1906419 (Refugee)

1906419 (Refugee) [2022] AATA 1931 (3 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906419
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Peter Vlahos
DATE:3 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 3^rd May 2022 at 8.00AM.
CATCHWORDS
REFUGEE – Protection visa – Malaysia – economic hardship – loan shark – fears harm from moneylender syndicate – applicant is not a witness of truth – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 14 March 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 citizen of Malaysia applied for the visa on 23 December 2018. The delegate refused to grant the visa on the basis that the Application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant appeared before the Tribunal on 26 April 2022 to give evidence and present arguments.
The applicant provided no witnesses to be orally examined by the Tribunal nor did she provided any written witness statements for the Tribunal to consider.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicant and for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of origin and assessment
Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal (at the hearing) and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has had her claims assessed against that country in relation of sections 36(2)(a) and 36(2)(aa) of the Act. Therefore, on this basis, the Tribunal accepts the applicant’s identity as is claimed.
Third Country protection
From the evidence before the Tribunal, the applicant does not have the right to enter or to reside in a country other than his country of origin, Malaysia. Therefore, the Tribunal finds that s.36(3) of the Act does not apply to the applicant’s situation.
Department’s file
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard and has considered the information referred to in the delegate’s decision record. The applicant provided a copy of the delegate’s decision to the Tribunal with his Application for review.
Background – the migration and visa history of the applicant
The applicant arrived in Australia on [date] September 2018 as the holder of a UD-601 Electronic Travel Authority visa (ETA). On 23 December 2018, the applicant applied for a XA-866 Protection visa which the Department refused to grant but the applicant was granted the associated Bridging visa.
EVIDENCE AT THE HEARING
Personal Background
The applicant originates from Bayan Lepas, Palau Pinang, Malaysia. She is not married and while in Australia she has been living with her aunt who the applicant told the Tribunal is an Australian ‘permanent resident.’ The applicant is [age] years of age. The applicant has family living in Malaysia which consists of her parents and three other siblings. The applicant is the eldest of the children. The applicant has completed her education in Malaysia and had undertaken a vocational skills training program but did not indicate with which institution this vocational education was provided to her. Nor did the applicant provide to the Tribunal any documents concerning her education. Prior to the applicant leaving Malaysia for Australia, she was working with ‘her mother’ in a ‘small family business, selling food’ to the public.
The Applicant’s claims for Protection
The applicant’s claims for protection and supporting evidence are contained in the Department’s file and her claims for protection are summarised as follows:[1]
·The applicant department Malaysia because of economic hardship. Salaries are low and living expenses are high.
·The applicant travelled to Australia for opportunities.
·If the applicant returns to Malaysia, nothing will change.
·The applicant did not relocate to another area within Malaysia because everywhere is the same.
·The applicant does not believe the authorities will protect her because the authorities do not care.
[1] See, Department of Home Affairs File no. [deleted].
At the hearing, the Tribunal put the above claims to the applicant to confirm their correctness and to enquire if the applicant had anything further – that was relevant to the above claims which she wished to discuss with the Tribunal. In response and through the interpreter, the applicant added the following:
·The applicant claims economic hardship, but her claim of hardship involved her, and her family caused by her father borrowing money from an illegal money lending syndicated and has now been pressured to repay the loan and is unable to do so.
·The applicant claims that her father’s initial borrowings totalled approximately, 50,000 Malaysian Ringgit. The loan’s duration was for one year.
·The applicant’s father due to his business failing is unable to repay the loan and interests.
·The applicant was directly threatened, she claims because her father cannot pay the money borrowed and the family told her to leave for Australia to be live with her aunt and not to be in harm’s way.
·The illegal money syndicate the applicant’s father had dealings with was described by the applicant with the letters ‘[Money lender 1]’.
The applicant said that her father negotiated a loan with a local illegal moneylending syndicate, the applicant identified to the Tribunal with the letters – ‘[Money lender1]’. The applicant went on to explain to the Tribunal that her father borrowed [amount] Ringgits with the condition attached that the loan and interest by paid in full in one year.
The applicant said that the loan agreement was agreed to by her father in 2015 or 2017 – more likely (according to the applicant) to have been in the year, 2015. The applicant also said that at the time the agreement was agreed to by her father with the moneylender syndicate she ‘was too young’ but she now ‘understood what had gone on’ because ‘she had grown up.’
The applicant was asked – why was it necessary for her to come to Australia? The applicant said that she came to Australia ‘for her safety’. The applicant told the Tribunal that she has an aunt in Australia who is a ‘permanent resident’ and she is currently living with her.
The applicant also said, that when the moneylender was not getting his money from her father because her father’s business was experiencing loss of business, the moneylender threatened her, if her father would not make the required payments.
The applicant told the Tribunal that despite, the threats from the moneylender, the applicant and the family did not go to the police for help because ‘the police were connected with the moneylenders’ syndicate – [Money lender 1].’
The applicant was asked – how did she know that the police were connected to the [Money lender 1]? Her response was that this information was told to her by ‘her parents.’
The applicant was asked – what threats did the moneylender direct at her? The applicant told the Tribunal that the [Money lender 1] ‘tried to kidnap me…’ and that ‘they wanted to harm me when I was going to school…’
The applicant was asked – when did this kidnapping happen? The applicant said ‘while [she] was in Malaysia …in a week …a few days…’
After the attempted kidnapping of the applicant the applicant said that her mother spoke to her aunt in Australia and asked her to take care of her (the applicant). That is why (according to the applicant) she came to Australia.
Currently, while in Australia, the applicant said that she is working to help her family in Malaysia. The applicant is currently working part-time on a ‘[farm]’ in rural Victoria earning approximately $400 to $500.00 on a weekly basis. According to the applicant she sends approximately $200.00 every three weeks to her family (for support) in Malaysia.
The applicant was asked – how much of the original loan has been repaid by her parents? – The applicant said that an amount of [amount] ringgits is still outstanding but ‘she was not sure on that amount….’
The applicant was asked – if she could provide the Tribunal with any documentary evidence concerning the loan? The applicant said that she was not aware of any documents.
The applicant also said she was not sure when the loan will end and went on to tell the Tribunal that the loan will end when all the money is paid to the moneylender.
The applicant said that in her absence from Malaysia there had been ‘no threats to her family’ but if she returns to Malaysia, the applicant said – [they] – the moneylender syndicate will ‘still be holding a grudge against me.’ The applicant was asked by the Tribunal, - why did the moneylender syndicate hold a grudge against her? The applicant’s response was that [they] the moneylender syndicate ‘wanted to harm her’ because ‘she was a girl.’
The applicant said that the [Money lender 1] did not choose to threaten her brother because they [the brothers] did not know anything about the loan.
The Tribunal asked the applicant – if the [Money lender 1] (moneylenders) wanted to inflict harm on her, why did they not stop the applicant at the Airport? The applicant (though the question was properly interpreted to her by the interpreter) the applicant did not answer the question but said that ‘I was afraid’ and that her family ‘sent her to Australia’ to be safe.
The applicant also said that her father would not go to the local police to report the moneylender’s threats on the family and on the applicant because her father considered the local police to be ‘part of’ the moneylender syndicate, [Money lender 1].
The applicant said that she had no documents in her possession concerning the loan.
The applicant was asked – did her father sign any documents – that she is aware? Her response was to tell the Tribunal that she ‘did not know…’
The applicant fears returning to Malaysia because she will be targeted by the [Money lender 1] gang because her father owes them money. At the same time, the applicant remains in Australia and is working and part of what she earns, she provides to family in Malaysia in order for them to meet their living expenses and needs.
The applicant was asked by the Tribunal – why she had not come to the Tribunal with her ‘aunt’ for her aunt to provide evidence about the applicant’s circumstances? The applicant said that her aunt was unable to come to the hearing because she was working.
The applicant confirmed for the Tribunal that she had no further evidence to submit to the Tribunal for its consideration.
COUNTRY INFORMATION – MALAYSIA – AH LONG – MONEYLENDER SYNDICATES AND THE RULE OF LAW[2]
[2] The Tribunal also referred to the Australian Government, Department of Home Affairs – Common Claims – Country of Origin Information Services Section (COISS) Effective 30 November 2021 and the Department of Foreign Affairs & Trade Country Information Report – Malaysia – 29 June 2021 20210629092134
Illegal Moneylenders in Malaysia
Illegal money lending or loan sharking, as it is commonly known or ‘Ah Long’ in Malaysia, is an offence under s. 5(2) of the Moneylenders Act 1951. If prosecuted a fine of not less than RM20,000.00 and not exceeding RM100,000.00 or imprisonment of up to five years can be imposed.[3]
In October 2013, The Sundaily reported that figures supplied by the Chinese Association (MCA) Head of Public Services and Complaints Department, Datuk Seri Michael Chong, showed that “The loan shark menace is worsening with Malaysians expected to be in debt by more than RM40 million this year – compared to last year’s RM39.5 million.” Loan sharks reportedly lent RM34.4 million to financially challenged Malaysians up to September 2013, and at the time of this article, “426 people were in debt to loan sharks, with each person
owing an average RM80, 751…” According to Chong, “people continued to borrow from loan sharks despite continuous reminders by the authorities of the repercussions of doing so.” He also said that “…of the 426 cases, 80% were by gamblers while the rest were drug abusers, failed businessmen and those living beyond their means.” Seven per cent or 32 persons were reported to be repeat borrowers, and Chong said that “…most of the repeat borrowers were involved in drug abuse and that their families were the ones who ended up being harassed by loan sharks.” Chong also said that the “…police were powerless against loan
sharks as the transactions were on a “…willing seller willing buyer” basis. Police, however, “…can take action if loan sharks resort to violence or extortion to recover their money.”[4]
Various media articles indicate that the practice of illegal money lending is widespread in Malaysia and that police operations targeting the Ah Long are not uncommon. According to a Daily Express report on 22 April 2014, “…police are tracking down a number of unlicensed money lending syndicates…through contact numbers printed in their advertisements, including flyers, posters, banners and business cards…” The article also notes that one of the most significant barriers to prosecuting Ah Long syndicate members is the “…lack of
cooperation from the public, especially those who had fallen victims to the syndicate.” The problem stems from threats by syndicate members. Police in Perak made 88 arrests during an eight-month period and continue to combat Ah Long syndicates by removing marketing materials, such as advertisements, from the public space.[5]
Police action against the Ah Long included a police operation in Kuching, conducted from 23 May 2014 to 23 June 2014, which reportedly resulted in 1,051 illegal advertisements and posters for illegal loans being removed in 135 police raids conducted.4 In April 2014, the police and local authorities in Penang “…pulled down 238 banners and streamers promoting illegal moneylending…”[6] The Malaysian Communications and Multimedia Commission also disconnected the telephone lines of contacts printed on materials.[7] Between March and May 2015 police in Kota Kinabalu seized between 2,700 and 6,700 “…posters, banners and name cards of illegal money lenders.”[8] It was also reported that “…City Police chief ACP M. Chandra said the police had carried out numerous operations under Ops Vulture.”[9]
Numerous media reports were sourced by the Tribunal regarding the effectiveness of police investigations and arrests related to Ah Long syndicate crimes. Police in Sabah reported that “…16 men believed to be Ah Long members were arrested in 2013 compared to 12 arrested in 2012” during Operation Vulture.[10] In 2013, Malacca police investigated 29 Ah Long related cases and arrested 20 people. Thirteen cases involved preventative measures with cases being “…investigated under section 5(2) of the Money Lenders Act 1951 for operating without a licence.”[11] In addition, “…four more cases and seven individuals were investigated under section 29AA of the same Act for putting up posters.”[12] The Malaysian Digest reported on 16 October 2014 that “…police rescued a 21-year-old after he was abducted by three men, believed to be loan sharks…One day after the incident; the police apprehended a 24-year-old man and a 29 year old woman…believed to be involved in the incident.”[13]
[3] ‘KL Consumer Safety Association – No need to fear the loan sharks’ Bernama (Malaysian National News), Agency, 17 February 2015<CXBD6A0DE1580>
[4] ‘Loan shark menace worsens in Malaysia’, The Sundaily, 2 October 2013 <CX320169>
[5] ‘Police cooperate with Council to wipe out loan sharks’, Daily Express, 28 December 2013<CX320164>
[6] ‘Crackdown on Ah Long’, The Star Online, 25 April 2014<CX1B9ECAB11426>
[7] Ibid
[8] ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May 2015<CXBD6A0DE13537>
[9] Ibid
[10] ‘Sabah Police nine Ah Long cases in 2013’, The Malaysian Times, 3 January 2014<CX1B9ECAB11427>
[11] ‘Malacca police investigates29 Ah long cases since January’, Malaysian Edition, 28 December
2013<CXC28129414704>
[12] Ibid
[13] ‘Police Free Man Abducted By Loan Sharks’, Malaysian Digest, 16 October 2014
Law Enforcement in Malaysia

In its 2014 country report, the Australian Department of Foreign Affairs and Trade (DFAT) provided a brief overview of the state of law enforcement in Malaysia:
Law enforcement entities operate at both federal and state level. The Royal Malaysian Police (RMP) reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide. The federal Department of Islamic Development (JAKIM) enforces sharia law and has jurisdiction over Muslims in Kuala Lumpur and the two other federal territories. The RMP and JAKIM operate independently and only occasionally work together. The Malaysian army is not heavily engaged in domestic activities apart from some anti-terrorist campaigns and is not relevant to State protection under this report.
The same report also draws the reader’s attention to the following:
§ Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity, or engagement in corruption. RMP officers receive limited training, particularly on human rights.
§ Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern.
§ The RMP is 80-85 percent ethnic Malay. In 201 4, the Government commenced a campaign to increase the number of women, ethnic Chinese and Indians in the RMP.
§ There is no legal requirement for the state to investigate deaths in RMP custody. Investigations generally occurred at the request of the Attorney General but were often instigated because of public interest.
§ The National Human Rights Commission (Suhakam) also receives
complaints against RMP and has conducted investigations into police
behaviour. However, the Government is not required to formally consider Suhakam’s reports or recommendations.
Freedom House reported that in 2015:
Government and law enforcement bodies have suffered a series of corruption scandals in recent years. The Malaysian Anti-Corruption Commission (MACC) has itself come under scrutiny for its interrogation practices, as two suspects have died after falling from MACC office buildings since 2009.
Government favouritism and blurred distinctions between public and private enterprises create conditions conducive to corruption. Officials regularly move back and forth between the private and public sectors, fostering many opportunities for collusion and graft. Political parties are allowed to own or have financial holdings in corporate enterprises. The Whistleblower Protection Act took effect in 2010 but has not significantly improved accountability.[14]
According to Transparency International’s corruption index for 2014, Malaysia’s situation has improved and, out of a total of 175 countries, moved up three spots from 53 to 50.[15] However, survey results also showed “…that the perception of the government’s anticorruption efforts has deteriorated, with 38% of Malaysians saying they are ineffective.”[16]
[14] ‘freedom in the World 2015:Malaysia’, Freedom House, 5 May 2015<NG5A1E6BC218>
[15] ‘Corruption Perceptions Index 2014’, Transparency International, 5 December 2014.
[16] ‘Political parties perceived to be most corrupt, says survey’, Malaysian Insider, 14 May 2014.
Regarding malpractice in Malaysia’s security forces, DFAT in its country report – Malaysia, dated 19 July 2016 reports that:[17]
[17] Department of Foreign Affairs and Trade (DFAT) Country Report – Malaysia, 19 July 2016, at pp.25-26
Police Integrity and Accountability
5.6 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia
Police in 2005 identified a perception of widespread corruption within the RMP. In response,
the Government publicly acknowledged the existence of police corruption and implemented
reforms, including establishing compliance units within the RMP. Police officers were subject
to trial by criminal and civil courts and disciplinary action was taken against officers found
guilty, including suspension, dismissal or demotion. ….
5.8 The Inspector General of Police announced the establishment of an Integrity and Standard
Compliance Department in July 2014 to enhance police integrity and image, however as it sits
within the RMP organisational structure, it is not an independent body. Suhakam also receives
complaints against the RMP and has conducted investigations into police behaviour. However,
the Government is not required to formally consider Suhakam’s reports or recommendations.
In January 2016, Human Rights Watch reported that the government has not established an
independent police complaints and misconduct commission, despite lobbying from the
Malaysian Bar Council and civil society groups.
Judiciary
5.11 The Federal Court is the highest judicial authority in Malaysia, followed by the Court
of Appeal, High Courts at state level and subordinate courts. Sharia courts operate at
state level with jurisdiction over Muslims. The majority of Malaysia’s criminal, civil and
family law matters are heard in the subordinate civil courts. Judicial appointments are
made by a Judicial Appointments Commission; however, the Prime Minister has final approval. Most of the members of the Federal Court are Malay Muslims.
Malaysia’s highest courts are somewhat influenced by political or religious affiliation. For example, credible local and international human rights organisations considered the prosecution of Anwar Ibrahim to be politically motivated (see ‘Political Opposition Members’, above). In July 2015, the government removed the Attorney General, Abdul Gani, who had been leading an investigation into 1MDB.
Credible sources advised that defendants generally had adequate time to prepare a defence, particularly where they had financial means to engage private counsel. Government legal aid resources were limited and generally of poor quality. Strict rules of evidence apply in court. However, state-held evidence was not consistently made available to the defence. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods; the International Center for Prison Studies reported that in mid-2014 24.8 per cent of the total prison population were pre-trial detainees.
The ability for individuals to seek legal redress through Malaysian courts is mixed. Judges receive relatively low salaries, limited training, and appointments were often made directly from university. Selective prosecution and arbitrary verdicts occurred, particularly in instances involving high-profile opposition politicians and human rights defenders. However, many cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.
FINDINGS AND REASONS FOR DECISION
The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 194:
….care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted….
The Tribunal also accepts that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…” (see, The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph [196]). However, the Handbook states at (paragraph [204]:
…The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts…
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal accepts that the applicant’s father (and family) may have had financial issues because of his business not operating well and these economic problems may have forced him to consider re-financing his business to permit it to continue to operate.
The Tribunal also accepts that based on the country information persons in Malaysia do reach agreements for personal loans in a manner that has been suggested by the applicant in her evidence before the Tribunal. However, the applicant’s version of events as submitted, concerning her particular circumstances raises certain issues of credibility in the Tribunal’s opinion
The Tribunal’s discussion and consideration of the applicant’s evidence
First, the applicant told the Tribunal that her problems with her father’s moneylender (‘Ah Long’) began when her father negotiated a ‘loan’ with a local moneylender syndicate – she described as the ‘[Money lender 1]’. The loan’s duration was, according to the applicant, for one year and it was for approximately, RM[amount]. After a period of time, the applicant’ father was unable to repay the loan and interest.
The applicant did not provide any information concerning the interest paid as part of the loan. The applicant only indicated the amount that was borrowed by her father (RM[amount]).
The Tribunal was told that because of this default on her father’s part, the moneylender began to make threats against the applicant’s person. The Tribunal was told that she was targeted in this instance because ‘she knew about her father’s dealings’ and was the oldest in years of her siblings and she knew the details of what had gone on. The Tribunal does not find this explanation of events as credible.
The applicant told the Tribunal that she was targeted by the moneylender because she knew about his dealings with her father. It was of concern to the Tribunal that when asked by the Tribunal to explain the circumstances and details of the applicant’s father’s dealings with the moneylender, the applicant provided very little details to the Tribunal for it to consider even though she claimed to have knowledge of her father’s dealings with the [Money lender 1] -moneylender syndicate. For example, when asked how her father encountered the moneylender, the applicant’s response was ‘through friends’ to details were forthcoming. When the applicant was asked whether her father had signed any document or documents with the moneylender, the applicant’s response was that ‘did not know.’ When asked by the Tribunal – why she was targeted by the moneylender and forced to leave for Australia, the applicant told the Tribunal that it was for her ‘safety’ and that ‘I am a girl’ and that her parents ‘worried [that the moneylender] will do things to her.’ Again, the applicant provided no details of any actual attempts or direct threats made against her by the moneylender syndicate. Further, when asked about the loan and how much money was still owing to the illegal moneylender by her father, the applicant’s response was to tell the Tribunal ‘RM[amount], RM[amount], or RM[amount]’ and then concluded her remarks with the comment ‘not sure.’ These comments in response to specific issues raised by the Tribunal concerning the applicant’s claims indicate to the Tribunal that the applicant had very little knowledge about the issues as she claimed to have known and experienced them while in Malaysia. Therefore, the conclusion the Tribunal arrives at and finds is that there was no issue with a moneylender called [Money lender 1] as claimed by the applicant, though the applicant’s family may have had past and on-going issues concerning their financial well-being but not as claimed by the applicant. Therefore, the Tribunal concludes and finds that the applicant does not have a well-founded fear of persecution as defined in s.5J(1) because of her father’s dealings with a local illegal moneylender and because of her father’s inability to repay in full a loan he has procured with an illegal moneylender.
Second, the applicant told the Tribunal that she could not escape the illegal moneylender while she remained in Malaysia and therefore, her parents decided for her safety to send her to live in Australia with her aunt. The Tribunal was told that because of knowledge of her father’s affairs with the moneylender ([Money lender 1]) the applicant was a target or of interest to the illegal moneylender. The applicant told the Tribunal that once problems surfaced with the moneylender and her father, her father did not go to the local police for protection because according to the applicant, the police in Malaysia were with the illegal moneylender syndicate. In other words, according to the applicant’s evidence, she was not able to seek proper and durable protection from the local police. Again, the Tribunal considers and finds the applicant’s account of events about the ability and motives of the local police in relation to the illegal moneylender difficult to accept. Though, Malaysia, has systemic issues with ‘corruption’ the country information available and referenced by the Tribunal reports that the authorities’ actions against Ah Long and illegal moneylending syndicates have been more proactive. The Tribunal does not accept that, as the applicant claimed, the police in Malaysia were not willing, or were incapable of protecting her against the illegal moneylender syndicate – [Money lender 1] (if she was actually threatened). The Tribunal therefore considers that effective protection measures as defined in s.5LA of Act were and are available to the applicant and to her family in Malaysia and that the applicant does not have a well-founded fear of persecution in accordance with s.5J(2) of the Act.
Third, the applicant claims that if she returns to Malaysia in the reasonably foreseeable future she will be found and dealt with by the illegal moneylender as a reprisal for her father’s non-payment of the money owed to the illegal moneylender. The Tribunal does not accept this claim has substance or credibility. The applicant has been in Australia, since 2018. In that time, she told the Tribunal that she had been working and sending some money to help her family with living expenses in Malaysia. Surely, if there was a debt owed to a moneylender, the applicant would have provided a portion of her money earned to her father regarding the alleged loan’s repayment and provided copies of the transfer of that money. This was not the case in this instance. The money provided by the applicant, according to the applicant was transferred for her family’s living costs. Also, the applicant told the Tribunal that if she returns to Malaysia she would be found out and dealt with by the moneylender syndicate. Again, her claim of being found and dealt with lacks substance and credibility. The applicant was able to leave Malaysia in September 2018 without any issue and will return to Malaysia without any issue because she is of no interest to any moneylender or moneylenders because they do not exist in the opinion of the Tribunal and even if they did exist the Tribunal does not accept that, as the applicant claimed, the police in Malaysia will not assist her or that they were incapable of protecting her and her family against any threat if required. There is no evidence before the Tribunal that the Malaysian state and its subordinates (the police) would not provide the required assistance and protection to the applicant or to her family for whatever reason. Indeed, as the Tribunal stated above, there are effective protection measures as defined in s. 5LA of the Act in Malaysia and the applicant does not have a well-founded fear of persecution as provided for in s.5J(2) of the Act.
For completeness, the Tribunal has also considered the economic claims made by the applicant in her original claims for protection. It was noted by the Tribunal that the applicant claimed that severe economic crisis in Malaysia has caused her hardship and rendered her incapable of locating within the Malaysian employment market a well-paid employment. The Tribunal noted the country information in the delegate’s decision record which provides a very positive set of circumstances in existence in Malaysia. Even though, poverty is in existence, there is a vibrant economy in operation and a general commitment by the government to stem the tide of poverty generally speaking.[18]
[18] see, delegate’s decision record at pp. 2-3
In the Tribunal’s opinion, a refugee is a person who has, as provided for in subsection 5J(1)(a), a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion.’ The Tribunal concludes and finds the applicant’s claimed fear of harm in Malaysia for economic reasons is not for one of the s. 5J(1)(a) reasons, that is her race, religion, nationality, political opinion or membership of a particular social group which prevents her from seeking to find work and to work within the wider Malaysian economy. There is no evidence to suggest to the Tribunal that the applicant will be economically marginalised for one or more of the reasons in s. 5J(1)(a) of the Act.
For the reasons given in paragraphs [54] to [61] above, the Tribunal does not accept that applicant’s father borrowed money from an illegal moneylender as she claimed, nor that there is a real chance that because of her father’s inability to repay his debt, she will face persecution involving serious harm from the moneylender because he (her father) had failed to repay the money borrowed from the moneylender, if she returns to Malaysia, nor that she will not receive protection from the police if required for whatever reason or reasons. Or be precluded for any reason or reasons from engaging in the Malaysian economy in order to find a better paid employment. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary Protection considered
The Tribunal having concluded that the applicant does not meet the refugee criterion in s.36 (2) (a), the Tribunal has considered the alternative criterion in s.36 (2) (aa). For the reason given in paragraphs [54] and [61] above, the Tribunal does not accept that the applicant’s father borrowed money from an illegal moneylender (known as [Money lender 1]), as she has claimed, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm because her father has failed to repay money, he has borrowed from the illegal moneylender nor that the police would not provide protection if and when required by the applicant or her family nor that the applicant would not be able to find work – a better paying employment. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36 (2)(aa).

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1931

3 May 2022

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