1812124 (Refugee)

1812124 (Refugee) [2024] AATA 4255 (4 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Yong Peng
CASE NUMBER:  1812124
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:John Kotsifas
DATE:4 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 July 2024 at 4:22pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – business debt after partner absconded – threats and scuffle with loan shark, and car vandalised – no harm before departure – ongoing threats communicated to family – membership of particular social group – Chinese Malaysian – discrimination – period as unlawful non-citizens – written claims prepared by agent and largely incorrect – remaining and new claims and evidence vague and inconsistent – delay in applying for protection visa – member of family unit wife – country information – illegal money lending a criminal offence – effective protection measures and financial services – low levels of discrimination – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), 5LA(2), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 Home Affairs on 4 April 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The first applicant[1] is a [Age]-year-old man who claims to be a citizen of Malaysia. He arrived in Australia [in] December 2015 holding an Electronic Travel Authority (Subclass 601) visa and has not departed since that date. He applied for his protection visa on 1 November 2017.
[1] Dept File – [Reference]
The second applicant is a [Age]-year-old woman who claims to be a citizen of Malaysia. She also arrived in Australia [in] December 2015 holding an Electronic Travel Authority (Subclass 601) visa and has not departed since that date. She also applied for her protection visa on 1 November 2017.
The first and second applicants were married in Malaysia on [Date] 2015 and the first applicant has one child from a previous marriage who is [Age] years of age who resides in Malaysia.
On 4 April 2018 the delegate refused to grant the applicant’s visa on the basis that the applicants are not persons to whom Australia has protection obligations.
The applicants applied to the Tribunal for a review of the delegate’s decision on 28 April 2018. The applicant provided the Tribunal with a copy of the delegate’s decision.[2]
[2] AAT Case: 1812124,
The applicants appeared before the Tribunal on 12 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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.
The most recent report from DFAT at time of hearing was the Country Information Report for Malaysia dated 29 June 2021.[3] The Tribunal has considered this report, together with the most recent DFAT report which was published on 24 June 2024[4] and other relevant country information referenced in this decision.
[3] DFAT Country Information Report Malaysia, 29 June 2021
[4] DFAT Country Information Report Malaysia, 24 June 2024
Country of nationality
The applicants travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained in her Departmental file. They have at all times stated that they are citizens of Malaysia and have been assessed on that basis by the Department. The Tribunal finds that the applicants are Malaysian citizens and has assessed their claims against Malaysia as the country of nationality and the receiving country.
The applicants’ personal background
The first applicant was born in Ipoh Perak, Malaysia. He and the second applicant are Chinese Malays and were married in Malaysia on [Date]. The first applicant was previously married however he divorced in 2010. He has one child from his previous marriage who resides in Malaysia and who is [Age] years of age. His first applicants mother resides in Malaysia however his father passed away in October 2023. He has one brother and one sister who reside in Malaysia. His son lives with his ex-wife.
The applicants Electronic Travel Authority (Subclass 601) visa which was granted to them expired on 6 March 2016 and they both remained unlawful in Australia until 1 November 2017 when their protection visa was lodged and associated bridging visas were granted to each of them.
After arriving in Australia, the first and second applicants lived and worked in [Town], Victoria between December 2015 and October 2017. The first applicant worked as [an occupation 1] on a [workplace 1] [doing job tasks]. He also worked on a number of other [workplace 1s] performing seasonal work. The first and second applicants now reside in [Suburb], Victoria.
Whilst in Malaysia the first applicant has worked as an experienced [occupation 2] from [Year] – 2015. He also worked as [an occupation 2] in [Country] for approximately 12 months. He currently works as a full-time [occupation 2] in a [workplace 2] and earns approximately $1,000 per week.
The first and second applicants’ protection visa was lodged on 1 November 2017. The second applicant has not made any separate claims of her own.
The Tribunal accepts the above matters to be true.
The applicants’ original claims for protection
Department records indicate that the applicants were not invited to attend a protection visa interview.
Threats from Loan sharks
The first applicants original claim lodged on 1 November 2017, claimed the following:
·He was defrauded by friend whom he was in business with.
·His friend took away all the stock and borrowed money from the bank and then disappeared.
·    The banks sold the debts to loan sharks who are gangsters who wanted to kill him because he had no money.
·    The loan sharks went after the applicant and threatened him with a knife.
·    The applicant’s father was also caught and threatened.
·    The applicant tried to run but the loan sharks can find him as the loan sharks are very powerful.
·    The applicant will be killed if he returns to Malaysia.
·    The applicant would not receive any protection in Malaysia because the Malaysian government never cares about Chinese people and discriminates against the Chinese.
·    The applicant cannot move to another part of Malaysia because the loan sharks can easily find him, and he can’t survive in Malaysia.
The Tribunal asked the first applicant whether he or the second applicant had prepared their own protection application and he indicated that his previous agent from Sydney had prepared the claims and that the original claims were not correct.
The applicants’ new claims
In a pre-hearing information form, which the applicants sent to the Tribunal on 31 October 2023, the following claims were made:
·11 years ago, I borrowed money from the bank to start a business to sell [products].
·At the beginning the business was good.
·My partner suggested that we should borrow more money to increase the scale of the business.
·We borrowed money from a loan shark whom my partner introduced me to and my partner went guarantor for the loan.
·After we received the money from the loan shark, my partner ran away with the money.
·As I could not pay back the money with interest, I had no choice but to leave the country and come to Australia.
·The money owed to the loan shark was about $500,000RM ($159,444.00AUD)[5] which included principal and interest. The RM100,000 had become RM500,000 with interest.
·The loan shark has come to my family in Malaysia many times threatening to kill me if I don’t pay back the money.
[5] Currency conversion as at 2 July 2024 – 1MYR = 0.318888AUD, 1AUD = 3.13590 MYR
The Tribunal asked the first applicant whether he or the second applicant had prepared the prehearing information/on form and he stated that his current lawyer prepared the prehearing information form for him and his wife.
The delegates’ decision
In relation to the applicants’ original claims, the delegate found that the applicants can access police protection and that there are effective protection measures available to the applicants in the receiving country from threats faced by any illegal money lenders and that the applicants do not not have a well-founded fear of persecution and that there was no real risk that they would suffer significant harm. The delegate also refused to grant the applicants a visa because there are no laws that directly discriminate against Chinese Malaysians and the constitution of Malaysia provides equal protection under the law and prohibits discrimination against citizens based on religion, race, descent, or place of birth.
Documents lodged prior to the hearing
The Tribunal received the following documents prior to the hearing:
·Applicants’ prehearing information form dated 31 October 2023.
·Written submissions from Yong Peng lawyers received 5 February 2024
·Letter from [Bank 1] dated 26 October 2022 addressed to the first applicant.
·Two letters from [Bank 2] dated 12 September 2023 and 20 December 2023 respectively, addressed to the first applicant advising that they had appointed a collection agency to collect an outstanding balance of RM31,367.24 ($10,007.28 AUD).[6]
[6] Ibid
·Malaysian Identity card for [Mr A] (the applicants business partner).
·Translated Facebook post of the Malaysian Minister of Agriculture and Agro Industries, Mr Ismail Sabri, calling on Malays to boycott Chinese businesses because Chinese Malays will exploit them.
·The death certificate of the first applicants father dated [October] 2023 and funeral notices.
·Translated newspaper article (undated) regarding the Malaysian police dealings with a Chinese businesswoman.
·Article titled “Racism towards the Chinese Minority in Malaysia: Political Islam and Institutional Barriers” – September 2022
·Various photographs which include a photo of a vehicle that has had paint thrown on it and a picture of a male, alleged to be the first applicant, with writing underneath stating that the person on the photograph owes money and if he does not pay, action will be taken to burn his house down.
·The same photograph alleged to be of the first applicant that appears to be taped to a pole with dollar signs written at the top of the photograph.
·Copy of undated phone messages from the first applicant’s sister [Ms B], stating that there were three Indians that came to her house looking for the first applicant to pay back money.
·Statement from the first applicants brother [Mr C], dated 8 November 2023 stating that in December 2014, he and the first applicant were out drinking at a bar and that they met some money lenders that indicated that they were looking for the first applicant and that they tried to take physical action against the first applicant but were prevented from doing so by the security guards.
·Statement from [Ms D] dated 6 November 2023 stating that she is the second applicant’s cousin and that in 2015 she saw pictures of the first applicant plastered all over the first applicants home stating that he owed money and threatening harassment.
·Extract from the Racial Discrimination in Malaysia Report 2015 published by the Centre for Social Communication (Komas).
Documents lodged after the hearing
On 13 February 2024, the applicant’s legal representative filed with the Tribunal a poster containing a photo alleged to be of the first applicant which was the same poster that had been provided to the Tribunal before the hearing but with an additional page which stated the following in English:
·“I [the applicant] have taken a loan from [Company], a total of 100k with interest of 10% per month starting 1 Feb 2014. I agree to pay a RM 10K per month…… total interest till 2023 18% x 116 month (rm 2,1088000 to pay off”.
Evidence from the hearing
The first applicant confirmed that the original claims lodged on 1 November 2017, were not correct and that he no longer relies on those claims.
The first applicant confirmed that the most recent claims for all applicants are those contained in the prehearing form that was submitted to the Tribunal on 31 October 2023.
The applicant’s legal representative confirmed that he prepared the claim contained in the prehearing information form from the applicants’ instructions and that the first applicant had signed the form.
The second applicant did not provide any evidence to the Tribunal.
The Tribunal asked the first applicant why he did not apply for the protection visa when he first arrived in Australia, and he stated that he and his wife knew nothing about the protection visa when they first came to Australia. The Tribunal asked the applicant why he remained unlawful between 6 March 2016 when his initial visa expired and 1 November 2017 when he lodged his protection application. The Tribunal observed that the applicants remained unlawful for 20 months. The first applicant’s response as to why there was such a delay in applying for their protection visa was that he did not have money to apply for another visa.
The first applicant told the Tribunal that 11 years ago, he was running [a product] business with his partner. He told the Tribunal that they needed to invest money into the business and that he and his partner needed to invest RM150,000 each. The first applicants stated that he did not have the money, so his business partner introduced him to a loan shark. The applicant told the Tribunal that as he did not have any security, his partner was the guarantor for the loan.
The first applicant confirmed that he borrowed RM100,000 from the loan shark in 2012 and another RM50,000 from his father. The Tribunal asked the applicant whether his partner also borrowed money from the loan shark and the applicant confirmed that he was the only one that borrowed money.
The Tribunal queried with the first applicant what the purpose of the guarantor was, and he indicated that the loan shark can turn to the guarantor to service the loan where he was unable to do so. The applicant told the Tribunal that his business partner ran away with the working capital of the business leaving the applicant with debts. He stated that he then became responsible for money that had been borrowed from the bank and loan shark.
The Tribunal asked the first applicant about money that had been borrowed from a bank. The applicant stated that he had also borrowed approximately RM300,000 from a bank. He stated that he had not paid the loan. The Tribunal asked the applicant when he borrowed the money from the bank, and he stated that it was in 2013. The Tribunal asked the applicant how much he still owed to the bank, and he indicated that he was not sure.
The Tribunal queried with the applicant his original claim that the bank had sold his bank debts to loan sharks. The applicant told the Tribunal that this was not correct and that his previous agent had made that claim.
The Tribunal queried with the applicant his evidence that he was the only one to borrow money from the loan shark and that his partner had not borrowed any money, because his most recent claim contained in his pre hearting information form, stated that they had both borrowed money from the loan shark. The first applicant confirmed that what was contained in his most recent claim in the prehearing information form was also not correct because he was the only one who borrowed money.
The Tribunal queried with the applicant his most recent claim contained in his prehearing form, which claimed that after he and his partner had received the money from the loan shark, his partner took the money and ran away with it. The Tribunal asked the applicant whether this claim was correct. The applicant stated that it was not correct.
The Tribunal also queried with the applicant his most recent claim that he owed the loan shark RM500,000 particularly given his evidence that he only borrowed RM100.000. The applicant stated that the RM100,000 became RM500,000 with interest to date.

The Tribunal asked the applicant whether he had ever been harmed by the loan shark and he stated that there had been some scuffles between them but that he had not been harmed in any other way.
The Tribunal asked the applicant why the loan sharks would be pursuing him rather than his partner who went guarantor for the loan. He stated that the loan sharks were pursuing him because he is the one that borrowed the money, and the guarantor has run away. The Tribunal asked the first applicant whether the loan shark was aware of where he and his business partner lived, and he stated that the loan shark knew where they both lived.
The Tribunal asked the applicant whether he had any evidence of the loan from the loan shark and he indicated that he had no evidence about the loan other than paint being splashed over his sister’s car and the posters being erected by the loan shark stating that he owed money.
The Tribunal asked the applicant how much of the loan had been repaid to the loan shark in the 3 years before he came to Australia given that the loan had been taken in 2012 and he left Malaysia in 2015. The applicant stated that in 2012 he was not making repayments every month but could not remember how much he had repaid to the loan shark. He stated that in 2013 he also made some repayments but not for every month but again, could not remember how much had been repaid. The Tribunal asked the applicant what happened every time he missed payments in this 3-year period. The applicant stated that the loan shark had made threats of harm and on one occasion there was a scuffle between them when the loan shark came to his place of work. The applicant stated that the loan shark also came to his home in 2015 and threatened his father with a knife.
The applicant stated that he had reported the matter to the police, but the police stated that it was a private matter and that they could not intervene unless some harm had occurred.
The applicant told the Tribunal that he was worried the loan shark may kill him if he returned to Malaysia. The Tribunal observed that the applicant had not experienced any harm between 2012 and 2015 and asked the applicant why he now feared harm if he returns to Malaysia. He stated that the loan shark had placed pictures of him around the house and thrown paint on his sisters’ car.
The Tribunal asked the applicant when he had received copies of the documents that had now been submitted to the Tribunal particularly, posters containing a photo of him having been placed around his home. He stated that he received copies of these posters from sister in 2016. He was asked why he had not provided the photographs to the department together with the application that was lodged in 2017. The applicant stated that his original lawyer had not asked for any information or other documents.
The Tribunal asked the applicant why he still fears harm after having been away from Malaysia for 9 years. He stated that he still owes approximately RM 2 million and the loan sharks would peruse him. The first applicant stated that this amount appears on a poster that had been placed near his home. The Tribunal noted that it did not have copies of any poster that stated he owes RM 2million.The Tribunal asked the applicant to explain how this amount was derived at because the most recent claim in his pre hearing information form that was lodged with the Tribunal on 31 October 2023 stated that the amount he owed the loan shark was RM500,000.The first applicant stated that it is the amount once interest is added to the original loan between 2012 and 2024. The Tribunal asked that the poster showing the RM2million amount be provided to the Tribunal post hearing.
The applicant confirmed that apart from the loan shark pursuing him for money and making threats to harm him if he did not pay, he had not experienced any harm or threatened with any harm for any other reason.
The applicant was asked if he could relocate to another part of Malaysia, and he stated that he did not know where he would go because no matter where he went, he would still worry about possible harm from the loan shark.
Witness Evidence
The Tribunal received evidence from the second applicant’s cousin [Ms E] who told the Tribunal that she lived close to the applicants home and that she had often visited their house. She stated that in 2015 she noticed that the entrance to the house was full of posters about the applicant’s debt to a loan shark. The Tribunal asked her if there had been anything further since 2015 and she stated that the first applicant’s family had been harassed by the loan shark. The Tribunal asked her when she had last become aware of any harassment, and she stated that enquiries had been made about the first applicants whereabouts. The Tribunal again asked her when this occurred, and she stated that she could not remember when this occurred.
The Tribunal also received evidence from the first applicant’s sister [Ms B] who told the Tribunal that she was aware that he owed a lot of money but did not know how much he owed or to whom he owed money to. The Tribunal asked her whether her family had every experienced any problems because of the loan. She stated that she lives in [Country] most of the time but was aware from her parents that people had asked her family about her brothers’ whereabouts many years ago. She stated that the people who visited the family home had threatened to beat up her brother if the loan was not repaid.
Discrimination against Chinese Malays
The first applicant was asked whether he had ever experienced any discrimination as a Chinese Malay. The first applicant stated that the Malays discriminate against the Chinese, and they do not like the Chinese. The Tribunal invited the applicant to describe the kind of discrimination he had experienced in Malaysia and still fears if he returned to his country. He told the Tribunal that on one occasion whilst driving his car, he passed a Malay village and needed to reverse his car and whilst doing so he accidently hit and broke a plant holder (pot). The residents of the house emerged and shouted at him and despite offering to pay for the broken plant holder, offensive remarks were made. The first applicant stated that the owner of the house told him that Chinese eat a lot of pork and that the Chinese smell. The Tribunal asked him when this occurred, and he stated it was in 2010.
The Tribunal asked the first applicant whether he had experienced any other forms of discrimination and he indicated that if Chinese Malays get caught speeding, they are asked by the police to pay cash and if not, they are taken to the police station. The first applicant also stated that ethnic Malays that commit offences such as theft are given warnings without arrest as opposed to Chinese Malays who are treated more harshly. He stated that the Malaysian police do not protect Chinese Malays and they do not welcome Chinese in Malaysia.
Country information
The Tribunal shared with the applicant’s country information which was relevant to the applicants claim that they fear harassment and harm from the money lender and discrimination against Chinese Malays if they return to Malaysia.
Loan sharks
Loans from unlicensed moneylenders, typically referred to as 'loan sharks', are common in Malaysia[7] and their activities have been a persistent and deep-rooted feature of Malaysian society for several decades.[8] Loan sharks are sometimes known as ahlong [ah long] in the Chinese Malaysian community, chettiar by the Indian Malaysian community, and ceti in Malay.[9] In October 2023, the Malaysian Deputy Home Minister was reported as acknowledging that “the issue of loan sharks is significant and challenging to address”.[10] Similar levels of loan shark lending are observed in neighbouring countries, with transnational syndicates operating to fund lenders and encourage similar behaviour and techniques in East Asia.[11]
[7] 'Largely pandemic-proof, loan sharks are swimming freely', Bernama (Malaysian National News Agency), 28 March 2023, 20230830133621; 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, sections 3.109-3.118, pp.40-42, 20210629092134
[8] Y. G. Guan, ‘The Long and Short of the "Along" Problem’, 19 April 2005, The Malaysian Bar Association website
[9] DFAT Country Information Report Malaysia, 29 June 2021 at 3.109 and for 2024 DFAT report at 3.149 -3.154
[10] New Strait Times, Illegal moneylenders rampant due to high demand from public - Deputy home minister [NSTTV], 11 October 2023, available at: .
[11] Y. G. Guan, ‘The Long and Short of the "Along" Problem’, 19 April 2005, The Malaysian Bar Association website, available at: K. Lang, et al, ‘Lending to the Unbanked: Relational Contracting with Loan Sharks’ Boston University website, March 2020, available at: >
Loans shark loans can result in harassment, threats, and violence towards the borrower, their family, or former family members like ex-partners. In this regard, DFAT reports 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.[12] DFAT also reports that sources claim that loan sharks engage gangsters to collect debts and harass and threaten borrowers and their family members, and that borrowers and their family members have been shot and had fingers cut off, but that due to the illegal/underground nature of loan shark activity, DFAT is not able to verify these claims.[13] There is significant societal shame associated with not being able to repay a loan shark. Sources report some people see suicide as the only honourable way out of being unable to repay a loan shark debt. DFAT is aware that those in debt to loan sharks have been counselled by intermediaries to place their family in a safe location and travel overseas to earn a foreign income to repay their debt faster, and to reduce risks and shame to their family.[14]
[12] DFAT Country Information Report Malaysia, 29 June 2021 at 3.112 and for 2024 DFAT report at 3.149 -3.154
[13] Ibid
[14] Ibid
Illegal money lending is an offence under the Moneylenders Act 1951 and punishment includes fines and imprisonment. DFAT reports that the Moneylenders Act 1951 (Moneylenders Act) 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.
DFAT assesses that victims of loan sharks and their family members face a moderate risk of discrimination due to familial and societal shame. DFAT assesses that victims of loan sharks also face a moderate risk of harassment and a low risk of violence from loan sharks and/or gangsters. State protection is available but not always effective.[15]
[15] DFAT Country Information Report Malaysia, 24 June 2024 at 3.149 -3.154
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.[16] The government in some provinces (Penang) has agreed to repay the loans of its own civil servants, minus interest, to the loan sharks.[17]
[16] AKPK, ‘Loan sharks and their illegal activities’, July 2013.
[17] See Free Malaysia Today news, 2017, “Penang to help civil servants caught in loan shark web’, 6 February, >
The Malaysian Chinese Association’s (MCA) Public Services and Complaints Department (PSCD) provides a service to victims to renegotiate the terms of loans with loan sharks on behalf of borrowers. DFAT reports that PSCD plays an intermediary role between loan sharks and Chinese Malaysian victims of loan sharks who are unable to repay their loans, and reportedly receives an average of 500 to 600 complaints regarding loan sharks each year.[18] PSCD’s ability to successfully assist debtors to negotiate with a loan sharks has been confirmed in media reports.[19] Malaysian media outlets also reported that, in 2020, the PSCD received 140 complaints from victims who said illegal money lenders went after their families to try and extort them for payment.[20] Sources report the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the government rate.
[18] DFAT 2021 Report, at [3.114]
[19] New Strait Times, Chef harassed by loan sharks after duped into providing personal details, 4 December 2018, available at: New Strait Times, Businessman cheated of more than RM3m by childhood friend, 21 May 2019, available at: DFAT 2021 Report, at [3.114].
Country information confirms that Malaysian law enforcement authorities have actively investigated and prosecuted illegal money lenders and loan shark gangs, and that this continues.[21] Major operations undertaken by the Royal Malaysian Police (RMP) to target, investigate and prosecute loan sharks are regularly reported.
Chinese Malaysians and discrimination
[21] The New Strait Times, Massive crackdown on Ah Long: 38 unlicensed moneylenders nabbed between June 5 and June 15, 16 June 2023,
The Tribunal also discussed with the applicants the DFAT Country Information regarding Chinese Malays generally[22]. The report indicates the following:
That The Malaysian Department of Statistics estimated there were 6.7 million Chinese Malaysians in Malaysia in 2020, making up around 20 per cent of the population. Chinese Malaysians are one of the largest overseas Chinese communities in the world and are Malaysia’s second largest ethnic group. Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia. Chinese Malaysians are concentrated in the west coast states of peninsular Malaysia, living in large urban centres, including within Kuala Lumpur and Penang, and the populous states of Johor, Perak and Selangor, where they comprise approximately 30 per cent of the population. There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians (though, by implication, as the second largest ethnic group, they are the principal group affected by the constitutional preference for Bumiputera). Chinese Malaysians freely participate in political life, including as ministers (one in the current cabinet, down from four in the PH government) and in opposition parties, but ethnic Chinese politicians have occasionally faced public criticism for interfering with ‘Malay rights. Chinese Malaysians are well represented in the private sector and many small and medium enterprises and large corporations are Chinese Malaysian-owned.
[22] DFAT Country Information Report Malaysia, 29 June 2021, at 3.8 -3.12
The Tribunal also raised aspects of the report that indicated that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector.
The Tribunal has also had regard to the DFAT report regarding police protection and whilst acknowledging that the report highlights concern about police corruption, the police are generally regarded as a professional and effective police force[23]. According to DFAT:
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.
[23] DFAT Country Information Report Malaysia, 29 June 2021, at 5.5
The applicant stated that he believes there is still discrimination against Chinese Malays despite the report. The applicant stated that the Chinese Malays are abused if they cannot speak Malay fluently and are abused if they wear revealing clothing like shorts. With respect to police protection against loan sharks, the first applicant stated that he still believes that police protection is not available all the time because the police take the view that he has caused his own problem by borrowing from illegal money lenders.
Findings and reasons
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of Malaysia, there is a real risk they will suffer significant harm.
In assessing the applicants’ credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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 him 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 them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[24]
[24] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness, and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is taken into account in these findings.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.[25]
[25] Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994)
Fear of harm from loan sharks

The Tribunal has been provided with a copy of letters that the first applicant has received from [Bank 2] dated 12 September 2023 and 20 December 2023, advising that they had appointed a collection agency to collect an outstanding balance of RM31,367.24 from the first applicant. The Tribunal accepts that the applicant owes money to this bank for the amount specified in the correspondence.
The Tribunal questioned the first applicant on key issues relating to his claim to fear harm from an illegal money lender, including the amount of the loan, whether he and his business partner had both borrowed monies, the purpose for which the money was borrowed, and his dealings with the money lender. For reasons referred to in the Tribunals decision, the Tribunal found his evidence in this regard to have been generally vague, inconsistent and lacking in the detail expected from a person in his claimed circumstances.
The Tribunal also raised with the first applicant concerns it had regarding the 20-month delay in lodging the protection claim after the applicants first arrived in Australia including numerous inconsistencies between the applicants’ original claims in 2017 and their new claims as set out in the prehearing information form that was received by the Tribunal on 31 October 2023.
The Tribunal accepts the evidence of the first applicant that his original claims in 2017 were drafted by his previous agents and the claims are not factually correct. The first applicant confirmed with the Tribunal that he no longer relies on his original claims and his actual claims are those referred to in the prehearing information form that was filed with the Tribunal on 31 October 2023. The applicant’s legal representative confirmed in written submissions filed with the Tribunal that the information contained in the applicants’ original claims are not correct.
The applicant’s representative told the Tribunal during the hearing that supporting material that the applicants now relied on were not provided to the department by the applicant’s original representative when the claim was lodged. He told the Tribunal that the applicants were not aware of the particulars of the claims that were originally lodged as the agent had not discussed these with the applicants. The Tribunal finds that the original claims are not true and that the applicants no longer rely on those claims.
During the hearing, the Tribunal also expressed its concerns to the first applicant that the amount he claimed was owing to the loan shark was constantly changing. The Tribunal noted that the applicant’s evidence before the Tribunal was that he had borrowed RM100,000 from an illegal money lender in 2012 and that in his most recent claim, he stated that the amount owing was RM500,000. The first applicant told the Tribunal that the money owing to the loan shark was RM500,000 and that this included principal and interest. After further questioning by the Tribunal, the first applicant then told the Tribunal that the amount owing was actually RM2million.
The applicant’s representative also told the Tribunal that he had not been instructed that the applicants outstanding loan amount was RM2 million and that he had been instructed that the total amount owed was RM500,000.
Post hearing, the Tribunal received a copy of a similar poster to the ones that had been filed with the Tribunal before the hearing, however the new poster included an additional page written in English that stated:
“I [the applicant] have taken a loan from [Company], a total of 100k with interest of 10% per month starting 1 Feb 2014. I agree to pay a RM 10K per month…… total interest till 2023 18% x 116 month (rm 2,1088000 to pay off”.
The Tribunal notes that this poster states that the applicant borrowed RM100,000 on 1 February 2014, however the applicant evidence to the Tribunal was that he had borrowed the money in 2012 not 2014. The inconsistent dates are material to the applicants claims and the Tribunal does not accept this document to be true and finds that it is a bogus document that has been produced in an attempt to provide corroborative evidence in order to assist the applicant with his claims.
The Tribunal has raised with the first applicant other aspects of his evidence which are inconsistent with his most recent claims. His most recent claims stated that ‘my partner and I borrowed money from the loan shark”, however the first applicants’ evidence during the hearing was that he alone borrowed money from the loan shark and that his business partner did not borrow money. Again, the inconsistency between the first applicants’ evidence to the Tribunal and the most recent claim regarding who had actually taken the loan is another reason why the Tribunal has concerns about the first applicants credibility.
When asked by the Tribunal how much of his loan had been repaid to the loan shark, the applicant was not able to recall what was repaid in 2012 or in 2013. Given the size of the loan and the fact that the first applicant claims to have been harassed and threatened by the loan shark, it would be expected that a person faced with the applicants’ circumstances would have some idea of how much of the original loan had been repaid.
When questioned about any harm that the applicants endured in Malaysia by the loan shark, he stated that there had been a scuffle between him and the loan shark on one occasion but otherwise had not been physically harmed in any way.
For the above reasons, having considered all the evidence before it, including all documents filed with the Tribunal, witness evidence and written submissions, the Tribunal finds that the first applicant’s claim to have borrowed money from an illegal money lender in Malaysia not to be credible.
The Tribunal finds there is not a real chance, that the applicants would suffer harm of any kind in Malaysia from money lenders or loan sharks or for any related reason, now or in the reasonably foreseeable future or as a necessary and foreseeable consequence of their removal to Malaysia. This is because the Tribunal does not accept that the applicants borrowed money or that the loan shark or anyone else is seeking to harm the applicants.
Even if the Tribunal were to accept, which it does not, that there is a real chance that the applicants will be subjected to serious harm by the loan shark upon being removed, there is no indication that assistance from the police would be withheld from the applicants if incidents or threats of harm were reported to the police. The Tribunal acknowledges that while the DFAT report identifies some problems with corruption in the Malaysian police force, the Tribunal accepts that the police and the courts would be willing and able to offer protection to the applicants and could provide such protection if they were to return to Malaysia, by the relevant state through its courts or by the police.
Moreover, there is nothing to suggest that the applicants could not access such protection which is clearly durable, and which consists of appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2). Accordingly, the Tribunal finds that effective protection measures, as set out in s 5LA, would be available to the applicants if they returned to Malaysia, so that they do not have a well-founded fear of prosecution as required by s 5J(2).
Discrimination based on applicants Chinese ethnicity
The Tribunal finds the first applicant raised no matters at the hearing about any discrimination that he has suffered other than to point out that he was racially abused by someone in 2010 and that he believes the Malaysian police do not support Chinese Malaysians and treat them differently to ethnic Malays. The first applicant provided no evidence to indicate or suggest he has any concerns that in the past he has faced or would in the future face a real chance of suffering treatment amounting to persecution involving serious harm due to his Chinese Malay ethnicity (race) should he return to Malaysia. This includes in relation to his ability to access services, education, and employment opportunities.
Accordingly, and having regard to the applicant’s evidence and country information, the Tribunal does not accept that the applicants face a real chance of suffering persecution involving serious harm because of their Chinese ethnicity or for one or more of the five reasons mentioned in s.5J(1)(a) of the Act if they returned to Malaysia.
Complementary protection
In considering whether the applicants meet the complementary protection criteria in s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.
In this case, the Tribunal accepts that the applicant’s receiving country for these purposes is Malaysia.
For the reasons set out above, the Tribunal has found there is no real chance of the applicants suffering serious harm if returned to Malaysia. In Minister for Immigration and Citizenship v SZQRB [2013] FCAFC, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J. It follows that the Tribunal does not accept that there is a real risk that the applicants would face significant harm if returned to Malaysia for any of the above reasons, whether taken individually or cumulatively.
The Tribunal is not satisfied that the applicants meet the requirements of r.36(2)(aa)
Family Unit Member Assessment
There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants a protection visa.
John Kotsifas
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.
…

v MIEA (1985) 6 FCR 155 at 169–70.

34 ALO 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

[2024] AATA 4255

4 July 2024

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