Background
Background to the litigation
Generally, the Guidelines prepared by the Department contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. They were of limited assistance in the circumstances of this case.BACKGROUND The applicant first arrived in Australia on 10 January 2018 on an Electronic Travel Authority. He made an application for a protection visa on 16 March 2018. In his application, the applicant stated that he was claiming protection because he feared harm from loan sharks. In response to the question about why he left his country, the applicant stated to the effect that he was concerned about loan sharks because his sister had borrowed money and put his name down as guarantor for the loan. She had the difficulty in repaying the loan and the loan sharks came to him to repay the debt. They came to his workplace and home on several occasions. The applicant further stated that he was concerned that he would be harmed if he returned because he had already experienced harm from the loan sharks prior to leaving Malaysia. He stated that he had been threatened, followed and beaten by the loan shark and that they had tried to hit him with a car while he was on his motorcycle. He also stated that they came to his house and work and that they slapped and beat him. In response to the question in the application about what the applicant thought would happen to him if he returned to Malaysia, the applicant stated to the effect that because he had already experienced harm and mistreatment in Malaysia he was concerned that if he returned the loan sharks would find him and harm him or do some something more serious to him. The applicant’s sister arrived in Australia on a visitor visa, through an Electronic Travel Authority, on 14 November 2017 and made an application for protection on 23 January 2018. Her claims were set out in her application for protection and were to the effect that she left Malaysia was because she was in debt with a loan shark, the bank and her company client and owed a total of RM 200,000 or (AU$66,000) because her business partner run away with the company money and all of the loans from the “loan shark” and the bank were in her name. The applicant’s sister stated that she was concerned about her health because of the pressure of the debt. She had depression and had fallen sick over the past year because of concerns about the debt. The applicant’s sister further stated that she had suicidal thoughts and was concerned about being made bankrupt. The delegate’s reasons for refusing the applicant’s visa were set out in a decision record dated 25 June 2018. The delegate did not make any findings about the truth of the claims made by the applicant about threats from loan sharks but rejected the claim for protection under the refugee criterion on the grounds that the applicant’s claimed fear of harm in Malaysia did not have the relevant refugee nexus. The delegate considered whether Australia’s obligations were engaged under the complementary protection criterion but rejected the claim because the delegate was not satisfied there was a real risk of the applicant suffering significant harm. In summary, the delegate found that, while there may be instances of corruption in the police force, the Malaysian authorities were willing and reasonably effective in combating illegal moneylending. Relevantly, the delegate relied on extracts from the DFAT report about enforcement action against loan sharks and loan shark syndicates together with newspaper articles reporting the results of police action in 2016 and 2017. According to the delegate, Malaysian authorities were willing and able to provide the applicant with an “adequate level of protection” such that there would not be a real risk that he would suffer significant harm under s.36(2B)(b) of the Act.OUTLINE OF EVIDENCE
Evidence
Evidence Before The Court
The delegate’s reasons for refusing the applicant’s visa were set out in a decision record dated 25 June 2018. The delegate did not make any findings about the truth of the claims made by the applicant about threats from loan sharks but rejected the claim for protection under the refugee criterion on the grounds that the applicant’s claimed fear of harm in Malaysia did not have the relevant refugee nexus. The delegate considered whether Australia’s obligations were engaged under the complementary protection criterion but rejected the claim because the delegate was not satisfied there was a real risk of the applicant suffering significant harm. In summary, the delegate found that, while there may be instances of corruption in the police force, the Malaysian authorities were willing and reasonably effective in combating illegal moneylending. Relevantly, the delegate relied on extracts from the DFAT report about enforcement action against loan sharks and loan shark syndicates together with newspaper articles reporting the results of police action in 2016 and 2017. According to the delegate, Malaysian authorities were willing and able to provide the applicant with an “adequate level of protection” such that there would not be a real risk that he would suffer significant harm under s.36(2B)(b) of the Act.OUTLINE OF EVIDENCE As a result of the directions hearing the applicant was requested to provide any further evidence or information in support of his application, including any loan agreement, documents relating to the loan, any guarantees, a copy of any report made to authorities and any correspondence or receipt of repayment. On 21 July 2020, the applicant provided a copy of TransferWise Transfer Confirmation receipts recording the transfer of AUD200 and AUD360 on 3 September and 17 October 2019 respectively and copies of handwritten pages apparently from a notebook. The applicant said that these were monies that he paid to his sister for repayment to the moneylender. In the applicant’s sister’s evidence, she said that these records related to payments made by her. Ultimately, I have formed the view that any inconsistency in this evidence is immaterial as I accept the evidence of the applicant and his sister that they both remitted money to their mother to pay towards the debt owed by the applicant’s sister. The applicant could not explain what the handwritten documents comprised, but the applicant’s sister said that the handwritten notes represented a ledger of the amounts owing and paid by the family to the moneylender, who was her former client. The applicant’s sister gave evidence that this document was prepared by the former client and it showed that the amount outstanding is RM33,750 (approximately AUD11,000). The ledger refers to amounts which appear to be increased by 50%. The applicant’s sister could not explain these amounts and whether they included interest but said that she believed the amount recorded was said to be the amount outstanding as at January 2020.
Decision
Reasons for decision
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies ss.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Jan Redfern PSMDeputy PresidentATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…