1707613 (Refugee)

1707613 (Refugee) [2017] AATA 2935 (15 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707613
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Rosa Gagliardi
DATE:15 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 November 2017 at 10:28pm
CATCHWORDS
Refugee – Protection visa – Malaysia- Indonesia – Social group – Guarantor for a loan – Borrowed money from loan sharks – Fear of threats from money lenders – Effective state protection available – Credibility Issues
LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 on the basis that the applicant did not meet the criteria for s.36(2)(a) or s.36.(2)(aa).
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
DOES THE APPLICANT HAVE A RIGHT TO ENTER AND RESIDE IN THIRD COUNTRY?
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national (s.36(3)).
The Tribunal at hearing noted that from the evidence on file, the applicant’s wife had Indonesian citizenship. The applicant responded that she had to continue to renew her permit annually to be able to reside there. The applicant’s mother was born in Indonesia. The applicant’s father was a Malaysian citizen, born in Sabah. The applicant himself claimed to have travelled to Indonesia on a [temporary] visa on a different passport. [The] applicant has a young child who is a Malaysian citizen of his marriage.
From this set of facts some of which the applicant provided at hearing, the Tribunal is required to assess whether the applicant may be an Indonesian national by virtue of his marriage to an Indonesian citizen. The Tribunal’s research shows that:
1.    Nationality Law of 1958 seems to show a definite preference for “jus sanguinis” rule in determining nationality at birth. The main rules on attribution of nationality at birth under the Nationality Law of 1956 are as follows:
·     Any person, who at the time of birth has a legally established parent-child relationship with his/her father (who is an Indonesian national) becomes and Indonesian national (Article 1.(bb)).
·     In the absence of such legally established relationship with the father or if the father was stateless or was of unknown nationality, the person also acquires Indonesian nationality if the mother was an Indonesian national at the time of the person’s birth (Article 1 (d) and (e)).
The aforesaid seems to reflect that the Nationality Law of 1958 shows a definite preference for “jus sanguinis” rule in determining nationality at birth, and precedence is given to the link with the father.
By way of complementing the “jus sanguinis” rule, the Nationality Law of 1958 seems also to adopt the “jus soli” rule by providing that a person born in the Indonesian territory is an Indonesian national:
·     So far as the parents are unknown (Article 1(f)); or
·     If the parents are stateless or as long as their nationality is not known (Article a(h)); or
·     If as long as the person does not acquire either of the nationalities of his/her parents.
2.    There are two ways for a foreign citizen to obtain Indonesian nationality, which are:
-as a consequence of marriage;
-by way of naturalization.
…………………………………………….
3.    Marriage with an Indonesian national does not automatically confer Indonesian nationality to the foreign wife. The foreign wife, however, will obtain the Indonesian nationality if within one year of the marriage, she declares her intention to become an Indonesian national, provided that she will not be holding another nationality (or will not have dual nationality). Such declaration is to be submitted to the competent District court or the Indonesian Embassy. If the foreign wife has not made such declaration to opt, she will nevertheless acquire Indonesian nationality after the first year of marriage, provided that the Indonesian husband has not in the meantime renounced his nationality.
4.    The legal requirements to obtain Indonesian nationality by way of naturalization are as follows:
-The applicant must be at least twenty-one years of age;
-At the time of the application, the applicant must have been residing in Indonesia for five consecutive years or for an aggregate period of ten years;
-In the event of a married man, has obtained the consent of his wife (or wives);
-The applicant must have a reasonable command of the Indonesian language and some knowledge of the Indonesian history, and has never been convicted of a crime to the detriment of Indonesia;
-The applicant must be in good physical and mental health;
-The applicant must be a certain amount proportionate to his/her income (?)
-The applicant must have a regular source of income;
-The applicant should have no other nationality or should lose his/her previous nationality upon acquiring the Indonesian nationality or the applicant should expressly renounce his/her previous nationality…;
-Submit a written application in the Indonesian language to the Minister for Justice through the District Court where the applicant has his/her domicile.[1]
[1] Excerpts from the Sriro’s Desk Reference of Indonesian Law 2006, Indonesian Family Law: Relating to Marriages Between Expats and Indonesians, accessed on 14 November 2017.
In the case of the applicant the Tribunal does not have evidence that he has obtained Indonesian nationality by way of naturalization. The only matter of relevance, therefore, is whether he may have obtained nationality by way of marriage to an Indonesian citizen.
The Tribunal notes that under Malaysian National Law a person is not permitted to hold dual nationality. The Tribunal does not have evidence before it that the applicant has renounced his Malaysian citizenship or has taken any steps to do so. Indeed, the information points to the applicant clearly being a Malaysian citizen.
The Tribunal also has doubts that the nationality laws permit the acquisition of nationality by marriage to a spouse when that spouse is not a woman. In this case it is the applicant who has married an Indonesian wife, but the reading of the legislation above only refers to the ‘foreign wife’ and is silent on the circumstances involving “a foreign husband”, further contributing to the Tribunal’s finding that the applicant, even if he wanted to, does not have the right to enter and reside in Indonesia as a consequence of his marriage to an Indonesian national.
The Tribunal therefore finds that the applicant has taken all possible steps to avail himself of a right to enter and reside in Indonesia. The law is unclear that he would be able to reside there other than on very short stays. S.36(3) therefore does not apply to the applicant.
The applicant’s claims at time of application
The applicant came to Australia in October 2016. He was born in [Sabah] but was working in Kuala Lumpur. His mother and [other] sibling are living in Sabah. His parents are divorced. He is a married male with [a] child of this marriage. The applicant at hearing stated that his wife and child were currently in Indonesia, and were awaiting him to call them over to Australia. He has undertaken [schooling to a certain level] and has also undertaken [another] course. The applicant has written in his application that he was working in [a certain] industry for [a number of] years prior to travelling to Australia, prior to being unemployed before travelling to Australia. The applicant is currently working in [an Australian city] in [another] industry.
Below are the applicant’s claims at the time of application:
I am seeking a kindness of Australia government so I don’t have to return to Malaysia and start a new life in Australia.
My story started when I become a cross guarantor for my friend from loan shark. After my friend refused to pay, I also do so because when we keep pay, there’s never finish the loan even though we pay more what should we paid. My friend ran away and we lost contact. The debt collectors started threatened me to pay even they know I’m not enough money to pay. Debt collectors gangsters came to me they use violence on me. Other than that they keep harshing my life. Loan shark give me warning if I do a police report, my life and my family will be in trouble (kill threatened).
Worse if I return to Malaysia, my live (sic) will be in big danger.
They hit me and threatened me, debt collector [attacked me]. Threatened will cut [body part] if does not pay debt interest.
They keep threat me to not do lodge a police report. If I do, they will do the worst things to my self or my family.
I did try to move from my hometown to capital city of Kuala Lumpur but the same thing happen until my brother advised me to move to Australia.
If I return, I am sure this time will be more worse things happen to me and I cannot bear that risk happen.
In terms of why he thought the authorities could not or would not protect him, he wrote, “I’m afraid to do and some more I heard many cases from loan shark easily not detect from the authorities. I don’t have any courage to make a report because they always hunting me and warning to me”.
In terms of why he could not relocate, the applicant wrote, “I have tried but still failed to escaped (sic) them because they know how to keep tract (sic) of their victims”.
Applicant’s claims at the time of hearing
The applicant stated that he considered the Tribunal’s summary of his claims accurate but wanted to explain that he was guarantor for a friend who worked with him and that this friend was guarantor for him. The applicant needed money to renovate his mother’s home. His friend had a sick mother and needed to cover medical costs so the applicant wanted to help him. According to the applicant they became cross guarantors for each other.
The Tribunal asked what was wrong with the house in Sabah that it needed renovating and he stated that it was an old house, left to them by his grandfather. Asked when precisely he decided to renovate the family home, the applicant stated that it was [his] [sibling] who had asked him to help out from Sabah. He told her he would try to help. This occurred a long time ago, maybe [a number of] years ago. Asked why he did not go to a bank to obtain a loan, the applicant stated that he did but was refused.
The applicant stated that the friend who he named as [Mr A] on being asked, was working at the same company as he. [Mr A] introduced the applicant to the loan scheme. It just so happened that the applicant really needed the money at that time. The applicant confirmed that [Mr A] as a cross guarantor ran away and did not pay his debts leaving the totality of the debts to be paid by the applicant. The Tribunal expressed concern that the applicant would have entrusted a colleague at work with such an undertaking and secondly, given the nature of the well-known modus operandi of loan sharks in Malaysia, that he would take such a risk in being a guarantor for [Mr A] in such circumstances. The applicant stated that when [Mr A] spoke to him his mother was unwell and he worked with him. The Tribunal highlighted that it appeared that the applicant had just married and had his own responsibilities and that it seemed implausible that he would take on such a venture when he was starting out in life. The applicant stated that he did not think about it at the time.
Asked when precisely he became a cross guarantor, the applicant stated that he did not recall the exact date. All he knew is that it happened [a number of] years ago; in early 2013. He had been paying the debt off in instalments.
The Tribunal asked why the loan sharks would be after him if he had paid off his debt. The applicant stated that his friend, [Mr A], prior to running away, had told him that the interest on the loan was never ending. The Tribunal tried to obtain detail from the applicant about any documents he might have signed to show that he was a cross guarantor for his friend and his friend for him, but the applicant responded that the document he signed contained writing in Chinese and Malay. He signed it and handed it over to his friend. The Tribunal expressed incredulity that the applicant would not have taken a copy of the documents prior to giving a copy to [Mr A]. The applicant stated that [Mr A] told him he would give him a copy later.
The Tribunal noted that the applicant was very trusting of his friend/colleague [Mr A]. He stated he was desperate at the time and he thought everything had been done properly. He could not recall the name of the company he loaned the money from, but what he could recall was that he saw in the document “Licensed Money Lender”.
The Tribunal asked why the applicant had not gone to speak to the mother of [Mr A] to find out where he might have fled so he could pursue him. The applicant stated that he did but the address provided to him by [Mr A] was a false one and the occupants of the house said they did not recognise the name.
Asked if the applicant was still paying off the debt the applicant stated that he was not making enough money yet, and besides he was trying to bring his wife and child to Australia.
The Tribunal encouraged the applicant to talk about the time he was [attacked] and when this might have occurred. The applicant stated that it was outside his [workplace]. It happened very quickly and he did not know whether anyone had witnessed the incident. It happened in a [location].
The applicant stated that he had borrowed [amount] Ringgit to renovate his family home. The Tribunal observed that as an [Occupation 1] he could have been paying off the loan slowly. The applicant stated that his friend also borrowed [amount] Ringgit so in having gone guarantor for him the applicant confirmed that the principal owed was [amount] Ringgit, the equivalent roughly of AUD [amount].
The Tribunal asked whether anyone in his family had been threatened and the applicant stated that his brother and his wife had been threatened. Asked how, the applicant stated that someone went looking for him at his brother’s house. Asked why the loan sharks would have gone specifically to his brother’s house to find him, the applicant stated that when he signed the agreement “they” asked for a reference and he put down his brother’s name and address. The Tribunal stated it was confused as his friend [Mr A] was the cross guarantor. The applicant stated that his brother did not know. His friend needed the money. He had a pure motive - to help his mother.
The Tribunal put to the applicant reliable country information about Ah Long and the effectiveness of the law enforcement agencies in Malaysia in dealing with them. The applicant responded that currently there were many lenders who were claiming to be licensed when in fact they operated as unlicensed operators.
The applicant stated that his friend told him that he filed a complaint with the [government department], but the complaint was ignored and his friend was told to gather more information, whereas his friend had already provided information on the company. When the Tribunal asked whether the matter was pursued the applicant stated that it was just left hanging. The Tribunal again expressed reservations that the applicant would have blindly signed documents without noting the name of the company he was entering a financial agreement with. The applicant stated that the money lender was in a rush. He was at his workplace. The applicant did say he wanted a copy of the document but nothing was forthcoming - only the money.

The applicant stated that he had a Chinese friend, [Mr B], who told him about an organisation called [Organisation 1] that could assist victims of loan sharks. The applicant stated that he had been told that if he relayed his problems to [Organisation 1] a person there would ask the applicant for the amount owed. Only after payment to [Organisation 1], would [Organisation 1] deal with the loan sharks. Asked if he had at all approached
[Mr B] for assistance, the applicant stated that he had but [Mr B] told him that the matter could not easily be resolved by the organisation. The applicant stated that he was aware of a businessman who had just come from Malaysia who paid loan sharks [amount] Ringgit to settle a loan but then it was demanded he pay an additional [amount] Ringgit.
The applicant stated that his wife did not work in Indonesia. He stated that when he was in Indonesia he had tried to find a job for a month but could not get work there.
The Tribunal noted that the applicant left Malaysia without any difficulty and that if the loan sharks were determined to monitor him they would have ensured that he did not depart Malaysia so that they could secure their money. The applicant stated that his brother and wife were also seeking protection in Australia because the applicant had provided his brother’s address to the loan sharks and had advanced that address as his residence. The Tribunal asked why the applicant would not have simply provided his own address to the loan sharks and the applicant stated that prior to marrying they had lived together.
The Tribunal then put to the applicant pursuant to s.424AA of the Migration Act the information contained in the application form which showed that the applicant prior to coming to Australia was unemployed, but before that had been working for [a number of] years in Kuala Lumpur as an [Occupation 1]. The Tribunal explained that the information was relevant to the review because the fact he was unemployed prior to travelling to Australia, might have prompted his departure to Australia and his claims about the loan sharks had been fabricated for the purpose of the application and that he had travelled to Australia to find work. The Tribunal further noted that if the Tribunal relied on this information it would find that the applicant did not meet the definition of a refugee and was not owed protection by Australia.
The applicant stated that he was under the impression they were not looking for him but according to his brother’s wife, they were coming every two or three months.
Asked if there was anything preventing the applicant from moving to another area in Malaysia, the applicant stated that the money lenders were part of gangsters and were everywhere. The Tribunal asked therefore whether the money lenders he had borrowed money from were a national company and he stated that he was not sure - he knew the leader of the loan sharks was someone from [another country]. That is what he had read.
Credibility
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 -70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal has some concerns in relation to the claims of the applicant. His description of owing money to a money lender was undetailed, brief and vague. The Tribunal encouraged the applicant to provide as much detail as possible about his claims but he was unable to do so without significant prompting. Furthermore, the applicant’s evidence appeared to shift to suit the Tribunal’s questions and for some questions, the applicant’s answers seemed incoherent.
For example, the applicant was unable to provide the Tribunal with detail about what had occurred when he claims he was threatened, hit, [attacked], stating only that it was in a [location] outside work.
He was unable to explain key aspects of the loan. The Tribunal is not convinced that the applicant would have signed a document without carefully reading its terms and conditions which included paying interest ad infinitum. The applicant’s description of the loan sharks coming to his workplace in a rush and getting him to sign a document that was partly in Chinese is also implausible as the Tribunal would have expected the applicant to have been very careful about entering into an arrangement that on its face was clearly unreasonable and would have meant he had entered into a significantly long term arrangement with them.
The Tribunal also has concerns about the applicant’s reason for needing to borrow money at the time he did to renovate his family home. While renovating an old home is by no means a frivolous aspiration, it’s unclear why the applicant would have thought that this was such a major priority that it warranted him entering into a risky business arrangement with loan sharks, and complicating the risk factor by being a guarantor for a friend or colleague. The Tribunal finds it incongruous that the applicant about to marry or newly married, and embarking on his own future, would make such a decision to deal with loan sharks to renovate his mother’s home and why this would lead him to be “desperate”.
The Tribunal also has some reservations about the applicant having gone cross guarantor for a colleague to help him out given the claimed amounts involved.
Further, the applicant’s account of [Mr B] telling him that he had to first repay the loan to [Organisation 1], and that only then this organisation would help him, is not plausible and was not coherent. That [organisation 1] which is an organisation to assist people would take money from victims and only then deal with loan sharks, is not credible.
As did the original decision maker, the Tribunal finds the applicant’s evidence that he owes money to loan sharks on his own behalf and on behalf of another individual ([Mr A]) vague and unconvincing. His inability to pinpoint with precision when he took out the loan, only stating that it was [a number of] years ago, is an example of this. His inability to recall the name of the loan shark company’s name also detracts from the applicant’s credibility given that if he was making part payments he would have been dealing with them on multiple occasions.
The Tribunal has doubts about whether the applicant has taken out a loan from loan sharks to renovate his mother’s house, and that he went guarantor for a person called [Mr A] who was a cross guarantor for him, or that he has received threats from the loan sharks and has been threatened by them. The Tribunal also has doubts about his narrative about his brother and his brother’s wife being pursued by loan sharks because the applicant provided his brother’s address to them. The Tribunal would have expected that if the loan sharks were serious about sending him a message to pay, they would have also gone to see his mother or other relatives.
However, even taken at its highest, his claims do not form a basis for extending him protection. This is because the country information discussed with the applicant at hearing, indicates that the authorities of Malaysia are able to offer the applicant state protection against the harm he fears.
Illegal money lending or loan sharking, colloquially known as ‘Ah Long’ in Malaysia, is an offense under Section 5(2) of the Moneylenders Act 1951. If prosecuted, a fine of not less than RM20,000 and not exceeding RM100,000 or imprisonment of up to five years can apply.[2]
[2] KL Consumer Safety Association – No need to fear the loan sharks’ 2015, Bernama (Malaysian National News Agency), 17 February;
In October 2013, The Sundaily reported that figures supplied by the Malaysian Chinese Association (MCA) Head of Public Services and Complaints Department, Datuk Seri Michael Chong, showed that ‘The loan shark menace is worsening with Malaysians expected to be in debt by more than RM40 million this year – compared to last year’s RM39.5 million’. Loan sharks reportedly lent RM34,400,000 to financially-strapped Malaysians up to September 2013, and at the time of the article, ‘426 people were in debt to loan sharks, with each person owing an average of RM80,751’. According to Chong, ‘people continued to borrow from loan sharks despite continuous reminders by the authorities of the repercussions of doing so’. He also said that ‘of the 426 cases, 80% were by gamblers while the rest were drug abusers, failed businessmen and those living beyond their means’. Seven per cent or 32 people were reported to be repeat borrowers, and Chong said that ‘most of the repeat borrowers were involved in drug abuse and that their families were the ones who ended up being harassed by loan sharks’. Chong also said that the ‘police were powerless against loan sharks as the transactions were on a “willing seller willing buyer” basis’. Police, however, ‘can take action if loan sharks resort to violence or extortion to recover their money’.[3]
[3] Loan shark menace worsens in M’sia’ 2013, The Sun daily, 2 October; >
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 member of unlicensed moneylending syndicates … through contact numbers printed in their advertisements, including flyers, posters, banners and business cards...’ The article notes that one of the most significant barriers to prosecuting Ah Long syndicate members is the ‘lack of cooperation from the public, especially those who had fallen victims to the syndicate.’ This problem stems from threats by syndicate members. Police in Perak made 88 arrests during an eight month period and continue to combat Ah Long syndicates by removing marketing materials, such as advertisements, from the public space.[4]
[4] ‘Police cooperate with Council to wipe out loan sharks’ 2013, Daily Express, 28 December; >
Police action against the Ah Long includes a police operation in Kuching, conducted from
23 May 2014 to 23 June 2014, which reportedly resulted in 1,051 illegal advertisements and posters for illegal loans being removed in the 135 police raids conducted.[5] In April 2014, the police and local authorities in Penang ‘pulled down 238 banners and streamers promoting illegal moneylending’.[6] The Malaysian Communications and Multimedia Commission also disconnected the telephone lines of contacts printed on the materials.[7] Between March and May 2015 police in Kota Kinabalu seized between 2,700 and 6,700 ‘posters, banners and
[5] ‘57% drop in commercial crime losses, say cops’ 2014, The Star Online, 2 July; Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April; Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April; Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May; ‘2,700 Ah Long materials removed’ 2015, Daily Express, 28 May; Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May; cards of illegal money lenders’.[8] Reportedly, ‘City Police chief ACP M. Chandra said the police and City Hall had carried out numerous operations under Ops Vulture’.[9]
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.[10] 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’.[11] A more recent report from 2015 confirms that the police are willing and able to protect debtors who receive threats from loan sharks.[12]
[10] ‘Sabah Police probe nine Ah Long cases in 2013’ 2014, The Malaysian Times, 3 January; ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December; The Malaysian Times ‘No need to fear the loan sharks’, 17 February 2015,
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]
[13] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December; ‘Police Free Man Abducted By Loan Sharks’, 2014, Malaysian Digest, 16 October; ‘Loan sharks caught red-handed’ 2015, The Star Malaysia, 29 May; >
Recently the police arrested 13 individuals, including the leader, involved in one of the largest money-lending syndicates, which had operated in Selangor, Kuala Lumpur and Johor.[16]
[16] ‘Police bust largest money-lending syndicate (Updated)’, The Sun Daily, 23 May 2016; >
The Tribunal has also located country information that as recent as 12 July 2017, the Pahang police had busted an illegal money-lending syndicate with the arrest of two men under Operation Vulture. During the operation police seized money lending advertisement posters and phone numbers. It appears that the syndicate openly approached customers by circulating cards displaying the company name and telephone numbers, hanging posters at electrical poles and other places.[17]
[17] Astro Awani, Police Bust Ah Long syndicate in Pahang,
Country information also indicates that there are some concerns expressed about the court system due to judicial inexperience and salary, some selective prosecution and arbitrary verdicts (although these have largely been in relation to high-profile opposition politicians and human rights defenders), but that the majority of case in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.[18]
[18] Department of Foreign Affairs and Trade (DFAT) 2016, DFAT Country Information Report – Malaysia, 19 July, 5.12-5.13.
The DFAT 2016 Country Information Report– Malaysia notes that while the Royal Malaysian Police (RMP) are considered ‘a professional and effective police force’ by ‘local and international sources,’ the integrity of RMP responses are compromised by the ‘level of training, capacity or engagement in corruption’:
5.5 The RMP employs approximately 102,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Home Affairs Minister. Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam does conduct some human rights training and workshops for police and prison officials. Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern (see ‘Police Integrity and Accountability’, below). The RMP is 80–85 per cent ethnic Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.[19]
[19] Department of Foreign Affairs and Trade (DFAT) 2016, DFAT Country Information Report – Malaysia, 19 July.
In terms of corruption, 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 and 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”.[20]
[20] Department of Foreign Affairs and Trade (DFAT) 2016, DFAT Country Information Report – Malaysia, 19 July.
Having had regard to the country information the Tribunal notes that it sets out that loan sharking is illegal, that the police and other authorities have taken action against loan sharks throughout Malaysia over a considerable period of time, have protected victims of loan sharks, the courts operate effectively, and that the authorities continue to enforce the laws in this area.

The Tribunal has had regard to the applicant’s response about not approaching the authorities because he was afraid but is not satisfied that he would be unable to access the protection of the authorities, nor that this protection would not be provided to him. Whilst the Tribunal acknowledges that there are some concerns of corruption within the police force, the country information also notes that the force is a ‘professional and effective’ one and that the focus of the authorities on loan sharking and gangs over a considerable number of years leads the Tribunal to the finding that in this area the police are motivated to provide an effective level of enforcement, deterrence and protection against illegal money lenders or loan sharks. The Tribunal finds therefore that effective protection measures are available to the applicant, in his particular circumstances in Malaysia from the relevant State. Furthermore, the Malaysian State and the authorities of that state are willing and able to offer such protection to the applicant, and that, on the information before the Tribunal, the applicant can access this protection in his home area of Sabah or Kuala Lumpur, that protection is durable, having regard to the long period in which the police have taken enforcement action against loan sharks and protected victims of loan sharking, and, having regard to all the information before the Tribunal, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
In relation to whether the applicant would suffer serious harm because he would be prevented from subsisting, now or in the reasonably foreseeable future. The applicant was able to maintain stable employment for a sustained period in [a certain] industry as an [Occupation 1] in Kuala Lumpur. Even having had a period of unemployment, the Tribunal sees no reason why the applicant could not find some kind of employment in the [same] industry or some like industry in Kuala Lumpur, a large cosmopolitan city, or some other urban area where his skills would place him in good stead.
The applicant has not claimed to fear harm from anyone else for any other reason.
On this basis the Tribunal finds that the applicant does not have a well-founded fear of persecution because effective protection measures are available to him for the feared harm in Malaysia. The Tribunal finds that the applicant does not have a real chance of serious harm arising from money owed to a loan shark or for any other reason in Malaysia, now or in the reasonably foreseeable future. The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution for these or any other related or unrelated reasons.
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).
The Tribunal has also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether the applicant has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
Having regard to the applicant’s claims to fear harm, the Tribunal has considered that the complementary protection provisions provide that there is taken not to be a real risk of significant harm if 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’: s.36(2B)(b). The Tribunal notes that this test imposes a higher standard of protection from State authorities than the standard referred to in Australia refugee law. The Department’s Complementary Protection Guidelines, for example, state, ‘an individual may still face a real risk of significant harm even where a receiving state has a functional system of state protection in place’. The Guidelines further state ‘[e]ven where there are general measures of state protection in place that would otherwise be considered “reasonable” for the population at large, if there remains a “real risk’ of significant harm to the individual in question then Australia’s non-refoulement obligations will be engaged’.
The Tribunal has considered the applicant’s particular protection needs against this higher standard of protection, however, the applicant’s claimed circumstances giving rise to the claimed fear of harm was not clearly expressed and involved gaps in terms of the applicant’s credibility. The country information above, however, indicates that the police and other authorities are focussed on preventing loan sharking in Malaysia and are willing and able to protect victims where such victims are prepared to come forward. The applicant’s explanation for why he had not sought assistance from the authorities because he was frightened is not credible when victims are encouraged to come forward and the applicant has not provided a convincing explanation as to why he could not avail himself of state protection on return to Malaysia.
The Tribunal finds that if, on return, the applicant fears significant harm from the loan sharks, he can access state protection from the police and other authorities which will reduce the risk of him being significantly harmed by the loans sharks or anyone acting on behalf of the loan shark to a negligible level, that is, below the level of a real risk. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.
On the basis of these findings, it follows that 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 that the applicant will suffer significant harm. 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).
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.
Rosa Gagliardi
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.
…

Accessed on 27 October 2017.

[2017] AATA 2935

15 November 2017

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