would reasonably be able to access support services available in Malaysia to hearing impaired children. The Tribunal finds that there are legislative protections available to hearing impaired persons in Malaysia.
Mental health services
The Tribunal also finds that paragraph 2.25 of the DFAT report for Malaysia dated 13 December 2019 indicates that mental health services are available in Malaysia to the applicants’ son, Mr [C], or indeed to any of the applicants if they returned to Malaysia in the foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk the applicants will suffer significant harm as outlined in s.36(2)(aa) of the Act. Therefore, the applicants are not persons in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) of the Act.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
As the Tribunal is not satisfied the applicants are persons in respect of whom Australia has protection obligations, an assessment in relation to s.36(2C) has not been made.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Joseph Lindsay
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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