1719494 (Refugee)

1719494 (Refugee) [2020] AATA 5369 (17 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1719494

COUNTRY OF REFERENCE: Malaysia
MEMBER:Antoinette Younes
DATE:17 December 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 December 2020 at 2:15pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victims of loan shark – threats from loan sharks – physical assault – attacks on business – fear of killing – police corruption – state protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 (2016) 250 FCR 109 (ARG15)
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 9 February 2017. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined in s.5H(1) of the Act and on the basis that she was not owed protection obligation under s.36(2)(aa).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
HEARINGS
This matter was previously constituted to another Member who is not available to finalise the review. The applicant appeared before that Member on 7 December 2017 and gave evidence.
The applicant appeared before this Tribunal on 2 December 2020.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record which indicates, amongst other things, that the applicant arrived in Australia [in] November 2015 as the holder of a UD-601 Electronic Travel Authority visa. She applied for a protection visa on 13 February 2017. The applicant’s then fiancé who is now her husband also applied for a protection visa in a separate application. They married in Australia and they now have a baby daughter. Prior to coming to Australia, they lived together as a couple. The husband’s application for a protection visa was refused and he lodged an application for review. Both applications are now being finalised by the same Member. The previous Member heard both matters at the same time but this Tribunal did not consider a second joint hearing to be appropriate or necessary.
The Tribunal accepts that the applicant is a national of Malaysia and that Malaysia is therefore the receiving country when assessing her protection claims.
For the following reasons, the Tribunal is not satisfied that she has a well-founded fear of persecution. Overall, the Tribunal found that the applicant’s claims to be lacking in credibility.
In the application for a protection visa and in response to questions asking about the reasons for seeking protection, the applicant indicated in writing that:
·She left Malaysia because her fiancé obtained a loan from a loan shark. At first ‘they did not bother me, but as my fiancé are not able to pay the loan, they start to bother me. At the moment, my fiancé and me run to seek protection in Australia”.
·If she were to return to Malaysia, she fears that the loan shark would find them and do “bad things to us”. The loan shark yelled in front of their house to make them repay. They also poured paint on the house and wrote “bad things” on the wall. The neighbours were frightened to help so they only watched.
·She did not seek help in Malaysia because the loan sharks threatened them not to tell the police or anyone else, otherwise they would be killed. She moved to another state in Malaysia and the loan sharks managed to find them but “lucky” they were not at home but the neighbour told them.
·If she were to return to Malaysia, the loan sharks would find them and “make us suffer or much more worse from before as we are not able to pay the loan”.
In support of the application for review, the applicant provided an undated Statement in which she elaborated on her claims. The Statement is essentially a copy, with minor amendments of a Statement provided by her husband, [named].
In her Statement, the applicant indicated that:
·She and her husband operated a [shop] and a [business] in Malaysia. In mid-2015, they changed the business structure from a sole trader to a company of limited liability. The change caused cash flow issues and as a result, they obtained a loan of Malaysian Ringgit (RM)80,000 which they were unable to pay by July 2015.
·They got to know through a friend a person called [Mr A] who expressed interest in shares in their company. [Mr A] said he needed the relevant business documents for the purpose of valuation.
·A week later, seven loan sharks came to their office claiming that the company had borrowed money, totalling RM350,000 from them using the business registration documents. They discovered that they had been framed and had “fallen into a trap set by persons (so called friend)”.
·They reported the matter to the police who refused to “take” their case, telling them that they would not have trouble if they paid the loan.
·They were threatened and intimidated. They were held hostage and taken to the police to sign a document relating to the transfer of their cars. The cars were taken.
·They were stalked by the “Indian”, their company buildings were smeared with paint, and people came to their business making trouble. They received threatening calls and messages daily, including threats of her abduction and her husband’s burial alive.
·Word got around that they were being chased by loan sharks. Their friends detached from them and their suppliers who had been cooperative for many years ceased supplying, demanding payment of debt. Customers became worried and cancelled their orders.
·On 30 October 2015, the loan sharks gave her husband a “heavy beating” and gave him two weeks to repay the loan. “I reported the beating to the police” who did not take the case essentially saying that was a dispute due to a personal debt.
·As of 1 November 2015, they received threatening calls daily from the loan sharks. On [a date in] November 2017 (later corrected to [date in] November 2015), they gave up the company and came to Australia. They have discovered that their family members, including in-laws have been troubled by the loan sharks. The loan sharks have told the applicants’ parents not to return to Malaysia even if the applicants were to repay the money.
·Her father-in-law passed away in August 2017 but out of fear, her husband did not go to Malaysia to say goodbye.
In order to fully-appreciate the claims made the applicant and for background information only, the Tribunal considers it appropriate to refer to the Department of Foreign Affairs and Trade – DFAT Country Information Report Malaysia 12 December 2019. Although the Report is the current Report relating to Malaysia, it is useful in providing a summary of the situation relating to loan sharks which is relevant to the timeframe of the events claimed by the applicant. The Tribunal has not used the Report in an adverse manner to the applicant.
The Report makes the following observations:
Victims of Loan Sharks
3.108 Loan sharks or ‘pay-day-financers’(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 for RM10,000 – RM20,000 (AUD3,100 – AUD6,200) appear on public property, including lamp posts and utility boxes. Loans typically carry an interest rate of about 30 to 40 per cent per month, and can be as high as 15 per cent per day. In-country sources advise that loan sharks in Malaysia do not seek protection money.
3.109 Sources report loan sharks are entering 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 RM 1 million (AUD 345,311) being used as collateral for a loan of RM100,000 (AUD34,500). 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.
3.110 DFAT 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 RM200,000 to RM300,000 (AUD69,385 to AUD104,077) 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.
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.
3.112 DFAT understands that 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 Crimes 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 RM36 million (approximately AUD12.4 million). Local media also reports loan sharks have become more publicly visible and more ‘corporate,’ and have increased promotion of their services on social media platforms such as Facebook and WeChat in 2019. In October 2019, media reported that the RMP planned to embark on a ‘major war’ against loan sharks, following reports that Ah Long syndicates are becoming more aggressive. DFAT Country Information Report MALAYSIA (December 2019) 40.
3.113 The 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 RM2.11 million (AUD745,000) had arisen in the first 19 days of January 2019 alone. Local media also reported that in 2018, the PSCD of the MCA received reports of 364 loan shark cases with total loan claims amounting to RM25 million (AUD8.81 million), and that 80 per cent of the loan shark borrowers were members of the Chinese Malaysian community who were involved in illegal online gambling. In 2015, the PSCD of the MCA also reported over 70 per cent of borrowers in 214 cases were Chinese Malaysian. Sources report the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the one per cent government rate.
3.114 The PSCD of the MCA held a press conference in July 2019 regarding the case of a 28-year-old woman who had enquired about a RM5,000 (AUD1,760) loan advertisement she had seen on Facebook. The woman had reportedly shared some personal information, including bank details, but had allegedly rejected the offer of a loan due to the high interest rate payable. Nonetheless, funds were banked into her account, and she was later threatened by loan sharks to either pay up or be forced into prostitution. The PSCD of the MCA also cited the case of a 91-year-old woman, who was reportedly threatened by loan sharks in relation to her estranged son’s failure to pay back money he allegedly owed.
3.115 The Malaysian Muslim Consumers Association (PPIM), which provides services predominantly for the Malay community, was also involved in over 10,000 cases involving loan sharks from 2012 to 2016, in which around 70 per cent of borrowers were Malay. The PPIM maintains a Malay language website (ahlong.ppim.org.my) where people can report loan shark cases and which 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.
3.116 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. Police have made several recent high profile arrests and investigations of syndicates. 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 RM10.35 million (AUD3.65 million); district police also arrested 11 members of a nationwide syndicate that had fraudulently taken funds from borrowers totalling RM1.3 million (AUD458,161). In November 2018, RMP arrested 21 people allegedly involved in a loan scam syndicate.
3.117 Very 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.
The applicant’s evidence

The Tribunal explained to the applicant that the Tribunal has considered her evidence given before the previous Member on 7 December 2017 and it appears that there are concerns relating to such matters as inconsistencies and lack of details. The Tribunal explained that it would take relevant evidence into consideration, but the Tribunal needs to form its own views based on its own assessments of the evidence.
The applicant gave evidence that she married in Australia and that she had known her now husband since 2009 in Malaysia. She stated that they lived and worked together. She gave the address of where they lived in [a location] for about two to three years. She had difficulties in giving the exact number of the address and explained that it has been a long time but that was her “impression”, that is she was not sure.
The applicant gave evidence that she came to Australia [in] November 2015 as the holder of a visitor visa, valid for three months. She confirmed that she remained in Australia unlawfully until she applied for a protection visa in February 2017. The Tribunal asked the applicant to explain the delay in applying for the protection visa and she stated that they did not know how they could apply. The Tribunal asked if she was working and she indicated that she worked throughout that period as a [Occupation 1] and a [Occupation 2]. The Tribunal queried her reasons for continuing to work when unlawful and she stated that they needed to survive. She confirmed that she did not seek any legal or migration advice because of money.
As the Tribunal indicated to the applicant, there is a substantial delay in lodging the application for a protection visa which is a matter that the Tribunal can take into account in assessing the genuineness of the claims.
In post-hearing submissions, the representative argued that whether adverse inferences can be drawn on the basis of the substantial delay in making their protection applications, the Tribunal needs to consider carefully the reasons they gave at the Tribunal hearing which are appropriate to their then circumstances, including the immense impacts of the incidents, the applicants’ financial position and their knowledge of Australian protection system and immigration assistance. According to the applicants, they came to Australia to run for life and tried to survive in Australia first - “…there is nothing that allows the tribunal to draw unfavourably to their credibility…We wish to submit that an unfavourable finding on their credibility was not open on the evidence or there is no logical connection between the evidence and the inference or conclusions drawn”[1].
[1] Citing ARG15v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15); Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [135] (Crennan and Bell JJ); see also e.g DAO16 at [30].
The Tribunal has carefully considered the submissions and the applicant’s explanations. The Tribunal understands that delay in lodging an application for a protection is not always indicative of lack of credibility or veracity of claims or subjective fear of harm. In this case, the applicant is claiming that she and her husband suffered serious harm and that they fled Malaysia out of fear of further harm at the hands of the loan sharks. After the expiry of the tourist visa, she remained in Australia unlawfully but working because of the stated reason that they needed to survive. She confirmed that she did not seek any legal or migration advice because of money. The Tribunal appreciates that one needs money and that migration assistance costs money. However, it appears to the Tribunal that the applicant’s priority was to work. On balance, the Tribunal is satisfied that the applicant’s conduct is not consistent with a person fearing harm. The Tribunal is of the view that considering the applicant’s claims and the stated reasons for leaving Malaysia, the delay raises doubts about the applicant’s claims. The Tribunal has decided to give weight to the fact that there has been a delay in lodging the application for a protection visa.
In terms of the completion of the application for a protection visa, the applicant stated that a friend on the farm where they worked called [Mr B] introduced them to another person called [Mr C] who told them they could apply for a protection visa. She stated that her husband approached [Mr C] whom she never met. She stated that she completed parts of the form and [Mr C] filled in the rest, namely the reasons. The applicant confirmed that she signed the application forms after completion by [Mr C]. She stated that she did not read the content as at the time, her English was limited, and she did not understand. She said she and her husband only completed their personal information and [Mr C] filled in the rest. The Tribunal expressed concerns that she would sign the forms in circumstances where she had not met the person who completed them, that she did not understand the contents, and in light of the significance of protection claims. She indicated that according to [Mr C] this was acceptable as long as they have the information. The Tribunal explained to the applicant that from a legal perspective, she is responsible for the information provided in the application and any supporting documents. She confirmed her understanding. The Tribunal finds it odd that given the seriousness of the claims, the applicant just signed the forms without understanding their content.
The Tribunal discussed with the applicant the claims made in the application for a protection visa. She gave evidence that when they borrowed the first loan in July 2015, they could not repay because of the transformation of the company. The Tribunal asked for further details about the loan. Apart from indicating that it was early July, the applicant could not recall the exact date of the loan of RM80,000 or its terms. The Tribunal noted that there is no mention in the application for a protection visa of the loan amount. She stated that they only wrote the reasons but did not mention the amount. The Tribunal noted that lack of details could suggest fabrication. The Tribunal is of the view that RM80,000 (about a third in Australian dollar) is a significant amount and that the applicant’s lack of mention in the application for a protection visa raises some doubts about the claim.
When asked about the name of the loan shark, the applicant said she did not know as all was arranged by her husband. She stated that she found out about the loan from her husband in July after he borrowed the money. The Tribunal asked for more details about the loan such as any security and she stated that her husband borrowed the money because of the business and that she has not asked him about the details. The Tribunal finds it odd that even now the applicant is claiming that she does not know details about the loan, raising some doubts about the claims.
The Tribunal discussed with the applicant the claims made in the application for a protection visa relating to loan sharks. She said something happened later. She stated that loan sharks got documents and obtained loans. The Tribunal referred to the application for a protection visa where specific details about the loan sharks were not mentioned. She said [Mr C] advised them to just mention loan sharks. As the Tribunal indicated, given the seriousness of an application for a protection visa, it is odd that a significant claim was not mentioned in the application. She stated that [Mr C] told them they would have a chance later to provide details. The Tribunal is not persuaded by the applicant’s explanations and is of the view that given the claimed harm, the applicant’s lack of mentioning in the application for a protection visa the claim that loan sharks obtained documents and a loan totalling RM350,000, suggests fabrication.
The Tribunal asked the applicant about the claim that the loan shark yelled in front of their house. She said it was not in front of the house but the office as their residence is a guarded property. The Tribunal noted the inconsistency in her oral evidence and the written claims in the application for a protection visa. In the application and in response to Question 91 of the Part C, the applicant claimed that “THE LOAN SHARK YELLING IN FRONT OF OUR HOUSE TO MAKE US PAY THE LOAN”. In relation to the claim made in the application in response to Question 91 of the Part C that red paint was poured onto “OUR HOUSE AND WRITE BAD THING ON THE WALL”, the applicant stated that it was the office but [Mr C] made a mistake. The Tribunal asked when the paint incident occurred, and she stated it was in early August 2015, but she was unable to give the specific date. The Tribunal is of the view that the lack of details as well as the inconsistencies which are not minor raise doubts about the veracity of the claims as well as the applicant’s credibility.
In relation to the loan sharks, the applicant stated that they were threatened. She stated that after they borrowed the RM80,000, they could not repay due to the high interest, but she did not specify exactly. The Tribunal asked the applicant about the claim that she was threatened. She said she was threatened from the end of July until they came to Australia. The Tribunal asked the applicant for more specific details and she said it has been a long time and she could not recall. The Tribunal appreciates that one’s memory might be impacted over time; it is noteworthy however that the written claims also lacked details in both the visa application as well as the undated Statement provided to the Tribunal. Although in the Statement more details were provided, those details were vague and general; for example, “…we were constantly being threatened and intimidated[2]…We received threatening phone calls and messages everyday. The telephone threatened to claim our lives[3]”. The vagueness of the claims and the lack of details raise doubts about their veracity and the applicant’s credibility.
[2] At paragraph 12 of the Statement.
[3] At paragraph 16 of the Statement.
The applicant gave evidence stated that a friend called [Mr C] introduced them to [Mr A] in mid-July 2015 and [Mr A] took copies of company documents to assess its financial position. Subsequently, seven loan sharks claimed that they had borrowed RM350,000 and began to harass them. She said they were harassed every day. The Tribunal asked for further details about the harassment. She said the seven loan sharks began to come over from early August, within two to three days of each other. She said they came to the office and to their [business]. In relation to the claim of the paint being poured, she said that this happened on two to three occasions, once in August but the specific dates she could not recall. She said the paint was red and blue and it was splashed onto the front door and roof of the shop. She said that she could not recall the details as they were panicking due to the harassment. The Tribunal referred to her evidence during the hearing on 7 December 2017, noting that she did not mention that the roof was also splashed. The Tribunal noted that the claim that paint was also splashed on the [business] was not mentioned previously. She said paint was splashed all over the door. The Tribunal observes that in the course of the hearing in December 2017 when the Member asked “…so then that night they came back and they threw paint on the store?”, the applicant said “Yes, they poured paint onto our shop front and by August they came to break our window[4]”. There was no mention of the paint being poured/splashed on the roof or the [business], suggesting fabrication.
[4] At paras 25-35 at page 47 of transcript obtained by the Tribunal.
In relation to the claim that the husband was beaten, the applicant gave evidence that this happened on 30 October 2015 and that he was beaten on another occasion, but it was not as serious. The Tribunal noted that in the course of the previous hearing she could not recall whether he was beaten on one or two occasions. She said it was two weeks before they fled. The Tribunal observes that in the course of the hearing in December 2017 when the Member asked “…So on one or two occasions. Was it one or was it two occasions?”, the applicant said “I can’t remember exactly. He was actually captured many times, but on some occasions he was beaten and then came back”[5]. In relation to the claim that the husband was captured on many occasions, the applicant gave evidence that she could not recall but he had injuries and he did not like to talk. The Tribunal asked if this beating incident was reported to the police and she said it was not. The Tribunal referred to the undated Statement provided to the Tribunal in which it was noted that they did report it. The Tribunal notes that at paragraph 20 of the undated Statement, the applicant claimed “I reported the beating to the Police headquarters…Police also told us...” She said they did not report it “successfully…is that not report…we did not report?”. The Tribunal appreciates that the undated Statement is in essence the same as the husband’s so the “I” could refer to the husband, however, the statement that the police “told us” suggests that they both went to the police to report. The Tribunal is of the view that the vagueness, lack of details and the inconsistency suggest fabrication and raise doubts about the applicant’s credibility.
[5] At paras 15-20 at page 48 of transcript obtained by the Tribunal.
The Tribunal asked the applicant about any harm she had suffered, she said the loan sharks called her and harassed her for prostitution. She said they were held hostage on [in] November 2015. The Tribunal noted that the date was not specified in the undated Statement provided to the Tribunal. She said they only wrote down what happened and not specific dates. The Tribunal finds it odd that a written claim relating to a significant event of being held hostage lacked specific details about when the event occurred. The Tribunal is of the view that this suggests that the applicant is developing her story during the process of review.
The above inconsistencies, lack of details, vagueness raise concerns for the Tribunal. As mentioned earlier, the applicant’s husband also lodged an application for a protection visa and separate review application, which is dealt with by the same Member. The Tribunal noted the concerns of the previous Member about the husband’s evidence. The applicant did not make any comments. For the reasons explained in the decision relating to the husband, the Tribunal is satisfied that there are concerns about the veracity of the claims made by both applicants.
In oral submissions, the representative referred to the delay and that the Tribunal’s consideration of the evidence cumulatively would be appropriate. The representative said he did not agree that there were inconsistencies or lack of details. The Tribunal gave the representative a week to provide written submissions.
In post-hearing submissions received on 8 December 2020, the representative provided a background summary and submissions relating to concerns expressed by the Tribunal. The representative argued that the applicants’ claims are consistent overall with the details of the incidents claiming to have occurred to them, and most of them were supported by other evidence such as video pictures, business registrations, financial documents and police reports. Their statements did not lack details. The first joint Tribunal hearing lasted for about 7 hours and the second hearing lasted about 2 hours for each. During the hearing the applicants gave detailed accounts of their claims.
It is correct that the applicant has participated in two hearings, one of which was lengthy. She has provided some details about her claims but as discussed above, there are concerns about her evidence raising serious doubts. In the Tribunal’s opinion, the evidence is overall vague, lacking in significant details, and inconsistent. The representative in post-hearing submissions contended that:
·Although there are minor inconsistencies between the applicants’ written statement and oral evidence, it is not reasonable to reach a finding that the applicants have credibility concerns.
·According to the applicants, they have never met the person who initially assisted them in preparing their protection visa applications. The person was introduced to them via an acquittance they met while they initially worked in a farm in Victoria. The applicant’s husband said that the instructions were given to the person over the telephone.
·They signed the form, but their limited English prevented them from examining the details given in the application form. The person’s details were not given in the application form, and the Department communicated with them directly in relation to the applications.
·The two applicants gave different accounts about the colour of the paints poured over their shop and [business]. The applicant said that it was red and blue, but her husband said that it was red and black. According to the video pictures the colour of paints might be more appropriately described as red and blue, though the blue colour was quite dark.
·Despite those matters, it is not open to the Tribunal to raise credibility concerns. There is no evident or intelligible justification for an adverse credibility finding. Those matters might be due to the errors by the former agent, or memory issues, or other issues.
·Section 423A (2) provides that “the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is 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 explanations given are reasonable.
·The Tribunal cannot give much weight to minor points. As Hayne, Kiefel and Bell JJ stated in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [72]
“..Further, in Minister for Aboriginal Affairs v Peko- Wallsend Ltd[152], Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is "manifestly unreasonable". Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.”
The Tribunal recognises the serious consequences of an adverse credibility finding and that minor inconsistencies might not be sufficient to raise concerns. Although one might perceive that some of the inconsistencies noted above as being minor, in totality, the Tribunal is satisfied that they are evidence of fabrication and significant embellishment. The concerns about the evidence relate to significant claims including seriously harm. Moreover significant claims were not made in the application for a protection visa and although it is plausible that a person assisted in the completion of the application for a protection visa, the onus is on the applicant to ensure the completeness and accuracy of the information provided in the application. The applicant is claiming that she has suffered and would suffer what would amount to serious or significant harm, yet it appears to the Tribunal that her priority was to work and earn money rather than ensure that she has a valid visa to remain in Australia, including investigating a protection visa application, given her claims.

The representative also provided the pictures developed from the video given to the Tribunal, copies of the applicants’ marriage certificate and birth certificate for their baby daughter.
The Tribunal is of the view that this suggests that the applicant is developing her story during the process; at the primary stage, the applicant provided limited details about the claims. She provided an undated Statement with some details. In the course of the hearing in December 2017, the Member questioned the applicant extensively about her claims and she provided some details. Further details have also been provided in the course of the hearing in December 2020. The Tribunal acknowledges that it is expected that during the Tribunal’s hearing, more details about claims are given, however the level of lack of details in the application raises serious doubts about the claims.
The applicant has provided the following documents in support:
·Registration of Malaysian company [Business 1] ([product] business) and Articles of Association. Profit and Loss Statement of the business from 2012 to 2015.
·The applicant’s father-in-law’s death certificate showing date of death [in] August 2017.
·Car Registration which was “forcibly transferred” to the loan shark who requested that the police should be advised that the transfer was voluntary. Police Report dated [in] November 2015[6] referring to the handing over of the applicant’s husband’s car to [Mr C] voluntarily and that the husband’s objective in handing over the report - “THE PURPOSE OF THIS REPORT IS AS REFERENCE TO OTHER PARTIES IF NEEDED IN THE FUTURE. THIS THEN IS MY REPORT.”
·Registration of Malaysian [business] called [Business 2] .
·USB of incident relating to the loan shark damaging business premises, photographs of the incident and shop front, and several reports of such incidents occurring in Malaysia.
·Marriage certificate of the applicant’s and birth certificate of their daughter.
[6] Another copy provided to the Tribunal on 1 December 2020.
The Tribunal discussed with the applicant the documents provided in support and indicated that it would consider the weight to be placed on those documents.
The Tribunal accepts that the applicants had businesses, one being a [business] called [Business 2] and a company called [Business 1]. The Tribunal accepts that they are now married and have a daughter, although these are not controversial issues.
In relation to the video and the photographs showing paint being splashed on both the business and shop fronts as well as a person approaching and smashing, the Tribunal is of the view that this is plausible but it does not mean those events happened in the claimed circumstances; it is possible that this was a random act unrelated to any of the claims. The Tribunal is mindful that red paint is used by loan sharks to enforce repayment, but red is not the only colour depicted in the photographs. Similarly, with the photographs of the husband with injuries, which could be due to other events. In relation to the Police Report dated [in] November 2015, the applicant said that this happened after she was abducted. Although it is plausible that the applicant’s husband handed over a car, it does not mean this was due to the claimed events or the claimed circumstances. The Tribunal notes that the Report indicates “…VOLUNTARULY AND WITHOUT DURESS OR FORCE FROM ANY PARTY HAVE SURRENDERED MY CAR…TO CONTINUE ITS USAGE…”, which does not support the applicant’s claims. The Tribunal has considered this material very carefully, but they do not overcome the Tribunal’s concerns and as such the Tribunal has given that material limited weight.
Given the Tribunal’s concerns as discussed above in relation to the evidence, the Tribunal is not satisfied that the applicant’s claims are credible. For those reasons, the Tribunal does not accept that the applicant has suffered or would suffer any of the claimed harm; the Tribunal does not accept that the applicant or her husband had borrowed any amount from any loan shark, or that any person obtained company documents, or that any loan shark claimed that the applicants owed them any money, or that they owed seven loan sharks RM350,000, or that any loan shark threatened in any way, or intimidated, or yelled, or beat, or abducted, or called or harassed for prostitution, or held hostage, or chased, either or both of them, or that customers cancelled orders, or that family members were threatened, or that subsequent to their departure, loan sharks told family members that the applicants should not return, or that on the death of her father-in-law, her husband did not go to Malaysia out of fear. In essence and for those reasons, the Tribunal is not satisfied that the applicant has or would suffer any of the claimed harm.
CONCLUDING REMARKS
In order to meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s.5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion. The Tribunal has assessed this case on the basis that the applicant is potentially a member of a particular social group, namely those who owe money to loan sharks in Malaysia.
The Tribunal appreciates the consequences of reaching an adverse credibility finding. 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. The applicant is represented in this matter. The representative has contended that the applicant’s claims are essentially credible. The Tribunal has explained its reasons for reaching other conclusions. The overarching concern in this case is that the applicant tended to be vague, inconsistent and unforthcoming about her claims of harm, warranting the Tribunal to ask many questions seeking clarifications. Those matters tend to impact on the assessment of the protection claims.
The Tribunal carefully considered the evidence before the previous Member and formed a view that the applicant’s statements were uncertain and lacking in observational detail as well as context. This was also the case in the second hearing, raising questions about the veracity of the claims.
The Tribunal has considered the applicant’s claims individually and cumulatively, and it has taken into account all the relevant evidence. For the stated reasons, the Tribunal is not satisfied that she 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 she returns to Malaysia.
The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
COMPLEMENTARY PROTECTION
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. In consideration of the evidence as a whole and given the Tribunal’s earlier findings relating to the claims, the Tribunal is not satisfied that there are substantial grounds for believing that any loan shark will target her or her husband, or that she will be subject to any significant harm in any other circumstances.
The Tribunal therefore finds 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 (physical or mental) is intentionally inflicted on her, 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. The Tribunal is also not satisfied that there is a real risk that she will suffer arbitrary deprivation of life or the death penalty. In other words, the Tribunal finds that there are no grounds that suggest she will be subject to significant harm, for any reason, if she returns to Malaysia. 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 she will suffer significant harm, as required by s.36(2)(aa).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Antoinette Younes

Senior 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.
…

[2020] AATA 5369

17 December 2020

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Immigration

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Statutory Interpretation

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Statutory Construction

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