1720272 (Refugee)

1720272 (Refugee) [2017] AATA 2645 (27 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1720272
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Frances Simmons
DATE:27 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 October 2017 at 6:20pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Victims of loan sharks – Fears harm from loan sharks – Credibility concerns

LEGISLATION
Migration Act 1958, ss 5(1), 5J-5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 [in] August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a citizen of Malaysia. He arrived in Australia on a [temporary visa] [in] February 2017. He applied for the visa [in] April 2017 on the basis that he feared harm from loan sharks in Malaysia. The delegate found that the applicant was not a refugee or owed complementary protection and refused to grant him the visa.
The applicant was represented by a registered migration agent in relation to his application for review. He appeared before the Tribunal on 24 October 2017 to give evidence.
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 themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Protection visa application
The information the applicant provided in his protection visa application can be summarised as follows. The applicant is of the Malay ethnicity and the Muslim faith. He speaks, reads, and writes Malay and English. He lived at the same address in Kuala Terengganu in the state of Terengganu from his birth until he travelled to Australia. Between March 2009 and December 2016 he worked at [Company 1] in [a certain industry] as [Occupation 1]. Since February 2017 he has been unemployed.
The applicant claims that he borrowed a sum of money from a loan shark to start a [business] in early 2015. He could not profit from the business and therefore he was unable to continue making payments to the loan shark. If he were to return to Malaysia the loan shark would hurt him and his family as well as threaten to kill him. The loan sharks came to his house and threatened his family, telling his family that they would kill him if he could not make the settlement. He did not seek help in Malaysia because the problem involved an illegal money lender. The loan sharks will be able to find him wherever he went in Malaysia.
Application for review
On the morning of hearing on 24 October 2017 the Tribunal received a typed statement from the applicant (‘the Tribunal statement’) expanding upon his claims to fear harm from loan sharks. He states that he did not provide further information about his claims to the Department because he expected to be invited to an interview. As he was not interviewed by the Department, he did not get a chance to expand upon his claims.
The applicant also submitted two news reports: the first concerns a consumer association that provided assistance to the victims of loan sharks; the second concerns a decision of the Tribunal (differently constituted) that an asylum seeker from Malaysia who feared harm from loan sharks was owed complementary protection. The applicant also submitted various documents relating to his employment history and qualifications and a copy of his [Relative A’s] death certificate.
The applicant told the Tribunal that he applied for a protection visa after his [temporary] visa expired because he was afraid of loan sharks. A friend helped him lodge out his application. He indicated that he read the application but added that his English was not sufficient to do so. He believes the information he provided was correct and he did not want to make any corrections.
The applicant confirmed he is of Malay ethnicity and Sunni Muslim faith. Before he travelled to Australia he lived in Kuala Terengganu with his family. His family comprises of his mother and his father. His [Relative A] passed away in December 2016. He lived with his parents for most of his life but would travel away from home for work. Three or four years ago he went to [another country] for a holiday.
The applicant told the Tribunal he was living at his parents’ home in the month before he left Malaysia. He confirmed that the address he provided in his application was correct and that this address (‘the family home’) was where he lived in the month before he left Malaysia. His parents are still living at the family home. Asked whether he had been away from this place for any period of time before he left Malaysia, he said he looked after his [Relative A] at [their] family home for more than a year.
The applicant told the Tribunal he applied for a [temporary] visa to travel to Australia in December 2016 before his [Relative A] passed away [in] December 2016. He said he didn’t work in the year he was looking after his [Relative A] (who was unwell). He subsequently clarified he worked part-time when he was looking after his [Relative A]. His parents are no longer working. He has [specified relatives] in Malaysia but he is the one who looked after his [Relative A].
Since he arrived in Australia he has worked part-time as a [different occupation]. The work is not continuous. He earns between [amount range] per day. He can save a little bit but not much after expenses. He sends home [amount range] to his parents around every fortnight for their medication: they [have medical issues].
The Tribunal noted that in his protection visa application he said that between March 2009 and December 2016 he worked at [Company 1] in [certain industry]. He said this was correct. He then said after he worked offshore he continued his studies, undertaking a short course in [a subject] funded by [an amount]RM loan from the government. He indicated he undertook this course in 2015.
The applicant told the Tribunal that when his [Relative A] was ill he thought he would like to come to Australia but his mother wanted him to stay in Malaysia so he decided to stay in Malaysia and look after his family. Initially he wanted to travel to Australia for a holiday but now he has a loan with a [loan] shark. He told the tribunal that he borrowed [amount] RM [in] July 2016 from a [man]. He found his number on sign board. He wanted to start a business so he could be close to his family but the business did not succeed.
The Tribunal asked the applicant about what arrangements he made to pay back the loan. He said he said that he would pay it. He paid [a portion] and then the loan shark pressured him to pay it off a lot faster than the agreement. The tribunal asked how much money he still owed the loan shark. He said [a larger amount] RM. Asked what the interest rate on the loan was, he said he was not sure. He needed the money.
The Tribunal asked what about the arrangements he made to repay the money in July 2016 (how often did he need to repay it; how much were the repayments). The applicant said the payment was inconsistent. He paid off the interest first but not the capital. This person threatened him; said that he would do something to the family.
The Tribunal observed he borrowed this money in July 2016 and he travelled to Australia in February 2017. Asked how many repayments he made to the loan shark in Malaysia, he told the Tribunal that he made two repayments of [amount]. Asked whether he made any other repayments in Malaysia, he said yes, but not a significant amount. Asked what he meant by this, he said maybe [smaller amounts], but this was like coffee money. He was asked how often he made repayments of [the smaller amounts] and he said not a lot, maybe two to three times. The loan shark said only when he had enough money to pay – say [a larger amount]RM – come and pay it off.
The applicant was asked about what he understood about how the loan was to be paid off when he borrowed the money in July 2016. The applicant said that initially he was confident that he could start a [business] but he had to use this money for his family’s medication. The money that he earned and saved in the six years working offshore he used for his study. The Tribunal asked about the arrangement that he had with the loan shark about how the loan would be repaid (e.g. would he make repayments on a monthly basis). The applicant said he made an agreement with the loan shark and the loan shark has the agreement. He was told he would have to pay between [amount range] every month. Then his [Relative A] passed away and it all fell apart.
The Tribunal asked whether he was initially paying between [this amount range]. He said yes. He told the Tribunal that this was initial agreement and then the loan shark asked for more money. It was put to him that he had previously said he made two repayments of [an amount] and made repayments of [smaller amounts] a couple of times. The Tribunal expressed surprise that when he initially borrowed the money he did not know the rate of interest that would be charged. He said the loan shark would control the interest rate: it could go up or down depending on when he made the payment.
The Tribunal asked the applicant to clarify what repayments he made to the loan shark in Malaysia. The applicant said one month after he borrowed the money he paid [amount]RM and then, a month later, he gave another [same amount]RM. Then his [Relative A] had to be hospitalised for about a month and he could not find work to earn money, he did not have the capacity to do so and he requested a reduction in payment but this request was refused. Then the loan shark started to threaten his family. He spoke to his mother and father: asked for whatever they had whatever money or jewellery, and, after his [Relative A] was well, he would start working again.
The Tribunal asked the applicant what further repayments he made after he made the two repayments of [amount]RM and before he left Malaysia. He said the total repayment he made was [total amount] but the loan shark said this was only interest. He said maybe he would increase the interest rate but he didn’t know. The applicant said the repayments he made before he left Malaysia totalled [total amount].
The applicant was asked how much he paid to the loan shark after the loan shark started threatening him. He said [amount]. The Tribunal asked whether this was in addition to the two repayments of [initial amount]. The applicant said he paid [total amount] and after the loan shark came threatened him and came to his house at night he and his parents gathered [further amount] cash and also gold. They paid [amount] plus gold to the loan shark the same night. Asked when this was, he said November 2016.
The Tribunal observed he didn’t travel to Australia until February 2017. Asked whether he had any problems with the loan shark before he travelled to Australia and after the incident in November 2016, he said yes, that after the loan shark came to his house the loan shark returned but he was not home and his mother said he was at work. The loan shark started to threaten his mother and father. This loan shark said to his mother that it was just between the applicant and the loan shark it had nothing to do with his parents.
The Tribunal asked whether he had any problems after the incident in November 2016. He said sometimes he would bump into the loan shark in the middle of the road at night and he would threaten him. The loan shark told him wherever he went in Malaysia the loan shark would look for him. The applicant confirmed his family was still living in the same address.
The Tribunal noted that one of the articles he had submitted referred to a consumer association that helped people negotiate a settlement with loan sharks. The Tribunal observed that the practices of loan sharks were illegal in Malaysia. It asked the applicant whether he ever sought help from a consumer association or the police. The applicant said the loan shark told him if he spoke to the police he was gone. He asked his friends’ opinion about this: his friend said with this loan he was only paying interest.
The Tribunal observed that his evidence did not indicate that he was ever actually physically harmed by loan sharks. The applicant said he was beaten up by loan sharks in November 2016. Asked whether this was before or after his [Relative A] died, he said it was after [that]. When the Tribunal noted he said that his [Relative A] died in December 2016, the applicant clarified that he was beaten up before his [Relative A] died.
The Tribunal discussed with the applicant its concerns about the credibility of his claims. Where relevant his evidence in response to the Tribunal’s concerns is discussed below in the findings and reasons. The Tribunal also put information to the applicant under s 424AA of the Act. The hearing was adjourned to enable to the applicant to speak privately with his representative. When the hearing resumed the applicant elected to respond to information put to him under s 424AA and his response is noted below.
The applicant told the Tribunal that the only reason that he was afraid of returning to Malaysia was the loan sharks; there were no other reasons he was afraid of returning to Malaysia. He claimed the loan shark threatened to cut off his finger in a telephone call that occurred in November 2016.
The Tribunal observed that in December 2016 the applicant had a [temporary] visa that would enable him to enter Australia and valid passport. He was asked why, if he was afraid of loan sharks, he didn’t leave. He said at the time he was looking after his family, the loan sharks were always looking for him and the threats were aimed at him. Asked who was looking after his family now, he gave evidence his parents live at home and his siblings and friends visit the house.
Towards the end of the hearing, the applicant’s representative made oral submissions, which the Tribunal has considered.
Findings and reasons
The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant's receiving country for the purposes of the refugee and complementary protection assessment.
The Tribunal has carefully considered the applicant’s claims for protection. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[1] If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3] The Tribunal has also considered the Tribunal’s guidelines on the assessment of credibility in protection visa cases.
[1] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).
[2] MIMA v Rajalingam (1999) 93 FCR 220
[3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
The Tribunal accepts that the applicant’s [Relative A] died in December 2016 after a lengthy illness and that the applicant cared for his [Relative A] in the final [year]. The Tribunal accepts that the applicant is working in the [specified] industry in Australia and that he sends some money back to Malaysia to help his parents pay for medical treatment. The Tribunal accepts that his parents remained living at the family home after the applicant left Malaysia. The Tribunal also finds that, based on the evidence the applicant provided in his application, and his initial evidence to the Tribunal, that the family home was his last residential address in Malaysia.

The country information before the Tribunal indicates that the practice of illegal money lending is widespread in Malaysia but victims are often reluctant to report problems to police because of threats from loan sharks or embarrassment. Illegal money lending is an offence under Malaysian law and can attract a fine or five years in prison.[4] Loan sharks often target gamblers and drug addicts, and police have shown a willingness to take action against them.[5] However, a lack of cooperation from victims and other members of the public as a result of threats or embarrassment is a major barrier to prosecuting loan shark syndicates,[6] while credible sources suggest that Malaysian authorities may also view individuals who access loan shark services as having participated in an illegal practice.[7] In May 2016, police disrupted the largest illegal money-lending syndicate in Malaysia.[8]
[4] KL Consumer Safety Association - No need to fear the loan sharks, Bernama (Malaysian National News Agency), 17 February 2015, CXBD6A0DE1580
[5] Sabah Police probe nine Ah Long cases in 2013,The Malaysian Times, 3 January 2014, CX1B9ECAB11427 and Malacca police investigates 29 Ah long cases since January 2013, Malaysia Edition, 28 December 2013, CXC28129414704
[6] Police cooperate with Council to wipe out loan sharks, Daily Express, 28 December 2013, CX320164
[7] Country Information Report – Malaysia, Department of Foreign Affairs and Trade (Australia), 19 July 2016, CIS38A80121311, section 3.78, p.18
[8] Police bust largest money-lending syndicate (Updated), The Sun Daily, 23 May 2016, CX6A26A6E7820
The Tribunal has carefully considered the applicant’s claims that he has outstanding debts to loan sharks. However, while the Tribunal acknowledges that the practice of illegal money lending is widespread in Malaysia, for all the reasons that follow the Tribunal has formed the view that the applicant’s claims are not credible.
The Tribunal was concerned that the applicant’s evidence changed over the course of the protection visa application process. Of particular concern: there were inconsistencies between his written and oral evidence to the Tribunal. For example, he told the Tribunal he had to pay the Tribunal [an amount]RM to the loan shark after he was threatened in November 2016, that is before his [Relative A] died in December 2016. However, in his statement to the Tribunal he stated that his [Relative A] died in December 2016 and the loan shark came to his house on the night of [a date in] January 2017 and demanded all of the money. According to his statement, his [relative] had some gold jewellery and his father had [an amount] RM and he paid [instalment amount]RM and promised to pay the remaining amount within the week. As the Tribunal put to the applicant his evidence about this event in his Tribunal statement was inconsistent with his oral evidence to the Tribunal. Moreover, it was of concern to the Tribunal that he did not mention being beaten by the loan sharks in his written claims and that he appeared confused about whether this incident occurred before or after his [Relative A] died. The applicant told the Tribunal that maybe there was a little bit of confusion however, he had answered the Tribunal’s questions spontaneously and told the Tribunal everything he remembered.
However, as the Tribunal put to the applicant, it was concerned that his evidence to the Tribunal about when and how he made payments to the loan sharks was vague and shifted over the course of the hearing. For example, after initially telling the Tribunal he made two repayments of [initial amounts]RM and then a couple of payments of [smaller amounts]RM, the applicant subsequently gave evidence he paid [initial amount]RM one month, [the same amount]RM the next month and then a total of [that combined amount]RM on the night he claims the loan shark came to his family home. The Tribunal discussed its concerns with the applicant and he said maybe he didn’t properly say when the repayment was made because he couldn’t really remember but he did remember the amount. The Tribunal has considered the fact that the applicant has claimed that when he borrowed the money his [Relative A] was very sick and [died] in December 2016. The Tribunal acknowledges that this would have been a difficult and distressing time for the applicant and it has taken this into account in assessing his evidence. However, the Tribunal does not accept that the applicant has adequately accounted for the inconsistencies in his evidence to the Tribunal.
These concerns were reinforced by the fact that the applicant provided inconsistent evidence to the Department and Tribunal about when he first borrowed money from the loan sharks. As the Tribunal put to the applicant in his protection visa application he stated he borrowed [amount]RM from loan sharks to start a [business] in early 2015 but in oral and written evidence to the Tribunal he stated he borrowed money from the loan shark in July 2016. The applicant told the Tribunal his evidence to the Tribunal was correct and when he filled in the protection visa application he couldn’t do it well so he had to ask for a friend’s assistance. His friend told him if it was incorrect he would be called for an interview anyway and he could tell his story. The Tribunal did not find this explanation persuasive. Further, while the inconsistency between the applicant’s evidence to the Department and his evidence to the Tribunal is not determinative, it tends to reinforce the Tribunal’s concerns about the credibility of the applicant’s claims.
The Tribunal also considers that the timing of the applicant’s departure from Malaysia indicates that he did not leave Malaysia because he was afraid of being beaten or killed by loan sharks. As the Tribunal put to the applicant under s 424AA, departmental records show that he was granted a [temporary] visa [in early] December 2016. As the Tribunal put to the applicant, the fact that he did not leave Malaysia until [February] 2017 undermines his claims that he left Malaysia because he feared being beaten or killed or harmed by loan sharks. This is because if he was afraid being harmed by loan sharks the Tribunal considers it reasonable to expect that he would have left Malaysia as soon as he was able to do so. The Tribunal does not accept that the applicant has not credibly explained why, if he was afraid of being harmed by loan sharks, he remained in Malaysia until [February] 2017, over two months after he was granted a [temporary] visa. The Tribunal has considered his evidence that he did not leave sooner because he had responsibilities to his family (he told the Tribunal it was just his parents after his [Relative A] passed away, his [other relatives] were [living elsewhere]) and that he was fine with being beaten up, as long as the loan sharks didn’t threaten to kill him. However, the Tribunal notes that the applicant has claimed that he left Malaysia because of the threats from loan sharks which, according to his evidence, led to a home invasion in November 2016. Furthermore, his own evidence was that his parents are currently living in the family home where they are visited by friends and his siblings.
The Tribunal also considers that the fact the applicant was able to remain living at the family home in Kuala Terengganu until [February] 2017 after he claims that the loan shark came to his house in November 2016 (as claimed in oral evidence to the Tribunal) or January 2017 (as claimed in his Tribunal statement) undermines his claims that he left Malaysia because he feared being harmed by loan sharks. In an effort to respond to the Tribunal’s concerns about how he was able to remain living in the family home until February 2017 the applicant reiterated that he did have problems with the loan sharks and said that he really didn’t stay much at home. However, as was put to him, this differed from his earlier evidence to the Tribunal which was that he was living with his parents in the month before he left Malaysia. The applicant told the Tribunal that this was right, he stayed with his parents at his family home, especially one month before his [Relative A] passed away and sometimes he would go away for work. The Tribunal does not accept that the applicant avoided the loan sharks because he was not living at his home much before he left Malaysia and is concerned that he appeared willing to shift his evidence about where he was living in the month before he left Malaysia in an attempt to respond to the Tribunal’s concerns.
Furthermore, as the Tribunal put to the applicant, although he claimed in his Tribunal statement that the loan sharks made threatening telephone calls to him every day and told him that if he escaped without paying they would confiscate his home, he had told the Tribunal that his parents were still living at his family home. The applicant said yes for now however, he had told his parents to move away if they received threats. However, the Tribunal considers the applicant’s evidence that the loan sharks threatened to confiscate his home is undermined by his evidence that, at the time of the hearing, eight months after he left Malaysia, his parents are still living in family home. Furthermore, as the Tribunal put to the applicant, it was difficult to understand why he would leave his elderly parents living in the family home if he believed that they would be at risk from loan sharks in this location. In response to the Tribunal’s concerns the applicant said his parents were worried but the loan shark realised his parents didn’t work and the money would come from him. Therefore the loan sharks would use his parent to make sure he definitely paid the loan. The Tribunal found the applicant’s evidence about his parents’ interactions with the loan shark vague and unconvincing. The Tribunal considers that the fact that the applicant’s family remain living in the family home indicates that they are not at risk of harm from loan sharks. This, in turn, casts further doubt on the credibility of the applicant’s claims.
Given the Tribunal’s cumulative concerns about the credibility of the applicant’s testimony, the Tribunal is not satisfied that he is a witness of truth. The Tribunal does not accept that the applicant left Malaysia and travelled to Australia because he was of adverse interest to loan sharks. The Tribunal rejects the applicant’s claims that he has been targeted, assaulted and threatened by a loan shark/loan sharks in their entirety. The Tribunal does not accept that the applicant ever borrowed money from a loan shark or that he was ever assaulted or threatened by loan sharks, or that he or his family were threatened because he was unable repay this debt or that before he left Malaysia he was hiding or avoiding his family home to avoid the loan sharks. The Tribunal does not accept that the applicant received threatening phone calls from loan sharks or that loan sharks ever visited his family home demanding repayments or that he was threatened at night. The Tribunal does not accept that he has any debts to loan sharks or that, at the time he travelled to Australia, he had any debts to loan sharks. The Tribunal does not accept that the applicant is now, or was at the time he left Malaysia, of any adverse interest to loan sharks in Malaysia.
Looking forward, the Tribunal finds that there is no real chance that the applicant will face harm of any type – including serious harm or significant harm – from loan sharks if he returns to Malaysia. Because the Tribunal does not accept that the applicant has any debts to loan sharks, the Tribunal does not accept that he will be beaten, threatened, or otherwise harmed because he has not settled these debts. Having regard to its findings of fact and having considered all the evidence before it, the Tribunal finds that there is no real chance that the applicant will face serious harm from loan sharks or any other person or group if he returned to Malaysia now or in the reasonably foreseeable future. The Tribunal finds that there is no real chance that he will suffer serious harm for any reason set out in s.5J(1)(a) of the Act or for any other reason if he returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, he does not satisfy the criterion in s.36(2)(a) of the Act. The applicant is not a refugee.
The Tribunal has considered whether the applicant is entitled to complementary protection. For the reasons given above, the Tribunal does not accept that the applicant is of any adverse interest to loan sharks in Malaysia for the reasons claimed. Nor, on the evidence before it, is the Tribunal satisfied that there is a real risk that he will face significant harm for any other reason. In view of its findings of fact and having considered all the evidence before it, the Tribunal is not satisfied that there is a real risk that he will be arbitrarily deprived of his life, or that the death penalty will be carried out on him, or that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment if he returns to Malaysia now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined in s.36(2A) and s.5(1) of the Act. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
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.
Frances Simmons
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2017] AATA 2645

27 October 2017

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