1818850 (Refugee)

1818850 (Refugee) [2020] AATA 2574 (28 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1818850
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Peter Booth
DATE:28 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 May 2020 at 10:45am
CATCHWORDS
REFUGEE – protection visa – Malaysia – no convention ground – unpaid loans – threats from loan sharks – fear of physical assault – fear of killing – internal relocation – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 June 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 4 March 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria set out in either s.36(2)(a) or s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The following facts are taken from the applicant’s protection visa application.
Applicant summary
Application for review
This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 June 2018 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Act.
The visa applicant applied for the visa on 4 March 2018.
Identity and country of reference
The applicant is [an age] year old male, born [date] in [Town 1], Sabah, Malaysia.
The applicant can speak, read and write Malay and speak English.
The applicant states that he is of an ethnicity that could not be selected on the application form when completing his protection visa application, and of the Christian faith.
The applicant claims to have Malaysian citizenship by birth and a copy of the applicant’s passport, held upon the Department file, confirms that he is a citizen of Malaysia.[1]
[1] Passport, Department file [number]
The applicant stated that he has never married.
The applicant recorded no former employment in Malaysia in his protection visa application and stated that he filled his time by helping his family doing village work. The applicant listed no education in Malaysia.
In summary, the applicants claimed that he left Malaysia because of violence committed by a loan shark from whom he had borrowed money.
Migration history
The applicant arrived in Australia [in] December 2017 on a UD-601 Electronic Travel Authority visa.
The applicant applied for a XA-866 Protection visa on 4 March 2018.
Claims
866 visa application
The applicant’s claims for protection are contained in his protection visa application. No Department interview was offered. The claims are:
Provide reasons why this applicant left that country or those countries?
The reason I left the country is due to the fact that i had a sudden financial crissis.and in order to settle all my debt due to my work consociation that was not being able to pay as much.I had to borrow
From a loan shark and in the end i have to leave country because at the one point the shark started harrassing me and started asking for interest.
Did this applicant experience harm in that country or those countries?
No
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
No
Give details for why this applicant did not try to move to another part of the country or those countries.
I dont think it will solve the problem.
Explain what the applicant thinks will happen to them if they return to that country or those countries:
If I go back to my country now,i strongly believe they will hount me down and maybe I will get kill because I still not able to pay them even for interest.
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
Yes
Give details including:
• the type of harm or mistreatment this applicant is likely to experience
• the person/people who would be responsible for the harm or mistreatment
• why they would harm or mistreat this applicant.
I strongly believe they will hount me down and maybe I will get kill because I still not able to pay them even for interest. Because to many cases I see they will able to hurt me without hestate or even worse if I dont pay back they money.
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
No
Give details about why this applicant thinks the authorities could not, or would not, protect them.
The Malaysian authorities is corrupted.
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
No
Give details about why this applicant is unable to relocate.
I dont think I can relocate anywhere in Malaysia since I cant get full protection.they probably still looking for me all around the country to get back they money.
EVIDENCE AND SUBMISSIONS
The applicant did not provide any submissions to the Department.
Evidence and findings of fact
The applicant gave evidence at the hearing, with the assistance of a translator, the substance of which was as follows. At the outset, the applicant confirmed his personal details including his age, place of birth, religion and citizenship as set out above. To that he added that he was of Dusun ethnicity and he had married in approximately May 2011.
The applicant said he had no other claims for protection other than those articulated in his application for protection document.
The Tribunal asked the applicant why he had left Malaysia. He said “I was threatened by this group of people and also I need to look for money to pay them back”. He did not elaborate. The Tribunal invited the applicant to be more specific. In response he said:
in 2017 I borrowed some money from a company I got to know them through an advertisement, a borrowed [amount] Malaysian ringgit, the money was intended to open a small business for myself, a [shop], initially the money was lent and they charge 10% each month, I was to repay [amount] Malaysian ringgit each month including principal, I failed to repay back on time, so they charged me a higher rate, I was unable to pay, due to the failure to pay my burden got heavier, after three months I feared that I don’t have the capacity to pay back any more, further my business is not good, then this group of moneylender they came to threaten me.
The Tribunal asked the applicant from whom he had borrowed the money. He said “one company from whom I got to know from the ad”. He did not elaborate. The Tribunal enquired as to the name of the moneylender, to which he said “I’m not so sure, but the name sounds like “[name]””. The Tribunal asked whether the loan agreement was in writing, to which he said “no”. The Tribunal asked as to the terms of the loan, to which he said “you must pay back on time”. When the question was repeated he said “initially the interest rate was 10% but it was late he would increase”. He did not elaborate. The Tribunal enquired as to any other terms of the loan. He said “that’s all”. The Tribunal asked whether he received the money in cash or whether it was paid into his bank account. He responded “we can do it both ways”. When the question was repeated he said “I received in cash”.
The Tribunal invited the applicant to continue with his evidence. He said “after that I went to look for a job to pay back money but I failed, after that I searched on [social media] and got to know that there were a lot of Malaysian people working in Australia, I thought about it and I got to know those who were here, they say they can earn much more money in Australia, so I came to Australia”.
The Tribunal asked whether the applicant was harmed or threatened by the moneylenders whilst he was in Malaysian. He said “yes there was one time and they made me so fearful of them”. He did not elaborate. When invited to expand he said “after three days I was late, these people came to me, they threatened me, they threatened my family members that they are going to kill, if I do not pay back the money”.
The Tribunal enquired when this had occurred, to which he said “December 2017, after that I bought a ticket to Australia”. The Tribunal enquired where this had occurred. He responded “during the incident, they came to my house and requested me to paid [amount] Malaysian ringgit at that time, I have some money, they made me very worried and I tried to look for work”.
The Tribunal asked how these unidentified persons knew where the applicant lived. He said “before I got the money, they requested personal particulars”.
The Tribunal enquired whether the applicant was was injured during this incident, to which he said “they punch my face one time”. The Tribunal enquired whether the applicant had sought medical treatment as a result, to which he said “no”. The Tribunal enquired whether he had reported the matter to the police. He said “no, they threatened me, if I report to the police would harm my family members”.
The Tribunal enquired whether it was after this incident that the applicant had left Malaysia. He said “yes, a few weeks later”. The Tribunal enquired whether this was the only occasion on which he was threatened or harmed. He said “yes, that these the only one time that they threatened me, they said they would return and do a bigger job against me”.
The Tribunal enquired whether the applicant was living with his wife at the time of this incident. He said “I don’t live with my wife, she stayed in the village, we were very far away”. The Tribunal enquired where the incident had occurred. He said “in [a town name], at a rented house”. The Tribunal asked where the applicant’s wife lived at this time. He said “in the village, and our family home”. The Tribunal enquired several times as to the name of the village. The applicant said “I live in the city, my wife lives in the village because the cost of living is too expensive”.
The Tribunal enquired whether there was any reason he could return to the village to avoid the moneylenders. He said “even if I go to the village they look for me”. He did not elaborate. The Tribunal asked whether the moneylender knew where he lived in the village to which he said “yes”.
The Tribunal asked whether the moneylenders had attended his home in the village and threatened his wife. He said “they did not, they only met me in the city”.
The Tribunal asked whether the moneylenders had attended his home since he left Malaysia. He said “after four months I came to Australia, managed to pay back the debt, and free and do not owe them any more money”. The Tribunal enquired when he had repaid the debt. He said “May 2018”.
The Tribunal asked whether the applicant was concerned that he would be harmed or threatened with harm if he returned to Malaysia. He said “I have spoken to them, but because of the Malaysian economy need to stay here to look for money”. When the question was repeated he said “I think if I go back to Malaysia now, I would not be threatened, because is settled with them all the debts and am now free”.
The Tribunal asked the applicant why he had not returned to Malaysia. He said “I don’t go back Malaysia economy is not good, and is difficult to look for work, further salary is much lesser and the cost of living is much higher, I don’t want to borrow any more money from anyone”.
In response to an invitation to add anything further to his application for review, the applicant said “I hope the AAT can consider my visa for another few months, because I have a plan to go back to Malaysia in the near future, after this pandemic is over I will go back to Malaysian appeal to the AAT to extend my visa, for a few months.”
The Tribunal finds that the applicant:
a)Is [an age]-year-old male born in [Town 1], Sabah, Malaysia;
b)Speaks, reads and writes Malay and speaks English;
c)Is of Dusun ethnicity and belongs to the Christian faith;
d)Is a citizen of Malaysia;
e)Is married;
f)Borrowed money from an unlicensed moneylender in Malaysia; and
g)Repaid the debt to the unlicensed moneylender in May 2018.
The country information
In accordance with Ministerial Direction No.84 made pursuant to s.499 of the Act, the Tribunal also had regard to country information assessments prepared by DFAT. In so far as state protection and related matters are concerned, DFAT Country Information Report Malaysia, 13 December 2019 (footnotes omitted) states:
a. Royal Malaysia Police (RMP)
5.5 The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is 80 – 85 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
5.6 According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms including establishing compliance units within RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.
5.7 External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission, which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts.
5.8 The then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department in July 2014 to enhance police integrity and image. It sits within the RMP. Suhakam also receives complaints against the RMP, and has investigated police behaviour. The government is not formally required to consider Suhakam’s reports or recommendations.
…
b. Judiciary
5.13 The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level, and subordinate courts. Syariah courts operate at state level with jurisdiction over Muslims in personal matters. The subordinate civil courts hear the majority of Malaysia’s criminal, civil and family law matters for non-Muslims. A Judicial Appointments Commission makes judicial appointments, subject to the Prime Minister’s final approval. Eighty-two per cent of members of the Federal Court are Malay Muslims. Judges receive relatively low salaries, limited training, and many are new graduates.
5.14 Sources report issues of judicial independence, arbitrary verdicts, selective prosecution, delays to court-ordered relief for civil plaintiffs, and preferential treatment of some litigants and lawyers persist in Malaysia. The ability of individuals to seek legal redress through Malaysian courts is variable. Sources advise that defendants generally have adequate time to prepare a defence, particularly those with the financial means to engage private counsel. Government legal aid resources are limited and generally of poor quality. Although strict rules of evidence apply in court, defence counsel reportedly does not consistently receive state-held evidence. According to a leading human rights NGO, a Court of Appeal judge claimed a senior judge had reprimanded him after writing a dissenting statement in 2018. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods: in mid-2017, 29.8 per cent of the total prison population comprised pre-trial detainees (see Detention and Prison).
…
5.17 DFAT assesses that while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.
Victims of Loan Sharks
3.108 Loan sharks or ‘pay-day-financers’(unlicensed lenders, referred to as ‘Ah Long’ by the Chinese Malaysian community, ‘Chettiar’ by the Indian Malaysian community, and ‘Ceti’ in Malay), carry out money lending activities without a licence, charging high interest rates to do so. Loan sharks operate very publicly in Malaysia and, while the practice is illegal, advertisements listing phone numbers and offers of cash loans for RM10,000 – RM20,000 (AUD3,100 – AUD6,200) appear on public property, including lamp posts and utility boxes. Loans typically carry an interest rate of about 30 to 40 per cent per month, and can be as high as 15 per cent per day. In-country sources advise that loan sharks in Malaysia do not seek protection money.
3.109 Sources report loan sharks are entering into ‘sell and purchase agreements’ in Sabah, whereby the borrower’s house is used as collateral for the loan. DFAT is aware of reports of houses valued up to RM 1 million (AUD 345,311) being used as collateral for a loan of RM100,000 (AUD34,500). If the borrower defaults on their loan, the loan shark exercises the sell and purchase agreement to transfer the house into their name. Sources report lawyers are facilitating the sell and purchase agreements, described as a house sale agreement disguised as a loan agreement, in return for a cut of the house sale profits. Sources claim borrowers agreeing to sign their house over as collateral are under significant duress, or lack sufficient education to understand the agreement they have signed.
3.110 DFAT is aware of a case of an individual in peninsular Malaysia who engaged a loan shark to obtain a loan to repay their mortgage, signing the house over as collateral under a ‘sell and purchase agreement,’ after becoming involved in gambling following the death of their spouse. When unable to repay the loan shark, the individual’s family supported them to engage a formal credit agency to obtain a loan to repay the loan shark. DFAT understands loans ranging from RM200,000 to RM300,000 (AUD69,385 to AUD104,077) accompanied by payment plans have been arranged by formal credit agencies to repay loan shark debts. However, not all debtors may be aware of the availability of such services.
3.111 Sources report 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. Sources claim that loan sharks engage gangsters to collect debts and harass and threaten borrowers and their family members, and those borrowers and their family members have been shot at gunpoint and had fingers cut off. Due to the illegal/underground nature of loan shark activity, DFAT is not able to verify these claims. There is significant societal shame associated with not being able to repay a loan shark. Sources report many 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.
3.112 DFAT understands that authorities tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice. According to local media, the Commercial Crimes Investigation Department reported 3,903 cases and arrested 2,698 people in relation to loan scams between January and November 2018, with total case related losses estimated at RM36 million (approximately AUD12.4 million). Local media also reports loan sharks have become more publicly visible and more ‘corporate,’ and have increased promotion of their services on social media platforms such as Facebook and WeChat in 2019. In October 2019, media reported that the RMP planned to embark on a ‘major war’ against loan sharks, following reports that Ah Long syndicates are becoming more aggressive.
3.113 The MCA’s Public Services and Complaints Department (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. According to local media, the MCA reported that 16 cases of people owing loan sharks over RM2.11 million (AUD745,000) had arisen in the first 19 days of January 2019 alone. Local media also reported that in 2018, the PSCD of the MCA received reports of 364 loan shark cases with total loan claims amounting to RM25 million (AUD8.81 million), and that 80 per cent of the loan shark borrowers were members of the Chinese Malaysian community who were involved in illegal online gambling. In 2015, the PSCD of the MCA also reported over 70 per cent of borrowers in 214 cases were Chinese Malaysian. Sources report the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the one per cent government rate.
3.114 The PSCD of the MCA held a press conference in July 2019 regarding the case of a 28-year-old woman who had enquired about a RM5,000 (AUD1,760) loan advertisement she had seen on Facebook. The woman had reportedly shared some personal information, including bank details, but had allegedly rejected the offer of a loan due to the high interest rate payable. Nonetheless, funds were banked into her account, and she was later threatened by loan sharks to either pay up or be forced into prostitution. The PSCD of the MCA also cited the case of a 91-year-old woman, who was reportedly threatened by loan sharks in relation to her estranged son’s failure to pay back money he allegedly owed.
3.115 The Malaysian Muslim Consumers Association (PPIM), which provides services predominantly for the Malay community, was also involved in over 10,000 cases involving loan sharks from 2012 to 2016, in which around 70 per cent of borrowers were Malay. The PPIM maintains a Malay language website (ahlong.ppim.org.my) where people can report loan shark cases and which lists details of prior cases. Sources provide vastly differing views on the reasons individuals engage illegal moneylenders. Some claim that up to 80 per cent of borrowers are supporting gambling activities and other debts. Others claim borrowers are public servants trying to cover daily expenses such as children’s education, or businesses excluded from mainstream finance due to insufficient documentation, bankruptcy or a poor credit history.
3.116 The Moneylenders Act (1951; amended 2003 and 2011) gives police considerable investigative powers against alleged loan sharks. Police can visit, enter, inspect or search premises without a warrant, and seize moveable properties and business documents to assist with investigations against alleged loan sharks. Individuals involved in illegal moneylending activities in Malaysia can be convicted under Section 5(2) of the Moneylenders Act, which carries a fine of between RM250,000 and RM1 million (AUD80,000 – AUD320,000) or, a jail term of up to five years, or both. Police have made several recent high profile arrests and investigations of syndicates. In September 2019, the RMP arrested 21 people in Johor allegedly involved in syndicates illegally loaning money. In January 2019, the RMP arrested 13 suspects allegedly involved in a syndicate providing fraudulent loan applications resulting in total bank losses of RM10.35 million (AUD3.65 million); district police also arrested 11 members of a nationwide syndicate that had fraudulently taken funds from borrowers totalling RM1.3 million (AUD458,161). In November 2018, RMP arrested 21 people allegedly involved in a loan scam syndicate.
3.117 Very limited research is available on loan sharks and the individuals that engage these services, possibly due to their links to gangs and corruption. DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, their likelihood of seeking police protection, or the level of protection offered by police. DFAT assesses those who are unable to service debts to loan sharks, and their family members, can face societal discrimination due to familial shame, and may also face a real or perceived risk of harassment and violence from loan sharks and/or gangsters. However, DFAT notes formal credit agencies are able to consolidate loan shark debts and provide payment plans, and therefore engaging such agencies is an option to mitigate against potential risks posed to those in debt.

The Department of Home Affairs, “Common Claims Malaysia”, dated 12 February 2020, states as follows (footnotes omitted):
Loan sharks
Malaysian police respond to threats and harassment from illegal moneylenders and some non-government association’s offer assistance. Illegal money lending is an offence under Malaysian law, and section 5(2) of the Moneylenders Act (1951) carries a fine of RM20,000 not exceeding RM100,000, or imprisonment not exceeding five years, or both for unlicensed moneylending. Section 29AA of the Moneylenders Act (1951) carries a fine not exceeding RM20,000, imprisonment for up to two years, or both for any person who assists an unlicensed moneylender. Section 29B(1) of the Moneylenders Act (1951) carries a fine of up to RM200,000 or imprisonment of up to three years, or both for harassment or intimidation of a borrower, a borrower’s family or their associates. During recent years, police have responded to complaints of harassment and intimidation by illegal moneylenders and have conducted numerous operations targeting illegal moneylending operations, resulting in the prosecution of persons under the Moneylenders Act (1951). In December 2017, Malaysia’s central bank cautioned the public about illegal money lending activities conducted by companies using fake licences purportedly issued by the central bank, advising the public to report such instances to the police for investigation. A non-governmental organisation, the Malaysian Muslim Consumers Association (PPIM), offers support for those encountering problems with loan sharks. The Malaysian Chinese Association’s Public Services and Complaints Department acts as an intermediary between loan sharks and Chinese Malaysian victims who are unable to repay debt, negotiating loan repayments with lower rates.
As to relocation, DFAT country information states:
5.25 Although the Constitution provides for freedom of internal movement, Sabah and Sarawak have autonomy over their own immigration. Non-Sabah or Sarawak residents, whether Malaysian citizens or foreigners, must present national identity cards (or passports for foreigners) to gain entry and can visit for a maximum period of three months. The federal government can overrule immigration decisions made by Sabah or Sarawak in limited circumstances, including for national security reasons.
5.26 Sabah and Sarawak both issue working visas to non-residents (including other Malaysians), but these can be difficult to obtain. Both states limit purchase of land by non-residents. Far more people migrate from Sarawak and Sabah to peninsular Malaysia than in the other direction, due to better work opportunities and higher salaries.
5.27 DFAT assesses that, subject to the restrictions outlined above in relation to Sabah and Sarawak, Malaysians can and do freely relocate internally, generally to larger urban areas in peninsular Malaysia for economic reasons. Individuals likely to attract official attention under state syariah-based law, including people who identify as LGBTI, women escaping domestic violence, or Muslims wishing to marry non-Muslims, may also move to large urban centres to avoid attention (for evidence, see Women, Sexual Orientation and Gender Identity, Religious Conversion and Apostasy and Atheism).
Conclusions
The country information informs the Tribunal as follows. First, loansharking or illegal moneylending is relatively common in Malaysia. Loan sharks or moneylenders charge high interest rates without a licence. They operate very publicly in Malaysia and while the practice is illegal, they conduct business in plain sight. Secondly, the Moneylenders Act 2003 provides police with investigative powers including the right to visit, enter, inspect or search premises without a warrant and seize movable property and business documents to assist with investigations against illegal moneylenders. Individuals involved in illegal moneylending activities in Malaysia can be convicted and fined up to 1 million RM or a jail term of up to five years or both. Thirdly, the Malaysian authorities – including the RMP – are reasonably effective in combating illegal moneylending. Next, there is also no indication in the country information as identified above that the applicant would not receive assistance, if requested, from the RMP in respect to any threat, actual or perceived, from his friends and relatives who were threatened by an illegal moneylender. Further, there is nothing in the country information to suggest that the Malaysian authorities would be unable or unwilling to protect the applicant in his particular circumstances. Lastly, Malaysian citizens are free to move within Malaysia.
The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often, the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence. The Tribunal notes that it is a requirement of the Act that the applicant provide details of the applicant’s claim and that it is not incumbent upon the Tribunal to prove the applicant’s case. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. The applicant did not produce any documents to corroborate the evidence. The applicant did not have a copy of the application for a protection visa to hand during the hearing. This is most surprising having regard to the importance of this matter, apparently, to the applicant and the time that the applicant has had to consider and prepare for this application.
The applicant’s evidence was limited. However, it is clear that the applicant no longer owes money to the unidentified moneylender and has not owed money to such person or persons since May 2018. Further, he does not fear that he will be threatened if he was to return to Malaysia. On the contrary, he has made clear that he has settled the debt and that he wishes to stay in Australia in order to derive what he perceives to be a better income.
In any event, the applicant has not made a claim based upon any of the five available grounds to be found in s.5J(1) of the Act.
The Tribunal has considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s.5J(1)(a) of the Act.
Having regard to the evidence, the Tribunal makes the following findings:
a)The Tribunal is not satisfied that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
b)The Tribunal is not satisfied that there is a real chance that, if the applicant is returned to Malaysia, the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
c)The Tribunal is not satisfied that there is a real chance of persecution that relates to all areas of Malaysia;
d)The Tribunal is not satisfied that the applicant has a well-founded fear of persecution;
e)The Tribunal is not satisfied that the applicant is a refugee in accordance with s.5H(1) of the Act; and
f)The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Act.
Complementary protection criterion assessment – s.36(2)(aa)
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or if that harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision-making, the relevant facts of the individual case must be provided by the applicant.
While the Tribunal is required to adopt a reasonable approach to such matters, the Tribunal is not required to make the applicant’s case out for the applicant. Neither is the Tribunal required to accept uncritically any and all of the allegations made by the applicant. In respect of the Tribunal’s assessment in regard to complementary protection, the Tribunal adopts the findings stated above in relation to the refugee criterion assessment.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Booth
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 2574

28 May 2020

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