1731540 (Refugee)

1731540 (Refugee) [2020] AATA 4173 (11 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731540
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Tamara Hamilton-Noy
DATE:11 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 August 2020 at 9:37am
CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant threatened by loan sharks – mother’s debt to illegal money lenders – state protection available – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5J, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v MZYYL [2012] FCAFC 147
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 5 December 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 21 October 2017. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
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
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is, whether he is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on a Malaysian passport and has at all times maintained that he is a citizen of Malaysia. The Tribunal finds that the applicant is a citizen of Malaysia and has assessed his claims against Malaysia as his country of nationality.
Claims for protection
The applicant arrived in Australia [in] August 2017 and lodged a claim for a protection visa on 21 October 2017. In his written protection application, the applicant claimed that he had left Malaysia because his family are in financial hardship since his father became sick. His mother borrowed RM[Amount 1] from an illegal money lender to support them ‘until they came to disturb our family’ because his mother was not paying them. The applicant stated that he ‘needed to sacrifice his life for the family’ to repay the money or ‘they’ will become more aggressive. They were a poor family and the applicant’s salary was only RM2,000 per month which was not enough to support his family. He had to come to Australia to work, pay the debt and support his family. As to whether he had experienced harm in Malaysia, he stated ‘no’. He stated he had not relocated in Malaysia to seek safety, because his family didn’t have sufficient money to rent another house and he still had a few siblings studying in [school]. Further, the money lender had given them a warning about not moving to another place.
The applicant stated in his written protection application that if he returns to Malaysia, his family will be threatened by the money lender. He needs a lot of money to repay the debt and there is no one else that can help by providing financial support. He believes he will be harmed if he returns to Malaysia as he and his family will be threatened by the money lender. He does not believe the authorities can protect him as the money lenders have a big network and are uncontrollable.
In the Department decision, the delegate found that the applicant does not meet the ‘refugee’ criterion as he has not claimed to fear harm for one of the reasons set out in s.5J(1)(a); and that he is not owed complementary protection because he could obtain protection such that there is not a real risk he will suffer significant harm if he returns to Malaysia. A copy of the delegate’s decision was provided by the applicant to the Tribunal.
The Tribunal hearing was conducted on 17 June 2020. At the time of the hearing, the Tribunal’s Registry was closed due to COVID-19. The Tribunal decided it was appropriate to conduct the hearing by phone, having regard to the Tribunal’s objectives of providing a mechanism of review that is informal and quick and is proportionate to the complexity of the matter. The applicant was not represented at the hearing and the Tribunal was assisted during the hearing by a Mandarin interpreter. The applicant told the Tribunal that he was in a private area where no one could hear the evidence he was giving to the Tribunal. The Tribunal was satisfied from the answers given by the applicant during the hearing that he was able to give evidence and present arguments throughout the hearing.
The applicant told the Tribunal that he is [age] and was born in [Suburb 1], Johor Bahru, Johor. The Tribunal asked about the address given by the applicant in his protection application, which indicated he had been residing in [Suburb 2] and he said that was correct and it was 10 minutes away from [Suburb 1] and that ‘both places are my home’. The former was his family’s old home that they owned and he moved to a new home in 2017 where his family rented.
The applicant told the Tribunal that he had travelled to [named countries] prior to coming to Australia. He stated that he is not married and his parents, [and siblings] are living in Malaysia in [Suburb 1]. He does not have any family in Australia.
The applicant stated that he attended high school and did not attend university. After high school he stayed at home for six months and then worked in his uncle’s [business]. [Details deleted]. He also worked in his father’s [business] for one [week]. The Tribunal asked about the applicant’s written claims for protection which had included information that he had worked in a [specified workplace] for two years and he stated that this was owned by his father and he would go there at the end of the business day to collect money but it doesn’t mean he was working there. The Tribunal asked why he had stated he worked there for two years in his protection application and he said, ‘What? Did I? I was there to help collect money’. The applicant said that, since being in Australia, he has worked on a [farm].
The Tribunal asked the applicant why he left Malaysia in 2017 and he said it was because his father was sick and his mother contacted a loan shark to obtain a loan for [Amount 1] ringgit, to get treatment for his father. The Tribunal asked the applicant about his father’s illness and he said he doesn’t know what it was as his mother wouldn’t tell him, but she borrowed money from a loan shark. In response to questions from the Tribunal, he stated that he was living with his mother while his father was sick in hospital, but his mother wouldn’t tell him what was wrong with his father. The Tribunal observed that it seemed unusual that the applicant had moved to Australia because of this but his mother wouldn’t give him any details of his father’s illness and the applicant stated it was because they didn’t have any money and still needed to pay back a loan shark; he came to Australia to work and to send money back to pay the loan shark.
The Tribunal asked the applicant about his mother’s contact with the loan shark and he said he wasn’t there and when he asked his mother, she said it was because there was no money left. His mother paid for his father’s treatment and told him she had borrowed money from a loan shark. When she said she didn’t want to repay the money, they moved to their present house so the loan shark couldn’t find them. His [sibling] is in [school] and they didn’t want the loan shark hassling them.
The Tribunal asked whether the applicant’s mother had approached a bank before speaking to a loan shark and he said he doesn’t know because his mother borrowed the money. As to when she had borrowed the money, he said he is not sure whether it was the end of 2016 or the beginning of 2017. She borrowed [Amount 1] ringgit and was supposed to repay [amount] per month. This was to be paid back to the loan shark’s bank account from his mother’s bank account. The Tribunal asked whether the applicant’s mother made repayments and the applicant stated he doesn’t know as he sent money back to his mother.
The Tribunal asked whether the applicant’s father was in hospital and he said for two months but is not sure which hospital and doesn’t know the name of the hospital. The Tribunal observed that it was having difficulty understanding why the applicant wouldn’t know what his father’s illness was or why he was in hospital for two months and the applicant stated his mother wouldn’t allow him to go to the hospital. She borrowed money from a loan shark and told them to stay at home and not go anywhere else, but he doesn’t know why. He doesn’t even know whether his mother made repayments to the loan shark or not. His [siblings] were going to school so she may have needed to pay their tuition fees.
The Tribunal observed that the applicant did not know any details of his family’s situation but was asking the Tribunal to accept that it had been serious enough for him to seek protection in Australia from returning to Malaysia. The applicant stated in response yes, he wanted to come to Australia to earn money and repay the loan.
The Tribunal asked the applicant what he fears if he returns to Malaysia and he said he is scared about harassment by the loan shark because he is not sure whether his mother has repaid the loan. The loan shark charges very high interest and if they can’t repay, they will never be able to pay this amount back. The applicant stated he is sending $500 per month back to his family, and if he can’t make enough money, he will send $300 back. The Tribunal observed that the applicant had been in Australia and had sent back more than what had been borrowed from the loan shark over the three-year period, and the applicant stated he is not sure whether his mother has repaid the debt. He also needs to pay rent and buy food in Australia and he has purchased a car. He asked his mother if she had made repayments and she said yes.
The Tribunal asked whether the loan shark had visited the family’s home and the applicant said they had gone to the old house in 2017, around the new year. At that time, he and his [siblings] were home, but his mother was not home. They were shouting and swearing at them and said if the loan was not repaid, they would kill them. The Tribunal asked why this hadn’t been included in the protection application and the applicant stated he had said they were threatened; at that time he didn’t know he had to go into detail, so he didn’t mention it.
The Tribunal asked whether there was any other basis the applicant fears returning to Malaysia and he stated he is afraid he can’t make the money he can make in Australia and that the money he makes in Australia is higher than the money he makes in Malaysia. If he returns and the loan shark comes to his family, he wouldn’t be able to find a job like he has now that can make so much money.
Country information
The following information was summarised and discussed with the applicant at the hearing and he was invited to comment on the information during the hearing.
The Tribunal considered the most recent DFAT Country Information Report for Malaysia, which states that loan sharks, pay day financiers or ah long carry out money lending activities without a licence, charging high interest rates to do so. Loan sharks operate very publicly, despite it being an illegal practice, and loan shark advertisements appear widely on public property, including on lamp posts and utility boxes. Loans typically carry an interest rate of 30 to 40 per cent per month, but can be as high as 15 per cent per day. In-country sources have advised DFAT that loan sharks do not seek protection money.[1]
[1] DFAT Country Information Report Malaysia, 13 December 2019, 3.108.
Sources have advised DFAT of loan sharks in Sabah entering ‘sell and purchase agreements’ where a borrower’s house is used as collateral for a loan. If a borrower defaults on their loan, the loan shark exercises the sell and purchase agreement to transfer the property into their name. Sources have reported that lawyers are facilitating these agreements in return for a proportion of the house sale profits and that borrowers who enter such agreements are under significant duress or lack sufficient education to understand the agreement they have signed. DFAT is also aware of an individual on peninsular Malaysia who entered a sell and purchase agreement after becoming involved in gambling and, when unable to repay the loan shark, their family supported them to engage a formal credit agency to obtain a loan to repay the loan shark.[2]
[2] DFAT Country Information Report Malaysia, 13 December 2019, 3.109
The applicant stated in response to this information that loan sharks are operating illegally; if it was a bank loan they would require them to put security on the house, but if they can’t pay the loan shark back they will be harassed and disturbed.
Sources have advised DFAT that an individual who is unable to repay a loan shark risks threats or actual physical violence, having their home splashed with red paint and/or having their family’s physical safety threatened. Sources claim that loan sharks engage gangsters to collect debts, to harass and threaten borrowers and family members, and that borrowers and family members have been shot at gunpoint and had their fingers cut off. However, due to the illegal nature of loan shark activity, DFAT had been unable to verify these claims. There is significant societal shame in being unable to repay a debt to a loan shark and sources report that many people see suicide as the only honourable way out of a loan shark debt. DFAT has been made aware that those in debt have been advised to put their family in a safe location and travel overseas to earn a foreign income to repay the debt faster and to reduce risks and shame to their family.[3]
[3] DFAT Country Information Report Malaysia, 13 December 2019, 3.111.
DFAT understands that authorities tend to be unsympathetic to individuals who have accessed loan shark services as they consider they have participated in an illegal practice.[4]
[4] DFAT Country Information Report Malaysia, 13 December 2019, 3.112.
The applicant stated in response to the above information that his mother may have gone through the loan process with a bank but was knocked back and then had no other option but to go through a loan shark as she needed money urgently for his father. If a loan application had been approved by a bank, he wouldn’t have needed to come to Australia and work so hard to repay the amount.
Local media have reported on the Commercial Crimes Investigation Department having reported that there were 3,903 cases and 2,698 arrests in relation to local scams between January and November 2018, with total case related losses estimated at 36 million ringgit. Local media have also reported on loan sharks becoming more ‘corporate’ and having increased promotion of services on social media platforms. Media have also reported on the Royal Malaysia Police’s plans to embark on a ‘major war’ against loan sharks as of October 2019, in response to reports that syndicates were becoming more aggressive.[5]
[5] DFAT Country Information Report Malaysia, 13 December 2019, 3.112.
The applicant stated in response to this information that if the government wants to rectify the situation, that is good news, as then he didn’t have to come to Australia. This was reported last year but he came in 2017 and at that time the loan sharks could do anything.
The Malaysia Chinese Association’s Public Services and Complaints Department is able to play an intermediary role between loan sharks and Chinese Malaysian victims who are unable to repay their loans and receives 500 to 600 complaints per year on average. Local media reported that in 2018, 80 per cent of loan shark borrowers were reported to be members of the Chinese Malaysian community who were involved in illegal online gambling. Sources have reported that the MCA is able to negotiate loan repayment settlements, with repayment rates negotiated down to match the one per cent government rate. In July 2019 the MCA held a press conference regarding a 28-year-old woman who had inquired about a loan and shared some personal information but had rejected the offer of a loan. Funds had been deposited into her account and she was later threatened to pay up or face prostitution. The MCA also cited a case of a 91-year-old woman who had been threatened by loan sharks over her estranged son’s failure to repay money owed.[6]
[6] DFAT Country Information Report Malaysia, 13 December 2019, 3.113 – 3.114.

The Malaysian Muslim Consumers Association also provides services relating to loan sharks. Between 2012 and 2016 the association was involved in over 10,000 cases involving loan sharks, predominantly providing services to the Malay community. The association maintains a website where people can report loan shark cases. DFAT sources have provided differing views on why individuals are engaging loan shark services, with some claiming that up to 80 per cent of borrowers are supporting gambling activities and other debts and others claiming that 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 poor credit history.[7]
[7] DFAT Country Information Report Malaysia, 13 December 2019, 3115.
The above information was discussed with the applicant during the hearing and he stated in response to this information that if that is the case that’s good, as he has been away for three years.
Limited research is available on loan sharks and the individuals who engage their services, possibly due to their links to gangs and corruption. DFAT has been unable to verify the proportion of borrowers who are supporting other illegal activities, their likelihood of seeking police protection or the level of protection offered by police. However, DFAT assesses that individuals unable to service debts to loan sharks, and their family members, may face societal discrimination and may face a real or perceived risk of harassment and violence from loan sharks and gangsters. However, formal credit agencies are able to consolidate loan shark debts and provide payment plans, and engaging in such agencies is an option to mitigate against potential risks posed to those in debt.[8]
[8] DFAT Country Information Report Malaysia, 13 December 2019, 3.117.
Further, in October 2019 the Inspector General of Police, in announcing the ‘major war’ to be commenced against loan shark syndicates, stated that anyone found to be involved would be arrested and prosecuted. The Inspector General stated that such persons would be detained and charged in court and could face action under the Anti-Money Laundering, Terrorism Financing and Proceeds of Unlawful Activities Act (AMLA). Further, the Criminal Investigations Department and the Commercial Crimes Investigations Department were reported to have taken action in Kuala Lumpur to clean up gambling syndicates and to have taken drastic action against gangsters in Kuala Lumpur.[9]
[9] ‘We are coming after you, IGP warns loan sharks’, Malaysia Kini, 23 October 2019 at
The applicant stated in response to the above information that if it is true, that is good and he can go back home with peace of mind. But he doubts they can demolish the loan sharks and if loan sharks are there, they will harass and harm his family. He does not trust the Malaysian police as they are very corrupt and sometimes will work together with underworld figures.
The Moneylenders Act 1951 gives police considerable investigative powers, including the ability to visit, enter, inspect and search premises without a warrant and to seize property and documents to assist with investigations. Individuals involved in illegal moneylending who are convicted under the Act face fines and up to five years’ imprisonment. The Royal Malaysia Police have made several recent high profile arrests and investigations, including the arrests of 21 people in Johor in September 2019, 13 suspects in January 2019 and 21 people in November 2018. District police arrested 11 members of a nationwide syndicate in early 2019.[10]
[10] DFAT Country Information Report Malaysia, 13 December 2019, 3.116.
There are law enforcement entities at federal and state levels in Malaysia.[11] The Royal Malaysia Police is based on the British model and employs 115,000 police officers in 837 police stations across Malaysia. Local and international sources consider the RMP to be professional and effective, although the quality of members’ responses is reported to vary according to levels of training, capacity and engagement in corruption. Officers receive limited training, particularly in human rights, and are among the lowers paid members of the Malaysian civil service.[12]
[11] DFAT Country Information Report Malaysia, 13 December 2019, 5.1.
[12] DFAT Country Information Report Malaysia, 13 December 2019, 5.5.
Malaysians perceive the police as one of the most corrupt institutions in the country. Following a 2005 Royal Commission, a perception of widespread corruption was identified within the RMP. The government publicly acknowledged the issue of police corruption in response and implemented reforms, including establishing compliance units within the RMP. Police officers have subsequently been tried in civil and criminal proceedings and disciplinary action has been taken, which has included suspension, dismissal and demotion. In addition, external investigations are possible by the Enforcement Agency Integrity Commission, which is able to make recommendations to the enforcement agency in question. In July 2014, the establishment of an Integrity and Standards Compliance Department was announced which sits within the RMP.[13]
[13] DFAT Country Information Report Malaysia, 13 December 2019, 5.6 – 5.8.
There are courts at federal, state and subordinate levels in Malaysia, in addition to sharia courts which have jurisdiction over Muslims in personal matters. Sources have reported issues with judicial independence, arbitrary verdicts, selective prosecution, delays to court-ordered relief for civil plaintiffs and preferential treatment of some litigants and lawyers. The ability of individuals to seek redress through Malaysian courts is described as variable. However, DFAT assesses that while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.[14]
[14] DFAT Country Information Report Malaysia, 13 December 2019, 5.13, 5.14, 5.17.
The above information was discussed with the applicant during the hearing and he stated in response to this information that if these agencies can provide protection, ‘that’s terrific’.
Findings of the Tribunal
The Tribunal accepts the applicant was born in and grew up in Johor Bahru and that his parents and [siblings] are living in [Suburb 1], Johor Bahru. The Tribunal accepts the applicant’s evidence that he completed high school in Malaysia, that he travelled to [named countries] prior to coming to Australia and that he worked in his uncle’s [business] before he left Malaysia. The Tribunal accepts the applicant has been working [on a farm] since arriving in Australia and that he is sending $300 to $500 per month back to his family from his earnings from this employment.
The applicant’s claim to have left Malaysia because his mother borrowed money from a loan shark has been put consistently in his written protection application and in his evidence to the Tribunal at the hearing. The applicant was unable to give the Tribunal any detail about his father’s illness, what hospital his father was in, when his mother borrowed money from a loan shark, whether she approached a bank first or whether and what money has been repaid by his mother to the loan shark. However, the Tribunal is mindful that the applicant was [age] at the time he states his father was ill and his mother borrowed money from a loan shark, in late 2016 or early 2017. The Tribunal considers it plausible that the applicant may not have been aware of the details of his father’s illness of or his mother’s dealings with a loan shark given his young age at the time and that it is plausible that the applicant’s mother did not involve him in her dealings with a loan shark.
The Tribunal is prepared to accept that the applicant’s father was hospitalised due to illness in late 2016 or early 2017 and that his mother borrowed [Amount 1] ringgit from a loan shark to help cover the family’s expenses.[15] The country information considered by the Tribunal, and discussed with the applicant at the hearing, states that loan sharks advertise widely in Malaysia. The number of complaints to consumer organisations, also set out in the country information, indicates that the use of loan sharks is a wide spread practice across Malaysia, and the Tribunal considers it plausible that the applicant’s mother approached a loan shark for money when the family faced financial hardship as a result of the applicant’s father becoming ill.
[15] $[amount]AUD, at accessed on 30 July 2020.
The Tribunal is prepared to accept that the applicant, [and his siblings] were visited by loan sharks at their old home while their mother was not at home. The DFAT information, set out above, states that this is a common practice of loan sharks and also that family members of a person who has accessed loan shark services may also be targeted. The Tribunal is prepared to accept that, following these threats, the applicant’s family moved to a new rental property as a result of the threats.
The applicant was unable to give details to the Tribunal of any amounts his mother had repaid to the loan shark. However, the Tribunal notes the applicant’s evidence that he has been sending back $300 to $500 per month to the family and has now been in Australia for some three years. The Tribunal considers it plausible that the applicant’s mother has repaid to the loan shark at least a proportion of the amount originally borrowed some three and a half years ago.
The applicant stated to the Tribunal that he did not experience physical harm in Malaysia. In his written claim he said he fears he will be threatened by loan sharks if he returns and he told the Tribunal that he is scared he may be harassed by loan sharks. The DFAT report considered by the Tribunal states that individuals who owe money to loan sharks may face threats and actual violence, having their house splashed with red paint and having gangsters harass and threaten them on behalf of the loan shark. The report also indicates that family members may also be threatened by loan sharks and the Tribunal accepts from this information that, as a family member of a person who has borrowed money from a loan shark, the applicant may be at risk of harm from loan sharks and/or gangsters, if his mother has not repaid the amount borrowed. The country information considered by the Tribunal indicates that he may also be at risk of societal discrimination.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
Country information states that there is legislation in place through which loan sharks may be pursued, including the Moneylenders Act 1951, under which fines and up to five years imprisonment are available as a penalty, and the Anti-Money Laundering, Terrorism Financing and Proceeds of Unlawful Activities Act. The authorities have wide legislative power to investigate and charge individuals suspected of loan shark activities and there have been a number of arrests to date. As recently as October 2019, the police announced an intention to engage in a ‘major war’ against loan sharks.
While the authorities are described as unsympathetic to people who access loan shark services, the Royal Malaysian Police are described as professional and effective. The applicant submitted that the police are corrupt and work with underworld figures. However, country information states that perceptions of corruption within the police force have been addressed by the government, with action taken in both civil and criminal settings to address poor police behaviour. The country information also states that contentious verdicts have been issued by Malaysian courts particularly relating to cases involving high profile politicians and human rights defenders, neither of which circumstance relates to the circumstances raised by the applicant. Malaysian courts are otherwise described as largely complying with the rule of law and legal procedure. The Tribunal finds that there is an appropriate criminal law, reasonably effective police force and impartial judicial system in Malaysia.
The applicant claimed that the authorities cannot protect him as the loan sharks have a big network and are uncontrollable. The DFAT report outlined a number of investigations and arrests undertaken by the Royal Malaysia Police through 2018 and 2019 and the Tribunal finds that loan shark networks are being investigated by the Malaysian police. The Tribunal finds that, as a Malaysian citizen, the applicant could access the judicial system if he fears harm from a loan shark his mother dealt with and that the protection offered is durable on the basis that the protection is not temporary or intermittent. The Tribunal finds that the state is willing and able to offer protection from loan sharks.
The Tribunal finds that effective protection measures are available to the applicant if he returns to Malaysia, now or in the reasonably foreseeable future, as required by s.5LA.
The Tribunal finds that the applicant does not have a well-founded fear of persecution if he returns to Malaysia, now or in the reasonably foreseeable future, because his mother borrowed money from a loan shark, on the basis that effective protection measures are available to him in Malaysia.
The applicant stated to the Tribunal that he fears returning to Malaysia because the money he makes in Australia is higher than the money he could make in Malaysia. Having regard to the examples of serious harm set out in s.5J(5), the Tribunal finds that the applicant being unable to make an equivalent income in Malaysia does not meet the threshold of serious harm anticipated in the Act.
The Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason, if he returns to Malaysian now or in the reasonably foreseeable future.
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), that is, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk the applicant will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where 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; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
The Tribunal first considered the risk to the applicant because his mother borrowed money from a loan shark. 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] FCAFC 147.
The Tribunal has found, above, that the applicant would have access to a criminal justice system that allows for prosecution and punishment of persons engaged in loan shark activities. The Tribunal finds from the country information that there were a number of police investigations and arrests relating to loan sharks during 2018 and 2019. In October 2019 the Inspector General of Police announced a ‘major war’ on loan sharks, which indicates that efforts of the police would continue and would increase. The Inspector General of Police anticipated in his announcement that there was additional legislation in place under which loan sharks would be charged. Further, action taken by police departments in Kuala Lumpur to clean up gambling activities supports the intention of the police to more broadly address loan shark activities in Malaysia. The Tribunal is satisfied from this information that the level of protection that is able to be offered by the authorities reduces any risk of harm to the applicant, which he claimed to be a risk of threats and harassment by loan sharks if he returns to Malaysia, to less than a real risk.
The Tribunal finds that the applicant could obtain protection for the authorities in Malaysia such that there would not be a real risk that he would suffer significant harm because his mother borrowed money from a loan shark, if he returns to Malaysia now or in the reasonably foreseeable future.
The Tribunal finds that the applicant’s claim that he would not be able to make as much money in Malaysia as he does in Australia does not meet the definition of significant harm as set out in s.36(2A).
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.
Tamara Hamilton-Noy
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 4173

11 August 2020

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