1717493 (Refugee)

[2018] AATA 2525

1717493 (Refugee) [2018] AATA 2525 (20 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717493

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:James Silva

DATE:20 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 February 2018 at 6:19pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Fear of harm – Attacked by Loan Sharks – Kidnapped – Credibility issues – No real fear of persecution – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

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

1. The applicant is a man in his [age group] from Malaysia.

2. The applicant arrived in Australia on 11 February 2017, as the holder of an Electronic Travel Authority visa. He applied for a Protection (Class XA) visa on 27 April 2017. On 9 August 2017, the delegate of the Minister for Immigration and Border Protection (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

3. This is an application for review of that decision.

4. The applicant attended a Tribunal hearing on 17 January 2018.

5. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant claims to be indebted to a loan shark in Malaysia, who kidnapped, mistreated and threatened him when he fell behind in the repayments, and who continues to threaten him and his family. He fears that they will resume their targeting if he returns to Malaysia before repaying the debt in full, which he hopes to do by January 2019.

   Background

8. The applicant is a [age] year old Malay Muslim from [Town 1] Kelantan State. He speaks Malay and English.

9. The applicant lived in the village (kampong) [in] [Town 1], until 2011. He then moved to [a town] to study for two years. From 2013 until 2017, the applicant worked as an [occupation] in Selangor.

10. The applicant’s parents continue to live in Kelantan. He [has several] siblings, all of whom remain in Malaysia. He said that some are working, and others unemployed.

11. The applicant holds a Malaysian passport issued in [date] 2016, a full copy of which he provided to the Department. He entered Australia on 11 February 2017, and applied for protection on 27 April 2017.

    Evidence

12. The evidence before the Tribunal includes the following relevant material: -

    §  The applicant’s protection visa application form, lodged on 27 April 2017.

    §  Identity documents: - the applicant submitted to the Department a full photocopy of his Malaysian passport, which was issued in Kuala Lumpur on [date] 2016.

    §  The applicant’s protection claims are set out in detailed handwritten comments on the application form.

    §  There was no protection visa interview (‘Department interview’) in this matter.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of 9 August 2017.

    §  Review application form.

13. The applicant appeared before the Tribunal on 17 January 2018, to give evidence and present arguments. The hearing was conducted via video link between the Tribunal’s Sydney office and [a location], with the assistance of an interpreter in the Malay and English languages. The applicant is not represented in this matter, and did not present any witnesses.

    Receiving country

14. The applicant claims that he is Malaysian national. He speaks Malay; he has provided his Malaysian passport; and he has demonstrated his familiarity with that country. The Tribunal is The Tribunal is satisfied, for the purpose of this decision, that the applicant is a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing his claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicant’s claims and evidence

15. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

16. At face value, the applicant’s claims and evidence appear generally plausible and consistent with country information. That is, a family of modest means needs to raise funds for a medical emergency; the applicant turns in desperation to a loan shark (as he is not eligible for a bank loan); the loan shark’s agents start to threaten and harm the applicant when he fails to meet the repayments; and the applicant flees abroad, to avoid an escalation in the threats and harm, and earn money to discharge the debt.

17. However, at hearing, the applicant’s evidence appeared vague, sometimes confused, and lacking in context. The Tribunal formed the impression that the applicant was drawing on his personal experience (direct, or what he had observed among others) to some extent – for instance, in describing his family’s financial pressures; and the toll of his father’s illness and death on the family. However, it found other aspects of his evidence – for instance, his prominent role in funding his father’s treatment, the loan shark’s alleged pursuit of him (in particular, the claimed kidnapping and torture); and his efforts to avoid future harm (such as moving to Pahang) – problematic. These cast doubt over the circumstances that led the applicant to leave Malaysia for Australia, and more generally, his need for protection. The Tribunal’s full assessment is below.      

    Loan from unregistered money lender (loan shark)

18. The applicant wrote that he had to borrow money from a loan shark. About a year before he lodged his protection visa application (hence, in around April 2016), he had to raise money quickly for his father’s treatment for [a medical condition]. He earned only about RM 1,000[1] a month as an [occupation], and did not qualify for a bank loan. As a result, he turned to a loan shark, who made the funds available almost immediately.

    [1] Approximately $A 325 at current exchange rates.

19. At hearing, the applicant said that in January 2016, he borrowed RM 30,000[2] from a loan shark in Selangor. He understood it to have had a flat interest rate of 50 per cent. In response to the Tribunal’s questions, he said that he repaid the loan at RM 500[3] a month. He was not sure of the expected loan period.

    [2] Ca. $A 9,700.

    [3] Ca $A 160.

20. The applicant said that he had needed the money to pay for his father’s medical expenses, after his [diagnosis]. However, his father died in July 2016. The applicant confirmed that he used the borrowed money for his father’s treatment, but said that he did not have any receipts or other records from the clinic where his father was treated. He said that he did not offer any security for the loan – this is the usual practice (in relation to loans from loan sharks, he implied).

21. The Tribunal wondered why, as [one of several] siblings (including [several] brothers), it fell to the applicant to borrow the money for his father’s treatment. He replied that he felt a responsibility to assist his father. Pressed as to his other brothers’ reaction, he added that they also contributed towards his father’s medical costs.

22. General country information indicates that illegal money lending or loan sharking, also known as Ah Long is a widespread problem in Malaysia.[4] Key features of this are cash loans made at exorbitant interest rates, which can result in harassment, threats and violence towards the borrower and/or their family in the case of non-payment. Officials estimate that, despite warnings of the associated risks, the problem is growing, particularly among gamblers, but also ‘drug abusers, failed businessmen and those living beyond their means’[5] Police operations targeting loan sharks take place, but reportedly suffer from a lack of cooperation from the public, especially those who have fallen victim. According to the Department of Foreign Affairs and Trade, credible contacts advised that Malaysian authorities would likely view individuals who access loan shark services as having participated in an illegal practice.[6]

    [4] KL Consumer Safety Association - No need to fear the loan sharks’ 2015, Bernama (Malaysian National News Agency), 17 February < CISNET: CXBD6A0DE1580

    [5] Loan shark menace worsens in M’sia’ 2013, The Sun Daily, 2 October < CISNET:CX320169

    [6] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 3.78, p.18, CISNET: CIS38A80121311

23. This information lends some support to the applicant’s claims, namely that he turned to a loan shark when he needed cash urgently, without security, and that the loan came through quickly, but with onerous terms. As the Tribunal noted at hearing, however, the applicant’s evidence about related matters – such as the exact terms and duration of the loan; whether there were documents indicating the urgent need for funds, and what contribution his other brothers made – was less certain. (The Tribunal considers these claims further, and makes findings of fact, below.) 

    Threats and mistreatment from the loan shark

24. The applicant wrote in his protection visa application that he fell behind in his repayment of the loans. The loan shark threatened and injured him several times. For instance, he kidnapped the applicant and held him for ten days, without food; and he tried forcing the applicant to do illegal things (as a means of partially settling the debt). When the applicant refused to cooperate, the loan shark tortured and beat him.

25. At hearing, the applicant said that he managed to make the monthly repayments of RM 500 for ten months – hence until around October 2016 - but then found he could not continue it.

26. The applicant said that, on one occasion, in Selangor, the loan shark’s agents (gang members) kidnapped him for ten days, after he fell behind in his repayments. While they detained him, they threatened to cut off his hand and fingers if he failed to repay. They also tried to force him to sell drugs, but the applicant refused to comply with their demands. Eventually, the gang released the applicant so he could return to work and earn money to repay the loan.

27. The Tribunal asked what happened around the time of the applicant’s alleged kidnapping, and as a consequence of his ten-day disappearance.

    §  In response, the applicant said that his employer in Selangor went looking for him and tried to phone him, without success. Asked how he (the applicant) managed to keep his job, following an unannounced disappearance for ten days, the applicant replied that he told his boss that he had gone away for a break. His boss was not too happy about this, but kept the applicant on because he had worked there for a long time.

    §  The applicant said that he went to a clinic for treatment after his release, but he does not have any details or evidence relating to this.

    §  The Tribunal observed that the gang had evidently tracked the applicant to his employer, and wondered whether the applicant had tried to look for work as an [occupation] elsewhere in Malaysia. He replied that he tried to run away, but felt he had ‘no choice’ but to stay in the same place. Asked for details, he said that after his release, he went to Pahang for a couple of days. (According to Google Maps, Pahang is on the eastern coast of the Malay Peninsula, about 275km or three hours’ drive from Selangor.) The applicant said that the loan shark’s agents kept looking for him while he was in Pahang, and they harmed him. When asked directly whether they located him there, and whether they inflicted any harm on him, he replied equivocally that they hit him. The applicant said that, after staying in Pahang for two or three days, he returned to Selangor and continued working.

    §  The applicant said that his family did not know about any of these incidents. The Tribunal alerted him to his written claim that ‘my family and I had been threatened and harassed by the loan shark […] many time[s] such as we will be killed anytime’, which suggests that they had some knowledge of what was happening. He replied that there must have been some misunderstanding. In fact, the loan shark warned him that he would harm the family, but did not speak directly to the family. The Tribunal notes that this comment appears to match the applicant’s later written comment: ‘My family does not know about this as I don’t want them to be involved in this case […].’  

28. The applicant obtained his Malaysian passport in [2016], and travelled to Australia in February 2017. At hearing, he said that [one] brother raised the money by selling [an item]. The applicant emphasised that he used this money to travel to Australia, so that he could earn money and repay the debt. So far, he has repaid RM 20,000.[7]

    [7] Ca. $A 6,500.

29. The Tribunal notes that the applicant has consistently claimed that he fell behind in the repayments; that the loan shark kidnapped him for ten days, during which he physically abused the applicant and tried to force him into illegal activities; and that he was fearful after his release, unable to seek police protection, and unwilling to get his family involved. Again, country information lends some support to these claims, in particular, the loan shark’s penchant for violence and threats, and the difficulty in seeking police protection if one has been dealing with loan sharks.

30. However, the Tribunal found much of the applicant’s account lacking in detail and context, casting doubt on whether he was subject to such targeting at all. For instance, there was little insight as to why the gang kidnapped and detained the applicant for ten days, during which they tortured him, and tried forcing him into illegal activities – only to change their minds and set him free, so that he could earn money and repay the loan. Similarly, the applicant appeared ill-prepared when asked about the consequences of his ten-day disappearance – for instance, actions that his employer, his family and others might have taken to find him. The Tribunal was also concerned about the applicant’s account of having fled to another part of Malaysia, which he clarified was Pahang – and his confused evidence about what if anything happened to him during his two- to three-day stay there. In any event, the applicant’s ability to keep his job, and his return to work in Selangor (where the gang evidently knew to find him), rather than explore other options in Malaysia, adds to the Tribunal’s doubts.  

    State protection and relocation options 

31. The applicant wrote in his protection visa application that there was no prospect of the police protecting him, as he had engaged in illegal money lending. Moreover, any police involvement could put him and his family at greater risk (implicitly, by antagonising the loan shark). When asked at hearing about police assistance – for instance, after the alleged kidnapping – the applicant reiterated that he was too scared to report it to the police, as they would blame him for having dealt with an unlicensed money lender. The Tribunal explored whether the applicant had medical evidence relating to his abduction and mistreatment, and whether these would form an independent basis for police protection, but this yielded little.

32. The applicant wrote that he moved to different states, but the loan shark located him, assaulted him and warned him not to try to escape again. As noted above, the example that the applicant gave at hearing was his trip to Pahang for two or three days. His confused evidence about what occurred there, and his eventual return to work in Selangor, strongly suggest that he was drawing on some short-term visit to Pahang, rather than an attempted flight from persecution or significant harm.

    Departure and need for protection

33. The applicant wrote that he left Malaysia, knowing that he would not be able to meet the loan shark’s demands, and fearing that his life was in danger. At hearing, he confirmed this claim. At the end of the discussion, he stated his interest in being allowed to stay in Australia until January 2019, to allow time for him to repay the loan completely.

    Assessment and findings

34. As noted above, the basic outline of the applicant’s claims appears plausible and consistent with general country information. However, the Tribunal’s discussion with him of the details of his personal experiences gave rise to multiple concerns as to whether he was speaking from personal experience, in having borrowed money from a loan shark, failed to meet repayments, and then being subject to physical abuse (such as abduction, torture and pressure to engage in criminal activities) and sustained threats against him and his family. The Tribunal has outlined these concerns above, in particular in paragraphs 17, 23 and 30-32). In light of these concerns, and taking the applicant’s claims and evidence as a whole, the Tribunal does not accept that he borrowed money from loan sharks; that he failed to make timely repayments; that they pursued him in Selangor and other places; that they detained, physically mistreated and threatened him; or that they continue to pursue him.

35. The Tribunal accepts, on the basis that it is plausible, that the applicant’s family is under some financial pressure, and that he came to Australia to earn money to assist them. However, it does not accept that loan sharks inflicted serious harm amounting to persecution, or significant harm, on him, or threatened to do so. Nor does it accept that he genuinely fears such harm from loan sharks, or their agents, if he returns to Malaysia in the future.

    ASSESSMENT: REFUGEE CRITERION

36. The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to any other relevant factors, including his future conduct there is a real chance of him experiencing serious harm amounting to persecution for any of the reasons enumerated in s.5J(1), if he returns to Malaysia.

37. The applicant claims to fear that he cannot safely return to Malaysia until he has repaid the loan shark in full. Until such time, he fears that the loan shark (or his agents) could kill or seriously injure (disable) him, or target family members. In light of the findings above, the Tribunal finds that the applicant does not face a real chance of a loan shark, his agent or any other criminal targeting him, and inflicting serious physical, psychological or other harm on him. Nor does it accept that a loan shark will harm the applicant in any other way, for instance by inflicting harm on other family members, to cause the applicant psychological harm.

38. In these circumstances, the Tribunal does not need to assess whether the feared harm arises for the essential significant reason(s) of one or more of the five grounds enumerated in s.5J(1)(a): s.5J(4)(a) – for instance, whether the applicant is a member of any relevant particular social group that exists in Malaysia; if the loan shark will harm him for reason of his membership of such a particular social group; and/or if the Malaysian authorities will deny him protection, in a selective and discriminatory manner, because of this or any other reason set out in s.5J(1)(a).

39. At hearing, the applicant said that the cost of living is high. He is not well-educated, and he fears that he will be forced into criminal activities in order to meet his and his family’s expenses. The Tribunal accepts that the applicant is from a family of modest means; that his income is also only modest; and that he and his family feel under financial pressure. The Tribunal accepts that his father’s illness and death may have added to the family’s money problems, and the associated stress. The Tribunal also accepts that the applicant feels that the cost of living is high, and his economic outlook is uncertain. That said, the Tribunal notes that the applicant has lived and worked in Australia for more than a year, and managed to send funds back home; he has vocational qualifications as an [occupation] that are generally portable; and, as indicated at the hearing, he enjoys at least some level of support from his large family (as he indicated that one brother paid for his fare to Australia). Overall, the Tribunal is not satisfied that the applicant’s employment or financial prospects on his return to Malaysia, in the reasonably foreseeable future, involve serious harm. 

1. The Tribunal is not satisfied that these circumstances give rise to a real chance of the applicant suffering serious harm amounting to persecution, for instance ‘significant economic hardship that threatens [his] capacity to subsist’[8]: s.5J(4)(b). Nor does it involve systematic and discriminatory conduct: s.5J(4)(c). And finally, such financial pressures do not arise for any of the five reasons set out in s.5J(4)(a).

   [8] As noted in s.5J(5)(d), which gives one of the non-exhaustive instances of serious harm for the purposes of s.5J(4)(b).

2. The Tribunal has considered all of the applicant’s claims, individually and cumulatively. It is not satisfied that he has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Malaysia.

   ASSESSMENT: COMPLEMENTARY PROTECTION

3. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.

4. The Tribunal takes into account the above findings of fact, his and his family’s financial situation, and his prospects on return to Malaysia. It concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of their life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Malaysia.   

5. The Tribunal notes the applicant’s underlying concern about his and his family’s economic prospects in Malaysia, particularly given what he regards as the high cost of living. It takes into account the entirety of his circumstances, including his qualifications, work experience, family support and other factors. The Tribunal considers that economic and general living conditions in Malaysia do not give rise to a real risk of significant harm; and in any event, they are faced by the population of Malaysia generally, and not the applicant personally: s.36(2B)(c).

6. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm: s.36(2)(aa).

   CONCLUSION

7. 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).

8. 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).

9. 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

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

    James Silva
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

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

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

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

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

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.