1708285 (Refugee)

1708285 (Refugee) [2018] AATA 1322 (15 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708285
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Rosa Gagliardi
DATE:15 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 March 2018 at 2:07pm
CATCHWORDS
Refugee – Protection Visa – Malaysia – Ethnicity – Malay Chinese – Social group – Person who has borrowed money from loan sharks and has debts to suppliers – No substantial grounds to believe that the applicant will suffer significant harm

LEGISLATION
Migration Act 1958, ss 5H, 5J , 5K-LA 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 on 22 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 9 February 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for a Protection visa.
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.
Receiving country - nationality
The applicant claims to be a citizen of Malaysia and has provided a copy of his passport to the department with his application. The Tribunal finds the applicant is a citizen of Malaysia which is also his receiving country for the purposes of the refugee and complementary protection assessments. There is no evidence before the Tribunal to suggest the applicant has the right to enter and reside in any third country for the purposes of section 36(3) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The hearing
The applicant comes from the state of Sabah. He is [age] years of age. He has [several] children from his first marriage. The eldest is now [age] and the youngest is [age] years old. He remarried in 2006 and has [more] children. His current wife is in Sabah. His eldest was unemployed. The second child is also not at school but the third and fourth child from his first marriage were at school and one of the children from his second marriage was also at school. His second wife had come to Australia after him without the children but then she was pregnant with their youngest child so she returned to Malaysia. His wife had a [qualification] and was working helping him when he owned his own business but she was not working now. The applicant travelled all over Malaysia to look for customers and his wife remained in the shop to look after the business.
After he finished school at the age of [age] he moved to [a town] in the state of Negeri Sembilan. The applicant’s parents are living in Sabah. They do not work but previously his father was a [Occupation 1]. The applicant’s economic situation was considered difficult by the applicant. His father was only a [Occupation 1]. There were [several] children in the family. After he finished secondary school he could not continue with his studies because they had no money. [Details of siblings deleted].
The applicant did not find work after school. He was doing odd jobs and selling [goods]. At [a certain age] he worked at a [a workplace] until he was [age]. Then he worked as a [Occupation 1] until he was [age] years of age. The applicant then went to Negeri Sembilan and he worked in [a workplace] for three years. After that he worked in a factory producing [certain goods]. He was there for almost 7 years. In the factory he [held a certain role]. The Tribunal noted that the applicant had achieved a level of seniority in the factory but the applicant responded that the salary was low.
In Australia the applicant is working but not legally. Initially he had work rights but then the application was refused when his work rights ceased. He was working [in a certain industry].
Asked if anyone had harmed the applicant in Malaysia in the past the applicant stated that he worked in a factory for 7 years and then left the factory to start his own business selling [goods] from 2013 to October 2016. In 2012 after the government announced the introduction of the GST his business dropped by 70%. He tried to borrow money from the bank but none of his applications were approved so he turned to a loan shark. He borrowed [amount] from one person initially. Then he borrowed a total of [amount] from three people. Asked who these people were, the applicant stated that they put up a lot of posters on the roadside so he contacted them. The Tribunal asked what the businesses were called and he responded that they never gave their business name. He left the factory job in 2015 as his salary did not go up that much.
When he was appointed as [a senior role] he was only making [amount] Ringgit per month but the cost of living was higher than the salary. So he decided to leave and set up his own business.
He first borrowed from the loan shark in April 2016. His business was not doing that well due to the worsening economy in Malaysia and he was not able to collect money from his clients. In June 2016 he borrowed further money from three people and after that he had to resort to borrowing more. In all he borrowed from 6 people to service all the debts he had. In 2014 his business made a profit but he was taxed by the government.
By September and October 2016 he was unable to pay his loan and that was when he started to receive threats. Asked to specify, the applicant stated that they said that if he failed to repay his life would be gone as would those of his family. The Tribunal asked the applicant to specify who made such threats and in what context. He stated that it happened several times when he was at work and at home so much - so that he had to move home so that they would not know where they were. The Tribunal asked how many people had gone to see the applicant and he stated that nobody went to see him but they were looking for him. He stated that the Malaysian government favoured the sons of the soil. That was why he failed to get help from government agencies and the bank. The Tribunal commented on the country information that indicates that the Chinese are a dominant group in Malaysia and that they also are part of the professional and educated classes. Furthermore, they dominate the business and commerce sectors and have high relative wealth compared to other ethnic groups in Malaysia. Further, Chinese Malaysians participate in the political life of the country. This would seem to indicate that there weren’t systematic and targeted impediments to Chinese Malaysians doing well in Malaysia.
The applicant stated that under the former Prime Minister Mahathir the Chinese received many benefits but since Prime Minister Najib, the opportunities for Chinese entrepreneurs had disappeared. Opportunities had been transferred to Malays.
The applicant stated that all the loan sharks he borrowed from were Chinese. He had several messages in Chinese on his mobile to show the Tribunal. He had a photo of a man who went to his shop to purportedly look for him. He showed the Tribunal a photo of a man leaving a van.
The Tribunal asked whether the man in the photograph had gone to his shop alone or with others and the applicant stated that he was not sure if there were others in the vehicle. The photograph was taken when he was not on the premises. The applicant stated that the man depicted in the photograph had definitely gone to find the applicant. The Tribunal noted that it could have simply been a customer attending his shop. The applicant stated that was not right because the man was the one he had borrowed money from. The man went to his shop on 1 November 2016 but the applicant had returned to Sabah by then and a neighbour had taken the photograph.
The applicant showed messages to the Tribunal indicating that the applicant would get his retribution (in English) and the applicant stated this was from his supplier as he had not paid him. In the Malay messages the applicant was referred to as trash. The applicant stated that the majority of the messages were in Chinese but the applicant claimed there was a threat by Ah Long that if he failed to pay they had a company in Sabah and they could get people to pursue him there also.
The Malay messages consisted of confirmation of successful transactions. The applicant stated that this was confirmation he was paying the loan sharks. In all, he had borrowed in Ringgit the equivalent to AUD [amount]. He was not servicing the debt from Australia because he was only sending money for his mother, his second wife and the children from both marriages who were not working and going to school. He was also working to pay off the money he borrowed to come to Australia.
The applicant stated that he ran away from these people but was receiving messages from them and he dared not open some of them because he was afraid. Asked if any members of his family had experienced harm in Malaysia, the applicant responded that his wife had been receiving calls. His brothers and sisters could not assist him with his debts. They had their own responsibilities and were not earning much.
The Tribunal put to the applicant country information which indicated that the government was making inroads into cracking down on Ah Long and that this commitment has continued to the present time through various operations. There were organisations the applicant could also turn to. The Kuala Lumpur Consumer Safety Association, for example, wrote that it was because people continued to pay and were cowered by the loan sharks that caused the problem. The Association stated that people should not be afraid to make a police report. Malaysia was a democratic country with laws and regulations and that the loan sharks were not immune from the law, however, when victims of loan sharks were too afraid to report them, this made them immune. People were also encouraged before making a police report to get all the information together by providing registration numbers and photographs as these could all be used to assist in investigations.[1]
[1] KL Consumer Safety Association – ‘No need to fear the loan sharks’ Bernama (Malaysian National News Agency, 17 February 2015).
The Tribunal also provided the applicant with information regarding the effectiveness of the police and the legal system generally in Malaysia. The applicant responded that what the Tribunal had read to him was true. However in terms of the Malaysian Chinese Association, many victims had gone to see the head, Michael Chong, but he has not been able to solve all of their problems. A friend had told him going to see Michael Chong was useless because Michael Chong was in charge of the syndicates – he was “behind the curtain”. He controlled the loan sharks from behind the scenes.
The applicant stated that furthermore people who went to see him had to sell their houses and land. He was an imposter. Asked if he had approached the police, the applicant stated He had once tried to report the matter but they told him that he was the one who borrowed the money so he had to resolve the problem.
Asked if the loan sharks had been violent towards him or his family, the applicant stated not yet, but they had gone to his shop to look for him and were calling his wife and threatening them. They said, “Where is that cheat? Remember that as long he is in Malaysia we will find him because we are everywhere”. The Tribunal queried that these Ah Long were part of organised national operations as they appeared instead to operate in small groups to exploit people in their local area. He stated there was one big umbrella in control and Michael Chong was in cahoots with the loan sharks. He could not go anywhere in Malaysia. He could go to the village but then again he would not be able to find a job to earn a living. All he could do is odd jobs. His wife could not assist financially by working because she too was living in fear and she did not want to move around. They had been living with in-laws previously but had moved out as they did not want their relatives involved.
Asked to detail what he thought would happen to him on return to Malaysia the applicant stated that firstly he would be harassed by the loan sharks. Secondly, he was not sure whether his supplier had taken legal action against him because he had not paid him. He would then have to go to court and the loan sharks would definitely find him.
The Tribunal highlighted the country information which showed that the Malaysian economy was growing and he could go elsewhere in Malaysia to start again.[2] He stated that what was read was positive but there were a lot of bad things happening in Malaysia. For instance, the production for [certain goods] manufactured in Malaysia and sold in Australia has gone to [another country].
[2] Malaysia World Bank, Overview, accessed on 15 March 2018.
The Tribunal asked what the harassment from Ah Long involved. The applicant responded that it had never happened to him but what he had heard was that they were beaten up and their wives were harassed. Some victims even resorted to committing suicide by jumping off buildings or drowning themselves, or gassing themselves in a car because the loan sharks were harassing them to pay off their debts.
The applicant stated that he would definitely return to Malaysia. He just wanted the opportunity to work here so that he could start repaying these people. The Tribunal asked how long his wife was in Australia and he responded for two months. The Tribunal noted that both he and his wife were able to leave the country without difficulty and his wife had also returned there without difficulty, so why should the Tribunal accept that the applicant will not be able to return without problems. The applicant stated that he asked his wife and children to come to Australia in June 2017, but they were turned away at the border in Australia. They got to the airport but were not allowed to enter.
The applicant stated that he just wanted a chance to repay the loan by working and after that he would return to Malaysia.
Country information
Efforts in Malaysia to combat Ah Long – loan sharks
Illegal money lending or loan sharking (Ah Long) is an offence under section 5(2) of the Moneylenders Act 1951. If prosecuted, a fine of not less than RM 20,000.00 and not exceeding RM 100,000.00 or imprisonment of up to five years can apply.[3]
[3] The Malaysian Times ‘No need to fear loan sharks.’ 17 February 2015.
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.[4]
[4] ‘Police Cooperate with Council to wipe out loan sharks, 2014, Daily Express, 28 December.
Police action against the Ah Long includes a police operation in Kuching, conducted from
[5] ‘57% drop in commercial crime losses, say cops’, 2014, The Star Online, 25 April.
[6] Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April.
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'. The Malaysian Communications and Multimedia Commission also disconnected the telephone lines of contacts printed on the materials. 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'. Reportedly, 'City Police chief ACP M. Chandra said the police and City Hall had carried out numerous operations under Ops Vulture'.[6]

Numerous other 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.[7]
[7] ‘Sabah Police probe nine Ah Long cases in 2013’, 2014, The Malaysian Times, 3 January.
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 license'. Additionally, 'four more cases and seven individuals were investigated under Section 29AA of the same Act for putting up posters.'[8]
[8] ‘Malacca Police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December.
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'.[9]
[9] The Malaysian Digest, 29 May 2015.
The Malaysian Times[10] reported that there was no need to fear loan sharks. This article reports that the lack of exposure on law to 'ah long' or loan sharks and the fear of making a police report after being threatened are among the factors causing the victims of these illegal moneylenders to endure endless debts. The article goes on to say that the Kuala Lumpur Consumer Safety Association has appealed to people not to be afraid to report threats made by loan sharks because they are not immune from the law but when victims are too afraid to make a police report, that makes them immune.
[10] The Malaysian Times ‘No need to fear loan sharks.’ 17 February 2015.
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.[11] This has been in an effort to combat illegal activity around the state capital. The Tribunal noted other media reports that the police are more interested in catching these illegal money lenders involved in threats and illegal activities, and that the applicant’s claims that victims would not be assisted by the police are not credible.
[11] Astro Awani, ‘Police Bust Ah Long syndicate in Pahang’,
The Star[12] reported that over 2000 cases of loan sharks had been reported nationwide between January 2016 and July 2017. Comm Thaiveegan said that ‘a total of 2.273 cases were reported in this period, involving about RM68.8 mil in loans.’ He added that ‘the police have managed to solve 50 percent of these cases.’
[12] The Malaysian Star ‘Police over 2000 loan shark cases reported form Jan 2016 to July 2017’ 7 August 2017.
Even more recently, undercover police in Labuan, a duty free island, uncovered a syndicate linked to a network of loan sharking activities with several arrests in February 2018.[13] This would indicate that there has not been a let up in the battle against loan sharks over the years.
[13] ‘Labuan police uncover duty-free island’s first ‘ah long’ syndicate’, Malaysia Updates,
Finally, the New Strait Times[14] reported that Datuk Nadzim Johan from the Malaysian Muslim Consumers Association had been able to negotiate with loan sharks and that they had been battling them for years.
Law enforcement and the legal system in Malaysia
[14] New Straits Times ‘Loan Sharks ruin lives.’ 23 April 2017
The DFAT report notes that law enforcement entities in Malaysia operate at both federal and state level and that local and international sources consider the Royal Malaysian Police (RMP)[15] to be a professional and effective police force. It states:
‘Royal Malaysian Police (RMP)
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.
[15] DFAT Country Information Report – Malaysia 19 July 2016.
In its Country Reports on Humans Rights Practices for 2015 the USDOS reported:
The Royal Malaysian Police (RMP) is a national police force that is well trained and equipped….However, the RMP is sometimes limited in its effectiveness in investigations.’[16]
[16] US Department of State 2016, Malaysia 2016 Crime and Safety Report, 29 February at p.11
The Tribunal notes the following information relating to corruption within the RMP:
‘Police Integrity and Accountability
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.[17]
[17] Ibid.
The Tribunal also noted a report by Human Rights Watch in 2014[18] 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.
[18] No answers, no apology: Police abuses and accountability in Malaysia, Human Rights Watch, 2 April 2014.
The Tribunal noted that the country information indicates that the Malaysian authorities including the police and judiciary are reasonably effective in combating criminal gangs and there has been a great deal of coverage in Malaysian media regarding the various operations by law enforcement authorities to combat this. In its Country Information Report – Malaysia, DFAT provides the following summary regarding Malaysia's judicial system:
Judiciary
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.
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 populations were pre-trial detainees.
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.[19]
Ethnicity – Malay Chinese
[19] DFAT Country Information Report – Malaysia 19 July 2016.
The Tribunal discussed with the applicant information contained in DFAT’s county information report:
Chinese Malaysians constitute one of the largest overseas Chinese communities I the world and are the second largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians.
Chinese Malaysians make up a high percentage of the professional and educated class, dominate business and commerce sectors and have high relative wealth compared to other ethnic groups in Malaysia…
Chinese Malaysians freely participate in political life, represented by ministers in the current cabinet and participation in opposition parties. The largest Chinese party was traditionally the Malaysian Chinese Association (MCA), a component of the Barisan Nasional (BN) coalition…
There are comparatively fewer ethnic Chinese in the Malaysian civil service. The predominant use of the Malay language is a major barrier to Chinese employment in the civil service. On the other hand, contacts told DFAT that Chinese employees are preferred in the private sector, mostly because many business owners are Malaysian Chinese.
…..
DFAT assesses that Chinese Malaysians generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.[20]
[20] DFAT Country Information Report, Malaysia, 19 July 2016.
A now dated report (5 November 2007) by the Immigration and Refugee Board of Canada, reports:
According to media sources, Malaysia has known relative peace amongst its ethnic communities since riots against the Chinese minority occurred in 1969 (Asia Times Online 24 Mar. 2006; AFP 17 Nov. 2006; AFP 29 Aug. 2005). Although Islam is the official religion, the constitution guarantees religious freedom to minorities (HRWF 17 July 2007). Sources indicate that minorities are free to practise their culture and religion without restrictions and that the government does not impose restrictions in the field of education (AFP 29 Aug. 2005; Asia Times Online 24 Mar. 2006).
However, in 2005, the government renewed an affirmative action policy initiated in 1969 after the race riots (Freedom House 2007). Under governmental provisions, ethnic Malays and other indigenous people are given advantages concerning property ownership, civil service work, access to higher education and other benefits (US 6 Mar. 2007; Asia Times Online 24 Mar. 2006; Freedom House 2007). The affirmative action policy, known as the New Economic Policy, was adopted to lift the economic condition of ethnic Malays (ibid.). Sources indicate that the policy has created tensions among communities and a "feeling of being discriminated against" for minorities (AFP 29 Aug. 2005; Asia Times Online 24 Mar. 2006). According to Asia Times Online, the results of a survey on race relations published in March 2006 clearly indicated that racism and stereotyping are significant issues in Malaysia (ibid.).
Additional information on specific examples of discrimination against Malaysians of Chinese descent was scarce among the sources consulted by the Research Directorate.[21]
[21]
On 12 to 13 July 2015 a disturbance, referred to as the ‘Low Yat riot’ occurred at a popular retail centre in central Kuala Lumpur. More than 100 Malays shouted anti-Chinese slogans, destroyed property and attacked bystanders following social media reports that a Chinese Malaysian vendor cheated a Malay man over a fake smart phone.[22]
The Malaysian economy
[22] DFAT Country Information Report Malaysia, 19 July 2016.
The World Bank has provided its latest overview on Malaysia:
From an economy dominated by the production of raw natural resource materials, such as tin and rubber, even as recently as the 1970s, Malaysia today has a diversified economy and has become a leading exporter of electrical appliances, electronic parts and components and natural gas. After the Asian financial crisis of 1997-1998, Malaysia continued to post solid growth rates, averaging 5.5 percent per year from 2000-2008. Malaysia was hit by the Global Financial Crisis in 2009 but recovered rapidly, posting growth rates averaging 5.7 percent since 2010.
Less than 1 percent of Malaysian households live in extreme poverty, and the government’s focus has shifted toward addressing the well-being of the poorest 40 percent of the population (“the bottom 40”). This low-income group remains particularly vulnerable to economic shocks as well as increases in the cost of living and mounting financial obligations. Income inequality in Malaysia remains high relative to other East Asian countries, but is gradually declining. For example, from 2009 to 2014 the real average household incomes of the bottom 40 grew at 11.9 percent per year, compared to 7.9 percent for the total population of Malaysia, thus narrowing income disparities. Following the removal of broad-based subsidies, the government has gradually moved toward more targeted measures to support the poor and vulnerable, mainly in the form of cash transfers to low-income households.
Malaysia’s near-term economic outlook remains favorable, reflecting a well-diversified and open economy that has successfully weathered the impact of external shocks. Domestic demand is expected to continue to anchor economic growth, supported by continued income growth and a stable labor market, while an improving external environment would contribute positively to demand for Malaysia’s tradable goods and services. Accelerating structural reforms to enhance public sector performance and boost the productivity of public spending will be vital to sustain robust growth in a challenging external environment.[23]
Credibility
[23] World Bank Malaysia Overview, September 2017, accessed on 15 March 2018.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. 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 it is for the applicant to make his/her claims and to provide as much detail as possible in order for the decision-maker to reach a level of satisfaction that certain events occurred or did not occur. Also, greater weight may be given to one piece of evidence against another and there is no rule that there must be a positive state of disbelief before making adverse assessments.
The Tribunal notes that the applicant’s narrative was in places vague and general and the applicant was able to provide little detail about the loan sharks he claims were pursuing him. The Tribunal notes the photograph submitted of a man coming out of a van, but this photo that could be a photo of anyone, is not persuasive evidence that the applicant is being pursued by loan sharks. Similarly, with the text messages shown to the Tribunal by the applicant, such messages can be digitally manipulated and it is not always clear who the originator may have been. Other little probative evidence by way of any contractual arrangements the applicant might have entered into with the loan sharks has also not been made available to the Tribunal. Significantly, the applicant claimed at hearing that he approached the police and they did not assist him, yet the applicant has provided little evidence to support his claim, by way of a police report, or some other indicator that he did so.
Claims about owing money to loan sharks and suppliers
Nonetheless, the applicant at hearing did appear to be stressed about financial matters and it is plausible that given his extensive family commitments in Malaysia, he resorted to borrowing money from loan sharks. The Tribunal is prepared to give him the benefit of the doubt. Accordingly, the Tribunal accepts the applicant’s evidence that he borrowed money from a loan shark or loan sharks and that he has been threatened and his wife harassed by them as claimed. The Tribunal notes that the applicant has a subjective fear that in the event he is returned to Malaysia he will be threatened, abused or worse by them.
The Tribunal finds that the applicant belongs to a membership of a particular social group; “a person who has borrowed money from loan sharks and has debts to suppliers”. Therefore the Tribunal accepts that he has a genuine and credible fear of harm for a reason mentioned in s.5J(1)(a), in the event he returns to Malaysia. While the Tribunal accepts there is a real chance of serious harm, including physical ill-treatment, as a result of him having borrowed money from a loan shark, the Tribunal has considered whether the applicant has access to effective protection measures as a victim of loan sharks by operation of s.5J(2) of the Act.
The DFAT report notes that ‘credible local and international sources consider the Royal Malaysian Police to be a professional and effective police force.’ [24]
[24] DFAT Country Information Report Malaysia 19 July 2016.
In this case, the Tribunal does not accept that the applicant will be denied effective protection measures. While the Tribunal accepts that loan sharks are widespread in Malaysia, based on the available country information, the Tribunal does not accept that the police are so extensively corrupt as to deny the applicant protection. The extensive country information setting out the examples of how far reaching operations such as Ops Vulture are, and the genuine, as opposed to symbolic efforts to stamp out loan sharks, reinforces that the law enforcement community in Malaysia are taking credible steps to disrupt the activities of Ah Long. The country information does not support the applicant’s claim that he was turned away by the police because the problem was viewed as his problem, and that the police would not look sympathetically at his case. The Tribunal rejects this claim. This is particularly so as the applicant has not provided evidence of him having approached the police to seek that they investigate what according to his testimony appears to be a group of loan sharks involving more than one.

The applicant has claimed that the police took no interest in his plight with the loan sharks. Yet the applicant’s evidence in this regard is not consistent, as put to him at hearing, with the extensive country information which shows that victims are encouraged to provide information to the police so that they can investigate matters, particularly where victims are subject to threats of violence and intimidation.[25]
[25] ‘Menace on the rise’ Hani Shamira Shahrudin, New Straits Times, 24 January 2017, accessed on 13 March 2018. If syndicates use violence against borrowers they are investigated under section 506 of the Penal Code for criminal intimidation. Cases were also investigated under section 385 for putting an individual in fear of injury to commit extortion.
The applicant’s claims that the MCA Public Services and Complaints Department Head, Datuk Seri Michael Chong, is working against victims and working hand in hand with loan sharks is also not sustainable and the Tribunal rejects it. The country information shows that Datuk Chong has been working consistently to raise awareness of the dangers of borrowing from loan sharks and that he has advocated on victims approaching the police to have their matters investigated.[26]
[26] ‘Michael Chong: Stop borrowing from loan Sharks’, Keshia Mahmood, The Sun Daily, 6 February 2016.
When considering the operation of s.5J(2) alongside the available country information, the Tribunal is satisfied that effective protection measures are available to the applicant in his receiving country. The Tribunal finds that that the effective protection measures are able to be provided to the applicant by the State [27] and that the State is able and willing to provide such protection.[28] The Tribunal finds that the applicant is able to access the available protection and the protection provided is durable.
[27] s.5LA(1)(a) of the Act
[28] s.5LA(1)(b) of the Act
Further, from the available country information the Tribunal finds that Malaysia has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system.[29] Therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as a victim of a loan shark or any related claim or any other reasons mentioned in s.5J(1)(a).
[29] s.5LA(2)
Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that he does not satisfy s.36(2)(a) regarding his claims as a victim of a loan shark.
The applicant has also made claims that he would not be able to find a job in the village where his wife is now living. The Tribunal accepts that the jobs the applicant has held have been less than lucrative but he has had extensive periods of stable work, even in a senior position. As such, the Tribunal finds that the applicant will not suffer serious harm by way of economic hardship that threatens his capacity to subsist; that he would be denied access to basic services, where the denial threatens his capacity to subsist were he to return to Malaysia now or in the reasonably foreseeable future. The country information on the economy in Malaysia indicates that the applicant has experience in several sectors and given he has now experienced work at an international level in Australia, the Tribunal is not satisfied that the applicant faces a well-founded fear of harm because he and his family will not be able to subsist.
The Tribunal has also considered whether there are any substantial reasons for it to believe that the applicant, as a necessary and foreseeable consequence of him being removed from Australia to his country of reference, faces a real risk of significant harm. The Tribunal does accept that as a result of being a victim of loan sharks, the applicant faces a risk of harm that includes severe physical violence and ill-treatment and that this harm will amount to significant harm as outlined in s.36(2A)(c) and (d).
Under s.36(2B), 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’[30] To satisfy s.36(2B)(b)[31], the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[32] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities. However, the test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection.
[30] s.36(2B)(b) of the Migration Act 1958
[31] MIAC v MZYYL (2012) 207 FCR 211
[32] MIAC v MZYYL (2012) 207 FCR 211 at [40].
Having considered the country information and the accepted circumstances of the applicant as discussed under the Tribunal’s effective protection findings for s.36(2)(a), the Tribunal finds that the level of protection from state and other authorities available to him, if removed from Australia to anywhere within his country of reference, will reduce the risk of significant harm to below that of a real one. Given that Malaysia’s legal system and criminal law operate reasonably effectively, the Tribunal finds that the police could provide the applicant with effective protection from physical and other harm. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Malaysia, protection such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Malaysia and does not satisfy s.36(2)(aa) in this regard.
Having considered the applicants claims in relation to the loan sharks and the accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia that there is a real risk he will suffer significant harm, including that he will be arbitrarily deprived of his life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s36(2)(aa).
Ethnicity – Malay Chinese
The applicant complained of general discrimination against Chinese Malaysians and the fact that Malays are given a discount for housing and there were other less obvious matters that make Chinese persons feel the situation is not fair for all Malaysians.
The Tribunal accepts that ethnic Malays and other indigenous groups, collectively known as bumiputera, are given special status under the Constitution and government policies exist which implement preferential programs to boost their economic position.[33] However, based on DFAT’s assessment that Chinese Malaysians generally do not experience violence on a day-to-day basis, the Tribunal finds remote the chance the applicant would face a real chance of serious harm on return to Malaysia, now or in the reasonably foreseeable future, on the basis of his Chinese ethnicity. The applicant also complained that the banks discriminated against Chinese Malays but given the country information pointing to Chinese Malays dominating the business sector, the Tribunal does not accept that the applicant has been discriminated against on the basis of his race or ethnicity. His fear of persecution on the basis of his ethnicity is not well founded.
[33] DFAT Country Information Report, Malaysia, 19 July 2016 at 3.1
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 he will suffer significant harm.
For the reasons set out above, the Tribunal has found there is not a real chance the applicant will suffer harm on the basis of his race or ethnicity now or in the reasonably foreseeable future. In MIAC v SZQRB, 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’ in the Refugee Convention definition.[34] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J. It follows that the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Malaysia for reason of his race or ethnicity.
[34] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
The Tribunal has accepted that as a Chinese Malay the applicant will not receive the preferential treatment accorded to ethnic Malays and other indigenous groups by the Malaysian government. However it does not necessarily follow that he will be subjected to ‘significant harm’. Section 36(2A) provides that a person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, the death penalty will be carried out on them or they will be subjected to torture or cruel or inhuman or degrading treatment or punishment.
It is not suggested that the applicant will be arbitrarily deprived of his life, be tortured or have the death penalty carried out on him and the Tribunal finds there is not a real risk any of those things would occur. Nor does the Tribunal accept that the Malaysian government’s failure to provide him with the preferential treatment available to ethnic Malays and other indigenous groups constitutes cruel or inhuman or degrading treatment or punishment as those terms are defined in section 5 of the Act (attached). For these reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Malaysia on the basis of his Chinese ethnicity.
Given these findings the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) in respect of his ethnicity. The Tribunal is also not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusion
For the reasons given above, individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). 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.
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 4 March 2018.

Accessed on
4 March 2018.

Canada: Immigration and Refugee Board of Canada, Malaysia: Reports of discrimination against Malaysians of Chinese descent (June 2004 - October 2007), 5 November 2007, MYS102643.E, available at: accessed
15 March 2018.

[2018] AATA 1322

15 March 2018

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