1718555 (Refugee)

1718555 (Refugee) [2022] AATA 711 (14 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1718555
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Peter Haag
DATE:14 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 February 2022 at 10:16am
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from money lender – threats but no harm – credibility – inconsistent claims and evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 201 FCR 505
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 19 May 2017. The delegate refused to grant the visa on 9 August 2017 on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act or s 36(2)(aa) of the Act, and is not a member of the same family unit as a non‑citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant: s 36(2)(b) and s 36(2)(c) of the Act.
The applicant appeared by video hearing before the Tribunal on Monday 31 January 2022 to give evidence and present arguments. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold it by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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 (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.
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.
Section 5AAA of the Migration Act 1958
The Tribunal notes that pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
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 Tribunal has also taken into account the country specific information report prepared by the Department of Foreign Affairs and Trade (DFAT) for Malaysia for protection status determination purposes, to the extent that the report is relevant to the decision under consideration.
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.
Applicant’s identity
The via applicant claims that he was born on [date] ([age] years old) in Kuala Lumpur, Malaysia. The applicant states that he can speak, read and write in Malay and English and he claims to be of Melayu ethnicity.[1]
[1] Part C - Application for a protection visa application form signed 11 May 2017, Department File [number].
The applicant provided the Department of Home Affairs (‘the Department’) with a certified copy of his Malaysian passport.[2]
[2] Ibid.
The documentation provided by the applicant is consistent with his evidence to the Tribunal in relation to his identity. There is no evidence that indicates the applicant’s identity documents are bogus. Therefore, based on the information provided by the applicant, the Tribunal is satisfied the applicant is a national and citizen of Malaysia, and as such his protection claim will be assessed against Malaysia as the ‘country of reference’ and the ‘receiving country’ for the purposes of s 5J and s 36(2)(aa) of the Act.
There is no evidence to suggest that the applicant has a right to enter and reside in a country other than Malaysia and, accordingly, the Tribunal finds that the applicant is not excluded from protection under the laws of Australia by s 36(3) of the Act.
Migration history
The applicant first arrived in Australia [in] March 2017 on a Electronic Travel Authority Subclass 601 visa which was granted on 21 February 2017 and ceased on 27 June 2017.[3]
[3] Department of Home Affairs – Mainframe Movement Records dated 17 December 2021, Tribunal case number 1718555, Doc ID No: 9155243.
The applicant has not departed Australia since his arrival.[4]
[4] Ibid.
The applicant submitted a valid protection visa (XA-866) application to the Department on 19 May 2017.[5]
[5] Department File: [Number].
The abovementioned protection visa application was refused by the Department on 9 August 2017. [6] The applicant applied for Tribunal review of this decision on 18 August 2017.[7]
[6] Ibid.
[7] Application for Review Form, Tribunal case number 1718555, Doc ID No: 3620216.
The applicant is presently lawful onshore in Australia on a bridging visa granted on 23 May 2017.[8]
[8] Ibid.
Applicant’s evidence
The applicant listed his father, sister and brother in his protection visa application. They all reside in Malaysia. He claims that he has never married or been in a de facto relationship and does not have any personal contacts within Australia.[9]
[9] Part C - Application for a protection visa application form signed 11 May 2017, Department File [Number].
The applicant claims he completed his primary and secondary school education in Malaysia from [year] to [year].[10]
[10] Ibid.
The applicant claims on his protection visa application that he worked as [an Occupation 1] in Malaysia from March 2014 to February 2017 and has since been unemployed.[11]
[11] Ibid.
The applicant did not provide any pre-hearing submissions to the Tribunal.
Claims for protection and other supporting documentation
The applicant first submitted his claims for protection when he lodged his protection visa application to the Department on 9 August 2017. The applicant’s claims are as follows:[12]
[12] Ibid.
I am seeking protection in Australia so that:
I DO NOT HAVE TO RETURN TO MALAYSIA.
Why did you leave that country(s)? Provide specific details
I LEAVE MALAYSIA BECAUSE OF PROBLEM WITH MONEY LENDER. BECAUSE I STARTED TO BORROW MONEY FROM THEM AND I COULD’NT PAY ON TIME SO THE MONEY LENDER COME LOOK FOR ME. AND THEY THREATENED TO HARM ME.
What do you think will happen if you return to that country(s)?
IF I RETURN BACK TO MY COUNTRY. THE MONEY LENDER WILL FIND ME AND HARM ME BECAUSE OF MY FAILURE TO PAY MY DEBTS.
Did you experience harm in that country?
Yes.
THEY COME TO MY HOUSE AND WORKING PLACE ASKING FOR PAYMENTS. THEY THREATENED ME IF I CANT PAY AND THEY PROMISE TO HARM ME.
Did you seek help in that country after the harm?
No.
I DO NOT ASK FOR HELP BECAUSE I WAS SCARED AND THEY THREATENING ME NOT TO INFORM THE POLICE.
Did you move, or try to move to another part of the country?
No.
I DID’NT BECAUSE THEY STILL CAN FIND IN MALAYSIA.
Do you think you will be harmed or mistreated if you return back to that country?
Yes.
THE MONEY LENDER WILL DISTURB AND THREATEND ME IF I GO BACK TO MALAYSIA. BECAUSE I STILL CAN’T PAY THEM ON TIME.
Do you think that the authorities will protect you if you go back?
No.
NO, BECAUSE THE MONEY LENDER KNOWS HOW TO CHANGE THE WHOLE STORIES.
Do you think that you will be able to relocate if you go back to that country?
No.
NO BECAUSE THEY ARE EVERYWHERE IN MALAYSIA.
Country information
In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s 499 of the Act, the Tribunal has given regard to the most recent DFAT Report on Malaysia dated 29 June 2021 (‘the DFAT Report’) marked as ‘Annexure A’ to this decision.
The threshold issue
For the applicant to succeed in this application, the evidence must be sufficient to establish to the satisfaction of the Tribunal that the applicant entered into a loan agreement in Malaysia with an illegal money lender. This is a threshold issue.
Failure to establish the existence of the loan agreement will mean the applicant has failed to establish the existence of the essential fact upon which his claims for protection are based, namely, that the persecution and mistreatment he would face in Malaysia is causally related to a loan agreement with an illegal money lender in Malaysia.
Discussion
According to the evidence at hearing, the applicant arrived in Australia for the purpose of improving his life in Malaysia. During the first month of his time in Australia, he found employment on farms, and since then he has been consistently employed on farms. The applicant said in evidence that his employment would improve his life in Malaysia by allowing him to pay off his debt to an illegal money lender. He also refers in evidence to the illegal money lender as a loan shark.
According to the applicant’s evidence, he has no savings in Australia. He remits his wages to his mother and she repays the loan shark at the rate of 3,000 Malaysian ringgit per month. 30,000 ringgit has been repaid and 20,000 ringgit remains to be repaid.
The applicant claims he intends to return to Malaysia after his debt has been repaid because repayment of the debt will extinguish the risk of harm he and his family are facing.
The applicant was a long-term [Occupation 1] in Malaysia before he departed for Australia. According to the applicant’s evidence, the salary of [an Occupation 1] provided insufficient income for him to support his family and pay off the loan shark.
The applicant accepted that despite the COVID-19 pandemic and political upheaval in Malaysia, [detail about applicant’s work sector redacted] and, by implication, that he would be able to return to work in Malaysia as [an Occupation 1].
The Tribunal asked the applicant to provide details of the loan agreement with the loan shark.
According to the applicant’s evidence, he entered into a written loan agreement with an illegal money lender. In response to questions from the Tribunal inviting the applicant to provide details about the loan agreement, the applicant said he borrowed 50,000 Malaysian ringgit and the interest rate was 50% to 80% because it is an illegal loan.
The Tribunal asked the applicant to provide more details about the agreement and the circumstances in which he came to enter into the agreement. The applicant responded that the money lender wanted three months of payslips together with the application, to process the application. He asserted in evidence that the illegal money lender looked at his payslips and agreed to lend him 50,000 ringgit, but he was not told the interest rate and payments would be very high. He felt he was trapped and taken advantage of by the illegal money lender.
The Tribunal suggested to the applicant that he knew he was dealing with an illegal money lender. The applicant accepted that he knew he was dealing with an illegal money lender and he did so because he was left with no other option after a bank refused to lend him money. If the applicant’s evidence is to be accepted, it is apparent that he intentionally sought out and applied to an illegal money lender for a loan.
The Tribunal suggested to the applicant that it is well known in Malaysia that illegal money lenders charge high interest rates. The applicant agreed with that proposition. The applicant claimed the office he attended had a sign that said licensed money lender, but they were not licensed, and that he was scammed. This evidence is materially inconsistent with the applicant’s earlier oral evidence, and the claims he made in his visa application. In his application and according to his initial evidence at hearing, it is evident the applicant knew he was dealing with an illegal money lender from the outset.
This inconsistency in the applicant’s evidence in which he shifts from knowingly dealing from the outset with an illegal money lender, to believing he was borrowing from a licensed money lender, being duped into that belief by the sign on the money lender’s office, is of concern to the Tribunal. The Tribunal is of the view that this inconsistency in the applicant’s evidence, considered in the context of the applicant’s claims and his evidence, is a material inconsistency that weighs against accepting that the applicant is a reliable witness, and that he entered into a loan agreement with an unlicensed money lender.
The Tribunal inquired of the applicant whether he signed documents in relation to the loan. He agreed he signed a document, but he was scammed because his signature was interfered with, copied and put onto an agreement which set the interest rate at 50% to 80% interest. The agreement he signed set an interest rate of 35% only.
The Tribunal asked the applicant to explain what he meant by saying his signature was interfered with and he was scammed. The applicant explained that he was provided with a copy of the loan agreement with his signature on it. It set the interest rate at 50% to 80% instead of the 35% he had agreed to; and according to his evidence, his signature was copied from the agreement he signed onto a different agreement which changed the interest rate from 35% to 50% to 80% interest.
The Tribunal asked the applicant about the actions he took when he saw he was being defrauded. The applicant claimed he refused to accept the agreement. Consequently, he was threatened, beaten and a pistol was produced. He was told if he did not accept the agreement, he and his family would be in trouble.
The applicant claimed he reported the assault to the police, but that was no solution because he was always followed and watched from a distance.
The Tribunal put to the applicant that his evidence about being defrauded by the illegal money lender and being bashed in the office and a pistol being held to him is different from his protection visa claim, and that is a matter of concern to the Tribunal.
The Tribunal reminded the applicant that he was asked in his visa application about harm he had suffered. The Tribunal also reminded the applicant of his answer to that question, namely, that “THEY COME TO MY HOUSE AND WORKING PLACE ASKING FOR PAYMENTS. THEY THREATENED ME IF I CANT PAY AND THEY PROMISE TO HARM ME.”
The Tribunal put to the applicant that he said nothing in his application form about being defrauded as to the interest rate, being bashed and a gun being held to him to force him to accept a fraudulent agreement, and that he reported the assault and the fraud to the police. The applicant was asked to explain that circumstance.
The applicant responded that he did not mention these incidents because he was worried that if he included that information in the visa application form, the Australian government would report the matter to the police in Malaysia, and the police would act against the money lender. The money lender would retaliate by harming his family.
The difficulty with this answer is that the applicant himself claims he reported the fraud and assault to the police thereby, on his evidence, exposing his family to the risk he claimed he wanted to avoid by not disclosing the fraud and assault with a gun in his visa application. The Tribunal finds the evidence to be contradictory in nature and this aspect of the applicant’s evidence weighs against accepting the applicant to be an accurate and reliable witness, and that he entered into a loan agreement with an illegal money lender.
The Tribunal reminded the applicant that he said in his visa application form that he did not inform the police in Malaysia about the threats he claimed the illegal money lender had made to him. The applicant accepted that he gave that answer.
To summarise the applicant’s evidence: he accepted that he claimed in his visa application that he did not report the threats [as he described them in his visa application] to the police and that his answer was false. He explained the falsity by asserting he did not disclose his circumstances in the visa application for the same reason he gave in evidence for not mentioning the fraud and assault with a pistol, and being forced into accepting the fraudulent loan agreement: see [48].
The contradiction between the applicant’s claim in his visa application that he did not report the threats he described in his visa application to the police, and his claim in evidence that he reported the fraud and assault with a pistol to police in Malaysia, is a materially different set of circumstances relating to the loan agreement. The inconsistency in the applicant’s evidence and claims weighs against accepting that the applicant is a reliable and accurate witness, and that he entered into a loan agreement with a loan shark in Malaysia.

The Tribunal asked the applicant if he was required to provide any security for the loan. The applicant replied that the loan shark just had information about him, his family and his closest relatives. Consistently with this evidence, the Tribunal then suggested to the applicant that the loan shark did not ask the applicant to provide a house as security. The applicant responded that when he could not meet his payments, the loan shark attended his house and took the title deed to the house.
The Tribunal put to the applicant that he had not made this claim previously in his application and asked him his to explain why he had not done that. The applicant again relied on his earlier explanation about being afraid the government in Australia would report the event to the police in Malaysia. He was afraid the police would then act against the loan shark who would then harm his family.
In view of the applicant’s evidence at hearing that he reported to police in Malaysia that he was defrauded and forced at gunpoint into accepting a fraudulent loan agreement, the Tribunal finds the applicant’s explanation for not including the taking of the house deed in his application to be unpersuasive.
The Tribunal will consider further the claim that the loan shark took possession of the title deed to the house.
When the applicant was asked whether he provided security for the loan, in substance, the applicant responded the security for the loan was that the loan shark just had information about him, his family and closest friends.
The applicant confined the security for the loan to personal information the loan shark had about the applicant and his family and friends, thus, by implication, he had obtained the ability to locate and harm the applicant, and to identify, locate and harm people close to the applicant if he failed to meet his repayment obligations.
The applicant’s response to the Tribunal’s question about security for the loan did not contemplate that the loan shark had taken possession of the title deed to the house in circumstances where the applicant had failed to meet his repayment obligations.
Furthermore, the Tribunal is rehearsing here that the applicant failed to make this significant claim in his visa application when he disclosed the harm he claimed he suffered in Malaysia at the hands of the loan shark. In the application the applicant limited the harm he was subjected to at his house to being visited and threatened that he would be harmed for failing to repay the loan.
The failure of the applicant to mention the taking of the deed at his house in his visa application, and in response to the Tribunal’s initial question about security for the loan, causes the Tribunal to doubt the credibility of the claim that the loan shark took possession of the deed to the house. The Tribunal is not satisfied that the illegal money lender visited the applicant’s house and took possession of the house deed.
The applicant, without explanation, did not support the existence of the loan agreement with any documentation or other concrete supporting evidence, such as a copy of the loan agreement.
The applicant claims he had been repaying the loan from his earnings in Australia. According to his evidence, he makes the loan payments by remitting money to his mother who uses part of the remitted funds to pay the loan shark. The applicant also said in evidence that he is in regular contact with his mother in Malaysia. It is reasonable to expect documentary evidence to be available to the applicant that is capable of verifying the movements of money from Australia to his mother, and her treatment of the money for the purpose of making payments to the loan shark.
The absence of documentary evidence capable of verifying the existence of the loan agreement weighs against accepting the existence of the loan agreement.
Upon considering the totality of the evidence and the Tribunal’s concerns about the reliability of the applicant as a witness, and the accuracy of his evidence given in support of his claims, the evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant entered into a loan agreement in Malaysia with an unlicensed money lender.
Further, the evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant was threatened by an illegal money lender, and that he was beaten and forced at gunpoint into accepting as valid a loan agreement onto which his signature had been fraudulently transferred from a loan agreement he agreed to and signed.
Furthermore, the evidence is insufficient to establish to the satisfaction of the Tribunal that an illegal money lender took possession of a house deed and is holding it while the applicant is paying down the fraudulent loan agreement from his earnings in Australia.
In reaching its conclusions and findings in relation to the applicant’s evidence and his claims, the Tribunal has given regard to relevant parts of the DFAT country information report about the prevalence of unlicensed money lenders in Malaysia, and the threats and violence they use to intimidate borrowers into repaying their loans.
The Tribunal has also given regard to the DFAT country information report in relation to ‘sell and purchase agreements’ in Malaysia whereby a borrower’s house is used as security for a loan. If a borrower defaults on the loan agreement, the loan shark will exercise their rights under the agreement and transfer ownership of the house to their control. The Tribunal is not satisfied the applicant entered into a loan agreement of any description, and in particular, a ‘sell and purchase agreement.’
Having considered the DFAT Report in relation to Malaysia, the Tribunal is satisfied of the existence of a particular social group in Malaysia comprising vulnerable persons who borrow money from loan sharks. The Tribunal accepts loan sharks use lawyers to structure loan agreements whereby any house owned by a borrower is used as security for the loan. Upon default, the loan shark will exercise the agreement and transfer ownership of the house to their control. The Tribunal also accepts that loan sharks use gangsters, threats of harm and violence to enforce compliance with their loan agreements. The evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant is a member of this particular social group.
The evidence and information before the Tribunal, considered as a whole, is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance that the applicant would be subjected to serious harm because he is a member of a particular social group comprising individuals who are indebted to unlicensed money lenders in Malaysia, or on any other ground specified in s 5(J)(1) of the Act, if he is returned to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal now considers the alternative criterion in s 36(2)(aa) of the Act.
In applying the decision in MIAC v SZQRB (2013) 201 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in s 36(2)(aa) of the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk the applicant will suffer significant harm. Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa).
FINDINGS
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied the applicant is a refugee for the purposes of the Act and, therefore, the applicant is not a person in respect of whom Australia has protection obligations under the Refugee Convention. Accordingly, the applicant does not satisfy the criterion in 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).
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(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.
Peter Haag
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.
…
Annexure A
Relevant extracts from DFAT Report on Malaysia dated 29 June 2021:
Gang Activity
1.1Malaysian media citing official police statistics in early 2018 reported that over 100 illegal gangs, with an estimated 9,000 members, operated in Malaysia. Of these gangs, 65 were reported to be Chinese Malaysian, 20 were Malay and 18 were Indian Malaysian-run gangs. DFAT is not able to verify these statistics. Sources report many street-level gang members are Indian Malaysians, reflecting their relative economic vulnerability. High-level crime, including drug trafficking, is more typically associated with Chinese Malaysian gangs. Some 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.
Victims of Loan Sharks
1.2Loan sharks or ‘pay-day-financiers’(unlicensed lenders, referred to as ‘Ah Long’ by the Chinese Malaysian community, ‘Chettiar’ by the Indian Malaysian community, and ‘Ceti’ in Malay), carry out money lending activities without a licence, charging high interest rates to do so. Loan sharks operate very publicly in Malaysia and, while the practice is illegal, advertisements listing phone numbers and offers of cash loans appear on public property, including lamp posts and utility boxes. Media report loans carry an annual interest rate of 24 to 60 per cent; others report rates of 30 to 40 per cent per month; or up to 15 per cent per day. In-country sources advise that loan sharks in Malaysia do not seek ‘protection money’.
1.3Sources report loan sharks enter into ‘sell and purchase agreements’ in Sabah, whereby the borrower’s house is used as collateral for the loan. DFAT is aware of reports of houses valued up to MYR 1 million (AUD 320,000) being used as collateral for a loan of MYR100,000 (AUD32,000). If the borrower defaults on their loan, the loan shark exercises the sell and purchase agreement to transfer the house into their name. Sources report lawyers are facilitating the sell and purchase agreements, described as a house sale agreement disguised as a loan agreement, in return for a cut of the house sale profits. Sources claim borrowers agreeing to sign their house over as collateral are under significant duress, or lack sufficient education to understand the agreement they have signed.
1.4DFAT is aware of a case of an individual in peninsular Malaysia who engaged a loan shark to obtain a loan to repay their mortgage, signing the house over as collateral under a ‘sell and purchase agreement,’ after becoming involved in gambling following the death of their spouse. When unable to repay the loan shark, the individual’s family supported them to engage a formal credit agency to obtain a loan to repay the loan shark. DFAT understands loans ranging from MYR200,000 to MYR300,000 (AUD63,000 to AUD95,000) accompanied by payment plans have been arranged by formal credit agencies to repay loan shark debts. However, not all debtors may be aware of the availability of such services.
1.5Sources 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. In February 2021, police arrested three people, believed to be involved in illegal money lending, after they threatened to torch and throw paint on the home of a woman who had allegedly refused to settle a debt of MYR11,000 (AUD 3,500). Sources claim that loan sharks engage gangsters to collect debts and harass and threaten borrowers and their family members, and that borrowers and their family members have been shot 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 some 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.
1.6DFAT understands authorities tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice. According to local media, the Commercial Crime Investigation Department reported 3,903 cases and arrested 2,698 people in relation to loan scams between January and November 2018, with total case-related losses estimated at MYR36 million (AUD11.4 million). Local media also report loan sharks have become more publicly visible and more ‘corporate’, in recent years, and have increased promotion of their services on social media platforms such as Facebook and WeChat. In October 2019, media reported that the RMP planned to embark on a ‘major war’ against loan sharks, following reports that Ah Long syndicates were becoming more aggressive. DFAT is not aware of any significant enforcement action in this area.
1.7The MCA’s Public Services and Complaints Department (PSCD) plays an intermediary role between loan sharks and Chinese Malaysian victims of loan sharks who are unable to repay their loans, and reportedly receives an average of 500 to 600 complaints regarding loan sharks each year. According to local media, the MCA reported that 16 cases of people owing loan sharks over MYR2.11 million (AUD670,000) had arisen in the first 19 days of January 2019 alone. Local media also reported that, in 2020, the PSCD received 140 complaints from victims who said illegal money lenders went after their families to try and extort them for payment. In 2015, the PSCD reported over 70 per cent of borrowers were Chinese Malaysian. Sources report the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the government rate.
1.8The Malaysian Muslim Consumers Association (PPIM), which provides services predominantly for the Malay community has an established call centre that helps to educate (chiefly Malay) people on the dangers of borrowing from loan sharks and suggests alternatives, as well as helping victims to settle their debts. The PPIM maintains a Malay language website (ahlong.ppim.org.my) where people can report loan shark cases, and which also lists details of prior cases. Sources provide vastly differing views on the reasons individuals engage illegal moneylenders. Some claim that up to 80 per cent of borrowers are supporting gambling activities and other debts. Others claim 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.
1.9The 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 MYR250,000 and MYR1 million (AUD80,000 – AUD320,000), or a jail term of up to five years, or both. Police have made several recent high-profile arrests and investigations of syndicates. In June 2020, police in Selangor arrested 18 people believed to be involved in loan shark activities. The arrests were part of a larger operation by police, tagged ‘Ops Vulture,’ which involved raids in five locations, culminating in 29 arrests between January and June 2020. In September 2019, the RMP arrested 21 people in Johor allegedly involved in syndicates illegally loaning money. In January 2019, the RMP arrested 13 suspects allegedly involved in a syndicate providing fraudulent loan applications resulting in total bank losses of MYR10.35 million (AUD3.28 million).
1.10The general dampening of the economy during the COVID-19 pandemic may have impacted upon loan sharks. PSCD chief Datuk Seri Michael Chong reportedly said that ‘even illegal money lenders have stopped advertising their services since the start of the MCO because of the uncertainty in getting their money back.’
1.11Very limited research is available on loan sharks and the individuals that engage these services, possibly due to their links to gangs and corruption. DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, their likelihood of seeking police protection, or the level of protection offered by police. DFAT assesses those who are unable to service debts to loan sharks, and their family members, can face societal discrimination due to familial shame, and may also face a real or perceived risk of harassment and violence from loan sharks and/or gangsters. However, DFAT notes formal credit agencies are able to consolidate loan shark debts and provide payment plans, and therefore engaging such agencies is an option to mitigate against potential risks posed to those in debt.

[2022] AATA 711

14 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction