1713001 (Refugee)

1713001 (Refugee) [2019] AATA 6855 (13 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713001
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Peter Booth
DATE:13 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 13 December 2019 at 11:39am

CATCHWORDS
REFUGEE – protection visa – Malaysia – victim of loan shark – fears harm from criminal moneylenders – embellished claims – economic problems – adequate state protection available – lack of evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v MZYYL (2012) 207 FCR 211
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 31 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 3 February 2017.
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) of the Act. 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) of the Act, 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 of the Act, which are extracted in the attachment to this decision.
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.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria set out in either s.36(2) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of the applicant’s claims
Identity and country of reference
The applicant is a [age] year old male, born [date] in [Kuala Lumpur], Malaysia.
The applicant can speak, read and write Malay and English.
The applicant states he is of Malay ethnicity and belongs to the Muslim faith.
The applicant states he is a citizen of Malaysia by birth. A copy of the applicant’s passport, held upon the Department file, appears to match his claimed citizenship.[1]
[1] Passport Department file [number], flag 1.
The applicant states he has never been married. He does not identify any related family members in Australia.
The applicant states that he was employed by [Employer 1] between January 2009 and [December] 2016 when he arrived in Australia. The applicant states that he was employed as a ‘worker’.
The applicant states he completed two courses of education spanning the years [year] (the applicant was six years of age at the beginning of this year) until [year] (the applicant was 12 at the end of this year) and then [year] (the applicant was 12 at the beginning of this year) until [year] (the applicant was 17 at the end of this year).
In summary, the applicant claims to have left Malaysia due to the economic problems in Malaysia, and to fear harm from a moneylender.
Migration history
The applicant arrived in Australia [in] December 2016 on a [temporary] visa.
The applicant applied for a XA-866 Protection visa on 3 February 2017.
CLAIMS
866 Visa Application
The applicant’s claims for protection are contained in his protection visa application, dated 6 December 2017. No Department interview was offered.
89. Why did you leave that country(s)?
‘because of due to economic problems in the country of Malaysia. Difficult to bear the expense of My life. I started to get stuck with a gold investment, and ultimately I have to bear a lot of debt. I always followed by a lender to resolve it.’
90. What do you think will happen to you if you return to that country(s)?
‘My life would be threatened. I’m under risk. Very stress to settle down everything.’
91. Did you experience harm in that country(s)?
‘No.’
92. Did you seek help within that country(s) after the harm?
‘No.’
93. Did you move, or try to move, to another part of that country(s) to seek safety?
‘i feel more safety and quite comfortable with environment here.’
94. Do you think you will be harmed or mistreated if you return to that country(s)?
‘No.’
95. Do you think the authorities of that country can and will protect you if you go back?
‘Yes.’
96. Do you think you would be able to relocate within that country(s)?
‘No.’
The Tribunal read each question and each response to the applicant in the hearing. The applicant confirmed that these matters comprise the totality of his claims and that he has no other claims.
EVIDENCE AND SUBMISSIONS
No submissions that appear to contain claims, or evidence have been received at the Department or Tribunal level to date. Incoming correspondence on the Tribunal file is limited to ‘change of address forms’ and requests for ‘acknowledgement of application letters’ for Medicare purposes.
Evidence and findings of fact
The applicant gave evidence at the hearing, with the assistance of a translator, the substance of which was as follows. The applicant arrived in Australia [in] December 2016 as the holder of a [temporary] visa. The visa was, apparently, valid for three months.
The applicant gave evidence of his reason for travelling to Australia as follows: ‘I had debt problem and economic difficulties, I had a problem with gold’. He did not elaborate.
The applicant achieved the secondary school education to ‘O’ level in Malaysia in [year]. He did not undertake any tertiary education. After he completed school he worked as a ‘[Occupation 1] and in a shop’. He said that he was working in ‘[Occupation 1] for three months’ and then ‘worked in the shop for two years’.
The applicant is a Malay speaker, ethnic Malay and his religion is that of Islam. In answer to a question from the Tribunal he said he was born in the state of Kuala Lumpur. He is not married and has no children. His immediate family in Malaysia comprise his mother and [siblings]. Prior to arriving in Australia he said that he earned approximately MYR[amount] each month. He has no assets in Malaysia. He holds a current Malaysian passport. He gave evidence that he can read English.
He applied for a protection visa on 3 February 2017. He confirmed that he had completed the application for the protection visa. The Tribunal read questions 89 to 96 of the application form together with the applicant’s responses. This was done with the assistance of the translator in the hearing. The applicant confirmed that each response was correct and that they comprised the totality of his claims. Further, the applicant confirmed that he had provided no written submissions or evidence other than his passport to the Tribunal.
The applicant was asked to explain the ‘gold investment’ referred to in his responses, to which he said, ‘multilevel marketing, they take my money, promise all sorts of things, there was not anything, they just wanted to take my money’. He did not elaborate. The applicant was asked to explain the reference in his responses, ‘I have to bear a lot of debt’. He said, ‘I borrow so much money from a friend, I could not get the money back’. He did not elaborate. The Tribunal enquired how much money he had borrowed to which he said, ‘[Amount 1] Malaysian ringgit from many friends’. He did not elaborate. The Tribunal enquired as to how many friends he had borrowed from to which he said, ‘about seven or eight’. He did not elaborate. The Tribunal enquired when he had borrowed this money to which he said, ‘about a year before I left for Australia’. He did not elaborate. The Tribunal enquired why he had borrowed the money to which he said, ‘because I felt that investment in gold was logical, my salary was not enough to take care of my family’. He did not elaborate. Tribunal enquired what the applicant had done with the money he borrowed to which he said, ‘immediately put into the gold investment’. In answer to a question from the Tribunal he said the name of the gold investment firm was ‘[name]’. In answer to a further question as to the type of organisational firm he said, ‘an investment’. He did not elaborate.
The Tribunal enquired as to the terms upon which the monies were borrowed to which he said, ‘I had to repay the money as soon as possible but I had no money to pay it back’. He added there was no interest and no repayment date. There were no written terms or loan agreement. In answer to a question from the Tribunal he said the minimum amount for the gold investment firm was MYR[Amount 1] and that he was promised a ‘dividend’ of [six percent of Amount 1] each month. In answer to a further question he said that he could not ‘get the money back’. When asked about his decision to invest the money he said, ‘I knew a person, he said the investment was good’. In answer to a further question he said that the gold investment firm did not have an office and that he gave the money to a person he knew ‘from social media’. He added that ‘after two or three days I did not hear from them’. He said that he could not remember this person’s name and then he did not obtain a receipt for the investment. He said that he gave this person the cash in a coffee shop’. In answer further questions from the Tribunal he said that the ‘dividend’ was to be paid into his bank account but that after ‘three months’ he did not ‘see any money’. In answer to a further question he said that he had provided his bank account details to this person, together with a copy of ‘my identity card’. The Tribunal enquired how the applicant knew that this unidentified person was representing the gold investment firm to which he said, ‘it said so on [social media]’.
The applicant did not go to the police and in answer to a question from the Tribunal as to why he did not, he said, ‘I felt this was my mistake’. He did not elaborate. He has not repaid the money to the various lenders.
The Tribunal asked why he had left Malaysia to which he said, ‘because I borrowed money and cannot afford to pay it back, not all my friends are good-natured, they have threatened me’. The applicant was invited to expand upon the assertion of being threatened to which he said, ‘my friend, my very close friend, only one’. It transpired that the person to whom he was referring was one of the people from whom he had borrowed money and his name was ‘[Mr A]’. The applicant said that he had borrowed [a fifth of Amount 1] from [Mr A]. The applicant was invited to provide details of the threat to which he said, ‘after three months passed, he said if you don’t pay back the money, you’d better be careful’. The applicant added ‘he gave me a period of time to pay back the money but I did not have any money’. He added that this was ‘four months after did investment in gold’. The Tribunal enquired where the money was paid to the gold investment firm representative to which the applicant said, ‘in Kuala Lumpur’. The Tribunal enquired this was the only threat from the moneylenders to which he said, ‘yes, I was frightened for my life, he can do anything, he can do anything to my family’. The applicant said that he did not go to the police and added, ‘I felt it was my fault’.
The Tribunal enquired what happened after that to which he said, ‘I worked as normal, take care of my family, carry on normal things’. The Tribunal in enquired how long after this threat the applicant travelled to Australia to which he said, ‘about six months later’.
The applicant’s family is still living in the same house in Malaysia and the applicant is supporting them. He said that he is working in Australia ‘[in Occupation 2]’ and earns between AU$[Amount 2] and AU$[Amount 3] each week.
The applicant was asked what he thought would happen to him if he returned to Malaysia to which he said, ‘I feel it would not be safe, my economic situation is not good, and I need to support my family’. The applicant was invited to explain his comment that ‘it would not be safe’ to which he said, ‘I feel not safe in the sense that person who threatened me is still in Malaysia, he is not a good person, he does not know where my family living’. The Tribunal enquired if this person does not know where the applicant’s family are residing, how could he be a threat to the applicant’s family, to which he said, ‘Kuala Lumpur is a big place, but he knows where I go and where I usually hang around’. He did not elaborate.
The Tribunal enquired whether there was any reason why the applicant could not relocate within Malaysia to which he said, ‘I was born there, he can still find me, even if I work in another state’. The Tribunal enquired how this person would know where the applicant was if he returned to Malaysia to which he said, ‘he is in a group of gangsters, he has a big network’. He didn’t elaborate.
The Tribunal observed that the applicant’s family had been living peacefully while the applicant has been in Australia to which the applicant said, ‘maybe he is not involving my family’. He did not elaborate.
The Tribunal observed that in answer to question 94 on the protection visa application the applicant had stated that he did not believe he would be harmed when he returned but that he now said that he did believe he would be harmed upon his return to Malaysia. He was invited to explain the difference to which he said, ‘maybe when I answered the question I thought I would not be harmed’. He did not elaborate.
The Tribunal enquired as to what type of employment the applicant would seek upon his return to Malaysia to which he said, ‘I do not have any significant achievement, it would be difficult for me to get a good job’. The Tribunal observed that he had a job prior to coming to Australia to which he said, ‘yes but I’m older now, impossible to get a job and support my family’. He did not elaborate.
The country information was put to the applicant in a summary form and he was asked to comment upon it. He had no comment and declined the opportunity to add anything further to his application for review.
The Tribunal finds that the applicant:
a)is a [age]-year-old male born in Malaysia
b)is of Malay ethnicity and belongs to the Muslim faith
c)is a citizen of Malaysia
d)is unmarried
e)borrowed money from an unlicensed moneylender in Malaysia
f)has not repaid the debt to the unlicensed moneylender
g)was threatened by the unlicensed moneylender in Malaysia.
The country information
The country information was put to the applicant in summary form.
In accordance with the Ministerial Direction No.84 made pursuant to s.499 of the Act, the Tribunal also had regard to the country information assessments prepared by the DFAT. In particular as follows:
Department of Foreign Affairs and Trade, Country Information Report: Malaysia, 19 April 2018, provides an overview of Malaysia’s recent responses to gangs and loan sharks:
Victims of Gangs
3.96 Malaysian media reported in early 2017 that approximately 72 illegal gangs, with an estimated 20,000 members, operated in Malaysia. In 2016, the then Inspector-General of Police estimated 20 illegal gangs operated in Malaysia. Many street-level gang members are Indian Malaysians, reflecting their relative economic vulnerability. High-level crime, including drug trafficking is more typically associated with Malaysian Chinese gangs. Gangs engage in extortion and loan shark practices. Details of gang activities are difficult to obtain, as victims of gang-related crimes do not generally report them. DFAT understands that Malaysian authorities tend to view individuals who access loan shark services as having participated in an illegal practice.
Victims of Loan Sharks
3.97 Loan sharks (‘ah-Long’), or ‘pay-day-financing’, carry out money lending activities, charging high interest rates, without a licence. Loan sharks operate very publicly in Malaysia and while the practice is illegal, advertisements listing phone numbers and offers of cash loans for RM10,000 – RM20,000 (AUD3,100 – AUD6,200) appear on public property including lamp posts and utility boxes. Loans typically carry an interest rate of about 30 to 40 per cent per month, and can be as high as 15 per cent per day. The Commercial Crimes Investigation Department reported 2,273 cases involving loan sharks from 2016 to July 2017, with a total loan amount of RM68.8 million (AUD20.7 million).
3.98 In 2015, Public Services and Complaints Department of the political party, the Malaysian Chinese Association (MCA), reported over 70 per cent of borrowers in 214 cases were Chinese Malaysian. The Malaysian Muslim Consumers Association (PPIM), which provides services predominantly for the Malay community, has been involved in over 10,000 cases involving loan sharks from 2012 to 2016, of whom around 70 per cent were Malay. Sources provide vastly differing views on the reasons individuals engage illegal moneylenders. Some claim that up to 80 per cent of borrowers are supporting illegal gambling activities. Others claim most borrowers are public servants trying to cover daily expenses such as children’s education, or businesses excluded from mainstream finance due to insufficient documentation, bankruptcy or a poor credit history.
3.99 Amendments to the Moneylenders Act (1951) in 2003 and 2011 have increased police 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 RM1million (AUD80,000 – AUD320,000) or, a jail term of up to five years, or both. Police made several high profile arrests and investigations of syndicates in 2017.
3.100 The MCA assists community members unable to service their loans. Very limited research is available on loan sharks and the individuals that engage these services, possibly due to their links to gangs and corruption.
3.101 An individual who is unable to service a debt from a loan shark may risk physical threats. Due to a lack of reliable information, DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, their likelihood of seeking police protection, or the level protection offered by police. [2]
[2] Department of Foreign Affairs and Trade, Country Information Report: Malaysia, 19 April 2018.

The Department’s ‘Common Claims’ report dated 9 October 2019, provides background information regarding loan sharks and illegal money lenders:
Loan sharks
Malaysian police respond to victim reports of threats and harassment from illegal moneylenders and conduct operations against illegal money lending syndicates, both of which often lead to prosecution of illegal moneylenders and their employees under the Moneylenders Act 1951.
Illegal money lending is an offence under Malaysian law, and section 5(2) of the Moneylenders Act (1951) carries a fine of RM20, 000 not exceeding RM100, 000, or imprisonment not exceeding five years, or both for unlicensed moneylending.
Section 29AA of the Moneylenders Act (1951) carries a fine not exceeding RM20, 000, imprisonment for up to two years, or both for any person who assists an unlicensed moneylender.382 Section 29B(1) of the Moneylenders Act (1951) carries a fine of up to RM200,000 or imprisonment of up to three years, or both for harassment or intimidation of a borrower, a borrower’s family or their associates.
During recent years, police have responded to complaints of harassment and intimidation by illegal moneylenders and have conducted numerous operations targeting illegal moneylending operations, resulting in the prosecution of persons under the Moneylenders Act (1951). In December 2017, Malaysia’s central bank cautioned the public about illegal money lending activities conducted by companies using fake licences purportedly issued by the central bank, advising the public to report such instances to the police for investigation. A non-governmental organisation, the Malaysian Muslim Consumers Association (PPIM), offers support for those encountering problems with loan sharks. [3]
[3] Department of Home Affairs, Common Claims: Malaysia, 9 October 2019, page 28.
In relation to law enforcement:
Law enforcement operates at both the federal and state level. The Royal Malaysian Police (RMP) reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide. The National Department of Islamic Development (JAKIM) enforces Sharia law and has jurisdiction over Muslims in Kuala Lumpur and two other federal territories. The People’s Volunteer Corps (RELA), a federal paramilitary civilian corps under the Ministry of Home Affairs, assists security forces. RELA’s engagement in law enforcement activities has significantly reduced in recent years. NGOs have reported that inadequate training has led to abuses by RELA members such as extortion and theft.[4]
[4] Department of Home Affairs, Common Claims: Malaysia, 9 October 2019, page 21.
In relation to the Royal Malaysian Police (RMP):
The RMP is a professional and effective force, but prone to corruption. The RMP operates 837 police stations nationwide, and employs approximately 102,000 officers. Local and international sources indicate the RMP is a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. Some human rights training and workshop are made available to police officers. In recent years, the RMP has launched crackdowns on criminal gangs, crime syndicates and loan sharks, while in July 2017 a human trafficking hotline was set up through which reports will be submitted to police. Malaysian law permits police to arrest and detain individuals for some offences without a warrant. A 2017 Transparency International survey found that 57 per cent of Malaysian respondents thought that corruption was a problem within the RMP – a result that was significantly above the regional average. In July 2017, the RMP signed an anti-graft pledge of which anti-corruption bodies and civil society organisations said was a significant step towards accountability.[5]
[5] Department of Home Affairs, Common Claims: Malaysia, 9 October 2019, page 21.
In relation to relocation:
Malaysia’s Constitution provides for freedom of internal movement, but the eastern states of Sabah and Sarawak have autonomy over their own immigration. Non-Sabah or Sarawak residents, whether Malaysian citizens or foreigners, must present national identity cards (or passports for foreigners) to gain entry and can visit for a maximum period of three months. The federal government can overrule immigration decisions made by Sabah or Sarawak in limited circumstances, including for national security reasons.
Sabah and Sarawak both issue working visas to non-residents (including other Malaysians), but these can be difficult to obtain. Both states limit purchase of land by non-residents. Far more people migrate from Sarawak and Sabah to peninsula Malaysia than in the other direction, due to better work opportunities and higher salaries.
In recent years, Sabah and Sarawak have denied entry to a small number of individuals. The Official Secrets Act contains the list of individuals banned from entering, and is not available to the public. During the Sarawak state election in May 2016, opposition leaders including PKR's Vice President Nurul Izzah Anwar, Selangor Chief Minister Azmin Ali, and DAP's Liew Chin Tong were denied entry on arrival in Sarawak. In March 2016, Tony Pua, Selangor state DAP Chief was refused entry into Sarawak. In 2015, Teresa Kok, a Chinese Malaysian and vice-Chairman of the DAP, was prevented from entering Sabah and the Hindu Rights Action Force chairman P Waythamoorthy was denied entry into Sarawak. DFAT is not aware of any instances of authorities denying an individual’s exit from Sabah or Sarawak.
DFAT assesses that, subject to the restrictions outlined above in relation to Sabah and Sarawak, Malaysians can and do freely relocate internally. Individuals likely to attract official attention under state sharia-based law, including transgender individuals, women escaping domestic violence or Muslims wishing to marry a non-Muslim, often move to large urban centres to avoid attention. People also move to different parts of Malaysia, generally larger urban areas in peninsula Malaysia, for economic reasons.[6]
[6] Department of Foreign Affairs and Trade, Country Information Report: Malaysia, 19 April 2018, at [5.18]–[5.21].
The country information informs the Tribunal as follows. First, loansharking or illegal moneylending is relatively common in Malaysia. Loan sharks or moneylenders charge high interest rates without a licence. They operate very publicly in Malaysia and while the practice is illegal, they conduct business in plain sight. Secondly, the Moneylenders Act provides police with investigative powers including the right to visit, enter, inspect or search premises without a warrant and seize movable property and business documents to assist with investigations against illegal moneylenders. Individuals involved in illegal moneylending activities in Malaysia can be convicted and fined up to MYR1 million or a jail term of up to five years or both. Thirdly, the Malaysian authorities – including the RMP – are reasonably effective in combating illegal money lending. Next, there is also no indication in the country information as identified above that the applicant would not receive assistance, if requested, from the RMP in respect to any threat, actual or perceived, to his friends and relatives by an illegal money lender. Lastly, there is nothing in the country information to suggest that the Malaysian authorities would be unable or unwilling to protect the applicant in their particular circumstances.
Conclusions
On balance, the Tribunal accepts that the applicant has been threatened in the past as he does owe some, but not a considerable amount of, money to a criminal. If he were to return to Malaysia in the reasonably foreseeable future there is a chance of the threats continuing and the harm he has a chance of encountering will involve significant physical ill-treatment.
Notwithstanding s.5J(2), the Tribunal would ordinarily accept that the applicant does have a real chance of serious harm arising from owing money to at least one member of a criminal organisation, if he were to return to Malaysia. However, the applicant does not claim that the applicant was targeted based on his Malay ethnicity, his religion or any other reason mentioned in s.5J(1)(a). The Tribunal finds that there is no real chance that the applicant will be seriously harmed by reason of his religion in the event that he returns to Malaysia. Accordingly, the Tribunal finds that the applicant does not satisfy s.5J(1) and that his fear of persecution, accordingly, is not well-founded.
The applicant further claimed that if he returned to his home state or anywhere within Malaysia, he will not have effective protection available to him because the applicant claimed he never made a complaint or police report prior to his departure.
The Tribunal raised the independent country information from the most recent DFAT report about the police taking seriously complaints made to them about illicit money lenders and that the RMP have a reasonable international reputation for integrity. The Tribunal discussed the prevalence of media reports that there are arrests, charges and prosecutions against Ah Long and other criminal organisations involved in illicit money lending and related violence. As discussed in the scheduled hearing, this country information undermined the applicant’s claim that the availability of effective protection was not open to him. The Tribunal is unaware of any country information indicating that Malaysians are denied the same level of protection as other complainants against Ah Long and the applicant did not provide any country information to support his claim. The Tribunal was also able to locate country information that illegal gambling operations do not operate with immunity and arrests and charges against such operators are widespread within Malaysia.
When considering the operation of s.5J(2) alongside the available country information, the Tribunal is not satisfied that effective protection measures are not available to the applicant in his receiving country. The Tribunal finds effective protection measures are available for the relevant State as specified in s.5LA, which provides that ‘effective protection measures’ are available to an applicant within their country of nationality or former habitual residence. Neither does the Tribunal accept the applicant, if he returns to Malaysia, will not have available or effective protection, or fear persecution for any reasons mentioned in s.5J(1)(a). The Tribunal concludes on the evidence that the applicant would receive reasonably effective assistance from the RMP in Malaysia against any threats that he, or his friends and relatives, might face from the illegal money lender.
Having considered both ss.5J(1) and 5J(2) and based on the available country information as well as the applicant’s accepted circumstances, the Tribunal finds that the chance of serious harm to be faced by the applicant will be remote, insubstantial and less than a real chance, if the applicant were to return to Malaysia in the reasonably foreseeable future.
As the applicant does not satisfy s.5J(1)(a)(b) or (c), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a).
Complementary protection criterion
When considering these findings in the context of the alternative complementary protection criterion under s.36(2)(aa), the Tribunal notes that the ‘real chance’ test is the same as the ‘real risk’ standard. The Tribunal has made a finding that the applicant does not face a real chance of serious harm under s.36(2)(a) in the reasonably foreseeable future based on the Tribunal’s assessment of the applicant’s accepted circumstances and the available country information.
Similarly and consistently as well as for completeness, the Tribunal accepts there are substantial reasons for it to believe that as a necessary and foreseeable consequence of the applicant being removed from Australia to his country of reference, there is a risk of significant harm to him. This is based on the Tribunal’s findings that the applicant has presented credible, albeit significantly embellished, claims arising from threats of harm to the applicant by members of criminal organisations to whom he credibly owes some, albeit not a considerable, amount of money. It also finds that the significant harm will include severe physical violence and ill-treatment and that his harm will amount to significant harm as outlined in s.36(2A)(c) and (d).
Under s.36(2B), there is taken not to be a real risk of significant harm if the non-citizen ‘could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm’: s.36(2B)(b). Section 36(2B)(b) refers to an applicant obtaining, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer significant harm. In MIAC v MZYYL,[7] the Full Federal Court held that to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one. In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.
[7] (2012) 207 FCR 211 at [40].
In considering the country information in the applicant’s accepted circumstances discussed under effective protection findings for s.36(2)(a), the Tribunal finds that the level of protection from state authorities to the applicant if removed from Australia to anywhere within the applicant’s country of reference, will not be perfect but it will be adequately and effectively available to him. Based on these findings, the Tribunal does not accept that the applicant satisfies s.36(2B)(b). Accordingly, the Tribunal finds that the risk of significant harm to the applicant is remote and insubstantial and is less than a real risk as the Tribunal does not accept that the applicant satisfies s.36(2B).
Based on these ‘real risk’ findings arising from the applicant’s accepted circumstances, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk the applicant will suffer significant harm. Accordingly, the Tribunal finds that the applicant does not satisfy s.36(2)(aa).
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.
Peter Booth
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
…
(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.
…

[2019] AATA 6855

13 December 2019

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Immigration

Administrative Law

Statutory Interpretation

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Natural Justice

Procedural Fairness

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