1706782 (Refugee)
[2017] AATA 2922
•10 November 2017
1706782 (Refugee) [2017] AATA 2922 (10 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1706782
COUNTRY OF REFERENCE: Malaysia
MEMBER:Susan Trotter
DATE:10 November 2017
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 10 November 2017 at 2:49pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Fear of being harmed by illegal moneylenders – loan shark – Debt – State Protection available
LEGISLATION
Migration Act 1958, ss 5AAA, 5I-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicant A v MIEA (1997) 190 CLR 225
BZADA v MIC and RRT [2013] FCA 1062
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Chen Shi Hai v MIMA (2000) 201 CLR 293
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Weheliye v MIMA [2001] FCA 1222
Yang v Carroll (1994) 852 F Supp 460
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2017 to refuse to grant the [applicant], a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] who claims to be a citizen of Malaysia applied for the visa [in] November 2016.
The delegate refused to grant the visa on the basis that they were not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations because he is not a refugee, as defined in the legislation. Further, the delegate was not satisfied that [the applicant] was a person in respect of whom Australia has other protection obligations as provided for in the legislation.
[The applicant] lodged an application for review of the delegate’s decision in relation to the Subclass 866 visa with the Tribunal on 1 April 2017.
[The applicant] appeared before the Tribunal by video conference on 31 August 2017 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Malay and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
Relevant legislative provisions are extracted in the attachment to this Statement of Decision and Reasons.
ISSUES
The issues arising from the relevant provisions that are required to be determined by the Tribunal are as follows:
(a)Is [the applicant] a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion?;
(b)Is [the applicant] a person in respect of whom Australia has protection obligations on complementary protection grounds?; or
(c)Is [the applicant] a member of the same family unit as a person in respect of whom Australia has protection obligations and that person holds a protection visa of the same class?
10. The Tribunal also notes that the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
11. Where an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
CREDIBILITY
12. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
13. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
14. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at 39:
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
15. However, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.” Nevertheless, as Burchett J counselled, in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5], it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
16. The Full Court of the Federal Court in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.” On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9). Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong. (Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed)). In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191] as follows:
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
MANDATORY CONSIDERATIONS
17. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
EVIDENCE AND CONSIDERATION OF CLAIMS
Background
18. [The applicant’s] visa application states that he was born in [Kuala] Lumpur, Malaysia. The visa application was lodged [in] November 2016 stating that [the applicant] was seeking protection in Australia so that he did not have to return to Malaysia.
19. Further information provided in [the applicant’s] application is as follows:
(a)He was born in [date]. He speaks, reads and writes Bahasa Melayu and English. His religion is Muslim and his ethnicity is Bahasa Melayu.
(b)He is not in contact with any relatives outside Australia.
(c)He entered Australia on a [temporary] visa [in] September 2016 on a passport issued in Malaysia [in] 2015 and expiring, pursuant to a [temporary] visa which was granted [in] August 2016 and was to cease [in] November 2016.
(d)He has no personal contacts in Australia.
(e)He was employed as [an occupation] in Malaysia from January 2010.
CLAIMS
20. [The applicant] sets out his claims for protection in his protection visa application form as follows:
Why did you leave that country(s)? Provide specific details?
“Due to economic problem in Malaysia im.facing a lots for my expenses. Im started get stuck [in] investment and caused I have to bear a lot of debts. I always follow by lander to resolve it and caused my life trouble”
What do you think will happen to you if you return to that country(s)?
“My life would be threatened, under risk and caused Underpressure to settle all debts“
Did you experience harm in that country(s)?
“No“
Did you seek help within the country(s) after the harm?
“No”
Give reasons for why you did not try to move to another part of the country(s)
(Left blank)
Did you move, or try to move, to another part of that country(s) to seek safety?
“No”
Give reasons for why you did not try to move to another part of the country(s)
(Left blank)
Do you think you will be harmed or mistreated if you return to that country(s)?
“Yes”
Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)
(Left blank)
Do you think the authorities of that country(s) can and will protect you, if you go back?
“Yes”
Give details as to which authorities you think would protect you
(Left blank)
Do you think you would be able to relocate within that country(s)?
“No”
Give details about why you are unable to relocate
“Im feel more secure here and fell safe”
(sic)
EVIDENCE
21. The Tribunal has before it a range of material, including, relevantly:
(a)[The applicant’s] protection visa application forms lodged [in] November 2016;
(b)[The applicant’s] identity documents being a certified copy of his passport;
(c)Country information as discussed at the hearing including the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Malaysia, published on 19 July 2016; and
(d)The delegate’s decision record dated [in] March 2017.
22. Additionally the Tribunal took into account [the applicant’s] evidence to the Tribunal which may be summarised as follows:
(a)[A number of] months before he came to Australia he was [attacked] by a loan shark. He could not stay at his place. He was in hiding somewhere else for [a number of] months before he has relatives there. He then went back to his place and someone had thrown [items] on his house and his car. He therefore thought it was too dangerous to stay there. He spoke to a friend and they recommended coming to Australia.
(b)He was born in Kuala Lumpur and has [several] [siblings]. [Some siblings] are still living in Malaysia. Prior to coming to Australia, he lived around 400 to 450 kilometres away from where his parents live. They all live in Kuala Lumpur state.
(c)The [time] he spent away from home was in Kedah, Sungai Petani, a different state around 400 to 450 kilometres away.
(d)He moved out of home when he was [at an age]. He was [of an occupation] for [Company 1]. He worked for them from the age of [age] to the age of [an older age].
(e)In Sungai Petani, he was staying with his friend’s family. They adopted him and took care of him. He did not work whilst he was with them. He was recovering. They used traditional medication to treat his wound.
(f)In early 2015, he joined [an] investment. At first the investment made a great profit but then they lost money so he borrowed about [amount] Malaysian ringgit from an illegal moneylender. Initially payments were being deducted from his bank every month but in August 2015 he did not have enough money in his account. The lender then doubled the repayments but he still did not pay.
(g)He stopped paying in July/August 2015 and was [attacked] in February 2016. They came to his office but told his work colleagues that he had quit but then [people] came on a [vehicle] when he was walking between his work and his home. They said he needed to pay his debt and one of them [attacked] him. They then drove off. Some people came and helped him and sent to the hospital and said he needed to stay there for two to three days. However, after about four days, he did not feel safe and called his parents and his friend. His friend told him to go his parents in his hometown and his parents would look after him.
(h)He did not call the police because he has a police record. He was charged in relation to [an offence] and was meant to report to the police for two years but he stopped reporting after a year and a half.
He did not put in his visa application that he had been charged in relation to [an offence] because he was afraid it would affect his application.
(j)He stated in his visa application form that the police would be able to protect him but he is concerned they will take his [name]. He thinks they will protect him from the moneylenders but he thinks they will charge him because he did not turn up for the last five months that he was meant [to].
(k)When he was in Sungai Petani for [a number of] months, he had no contact from either the moneylenders or the police. However he understands, from being told later, that the police did call his mother to ask where he was.
(l)When queried as to why he could not return to Sungai Petani, [the applicant] said that he did not get as good a job there as he could in Kuala Lumpur so he would not have enough money to pay the debt back. It is a small city. It would be harder there than in a big city like Kuala Lumpur that he is used to. Other than not being able to get a job earning as much as he could in Kuala Lumpur, the other reason that he could not relocate to Sungai Petani is because his speciality is [in a certain field] and there is no [Company 1] there. He has been working on [a] [workplace] in Australia. The Tribunal asked why he could not work in similar work in Sungai Petani as in Australia. [The applicant] responded that it is because he would not be paid enough. The Tribunal suggested to [the applicant] that wanting to be paid more in Australia than he could be paid in Malaysia is not a reason for being granted a protection visa. [The applicant] indicated that he understood that.
(m)He came to Australia because he has to settle up his debt. He thinks it might be still about [amount] ringgit. He has paid a lot back since he has been in Australia.
(n)If he does not get the protection visa in Australia, he will not go back to Kedah. He has paid a lot of the money off now and he thinks he would try and negotiate with the loan sharks. If the negotiations with the loan sharks failed, he would go to the police for protection even if they were to charge him in relation to his other issues.
ISSUES
Issue 1 – is [the applicant] a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion?
23. Pursuant to s.5H(1)(a) of the Act, 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 the protection of that country: 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).
24. The Tribunal finds that [the applicant] is a citizen of Malaysia based upon his passport and will assess his claims on that basis. The Tribunal also finds that [the applicant] is outside his country of nationality, Malaysia. Malaysia is therefore the receiving country for the purpose of assessing [the applicant’s] claims for protection.
25. There is no evidence before the Tribunal to suggest that [the applicant] has a right to enter and reside in any country other than his country of nationality, Malaysia. The Tribunal therefore finds that [the applicant] is not excluded from Australia’s protection obligations pursuant to section 36(3) of the Act.
26. [The applicant’s] evidence was that his fear of returning to Malaysia is because of fear of being harmed by illegal moneylenders to whom he owes money and from the police who might charge him in relation to a previous breach of failing to report.
27. [The applicant] showed the Tribunal the [evidence] from where he had been [attacked] by the moneylenders. Despite [the applicant] not providing these details in his written claims, the Tribunal is prepared to accept that he has been in harmed in the past by illegal moneylenders.
28. The Tribunal is satisfied that this past harm was serious harm for the purposes of s.5J(4)(b) of the Act and that there is real chance that [the applicant] might again be similarly harmed, for reason of [the applicant’s] membership of the particular social group of people who owe money to illegal moneylenders in Malaysia, if he returns to Malaysia.
29. Based upon [the applicant’s] evidence, the Tribunal is satisfied that if he returns to Malaysia, he is likely to try to renegotiate with the illegal moneylenders on the basis that he has now paid back a lot of the debt. Further, if the illegal moneylenders did not renegotiate with him and he feared harm from them, he would seek protection from the police regardless of the risk that they will charge him in relation to his other issues.
30. However, a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
31. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
32. There is no evidence before the Tribunal that the police have failed to act or would fail to act if requested to offer [the applicant] protection. [The applicant] thinks they would help him in relation to the moneylenders but is concerned that the police would then charge him in relation to previous criminal issues he has been involved with.
33. Notably the independent country information[1] is that Malaysia’s state protection system consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system and measures have been put in place to address illegal money lending. Further, it is clear that the Malaysian police and government, have been making a concerted effort, which has had considerable success, since at least 2013, to combat these issues. The country information and media reports indicate the government has taken this issue seriously and has committed extensive resources to do so. This is consistent with [the applicant’s] evidence that he thinks the police will assist him in relation to the moneylenders.
[1] See independent country information in Attachment 2 to these Reasons.
34. There is no evidence before the Tribunal that the police have failed to act or would fail to act if requested to offer [the applicant] protection and [the applicant] believes they would protect him from the moneylenders, albeit at the risk of following him up in relation to his outstanding criminal matters. Notably the independent country information is that Malaysia’s state protection system consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system and measures have been put in place to address illegal money lending. Further, it is clear that the Malaysian police and government have been making a concerted effort, which has had considerable success, since at least 2013, to combat these issues. The country information and media reports indicate the government has taken this issue seriously and has committed extensive resources to do so.
35. Having had regard to all of these matters, the Tribunal is satisfied that effective protection measures are available, namely that [the applicant] would be able to access protection from the Malaysian state, that protection is durable and that the Malaysian State is willing and able to offer such protection, and finds accordingly. It follows that pursuant to s.5J(2) of the Act, [the applicant] therefore does not have a well-founded fear of persecution.
36. As regards any harm that might be occasioned by the police because of [the applicant’s] breach of criminal laws in Malaysia, the Tribunal accepts [the applicant’s] evidence that he may be subject to punishment in relation to breach by him of criminal laws in Malaysia. Independent country information is that there are Federal criminal laws, such as the Malaysian Penal Code, which apply to every Malaysian citizen[2]. Then, for Muslims, there is a further set of criminal laws that only apply to them.
[2] It is well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention, for the reason that enforcement of such a law does not ordinarily constitute discrimination. (Applicant A v MIEA (1997) 190 CLR 225 (Applicant A v MIEA) per McHugh J at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467 and Chen Shi Hai v MIMA (2000) 201 CLR 293 at [20]. As Brennan CJ stated in Applicant A v MIEA:
“… the feared persecution must be discriminatory. … [It] must be “for reasons of” one of [the prescribed] categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.[3]”
[3] Applicant A v MIEA (1997) 190 CLR 225, at 233.
38. Consistently with Australian law, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook) states:
“56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim - or potential victim - of injustice, not a fugitive from justice.[4]
[4] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, re-issued 2011) (Handbook) at [56].
39. The Tribunal is required to consider whether the laws which [the applicant] says he may be subject applies to the entire population, and not a segment of the population.[5] The Tribunal is satisfied based on [the applicant’s] evidence that the laws he has apparently breached as criminal laws which apply to every Malaysia citizen.
[5] Weheliye v MIMA [2001] FCA 1222 (Goldberg J, 31 August 2001), at [51] and Chen Shi Hai v MIMA (2000) 201 CLR 293, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [19] to [21].
40. The Tribunal recognises that a law of general application is capable of being implemented or enforced in a discriminatory manner. However, there is no evidence to support such a proposition in [the applicant’s] case.
41. Having regard to all of these mattes, the Tribunal is satisfied that any harm that might be occasioned by the police in Malaysia towards [the applicant] because of his breach of criminal laws in Malaysia would be on account of the non-discriminatory application of a law of general application throughout Malaysia. That is, the criminal law applicable to all in Malaysia, and not for reason of race, religion, nationality, membership of a particular social group or political opinion and the Tribunal finds accordingly.
42. [The applicant] has not claimed to fear harm from any other source, and no other claims are apparent on the information before the Tribunal.
43. It follows that [the applicant] is not a refugee pursuant to section 5H(1) and that the requirements of s.36(2)(a) of the Act are not met.
Issue 2 – is [the applicant] a person in respect of whom Australia has protection obligations on complementary protection grounds?
44. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). In so doing, the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm, as it is defined in s.36(2A) and s.5(1).
45. As already canvassed, the Tribunal is satisfied that [the applicant] has been [attacked] by the moneylenders in the past. The Tribunal is satisfied that he might again be similarly harmed in the future and that this harm amounts to significant harm as defined by s.36(2A) of the Act.
46. However, under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
47. As already canvassed, overall the Tribunal is satisfied that if in the future, the illegal moneylenders threaten or attempt to harm [the applicant], there are mechanisms in the Malaysian legal system, including a reasonably effective State police force, which country information suggests is active and committed to taking action in relation to threats by illegal moneylenders, that could provide protection sufficient to reduce the likelihood of harm to [the applicant] to something less than a real risk in accordance with s.36(2B)(b) of the Act, and the Tribunal finds accordingly.
48. As regards any resulting harm that might cause [the applicant] to face at the hands of the police in relation to follow-up of outstanding criminal matters, under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. For the same reasons as canvassed in paragraphs 37 to 42 of these Reasons, the Tribunal is satisfied that any risk of harm in this regard is because of the general application of the criminal law in Malaysia and is not faced by [the applicant] personally but by all who contravene that law.
49. Pursuant to s36(2B)(c), there is therefore taken not to be a real risk that [the applicant] will suffer significant harm in Malaysia in relation to the police following up past criminal issues with him.
50. [The applicant] has not claimed to fear harm from any other source, and no other claims are apparent on the information before the Tribunal.
Conclusion
51. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Malaysia, there is a real risk he will suffer significant harm for the reasons claimed or for any other reason.
52. The Tribunal is therefore not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
Issue 3 – Is [the applicant] a member of the same family unit as a person in respect of whom Australia has protection obligations and that person holds a protection visa of the same class?
53. There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criterion in s.36(2)(b) or (c).
Conclusion
54. Having concluded that [the applicant] does not meet the criterion in s.36(2)(a), (aa), (b) or (c), [the applicant] does not satisfy the criterion in s.36(2) of the Act. As [the applicant] does not satisfy any of the criteria for a protection visa, he cannot be granted the visa.
DECISION
55. The Tribunal affirms the decision not to grant the applicant a protection visa.
Susan Trotter
Member
ATTACHMENT 1
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.
…
"significant harm" means harm of a kind mentioned in subsection 36(2A).
…
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:
(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.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non-political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
5J Meaning of well-founded fear of persecution
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.
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.
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
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.
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.
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
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.
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
…
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.
…
ATTACHMENT 2
Extracts from DFAT report on Malaysia dated 19 July 2016:
Gangs
“3.78 Al Jazeera reported in 2014 that there were approximately 49 illegal gangs operating in Malaysia, with almost 40,000 members. The majority of street-level gang members tend to be Indian Malaysians, reflecting their relative economic vulnerability. However, high-level crime, including drug trafficking is more typically undertaken by Malaysian Chinese gangs. All gangs have the potential to engage in extortion and loan shark practices. However, obtaining details on these activities is difficult as victims of gang-related crimes do not generally report to law enforcement. Credible contacts advised that Malaysian authorities would likely view individuals who access loan shark services as having participated in an illegal practice.”
Federal and State Law Enforcement Entities
“5.1 Law enforcement entities operate at both federal and state level. The Royal Malaysian Police (RMP) reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide. The National Department of Islamic Development (JAKIM) enforces sharia law and has jurisdiction over Muslims in Kuala Lumpur and the two other federal territories. The RMP and JAKIM operate independently and only occasionally work together.
5.2 The People’s Volunteer Corps (RELA), a federal paramilitary civilian corps under the jurisdiction of the Ministry of Home Affairs, assists security forces. RELA membership was 2.9 million in September 2013. RELA volunteers receive limited training. RELA’s engagement in law enforcement activities has significantly reduced in recent years. NGOs have reported that inadequate training has led to abuses by RELA members such as extortion and theft.
5.3 State-level Islamic religious departments enforce sharia through Islamic courts and have jurisdiction over Muslims in each state. Sharia laws and the degree of their enforcement vary from state to state, although religious enforcement officers are allowed to accompany police on raids in all states. Some penalties imposed by sharia courts are limited by federal civil law.”
Royal Malaysian Police (RMP)
“5.5 The RMP employs approximately 102,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Home Affairs Minister. Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam does conduct some human rights training and workshops for police and prison officials. Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern (see ‘Police Integrity and Accountability’, below). The RMP is 80–85 per cent ethnic Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.
Police Integrity and Accountability
“5.6 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion.
5.7 There is no legal requirement for the state to investigate deaths in RMP custody. Investigations generally occurred at the request of the Attorney-General but were often instigated as a result of public pressure and were significantly delayed. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts (see –‘Detention Conditions—Deaths in Custody’, above).
5.8 The Inspector General of Police announced the establishment of an Integrity and Standard Compliance Department in July 2014 to enhance police integrity and image, however as it sits within the RMP organisational structure, it is not an independent body. Suhakam also receives complaints against the RMP and has conducted investigations into police behaviour. However, the Government is not required to formally consider Suhakam’s reports or recommendations. In January 2016, Human
Rights Watch reported that the government has not established an independent police complaints and misconduct commission, despite lobbying from the Malaysian Bar Council and civil society groups.”
The Star Online, Cops deal crime a crippling blow since Ops Cantas Khas launch, 23 September 2013[6]
[6] Accessed 14 June 2017.
…There has been a more than 90% drop in robbery with firearms in the country since Ops Cantas Khas was launched, say police,.
In the last 36 days (from Aug 17 to Sept 22), serious crime has gone down by 12.48% with murder cases lowered by 33.78%, gang robbery decreased by 23.58% and robbery dipped by 26% compared to the similar number of days between July 12 and Aug 16.”
The Star Online, Ops Vulture wipes out literature on illegal money-lending in five districts, 28 December 2013[7]
[7] Accessed 14 June 2017.
“IT WAS a satisfying day for the police when they managed to bring down over 1,500 posters put up by loan sharks to advertise their “services”.
Codenamed Ops Vulture under Ops Cantas Khas, the exercise was conducted simultaneously in the Ipoh, Batu Gajah, Hilir Perak, Taiping and Manjung districts on Monday and Tuesday.
Perak commercial crime chief Supt Maszely Minhad said the best way to diffuse illegal money lending was by bringing down the banners, which served as a form of advertising for loan sharks.
He added that the police had been actively bringing down such posters since September.”
We will track down the loan sharks through the mobile phone numbers found on the banners. “We will carry out due intelligence to nab them and bring them to face the law,” he promised.”
Malaysia Outlook, Major crackdown under Ops Cantas Khas 2, 12 August 2016[8]
[8] Accessed 14 June 2017.
“Police have arrested a total of 1,444 suspected criminals and gang members during its six days of Ops Cantas Khas 2.
Federal police Criminal Investigation Department director Mohmad Salleh told reporters at Bukit Aman that among the suspects nabbed are 138 people who were on police’s wanted list for various offences.
The special operations were launched on August 6 also saw firearms, sharp weapons and vehicles seized during the nationwide crackdown.
Mohmad said 1,444, six were arrested under the Firearms (Increased Penalty) Act, 115 arrested under the Registrar of Societies Act for suspicion of involvement in gangs, under the Penal Code for various offences (179), for documentation (995), and others (149).
The operation involves a large number of CID personnel from both the federal and state levels, as well as federal police special task force teams.
“The operation will continue until police are satisfied that all criminals involved in violent crimes and gangsterism activities are arrested, tracked down or identified (for action),” he said.
Mohmad said the Ops Cantas Khas 2 squads performed checks on 33,640 individuals and 19,558 vehicles nationwide. He also revealed that among the triads active in the country are from 36, 04, 18 and Satu Hati gangs.”
The Sun Daily, Police bust largest money-lending syndicate, 23 May 2016[9]
[9] Accessed 14 June 2017.
“Police have busted the largest illegal money-lending syndicate in the country
with the arrest of 13 individuals, including its mastermind, at Serdang and Puchong on May 20.
The 11-hour operation, codenamed "Op Vulture 1/16" from 1pm to 12am, was conducted by the Bukit Aman and Selangor Commercial Crime Investigations Department (CCID).
Bukit Aman CCID intelligence/operations deputy director SAC Roslan Abd Wahid said the 13 individuals arrested comprised 10 men and three women, aged between 23 and 32.
He said the suspects were from Johor but had widened their syndicate activities and had been carrying out the money-lending activities at several locations in Selangor, Kuala Lumpur, and also Johor for the past two years.
He added police launched the operation following a report lodged by a 48-year-old man who claimed that the loan sharks have been harassing him since October last year.”
The Sun Daily, Police cripple illegal money-lending syndicate, 16 August 2016[10]
“An illegal money-lending syndicate run by members of a secret society and resorted to violence in recovering bad debts was crippled in an operation by police in Ipoh on Monday.
[10] Accessed 14 June 2017.
Investigators arrested six suspects who are allegedly members of the banned Gang 77 and had operated the loan shark business for over seven years in Perak.
Federal police Commercial Crimes Investigations Department (CCID) director Commissioner Datuk Acryl Sani Abdullah Sani said the suspects who are aged between 22 and 48 were detained at various locations in Ipoh in the joint-operation between the federal and Perak police at 11am.
All six suspects are being held under the Prevention of Crime Act ((POCA). The syndicate's activities were well-planned and systematic which yielded a monthly turnover of over RM100,000, he added.
He said they gave out loans at an interest rate of 7% to 8% and its members would use violence when debtors failed to repay their loans.
Apart from individuals, he added, those who borrowed from them were businessmen.
Acryl said since 2014, 14 police reports were lodged against the syndicate by debtors.
He said police seized from the suspects six cars worth RM500,000, cellphones, a portable computer and 61 ATM cards belonging to their debtors.”
Borneo Post Online, Woman repaying hubby’s debt reports on the moneylender, 28 April 2017[11]
“A woman finally had enough so decided to lodge a police report against a 63-year-old man after parting with about RM21,000.
The woman said the man told her that her late husband borrowed the money from him several years ago, but failed to pay back. The woman claimed that she had been servicing the loan since 2012 before realising that something was not right. After receiving her report, police acted quickly, arresting the suspect last Wednesday night.
Upon investigation, police found that the man was an unlicensed moneylender and arrested him.
In an unrelated case, police arrested a 26-year-old man in connection with a snatch in a hotel room at Market Road early yesterday morning.
Police identified a second suspect who was believed to be his accomplice and are looking for him. In the incident at about 4.20am yesterday morning, four men were sleeping inside the hotel room when two persons barged into. Taking out a parang, one of the two ordered the four men to hand over all their valuables. They all handed over their handphones to the two suspects.
After receiving the report, police swept into action and arrested one of the suspects at a budget hotel at about 10am. Sib police chief ACP Saiful Bahri confirmed both cases.”
New Strait Times, Two loan sharks arrested in a Tampoi supermarket dated 11 March 2017[12]
[12] Accessed 14 June 2017
“JOHOR BARU: Police arrested two men, believed to be illegal moneylenders, at a food outlet inside a supermarket in Tampoi here yesterday at 2.30pm.
Johor Baru Utara district police chief Assistant Commissioner Mohd Taib Ahmad said in a statement that the two suspects, aged 31 and 24, were believed to have been operating the illegal moneylending business for the past two years.
Police seized a total of RM9,230 along with handphones and several automated teller machine
(ATM) cards from the duo.”
Police also carried out raids in a flat in Taman Austin here and seized another RM55,470 as well as cars, and documents that recorded the loans made.
At another premises in Taman Kota Putri, Masai, police also found 13 loan forms.
At yet another premises, Mohd Taib said a BMW and a computer were seized.
Mohd Taib said that one of the suspects had offered a RM700 bribe to the policemen, who declined, and has since reported the matter to the Malaysian Anti-Corruption Commission.”
The Sun Daily, Loan shark ring busted, 31 nabbed in nation wide raids, 19 April 2017[13]
The arrests of the suspects, comprising 27 men and four women, were made during simultaneous raids at various locations in Selangor, Johor, Penang, Kedah, Johor and Negri Sembilan.
In the special operation codenamed "Ops Vulture 3/17" mounted by commercial crimes police on Sunday and Monday, the syndicate's base was found to be in Johor, but the leader was held in Puchong.
The others, aged between 23 and 40, were the syndicate's debt collectors, supervisors, managers and other general workers.
Police seized about RM26,000 and several cars apart from cellphones, jewellery, branded watches, ATM cards, bank account passbooks, accounting books, cheque books and portable computers.
Two houses in Nilai, belonging to the syndicate members, were also sealed.
Police said the items seized were valued at over RM1.3 million, adding that the syndicate had been operating for about three years.
Federal commercial crimes investigations department (CCID) director Comm Datuk Acryl Sani Abdullah Sani today said the operation was launched after police conducted surveillance on the syndicate for more than three months.
He said the syndicate did not resort to physical violence during debt collection, but its enforcers were aggressive and high-handed, often using profanities to threaten defaulters and splashing red paint on their homes.
Although the actual number of victims involved is being verified, records recovered from the suspects showed at least 1,500 people had taken loans running into millions from the syndicate.
Acryl Sani said in the first three months of this year, the CCID had investigated 340 cases of illegal moneylending.
"The Ah Long's targeted victims are businessmen, the low and middle-income earners who are lured with easily approved loans.
“Such businesses thrive due to demand from the public," said Acryl Sani, adding that police will continue to conduct operations to eradicate such activities.
"But the responsibility does not solely lie with the authorities. If the public continue turning to loan sharks, then the issue will never be solved," he said.
"We believe with public awareness and cooperation, this issue can ultimately be addressed when people stop taking loans from the 'Ah Longs'."
Accessed 14 June 2017
Accessed 14 June 2017
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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