1905140 (Refugee)
[2024] ARTA 535
•24 October 2024
1905140 (REFUGEE) [2024] ARTA 535 (24 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 1905140
Tribunal:General Member T Guthrie
Date:24 October 2024
Place:Brisbane
Decision:The Tribunal affirms the decision not to grant the application a protection visa.
Statement made on 24 October 2024 at 10:16am
CATCHWORDS
REFUGEE – protection visa – Malaysia – written claims of political and socio-economic conditions, crime and terrorism, and ethnicity as Chinese Malaysian – later claims of failure of business because of economic conditions – loan from illegal money lender – application prepared by another person – adverse inference drawn – delay in applying for protection – applied after visa expired – claim of loan from money lender accepted – passage of time and no further contact – country information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), (4)(b), (5), 36(2)(a), (aa), (2A), 65, 367A, 423A
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 February 2019 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 national of Malaysia applied for the visa on 27 August 2018. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 23 May 2024 and 16 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
BACKGROUND
Evidence before the Department
The applicant is a [Age] year old Malaysian national who lodged an application for a protection visa on 27 August 2018.
Application for a protection visa
According to the application for a protection visa, the applicant was assisted in completing his application by [B]. The applicant arrived in Australia [in] September 2011 as a visitor. He is unmarried. He did not disclose any family members in the application form. The applicant provided the following reasons why he left Malaysia:
1) Riot
2) Terrorism activity
3) Serious crime
4) Lost confident to the country leader never fulfill his promise
5) Racism
He provided the following details for why he did not try to move to another part of Malaysia:
Applicant never move to the east part of the country 1) Sabah 2) Sarawak. The situation is more horrible. They are seeking their own independence.
He provided the following explanation of what he thinks will happen to him if he returns to Malaysia:
1) Jobless
2) Can’t survive
3) Can’t support own family
4) Worry will be the victim of the terrorist and crime
The applicant states in the application that he does not think that the authorities can and will protect him if he goes back because ‘the authorities are seeking protection too’.
The applicant states that he would be able to relocate within Malaysia and that he will relocate ‘after everything fine’.
Copy of identification document
The applicant lodged a certified copy of his Malaysian Identity card with the Department.
Interview
The applicant was not invited to an interview by the Department.
Summary of the delegate’s decision
The delegate considered the applicant’s claims in his application for a protection visa as well as country information relating to Chinese Malaysians, racism in Malaysia, security issues in Malaysia, law enforcement and legal protection in Malaysia, corruption and Malaysia’s economy. The delegate found that there was no real chance of the applicant facing serious harm or a real risk of the applicant facing significant harm if he returned to Malaysia in the foreseeable future.
Evidence before the Tribunal
Pre-hearing information form
The applicant lodged a pre-hearing information form dated 4 March 2024 together with a signed written statement dated 4 March 2024. The written statement provided further information about the applicant’s claims for protection:
I arrived in Australia in 2011 from Malaysia after my business had failed in Malaysia. The business failed due to economic factors in Malaysia.
My decision to come to Australia can be described as running away from Malaysia as I feared for my life, safety and personal protection. When running away to Australia I did not advise any of my family or friends that I was running away as I didn’t feel it was safe for them to know what I was doing, where I was going and what I would be doing in the future.
I cannot provide any documentation such as medical records, photographs, police records or written documentation or evidence of threats to me or my family about my concerns for my safety as I did not involve any authorities or police at the time in Malaysia. I did not have the confidence in the authorities such as the police of the government to provide me with any protection due to the corruption in the government departments and the racism that I had experienced while living an operating my business in Malaysia. I did not want anything recorded by the police or the government about me or my business for someone to be ablet to reference, track my movements and actions or have reason to contact me in the future.
I felt by running away and leaving no evidence was a safer option for me to continue living as there would be no comeback from the police or government. I feel contacting the police would result in something being recorded about my actions. With the corruption in the government departments especially he police I felt this record of my actions would be easily obtained by the way of bribe to the someone in the police department so the third parties to be able to track my movements.
Since living in Australia I have had limited contact with my family in Malaysia. This contact has to be very secretive and through third parties as I am concerned if I has any direct contact with my family, I will putting them in danger and myself in danger. I have not returned to Malaysia since running away to Australia. To this day while living in Australia I live alone to avoid forming relationship with any parties in case these relationships results in information about me and my whereabouts in Australia.
I believe the following would occur if I was to return to Malaysia:
My life would be at risk and very miserable.
I would not be able to have a relationship with my family while living as their lives would be at risk.
I would be physically harmed due to racism. Such physical harms would include physical assault, death by stabbing, basting, shooting or hanging.
I and members of my family could be murdered.
I and members of my family could be robbed.
I could face the death penalty.
The fact that there is no death penalty under Australian laws this is one of the main reasons I chose Australia to run away to from Malaysia.
I and members of my family could have their homes burnt when they are in these homes.
I and members of my family could be torched physically resulting in death.
I suffer mental and emotional distress when I think about what my life could be like if I was to return to Malaysia. This distress is very upsetting for me and this affects my physical health and fitness at times. This affects me completing day to day requirements at times.
Movement records
The Tribunal obtained movement details for the applicant which confirms that the applicant arrived in Australia on a visitor visa [in] September 2011.
Response to hearing invitation
In his response to the hearing invitation, the applicant requested that the Tribunal take oral evidence from two witnesses: [Mr A] and [Mr C].
Tribunal hearings
The applicant attended two hearings. Salient parts of the applicant’s oral evidence to the Tribunal are discussed later in these reasons under the heading ‘Reasons and Findings’.
At the first hearing, I discussed with the applicant the Migration and Refugee Division Practice Direction (then in force) insofar as it related to lodging evidence including witness statements or outlines of evidence. Between the first and second hearings, the applicant lodged written declarations of the two witnesses.
Statutory Declaration of [Mr A] dated 2 June 2024
[Mr A] employs the applicant as [an occupation 1]. The applicant commenced working full time for [Mr A] on 13 June 2023. [Mr A] also gave oral evidence at the second hearing. Salient parts of [Mr A]’s evidence is set out under the heading ‘Reasons and Findings’.
Statement of [Mr C] dated 8 June 2024
[Mr C] resides in Malaysia. He is a retired [occupation 2] and friend of the applicant. Salient parts of [Mr C]’s evidence is set out under the heading ‘Reasons and Findings’. [Mr C] did not speak to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Section 423A of the Act (as in force before 14 October 2024 and the commencement of the Administrative Review Tribunal (the ART) and associated amendments to the Act) provided for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. It provided that if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made. That section was discussed with the applicant at the second hearing.
I must now apply section 367A of the Act which commenced on 14 October 2024. Section 367A provides that in relation to an application for review of a reviewable decision (the primary decision) the applicant raises a claim that was not raised before the primary decision was made or presents evidence in the application that was not presented before the primary decision was made, in making a decision on the application the ART is to draw an inference unfavourable to the credibility of the claim or evidence if the ART is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made.
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.
REASONS AND FINDINGS
For the following reasons, I have concluded that the decision under review should be affirmed.
Receiving country
Based on the applicant’s identity documentation, I accept that the applicant is a citizen of Malaysia and Malaysia is the receiving country against which I must assess the applicant’s claims.
Arrival in Australia
Based on the applicant’s evidence which is supported by the movement details, I find that the applicant arrived in Australia [in] September 2011. I find that he lodged his application for a protection visa on 27 August 2018.
Background
The applicant gave evidence that his parents, [brothers and sister] all reside in Malaysia. He has not been in direct contact with them since he left Malaysia in 2011. His parents have moved from the address he shared with them throughout his life until he travelled to Australia. He does not know their current address but they remain in Negeri Sembilan. He is in contact only with [Mr C] in Malaysia. He contacts him to find out if his parents are safe and well. [Mr C] visits the applicant’s parents. The applicant financially supports his parents with [Mr C] being the conduit for that support. He worked in the [work sector] in Malaysia for many years having started an apprenticeship after school until he set up his own business in 2010 manufacturing [products]. I accept that evidence.
Claims for protection – loan from illegal money lender
The applicant gave the following evidence regarding his claims for protection. He borrowed MYR500,000 in one lump sum at 10 percent interest from an illegal moneylender. He provided the moneylender’s name. He was supposed to pay every month but could not repay the loan. The borrowed amount was used to refurbish his shop and purchase machines, tools and stock. He did not sign any agreement for the loan. He was paid the amount by cheque. He cannot provide any documentary evidence of the deposit of the cheque into his account. He borrowed the money in February 2010 and paid one interest amount in March 2010 but did not make any further repayments. The business operated approximately [Time] mins from his family home in Negeri Sembilan. His business ceased operating at the end of 2010.
He was able to delay repayment by speaking to the moneylender. Approximately four or five months into the loan as the interest accumulated they said to him that if he did not pay the interest back it would not be good for him. He left Malaysia in September 2011. He says he did so to escape harm from the moneylender and to ensure his family members were also safe from them.
Besides the threat referred to above, he did not experience any other harm from the moneylender in Malaysia. In terms of other ‘harm’ he experienced in Malaysia he spoke about witnessing a person beaten to death because he had not repaid his debts. He said this occurred in 2008 two years before he borrowed money from a moneylender. He said he witnessed the person being beaten in a café as he was walking past. He did not know the person but heard through friends who also did not know the person that they were beaten due to unpaid debts. He said that the person died and he saw this as he was walking by.
He has not been contacted by the moneylender in Australia as they do not know his whereabouts. His family members have remained safe and have not been contacted by the moneylender. He has some savings now.
The witnesses corroborated some of the applicant’s evidence. In his Statutory Declaration, [Mr A] states:
[The applicant] has advised me that he run away from his family, friends and home in Malaysia as his life was in danger after his business failed. He advised me that the business was near his family and his home and was for the construction of [products]. I understand this is the main reason that [the applicant] does not want to return to Malaysia. He advised me that he fears for his life if he was to return to Malaysia due to the illegal money lenders who he borrowed money from to establish and commence business in Malaysia. [The applicant] advised me that he borrowed 500,000 from these illegal money lenders and was not able to repay any of it back to the lenders. He has advised me that he was also not able to pay much of the interest on this loan also. I have no reason to not believe [the applicant] in relation to this matter as I have always found he to be truthful and honest as an employee. I feel he has been very stressed and anxious after the loss of his protection visa. I have found when we have discussed this matter he is very emotional and upset easily as he is afraid of going home.
[Mr A] gave oral evidence to the Tribunal that the applicant advised him of those matters over a period of about a month after he employed him in 2023. That evidence was essentially consistent with the evidence of the applicant in relation to when he told [Mr A] those circumstances.
In his statement, [Mr C] states:
I have known [the applicant] … for about twenty-five (25) years. I first met [the applicant] when he came to repair [a product] at my house. …
I was employed by the [employer] in Malaysia from [Date] to 31/07/2017 when I retired.
In 2011 [the applicant] came to see me and told me that he owed illegal money lender approximately 500,000 and could not pay it because his business had declined and he was closing down the business. [The applicant] advised that the pressure being put on him by the illegal money lender was so scary and he believed that they wanted to kill him if he did not settle his debts in full.
At the time [the applicant] asked me if he reported this matter to the police would he get protection from the police or not against the illegal money lender. I told [the applicant] that the police can take action against illegal money lender if they break the law but at the same time the police cannot provide protection for him and his family all the time. [The applicant] did not lodge an official report with the police about the threats that the illegal moneylenders had made against him.
[Mr C] has declared that he was informed by the applicant that he was indebted to an illegal moneylender in 2011.
It is clear from the country information that illegal moneylenders operate in Malaysia:
Victims of Loan Sharks
3.149 Usury is illegal. The Moneylenders Act (1951) requires that moneylenders have a licence and not charge interest rates above 18 per cent for an unsecured loan, which must not compound. Loan sharking is also covered under section 427 of the Penal Code, which prohibits ‘committing mischief’ and can carry a five[1]year prison term.
3.150 In practice, loan sharks or ‘pay-day financiers’ (unlicensed lenders, referred to as ‘Ah Long’ by the Chinese Malaysian community, ‘Chettiar’ by the Indian Malaysian community, and ‘Ceti’ in Malay), operate openly in Malaysia and charge interest as high as 50 per cent. Advertisements for cash loans appear on public property, including lamp posts and utility boxes. Loans offered through social media or smartphone apps are also common.
3.151 Motivations for taking out loans vary and can include gambling and economic disruption caused by the COVID-19 pandemic. Others take out loans for to finance small business which, if the business fails, sometimes become unsustainable debts. Loans are also made by people rejected by banks or who find bank decision-making slow or to require a lot of paperwork.
3.152 Those who do not repay loans face serious harassment. On rare occasions, victims of loan sharks have faced violence or have been sold into slavery. It is common for borrowers to have their house splashed with red paint, which is generally culturally understood to mean that they have not paid debts, causing public shame. They sometimes have their picture or pictures of their identity documents posted on telegraph poles and families are sometimes harassed. Loan sharks sometimes hold victims bank cards or passports as collateral. Loan sharks sometimes continue their harassment even after loan has been paid off.
3.153 State protection is available to victims of loan sharks, but it is often ineffective. Being the victim of a loan shark is often perceived as a moral failing, and some police believe debtors have a religious obligation to pay their debts and consequently will not act to protect them. Formal credit agencies can consolidate loan shark debts and provide payment plans, providing some options for victims.
3.154 DFAT assesses that victims of loan sharks and their family members face a moderate risk of discrimination due to familial and societal shame. DFAT assesses that victims of loan sharks also face a moderate risk of harassment and a low risk of violence from loan sharks and/or gangsters. State protection is available but not always effective.[1]
[1] DFAT Country Information Report: Malaysia (24 June 2024).
I asked the applicant to comment on the country information that the DFAT assesses that victims of loan sharks and the family members face a moderate risk of discrimination due to familial and societal shame and that victims of loan sharks also face a moderate risk of harassment and a low risk of violence from loan sharks/and or gangsters. The applicant responded that he owes the moneylender a large amount and if one day they discover him and share the money with a gangster the gangster could be involved to fight him.
He agreed he could find employment in Malaysia if he returned but did not consider that he could earn sufficient income to repay the loan.
Consideration of the application of s 367A of the Act
The applicant did not disclose in his application for a protection visa or his written statement dated 4 March 2024 that he owed money to a private unlicensed moneylender in Malaysia and that he fears harm from them should he return. In his written statement to the Tribunal dated 4 March 2024, he states that his business failed due to the economy in Malaysia.
Section 423A of the Act was raised with the applicant at the second hearing. With the commencement of the ART I must apply section 367A of the Act which has been set out above. Essentially, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or evidence not presented before the primary decision was made.
At the first hearing the applicant said he did not know the details of his claims in his application as the person who helped him with the application did not discuss them with him. He said he thinks the person, ‘[B]’ was a fraud. The applicant said that the real reason he fled to Australia was that he owed a large sum of money after his business failed. He said that he didn’t tell [B] about it, [B] provided the reasons because he did not know what to do. The applicant confirmed that the contents of his written statement dated 4 March 2024 were true and correct. However, he would add that the debt was owed to a private unregistered lender. I put to him that there was no mention of the debts so that I might be concerned that his claim is not credible. His response was that he did not realise that he had to put everything he needed to mention in the written statement.
When I discussed s 423A with the applicant at the second hearing, the applicant said that when he applied for the visa he was lied to by people and his English was not very good. He had to seek help and it was hard to understand the requirements. He did not have many friends. He was trying to avoid telling people about his situation but because he had to apply to the Tribunal he had to disclose the information. When he had no other choice, he told his employer [Mr A] and [Mr A] referred him to his representative.
When I put to him that even in his statement to the Tribunal he did not mention anything about loan sharks, he said that he was worried about telling people that he owed a lot of money and it was only when he was in the hearing that he realised the importance of disclosing all of the information.
I do not find it objectively reasonable that a person in genuine fear of their life from a particular person or their agents for a particular reason would not disclose either of those matters to the Department prior to the Department making a decision on the application. Even when presented with another opportunity to provide details of his claims this time to the Tribunal in the pre-hearing information form, the applicant did not mention that he owed money to loan sharks and feared harm from them or their agents. I find that the applicant does not have a reasonable explanation for raising a claim and presenting evidence relating to that claim that was not raised or presented before the primary decision was made. In those circumstances I must draw an inference unfavourable to the credibility of that claim and evidence.
Delay in lodging application for protection visa
The applicant arrived in Australia in 2011 but did not lodge his application for a protection visa until 2018, a delay of 7 years. The applicant’s explanation for the delay was that he didn’t know many people and did not have a lot of time to think about it. Once he got to know more people, he started to slowly learn about it. The applicant claims he did not return to Malaysia after his visa expired because the business he had been running failed and he owed a lot of money. He claims that if he returns to Malaysia, he will face life threatening danger. When it was put to him that due to the delay I may be concerned that he did not have a genuine fear or persecution or significant harm, the applicant responded that when he came to Australia he did not know anyone and he did not know who to trust. He was tricked by [B] and he had felt like he had to be careful about everything around him.
Findings of fact relating to claim relating to loan from moneylender
While I have concerns about the length of the delay particularly when considered with my findings in relation to the application of s 367A of the Act, I have before me, the corroborative evidence of [Mr A] and [Mr C] that the applicant disclosed his indebtedness to the moneylender to each of them and in the case of [Mr C] as early as 2011. Given that evidence and the other evidence of the applicant I have discussed above, I accept as credible the applicant’s evidence relating to his claim for protection due to the loan from the moneylender to the extent that I make the following findings of fact:
a)The applicant borrowed MYR500,000 from a private moneylender in February 2010
b)The purpose of the loan was to establish his [product] manufacturing business in Malaysia.
c)The applicant made one repayment of interest to the moneylender in March 2010 but has not made any other repayments to the moneylender.
d)The applicant was able to delay repayment by speaking to the moneylender
e)Approximately four or five months into the loan (June/July 2010) the moneylender requested repayment and said that it would not be good for the applicant if he did not pay.
f)The applicant’s business closed down at the end of 2010.
g)The applicant left Malaysia [in] September 2011.
h)[Mr C] communicates with the applicant about the safety and wellbeing of the applicant’s parents.
i)The applicant’s family members have not experienced any harm in Malaysia from the moneylender or any agent for the moneylender.
j)The applicant’s parents have changed their address since the applicant left Malaysia but remain living in Negeri Sembilan.
k)The applicant’s parents have not been contacted by the moneylender to enquire about the applicant’s whereabouts or otherwise.
l)The applicant has not had any contact with the moneylender since he left Malaysia.
m)The moneylender does not know where the applicant is living.
I found the applicant’s evidence regarding the beating he witnessed in the café as he was walking past the café to be vague and implausible. The incident which the applicant said occurred in 2008 just two years before he borrowed money from a moneylender was not described in his application for a protection visa or in his written statement dated 4 March 2024. His evidence was that he was just walking past the café yet saw the beating and knew the person had died as he was walking past. As described the beating occurred in a very public place. He did not know the person and nor did his friends yet on the applicant’s evidence his friends told him that the person had been beaten to death due to their indebtedness to the moneylender. I do not accept that the applicant witnessed a person beaten to death in a café. I do not accept that the applicant witnessed a person beaten to death due to unpaid debts owed to a moneylender.
I put to the applicant that it was now 13 years since he had left Malaysia and asked him how the moneylender would recognise him now. He said that they would definitely recognise him because of the size of the loan. I asked him why he had not repaid any more of the loan. He responded that when he came to Australia in 2011 he did not have relevant documents and so it was difficult to get a job and so he did not have much money then. He agreed with the proposition that if he made repayments he would not be harmed.
Claims for protection - racism
The applicant claims that his business suffered in Malaysia because he could not secure government contracts because he is Chinese Malaysian. It was not clear that he had sought such work and failed to obtain it but rather said he would have done any job he could get. He said that the government stipulated that Chinese Malaysians cannot get [work sector] projects from the government. The applicant also gave evidence that he could find employment in Malaysia if he returned to Malaysia.
The relevant country information states:
3.15 DFAT assesses that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system and the civil service, including when seeking a promotion, or when opening or operating a business in the private sector.[2]
[2] DFAT Country Information Report: Malaysia (24 June 2024).
The applicant’s business was not solely dependent on government contracts. Based on the country information, I accept that as a Chinese Malaysian operating a business in the private sector the applicant experienced low levels of official discrimination while operating his business. Prior to commencing his business he worked for others in the [work sector]. The applicant’s evidence is that he would secure employment in Malaysia. I find that if the applicant returns to Malaysia he will secure employment.
The applicant also said that if he made a complaint to police relating to any threats of harm it would not be investigated by the police as they are corrupt and because he is Chinese Malaysian. I accept that the Malaysian police force primarily comprises Bumiputera and that Malaysians perceive the police as one of the most corrupt institutions in the country.[3] I also accept from the country information set out above in relation to ‘loan sharks’ that state protection is available but not always effective in such cases.[4]
Claims for protection – other claims
[3] DFAT Country Information Report: Malaysia (24 June 2024), [5.5] and [5.6].
[4] DFAT Country Information Report: Malaysia (24 June 2024), [3.154].
The applicant made a number of claims about what would happen to him and his family if he returned to Malaysia in his written statement dated 4 March 2024:
My life would be at risk and very miserable.
I would not be able to have a relationship with my family while living as their lives would be at risk.
I would be physically harmed due to racism. Such physical harms would include physical assault, death by stabbing, basting, shooting or hanging.
I and members of my family could be murdered.
I and members of my family could be robbed.
I could face the death penalty.
The fact that there is no death penalty under Australian laws this is one of the main reasons I chose Australia to run away to from Malaysia.
I and members of my family could have their homes burnt when they are in these homes.
I and members of my family could be torched physically resulting in death.
I suffer mental and emotional distress when I think about what my life could be like if I was to return to Malaysia. This distress is very upsetting for me and this affects my physical health and fitness at times. This affects me completing day to day requirements at times.
I took the applicant to each of these matters. He said that he sees on the news that things like peoples’ homes being burned do occur. At the second hearing he said he did not have to worry about the death penalty. He said that he could be framed by police. He said they could plant drugs on him and frame him. The applicant has not made any complaint to police.
When asked whether he had ever seen a health professional for any mental health concerns he said that in Malaysia he occasionally had headaches but not much else, so he had not been seen by any health professional. When asked whether he had received a diagnosis related to his headaches he said he had not and that it was probably because of the weather, being hot and not sleeping well. Asked why he was not sleeping well he said he did not know. Sometimes he does not sleep well but he did not give evidence that this was because he was thinking about anything in particular. I find that the applicant does not have any diagnosed mental health condition. I do not accept that the applicant’s physical health and fitness is affected in any way by any mental or emotional distress.
I find the applicant’s claim that the police would frame him for a criminal offence if he returns to Malaysia and makes a complaint to them about the illegal moneylender to be implausible. The applicant did not make a complaint to the police before he left Malaysia and for the reasons that follow, I do not accept that there will be a need for him to do so in the reasonably foreseeable future. I find it implausible that the applicant would be framed by the police for any reason based on the evidence before me.
Does the applicant satisfy the refugee criterion for protection?
I have accepted that the applicant has paid only one repayment of a significant loan. However, it has now been 14 years since the applicant borrowed the money from the money lender. The applicant has had no contact from the moneylender since he left Malaysia in 2011. While I accepted that the moneylender said to the applicant in June/July 2010 that if he did not pay it would not be good for him, the moneylender did not act on the threat in any way other than to continue to request the money and adhere to the applicant’s request to delay repayment. The business closed at the end of 2010 and the applicant left Malaysia in September 2011. The moneylender has not contacted the applicant’s parents or other family members to enquire about the applicant’s whereabouts or for any other reason. If the moneylender was genuinely interested in locating the applicant or seeking retribution over the years, I would expect there to have been some level of contact with the applicant’s family members. The applicant’s parents have moved address but remain within Negeri Sembilan. The moneylender does not know the applicant’s whereabouts. I am satisfied that the moneylender has no genuine interest in the applicant in order to recover the debt or seek retribution for his failure to repay the debt. It is implausible therefore that he or anyone close to him would be murdered, robbed, have their homes burnt while they were in their homes or that he or any member of his family could be ‘torched physically resulting in death’.
There would be no reason for the applicant to engage with the police if he returns to Negeri Sembilan Malaysia in the reasonably foreseeable future. I do not accept that there is a real chance of the applicant being harmed by the police due to his claim relating to the moneylender or due to claimed racism within the police force in Malaysia.
I have found that the applicant will find employment if he returns to Malaysia. I do not accept that there is a real chance of the applicant experiencing harm due to racism in locating employment in the [work sector].
Based on the findings of fact I have made I am not satisfied that there is a real chance of harm if the applicant were returned to Negeri Sembilan in Malaysia in the reasonably foreseeable future.
Even if I were to accept, which I do not, that there is a real chance the applicant would experience a level of racism in securing employment in Malaysia, based on the country information such harm would not reach the level of ‘serious harm’ for the purposes of s5J(4)(b) of the Act. The applicant’s evidence is, and I have found, that he will locate employment in Malaysia. While the applicant gave some evidence about the amount of income he would earn in Malaysia saying that the income he would earn would not be sufficient to repay the loan, I am not satisfied that the applicant will suffer significant economic hardship that threatens his capacity to subsist by reason of racism in seeking and securing employment nor any other harm that would rise to the level of seriousness of the instances of harm set out in s 5J(5) of the Act.[5]
[5] Section 5J(5) of the Act is not an exhaustive definition of ‘serious harm’.
Even if I were to accept, which I do not, that there is a real chance the applicant would experience a level of racism generally in Malaysia as a Chinese Malaysian, based on the country information such harm would not reach the level of ‘serious harm’ for the purposes of s 5J(4)(b) of the Act.
For the reasons given above, I am not satisfied that the applicant has a well-founded fear of persecution. He is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). For the reasons I have given and the findings I have made to conclude that there is no real chance of harm of any kind, I also find that there is no real risk that the applicant will suffer any harm as a necessary and foreseeable consequence of his being removed from Australia to Malaysia.
Even if I were to accept, which I do not, that there is a real risk that the applicant would experience a level of racism in securing employment in Malaysia or generally, based on the country information and the applicant’s evidence, I am not satisfied any such harm would meet the definition of ‘significant harm’ in s 36(2A) of the Act. I am not satisfied that any such harm would meet the definition in s 5(1) of ‘cruel or inhuman treatment or punishment’ as it would not amount to severe pain or suffering, whether physical or mental or pain or suffering that could reasonably be regarded as cruel or inhuman in nature. I am not satisfied that any such harm would meet the definition of ‘degrading treatment or punishment’ as that term is defined in s 5(1) of the Act. I am not satisfied that any such harm would cause the applicant or be intended to cause humiliation that would be regarded as extreme.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am 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.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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