1715901 (Refugee)
[2022] AATA 3810
•14 June 2022
1715901 (Refugee) [2022] AATA 3810 (14 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1715901
COUNTRY OF REFERENCE: Malaysia
MEMBER:Jessica Henderson
DATE:14 June 2022
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 June 2022 at 5:10pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from political and economic conditions and unemployment – new claim of fear of harm from illegal money lender raised at hearing – loan to meet business costs – damage to property and threats – credibility – unfavourable inference if no reasonable explanation for new claim – benefit of doubt – form completed by friend and no interview with department – detailed and consistent evidence of business and loan – brief and vague evidence of damage and threats – approach but no harm by lender to applicant’s brother in home country – no attempt to repay while working in Australia – relatively common name, change of appearance and possibility of relocation – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), (2B)(b), 65, 423A, 424(2)
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 12 June 2017. The delegate refused to grant the visa on the basis that the applicant’s claim was fear of unemployment, which was not a refugee nexus reason for a claim, and that the applicant had not provided any evidence or sufficient detail of his claims to satisfy the delegate that his particular circumstances would cause him to face a real risk of significant harm if he returned to Malaysia.
3. The applicant applied to the Tribunal for review of the decision on 22 July 2017.
4. On 6 April 2022 the Tribunal wrote to the applicant pursuant to s.424(2) of the Act seeking updated information about the applicant and his claims. The letter stated that if the Tribunal did not receive the requested information, or a request for an extension of time, by 20 April 2022 it might make a decision on the review without taking any further action to obtain the information.
5. The applicant did not respond to the s.424(2) Letter, and did not update his information or claims.
6. Notwithstanding, on 28 April 2022 the Tribunal invited the applicant to attend a hearing on 24 May 2022. The applicant completed a Response to Hearing invitation which the Tribunal received from him by email on 18 May 2022.
7. The applicant appeared before the Tribunal on 24 May 2022 and again on 14 June 2022 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Malay and English languages.
Criteria for a protection visa
8. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
9. 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 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, 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.
applicant’s claims and evidence
The applicant claims that he was born on [Date] in Kuala Terengganu, Malaysia. His ethnicity is Malay and his religion is Muslim.[1] The applicant stated in his protection visa application form that he speaks, reads and writes in Malay and that he reads and writes in English.[2]
[1] Part C – Application for a protection visa application form dated 9 June 2017 Department File [Reference]
[2] Part C – Application for a protection visa application form dated 9 June 2017 Department File [Reference]
The applicant provided the Department of Home Affairs (the Department) with a copy of his Malaysian passport.[3] It is consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.
[3] Department File [Reference]
The Tribunal finds that the applicant is a citizen of Malaysia and is satisfied that his identity is that which he purports it to be.
Migration history
The applicant arrived in Australia [in] March 2016 on a class UD subclass 601 visa granted on 3 March 2016. He has not departed since.
Initial claims
The applicant’s protection visa application characterised his claims as arising from financial and political issues. He indicated that he feared financial issues arising from unemployment, and that he could not move to another part of the country because he was unemployed.
The applicant does not appear to have been interviewed by the delegate, nor offered the opportunity to be interviewed by the delegate.
Claims before the Tribunal
At the hearing before the Tribunal on 24 May 2022 the applicant told the Tribunal that his application for a protection visa had been completed by ‘a friend’ to whom he had paid money for the service of completing his application. He said that he had met this friend on the [workplace] that he was working on at the time of the application.
The applicant said that his intention had been to seek protection because he had borrowed money from an illegal money lender and he feared harm at the hands of the money lender if he returned to Malaysia. The applicant said that he had told the friend who completed his application that he had had problems with money lenders.
The applicant provided the Tribunal with the following details:
a.He initially borrowed 50,000 MYR;
b.He had repaid 40,000 MYR;
c.The amount of money owing was around 85,000 MYR;
d.He did not have any documents recording the loan.
At the hearing on 14 June 2022 the applicant gave the following details to the Tribunal:
a.The applicant had started his own [business] in 2009 with the financial assistance of his siblings. He had [number] employees.
b.Around 2014 the applicant realised that the [business] was in financial difficulties and he would need to borrow money to meet the costs of the business. He approached the banks but they assessed the business as financially unsound and declined to lend him money.
c.He approached an illegal money lender that he was introduced to in order to meet the costs of his employees’ wages, the rental, and the necessary supplies to continue operating.
d.He borrowed 50,000 MYR, which he had to repay in monthly instalments of 2,000 MYR.
e.He does not recall an interest rate being discussed, but he does recall being warned that the total amount of repayments might be up to 80,000 MYR.
f.He did not have contact details for the money lender. Collectors were sent to his place of business once a month.
g.The applicant was able to pay 5 monthly payments. In early 2015 he developed a [condition] that affected his ability to work. He was not able to make more payments, and the money lender came looking for him. He described the lender as ‘very upset’ and said that he warned him sternly and sprayed paint on his car. The applicant was sufficiently shaken to sell his car and give the entire proceeds to the money lender, an amount of 30,000 MYR.
h.At that stage the balance of the loan, inclusive of interest, was 20,000 MYR.
i.The applicant was warned that if he didn’t pay the balance the lender would ‘take further action’ which he understood to be a threat of assault and potentially a threat to kill him.
j.The applicant did not report the matter to the police because the money lender told him that it would make it worse for him if he filed a report. He believed them, because he had heard rumours that they were capable of killing and he thought their threats were credible.
k.In spite of his best efforts, his business continued to break even. He closed in down and used the remaining capital to pay out the rental owing and the wages that were due.
l.He decided to come to Australia in early 2016 because he had a friend working in Perth. He borrowed money from friends to pay his airfare. He did not tell the money lenders that he was leaving or make any arrangements by which he could make ongoing payments from outside the country.
m.He has not made any payments towards the loan since he left Malaysia.
n.He estimated that the current interest might be anywhere from 100,000 MYR or more. He does not know how the interest is calculated, and he does not have a direct line of communication with the money lenders. He said that sometime more than 3 years ago he asked ‘a friend of a friend’ to contact the money lender and see how much he owed, and that at that stage it was about 80,000 MYR that he had to pay.
o.If he returns to Malaysia he will be beaten.
Evidence
Aside from the oral evidence provided by the applicant, he provided the following documents:
a.Medical reports confirming a ‘[deleted]’ detected in 2016 and operated on in 2017;
b.Letters of support from his current employer, confirming that he is a full time employee and providing details of his salary and confirming his employer’s view that he is a dependable, honest person;
c.Income tax return for the year ending 2021 and payslips confirming his ongoing income.
The Tribunal asked the applicant why he had not taken steps to repay the money that he owed to the money lender in Malaysia, once he was earning a reasonable salary in Australia. The applicant said that he was responsible for the support of his mother in Malaysia, and that he sent her as much money as he was able to after meeting his monthly cost of living.
The applicant then told the Tribunal that he had no simple mechanism for making payments to the money lender from Australia in any event.
The Tribunal asked the applicant what he thought would happen if he returned to Malaysia. He said that he thought the money lender would find him and beat him. The Tribunal asked him whether he could relocate to a different part of the country, and the applicant said that the money lender would find him wherever he went. The Tribunal asked how the money lender would find him and the applicant said that he was not sure; that he thought the money lender had a network that would report on his whereabouts. He told the Tribunal that the money lender had tracked down and threatened his brother in Selangor and that they would be able to find him if he was anywhere in Malaysia.
The Tribunal noted the very dramatic change in the applicant’s appearance from the time that his passport photograph was taken until the present. The applicant has lost a significant amount of weight off his face and grown his previously shaved hair into a long ponytail. As he has a pronounced [facial feature], the effect of his hair being long rather than shaved close is an effective disguise. The Tribunal had to request the original of the applicant’s passport and look closely at the shape of his nose and ears to be satisfied that it was the applicant who appeared in the passport photo.
The Tribunal also reviewed the Country Information and determined that the applicant’s name is a popular one in Malaysia.
The Tribunal put to the applicant that with his relatively common name and his changed appearance it would be unlikely that he would come to the attention of the money lender if he returned to Malaysia and lived in a different place to his former residence. The applicant insisted that the money lender had a network of friends who would be able to find him and that he would then be beaten.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
In assessing the applicant’s claims, the Tribunal must make factual findings in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, as well as stress related to their specific circumstances. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant if they are generally credible but unable to substantiate all his or her claims. However, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant.[4]
[4] MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70].
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[5] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.
[5] Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at [482].
If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[6] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[6] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
Where, as here, the applicant has raised new claims before the Tribunal then s.423A of the Migration Act applies. That section states that an inference unfavourable to the credibility of the claim or evidence can be drawn if the Tribunal is not satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made. The section requires an explanation that is cogent and logical.
The Tribunal has doubts about the explanation given by the applicant for the mischaracterisation of his claims on his initial application form. However, as the applicant demonstrably does not speak English and gave a detailed account of his engagement of another person to complete the form on his behalf, the Tribunal gives him the benefit of the doubt. It is relevant that he was not interviewed by the Department – his appearance before the Tribunal is the first time he has been questioned about his claim with the assistance of a professional interpreter.
However, the Tribunal does not accept all of the applicant’s evidence. The Tribunal does accept (and find) that:
a.The applicant had started his own [business] in 2009 with the financial assistance of his siblings.
b.Sometime in 2014 the applicant realised that the [business] was in financial difficulties. He was unable to borrow money legitimately and borrowed 50,000 MYD from an illegal money lender.
c.Sometime in 2015 the applicant developed a [condition] that was sufficiently serious to affect his work. He was unable to continue loan repayments and sold his car to make a significant payment to the money lender. At that stage there was at least 10,000 MYR still owing, plus an amount of interest that the applicant was unable or unwilling to calculate for himself.
d.He closed down his [business] and used all available capital to pay out the rental owing and the wages that were due.
e.He decided to come to Australia in early 2016 because he had a friend working in Perth. He borrowed money from friends to pay his airfare.
The applicant’s evidence about those matters was clear and consistent, and he was able to provide details.
In contrast, the applicant’s evidence about the threats of harm from the money lender were vague. He indicated that his car had been splashed with paint, leading to him selling it and paying the proceeds to the money lender. He otherwise indicated that he had been cautioned or warned in various terms. He did not give any evidence of any consequence flowing from his continued non-payment of his debt. He did not offer any commentary about the matters he was describing, confining his evidence to very brief responses to direct questions by the Tribunal. He seemed unable to move progressively through his claims of being threatened and feeling afraid by answering the question “what happened next”.
Based on the applicant’s evidence, the Tribunal does find that the applicant lived in Malaysia for at least a few months without paying the monthly repayment on his loan. As he did not describe any interactions with the money lender that would amount to either serious or significant harm during this period, the Tribunal finds that he previous non-payment of his monthly repayments did not lead to serious or significant harm.
The applicant has not described any specific communication with the money lender to the effect that serious or significant harm will be inflicted on him in the future if he does not make payment of the outstanding interest. In spite of knowing where his brother can be found, the money lender has not, on the applicant’s evidence, seriously attempted to extract the applicant’s current whereabouts from him.
Country information
The country information for Malaysia produced by the Department of Foreign Affairs and Trade (Country Information) provides that loan shark activities have been a persistent and deep-rooted feature of Malaysian society for several decades, and that a large percentage of the Malaysian population engages in such lending.[7]
[7] Y. G. Guan, ‘The Long and Short of the “Along” Problem’, May 2003, The Malaysian Bar Association website.
DFAT report notes that illegal money lenders can inflict harassment, threats, and violence towards the borrower, their family, or former family members like ex-partners. DFAT’s summary on this point is:
3.111 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.
The Tribunal notes that of the applicant’s [siblings] living in Malaysia, only 1 of them has been approached by the money lender in the applicant’s absence. According to the applicant, that brother was not harmed when he declined to pay the money on the applicant’s account, nor was the brother forced to disclose the applicant’s current location. The applicant told the Tribunal that none of his other siblings has been approached or threatened by the money lender. He stated that this was because the lender does not know where they are. That appears to contradict the applicant’s stated fear that the money lender can track down anyone, anywhere.
In contrast to the serious incidents reported by DFAT above, the applicant does not describe any incident at his home in Malaysia – his evidence was that he was approached at work and that it was his car, not his home, that was sprayed with red paint. He did not describe or volunteer any information about the process of selling the car with the red paint on it, or the removal of the red paint; his evidence about this event was entirely lacking in detail or spontaneity.
In contrast to the DFAT country information, the applicant has not displayed any indicia of shame to the Tribunal at his inability to repay the money lender; rather he appears to have abandoned any attempt at repayment on his arrival in Australia, notwithstanding that he still owes 10,000 MYD of the principal that he initially borrowed (3,240 AUD) and now earns an annual salary of 60,000 AUD (185,182 MYD).
The applicant statement that he would be beaten by the money lenders on his return to Malaysia even if he had some money saved to negotiate a settlement of the debt is unsupported by any evidence. The applicant was not aware of anyone specific who had been beaten in similar circumstances and made only vague reference to the reputation of money lenders.
The applicant’s fear of reporting the ‘threats’ to the police because of the money lender’s reputation is also inconsistent with the country information. Illegal money lending is an offence under the Moneylenders Act 1951 and punishment includes fines and imprisonment. Police powers under the Act and the penalties are summarised as follows by DFAT:[8]
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.[9]
Sections 5(2) and 29(B) of the Moneylenders Act 1951 (as at May 2015)21 state:
5 (2) Any person who carries on or advertises or announces himself or holds himself out in any way as carrying on the business of moneylending without a valid licence, or who continues to carry on such business after his licence has expired or been suspended or revoked shall be guilty of an offence under this Act and shall be liable to a fine of not less than two hundred and fifty thousand ringgit but not more than one million ringgit or to imprisonment for a term not exceeding five years or to both, and in the case of a second or subsequent offence shall also be liable to whipping in addition to such punishment.
Harassment or intimidation, etc. of borrower 29B. (1) Any moneylender who, either personally or by any person acting on his behalf, harasses or intimidates a borrower or any member of the borrower’s family or any other person connected with the borrower at, or watches or besets, the residence or place of business or employment of the borrower, or any place at which the borrower receives his wages or any other sum periodically due to him, shall be guilty of an offence under this Act and shall be liable to a fine of not less than fifty thousand ringgit but not more than two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both, and in the case of a second or subsequent offence shall also be liable to whipping in addition to such punishment.
[8] DFAT Country Information Report Malaysia, 13 December 2019.
[9] Moneylenders Act 1951 (As at 1 May 2015) 7
The applicant’s evidence is that he believed he would be harmed if he reported the matter to the police because of a very ephemeral threat by the money lender that things would be worse for him if he did. He was unable to point to any basis for this belief, other than the reputation of money lenders in Malaysia. However, anecdotal evidence reported in 2018 is that seven out of ten borrowers would, in fact, either lodge a police report or seek assistance from NGOs when an illegal money lender attempted to collect payments.[10] The Tribunal does not accept, in light of that evidence, that money lenders in Malaysia enjoy such a formidable reputation as to engender in the applicant a reasonable belief that he would be harmed as a result of making a police report when no specific threat to that effect had been made.
[10] ‘Loan sharks sharpen their bite’, The Star, August 2018
The applicant did not describe any steps he had taken to resolve matters with the money lender after the sale of his car and the substantial repayment of the principal loan. Country information indicates that there are avenues that he can explore for resolving his outstanding interest debt. For example, the non-government Malaysian Muslim Consumers Association (PPIM) has a unit (Ceti Haram Anti-Corruption Unit) dedicated to resolving loan shark debt by renegotiating its terms with the loan shark. The Unit’s webpage[11] allows people to report their individual cases to the agency, and in response the agency indicates that upon reviewing the applicant’s case will negotiate with an illegal money lender to stop the threat, stop the interest, reduce the claim and reschedule the payment; it may even provide counselling services if appropriate.[12]
Refugee criteria
[11] ahlong.ppim.org.my
[12] A Google Translation of this webpage accessed April 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 type="1">
In the circumstances, the Tribunal is not satisfied that the applicant had a subjective fear of persecution. His expressed fears are inchoate and vague, and not expressed in terms that convince the Tribunal that they are genuine. They are not logical in the context of his evidence, and not consistent with his continued non-payment of the loan at a time when he is reasonably well-funded and in imminent risk of being required to leave Australia. The applicant is unable to adequately explain the source of his fear, ascribing to vague reputational matters. He did not describe or explain any change in his attitude between the time when he borrowed money without any apparent regard for the interest rate or repayment plan (or indeed the consequences if he was unable to repay it). The Tribunal finds that his apparent insouciance at the time of the loan is not consistent with him being aware at that stage of a terrifying reputation associated with the money lender from whom he was borrowing, and he has not given the Tribunal a basis for concluding that he has since developed a genuine fear of serious harm at the hands of the money lender.
The Tribunal finds that any such fear would in any event not be well-founded. In arriving at the latter conclusion, the Tribunal notes that, although corruption has been an issue with respect to police action against loan sharks, DFAT’s overall assessment of police and court process in Malaysia is 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”.[13] Nothing in the applicant’s evidence displaces that country information.
[13] DFAT Report at p.58.
The Tribunal finds that the applicant was not subjected to serious harm in Malaysia before his departure and that there is not, and has never been, a real chance of serious harm if he returns to Malaysia as a result of his loan from an illegal money lender.
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).
Original economic claim
For completeness, the Tribunal has considered the applicant’s original claim of general economic harm, notwithstanding the applicant’s disavowal of it in favour of the more specific debt claim.
The Tribunal notes that Malaysia is a developed country with a growing economy.[14] In 2019 its GDP growth was 4.3 percent, and it is becoming a leading producer of electrical parts and products, oils and natural gas and a variety of manufacturing products.[15] The Tribunal nonetheless accepts that there are still significant inequalities for indigenous people and the poorest 40 percent, who are the recipients of government assistance.[16]
[14] DFAT Report at p.10.
[15] DFAT Report at p. 11.
[16] DFAT Report at p. 11.
The applicant’s evidence is that he has considerable experience in the [industry], both in Malaysia and Australia. His current employer describes him as ‘a great [occupation]’ as well as skilled in [a job task]. He has previously held employment in [businesses] in Malaysia for 2 and 3 year periods. He has, on his evidence, a strong family support network with a demonstrated history of assisting the applicant during periods of unemployment. Although he has been treated for his [condition] since 2016, there is no suggestion that it currently interferes with his employment in a [business]; based on the letters of support his employer appears to be very satisfied with his performance.
For these reasons, the prospects of finding work in Malaysia based on the applicant’s circumstances does not amount to the applicant facing a harm that can be considered serious harm pursuant to s 5J(5) of the Act. That is, the Tribunal finds that any economic hardship the applicant incurs on his return to Malaysia will not amount to serious harm in the sense that it would threaten his capacity to subsist.
Accordingly, the Tribunal finds that there is no real chance the applicant would be seriously harmed if he is returned to Malaysia by reason of his economic circumstances. The Tribunal finds that the applicant does not have a well-founded fear of persecution if he returns to Malaysia and finds that the applicant does not satisfy s 36(2)(a).
Complementary protection
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 threats directed at the applicant and his brother do not of themselves comprise significant harm. The applicant’s evidence does not disclose any incident of significant harm prior to his departure from Malaysia, and the nature of the threats directed at him are vague and do not support a finding that there is a real risk of significant harm. The applicant has not described an incident in which he was threatened with death, torture, or inhuman/degrading treatment/punishment if he did not pay his debt. Any risk to the applicant on his return to Malaysia does not, in the Tribunal’s view, amount to significant harm.
Nor would it be harm that was a necessary and foreseeable consequence of his return to Malaysia. The country information is that there are organisations that are specifically tasked with, among other things, assisting people to negotiate with loans sharks to settle debts, and to encourage the reporting of loan shark activities to the police.[17] It is neither necessary nor foreseeable that the applicant will be unable to reach some terms of settlement with his creditors that do not involve the infliction of significant harm on him if he is returned to Malaysia, in circumstances where he will have some ability to make ongoing repayments of the principal and at least some part of the interest if he is given an opportunity to do so.
[17] ‘Malays most notorious for borrowing from Ah long’, says PPIM, Free Malaysia Today, 5 July 2016, ‘Loan shark menace worsens in M’sia’, The Sundaily, 2 October 2013. ‘KL Consumer Safety Association - No need to fear the loan sharks’, Bernama (Malaysian National News Agency), 17 February 2015,
On the basis of the country information surveyed above, the Tribunal is also satisfied that Malaysia has effective legislation to address any risk of significant harm posed by illegal money lenders, and that the police force is generally effective where threats are reported. There is nothing in the applicant’s evidence to contradict the country information that there is adequate protection from the police in the event of threats rising to the level of significant harm for the purposes of s.36(2B)(b) of the Act.
On the applicant’s evidence, there is no basis for a finding that there is a real risk of significant harm to him as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jessica Henderson
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
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Appeal
0
6
0