1807750 (Refugee)

[2020] AATA 3830

1807750 (Refugee) [2020] AATA 3830 (3 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1807750

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Michael Hawkins

DATE:3 September 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 03 September 2020 at 10:24am

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from illegal moneylender – business partner borrowed money then ran away with it – attacks and damage to business – threats but no actual harm – credibility – delay in applying for protection – inconsistent evidence – no records of business, loan or repayments – no complaint to police – government, police and NGO initiatives against illegal moneylenders – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA [1994] FCA 535
Selvadurai v MIEA [1994] FCA 1105
Subramaniam v MIMA [1998] FCA 305
Zhang v RRT [1997] FCA 423

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 Home Affairs on 20 March 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 16 December 2017. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s.5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to her receiving country, there was a real risk she would suffer significant harm.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background:

10. The Tribunal has obtained the following background information from the applicant’s visa application forms and evidence presented to the delegate and the decision of the delegate:

11. The applicant is a Malaysian national.

12. The applicant is [number] years of age.

13. The applicant first arrived in Australia [in] October 2014 pursuant to [an] Electronic Travel Authority visa and departed [in] January 2015.

14. [In] September 2017 the applicant arrived in Australia pursuant to [an] Electronic Travel Authority visa.

15. The applicant lodged a XA-866 Protection visa application on 16 December 2017.

16. The applicant was not invited to attend an interview with a Departmental officer. On 20 March 2018 the delegate refused the application based on the material before the Department. The delegate did not make any findings about the veracity of the claims made by the applicant that she had been threatened by loan sharks but rejected the claim for protection under the refugee criteria on the grounds that the applicant’s claimed fear of harm in Malaysia did not have the relevant refugee nexus. The delegate considered whether Australia’s obligations were engaged under the complementary protection criterion but rejected the claim because she was not satisfied there was a real risk of the applicant suffering significant harm. In summary, the delegate found that, while there may be instances of corruption in the police force, the Malaysian authorities were willing and reasonably effective in combating illegal moneylending. According to the delegate, this would provide the applicant with an adequate level of protection such that there would not be a real risk that she would suffer significant harm.

17. The applicant applied for review of the Delegate’s decision on 22 March 2018.

    Claims:          

18. The applicant‘s claims are summarised in her Protection Visa application and in the Delegate’s Decision.

19. The applicant claims that her [business] partner borrowed money from an illegal money lender that she could not afford to pay back.

20. The applicant claims her business partner ran away, so the illegal money lenders came to their business and demanded she pay back the business partner’s loan.

21. The applicant claims the illegal money lenders attacked her and her family and ruined everything in the [business] so it had to be closed.

22. The applicant fears that if she returns to Malaysia the same thing will happen again and claims her life will be threatened.

    Evidence:

23. The Tribunal has before it a range of material, including, relevantly:

    • The applicants’ protection visa application lodged 16 December 2017 (visa application);
    • The applicant’s identity documents being copies of a Malaysian passport and a Malaysian identity card provided to the Department;
    • The protection visa decision record (delegate’s decision record) dated 20 March 2018, available to the Tribunal from the department file;
    • The application for review form dated 22 March 2018;
    • Country Information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the DFAT Country Information Report on Malaysia, published on 13 December 2019 (the DFAT Report).

    Pre-hearing

24. On 27 July 2020 the Tribunal sent a request to the applicant to provide a copy of the delegate’s decision of 20 March 2018. A copy of the delegate’s decision had not been provided by the applicant to the Tribunal the application for review was lodged. No response was received from the applicant.

25. On 19 August 2020 the Tribunal wrote to the applicant and provided a copy of the delegate’s decision as documents that may be referred to by the Member during the hearing on 26 August 2020.

    Country of reference/ receiving country:

26. The applicant claims to be a Malaysian national. Based on evidence provided to the Department by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Malaysia is her country of nationality and also her receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

27. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Hearing:

28. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant did not raise any concerns in relation to holding a telephone hearing during the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was satisfied that the telephone service was clear and uninterrupted; it confirmed that the applicant, the interpreter and the Tribunal Member could hear each other clearly and the Tribunal paused on several occasions to ensure that the applicant was satisfied with the clarity of the hearing.

29. The applicant appeared before the Tribunal on 26 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

30. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa she must either be recognised as a refugee or be a person entitled to Complementary Protection.

31. The Tribunal explained that under Australian law, to be a refugee she must have a well-founded fear of persecution in Malaysia. This means the Tribunal must be satisfied that there is a real chance that she will face serious harm if she returned to Malaysia. The harm must be directed at her for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

32. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk she will suffer significant harm if removed from Australia to Malaysia.

33. The Tribunal discussed her claims as summarised in the Delegate’s Decision. It confirmed that her claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that she did not need to change them.

    Assessment of Claims and evidence, and findings:

34. 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 of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. 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, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

35. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

36. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

37. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

38. The Tribunal has strong reservations about the credibility of the applicant’s claims.

39. The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:

    The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”

40. A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.

41. The Tribunal discussed these concerns with the applicant at length.

42. The Tribunal noted that the applicant arrived in Australia [in] September 2017 and made her Protection Visa Application on 16 December 2017, a delay of almost three months. The Tribunal asked the applicant why it had taken her almost three months to make her Protection claims, explaining that the Tribunal might consider such a delay as suggesting that the claims may not be genuine.

43. The applicant replied that she did not know about protection visas, that she had travelled to Australia alone and had no friends to give her advice. She did not explain how she came to make her application just prior to her ETA Visa expiring or learned about protection visas just as her travel visa was to expire.

44. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

    In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]

    [1] Guidelines on the Assessment of Credibility (July 2015) Available at >

    However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]

    [2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

45. The Tribunal considered the applicant’s specific claims.

46. The Tribunal discussed with the applicant some details about her business. She stated that she opened her business in about January 2015, shortly after she had returned from Australia. She said she went into business with a friend, whom she named. Asked how long she had known this friend, she replied that she had known her friend since they were very small and had gone to school together.

47. The Tribunal noted the applicant’s claim that her business partner ran away. It asked the applicant why such a longstanding friend would open a [business] with her, borrow money, steal it and then run away almost immediately after the business had commenced. She replied that she did not know and speculated as to whether she may have had personal problems. When asked if she had heard from her friend since, she replied she had not.

48. The Tribunal discussed with the applicant the details about the loan. She replied that the loan was taken out in about March 2017. She stated that her friend arranged the loan and put the loan in the name of the company which was owned by the applicant and the friend. The applicant confirmed that she was a Director of the company.

49. The Tribunal inquired as to the amount of the loan. She replied that it was [Amount 1] RM.

50. Asked the name of the lender, the applicant said she didn’t know. She stated that a representative of the lender would come around to collect the repayments.

51. The Tribunal inquired as to the interest rate applicable to the loan. The applicant replied that she didn’t know but stated that if she didn’t make a repayment, they would have to pay three times the missed payment.

52. The Tribunal inquired as to the repayment schedule. The applicant replied that they were required to pay [Amount 2] RM per week.

53. The Tribunal asked how many repayments were actually made. She replied none.

1. The Tribunal confirmed that her friend took out the loan in the name of the company and immediately disappeared. It asked the applicant whether the money went into the business or whether the applicant stole the money. She replied that the friend stole the money.

2. The applicant then indicated that she was making repayments. Asked to explain, she replied that she commenced making repayments of the loan in October 2018. The Tribunal confirmed that she was in Australia when she commenced making repayments. Asked how many repayments she had made, she replied that she had been paying [Amount 2] RM per week (or $[Amount 3]) since October 2018, but admitted to making only intermittent payments during COVID.  She stated that she was repaying the loan again now.

3. The Tribunal asked the applicant whether she had a copy of the Loan Agreement. She replied she did not. She said she brought nothing with her to Australia as she just wanted to run away.

4. The Tribunal asked the applicant whether she had any record of the repayments she had made and was making. She replied she had no records.

5. The Tribunal inquired as to how she was making the repayments given that she was in Australia. She replied that she would transfer money to her family and her family would make the repayments. The Tribunal again confirmed that she had no records of the payments being made to the family.

6. Asked how the family made the repayments, she replied that the loan shark goes to the family to collect the money.

7. The Tribunal asked the applicant what happened when her friend ran away. She replied that the Ahlong started searching for them.

8. The Tribunal asked the applicant what happened when the loan shark found her. She replied that she was told that she owed the money. Asked whether she was physically harmed, she replied she was not. She went on to state that the loan shark then ruined her [business]. The Tribunal asked the applicant why the loan shark would ruin her [business] when it would know that she needed the [business] in order to make the repayments. She replied that it was because her partner owed the money and had run away.

9. The Tribunal asked whether her family had been harmed. She replied no, but the loan shark had threatened to hurt her family if she didn’t make the repayments.

10. The Tribunal asked the applicant why the loan shark had come to her, given that her friend was the one that owed the money. She replied that the loan was in the company name.

11. The Tribunal discussed Country information with the applicant.

12. The Tribunal noted that the applicant would have had access to debt support services in Malaysia.

13. The Malaysian state recognises the threat that loan sharks represent and a number of government and non-government agencies are tasked with trying to prevent people engaging loan sharks, or to negotiate with loans 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, from-ah-long-says-ppim/; ‘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, ‘Loan sharks sharpen their bite’, The Star, August 2018 packages-for-major-events-aim-to-lure-more-victims/.

14. The government’s Credit Counselling and Debt Management Agency (AKPK) offers credit counselling on financial status and budgeting to encourage people to use financial institutions under the purview of BNM, rather than loan sharks.[5]The government in some provinces (Penang) has agreed to repay the loans of its own civil servants, minus interest, to the loan sharks.[6]

    [5] AKPK, ‘Loan sharks and their illegal activities’, July 2013

    [6] See Free Malaysia Today news, 2017, “Penang to help civil servants caught in loan shark web’, 6 February, servants-caught-in-loan-shark-web/

15. The non-government Malaysian Muslim Consumers Association (PPIM) has a unit (Ceti Haram Anti-Corruption Unit) dedicated to resolving loan shark debt by renegotiating its terms with the loan shark. It claims to have resolved thousands of cases (for a service fee). The Unit’s webpage (ahlong.ppim.org.my) allows people to report their individual cases to the agency, and in response the agency indicates that:[7]

    [7] A Google Translation of this webpage accessed April 2020 provides details on how the cases are approached: see also ‘Malays most notorious for borrowing from Ah long, says PPIM’, Free Malaysia Today, July 2016 from-ah-long-says-ppim/;

    ·An investigating officer reviews and handle the case based on the information received

    ·The investigating officer negotiates with ahlong to stop the threat, stop the interest, reduce the claim and reschedule the payment.

    ·The complainant is not allowed to communicate with ahlong so that the case can be controlled and there is no ongoing threat. Please contact the investigating officer or the PPIM Illegal Anti- Corruption Unit hotline if there are any threats or offers from ahlong.

    ·The repayment period is extended

    ·Complainant no longer has to communicate with ahlong, all related matters will be handled by officials without the complainant's involvement.

    ·Monitoring the safety of the complainant throughout the case.

    ·Complainant's personal information is kept confidential.

    ·Counselling and counselling sessions throughout the case management.

    ·Guarantee of settlement of cases as long as the complainant adheres to the terms and conditions set forth.

16. The NGO Malaysian Chinese Association’s (MCA) Bureau of Coordinating Government Affairs provides a similar service to renegotiate the terms of loans with loan sharks on behalf of borrowers.[8]

    [8] ‘Many still found borrowing from loan sharks’, MCA website May 2017 201704&_param2=TS.

17. The Tribunal also considered country information in relation to the applicant’s capacity to access state protection.

18. The Malaysian government has acted against illegal money lenders over several decades on diverse fronts, including by legislation, police investigation and prosecution, the removal of loan shark advertisements, and through publicity campaigns. Illegal money lending is an offence under the Moneylenders Act 1951 and punishment includes fines and imprisonment. Police powers under the Act and the penalties are summarised as follows by DFAT:

    The Moneylenders Act (1951; amended 2003 and 2011) gives police considerable investigative powers against alleged loan sharks. Police can visit, enter, inspect or search premises without a warrant, and seize moveable properties and business documents to assist with investigations against alleged loan sharks. Individuals involved in illegal moneylending activities in Malaysia can be convicted under Section 5(2) of the Moneylenders Act, which carries a fine of between RM250,000 and RM1 million (AUD80,000 – AUD320,000) or, a jail term of up to five years, or both.[9]

    [9] DFAT, Country Information Report - Malaysia, December 2019.

19. Sections 5(2) and 29(B) of the Moneylenders Act 1951 (as at May 2015)[10] state:

    5 (2) Any person who carries on or advertises or announces himself or holds himself out in any way as carrying on the business of moneylending without a valid licence, or who continues to carry on such business after his licence has expired or been suspended or revoked shall be guilty of an offence under this Act and shall be liable to a fine of not less than two hundred and fifty thousand ringgit but not more than one million ringgit or to imprisonment for a term not exceeding five years or to both, and in the case of a second or subsequent offence shall also be liable to whipping in addition to such punishment.

    Harassment or intimidation, etc. of borrower

    29B. (1) Any moneylender who, either personally or by any person acting on his behalf, harasses or intimidates a borrower or any member of the borrower’s family or any other person connected with the borrower at, or watches or besets, the residence or place of business or employment of the borrower, or any place at which the borrower receives his wages or any other sum periodically due to him, shall be guilty of an offence under this Act and shall be liable to a fine of not less than fifty thousand ringgit but not more than two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both, and in the case of a second or subsequent offence shall also be liable to whipping in addition to such punishment.

    [10] Moneylenders Act 1951 (As at 1 May 2015) 15.pdf.

20. The police do actively investigate and prosecute illegal money lenders. Police actions against individual loan sharks under Section 5(2) are reported on regularly in the Malaysian media.[11] Major operations are undertaken by the police every few years to investigate and prosecute loan sharks. Most recently 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”.[12] Similar police operations against loan sharks occurred in 2014 and in 2017.[13]

    [11] ‘14 held for illegal money lending in Pahang, items worth RM1million seized’ NST, November 2019 items-worth-rm1million-seized; ‘Violent gang of loan shark members nabbed’ The Star, Jan 2020 ‘We are coming after you, IGP warns loan shark’, Bernama, Oct 2019 ‘Loan shark ring busted, 31 nabbed in nationwide raids’ The Sun Daily, April 2017 BTARCH440034; Tan, S C, ‘Crackdown on Ah Long’, The Star Online, 25 April 2014 curb-illegal-moneylending/ ; Police: Over 2000 loan shark cases reported from Jan 2016 to July 2017’, The Star Online, 7 August 2017 2000-loan-shark-cases-reported-from-jan-2016-to-july-2017/.

21. Malaysian authorities respond to the changing tactics of loan sharks. The Urban Wellbeing, Housing and Local Government Ministry, which is responsible for issuing licences and monitoring operations of money lenders under the Moneylenders Act 2011, recognised in 2016 that the issue remained a serious one given the greater use of electronic media, and that extra measures were required to curb illegal lending. The Deputy Minister highlighted measures to educate the public against the use of loan sharks and greater financial assistance to small business to achieve this. He quoted the following statistics on prosecutions and investigations at the time:

    ·A total of 306 illegal money lenders have been charged in court since 2011.

    ·They were among 905 suspects detained for investigations to 2015.[14]

    [14] ‘Three ministries to formulate solution to Ah Long problem’ Perak Today March 20916 >

    Corruption can 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. [15] DFAT’s overall assessment of police and court process in Malaysia includes the following:

    5.5 The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the 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. RMP officers receive limited training, particularly on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is 80 – 85 per cent Bumiputera.

    5.6 According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia 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 RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.

    5.7 External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission [EAIC], which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts.

    …

    5.17 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.

    [15] ‘The police inspector and the loan shark’ The Star August 2017, >

    Based on complaints received by the Malaysian Anti-Corruption Commission (MACC) between 2013 and 2018, the enforcement sector emerged as the second highest (after procurement) at 24%. The former Pakatan Harapan (PH) government that was elected in 2018 was willing to contain corruption across Malaysia, shown through its five-year National Anti-Corruption Plan 2019-2023. This plan includes the goal “to transform and convert the current Enforcement Agency Integrity Commission (EAIC) into an Independent Police Complaints and Misconduct Commission (IPCMC) to address integrity issues and curb misconducts among members of the Royal Malaysia Police”. The IPCMC Bill was tabled for its first reading in July 2019. Following the collapse of the PH government in February 2020, the Bill now is undergoing review by the Law and Parliamentary Affairs and Home Ministers of the new Perikatan Nasional (PN) government which formed in early March 2020.[16]

    [16] ‘IPCMC Bill to be reviewed before reaching Cabinet’, Malay Mail website, March 2020 cabinet/1848016.

22. The Tribunal invited the applicant to comment on that Country Information.  The Tribunal asked the applicant whether she had taken the opportunity to see a Financial Counsellor. She replied that she has heard that it would take a long time to get results through a Financial Counsellor. She confirmed that she had not been to a Financial Counsellor.

23. The Tribunal invited the applicant to comment on the Country Information relating to police protection. She replied that she had been to the police to make a report about the threats she had received. The Tribunal asked when she had done that. She replied that she had gone to the police after her [business] was destroyed.

24. The Tribunal asked the applicant whether she had a copy of that Police Report. She replied that she did not, but there may be one in Malaysia, but she did not bring anything with her. Asked to comment on the information that the police do act against illegal money lenders and actively investigate and prosecute illegal money lenders, the applicant said she disagreed. She said the police do nothing to help.

25. The Tribunal asked the applicant which Police Station she had gone to. She replied that she went to [named] Police Station. When asked when she went to the Police Station, she replied that she could not remember but it was sometime in 2017.

26. The Tribunal asked the applicant when it was that the loan shark came looking for her. She replied about July 2017.

27. The Tribunal noted that the loan was taken out in March of 2017, that the friend took the money and disappeared, that no repayments were made, and that the applicant claims the loan shark came looking for her in July of 2017.

28. The Tribunal asked the applicant when her [business] was damaged. She replied in July 2017.

29. The Tribunal asked the applicant whether she had reported her friend to the Police. She replied that she had. Again asked whether she had a copy of a Police Report, she replied she did not. Asked when she reported the theft of money by her friend, she replied that she did it at the same time as she reported the damage to the [business].

30. The Tribunal expressed its concerns to the applicant about her case. It stated that her evidence about the loan, interest rate and lender was vague and that there was no evidence to corroborate either the fact of the loan, the company that she was a director of, the existence of her friend or disappearance of her friend; in fact, no photos of the [business] and no copies of the Loan Agreement or Police Reports. She had no evidence of any description to corroborate the claims she was making. The Tribunal invited the applicant to comment on that.

31. The applicant replied that she needs more time to stay in Australia to make money to support her family. She stated that her mother was sick and needed medications.

32. The Tribunal asked the applicant how much she owed the loan shark. She replied that she must repay [Amount 1] RM.

33. The Tribunal also added that it was concerned that she had actually suffered no harm, and neither had her family, that she had not taken the opportunity to seek advice from Financial Counsellors and that her evidence about attending the Police Station was vague and that her statement that the Police would not help her was inconsistent with Country Information that suggested that Police do investigate illegal money lenders, including those that seek to intimidate or harm borrowers.

34. The applicant replied that Malaysian Police don’t help and that she didn’t know she could seek protection in Australia.

35. The Tribunal did find the applicant’s evidence to be vague and uncertain. It has the strongest reservations about the genuineness of her claims as to owing money to a money-lender or being in debt to anyone. The Tribunal noted that the applicant had no corroborative evidence of any description in support of her claims. There was a long delay between arriving in Australia and making her protection claims. The Tribunal was not persuaded by her explanations. The applicant has not suffered any actual physical harm and neither has her family, despite her written claims. The applicant did not outline in evidence any particular threats made against her. The Tribunal does not accept her claims as to owing money to a money-lender or being in debt to anyone. The Tribunal finds that her claimed fears are not well-founded.

1. The Tribunal considered whether the applicant’s fear of harm, if genuinely held, is based upon reasons outlined in s5J(1) and in particular whether there is a particular social group as defined by s.5L of the Act that the applicant would belong to. The Tribunal has considered whether she would be perceived to be a member of a group such as ‘debtors’, ‘borrowers unable to make repayments’, ‘borrowers unable to make repayments threatened by debt collectors’, and other similar iterations.

2. The Tribunal acknowledges that if it accepted her claims, the applicant could be perceived to be a member of such a group. However, the ties that bind the potential group together is defined by a shared fear of persecution and therefore s.5L(d) is enlivened.

3. The circumstances of the case do not lend themselves to consideration under any other of the reasons in s5J(1) (i.e. race, religion, nationality or political opinion). As such the applicant cannot be considered a refugee and for this reason Australia does not owe the applicant protection under s.36(2)(a).

   Cumulative claims

4. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of her owing money to a loan shark, or any other reason if she returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if she returns to Malaysia. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act. 

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?

5. The Tribunal has considered the applicant’s claims under complementary protection.

6. The Tribunal accepts that the incidence of loan sharks in Malaysia is a problem and that, on occasion, unscrupulous loan sharks or gangs may use violence or threats of violence against debtors to collect debts. However, the Tribunal is not satisfied, based on the evidence before it, that this is what happened to the applicant before she left Malaysia or that there are substantial grounds for believing that there is a real risk of this happening to the applicant on her return.

7. The Tribunal notes from the country information referenced above that the applicant had means by which she could reduce the risk she faced including reporting the threats to police, seeking support from debt support services, including the government’s Credit Counselling and Debt Management Agency (AKPK), the non-government Malaysian Muslim Consumer’s Association (PPIM) and the NGO Malaysian Chinese Association. The Tribunal does not accept that the applicant had attempted any. Had the applicant pursued these options, the Tribunal finds that the applicant would face a level of risk that is less than a real risk. As such the Tribunal finds that the applicant does not face a real risk of significant harm arising from her debt.

8. The Tribunal notes that the country information indicates that the Malaysian authorities, including the police and judiciary, are generally considered to be professional and effective and are reasonably effective in combating illegal money-lenders and criminal gangs and there has been a great deal of coverage in Malaysian media regarding the various operations by law enforcement authorities to combat this. The Tribunal also notes that although there is corruption within the system, there is nothing in the independent information to indicate that the state is unable or unwilling to protect the applicant in her particular circumstances.

100.   In relation to the overall effectiveness of authorities in Malaysia, as noted earlier, the Tribunal has relied on country information showing that measures have been put in place to address corruption and police and indeed the government has been making a concerted effort since at least 2013 to combat corruption and money lenders and gangs and there is no evidence that the police have refused the applicant any assistance. The country information and media reports indicate the government has taken this issue seriously and has committed extensive resources to do so. This, in the Tribunal’s view, demonstrates that effective protection measures are available, namely that protection against serious or significant harm could be provided to the applicant by the Malaysian State and that the Malaysian State is willing and able to offer such protection.

101.   On the evidence before it, even if the Tribunal accepts that the applicant genuinely borrowed money from an illegal money-lender, the Tribunal is not satisfied that the applicant made a genuine complaint to the police about the money-lenders or any concerns that she had. The applicant had no record of the police report, indeed no corroborative evidence of any of her claims. The Tribunal does not accept, as found above, that any police report was actually made. The applicant has not attempted to genuinely avail herself of the protection measures available to her in her own country.

102.   In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to Malaysia now or in the reasonably foreseeable future.

103.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Malaysia now or in the reasonably foreseeable future.

Conclusion: Refugee Criterion

104.   Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Her fear of persecution is not well-founded as required by s.5J of the Act and therefore she is not a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

105.   Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that she will suffer significant harm.

Overall conclusion

106.   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).

107.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

108.   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

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

Michael Hawkins
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.

…