1707317 (Refugee)

1707317 (Refugee) [2017] AATA 2897 (28 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707317
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Peter Vlahos
DATE:28 September 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 September 2017 at 11:59am
CATCHWORDS
Refugee – Protection visa – Malaysia – Victim of loan shark – Credibility issues
LEGISLATION
Migration Act 1958, ss 5, 36, 65
Migration Regulations 1994, Schedule 2
CASES

MIEA v Guo (1997)191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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] December 2016.
The delegate refused to grant the visa [in] March 2017 because he determined that Australia had no protection obligations to the applicant.
On 6 April 2017 the applicant lodged an application for review with the Tribunal requesting the Tribunal’s review of the delegate’s decision.
On 24 September 2017 the applicant appeared before the Tribunal to give evidence and to make submissions and present arguments. At the hearing the Tribunal and the applicant were assisted by an interpreter in the Malay and English languages.
The applicant was not represented by a legal representative or registered migration agent.
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 themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicant. For the reasons that are set out within this decision, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality
The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Department of Immigration and Border Protection (the ‘Department’).[1] The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s country of nationality for the purposes of s.36(2)(a) of the Migration Act (as amended) (the ‘Act’) and receiving country for the purposes of complementary protection assessment, s.36(2)(aa) of the Act.
[1] Department File no.[removed]
There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
The applicant’s claims
The applicant made the following claims for protection in his original protection visa application submitted to the Department[2] and the subject of review by the Tribunal:
§He borrowed money from a loan shark, called ‘[Loan Shark 1]’. As he has not been able to pay back the loan, he has been threatened by the debt collector.
§The applicant then decided to travel to Australia to seek protection.
§He fears that if he were to return to Malaysia now or in the reasonably foreseeable future, he would be killed by the loan shark.
[2] AAT File no.1707317 Folio no.7
The Tribunal put the above claims [in paragraph 16] to the applicant to have him confirm that they were his claims and to determine if the applicant had any further claims he would wish the Tribunal to consider. The Tribunal read each claim that was in the original application to the applicant and he confirmed to the Tribunal that he was satisfied with his claims but added a further claim that his family in Malaysia would also be threatened by the loan shark.
Background -The applicant’s Migration history
[In] November 2016, the applicant arrived in Australia on a [visa] and [in] December 2016 he applied for an XA-866 Protection visa and was also granted the associated Bridging visa.
Applicant’s background
The [applicant] was born in [year], in Sungai Petani, in the state of Kedah, Malaysia. He is [age] and by faith, a Muslim. He is not married and is a [profession]. He has family in Malaysia which consist of [siblings] and his parents, who divorced when he was [age]. He claims to be the ‘only one’ of his ‘family’ to be earning a wage which has been used to meet the day-to-day living needs of his family. He also is responsible for the ‘care of his grandparents’.
When he was in grade [level] at primary school, his mother stopped working and it became his responsibility to take of the family and his grandparents. Indeed, the applicant assisted his grandfather in his [work]. After a while, the applicant broadened his employment by finding work at a local [business] which (according to the applicant) earned him a wage of RM[ringgits] a day which was used to buy food and meet the needs of younger siblings.
Before leaving for Australia, the applicant told the Tribunal that he had gained a ‘full scholarship’ at a local college (which was not named) to study year [level] and after his education had been completed the applicant told the Tribunal he found work as a [profession] at [Employer 1] (in 2015) (applicant’s spelling) but only worked for five months on a contract. The applicant then worked at an aunt’s [business] and also at the ‘[Employer 2]’ in its division which was responsible for [Task 1]. This work was also on a contract basis (according to the applicant) and was for two-month’ duration. However, the applicant was not happy with this work because he claimed he had been ‘cheated’ in his wages.
How did the applicant get involved with the loan shark called ‘[Loan Shark 1]’?
The Tribunal was told that it was not the applicant who borrowed from the loan shark but his family. The applicant told the Tribunal that amount borrowed by his ‘family’ was ‘quite a lot’ because that was the reason why the loan shark involved (‘[Loan Shark 1]’) ‘threatened’ him. Moreover, the applicant told of an incident when representatives of the loan shark came to his family’s home and ‘took away the television set, washing machine and refrigerator.’ He then told the Tribunal that these repossessed items would only be returned to his family when the ‘money’ had been repaid by them.
How much money did the applicant’s family borrow from the loan shark?
The applicant could not tell the Tribunal what amount of money had been borrowed (as he claimed) by his family members.
Did the applicant’s family members sign any loan agreements with the loan shark?
Again, the Tribuanl was told that his mother (one day) told him that she was meeting ‘friend’ but was never told by his mother that she was meeting a loan shark to discuss the procurement of a loan.
Was there any threats made to the applicant and to the other members of the family because the money borrowed had not been promptly repaid?
The applicant told the Tribunal that there were threats made against him personally while he was in Malaysia.
Did the applicant or his family members report the threats to the local police?
The applicant told the Tribunal that he did not involve the local police in this problem because he at the time was under the legal age and the police would not concern themselves with the claims of child. He then told the Tribunal that it was pointless to report such threats to the police in Malaysia because the police are corrupt and are ‘hand in hand with the government’ and they take ‘bribes.’ Therefore, he would not file a police report but he still feared that his family ‘could be threatened’.
The applicant claimed that these problems with the loan shark arose when he was young and persisted until now, when the applicant is an adult?
The applicant confirmed for the Tribunal that the ‘loan’ negotiated by his family when he was a minor was still outstanding and he also confirmed that his mother had never provided him with details of what had was the actual amount borrowed or interest charged.
What was the reason for you to come to Australia?
The applicant told the Tribunal that he decided to come to Australia in order ‘to make money and to take care of the family’. He went on to say that there was ‘nothing in Malaysia’ and that he could not ‘live on anything’. He came to ‘Australia to make money’. Earning money in Australia would also allow him to contribute to the repayment of the family ‘debt’ and also make ‘some money’ for the applicant.
The Tribunal was told that when the applicant first arrived in Australia, he had fallen victim to unscrupulous contractors who cheated him out of making a proper wage and that it was only recently that the applicant had been able to find a ‘good job’ (as he described it) for the last ‘two months’ – working [at] [Location 1]. The applicant earns approximately AUD[amount] per week and sends approximately AUD[amount] to his mother in Malaysia. The balance of his weekly earning, the applicant uses for his own purposes to pay for his rent, food and other expenses.
What will happen to the applicant if in the reasonably foreseeable future he returns to Malaysia?
The applicant told the Tribunal that if he returns to Malaysia he would not be able to find work which would allow him to earn much money. He would only manage RM[amount] ringgits per month which was not enough to take care of his family and at the same time meet his own needs.
What would be the applicant’s situation if he returned to Malaysia with regards to the outstanding loan owed to the loan shark?
The Tribunal was told that the ‘[Loan Shark 1]’ was an issue that directly affected the applicant’s mother. Indeed, the applicant in his evidence to the Tribunal described an incident which happened in November 2016 while his mother was shopping at the local supermarket when individuals (which were not identified by the applicant) approached her and ‘cast upon her a spell’ and took away his mother’s motor vehicle ([Vehicle], was the description provided by the applicant to the Tribunal).
The applicant was adamant to the Tribunal in his evidence that his mother’s motor vehicle was repossessed by a form of ‘witchcraft’.
Was this incident reported to the local police?
The applicant told the Tribunal that this incident (November, 2016) was not reported to the local police because the police would do nothing if the report was not accompanied by a bribe of money.
Country Information discussed with the applicant
The Tribunal also referred to country information sourced on Malaysia from the Department of Foreign Affairs and Trade (DFAT) in relation to police in Malaysia and its activities against illegal money lenders and associated criminal syndicates. DFAT reports that credible and local and international sources indicate that the police are a professional and effective force. DFAT acknowledge that the police responses depend on their levels of training or whether they are engaged in corruption themselves. While acknowledging that corruption in the police force is a concern, measures have been put in place to look at and investigate the issue of police integrity and accountability. Some police have been prosecuted and found to be guilty of corruption but overall, DFAT assesses that there is an effective police force who generally do investigate crimes. The Tribunal also noted, in relation to Malaysia’s judicial system that, while the ability for individuals to seek legal redress through Malaysian courts is mixed, credible sources advised that defendants generally had adequate time to prepare a defence the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.
The Tribunal explained to the applicant that it was obliged to put information to him that addressed some of the issues he had raised in particular about moneylenders in Malaysia and lack of protection available to him. The Tribunal explained that it was obliged to take this into consideration in assessing his claims. The Tribunal referred to both Malaysia and other media outlined herein that the police are very concerned about the issue of illegal moneylenders in Malaysia because it is a big problem and there have been a lot of reports in the Malaysian media to try to make people aware about the problem of illegal moneylenders and their illegal activities and they have encouraged people to report these. The media on this issue indicates there has been a concerted effort to address illegal money lending and they appear to have targeted moneylenders and associated criminal gangs.
The applicant was invited to comment on this information and noted that the totality of the country information that had been discussed suggested that effective state protection was available to the applicant and the Tribunal asked him if he would like to comment.
The applicant’s response to the country information was to tell the Tribunal that he ‘did not know about this’ (information) but he was certain that his mother would not file a police report concerning this matter or related incidents.
Country Information – Malaysia/Police/Corruption/loan sharks/legal system
Illegal money lending or loan sharking, colloquially known as ‘Ah Long’ in Malaysia, is an offense under Section 5(2) of the Moneylenders Act 1951. If prosecuted, a fine of not less than RM20,000 and not exceeding RM100,000 or imprisonment of up to five years can apply.[3]
[3] ‘KL Consumer Safety Association - No need to fear the loan sharks’ 2015, Bernama (Malaysian National News Agency), 17 February < Accessed 19 February 2015 <CXBD6A0DE1580>
39.In October 2013, The Sun Daily reported that figures supplied by the Malaysian Chinese Association (MCA) Head of Public Services and Complaints Department, Datuk Seri Michael Chong, showed that ‘The loan shark menace is worsening with Malaysians expected to be in debt by more than RM40 million this year – compared to last year’s RM39.5 million’. Loan sharks reportedly lent RM34,400,000 to financially-strapped Malaysians up to September 2013, and at the time of the article, ‘426 people were in debt to loan sharks, with each person owing an average of RM80,751’. According to Chong, ‘people continued to borrow from loan sharks despite continuous reminders by the authorities of the repercussions of doing so’. He also said that ‘of the 426 cases, 80% were by gamblers while the rest were drug abusers, failed businessmen and those living beyond their means’. Seven per cent or 32 people were reported to be repeat borrowers, and Chong said that ‘most of the repeat borrowers were involved in drug abuse and that their families were the ones who ended up being harassed by loan sharks’. Chong also said that the ‘police were powerless against loan sharks as the transactions were on a “willing seller willing buyer” basis’. Police, however, ‘can take action if loan sharks resort to violence or extortion to recover their money’.[4]
[4] ‘Loan shark menace worsens in M’sia’ 2013, The Sun Daily, 2 October < Accessed 22 April 2014<CX320169>
40.Various media reports indicate that the practice of illegal money lending is widespread in Malaysia and that police operations targeting Ah Long are not uncommon. According to a Daily Express 22 April 2014 report, ‘police are tracking down members of unlicensed moneylending syndicates … through contact numbers printed in their advertisements, including flyers, posters, banners and business cards...’ The article notes that one of the most significant barriers to prosecuting Ah Long syndicate members is the ‘lack of cooperation from the public, especially those who had fallen victims to the syndicate.’ This problem stems from threats by syndicate members. Police in Perak made 88 arrests during an eight month period and continue to combat Ah Long syndicates by removing marketing materials, such as advertisements, from the public space.[5]
[5] ‘Police cooperate with Council to wipe out loan sharks’ 2013, Daily Express, 28 December < Accessed 22 April 2014 <CX320164>
41.Police action against the Ah Long includes a police operation in Kuching, conducted from 23 May 2014 to 23 June 2014, which reportedly resulted in 1,051 illegal advertisements and posters for illegal loans being removed in the 135 police raids conducted.[6] In April 2014, the police and local authorities in Penang ‘pulled down 238 banners and streamers promoting illegal moneylending’.[7] The Malaysian Communications and Multimedia Commission also disconnected the telephone lines of contacts printed on the materials.[8] Between March and May 2015 police in Kota Kinabalu seized between 2,700 and 6,700 ‘posters, banners and name cards of illegal money lenders’.[9] Reportedly, ‘City Police chief ACP M. Chandra said the police and City Hall had carried out numerous operations under Ops Vulture’.[10]
[6] ‘57% drop in commercial crime losses, say cops’ 2014, The Star Online, 2 July < Accessed 30 August 2016 <CX1B9ECAB11425>
[7] Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April < Accessed 30 August 2016 <CX1B9ECAB11426>
[8] Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April < Accessed 30 August 2016 <CX1B9ECAB11426>
[9] Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May < Accessed 30 August 2016 <CXBD6A0DE13537>;
‘2,700 Ah Long materials removed’ 2015, Daily Express, 28 May < Accessed 2 June 2015 <CXBD6A0DE7469>
[10] Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May < Accessed 30 August 2016 <CXBD6A0DE13537>
42.Numerous media reports were located regarding the effectiveness of police investigations and arrests related to Ah Long syndicate crimes. Police in Sabah reported that ‘16 men believed to be Ah Long members were arrested in 2013 compared to 12 arrested in 2012’ during Operation Vulture.[11] In 2013, Malacca police investigated 29 Ah Long related cases and arrested 20 people. Thirteen cases involved preventative measures with cases being ‘investigated under Section 5(2) of the Money Lenders Act 1951 for operating without a licence’.[12] Additionally, ‘four more cases and seven individuals were investigated under Section 29AA of the same Act for putting up posters.’[13] The Malaysian Digest reported on 16 October 2014 that ‘police rescued a 21-year-old after he was abducted by three men, believed to be loan sharks … One day after the incident, police apprehended a 24-year-old man and a 29 year-old woman … believed to be involved in the incident’.[14] The Malaysian Star reported on 29 May 2015 that two loan sharks were arrested during a police surveillance operation when collecting money from a victim. The arrested persons were wanted by police ‘for suspected involvement in several other cases of illegal moneylending in the district.’[15]
[11] ‘Sabah Police probe nine Ah Long cases in 2013’ 2014, The Malaysian Times, 3 January < Accessed 30 August 2016 <CX1B9ECAB11427>
[12] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December < Accessed 30 August 2016 <CXC28129414704>
[13] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December < Accessed 30 August 2016<CXC28129414704>
[14] ‘Police Free Man Abducted By Loan Sharks’, 2014, Malaysian Digest, 16 October < Accessed 30 August 2016 <CX1B9ECAB11430>
[15] ‘Loan sharks caught red-handed’ 2015, The Star Malaysia, 29 May < Accessed <CXBD6A0DE13543>
Criminal gangs
43.The Tribunal also notes that country information indicates that the Malaysian authorities have from time to time instigated operations against criminal gangs and crime syndicates. The country information suggests that these gangs and criminal syndicates are not tolerated by the authorities. For example, in August 2013 the Royal Malaysian Police Force launched Ops Cantas Khas against criminal gangs and crime syndicates. In September 2013, Gambling and Secret Societies Division (D7) principal assistant director Senior Assistant Commissioner Datuk Abdul Jalil Hassan told the Malaysian Insider that the police had arrested 5,505 people for various crimes, including armed robbery, theft, vehicle theft, extortion and secret society activity:
Abdul Jalil, adding that the police also seized other weapons, including 21 swords, 70 knives, six axes, 11 brass knuckles and a stun gun. Ops Cantas Khas was launched following a spate of shootings in the country, believed to be related to turf war among gangs and linked to illegal activities. Among those shot dead were gang members or leaders, with the latest incident involving the shooting of a former air force man, whom the police claimed was the head of Geng 36 in Batu Gajah, Perak.[16]
[16] ‘Police make 5,505 arrests in three weeks in crackdown on gangs, organised crime’ 2013, Malaysian Insider, 9 September
44.The Star also reported in September 2013 that three phases of the operation would focus on weapon seizure, targeting gang members and then gang leaders and their assets. According to statistics provided by 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.[17]
[17] ‘Cops deal crime a crippling blow since Ops Cantas Khas launch’ 2013, Star Online, 23 September,
45.In June 2014 the House of Representatives, or Dewan Rakyat, was told that 79,414 individuals involved in various crimes were detained since the operation codenamed Ops Cantas Khas was launched. Home Minister Datuk Seri Dr Ahmad Zahid Hamidi lauded the success of the operation in reducing the number of murders and robberies, stating that:
Murder cases declined from 504 cases to 433 cases, a drop of 14%, gang robberies using firearms from 83 cases to 54 cases which showed a drop of 34%. Gang robbery without using firearms declined from 13,533 to 12,048, a drop of 9%, while armed robbery from 20 cases to 14 cases, a drop of 13%.[18]
[18] “79,414 individuals detained throughout 'Ops Cantas Khas’” 2014, Bernama (Malaysian National News Agency), 10 June
46.In July 2014 Al Jazeera reported:
In 2013, police identified 49 illegal gangs nationwide, with nearly 40,000 known members. More than 70 per cent of felons are ethnic Indians, who make up just 7 per cent of Malaysia’s population. Though small in number, they have been linked to a wide array of crimes - such as armed robberies, drug and prostitution rings, loan-sharking, gambling and extortion rackets, and even contract killings.
101 East spoke exclusively with a senior gang member, who reveals how these criminal organizations provide protection and work opportunities for many Malay Indians who live in poverty. The gangs prey on vulnerable youngsters with the lure of fast money and bonds of brotherhood.[19]
[19] ‘Malaysia's gang menace’ 2014, Aljazeera, 11 July
47.In October 2014, quoting Inspector-General of Police Tan Sri Khalid Abu Bakar, the Malaymail Online reported that Ops Cantas Khas was ongoing, ‘Ops Cantas was never put off at any point of time and the operations are still in top gear’. Penang’s police chief Datuk Abdul Rahim Hanafi said there were 12 active secret societies in the state, mostly involved in extortion, protection rackets and drug-related activities.[20] No independent analysis on the operation was found.
[20] ‘Police crackdown on gangsters still in full swing, IGP says’ 2014, Malay Mail on line, 9 October,
48.Astro Awani reported on 1 August 2016 that following a spate of shootings in the country, Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi requested Ops Cantas be ‘further enhanced’.[21] On 6 August 2016 ‘Op Cantas Khas 2’ was launched on 6 August. Astro Awani reported that on 13 August 2016 1,444 individuals had been arrested since the start of the crackdown.[22]
[21] Hasnan, H A 2016, ‘Ops Cantas 2 to involve three elite police teams’, 1 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8261>
[22] ‘Op Cantas crackdown on triads: 1,444 arrested’, 13 August, Astro Awani < Accessed 23 August 2016 <CX6A26A6E8262>
Law enforcement and the legal system in Malaysia
49.The Tribunal notes the most recent (19 July 2016) Malaysian country information report by the DFATremains essentially unchanged regarding law enforcement, police corruption and the legal system in Malaysia. Law enforcement entities in Malaysia operate at both federal and state level. In relation to the Royal Malaysian Police (RMP) DFAT reports that credible local and international sources consider it to be a professional and effective police force:
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.
50.In relation to police corruption in Malaysia, the Tribunal notes the following information by DFAT:
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.
51.The Tribunal also considered a report by Human Rights Watch in 2014 which has credited the Malaysian government for implementing many of the Royal Commission’s recommendations but have also noted that some of the key recommendations including improving investigative capabilities of the police and creating effective external accountability mechanisms have not been implemented.[23]
52.In its Country Information Report – Malaysia, DFAT provides the following summary regarding Malaysia’s judicial system:
Judiciary
5.11 The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level and subordinate courts. Sharia courts operate at state level with jurisdiction over Muslims. The majority of Malaysia’s criminal, civil and family law matters are heard in the subordinate civil courts. Judicial appointments are made by a Judicial Appointments Commission; however the Prime Minister has final approval. The majority of the members of the Federal Court are Malay Muslims. Malaysia’s highest courts are somewhat influenced by political or religious affiliation. For example, credible local and international human rights organisations considered the prosecution of Anwar Ibrahim to be politically motivated (see ‘Political Opposition Members’, above). In July 2015, the government removed the Attorney General, Abdul Gani, who had been leading an investigation into 1MDB.
5.12 Credible sources advised that defendants generally had adequate time to prepare a defence, particularly where they had financial means to engage private counsel. Government legal aid resources were limited and generally of poor quality. Strict rules of evidence apply in court. However, state-held evidence was not consistently made available to the defence. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods; the International Center for Prison Studies reported that in mid-2014 24.8 per cent of the total prison population were pre-trial detainees.
5.13 The ability for individuals to seek legal redress through Malaysian courts is mixed. Judges receive relatively low salaries, limited training, and appointments were often made directly from university. Selective prosecution and arbitrary verdicts occurred, particularly in instances involving high-profile opposition politicians and human rights defenders. However, the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.
[23] No answers, no apology: Police abuses and accountability in Malaysia, Human Rights Watch, 2 April 2014 pp 22-23.
FINDINGS AND REASONS

Based on the country information the Tribunal accepts that loan sharks or Ah Long operate in Malaysia and many of these are unregistered and unlicensed. The Tribunal also accepts that many of these loan sharks resort to criminal means to enforce their loan contracts with borrowers or their guarantors. The Tribunal also accepts that the Malaysian authorities are working against these unlicensed money lenders and the ability of the authorities to protect borrowers from harm from the loan sharks and gangs varies, depending on the area, the capacity of the police and in some instances on corruption.
Nevertheless the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded”. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have the any responsibility or obligation to specify, or assist in specifying any particulars of the claim or to establish or assist in establishing the claim. Nor is is Tribunal required to accept uncritically any and all the allegations made by the applicant. (MIEA v Guo (1997)191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal was told initially that the applicant had taken out a loan with a loan shark, with a loan shark, he described as ‘[Loan Shark 1]’. Then later in his evidence he told the Tribunal that his ‘family’ took out the loan and then he told of the loan having been agreed to by his mother. He also told the Tribunal that his mother would not tell or reveal the amount owed or the interest charged by the loan shark. He then went on to say that the loan shark’s people came to his family’s home and took possession of his family’s ‘television’, ‘refrigerator’ and ‘washing-machine’. He went on to say that in more recent times, unidentified persons approached his mother at a local supermarket and via the use of an incantation or spell – the use of witchcraft to be more precise, repossessed his mother’s motor vehicle (this occurred in November 2016). Yet, there was no police report in any instance made because the police was considered by the applicant as unwilling to provide assistance without some form of bribe or that the police was prone to corrupt practices and could not provide any assistance to the applicant or to his family in circumstances they found themselves in. Then, unable to cope with this situation the applicant left Malaysia to come to Australia and to ‘work’ to support his family and to make an effort to help his family repay a ‘loan’ to a ‘loan shark’ – the amount of the loan or interest charged he did not know because his mother would not tell him. The Tribunal does not find the applicant’s explanation of events as credible. Regardless, of how the applicant may have felt on any particular occasion which led him not to report an incident affecting his family to the police, the country information referenced by the Tribunal reports that the Malaysian police have been more proactive in recent years and effective in providing protection to persons who have been affected by the illegal activities of illegal moneylenders and organised criminal gangs.
While it has doubts about the applicant’s credibility, the Tribunal has considered the applicant’s claims separately and cumulatively and is prepared to accept that the applicant’s family and in particular his mother may have been involved in disputes with a third person or persons because of some financial arrangement for the procurement of a ‘loan’ of an amount of money. The Tribunal accepts on the basis of consistent country information that illegal moneylending persons, syndicates and gangs in Malaysia resort to physical threats and assaults to further their aims and if owed money and although the applicant told the Tribunal he, his family and his mother did not report incidents that had occurred to the police because (they) (and in particular, the applicant) thought the police could not protect not protect him or his family while in Malaysia., nevertheless, the Tribunal accepts, the applicant’s claim that if he was to return to Malaysia in the reasonably foreseeable future his whereabouts could be discovered by a member of the ‘[Loan Shark 1]’ syndicate he fears and the applicant could face threats to his person and property. However, the Tribunal does not accept as credible the applicant’s claim that even though he was threatened the Malaysian police would not provide him with adequate protection should he require it. While the Tribunal accepts that there difficulties and inadequacies in the policing and judicial system in Malaysia generally speaking, having regard to the advice of the Department of Foreign Affairs and Trade the Tribunal finds that the protection provided by the authorities in Malaysia consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system as required by s.5LA (2)(c) of the Act. The Tribunal considers on the evidence before it that this protection is durable and that the applicant can access it. The Tribunal does not accept that, as the applicant claimed, the police are not willing or unable to protect him (or his family) because he had dealt with and has had personal disputes with a illegal moneylending syndicate and associates. The Tribunal therefore considers that effective protection measures as defined in s.5LA are available to the applicant in Malaysia and that he therefore does not have a well-founded fear of persecution in accordance with s.5J(2) of the Act.
Accordingly, the Tribunal does not accept that the authorities would be unwilling or unable to protect the applicant in his circumstances. There is no evidence before the Tribunal that the applicant seriously contemplated seeking the assistance of the police prior to his escape via Kuala Lumpur International Airport to Australia. The applicant provided no credible reason why he could not take advantage of this state protection or seek the assistance of the Malaysian judicial system, except to claim that he had not chosen to file a police report when threatened because he had not chosen not to do so because the police could not provide him with effective protection as he required it if he was to return to Malaysia.
The Tribunal acknowledges country information referred to earlier, particularly to DFAT’s assessment of the Malaysian police who are generally considered to be professional and effective. The Tribunal also notes the advice from Department of Foreign Affairs and Trade regarding police corruption, however this is recognised by the authorities in Malaysia and measures have been put in place to deal with this issue.
In relation to the overall effectiveness of the authorities in Malaysia, as noted earlier, the Tribunal has relied on the country information showing that Malaysia’s 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 corruption. Police and indeed, the government, have been making a concerted effort since at least 2013 to combat organised gangs and crime syndicates and there is no evidence that the police would refuse the applicant any assistance, if he were to request it. The country information and media reports indicate the government has taken this issue seriously and has committed extensive resources to do so. This in the Tribunal’s view demonstrates that effective protection measures are available, namely that protection against serious or significant harm could be provided to the applicant by the Malaysian State, that protection is durable and the Malaysian State is willing and able to offer such protection.
For the reasons given above, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Malaysia in the reasonably foreseeable future and therefore the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion – complementary protection in s.36(2)(aa) of the Act.
Overall the Tribunal is satisfied that if in the future, the gang members threaten or attempt to harm the applicant, there are mechanisms in the Malaysian legal system, including a reasonably effective State police force (that country information demonstrates is active and committed to taking action in relation to the claimed fear) that means the applicant could obtain protection sufficient to reduce the likelihood of harm to something less than a real risk in accordance with s.36(2B)(b). Therefore, the Tribunal finds that there are no substantial reasons 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. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Peter Vlahos
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 2897

28 September 2017

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice