1732911 (Refugee)
[2023] AATA 311
•4 January 2023
1732911 (Refugee) [2023] AATA 311 (4 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1732911
COUNTRY OF REFERENCE: Malaysia
MEMBER:Tania Flood
DATE:4 January 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 04 January 2023 at 2:38pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – fear of physical assault – pressured by money lender to withdraw police complaint – state protection – delay in applying for protection – decision under review affirmedLEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155Any 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 9 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia applied for the visa on 29 October 2017. The visa was refused on the basis that the delegate was not satisfied there is a real chance or a real risk the applicant will suffer serious or significant harm on return to Malaysia for reason of being indebted to money lender agents.
The applicant lodged an application for review of the decision to refuse to grant him a Protection visa on 26 December 2017 and he has not engaged in any way with the Tribunal since that date. On 15 March 2022 the Tribunal wrote to the applicant and invited him, pursuant to the requirements at s.424(2) of the Act, to provide information about himself and his application for protection. The applicant was instructed to reply to the invitation by 29 March 2022 and was advised he could ask for an extension of time in which to provide the information. The applicant was also advised that if he did not provide the information within the period allowed or as extended the Tribunal may decide the review without taking any further action to obtain the information and that he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal and present evidence and arguments. The applicant did not respond to the request for information sent to him on 15 March 2022.
The Tribunal is satisfied that the request for information was emailed to the applicant at the address he provided when lodging the application for review and that it was not returned to sender. Considering the circumstances the Tribunal proceeded to decide the matter on the available information.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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 there is a real chance or a real risk the applicant will suffer serious harm if he returns to Malaysia for reason of his race, religion, nationality, membership of a particular social group or political opinion, or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Malaysia there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the application for a Protection visa the applicant indicated that he is a citizen of Malaysia. He indicated he is single and formerly resided in [Town 1], Selangor. He listed his ethnic group as Chinese and his religion as Buddhism. He indicated he was employed as [an Occupation 1] in Malaysia.
The applicant arrived in Australia [in] June 2012 and departed [in] July 2012. He last departed Malaysia for Australia [in] November 2014. He lodged an application for a Protection visa on 29 October 2017.
The applicant claims that he lost the equivalent of AUD21,467.62 gambling and he then sold his car to cover the loss and take out a loan with a money lender. He claims the monthly interest rate on the loan is 20% and he needed to pay AUD715 per month in repayments. Initially he was able to pay but afterwards a family member fell sick and needed assistance to buy medication and he couldn’t keep up his payment of the monthly instalments. He says he was late making payments and he was charged added interest.
The applicant claims that the money lender hired a triad member to hit him. He said his hand was almost broken but when duty police came close his attacker ran away. He said he reported the incident as advised by the police who assisted him at the time. Afterwards the money lender became more aggressive and kept threatening him to cancel the report to police or else his family would be harmed. He therefore cancelled the report.
The applicant claims that since moving to Australia his mother has moved to her hometown. He claims the money lender is still looking for him at his house and has left threatening letters and vandalised the property including leaving a red paint warning.
The applicant claims the money lender is demanding he pay back the loan in a lumpsum including monthly and daily interest charges. He claims he begged the association he belonged to for help but they have no power to fight for him in court or to save him and his family.
The applicant claims he is broke and has no money to pay back the money lender and he does not want to give his life to them.
FINDINGS AND REASONS
The applicant provided a copy of his passport to the Department which verified his claimed identity and nationality. Based on this documentation the Tribunal accepts the applicant is a citizen of Malaysia.
The applicant has raised claims of fear of harm in Malaysia from a money lender.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal notes the applicant last arrived in Australia [in] November 2014 yet only applied for a Protection visa approximately three years later on 29 October 2017 despite claiming that he departed Malaysia due to fears for his safety. The Tribunal considers the delay in lodging the application for protection raises serious doubts about the veracity of his claims.
The Tribunal has also had regard to country information about the operation of illegal money lenders or loan sharks in Malaysia. This information reveals that loan shark activities have been a persistent and deep-rooted feature of Malaysian society for several decades.[1] DFAT reported in 2021 that an individual who is unable to service a debt from a loan shark risks threats or actual physical violence, having their home splashed with red paint (culturally understood as a symbol that an individual has defaulted on a loan shark and brought shame to their family), and/or having their families’ physical safety threatened.[2]
[1] Y.G. Guan, ‘The Long and Short of the “Along” Problem’, May 2003, The Malaysian Bar Association website
[2] DFAT, Country Information Report, Malaysia, 29 June 2021
The Malaysian state recognises the threat that loan sharks present however, and a number of government and non-government agencies are tasked with trying to prevent people engaging loan sharks, or to negotiate with loan sharks to settle debts, or to encourage the reporting of loan shark activities to the police.[3] Anecdotal evidence reported in 2018 that seven out of ten borrowers would either lodge a police report or seek assistance from NGOs when an ahlong attempted to collect payments.[4]
[3] ‘Malays most notorious for borrowing from Ah Long, says PPIM’, Free Malaysia Today, 5 July 2016; ‘Loan shark menace worsens in M’sia’, The Sundaily, 2 October 2013; ‘KL Consumer Safety Association – No need to fear the loan sharks’, Bernama (Malaysian National News Agency), 17 February 2015
[4] ‘Loan Sharks sharpen their bite’, The Star, August 2018
Illegal money lending is an offence under the Moneylenders Act 1951 and punishment includes fines and imprisonment.[5] Independent sources indicate that the police do actively investigate and prosecute illegal money lenders and police actions against individual loan sharks under Section 5(2) of the Moneylenders Act 1951 are reported on regularly in the Malaysian media.[6] Major operations are undertaken by the police regularly to investigate and prosecute loan sharks. Commercial Crime Investigation Department (CCID) police arrested 801 loan sharks between January and August 2021; and in October 2019, Inspector-General of Police announced that loan sharks also “could face action under Anti-Money Laundering, Terrorism Financing and Proceeds of Unlawful Activities Act (AMLA) … a multi-prong legal approach”.[7] Similar police operations against loan sharks occurred in 2014 and 2017.[8]
[5] DFAT, Country Information Report, Malaysia, 29 June 2021
[6] ‘Penang police detain 99 Ah Long this year, The Straits Times, August 2021
[7] ‘We are coming after you, IGP warns loan shark’, Bernama, October 2019
[8] ‘Loan shark ring busted, 31 nabbed in nationwide raids’, The Sun Daily, April 2017; Tan SC, ‘Crackdown on Ah Long, The Star Online, 25 April 2014; Police: Over 2000 loan shark cases reported from Jan 2016 to July 2017, The Star Online, 7 August 2017
Corruption can reportedly limit the effectiveness of police action against loan sharks. Some police are reported to work with loan sharks (for payment) to avoid investigations against them.[9] DFAT’s overall assessment of the police and court processes in Malaysia however, notes that local and international sources consider the Royal Malaysian Police (RMP) to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion. 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.[10]
[9] ‘The police inspector and the loan shark’, The Star August 2017
[10] DFAT, Country Information Report, Malaysia, 29 June 2021
The country information outlined above indicates that there are agencies in Malaysia tasked with assisting persons indebted to loan sharks to renegotiate loans and if necessary report loan shark activities to the police. Further, the information indicates that the Malaysian authorities are capable of and do engage in efforts to combat illegal money lending, including helping persons who are threatened by loan sharks. While some police corruption is reported, overall the RMP is considered to be a professional and effective police force. The Tribunal is satisfied that Malaysia has effective law enforcement agencies and is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm, including harm from loan sharks.
The Tribunal notes the applicant’s claim that he lodged a complaint with police but was later pressured by the money lender to withdraw it. As noted above the Tribunal has concerns about the veracity of the applicant’s claims overall given the lengthy delay between his arrival in Australia and the lodging of an application for protection.
Notwithstanding the above, the Tribunal is satisfied that should the applicant face any harm from a money lender on return to Malaysia the authorities will be able to provide him with an adequate level of protection against the harm he fears. Accordingly, the Tribunal finds the applicant does not have a well-founded fear of persecution in Malaysia for the reason claimed. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal has also considered the applicant’s claims against the complementary protection criteria and notes that 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 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. Based on the country information set out above the Tribunal is satisfied that should he need it the applicant could obtain protection against the harm he fears from a money lender from the RMP and other Malaysian authorities such that there would not be a real risk that he will suffer significant harm. Therefore, 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.
Tania Flood
MemberAttachment - 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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
1
3
0