1712448 (Refugee) - [2021] AATA 5072

1712448 (Refugee) [2021] AATA 5072 (14 January 2021)

DECISION RECORD

DIVISION: Migration & Refugee Division
CASE NUMBER: 1712448

COUNTRY OF REFERENCE: Malaysia

MEMBER: Simone Burford

DATE: 14 January 2021

PLACE OF DECISION: Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 January 2021 at 9:44am

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from money lender – former employee accused of keeping money repaid by clients – threatened, kidnapped and bashed – unable to repay money father borrowed to secure release – continued threats to parents until their deaths – no approach to authorities – credibility – delay in applying for protection – applied for student visa with no intention to study – new claims and evidence given at hearing – no supporting evidence provided – country information – effective protection measures – government and police actions against money lenders – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5J, 5LA, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v MZYYL [2012] FCAFC 147
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 and Border Protection on 25 May 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 14 December 2016. The delegate refused to grant the visa on the basis that he was not a person in respect of whom Australia has protection obligations as outlined in ss.36(2)(a) or 36(2)(aa) of the Act.

The applicant appeared before the Tribunal on 2 April 2020, 20 August 2020 and 15 September 2020 to give evidence and present arguments.

The initial hearing on 2 April 2020 was held by telephone. The hearing was held during the COVID-19 pandemic. At the time the hearing was conducted, the Tribunal registry was closed and the Tribunal was not undertaking in-person hearings. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. At that hearing the Tribunal discussed with the applicant whether there were any changes to his claims and the information on which he was seeking to rely in support of his claims.

The second hearing was scheduled to be held by audio visual means, however, following difficulties with securing a clear connection, the Tribunal determined the hearing should not proceed and the hearing was adjourned to another day.

The third hearing was held in person at the Perth registry.

The hearings were conducted with the assistance of an accredited interpreter in the English and Malay languages. The Tribunal notes that the applicant elected to respond at the hearings in English in most cases and the interpreter was only used to clarify questions or responses where needed. The Tribunal notes the applicant was proficient in English and was able understand and to respond clearly to questions in English.

The applicant was represented in relation to the application to the Tribunal. The Tribunal attended the hearings and made written and oral submissions with respect to the application, including submissions made following the third hearing.

DECISION MAKING FRAMEWORK

Criteria for a protection visa

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).

When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.

A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).

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.

‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

Credibility assessments

In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[1]
[1] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36] –[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at
[30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]-[70] per Nicholls J.

The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[2] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3]
[2] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out.[5]

[4] MIMA v Rajalingam (1999) 93 FCR 220.

[5] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at

[348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[6] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[7]
[6] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for
Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].
[7] See, for example, the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]-[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.

Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held.

If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear, there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[8]
[8] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

The Tribunal notes that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible. In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, in particular [8], [13], [17]–[19] and [27]–[28].

Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[9]
[9] Prasad v MIEA (1985) 6 FCR 155 at [169–70]; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex
parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, I November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

Mandatory considerations

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

The Tribunal notes in particular that it has had regard to the most recent DFAT Country Information Report: Malaysia dated 13 December 2019 (the 2019 DFAT Report) in considering the claims raised in the application.

CLAIMS AND EVIDENCE

The issue in this case is whether the applicant has a well-founded fear of persecution in Malaysia because he owes money to loan sharks in Malaysia, or for any other reason, or whether complementary protection provisions otherwise apply.

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Applicant identity and country of reference

The applicant claims to be a citizen of Malaysia. The applicant provided a copy of his Malaysian passport issued on [in] 2014 to the Department. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.

The Tribunal finds that the applicant is a citizen of Malaysia, which is also his receiving country for the purposes of the refugee and complementary protection assessments.

Background

The following background is based on the evidence given by the applicant.

The applicant is a [age]-year-old Malaysian citizen. He is Hindu and identified himself as ethnically Tamil. He is not married and has no children. He arrived in Australia [in] August 2014 on a [visa]. He travelled to Australia alone and does not have any family here.

Prior to coming to Australia, he was living mostly in Kalang, Malaysia. His father died in February 2015. He claimed his father died of ‘stress and sickness’ due to his claimed debts but when queried by the Tribunal about the cause of death recorded in the death certificate provided by him to the Tribunal, he confirmed it recorded his cause of death as ‘old age’. His mother died in August 2019 while living with his sister in Kedah, Malaysia. Her death certificate appears to indicated the cause of death was a ‘stroke’.

The applicant has 2 brothers and 3 sisters who he thinks are living in Malaysia. He claims not to have had contact with his brothers since 2014 prior to leaving Malaysia for Australia. He claims to have lost contact with his sisters when they ‘married and got their own lives’. He said he wasn’t sure where they were living. The Tribunal queried how if this was the case, he knew his sister and mother had been living in Kedah. He said a cousin told him about his mother. He said his cousin lived in Kalang and had sent him the death certificates.

Before he left Malaysia, he said his second brother was living with his parents in Negiri Sembilan. The applicant was living ‘mostly in Kalang’ and when he had a day off he would return to Negri Sembilan to visit. He said his father would come and stay with him sometimes.

He said that he had travelled to [Country 1], [Country 2], [Country 3], [Country 4] and ‘mostly South- East Asian countries’ 10 to 15 years ago for tourist purposes.

In Malaysia, he worked at [Employer 1] for 7 or 8 years. He finished working there in June 2014. Prior to that he worked at [Employer 2], where he worked for 5 or 6 years. He said that [Employer 1] sold meats but also did money lending. He said [Employer 2] was a registered money lender. He claimed to be working in debt collection for both companies. He said he worked collecting loans for the companies. He said mostly people provided post- dated cheques or debit cards for the repayment of debts.

Once in Australia, his visitor visa was extended for 6 months and on 4 June 2015, he was granted a [Student] visa. On 7 December 2016, that visa was cancelled. On 14 December 2016[10], the applicant applied for an XA-866 Protection visa and he was granted an associated Bridging visa on 13 January 2017. In May 2018, the applicant was granted his current Bridging visa (which the Tribunal understood from his evidence included work rights).
[10] The delegate’s decision records the date of application as 30 December 2016, however the Tribunal has used the date the application was filed with the Department (according to the documents on the Departments’ file).

He is currently working at [Employer 3] in Australia.

Summary of the applicant’s claims and evidence

Claims

The Tribunal had a copy of the Department’s file in relation to the applicant. The Tribunal also had a copy of the Delegate’s decision, which was provided by the applicant.

At the hearings, the Tribunal explained to the applicant the documents before it. The Tribunal read to the applicant the claims contained in his application for protection, which were as follows:

Why did you leave that country?
I used to work at as a debt collector.
I had financial problems so I took loan and couldn't pay back, they forced me to pay urgently.
I told them to give me extra time as I am in financial problem, they didn't understand my situation they constantly asked for money and threatened me many times.
They once kidnapped me, they bashed me, they called my father to bring $15,000 to them to set me free, my father borrowed money from friends and gave to them. I was going to go to the police but they threatened me to kill me and my family.
I feared to be killed, I was not safe.
I came to Australia to be away from Malaysia for a few weeks.
My parents constantly called me, told me not to return to Malaysia as they were asking for me everyday. My family were worried about my life, they were stressing for me.
Due to the stress of this my father passed away [in] Feb 2015, unfortunately I couldn't go to his funeral.
Have you experienced harm in that country?
I have received many threats.
I have experienced harm emotionally physically and physiologically
What do you fear may happen to you if you go back to that country?

I fear to be killed.
Who do you fear may harm or mistreat you if you go back?
The people I took the loan from.
Why do you think this will happen to you if you go back?
As I have received many threats.
Do you think the authorities of that country can and will protect you If you go back? The dept collectors are very dangerous, I do not believe to police can protect me. (errors in original)

At the first hearing, the applicant said these claims were inaccurate and did not reflect what he had told his previous agent who he had since found out was not registered.[11] He said he had seen the application and requested changes but they had not been made. At the time of the first hearing, the applicant’s new migration agent had not sought to obtain a copy of his application forms from the Department and was not aware of their contents despite having been appointed some six weeks prior to that hearing. The Tribunal notes that a copy of Department Forms 866B and 866C forming part of the applicant’s application for the visa were provided to him, via his representative, by the Tribunal on 20 August 2020.
[11] The Department file indicates the Department notified the applicant by email on 14 March 2017 that his then migration agent’s registration had been cancelled and advising him of the relevant effects of that cancellation with respect to his application.

In pre-hearing submissions, the applicant’s migration agent submitted that:

·The applicant was a member of a particular social group of ‘victims of loan sharks in Malaysia’;

·The applicant worked as a debt collector for [Employer 2] in Malaysia. His role involved collecting money from people on behalf of his employer for debts owed.

·He resigned from his role as a debt collector for [Employer 2] in December 2006 and started working for [Employer 1].

·After resigning from [Employer 2], in July 2014 the applicant started receiving phones calls from unknown people claiming that the applicant owed [Employer 2] RMB80,000 that was given to the applicant by clients when he was still working for [Employer 2].

·The applicant explained to the unidentified person that he had not kept any of the money given to him by clients of [Employer 2]. All the money the applicant collected during his employment with [Employer 2] was deposited into [Employer 2] bank account or handed over to the relevant person at [Employer 2] as per its policy. However, the applicant continued to receive threatening phone calls from the unknown people and unknown phone numbers.

·The applicant did not take the threats seriously because he knew he did not owe any person any money and did not take any money from [Employer 2] during the course of his employment. The threats escalated from phone calls to the applicant’s house being sprayed with paint.

·In May 2014, the applicant used his friend’s car and dropped his friend at work at Petaling Jaya where he worked as a [Occupation 1] with [Employer 4] and returned to [Town 1] to have his breakfast. Unknown to the applicant, his friend was kidnapped by loan shark gang members (the gang members) and taken to an unknown house and forced to call the applicant over the phone to enquire about his location. The applicant’s friend called him and asked what he was doing and where he was, and the applicant informed his friend that he was at [Town 1] Petrol station. The applicant did not suspect anything was wrong and answered his friend’s question.

·Shortly after the phone call, when the applicant was still at [Town 1] Petrol Station, five to six armed men forcefully removed the car key while the applicant was still sitting in the driver’s seat with rolled down windows.

·The men removed the applicant from the car and took him to another car and covered his face and mouth before driving him away to a house in a city of Petaling Jaya where the applicant’s friend was being held. Upon arrival, the applicant was bashed and tortured.

·The men took a copy of the applicant’s National Identity Card (NIC) and informed him they could locate him wherever he goes in Malaysia.

·The men demanded RM30,000 as an initial payment to the loan before releasing the applicant and his friend. They demanded that the applicant call his family and friends to provide them with money. They threatened that they would otherwise kill the applicant and his friend.

·The applicant called his father, who managed to borrow RM15,000 from loan sharks and gave the money to the men. They took a copy of the applicant’s National Identity Card before releasing the applicant and his friend and demanded the rest of the money to be paid with interest.

·Once they were released, the applicant’s father took him to the hospital for treatment of injuries sustained on his [body part]. The applicant still has a scar on his [body part] that he suffered as a result of the torture inflicted on him. The gang members became aware that the applicant sought medical treatment and threatened to kill him and his family if they ever reported the torture to police.

·The loan shark gang members splashed the applicant’s house with red paint, signifying that the applicant or members of his family owe a loan to loan shark gangs.

·After the loan shark gang members released the applicant, he borrowed RM10,000 to pay for the interest on the money his father borrowed to secure his release from the loan shark gang members who kidnapped and tortured him. As a result, the applicant has outstanding loans to loan sharks that he cannot afford to pay because he lost his employment with [Employer 1] shortly after the kidnapping and torture.

·[In] February 2015, the applicant’s father died and did not make the full repayment of the money borrowed from the loan sharks. The applicant’s family and friends are still being harassed and threatened by the loan shark gang members. After the death of his father, the gang members continue to harass, intimidate and threaten his mother to pay the outstanding loan.

·The applicant’s mother relocated to another city within Malaysia, but the gang members managed to find her and continue with their threats and intimidation.

·In August 2019, the applicant’s mother died without paying the loans that his father owed to the loan sharks. The death was as a result of the stress associated with the harassment, intimidation and threats received from the loan shark gang members.

·The applicant’s sisters and brothers have relocated to another town in Malaysia to avoid being located by the loan shark gang members. However, the applicant has been informed that loan shark gang members have managed to locate his sisters and brothers and demanded to know his whereabouts.

·The applicant would not be able to relocate to such a safer part of the country because the loan shark gang members have got a copy of his NIC documents which can be used to locate him anywhere in Malaysia.

The Tribunal queried why the applicant had not mentioned the additional details in his original application and he said he signed the application form but told the agent to amend the application before it was sent to the Department but that the agent had not done so. The Tribunal pointed out that in signing the documents he had declared the contents to be complete and correct, however he signed the document knowing there were errors or omissions. He said he understood this but had requested changes. He said he had no evidence that he had made this request.

The Tribunal noted that s.5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

The Tribunal further noted that s.423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

Before the Tribunal, the applicant submitted the following documentary evidence and submissions:

·Written submissions dated 4 March 2020.
·Written submissions (revised) dated 8 September 2020.
·Written submissions dated 18 September 2020.
·A copy of the 2019 DFAT Report.
·A copy of the applicant’s father’s Death Certificate with a registration date of [February] 2015. The document is untranslated, though some sections appear in both English and Malay.

·A copy of the applicant’s mother’s Death Certificate with a registration date of 7 August 2019. The document is untranslated, though some sections appear in both English and Malay.

·Country information and articles relating to loan shark activity in Malaysia.[12]
[12] ‘Malaysian woman living in fear after posing nude for loan sharks’, Asia News Day, 13 September 2019; ‘“No Answers, No Apology” Police Abuses and Accountability in Malaysia’, Human Right Watch, April 2014; ‘Crackdown on loan sharks after debtors tortured in Malaysia’, South China Morning Post, 4 June 2009; ‘Indictment of IGP Musa Hassan’s failure – Ah Longs beating and chaining victims ’like dogs in illegal prison for months on end’, Kit Siang Online, May 2009, victims-like-dogs-in-illegal-prisons-for-months-on-end/ > accessed 28 February 2020; ‘Woman, harassed by loan sharks for sister’s debt’, The Star, 14 February 2020; ‘Petrol bomb, pig head thrown at family homes by loan sharks’, The Star, 03 January 2020; ‘Ah long use foreign numbers’, The Star, 17 July 2019; ‘Loan sharks and the Police’, Free Malaysia Today (FMT), 20 March 2019; ‘Over 3,000 loan sharks held since 2010 for 5,655 cases involving RM142mil’, The Star, 15 November 2019; ‘The Long and the Short of the Ah Long Problem’, The Malaysian Bar, 19 April 2005; ‘Many civil servants opt for ‘Ahlongs’ without knowing these 5 consequences’, Loanstreet, updated 5 January 2020; ‘Crime Statistics, Malaysia, 2018’, Press Release, Department of Statistics Malaysia, 28 December 2018.

The evidence and country information submitted by the applicant is considered further below.

The delegate’s reasons for refusing the applicant’s visa were set out in a decision record dated 25 May 2017. The delegate did not make any findings about the truth of the claims made by the applicant about threats from loan sharks but rejected the claim for protection under the refugee criterion on the grounds that the applicant’s claimed fear of harm in Malaysia would not be for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act. The delegate considered whether Australia’s obligations were engaged under the complementary protection criterion but rejected the claim because the delegate was not satisfied there was a real risk of the applicant suffering significant harm. In summary, the delegate found that, while there may be instances of corruption in the police force, the Malaysian authorities were willing and reasonably effective in combating illegal moneylending. Relevantly, the delegate relied on extracts from the DFAT report about enforcement action against loan sharks and loan shark syndicates together with newspaper articles reporting the results of police action. According to the delegate, Malaysian authorities were willing and able to provide the applicant with an ‘adequate level of protection’ from the criminal behaviour feared by the applicant.

Evidence

At the commencement of the third hearing, the Tribunal advised the applicant that he could not assume that any of his claims have been accepted, even if they had been accepted or not addressed directly by the Delegate. The Tribunal informed the applicant that it considered that all aspects of his claims were in issue before the Tribunal, including whether he satisfied each of the criteria of sections 36(2)(a) and 36(2)(aa).

At the hearing, the Tribunal discussed with the applicant the reasons he came to Australia and the experiences which he claimed made him fear returning to Malaysia.

The applicant explained that he travelled to Australia to get away from the problem of the loan sharks for a bit while his father was trying to get the problem solved. He said his father helped him get his tourist visa extended for 6 months and then after that he was going to have to travel back home so the only way to stay was to study or obtain another visa in future to stay in Australia longer, so his father would help him out with the money for a student visa application. He said his father helped him with a student application and he

could work 20 hours a week to meet his costs. He used an agent to make the application for the student visa.

The Tribunal asked what his plan was when he came to Australia on the tourist visa and he said that his father said he would try to talk to people to make arrangement to get the money to solve the problem talking to his brothers and sisters or whatever. He said that after his father passed away he couldn’t do anything else.

He said he applied for the student visa after his father died. He said that prior to his death, his father was on a pension and was not working but he had previously been a [Occupation 2] for the [Employer 5].

He said that when he was on the student visa he couldn’t get a job and he was worried. He wasn’t studying. He said he applied for the visa because it was his only option to stay in Australia. He said he didn’t study because his father passed away and he couldn’t afford to study so he didn’t want to get in trouble. The Tribunal attempted to clarify why working would get him in trouble when he was already breaching the conditions of the visa by not studying. The applicant indicated he was worried that working would get him in trouble.

The Tribunal asked what evidence he had provided to support his capacity to finance his studies in Australia, and he said his father sent some money and he got money before he came to Australia. He said he gave money to the migration agent. The Tribunal asked how he showed he had money to fund his studies and he said he provided a statement from his account. He said the cost was around $5,000 and he had $8,000 plus in his account.

The Tribunal asked how he supported himself and he said he was staying with friends. The Tribunal noted it was a long time to support himself on no income and he said that he had to move to [Town 2] to live with a friend to support himself. He said that later he got admitted to hospital and he couldn’t pay the bill. That is when he applied for work rights with his Bridging visa. He applied to work at [Employer 3] after that.

He said he started working for [Employer 3] in 2018. At [Employer 3] he is earning about $900 per week as a casual and then he was offered a night duty manager role, a role he had from July 2019 until December 2019 when he stepped down to move to Perth. He started at [Employer 3] in January 2020.

The Tribunal asked if he was sending money home at all, including to pay the loans and he said he had no contact at all as he lost all the numbers in a previous phone. He said he doesn’t have contact with the loan people and can’t call them from Australia.

The applicant testified that in May 2014 he was kidnapped and his father came and rescued him. He said the captors demanded RM30,000 and he paid RM15,000. He said he can’t go to the authorities. He said he worked as a debt collector and the authorities were focussed more towards bigger crimes and he didn’t have confidence in the Malaysian system.

He said he was kidnapped because they said he owed the company money but he didn’t. He said that they claimed that when he moved from one company to another he took customers from them, which he didn’t do. The Tribunal asked how much money they said he owed them and he said RM80,000 in 2014. The Tribunal queried when they claimed the applicant had loaned or taken the money and he said that was what a customer claimed to have paid to him.

He said when he quit the company there were no issues but a long time later ‘things came up’. The Tribunal queried who it was the applicant claimed had kidnapped him and he said it was ‘debt collectors’. He said they hired them from ‘everywhere’ and they work on a

commission basis. He said they can find your information through your national identity registration.

He said he first heard about the debt in May 2014 when he got a phone call. He ignored it because he knew he didn’t owe the company anything. He didn’t take it seriously until they sprayed red paint on the front of his house. He said this was sometime around middle of April in 2014 because they were trying to find him but they couldn’t locate him. He said he dropped a friend to work and they kidnapped his friend. He said he dropped his friend at his usual workplace and got a call from him asking where he was and reminding him to pick him up at 5pm. He said the kidnappers had asked his friend to make a call.

The Tribunal asked how they located his friend and he said that their address was the same. He said the car was registered under his friend’s name. He said they were living in Banda Putri with his friend. He said after he was kidnapped, his employer, [Employer 1], became aware that he was kidnapped and owed the other company money and lost confidence in him ‘so I just tried to finish up at work’ and he didn’t tell anyone what he was going to do.

He said 4 or 5 people kidnapped him. he said he was talking on the phone or checking his messages and they came through the window so he wasn’t sure. He said he was held for 5 to 6 hours in a house in Petaling Jaya. He said there were about 10 people coming and going in the house. He said his father paid RM15,000 for his release and afterwards he went to a medical centre and had stiches on his [body part]. The Tribunal asked if he had any evidence to corroborate this and he said there should be private insurance records. No records were provided to the Tribunal in support of this claim.

He said after they paid that money they needed to pay more, or the interest rate would keep going up. So, his father said he had better go away for the time being while he tried to solve the problems.

The Tribunal asked why, if he didn’t owe the money, he didn’t seek help from the authorities, and he said they had a document saying he had borrowed money. The Tribunal asked what the document said or if he had ever been shown the document and he said he told them he had never taken any document or loan. He said someone had used his signature, which was quite easy. He said his friend had to take a couple of days off as he was injured and couldn’t go back to work. He said they returned the car to his friend because it wasn’t under his name.

He said he didn’t go to the police because he didn’t have any confidence in them. He said when he was working for debt collectors, the police would come and if they were not using violence or abuse the police would say it was a civil matter. The Tribunal queried why when violence and kidnapping were used against him, he wouldn’t seek assistance from the police, and he said that they worked with the police. He said when they were carrying payroll etc they would have police escorts. He said it was a big cover up and the bosses corrupted the police and paid them money.

The Tribunal asked about the rate of interest on the supposed loan and the applicant said loans differed. When pressed if they told him what the interest rate was, he said ‘20% per month’ and they would also claim expenses. He said he got his last pay from the other company and didn’t know where to go and so he bought a ticket for Australia. His father and a friend sent him off.

He said his father was then trying to solve the problem. He said they said to him they knew the applicant was gone but they were going every day to the house and his brother had to relocate and his mum went to his sister’s place.

He did not know if his father had made repayments on the loan as he just said he would handle it. He said his father was in contact with them and told him about it. He said they didn’t report it to police as they were afraid. He said they were not harmed by the money lenders, but he said they relocated because people were coming to the house. He said they moved in October or November 2014 (‘before the festival season’). He said his mother stayed with his brother or sister and his father stayed with his brother. His father went to stay with his brother. The Tribunal asked where they had moved to and he said his father stayed in Negiri Sembilan where he was born because his brother was living there. The Tribunal noted the applicant had said his parents were already living with his brother and he said that when he was there the tenancy was under his name in Kallang and his parents were sometimes living with him in Kallang. They said they had his dad’s ID card. He then clarified his father moved from the house the applicant had leased in Kallang to the house of his brother in Negiri Sembilan. The Tribunal clarified that this was where his parents had at least partly lived prior to the applicant leaving Malaysia and the applicant confirmed this was the case. He said the lease on his house in Kallang expired in November and that is when his parents moved. He said the landlord wanted them to move because the money lenders kept coming.

The Tribunal asked when the last time the money lenders had contact with him or his family, and he said 2 weeks before his father died. He said his father told him they kept coming and it was causing problems with his brother. The Tribunal queried if it was the last time they had contact with him or his family and he said he wouldn’t know that. Two weeks before his father died was the last time, he heard they had been in contact. He said his brother and siblings were not aware of the loan or arrangement. The Tribunal noted the applicant claimed his siblings had to move because of the loan and queried how he knew about that and he said his father told them they had to move and were having an argument about the people coming. He said his father said they had to move because people were coming around and his brother was arguing.

Later the Tribunal asked the applicant again through the interpreter if his parents were harmed. He said they were abused mentally and threatened. The Tribunal asked about the nature of those threats and the applicant said they were told he would be killed when they found him. He said they sprayed paint on his brother’s house, and it was stressful for his parents who were getting old. He said they used abusive language.

The Tribunal noted country information, which indicated there were a range of government and non-government organisations that assisted with debt management and queried whether the applicant had sought assistance from any agencies or services of that kind.[13] The applicant said he hadn’t because they were all corrupted. The Tribunal noted that some of the articles submitted by the applicant were media coverage of stories coming to attention because of the actions of those agencies. The Tribunal queried if the applicant was saying those organisations were corrupt and he said that they were because politicians are corrupted. When the Tribunal queried what he meant by this he said the ex-Prime Minister (Razak) was corrupted. He said in Malaysia if you are caught for drinking and driving you can pay a small amount and get out of it. He said politics is all about money and politics and it is not safe.
[13] DFAT Country Information Report, Malaysia, 13 December 2019 at 3.113.

The Tribunal asked who he thought might harm him if he goes back and he said the people who were chasing him for a long time, and in between he took out an additional loan to survive. He said he took an additional loan from ‘somewhere’. He said the problem could also happen with [Employer 1]. The Tribunal queried whether he was saying [Employer 1] were threatening him and he said they were not, but they might as that had happened with the other company. He said all the debt collectors are looking for him. The

Tribunal asked who he borrowed the money from, and he said he couldn’t remember as it had been 5 or 6 years. The Tribunal asked if he could remember how much he had borrowed, and he said they would only give you half of your pay. The Tribunal asked when he borrowed it and he couldn’t say. He said the last amount was before he came to Australia. He said he borrowed some every few weeks in small amounts. The Tribunal queried how much he borrowed when he came to Australia and he said 5 or 6 thousand Malaysian Ringgit. He said he had not paid any repayments on that money.

He said he couldn’t relocate because they would find him. The Tribunal asked how they would know he was back in Malaysia. He said when you made contributions to superannuation accounts or opened a bank account you had to give details. He said they would be looking for him because that is how they made money. He said the problem was if he went back and it was hard to get a job he had no one because his family had disowned him and he didn’t want to get his cousin in trouble.

The Tribunal noted that the fact the applicant was able to save enough money to come to Australia and support himself for a number of years here might suggest he was able to earn an income in Malaysia sufficient to pay his debts and support himself. He said that when he was not working in Australia he had to return money to friends here who had supported him, and while working at [Employer 3] he took 3 months off to get a better job in Melbourne but was unsuccessful and his work was only casual. He said it wasn’t that he couldn’t pay the debt but with interest it would be a huge amount and he would suffer mental and physical torture and probably lose his life. The Tribunal asked why if those were things he thought might happen to him, he wouldn’t seek help from the authorities as he was being chased for debts he didn’t owe. He said they would be looking for him and they knew he would have to renew his passport. He said they have access to the system to update them.

The Tribunal asked if the applicant left Malaysia on his own passport and he said that he did and did not have any problem obtaining a passport. He confirmed he renewed his passport in July 2014. He confirmed he was able to leave Malaysia without any issue.

The Tribunal put to the applicant that his travel as a tourist may also suggest he and his family had the financial means to support themselves and to finance and repay loans in the event they incurred any. He said he was travelling because he earned money at that time.

The Tribunal raised a concern that there was no corroborating evidence to support any of his claims. This was indicated in the delegate’s decision and no evidence had been provided to support the claims, other than the death certificates and country information, since then. He said the witnesses were in Malaysia not here. He said he didn’t make police reports.

He said he thought he would be physically or mentally abused if he returned, and he is [age] and he didn’t think he would be able to support himself.

The Tribunal put to the applicant that the fact he applied for a student visa even though he did not intend to study may cast doubt on the credibility of information he provided in the visa context. He said he had no option and they had decided before his father died. He said he could keep going with his life and have more time to pay the debts. He said he really wanted to study because he couldn’t get a skilled or any other visa. He said he wanted to study. The Tribunal said that this was before his father died but he still put in for the visa after his father died even though he told the Tribunal at that point he did not intend to study because he could no longer afford to and he in fact did not study. He said if nothing had happened to his father he would be studying. This might cast doubt on the credibility of what he told the Department in support of a visa application as it may suggest he was prepared to give information that was not truthful in order to get a visa. He said that he intended to study and

after his father died it was his only option to stay. He said it was the arrangement they decided before his father died.

Delay

The Tribunal queried why, if the applicant left Malaysia as claimed to avoid loan sharks and they had continued making trouble for his family after he left, he waited several years before making his claims for protection. The applicant said he wanted to solve the problem, not seek protection earlier. He said he didn’t want to ‘abuse the visa application.’

The Tribunal pointed out that he applied for a student visa even though he had no intention to study, and his father had died. He said he wanted to be able to return to his country when the problem was solved. The Tribunal noted that the fact he didn’t seek protection earlier including at the time he sought the student visa might cast doubt on the credibility of his claims for protection and he said that his father wanted him to live closer to him and if he applied for protection he couldn’t go back so he didn’t apply until he had no choice. He said before that he was confident he could overcome the situation but then he lost his confidence.

He thought his father would come up with a solution. He thought that if his father hadn’t died he could send money and the applicant could study and in the future he could slowly send money back to his father but now it was too late. The Tribunal said that this plan might seem to be inconsistent with claims his family was being harassed by loan sharks in Malaysia and he said so long as when you come and you give them what you have it was OK, but if you don’t that is when they harass you.

Submissions

The applicant’s representative made written submissions on behalf of the applicant and oral submissions at the third hearing. Written submissions addressed issues and findings in the delegate’s decision, country information and the application of the law with respect to protection visa applications.

At the hearing, the applicant’s representative submitted that with respect to the issue of credibility of the applicant applying for a student visa, the applicant did want to study and did want to eventually return to Malaysia. As a result of his father’s death, he applied for the protection visa. The representative also submitted that although he said in his original application he only intended to come for a few weeks, this was supposed to be edited by his agent but was not. He said that he had come temporarily while the issues were sorted out by his father.

The representative submitted that the applicant had raised his life was at risk if he was to return and he pointed to corruption in Malaysia and submitted his claims would not be taken seriously there. The representative pointed to country information suggesting loan sharks were active in Malaysia and that authorities had only recently begun attempts to curtail their activities. He submitted that even if there was not much evidence to corroborate the applicant’s claims to have owed loans, the country information supports his claims. The representative also suggested his travel history to other countries supports his claims and his explanation for delaying his protection application in the hopes of returning to Malaysia.

The applicant’s representative also submitted that even if the threats were reported to police they cannot afford him 24 hour protection and if anything were to happen the protection would be too late for him. The Tribunal queried whether effective protection needed to be 24 hour protection. The representative submitted that the question is whether there is a real risk he would be harmed, based on country information, by the people claiming to have loaned money to him.

The respesentative submitted that the applicant was a member of a particular social group and was owed protection as a refugee. He submitted in the alternative that he was owed complementary protection.

The applicant’s representative submitted that if the applicant were to be returned, he would be a person who would be tortured or subject to physical violence and would not have protection from the state based on country information.

With respect to the claim regarding the applicant’s membership of a particular social group, the Tribunal asked how it was that with respect to the social group of victims of loan sharks, the fear of persecution from a loan shark was not the defining feature of the group. The Tribunal put to the representative that this would seem to be at odds with the limitations expressed in the caselaw with respect to the issue. The representative said that if there was any protection from the intimidation by the government, then the state would afford protection to everyone in that particular country, but here they were a social group who was not protected because they are not attended to by the state and the applicant’s life was at risk based on that fact.

The Tribunal also queried the reference in the applicant’s submissions to the fact that 75% of cases against loan sharks were not prosecuted. These issues were dealt with by the representative in post hearing submissions where the representative cited articles referring to figures for loan sharks detained since 2010.[14] Those articles referred to 3,211 ‘ah long’ being detained since 2010. The article also states that ‘among those arrested 1,114 have been prosecuted’. The applicant submitted that from this it could be inferred around 65% of loan sharks were not prosecuted. However, in the Tribunal’s view little can be drawn from the article other than loan sharks have been detained and prosecuted. This is because the article does not specify the kinds of offences for which the ah longs were detained and prosecuted. It is possible the article is referring to prosecutions for a narrow set of offences against the Moneylenders Act (rather than broader offences with respect to crimes committed in enforcing loans) or that it refers to offences more broadly. However, it is not clear on the material and in event the information is of limited assistance, in the Tribunal’s view, in supporting the assertion made by the applicant that unsuccessful prosecutions for unspecified offences are ‘due to corruption within the Malaysian police force and legal sectors’.
[14] ‘Over 3,000 loan sharks held since 2010 for 5,655 cases involving RM142mil’, The Star, 15 November 2019.

The Tribunal also queried the statement in the submissions that there had been no convictions in Malaysia of those charged with loan shark offences due to political corruption in the police and criminal justice system including the courts. The post hearing submissions indicated this was dealt with in resubmitted material, however, the Tribunal was unable to find support for this statement in that material or the country information and does not accept that because the material refers to prosecutions and not convictions it follows that there have been no convictions, including for the reasons asserted in the applicant’s submissions.

The Tribunal does accept that it is plausible that not all loan sharks in Malaysia have been or would be charged with offences and that not all those charged would be successfully convicted. This is consistent with country information. However, in the Tribunal’s view this information is not an indication, on its own, of a lack of state protection or of a functioning judicial or prosecutorial system in Malaysia.

Country information with respect to these issues is considered further below.

Country information

The Tribunal has had regard to the 2019 DFAT Report, the latest country information report on Malaysia.[15] A summary of country information was also contained in the delegate’s decision. The Tribunal also considered the country information provided by the applicant and discussed the significance of the relevant country information with the applicant at the hearing.
[15] DFAT Country Information Report: Malaysia, 13 December 2019.

Information regarding loan sharks outlined in the 2019 DFAT Report was discussed with the applicant at the hearings.

Country information indicates that loan sharks, or ‘ah longs’, operate very publicly in Malaysia carrying on moneylending activities without a licence, charging high interest rates to do so. While such practices are illegal, moneylenders advertise their services publicly.[16] According to DFAT, in-country sources advised that loan sharks in Malaysia did not seek protection money.[17] The enforcement activities of ah longs in Malaysia are also highlighted in some of the articles provided by the applicant which related to Malaysia.
[16] DFAT Country Information Report: Malaysia, 13 December 2019 at [3.108], page 39–40.
[17] Ibid.

DFAT reports that:

Sources report that an individual who is unable to service a debt from a loan shark risks threats or actual physical violence, having their home splashed with red paint (culturally understood as a symbol that an individual has defaulted on a loan shark and brought shame to their family), and/or having their families’ physical safety threatened. Sources claim that loan sharks engage gangsters to collect debts and harass and threaten borrowers and their family members, and those borrowers and their family members have been shot at gunpoint and had fingers cut off. Due to the illegal/underground nature of loan shark activity, DFAT is not able to verify these claims. There is significant societal shame associated with not being able to repay a loan shark. Sources report many people see suicide as the only honourable way out of being unable to repay a loan shark debt. DFAT is aware that those in debt to loan sharks have been counselled by intermediaries to place their family in a safe location and travel overseas to earn a foreign income to repay their debt faster, and to reduce risks and shame to their family.[18]

[18] Ibid at [3.111].

DFAT reports that it understands that ‘authorities tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice’.[19] However, country information indicates it is an offence to illegally lend money in Malaysia and police have broad powers to investigate alleged loan sharks. In this regard police can visit, enter, inspect or search premises without a warrant and seize movable properties and business documents to assist with the investigations against alleged loan sharks. Penalties for illegal moneylending include a jail term of up to five years.
[19] Ibid at [3.112].

The 2019 DFAT Report notes that:

DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, the likelihood of seeking police protection, or the level of protection offered by police. DFAT assesses those who are unable to service debts to loan sharks, and their family members, can face societal discrimination due to familial shame, and they also face a real or perceived risk of harassment and violence from loan sharks and/or gangsters. However, DFAT notes formal credit agencies are able to consolidate loan

shark debts and provide payment plans, and therefore engaging such agencies is an option to mitigate against potential risks posed to those in debt.[20]

[20] DFAT Country Information Report: Malaysia, 13 December 2019 at [3.117].

Country information indicates that the police and the judiciary are reasonably effective at dealing with illegal money lending and that they are able to afford a degree of protection from the illegal practice of moneylenders. Illegal money lending is an offence under the Moneylenders Act 1951 (the Moneylenders Act) and punishment includes fines and imprisonment. Police powers under the Moneylenders Act and the penalties are summarised as follows by DFAT:

The Moneylenders Act (1951; amended 2003 and 2011) gives police considerable investigative powers against alleged loan sharks. Police can visit, enter, inspect or search premises without a warrant, and seize moveable properties and business documents to assist with investigations against alleged loan sharks. Individuals involved in illegal moneylending activities in Malaysia can be convicted under Section 5(2) of the Moneylenders Act, which carries a fine of between RM250,000 and RM1 million (AUD80,000 – AUD320,000) or, a jail term of up to five years, or both.[21]

[21] DFAT, Country Information Report: Malaysia, December 2019.

In this regard police can visit, enter, inspect or search premises without a warrant and seize movable properties and business documents to assist with the investigations against alleged loan sharks. Penalties for illegal moneylending include a jail term of up to five years.[22] This may suggest that the police would take action if the applicant reported being harassed or threatened by a money lender. Country information suggests that police actively investigate and prosecute illegal moneylenders. Police actions against individual loan sharks under s.5(2) are reported on regularly in the Malaysian media.[23] Country information indicates police have made several recent high-profile arrests and investigations of syndicates.[24]
[22] DFAT, Country Information Report - Malaysia, December 2019.
[23] ‘14 held for illegal money lending in Pahang, items worth RM1million seized’ NST, November 2019 rm1million-seized; ‘Violent gang of loan shark members nabbed’ The Star, January 2020 DFAT Country Information Report: Malaysia, 13 December 2019 at [3.116].

The applicant said that things happened to powerful people in Malaysia and for simple citizens like him harm could occur. The Tribunal noted that country information highlighted enforcement activity by Malaysian authorities seek to target illegal money lending. He said the problem was they could still act against people. He said if the authorities were doing their job why did it still happen. He said they were not doing their job and he said if he goes back he would be handicapped or killed and there was no welfare. The Tribunal asked why they would handicap him if they wanted money back and he said it wasn’t about the money it was because they had been chasing him for a long time. The applicant said even the good police couldn’t cover you all the time and when they weren’t watching you could be killed.
He said the authorities were totally corrupted from every angle so he could not trust them. He said he was doing well in Malaysia so why would he have left if he didn’t have the problem.

As submitted by the applicant, country information also suggests that corruption can limit the effectiveness of police action against loan sharks. Some police are reported to work with loan sharks (for payment) to avoid investigations against them.[25] DFAT’s overall assessment of police and court process in Malaysia includes the following:
[25] ‘The police inspector and the loan shark’ The Star August 2017, The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector
General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly
on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is 80 – 85 per cent Bumiputera.
5.6 According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms including establishing compliance units within RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.
5.7 External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission [EAIC], which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts.
…5.17 DFAT assesses that while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.
1. Country information suggests that the Malaysian state recognises the threat that loan sharks represent and a number of government and non-government agencies are tasked with trying to prevent people engaging loan sharks, or to negotiate with loan sharks to settle debts, or to encourage the reporting of loan shark activities to the police.[26]
  [26] ‘Malays most notorious for borrowing from Ah Long, says PPIM’, Free Malaysia Today, 5 July 2016, long-says-ppim/; ‘Loan shark menace worsens in M’sia’, The Sun Daily, 2 October 2013. ‘KL Consumer Safety Association - No need to fear the loan sharks’, Bernama (Malaysian National News Agency), 17 February 2015, type="1">
2. The government’s Credit Counselling and Debt Management Agency (AKPK) offers credit counselling on financial status and budgeting to encourage people to use financial institutions under the purview of BNM, rather than loan sharks. The government in some provinces (Penang) has agreed to repay the loans of its own civil servants, minus interest, to the loan sharks.[27] The non-government Malaysian Muslim Consumers Association (PPIM) has a unit dedicated to resolving loan shark debt by renegotiating terms with the loan shark. It claims to have resolved thousands of cases (for a service fee). The unit’s webpage (ahlong.ppim.org.my) allows people to report their individual cases to the agency, providing a range of services in response to registered cases.[28] The NGO Malaysian Chinese
Association’s (MCA) Bureau of Coordinating Government Affairs provides a similar service to renegotiate the terms of loans with loan sharks on behalf of borrowers.[29] The Tribunal notes that a number of the articles submitted by the applicant reported activities and cases being managed by the MCA and appeared to reflect attempts by the MCA to draw attention to loan shark activities and their attempts to assist people in dealing with loan sharks.
[27] See Free Malaysia Today news, 2017, ‘Penang to help civil servants caught in loan shark web’, 6 February, shark-web/
[28] A Google Translation of this webpage accessed October 2020 provides details on how the cases are approached: see also ‘Malays most notorious for borrowing from Ah Long, says PPIM’, Free Malaysia Today, July 2016 long-says-ppim/
[29] ‘Many still found borrowing from loan sharks’, MCA website May 2017 type="1">
The Tribunal asked whether the applicant or his family had approached any credit or debt management agencies or organisations and the applicant said they had not. The Tribunal queried whether the applicant could approach them for assistance in resolving any issues with loans on return to Malaysia and he said that he could never go and ask them for help as you needed to show income and he had none and he had credit card debts and he said he would definitely be bankrupted. The Tribunal asked if he had any evidence of that he was bankrupt, but he said he didn’t know, he could ask if his cousin could find something and send it to him. No evidence of bankruptcy was provided to the Tribunal. Further, he said the reporting of efforts by agencies to assist borrowers was for political publicity and the agencies were pursuing a political agenda.

Consideration and findings

The Tribunal has carefully considered the claims of the applicant in his original application for protection and his subsequent application to this Tribunal, individually and then cumulatively.

Refugee criteria Debtor claims

Central to the applicant’s protection claims are that he was accused of incurring debts to a former employer in Malaysia, which he was unable to repay. He claimed he also had debts from borrowing money from time to time including prior to leaving Malaysia for Australia. He is afraid he will not be able to continue to repay his debts if he returns to Malaysia, and fears harm from his debtors or new accusations of debts from another employer. In addition, he claimed he would be declared bankrupt.

There are aspects of the applicant’s evidence about these matters which cause the Tribunal concern, including his failure to include key details at the visa application stage or to have provided consistent information regarding his claims at the review stage. For instance, the applicant claimed in his application that he borrowed money and had trouble repaying the money to loan sharks, giving rise to threats against him. However, before the Tribunal he claimed his main issue was with claims by his former employer that he owed monies which he did not actually owe. His application did not mention this. His application also failed to mention attempts by his father to settle the debts, any detail of the amounts claimed to be owed or the fact his friend had been kidnapped with him. Further, in his application he claimed he was planning to go to the police but did not due to threats from the loan sharks. However, he told the Tribunal that he did not report the threats and violence against him by the loan sharks because he did not have any confidence that the police would take action because they were corrupt and focussed on more serious criminal activity. Further, no mention was made in the application form of the applicant having borrowed money from other loan sharks or having being declared bankrupt, or at risk of being declared bankrupt.

At the hearing, when asked why the claims made in the application were not consistent with those made before the Tribunal, the applicant claimed this was due to the actions of his

previous agent who had since been de-registered. While the Tribunal accepts the fact of the deregistration, there was no evidence before the Tribunal that the deregistration was connected to the agent’s work for the applicant. Further, there was no evidence to support the applicant’s claim that the agent had failed to record his claims as instructed. As discussed with the applicant, the fact that he signed the form as submitted, on his own evidence doing so having understood its content, casts doubt on the credibility of his claim to have been misrepresented. On this basis, the Tribunal does not accept that he requested changes to the signed documents or that the claims detailed in the application do not reflect his instructions.

The Tribunal expressed to the applicant other credibility difficulties with some aspects of his evidence. The Tribunal expressed a concern that the applicant delayed seeking protection until several years after arriving in Australia caused concerns regarding his claims to have left Malaysia due to threats of harm from loan sharks. During his period in Australia, the applicant applied for a further visitor’s visa and a student visa. He only applied for the protection visa once his student visa was cancelled. The applicant told the Tribunal his decision not to apply for protection earlier reflected his hope his father would resolve the issues with the loan sharks and his desire to be able to return to Malaysia, which he understood would not be possible if he applied for protection.

The Tribunal did regard the applicant’s explanation to be plausible given he applied for the student visa, with the assistance of an agent, after his father’s death and at a time when he says he knew he would be unable to undertake study due to the loss of his father’s financial backing. Further, while he claims this was his only option, at the time he waited until that visa was cancelled before making claims for protection. Giving the applicant the benefit of the doubt, the Tribunal accepts he may have intended to do some form of study prior to lodging the student visa. However, on his own evidence, by the time that visa was lodged he acknowledged he knew he would not be undertaking study but ‘had no other option’. The fact the applicant applied for the student visa on this basis adds to claims regarding the credibility of his claims and evidence. While the Tribunal accepts that the applicant genuinely desires to remain in Australia, the Tribunal was concerned that the extensive delay in seeking protection, including while making applications for other visas, was not consistent with a genuinely held well-founded fear of persecution on return to Malaysia or with a claim to have left Malaysia due to harm or threats of harm.

The Tribunal was concerned that the applicant was unable to provide any corroborative or supporting evidence of any debts owed in Malaysia, or threats made before or after he left Malaysia. The Tribunal also regarded the circumstances of the applicant’s claimed debts to [Employer 2] to be implausible. The applicant claims that he was approached with regard to debts owed to the company some 7 or 8 years after having ceased employment there. During that time, he had continued to live in the same area of Malaysia, as did his family members, and to work for the same employer he had been with since leaving [Employer 2]. There was no explanation as to why the company would suddenly have made such claims against him or why they would have been unable to locate him earlier. Further, the applicant claimed that the company accused him of having pocketed money paid by a client but later said he didn’t go to the police because the company produced a loan document purporting to bear his signature.

The Tribunal also found the applicant’s evidence regarding threats by the loan sharks and his claimed kidnapping to be vague and implausible. The applicant claimed that the loan sharks called him but he ignored the calls because he knew he didn’t owe any money. The Tribunal regards it as implausible that if the applicant had worked enforcing loans as claimed he would ignore approaches from his previous employer claiming he owed money rather than attempting to resolve that issue directly to avoid possible enforcement measures. Further, he claimed the loan sharks located him via his friend yet he told the Tribunal he was

living in a home leased in his name, which he was sharing with his parents (who later had to move out when the lease expired after his move to Australia). There was no explanation as to why the loan sharks would have involved his friend if the applicant’s address was registered (and therefore presumably able to be found), the loan sharks had his mobile number (on which they had already contacted him) and he was living at the same address he had been for some time. Further, he was unable to say who the captors were despite his father travelling to the house where he was held to pay them and having ongoing negotiations with them for the repayment of the debt.

The Tribunal found other aspects of the applicant’s claims to be lacking in the detail which would be reasonably expected of someone in the applicant’s circumstances. The Tribunal was also concerned at the lack of detail the applicant was able to provide about his father’s efforts to resolve the issues with the loan sharks. He said he thought his father had made arrangement, but was unable to say what that was or whether his father made any repayments on the loan. Further, the Tribunal found the applicant’s claim to have been unable to pay a debt of MR50,000 inconsistent with his claim to have supported himself financially in Australia without working until 2018, even with the assistance of friends, and with his ability to save $8,000 in Australia, even with the assistance of his father who the Tribunal notes he also claimed was in debt from borrowing money to secure his release during kidnapping.

Further, the Tribunal found the applicant’s claims that his family members had been subjected to ongoing threats forcing them to move and disown him to be inconsistent and lacking credibility. The applicant initially told the Tribunal his parents had lived in Negri Sembilan and visited him in Kalang (and vice versa). He later said his parents were living with him in Kalang and that following his arrival in Australia his parents and brother had to move due to the threats of loan sharks. However, when questioned about the circumstances of their move it appeared on the evidence that his father and mother had in fact moved to live with his other siblings when the lease on the house he was renting in Kalang expired after he left Malaysia. While he claimed the landlord was keen for them to move because the neighbours were disturbed by the loan sharks visiting the house, the Tribunal does not regard that claim to be plausible. His parents were elderly, and he had left the country. They had lived previously and at least in part on an ongoing basis in Negiri Sembilan when the applicant was living in Malaysia. The Tribunal considers it can be inferred on the evidence that they relocated because the lease expired and were likely to have the support of his other siblings. In any event, the Tribunal regards it as implausible that the applicant’s father, in particular, sought to escape harassment from loan sharks by moving to the town of his birth where the applicant said he had consistently resided throughout his life and where he would presumably have been easily located by loan sharks with the access to information and resources the applicant claims they had.

Further, when initially asked about his family members, the applicant said he lost contact with his sisters when they moved away to marry. He made no mention of them disowning him due to his problems with loan sharks. Further, he claimed to have not had contact with his immediate family since his father’s death. This casts doubt on his claims they have been subjected to ongoing harassment from loan sharks. In any event, the applicant said the last contact the loan sharks had with his family was 2 weeks before his father died, which was in early 2015. This does not support his claim to be of ongoing interest to loan sharks in Malaysia or to his family having been the subject of ongoing harassment from them. In this regard, the Tribunal notes the applicant has contact with a cousin who he says informed him of his mother’s death. The Tribunal regards it as implausible that the applicant would not have been told of ongoing threats of violence against his family if such threats were being made.

Even accepting the applicant’s evidence at its highest, the applicant’s family has not been subjected to any physical attacks or threats of violence against them since his father died in early 2015. The fact that the loan sharks have not sought repayment from the family despite their ongoing presence in the applicant’s father’s hometown cast further doubt on the claims regarding the existence of the debts.

Further, none of the claimed harassment was reported to the police. The Tribunal also does not accept that the applicant would not report his kidnapping or an ongoing threat of permanent disablement or death to authorities in circumstances where he says the debt claimed is not owed to the company. Given the applicant claims he is at risk of death due to an inability to pay the loans, it is implausible and illogical that he would not seek the assistance of authorities to avoid that harm even in circumstances where he lacked confidence in the ability of the authorities to protect him at all times. This is an easy assertion to make, particularly when the issue was not tested. The evidence is that neither the applicant nor his family members ever attempted to make a report to the police.

In any event, as put to the applicant at the hearing, the Tribunal regards it as implausible that the applicant or his family would not seek assistance from the police in circumstances where they claimed to fear for their lives due to threats over money they believe was not owed. As noted above, there is country information to the effect that police are generally unsympathetic to those who borrow money from loan sharks but there is no evidence, other than the applicant’s assertion, that police would fail or refuse to investigate reports of actual physical harm or threats of physical harm to him, his friends or his family members particularly where the monies are wrongfully claimed. The Tribunal notes in this regard that while the applicant claims the monies were said to be owed with respect to money from loan operations, he testified that [Employer 2] was registered to provide such loans and as such there is no basis on the evidence to think the police would not act with respect to complaints of physical violence against the applicant and his family or friends.

The Tribunal has considered relevant country information outlined above, including that provided by the applicant, and accepts that it reflects that predatory lending practices in Malaysia can be associated with violence and crime, but also that the Malaysian police and government authorities have taken and continue to take prosecutorial action against such practices and violence, arresting large numbers of illegal and/or violent moneylenders in actions across the country. Further, the Tribunal finds there are organisations who offer assistance to individuals and businesspeople in circumstances such as the applicant has described and that such services may be available to assist the applicant on return to Malaysia. The fact the applicant has not attempted to avail himself of any support from non- government agencies operating in this space to assist creditors in a meaningful way or to complain to police tends to undermine his claim that he will face significant harm on his return to Malaysia. It can be inferred that if such threats were in fact made the applicant and his friends and family did not consider these threats to be sufficiently serious to warrant taking any of this further action.

Having regard to the applicant’s claim that the loan sharks would still be looking for him, the Tribunal does not accept that this is the case. While the applicant’s evidence was that he could not approach the police due to a risk to his family, the Tribunal does not accept that this claim is credible when considered in the context of the applicant’s circumstances and the available country information. In particular, the Tribunal notes that in the absence of repayments by the applicant since at least his father’s death, the loan sharks have not sought to harm his family or to enforce the debt against them.

Further, the Tribunal did not regard the applicant’s claims not to have sought assistance from debt management agencies due to having been declared bankrupt, having worked as a debt collector or due to political corruption to be supported by evidence or country

information. This is particularly the case in circumstances where the applicant says the debt to [Employer 2] was not owed by him and where he had no evidence to support his claim that he may have been declared bankrupt. His circumstances are comparable with cases reported in the media involving debt management agencies, on the country information before the Tribunal and there is no reason to conclude these organisations would not entertain a request for assistance from him or his family.

The Tribunal also had concerns regarding the applicant’s claim to have left his subsequent employer at around the same time the threats were made because that employer became aware of the loan claims and lost confidence in him. The applicant claimed that because of this he decided to finish up working for [Employer 1]. However, the Tribunal does not regard it as plausible that he would choose to leave employment over an alleged debt he claimed not to owe and in circumstances where he claimed this placed him under financial strain.

Given these concerns, the Tribunal does not accept the applicant was accused of stealing or borrowing money from his former employer, [Employer 2], in Malaysia. It does not accept he was threatened and kidnapped or that his father paid loan sharks for his release. It does not accept his friend was kidnapped. It does not accept the applicant has any outstanding debts, actual or claimed, to his former employer in Malaysia. Accordingly, the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Malaysia from his former employer, [Employer 2], or its associates, due to outstanding debts or for any other reason.

The Tribunal has gone on to consider the applicant’s claims to have borrowed money from other unidentified people during an unspecified period prior to leaving Malaysia He claims to have borrowed money from unidentified money lenders and to fear harm from them on return to Malaysia. He also claimed that his father borrowed money to pay for his release and which had not been repaid prior to his death. The Tribunal has several concerns with his claims in this regard, for the following reasons.

The Tribunal found the applicant’s evidence regarding these loans to be confused and vague. The applicant was unable to say who he had borrowed money from or for what amounts. He claimed to have borrowed small amounts every few weeks and that the loan sharks would only loan you half your salary. He said that he borrowed around 5 to 6 thousand Malaysian Ringgit[30] just prior to leaving Malaysia, and he said he had made no repayments on that money. He did not identify any threats received in relation to these debts or any attempts made to enforce these debts. However, he claimed that loan sharks seeking to enforce these debts would know if he returned to Malaysia and would harm him because he would be unable to pay the loans. Further, these claims were not raised in the application for protection or supported by any corroborating evidence.
[30] Around 1,500 to 2,000 AUD in January 2021 Convert 5000 Malaysian Ringgit (MYR) to Australian Dollar (AUD) - MYR In AUD - 2021-01-06 - CountryCurrencyRates.com

The applicant also suggested that his father owed money due borrowing funds to secure the applicants release from the kidnappers. He did not provide detail of those debts or specifically claim that he was at risk on return because of them. In any event, given the applicant claimed his father supported him financially to come to Australia and provided him with funds to secure his student visa (and to provide funding to enable him to study) the Tribunal does not accept his father had unpaid debts to loan sharks arising from paying for the release of the applicant from kidnappers or for any other reason.

Based on the vague nature of these claims, and the Tribunal’s concerns regarding the credibility of the applicant’s evidence, the Tribunal also does not accept the applicant has

outstanding debts to unidentified people, including money lenders or loan sharks in Malaysia. As such, the Tribunal finds the applicant does not face a well-founded fear of serious harm from these unidentified people for any reason on return to Malaysia in the foreseeable future. It does not accept he will be harmed on return to Malaysia and will still have to pay his debt as claimed. His fears of persecution for this reason are not genuinely held or well-founded.

The Tribunal also considered the applicant’s claim that [Employer 1] may make claims against him that he owes them money, similar to the claims made by [Employer 2]. The Tribunal notes this claim appeared to be purely speculative and was not supported by any evidence by the applicant. He did not claim [Employer 1] had made any claims or threats against him in the 6 years since he ceased working there nor did he establish any basis on which they would, other than because he claimed an unrelated employer, [Employer 2], had. The Tribunal does not accept that [Employer 2] made such claims or sought to enforce any debts owed by the applicant and it does not accept on the evidence that there is any real chance [Employer 1] would do so. As such, the Tribunal finds the applicant does not face a well-founded fear of serious harm from [Employer 2] for any reason on return to Malaysia in the foreseeable future. It does not accept he will be harmed on return to Malaysia by [Employer 1] or their associates. His fears of persecution for this reason are not genuinely held or well-founded.

The Tribunal has also considered the applicant’s claim to be indebted to friends in Australia who assisted him when he did not have work rights or with his student visa application. The applicant did not suggest he was at risk of harm due to these debts but the Tribunal but the Tribunal has considered whether those debts would place him at risk on return to Malaysia. The applicant provided no evidence of debts in Australia. However, the Tribunal accepts the applicant may have been financially supported by friends in Australia and may feel indebted to those persons. The Tribunal considers that to the extent he is indebted to persons in Australia his employment and savings history suggests he would be able to meet debts to friends. In any event there was no evidence the applicant’s friends in Australia had attempted to enforce debts in Australia or would attempt to do so if he were returned to Malaysia. Based on the evidence before it, the Tribunal does not consider the applicant to be at any risk due to assistance, financial or otherwise, provided by friends in Australia were he to return to Malaysia.

The Tribunal accepts the applicant’s evidence about his work history in Malaysia. It accepts he worked for around 12 to 14 years for [Employer 2] and [Employer 1]. The Tribunal also accepts that he worked in a debt collection capacity for those companies. Given his work and country information that indicates the widespread practice of unlicensed money lending in Malaysia,[31] the Tribunal accepts that the applicant may have borrowed money from different actors in Malaysia in the past, including small amounts as claimed. However, given the concerns it has with the applicant’s evidence in this respect, as set out above, the Tribunal is unable to be satisfied on the evidence before it that the applicant is in actual or alleged debt to the parties he has claimed, in the ways he has claimed.
[31] DFAT Country Information Report, Malaysia, 13 December 2019 at 3.108–3.117.

To the extent the applicant was claiming to fear harm due to being declared bankrupt in Malaysia, the Tribunal has also considered this claim but does not accept it. There is no evidence before the Tribunal that the applicant has been declared a bankrupt or any basis on which he would be so declared on return to Malaysia. In any event, the Tribunal notes that there is no evidence before it to suggest that the bankruptcy laws of Malaysia have been, or will be, applied to the applicant in a discriminatory manner. Accordingly, the Tribunal finds that this claim relates to a law of general application in Malaysia and has not

and will not be enforced against the applicant in a way that would engage Australia’s protection obligations under the refugee or complementary protection criteria.[32]

Economic circumstances in Malaysia

[32] E.g.: Zheng Jia Cai v MIMA (Federal Court of Australia, French J, 13 June 1997) at [16]; Lama v MIMA [1999] FCA 918 at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620; Alamdar v MIMA [2001] FCA 1244; and SZVYD v MIBP [2019] FCA 648 at [14].

The applicant stated that in Malaysia he will not be able to earn a living as it is hard to find another job in his country and he has been disowned by his family. He claimed he did not want to involve his cousin, with whom he is in contact, with his problems so he could not rely on her.

At hearing the applicant said he worked consistently from leaving school until coming to Australia. He is currently employed in a supervisory position at [Employer 3]. The Tribunal accepts that if returned to Malaysia, the applicant would again be required to find employment. However, as the Tribunal does not accept he is being pursued by loan sharks, the Tribunal does not accept he would not be able to seek some assistance in re-establishing himself in Malaysia from his cousin who has assisted him in the past and with whom he remains in contact.

While the Tribunal accepts that the applicant wishes to remain in Australia for economic benefit reasons the Tribunal finds that there is nothing before it to indicate or suggest that the applicant would be denied the opportunity to work or would be unable to find any work in Malaysia. While the Tribunal accepts the applicant would have to resettle in Malaysia, including finding employment, and may have less disposable income available to him if he returned to Malaysia, the Tribunal does not accept that he faces a real chance of suffering persecution involving serious harm for one or more of the five reasons mentioned in s.5J(1)(a) of the Act if he returned to Malaysia.

Given these above considerations, the Tribunal finds that there is no real chance the applicant (as per the non-exhaustive) examples of serious harm mentioned at s.5J(5)(d)–(f) of the Act):
·would suffer significant economic hardship that threatens his capacity to subsist;

·would be denied access to basic services, where the denial threatens his capacity to subsist; or

·would be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist

for one or more of the reasons mentioned at s.5J(1)(a) of the Act, should he return to Malaysia.

Complementary protection

In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.

For the reasons set out above, the Tribunal has found there is not a real chance the applicant will experience serious harm from groups or individuals due to outstanding debts or

having his capacity to subsist denied or threatened if he returns to Malaysia. 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.[33] 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 any of these reasons.

[33] 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 accepts the applicant has concerns about being able to find work if he returns to Malaysia due to his age, lack of family support and the general economic situation in Malaysia. The Tribunal accepts the applicant may have some difficulty in establishing himself at least initially, particularly in the circumstances of the COVID-19 pandemic. However, the applicant does not suggest that any person or group will seek to harm him for any reason relating to his economic situation or COVID-19. He claimed he was worried about getting a job and paying debts, however, for the reasons above the Tribunal does not accept he has outstanding debts or that he would be at risk of harm due to any assistance provided to him, financial or otherwise, by friends in Australia.

Australian courts have held that complementary protection obligations are concerned with acts or omissions occurring in the relevant country and how a visa applicant might be treated by another person.[34] Accordingly, the Tribunal finds that any economic hardship the applicant might experience if removed to Malaysia would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing him to suffer significant harm.
[34] GLD18 v MHA [2020] FCAFC 2.

The applicant raised a concern about COVID-19. He did not express any specific concern regarding this with respect to his personal circumstances or any actions or responses by Malaysian authorities which may give rise to a risk of harm in this regard.

It is acknowledged that the international public health crisis arising from the current COVID- 19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia. The Tribunal notes that this decision is not a decision on removal. However, the Tribunal is mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future. Accordingly, for the removal of doubt, the Tribunal finds that that there is no information before the Tribunal suggesting or supporting a claim that the COVID-19 pandemic or the Malaysian government’s response to it give rise to a well- founded fear of persecution on the part of the applicant on return to Malaysia. Further, there is no evidence that as a reasonably foreseeable consequence of the applicant’s return to Malaysia there is a real risk he would suffer significant harm on that basis. In this regard, the Tribunal finds that whatever measures may be applicable to the population of Malaysia generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.

For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s.36(2A) of the Act, as a reasonably foreseeable consequence of his being removed from Australia and returned to Malaysia. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

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 criteria in s.36(2).

CONCLUSION

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).

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 criteria in s.36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.

Simone Burford 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.

…

5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a
well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of
serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill-treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or

(ii) any other member or former member (whether alive or dead) of the family has ever experienced; where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and

(ii)   holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:
(a)    the non-citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non-citizen; or
(c)    the non-citizen will be subjected to torture; or
(d)   the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b)   the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

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