1816957 (Refugee)

1816957 (Refugee) [2022] AATA 2320 (9 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1816957

COUNTRY OF REFERENCE: Malaysia
MEMBER:Peter Vlahos
DATE:9 May 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
This Statement was made on 9^th May 2022 at 7.45AM

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – physical assault – gambling debts – state protection – work experience and qualifications in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Another (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 14 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 29 January 2018. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant appeared before the Tribunal on 5 May 2022 to give evidence and present arguments. The applicant provided no names of witnesses he wished the Tribunal to question, and no witness statements were submitted.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of origin, identity, and assessment of claims
Based on copies of the applicant’s passport which was provided to the Department of Home Affairs (‘the Department’), the applicant’s oral and written evidence (on the Department’s file), and the absence of any evidence to the contrary, the Tribunal accepts and finds that the applicant is a national of Malaysia and has assessed his claims against that country in relation to claims made pursuant to ss.36(2)(a) and 36(2)(aa) of the Act. Therefore, on these reasons, the Tribunal further accepts the applicant’s identity as is claimed.
Background
(a)Applicant’s visa/migration history
The applicant arrived in Australia from Malaysia, as the holder of UD-601 Visitor visa [in] November 2017and on 29 January 2018 he applied for a Protection visa (Class XA) which was refused by the Department but was granted a Bridging visa.
(b)Applicant’s Personal background
The applicant was born on [date], Malaysia and is [age]-years-of-age. He has family in Malaysia which consists of his mother (his father is deceased) and [specified family members] of various ages. The applicant told the Tribunal that his education levels achieved in Malaysia was up to [specified] Grade. He has no other formal qualifications except that he has gained experience while in Australia in [occupation 1], he has attained a Victorian Driver’s Licence and expressed the desire to achieve certification and experience [in occupation 2]. The Tribunal noted that the applicant provided no further information of his personal circumstances.
The Applicant’s claims for protection
The applicant’s claims for Protection can be summarised as follows:[1]
§The Applicant borrowed money from an unlicensed moneylender
§The applicant felt embarrassed because he was being followed everywhere, and
§The applicant claims to have been beaten up. …
[1] see, Department of Home Affairs File [number]
The applicant was asked by the Tribunal if he had any further claims to make or to provide further detail to the ones, he had provided the Department and were now before the Tribunal for review, this request was communicated to him by the interpreter who was present. The applicant’s response was to tell the Tribunal that he had no further claims to make or to add to the existing ones before the Tribunal.
EVIDENCE BEFORE THE TRIBUNAL
The applicant said that he had negotiated and committed himself (in Malaysia) to a loan for the amount of RM[amount] from a local illegal moneylender.
The applicant said that there were in existence documents which ‘proved’ the existence of this loan but had been ‘stolen’ together with the applicant’s passport. The applicant submitted to the Tribunal a ‘copy’ of ‘NOTICE TO VICTIM’ issued to him by the Victoria Police recording that the applicant was a ‘victim of a crime’. The report to Police was made [in] March 2020. It was noted by the Tribunal, that the report did not identify ‘stolen property’ or any ‘damage to property’.[2]
[2] see, AAT File – Applicant’s documents provided to the Tribunal at the Hearing.
The applicant said that he took out the loan in order to settle his ‘debts’ which he had incurred because of his “gambling problem.” The applicant explained that for a considerable period of time, he had been addicted to gambling and had squandered a lot of money for no real reason or benefit to him or his family.
The Tribunal asked the applicant – whether he had paid back any money to the illegal moneylender? The applicant said he ‘was not sure how much money he had paid back’ to the moneylender.
The Tribunal asked the applicant – how did he make payments to the moneylender? The applicant said that he would provide money to his ‘older brother who would provide that money’ to the moneylender.
The Tribunal asked the applicant – when did the loan agreement with the moneylender begin? The applicant said that it ‘commenced in 2015…’
The Tribunal asked the applicant again – how much money have you (the applicant) repaid the moneylender? The applicant said that he ‘could not remember…’
The Tribunal asked the applicant – did you have any documents which prove the existence of this debt? The applicant said that he ‘did not bring any documents because they were stolen (together with his Malaysian passport) in [Town 1] in 2019.
The Tribunal asked the applicant – had he made an application with the Malaysian Consulate in Melbourne or with the Malaysian High Commission in Canberra for a new passport to be issued to him? The applicant said that he had made an application to Canberra and was told that he would be provided with ‘a temporary passport if he was to return to Malaysia…’
The Tribunal asked the applicant – had the moneylender made threats concerning the unpaid moneys owing to him? The applicant said that the ‘last threat’ had occurred sometime in 2017. Since that time, the applicant has had ‘no contact’ and has allowed for his elder brother to deal with the moneylender. However, no threats have been made to the family.
The applicant was asked – had he reported these threats to the local police? The applicant said that he nor the family had reported the moneylender’s threats to the police. The applicant justified his not wanting the police to be involved because if they were involved the moneylender’s intimidation would increase.
The Tribunal asked the applicant – for what purpose did the applicant ‘borrow the [amount] from the moneylender?’ The applicant said it was for ‘his personal problems’ due to his ‘gambling addiction’ which has now ceased.
The Tribunal asked the applicant – does the moneylender have a name, is he a individual, group of individuals or a company? The applicant said that he was introduced to the moneylender from ‘other people’ but the ‘moneylender is not a company.’
The Tribunal asked the applicant – the debt to the moneylender happened in 2015 but you left Malaysia in 2017 – why? The applicant said that in that period he ‘did try to find a solution by repaying the money’ but it was ‘difficult’. The applicant also said that he had ‘other loans’ with the central bank and it was difficult. The applicant explained it was very difficult on ‘[occupation 3]’ wage to meet financial commitments.
According to the applicant, Australia was the only alternative open to him to gain enough work experience and also to work an earn money to help his family in Malaysia. The applicant told the Tribunal since 2017 when he arrived in Australia he has been working. First, [at a business 1], then at [Town 2] [in occupation 4] then in September 2020, [doing similar work] in [City 1] and further work in [Town 1]. Currently the applicant is working in [Town 3] as [an occupation 1]. He told the Tribunal that he wanted to gain his ‘certification’ so that he can [undertake occupation 2].
The Tribunal asked the applicant – the applicant had a history of continuous employment while in Australia, did he transfer any money to Malaysia (in this time) to settle in part or whole his debt to the moneylender? The applicant said ‘no’. The reason for this (according to the applicant) was because he ‘did not know how much interest had been charged on the original loan.’
The Tribunal asked the applicant to explain how the moneylender followed him when he was in Malaysia? The applicant said that he was continuously followed and that he ‘knew how to defend’ himself if he was ‘attacked’ but did not want the trouble; so, he chose the ‘second option’ to leave Malaysia for Australia.
The Tribunal asked the applicant – why the applicant had not asked the police intervene? The applicant said this was not option for him or his family because ‘the police are corrupt…’
The Tribunal asked the applicant – can the applicant return to Malaysia? The applicant said that he preferred to remain in Australia where he could ‘make more money’ and gain his ‘certification’ and together with his experience would be able to find a better job in Malaysia when he returns.
The Tribunal asked the applicant again – had any money been transferred to the moneylender in part satisfaction of the existing debt as claimed while he was in Australia working? The applicant said that money was transferred but it ‘depended on the wages’ he had at the time, and that that money was provided to ‘friends with bank accounts’ (because he did not have one) who transferred the money to Malaysia to his older brother who paid the moneylender.
The Tribunal asked the applicant – did the applicant have any records of these money transfers? The applicant said that he had no such records.
The applicant concluded his remarks to the Tribunal stating he wished to remain in Australia to gain work experience and further certificates which would support him and help him to get a better job in Malaysia when he returns which will enable him to help himself and his family.
The Tribunal provided the applicant with a brief explanation of the Australia’s obligations in Protection as stated and defined in the Act.
COUNTRY INFORMATION – MALAYSIA – MONEYLENDERS – AH LONG – POLICE -CORRUPTION AND THE RULE OF LAW
The problem of illegal moneylenders in Malaysia
Illegal money lending or loan sharking, as it is commonly known or ‘Ah Long’ in Malaysia, is an offence under section 5(2) of the Moneylenders Act 1951. If prosecuted a fine of not less than RM20, 000 and not exceeding RM100, 000 or imprisonment of up to five years can be imposed.[3]
[3] ‘KL Consumer Safety Association – No need to fear the loan sharks’ Bernama (Malaysian National News),
Agency, 17 February 2015 <CXBD6A0DE1580>
In October 2013, The Sundaily reported that figures supplied by the Chinese Association (MCA) Head of Public Services and Complaints Department, Datuk Seri Michael Chong, showed that “The loan shark menace is worsening with Malaysians expected to be in debt by more than RM40 million this year – compared to last year’s RM39.5 million.” Loan sharks reportedly lent RM34.4 million to financially challenged Malaysians up to September 2013, and at the time of this article, “426 people were in debt to loan sharks, with each person owing an average RM80, 751…” According to Chong, “people continued to borrow from loan sharks despite continuous reminders by the authorities of the repercussions of doing so.” He also said that “…of the 426 cases, 80% were by gamblers while the rest were drug abusers, failed businessmen and those living beyond their means.” Seven per cent or 32 persons were reported to be repeat borrowers, and Chong said that “…most of the repeat borrowers were involved in drug abuse and that their families were the ones who ended up being harassed by loan sharks.” Chong also said that the “…police were powerless against loan sharks as the transactions were on a “…willing seller willing buyer” basis. Police, however, “…can take action if loan sharks resort to violence or extortion to recover their money.”[4]
[4] ‘Loan shark menace worsens in Malaysia’, The Sundaily, 2 October 2013 <CX320169>
Various media articles indicate that the practice of illegal money lending is widespread in Malaysia and that police operations targeting the Ah Long are not uncommon. According to a Daily Express report on 22 April 2014, “…police are tracking down a number of unlicensed money lending syndicates…through contact numbers printed in their advertisements, including flyers, posters, banners and business cards…” The article also notes that one of the most significant barriers to prosecuting Ah Long syndicate members is the “…lack of cooperation from the public, especially those who had fallen victims to the syndicate.” The problem stems from threats by syndicate members. Police in Perak made 88 arrests during an eight-month period and continue to combat Ah Long syndicates by removing marketing materials, such as advertisements, from the public space.[5]
Police action against the Ah Long included a police operation in Kuching, conducted from 23 May 2014 to 23 June 2014, which reportedly resulted in 1,051 illegal advertisements and posters for illegal loans being removed in 135 police raids conducted.[6] In April 2014, the police and local authorities in Penang “…pulled down 238 banners and streamers promoting illegal moneylending…” [7] The Malaysian Communications and Multimedia Commission also disconnected the telephone lines of contacts printed on materials.[8] Between March and May 2015 police in Kota Kinabalu seized between 2,700 and 6,700 “…posters, banners and name cards of illegal money lenders.”[9] It was also reported that “…City Police chief ACP M. Chandra said the police had carried out numerous operations under Ops Vulture.”[10]
[5] ‘Police cooperate with Council to wipe out loan sharks’, Daily Express, 28 December 2013<CX320164>
[6] ‘57% drop in commercial crime losses, say cops’, The Star Online, 2 July 2014<CX1B9ECAB11425>
[7] ‘Crackdown on Ah Long’, The Star Online, 25 April 2014<CX1B9ECAB11426>
[8] Ibid
[9] ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May 2015<CXBD6A0DE13537>
[10] Ibid
Numerous media reports were sourced by the Tribunal regarding the effectiveness of police investigations and arrests related to Ah Long syndicate crimes. Police in Sabah reported that “…16 men believed to be Ah Long members were arrested in 2013 compared to 12 arrested in 2012” during Operation Vulture.[11] In 2013, Malacca police investigated 29 Ah Long related cases and arrested 20 people. Thirteen cases involved preventative measures with cases being “…investigated under section 5(2) of the Money Lenders Act 1951 for operating without a licence.”[12] In addition, “…four more cases and seven individuals were investigated under section 29AA of the same Act for putting up posters.”[13]The Malaysian Digest reported on 16 October 2014 that “…police rescued a 21 year old after he was abducted by three men, believed to be loan sharks…One day after the incident; the police apprehended a 24 year old man and a 29 year old woman…believed to be involved in the incident.”[14]
[11] ‘Sabah Police nine Ah Long cases in 2013’, The Malaysian Times, 3 January 2014<CX1B9ECAB11427>
[12] ‘Malacca police investigates29 Ah long cases since January’, Malaysian Edition, 28 December
2013<CXC28129414704>
[13] Ibid
[14] ‘Police Free Man Abducted By loan Sharks’, Malaysian Digest, 16 October 2014
Law enforcement in Malaysia
In its 2014 country report, the Australian Department of Foreign Affairs and Trade (DFAT) provided a brief overview of the state of law enforcement in Malaysia:
Law enforcement entities operate at both federal and state level. The Royal Malaysian Police (RMP) reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide. The federal Department of Islamic Development (JAKIM) enforces sharia law and has jurisdiction over Muslims in Kuala Lumpur and the two other federal territories. The RMP and JAKIM operate independently and only occasionally work together. The Malaysian army is not heavily engaged in domestic activities apart from some anti-terrorist campaigns and is not relevant to State protection under this report.

The same report also draws the reader’s attention to the following:
- Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity, or engagement in corruption. RMP officers receive limited training, particularly on human rights.
- Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern.
- The RMP is 80-85 percent ethnic Malay. In 201 4, the Government commenced a campaign to increase the number of women, ethnic Chinese and Indians in the RMP.
- There is no legal requirement for the state to investigate deaths in RMP custody. Investigations generally occurred at the request of the Attorney General but were often instigated as a result of public interest.
- The National Human Rights Commission (Suhakam) also receives complaints against RMP and has conducted investigations into police behaviour. However, the Government is not required to formally consider Suhakam’s reports or recommendations.

Freedom House reported in 2015 that:[15]
Government and law enforcement bodies have suffered a series of corruption scandals in recent years. The Malaysian Anti-Corruption Commission (MACC) has itself come under scrutiny for its interrogation practices, as two suspects have died after falling from MACC office buildings since 2009.
[15] see article, ‘freedom in the World 2015:Malaysia’, Freedom House, 5 May 2015<NG5A1E6BC218>
Government favouritism and blurred distinctions between public and private enterprises create conditions conducive to corruption. Officials regularly move back and forth between the private and public sectors, fostering many opportunities for collusion and graft. Political parties are allowed to own or have financial holdings in corporate enterprises. The Whistleblower Protection Act took effect in 2010 but has not significantly improved accountability.
According to Transparency International’s corruption index for 2014, Malaysia’s situation has improved and, out of a total of 175 countries, moved up three spots from 53 to 50.[16] However, survey results also showed “…that the perception of the government’s anticorruption efforts has deteriorated, with 38% of Malaysians saying they are ineffective.”[17]
[16] ‘Corruption Perceptions Index 2014’, Transparency International, 5 December 2014.
[17] ‘Political parties perceived to be most corrupt, says survey’, Malaysian Insider, 14 May 2014.
Regarding malpractice in Malaysia’s security forces, DFAT in its country report – Malaysia, dated 19 July 2016 reports that:[18]
[18] Department of Foreign Affairs and Trade (DFAT) Country Report – Malaysia, 19 July 2016, at pp.25-26
Police Integrity and Accountability
5.6 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion. ….
5.8 The Inspector General of Police announced the establishment of an Integrity and Standard Compliance Department in July 2014 to enhance police integrity and image, however as it sits within the RMP organisational structure, it is not an independent body. Suhakam also receives complaints against the RMP and has conducted investigations into police behaviour. However, the Government is not required to formally consider Suhakam’s reports or recommendations. In January 2016, Human Rights Watch reported that the government has not established an independent police complaints and misconduct commission, despite lobbying from the Malaysian Bar Council and civil society groups.
Judiciary
5.11 The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level and subordinate courts. Sharia courts operate at state level with jurisdiction over Muslims. The majority of Malaysia’s criminal, civil and family law matters are heard in the subordinate civil courts. Judicial appointments are made by a Judicial Appointments Commission; however, the Prime Minister has final approval. The majority of the members of the Federal Court are Malay Muslims.
Malaysia’s highest courts are somewhat influenced by political or religious affiliation. For example, credible local and international human rights organisations considered the prosecution of Anwar Ibrahim to be politically motivated (see ‘Political Opposition Members’, above). In July 2015, the government removed the Attorney General, Abdul Gani, who had been leading an investigation into 1MDB.
5.12 Credible sources advised that defendants generally had adequate time to prepare a defence, particularly where they had financial means to engage private counsel. Government legal aid resources were limited and generally of poor quality. Strict rules of evidence apply in court. However, state-held evidence was not consistently made available to the defence. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods; the International Center for Prison Studies reported that in mid-2014 24.8 per cent of the total prison population were pre-trial detainees.
5.13 The ability for individuals to seek legal redress through Malaysian courts is mixed. Judges receive relatively low salaries, limited training, and appointments were often made directly from university. Selective prosecution and arbitrary verdicts occurred, particularly in instances involving high-profile opposition politicians and human rights defenders. However, the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.
FINDINGS AND REASONS FOR DECISION
The issue of credibility
The Tribunal is aware of the importance of adopting a reasonable approach in finding of ‘credibility’. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [194]:
…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…
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…” (see, the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph [196].) However, the Handbook states at (see, paragraph [204]) the following:
…The benefit of 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…
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true: (see, MIMA v Rajalingam (1999) 93 FCR 220.
However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and see, Kopalapillai v MIMA (1998) 86 FCR 547).
Consideration of the Applicant’s claims
The Tribunal accepts that the applicant while in Malaysia was experiencing financial difficulties caused by his gambling addiction and that he had demands placed upon him to support his family.
The Tribunal also accepts that based on the available country information persons in Malaysia do reach agreements for personal loans in the way that has been suggested by the applicant in his evidence before the Tribunal. However, the applicant’s version of events as stated to the Tribunal raises certain issues of credibility.
First, the applicant told the Tribunal that his problems with the illegal moneylender began while in Malaysia and because of his addiction to gambling. He told the Tribunal that his debts had accumulated to a point where he decided to seek a loan from an illegal moneylender to settle his debts. The applicant told the Tribunal he owed a lot of money, but he did not specify any actual amount or provide proof of his debts. He also said that the amount he borrowed from the moneylender was approximately RM[amount].
The applicant also said that there were documents that evidenced the debt to the illegal moneylender, but he lost those documents when he was fell a victim of crime while in the regional town of [Town 1], Victoria. The applicant told the Tribunal that he had no other records of the debt.
The applicant told the Tribunal that he had made ‘some repayments’ to the moneylender but could not tell the Tribunal – exactly – how much he had repaid. Further, the applicant was unable to tell the Tribunal when asked – what interest was agreed to with the moneylender for the amount borrowed. The applicant later told the Tribunal that while he has been in Australia, he had through other people’s bank accounts transferred to his elder brother in Malaysia money to be forwarded to the moneylender in part-payment of the loan which was still outstanding since the applicant left Malaysia in 2017. When the Tribunal asked the applicant for records of these transfers of money to Malaysia, the applicant told the Tribunal that no records were available. When asked by the Tribunal could he provide an actual indication of what money had been transferred to Malaysia for the debt owed to the moneylender, the applicant told the Tribunal that – he could not actually say, except that the amounts transferred at a given point of time depended on what were the applicant’s wages for that period of time. The Tribunal was provided with very little evidence about the debt’s existence, to whom it was owed, what was the interest charged or outstanding and though some payments were made to the moneylender, the Tribunal was not provided with a clear indication. Instead, the applicant either could not remember or was not sure. The only conclusion the Tribunal can arrive at based on the available evidence before it is that the applicant may have had debts owing but his debts were not to an illegal moneylender as he claimed. The applicant evidence lacked substance and credibility. For example, he could not provide a description of the moneylender he dealt with, he could not provide an idea of the amount that was still outstanding as he claimed, except to say that he had transferred money through other people’s accounts to Malaysia but could not tell or provide the Tribunal with evidence of when this money was despatched, or how much was sent. Therefore, on the evidence available, the Tribunal finds and concludes, that though the applicant may be in financial difficulties and may have money owing, his debt as he claimed was not to an illegal moneylender and therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Act.
Second, the applicant claimed that he was followed everywhere while in Malaysia by the illegal moneylender and had been beaten because he was not able to settle the debt that he had incurred with him. If that was the case, which the Tribunal doubts, it is difficult to understand how a person who was ‘followed everywhere’ could allude the moneylender and come to Australia. Surely, if he was followed everywhere, the applicant would have been prevented from leaving Malaysia at KL International Airport. The applicant was not stopped but left uninhibited for Australia. As for the applicant being beaten, again the applicant provides no specific timelines for this incident or a proper description of what actually happened. Therefore, the Tribunal does not accept this explanation of events concerning the applicant’s movements inside Malaysia nor the claim that he had been assaulted by the moneylender for not making payment of his debt he owed him.
Third, the applicant claimed that both he and his family had been threatened by the moneylender. The Tribunal asked the applicant whether following this harassment and intimidation – did the applicant and his family report this to the local branch of the Malaysian Royal Police. The Tribunal was told that no report was made. The applicant provided at first, the reason that a report was not made to the police was so that the moneylender is not aggravated in doing something further harmful to the applicant and his family. Then, later in the proceedings, the applicant was asked a second time by the Tribunal – why he chose not to report his claimed issue with the moneylender to the police. In response, the applicant said that the reason for not reporting the moneylender to the police was because all police in Malaysia are ‘corrupt.’ The Tribunal does not find this explanation of the events as submitted by the applicant as credible. The applicant provided no evidence to support his claim that the intervention of the police would solve nothing but aggravate the moneylender in doing further acts of intimidation against him and his family members as he claimed. In simple terms, the police were not informed or engaged to seek their assistance if the applicant required their assistance. Then, the applicant (when asked again by the Tribunal) dismisses the possible effect of police intervention (and their quality of protection to be provided) as non-existent or ineffective because the police in Malaysia were corrupt. The country information available and referenced by the Tribunal reports that the authorities’ actions against illegal moneylenders in Malaysia have been more proactive in recent years despite some prevalent corruption in police ranks. The Tribunal does not accept that , as the applicant claimed, the police in Malaysia are not willing or were (in a large degree) incapable of protecting the applicant and his family against the intimidation and threats of the illegal moneylender. Simply, the applicant on his own evidence did not engage the police (if he was actually threatened) to discover their intentions towards him or his family. The Tribunal therefore considers that effective protection measures as defined in s. 5LA of the Act are available in Malaysia to the applicant and his family members if required and that available protection will not (in the Tribunal’s opinion) be withheld for whatever reason or reasons to the applicant or his family if requested and therefore the applicant does not have a well-founded fear of persecution in accordance with s.5J(2) of the Act.
Finally, for the reasons provided by the Tribunal in paragraphs [54] to [59] above, the Tribunal does not accept that the applicant borrowed money from an illegal moneylender as he claimed, nor that there is a real chance that he will face persecution involving serious harm because he has failed to repay money he has borrowed from the illegal moneylender if he returns to Malaysia now or in reasonably foreseeable future. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s. 5J of the Act.
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).
The Tribunal having concluded that the applicant does not meet the refugee criterion of s. 36(2)(a), the Tribunal has also considered the alternative criterion of complementary protection in s. 36(2)(aa). For the reasons given by the Tribunal in paragraphs [54] to [59] above, the Tribunal though accepts the applicant may have financial issues and ongoing financial problems these were not caused by his borrowing RM[amount] from a illegal moneylender and was now incapable or repaying, as he claimed, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, there is a real risk that he (or his family) will suffer significant harm because he has failed to repay money he has borrowed from an illegal moneylender, nor that protection will be denied to him or to his family members by the Malaysian police, if he or they are threatened by anyone. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
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.
…

[2022] AATA 2320

9 May 2022

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