1835473 (Refugee)

1835473 (Refugee) [2023] AATA 2462 (6 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1835473

COUNTRY OF REFERENCE: Malaysia
MEMBER:Nora Lamont
DATE:6 June 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 June 2023 at 3:35pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – physical assault – fear of killing – criminal gang – threatening messages – fear of organs harvesting – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, 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 27 November 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 22 March 2018.
The applicant appeared before the Tribunal on 5 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant appeared via MS Teams as he is currently located in [Town 1] Victoria. The Tribunal had a technical issue at one point early in the hearing, however the issue was resolved, and the hearing resumed.
The applicant travelled to Australia on a valid Malaysian passport and states that he is a Malaysian national. The delegate had no concerns about the applicant’s identity; therefore, the Tribunal has assessed the applicant’s claims against Malaysia as his country of nationality and his receiving country.
There are no non-disclosure certificates on the applicant’s file.
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 issues in this review is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s5J(1) of the Act, and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
The applicant was born on [date] in [Town 2] Kedah Malaysia. He has [specified family members]. His father passed away in 2016 and his mother, who is a housewife, remains in Malaysia. He is currently living and working in [Town 1] and resides with his partner.
The applicant’s claims as summarised are as follows: [1]
·He failed to settle a big amount of debt he owed from a money lender. They tried to hire gangsters to get him and harm him and his family.
·He comes from a poor family.
·He didn’t try to move because the money lenders have branches everywhere.
·He heard Australia was good for work.
·If he goes back to Malaysia the gangsters will use violence like before.
[1] [File number]
The applicant said that he received a [degree] in [Subject 1] in Malaysia and he had a job at his aunt’s [business] doing [role]. He said he quit in 2016 but couldn’t remember when. His father had a [specified medical issues], and he became worse, so the applicant became his fulltime carer. He did this full time caring for around six months.
In 2015 he borrowed RM500,000 (approximately $164,000 AUD) from a ‘licensed’ money lender. His friend told him about a business that promised very good returns. It was a [specified business]. They promised within three months he would get his money back. He went to the bank to borrow the money, but they would not lend to him. He went to a licensed money lender but whilst they said they were licensed he didn’t think they were. He said they had a proper office and he thought they were legit. However, over time they kept moving addresses.
When asked what this business did the applicant said that they were planning on getting an IPO to gain the trust of the people, and they were marketing [specified] products. The name of the company was [Business 1]. He said he gave them RM 460,000 and kept the other RM 60,000 for himself. The applicant was asked if he signed a contract and he said no but that they gave him a pamphlet. He said he was blinded by the return on his money that he was promised. For the first three months he got no money and after around four to four and half months later he saw a thing in the paper that said they were a Ponzi scheme. The applicant was asked about the friend who introduced him to the company, and he said she got scammed as well.
The applicant said he then went to the money lenders to reschedule his repayments. He said when he borrowed the money, he was to pay back RM 8000 per month for the next ten years. If he defaulted, then he would be charged an extra 20% interest. He paid them in cash, and he made four months of payments, he asked them to make it RM 4000 per month, but they said no.
After the four months they texted him and they went to his old house, but he had moved. His neighbour told him they came looking for him. Then a couple months later his old house caught on fire. The applicant was asked how he knew it was the money lenders who set the fire and he said he just suspected and that’s why he didn’t go to the police.
After that they sent gangsters and they splashed red paint on his neighbour’s house mistaking it for his house. The applicant then moved two or three times. He heard these gangsters were involved in human organ removals and he was scared of them. The applicant was asked if they had ever physically assaulted him, and he said no they did not, but they had sent threatening texts and phone calls. When asked how many times he said three or four times.
As the applicant said that he borrowed the money in 2015 or so and then he arrived in Australia in 2017 what happened to him during that two-year period. He said he had to move away, and he wasn’t safe anywhere. He was concerned they would cut his organs out. The applicant was asked if he thought of moving to Kuala Lumpur and he said he already moved within his state.
The applicant was asked why he didn’t go to the police, and he said that the people who were the gangsters would be arrested and the people who worked for them would come after him and that it had very bad implications. He said he has been paying it off while he is in Australia. The applicant was asked to provide the Tribunal with money transfers or documentation about his paying off the debt, but he said he paid it to a friend who then paid the money lenders. He said he gives his friend a fee to do this. The applicant asked for documentation about these payments, but he said he didn’t have any. He said he has paid off RM 400,000 but owes about RM 900,000.
The applicant was asked if he came to Australia to pay his debts and he said yes. The Tribunal told the applicant there were programs in Malaysia to help people with the money lenders. He said he didn’t know anything about it. DFAT reports the following in relation to assistance: [2]
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 MYR2.11 million (AUD670,000) had arisen in the first 19 days of January 2019 alone. Local media also reported that, in 2020, the PSCD received 140 complaints from victims who said illegal money lenders went after their families to try and extort them for payment. In 2015, the PSCD reported over 70 per cent of borrowers were Chinese Malaysian. Sources report the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the government rate.
The Malaysian Muslim Consumers Association (PPIM), which provides services predominantly for the Malay community has an established call centre that helps to educate (chiefly Malay) people on the dangers of borrowing from loan sharks and suggests alternatives, as well as helping victims to settle their debts. The PPIM maintains a Malay language website (ahlong.ppim.org.my) where people can report loan shark cases, and which also 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.
Findings
[2] DFAT Country Information Report Malaysia (June 2021) page 41.
For the reasons that follow the Tribunal has a number of concerns with the applicant’s claims to have an outstanding debt to unlicensed money lenders and that he has been threatened in the past.
First, there is the inconsistency between the applicant’s written claims and his oral evidence. In his written claims for protection the applicant said that if he returns to Malaysia the gangsters will use violence like they did before. However, at the hearing when asked if the money lenders ever physically assaulted the applicant he said no, they only threatened him by text or phone call.
Second, in his written claims he said he didn’t try to move because the money lenders have branches everywhere, then at the hearing the applicant said he moved several times within Kedah.
Third, the applicant claims he has been paying off his debt yet when asked to provide documentation related to his payments, he claims he doesn’t have any. The Tribunal finds that odd as if he was making payments, he would have some bank details or transactions.
Fourth, the Tribunal could not find any online evidence of the company he called [Business 1]. The Tribunal could not find any articles about it being a Ponzi scheme or that it even existed. If it did exist, the Tribunal would expect that the applicant would have gone to the police after losing such an enormous amount of money to them. Further, the applicant is educated and has a [degree] in [Subject 1] it seems unrealistic that someone smart with finance would give such a large sum of money to a company without signing any paperwork at all.
The applicant claims his family home was burnt down and red paint splashed on the neighbour’s house. Again, the Tribunal would think the applicant would have gone to the police given the magnitude of the fire and damage. The applicant had no documentation to give to the Tribunal in regard to the fire or the red paint.
Given these concerns the Tribunal does not accept that the applicant is a credible witness. For the reasons set out above, the Tribunal does not accept the applicant’s claims that he borrowed RM 500,000 from unlicensed money lenders and that he gave RM 460,000 to a Ponzi scheme. Therefore, the Tribunal does not accept that the applicant was threatened by gangsters and that he fears having his organs harvested.
Given these findings the Tribunal does not accept that if the applicant returns to Malaysia he will face a real chance of persecution from money lenders or gangsters or anyone associated with them. The Tribunal finds that the applicant does not have a well-founded fear of persecution as per s5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s5H(1).
Nor does the Tribunal accept that there are grounds for believing as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from money lenders or gangsters. The Tribunal is therefore not satisfied the applicant meets the alternative provisions in s36(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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nora Lamont
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.
…

[2023] AATA 2462

6 June 2023

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