1720357 (Refugee)

[2023] AATA 3489

1720357 (Refugee) [2023] AATA 3489 (15 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720357

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Jessica Henderson

DATE:15 August 2023

PLACE OF DECISION:  Perth

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

Statement made on 15 August 2023 at 2:48pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – no Convention nexus – victim of loan shark – financial problems – physical assault – torture – state protection – willingness of police assistance – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

CASES

ABAR15 v MIBP (No 2) (2016) 242 FCR 11
MIAC v MZYYL (2012) 207 FCR 211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Malaysia who applied for the visa on 22 February 2017. The delegate refused to grant the visa on the basis that the applicant’s claims did not raise a refugee nexus reason and the country information indicated that there would be state protection available for the applicant such as to negate a finding that there was a real risk of significant harm.

3. The Tribunal wrote to the applicant on 4 May 2022 attaching an applicant information form (s424(2) Response).  The applicant returned the completed s424(2) Response to the Tribunal by email on 16 May 2022.  He indicated in it that he did not seek a hearing before the Tribunal but consented to a determination on the papers.

4. By letter dated 26 May 2022 the Tribunal wrote to the applicant to confirm that the Tribunal would proceed to decide the review without conducting a hearing.  The Tribunal invited the applicant to make any further submissions by 9 June 2022 failing which the Tribunal would proceed to make a decision.  No further submissions were received.

   CRITERIA FOR A PROTECTION VISA

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

6. 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.

7. 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).

8. 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.

9. 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

10. 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

11. The first issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason.  If the Tribunal decides that issue in the negative then the next issue is whether there is substantial grounds for believing that as a necessary and foreseeable consequence of removal to Malaysia there is a real risk that the applicant will suffer significant harm.  If the Tribunal decides either issue in the positive then the next issue will be whether there are any applicable exceptions or qualifications.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

13. The applicant’s claims for protection and supporting evidence were accurately summarised by the delegate as follows:

    a.The applicant claims he left Malaysia because of financial problems.

    b.The applicant claims he borrowed money from a loan shark and “I cannot pay the interest as it is too high.”

    c.The applicant claims the loan shark threatened him and “so I decided to come to Australia.”

    d.The applicant claims he was threatened, beaten and tortured by them because “I was not able to pay money on time.”

    e.The applicant claims he cannot relocate because “they still can find me because the group everywhere.”

14. The applicant confirmed in his s424(2) Response that he did not expand upon or amend his claims as previously made. 

    Refugee criteria

15. The Tribunal is satisfied that the applicant’s claims are not founded on a refugee nexus reason.  He is not claiming that there is a real risk of harm because of his race, religion, nationality or political opinion.  There is no indication that the applicant forms part of a group characterised by an immutable characteristic.  Borrowing from an illegal money lender does not in itself comprise an immutable characteristic, nor does being the recipient of threats.

16. 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).

    Complementary protection criteria

17. 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).

18. In the decision under review, the delegate reviewed the country information for Malaysia and determined the complementary protection considerations on the basis that there was effective protection available to the applicant from the RMP and other Malaysian authorities.  The delegate relied on country information set out in the 2016 DFAT Report for Malaysia and other sources to the following effect:

    The practice of illegal money lending is widespread in Malaysia with loan sharks often targeting gamblers and drug addicts for extortion, however police have shown a willingness to take action against such activities.[1]

    Malaysian authorities have cracked down on criminal gangs and crime syndicates and are generally willing and able to protect victims. In May 2016, the Royal Malaysian Police (RMP) disrupted the largest illegal money-lending syndicate in Malaysia.[2] Police claimed that they had identified illegal gangs nationwide with 40,000 members – 70 per cent of whom were ethnic Indian - who are linked to armed robberies, drug and prostitution rings, loan-sharking, gambling, extortion and contract killings.[3]

    DFAT noted that the RMP are considered a ‘professional and effective’ police force by ‘local and international sources,’[4] and although there are reports of corruption, police are able to ‘take action if loan sharks resort to violence or extortion to recover their money’.[5] There are numerous reports of police action, including monitoring, weapons and asset seizures, investigations and arrests against loan shark operations.[6] Authorities claim that the crackdown has led to a reduction in crime.[7]

    There are some concerns as to the integrity of RMP responses as they may be compromised by the ‘level of training, capacity or engagement in corruption’.[8] DFAT noted that RMP officers receive limited training, particularly on human rights,[9] and are paid one of the lowest wages in the Malaysian civil service.[10] However, in 2016 the US Department of State reported in its Crime and Safety report that although the effectiveness of their investigations is sometimes limited, the RMP are well trained and equipped.[11]

    [1] 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

    [2] Police bust largest money-lending syndicate (Updated), The Sun Daily, 23 May 2016, CX6A26A6E7820

    [3] Malaysia's gang menace, Aljazeera, 11 July 2014, CX1B9ECAB10299

    [4] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 5.5, p.25

    <CIS38A80121311>

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

    [6] 57% drop in commercial crime losses, say cops, The Star Online, 2 July 2014, CX1B9ECAB11425; Tan, S C Crackdown on

    [7] 79,414 individuals detained throughout 'Ops Cantas Khas’, Bernama (Malaysian National News Agency), 10 June 2014,

    CX1B9ECAB11435

    [8] Country Information Report – Malaysia, Department of Foreign Affairs and Trade (Australia), 19 July 2016, CIS38A80121311,

    section 5.5, p.25

    [9] Country Information Report – Malaysia, Department of Foreign Affairs and Trade (Australia), 19 July 2016, CIS38A80121311,

    section 5.5, p.25

    [10] Country Information Report – Malaysia, Department of Foreign Affairs and Trade (Australia), 19 July 2016, CIS38A80121311,

    section 5.5, p.25

    [11] Malaysia 2016 Crime and Safety Report, US Department of State 2016, 29 February 2016, p.11, CIS38A80121034

19. Nothing in the 2021 DFAT Report significantly displaces the country information which the delegate relied upon in regards to the applicant’s limited claims. The balance of concern about human rights training and intent to take action against illegal moneylending remains substantially the same.

20. The applicant has had the benefit of the delegate’s decision and has had an opportunity to provide the Tribunal with additional information about his claims, and/or additional evidence about why he disagrees with the delegate’s findings.  The applicant has not engaged with the country information or the delegate’s findings in the course of his application to the Tribunal.  Although he has provided character evidence in support of his application, he has not provided any substantive evidence in corroboration of his claims and did not make any submissions about the delegate’s findings. There is no claim that he has tried and failed to obtain protection in Malaysia, and no claim that he has tried and failed to come to terms with the money lender with or without the assistance of any third party.

21. Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL (2012) 207 FCR 211. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].

22. In this instance, the Tribunal is satisfied that the applicant’s fear of being “threatened, beaten and tortured” by a loan shark is mitigated by the willingness of the RMP to take action against debt collectors, such that the risk of significant harm to the applicant is less than a real risk. 

23. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

24. 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

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

    Jessica Henderson
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (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.

    …

    
    

Ah Long, The Star Online, 25 April 2014, CX1B9ECAB11426; Gomes, E 2015, 6,700 ‘Ah Long’ posters, banners, name cards
seized, The Borneo Post, 28 May 2016, CXBD6A0DE13537; 2,700 Ah Long materials removed, Daily Express, 28 May 2015,
CXBD6A0DE7469; ‘Sabah Police probe nine Ah Long cases in 2013’, The Malaysian Times, 3 January 2014,
CX1B9ECAB11427; Malacca police investigates 29 Ah long cases since January, Malaysia Edition, 28 December 2013,
CXC28129414704; Police Free Man Abducted By Loan Sharks, Malaysian Digest, 16 October 2014, CX1B9ECAB11430; ‘Loan
sharks caught red-handed’, The Star Malaysia, 29 May 2015, CXBD6A0DE13543; Mun, S B, ‘Police bust largest moneylending
syndicate (Updated)’, The Sun Daily, 23 May 2016, CX6A26A6E7820; Cops deal crime a crippling blow since Ops

Cantas Khas launch, Star Online, 23 September 2013, CXC28129414715