1925598 (Refugee)
[2024] AATA 4200
•10 September 2024
1925598 (Refugee) [2024] AATA 4200 (10 September 2024)
CORRIGENDUM
DIVISION: Migration & Refugee Division
CASE NUMBER: 1925598
COUNTRY OF REFERENCE: Malaysia
MEMBER: Kathleen Timbs
DATE OF DECISION: 10 September 2024
DATE CORRIGENDUM
SIGNED: 24 September 2024
PLACE OF DECISION: Sydney
AMENDMENT:
The following correction is made to paragraph 29:
-delete the date 27 December 2024; and
-substitute the date 27 December 2016.
Statement made on 24 September 2024 at 12:49pm
Kathleen Timbs Member
DECISION RECORD
DIVISION: Migration & Refugee Division
CASE NUMBER: 1925598
COUNTRY OF REFERENCE: Malaysia
MEMBER: Kathleen Timbs
DATE: 10 September 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 10 September 2024 at 11:16am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – terrorist charges – association with the Sulu terrorist organisation – fears of revoking citizenship – detention – physical assault – threats from criminal gang – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 to refuse to grant [the applicant] a protection visa under s 65 of the Migration Act 1958 (the Act).
[In] December 2016, the applicant arrived in Australia from Malaysia.
On 30 November 2017, the applicant applied for the visa.
On 6 September 2019, the delegate refused to grant the visa.
On 12 September 2019, the applicant applied for review of that decision by the Tribunal.
The Tribunal rescheduled the hearing of this application on two occasions at the request of the applicant. It invited the applicant to a joint hearing of his application and an application of his wife (appeal number 2109622) on 15 May 2024. The applicant did not attend the hearing. The Tribunal heard the applicant’s wife’s application on that day and on 29 May 2024.
The Tribunal heard this application for review on 25 June 2024 with the help of an interpreter in the Malay and English languages. The applicant attended the hearing in person to provide evidence and present arguments.
RELEVANT LAW - CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are in s 36 of the Act.
To be granted the visa, an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, they must be either a person in respect of whom Australia has protection obligations because they meet the refugee criterion or complementary protection criterion, or they must be a family member of a person who meets one of those criteria and that person must hold a protection visa.
The Tribunal must affirm the decision under review if it is not satisfied that the applicant meets one of the criteria.
EVIDENCE AND MATERIAL CONSIDERED BY THE TRIBUNAL
The Tribunal considered the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes. The relevant report is the DFAT Country Information Report Malaysia published on 24 June 2024 (the DFAT report).
The Tribunal considered documents relevant to the review:
·documents provided by the Department including the applicant’s visa application and the delegate’s reasons for decision;
·oral evidence and submissions made by the applicant and an email sent to the Tribunal on 8 September 2024; and
·relevant country information discussed below.
The applicant did not provide any documents to support his application for review.
At her hearing, the applicant’s wife gave the Tribunal permission to use evidence relevant to her application for review in its consideration of this application for review. The Tribunal considered the following evidence provided by the applicant’s wife to support her application for review:
·relevant documents provided by the Department, including the visa application made by her first husband and the delegate’s reasons for the decision to refuse to grant her a protection visa; and
·relevant documents provided by the applicant’s wife before and after hearing and oral evidence and submissions provided by the applicant’s wife at hearing to support her application for review.
CONSIDERATION OF EVIDENCE, FINDING OF FACTS AND APPLICATION OF THE LAW
Background
The applicant provided a Malaysian passport to the Department. It examined it and was satisfied that it is genuine. On that basis, the Tribunal finds that he is a Malaysian citizen. It has no evidence to suggest he has a right to reside in any other country and finds that Malaysia is the receiving country for ss 36 and 5J.
The applicant told the Tribunal he was born in Terengganu State on the west coast of Peninsular Malaysia. His parents are Malaysian citizens. He grew up in a small town in that state and attended primary and secondary school there. His father and [surviving siblings] live in Malaysia.
The applicant told the Tribunal that he attended university at [University 1] in Kota Kinabalu in Sabah State on the island of Borneo. He graduated with [an occupation 1 qualification] in [specified year]. He has not worked as [an occupation 1] since graduation. Rather, he said that he came to Australia in [2016] because he had ‘a problem with the Government’ (discussed below).
The applicant told the Tribunal that he had worked as a picker in rural areas and as an [occupation 2] since coming to Australia. At the time of hearing, he told the Tribunal he had been working [in a business 1] on a casual basis in a rural area of NSW but he lost his job because he took leave to attend the hearing. He said he is now working for [Employer 1].
The applicant married in 2019 and has [number] children born in Australia.
Refugee assessment
The criterion in s 36(2)(a) of the Act 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.
Section 5H(1) of the Act provides that a person is a refugee if he or she is outside their country of nationality and is unable or unwilling to avail himself or herself of the protection of that country because of a well-founded fear of persecution.
Under s 5J of the Act , a person has a ‘well-founded fear of persecution’ if, among other things:
· the person fears persecution;
· there is a real chance that the person would be persecuted;
· the persecution involves serious harm and systematic and discriminatory conduct.
Protection claims
Visa application
In the applicant’s visa application, the following words appear under the heading ‘Provide reasons why this applicant left that country or those countries’:
My name is [Name A]. I came from Malaysia and this is my second arrival in Australia...
The application goes on to say that the applicant left Malaysia because of poor economic circumstances, personal debt and that he claimed protection because he could not find work if he returned to Malaysia and ‘With no money, I could not buy foods (sic), rent a house, and pay monthly bills’.
At hearing, the applicant told the Tribunal that he is not known by that name and has entered Australia on only one occasion. He could not provide an explanation for the errors in the visa application and resiled from the claims for protection made in that document. He said another person helped him with the application and the Tribunal infers that person cut and pasted information from another application. The Tribunal gives no weight to the information in the visa application.
Claims made at hearing
At hearing, the applicant told the Tribunal that he fears returning to Malaysia because he was the subject of an investigation by police about terrorist offences by the Sulu terrorist organisation. He told the Tribunal he fears prosecution and losing his citizenship and becoming stateless.
Assessment
At hearing, the applicant said that he had stayed in Sabah [from] the end of 2016 because he intended to [do further studies] in 2017. He said a person named [Mr A] approached him and offered him a job to deliver packages from his [business premises] to the [named] markets. He said he needed money and did not bother to find out what was in the packages. He said he delivered [packages] over 8 days and, on
[a day in] November 2016, the police arrested him because they were investigating the last package. He said they detained him at a police station and alleged that he was ‘in cahoots with Sulu terrorists’. He said the police showed him that the package contained [suspect material] and they said Sulu terrorist use those items to make bombs. He said they ‘forced him’ to reveal [Mr A’s] identity and beat him and cut his finger. He showed the Tribunal scars on his eye and finger.
The applicant told the Tribunal the police released him without charge after [number] days and he returned to his family home in Terengganu. He does not know whether there were any other arrests and has not looked into media or other sources to find out.
He said his [Relative A] is a police inspector and he told him what had happened. He said that his [Relative A] told him that the situation was serious and that he might be charged with treason and lose his citizenship. The applicant said his [Relative A] suggested that he come to Australia and seek protection. The applicant said he applied for a visa to travel to Australia on 27 December 2024 and left for Australia as soon as possible [later in] December 2016.
The applicant told the Tribunal he is unwilling to return to Malaysia because he believes he would lose his citizenship and that this would mean he could not continue his study and could not own property. He said he does not know how he would live and is concerned that his wife and their children would also be stateless. When pressed, he also said he was concerned he would be prosecuted and go to jail for terrorist offences.
The applicant said he is unwilling to return to Malaysia because he is very disillusioned about the Malaysian government because the police detained him and beat him. He said he is afraid to meet strangers and cannot meet anyone connected to the Malaysian government because he has lost all trust. He described his feelings as ‘like I have a phobia’. He told the Tribunal that he has not received a diagnosis of any mental health condition and has not sought help. He said he can control his feelings because of his [occupation 1] background.
Country information
The DFAT report does not contain information about Sulu terrorism. Other sources show it is a name given to the Abu Sayif Group (ASG). The group is a fundamentalist Muslim resistance movement in southern Philippines associated with terrorist activity in the Sulu Province of the Philippines (East, Bob. 2009. The Abu Sayyaf: terrorism in Sulu Province, Republic of Philippines or a convenient presence? Journal of Globalisation for the Common Good). Country information confirms the group were responsible for kidnappings in Sabah in 2016 and that the Government was actively countering terrorism at that time (United States Department of State, Country Reports on Terrorism 2016 - Malaysia, 19 July 2017, [accessed
08 August 2024]).
Was the applicant arrested and detained?
After the hearing, in an email sent on 8 September 2024, the applicant said that he had not obtained any documentation to support his claims before he left Malaysia because he left quickly on the advice of his [Relative A]. He said his [Relative A] cannot help with documentation because he might lose his job for helping him. Nevertheless, the Tribunal generally accepts the applicant’s evidence of past harm. He gave relatively detailed evidence at hearing in a straightforward manner of the events that led up to his arrest and of his detention. The evidence is not inconsistent with country information in the previous paragraph. In that case, the Tribunal makes the following findings of fact:
· the Malaysian police detained the applicant in late 2016 for [number] days;
· the police told him the arrest was related to an investigation into ASG terrorist activities; and
· the applicant suffered harm during his detention and that the police released him without charge after [number] days.
That the applicant has suffered harm in Malaysia in 2016 is not sufficient to make out his case. The Tribunal must consider whether there is a real chance of serious harm to him if he were to return to Malaysia. This is a forward-looking test.
Is there a real chance the applicant would be deprived of citizenship?
The Tribunal asked if the applicant had advice from a lawyer in Malaysia about whether there is a real chance of losing his citizenship. He advised that he did not and relied on his [Relative A’s] advice that this was a risk if he returned to Malaysia. He said he ‘did not bother to seek legal advice’ or to find out what would happen to him if he returned to Malaysia. He said ‘what is the point of me engaging a lawyer because I do not want to know anything at all about what happened … because I no longer have the heart to return to Malaysia’ because of the detention and beating.
The Tribunal advised the applicant it had reviewed information available about Malaysian citizenship law and that it found a Malaysian law that allows the Government to revoke citizenship for ‘disloyalty’ but that law did not apply to citizens by birth. The Tribunal asked if the applicant wished to have time to obtain advice after the hearing and to make submissions on this matter. He declined that offer and the Tribunal has not received any written submissions on this issue at the time of writing.
Article 25(1)(a) of the Constitution of Malaysia applies to any person ‘who is a citizen by registration under Article 16A or 17 or a citizen by naturalisation’. It provides that the Government may deprive a person of their citizenship if satisfied that they have shown themselves ‘by act or speech to be disloyal or disaffected towards the Federation’.
The applicant is a citizen of Malaysia by birth, rather than a naturalised citizen. Article 17 is repealed and article 16A refers to persons residing in Sabah and Sarawak on Malaysia Day in 1963. They are not relevant to the applicant. (See also Choo Chin Low, Report on Citizenship Law: Malaysia and Singapore, Robert Schuman Centre for Advanced Studies, paragraph 4.4). In that case, the Tribunal finds that Article 25(1)(a) does not apply to the applicant. It has no information about other relevant powers of revocation of citizenship that might apply to the applicant. It finds there is no real chance the applicant would lose his citizenship for ‘disloyalty’ or for any reason related to his detention if he were to return to Malaysia.
Does the applicant genuinely fear prosecution and imprisonment?
As noted above, the applicant did not independently advise the Tribunal that he was unwilling to return to Malaysia because of a risk of prosecution and imprisonment. He firstly told the Tribunal he relies on the risk of losing his citizenship and only claimed to fear prosecution and imprisonment when asked directly by the Tribunal if that were the case. The Tribunal finds this affects the credibility of his claim of fear of prosecution.
At hearing, the Tribunal asked the applicant about the progress of the police investigation after he left Malaysia. He said that the police had attended the homes of his mother, [and specified relatives] soon after he left Malaysia but, other than that, he did not know what, if anything had happened. Significantly, he told the Tribunal that he made no effort to find out. He had not, for example, looked for press reports about the discovery of the package and progress of any investigation into or to Sulu terrorism events in Sabah from 2016 or later. He told the Tribunal that he had not made enquiries with his [Relative A].
The Tribunal expressed surprise that he had not made any effort to follow up on investigations that might involve him. He said that he did not want to know anything because he was depressed and disillusioned because of the actions of the police and because he thought that all his efforts to obtain a university degree and his ambitions to study at a higher level were now worthless. He said he ‘felt empty and was not interested in finding out about what happened’ and ‘felt nothing about my own country’. He also told the Tribunal that he lost faith in other people after what had happened to him and was afraid to meet strangers
and cannot meet anyone connected with the government. He said he is afraid that he will lose what he has now in Australia if he returned to Malaysia.
In the Tribunal’s view, if the applicant were genuinely afraid that the police would charge him with such a serious crime, he would have made efforts to determine if that would be likely. His mood does not explain a lack of interest in any relevant investigation that concerns him. At the least, the Tribunal finds he would have followed the news about any ongoing investigations related to the incident or Sulu terrorism in Sabah. In all the circumstances, the Tribunal is not satisfied the applicant is genuinely concerned about prosecution.
Is there a real chance of prosecution?
As compared to his evidence of arrest and detention, the applicant’s evidence that there is a real chance of prosecution and imprisonment lacks detail and is internally inconsistent and unconvincing.
During the hearing, the applicant told the Tribunal that the police released him because they could not charge him unless they located [Mr A]. He later said the police were certain to charge him with a serious crime because they had CCTV footage of him carrying the package. At another time, the applicant said his [Relative A] told him that the investigation continues but it cannot progress unless they find [Mr A]. He said his [Relative A] has tried to find [Mr A] but that he might have fled to the Philippines or been killed in skirmishes between the police and the ASG.
The Tribunal noted there are extradition arrangements between Australia and Malaysia and suggested Malaysia would seek his extradition if there was sufficient evidence of a serious crime affecting national security. The applicant said he does not believe there is sufficient evidence for extradition because the police have not found [Mr A]. However, he said he wants to avoid the risk of being charged if he returns to Malaysia.
The applicant’s evidence that his [Relative A] told him there is an ongoing investigation is inconsistent with his evidence that he did not make enquiries of him about the progress of any investigation and did not know what had happened. The Tribunal does not accept that evidence and, given his evidence that he has made no other enquiries, the Tribunal finds the applicant does not know if there is any ongoing investigation. His assertions there is a real chance of prosecution are speculative.
The Tribunal takes into account that the police released the applicant without charge after they arrested him on suspicion of a serious crime related to national security. His evidence is that they did not attempt to locate him again except on one occasion in 2016 and he was able to leave Malaysia soon afterwards. In those circumstances, the Tribunal infers that the police released the applicant and did not impede his travel to Australia because they had concluded he is not connected with the ASG in a way that breaches national security laws.
The applicant’s evidence on this issue is unconvincing for the reasons above. The Tribunal finds there is no real chance of prosecution and imprisonment if he returns to Malaysia.
Mental health issues
The applicant told the Tribunal that he had tried and failed to come to terms with what had happened to him. He described having feelings related to his detention that might be symptoms of a mental health condition. He said he had not received any diagnosis or treatment from a doctor or other mental health practitioner. He said he can control his feelings because of his training as [an occupation 1]. However, without evidence of a particular
diagnosis, the Tribunal does not accept there is a real chance that he has a mental health condition that would get worse if he were to return to Malaysia.
Protection claims made by the applicant’s wife
The Tribunal noted that the applicant’s wife gave evidence to the Tribunal that she is afraid of harassment and violence if she returns to Malaysia because she has not repaid loans from unlicensed loan sharks. The Tribunal asked if the applicant held any fear for his own safety for those reasons. The applicant told the Tribunal that he knows his wife has debts to loan sharks arising from her relationship with her first husband. However, he said he does not know the details because she becomes very upset if he asks questions. He said it is a serious matter and that they will threaten him or his children to get back their money.
As noted above, the Tribunal heard the application for review of the applicant’s wife on
15 and 29 May 2024. To determine if there is a real chance of serious harm to the applicant from loan sharks, the Tribunal considered the evidence and submissions made by the applicant’s wife to support her application for review.
The applicant’s wife arrived in Australia in June 2017 and joined her first husband. Her first husband made a visa application and application for review that included the applicant’s wife. The Tribunal separated the applications for review at the request of the wife following their separation.
The applicant’s wife’s first husband’s application for a protection visa referred to Malaysian government regulation affecting his capacity to earn income from foreign exchange trading. In her Pre-hearing Information Form, the applicant’s wife referred to threats of harm ‘related to Forex and Personal Loans in my name’. The applicant’s wife provided more particulars of her claim in the written statement provided on 14 May 2024 which states that she fears returning to Malaysia because she is afraid of violence from an unlicensed moneylender.
The Tribunal heard the applicant’s wife’s application for review on 15 and 29 May 2024 with the help of an interpreter in the Malay and English languages. At hearing, the applicant’s wife repeated the claim that she fears harm from an unlicensed moneylender and made an additional claim that she fears harm from the investors in her first husband’s foreign exchange trading activities.
Risk of harm from loan sharks and foreign exchange investors Moneylenders
A written statement from the applicant’s wife sets out the following in relation to events in Malaysia before the applicant’s wife came to Australia on 4 June 2017:
·The applicant’s wife borrowed money from an unlicensed moneylender (whom she called the CETI) before she got married in May 2016.
·In January 2017, the applicant’s wife borrowed money from the CETI again to help her first husband with debts from his foreign exchange trading business.
·The moneylender lent her the money because she showed them her bank statements showing a long history of income from employment.
·She borrowed the money, rather than her first husband, because he did not have a bank statement showing regular income and she believed they would not lend to him.
·The repayment amounts were RM3,000 per month and her monthly salary was RM2,000. The interest rate was very high.
·In April 2017, the moneylender came to her work and stopped her from leaving by parking behind her car. She told them she could not repay and they smashed the car mirror with a hammer and this caused an injury to her forehead.
·She went to the police who refused to take any action against the moneylender. They came with her to a medical clinic and then took her home.
·She left her employment and stayed with her parents in Terengganu about 7 hours away for 2 weeks. She then went to stay with her sister for 2 to 3 days.
·She had a video call with her first husband and told him to pay the debt. He paid the debt in mid-May 2017.
·In June 2017, her first husband went missing. He called her when he had already travelled to Australia and told her he would not tell her his location unless she borrowed money on his behalf again. He said that she ‘could die in Malaysia’ if she did not borrow the money for him.
·She borrowed RM40,000 from the CETI and used RM20,000 to repay her first husband’s investors in his foreign exchange business. She gave some of the remaining money to her first husband and used the rest to travel to Australia.
The applicant’s wife wrote she is sure if she goes back to Malaysia that she would be ‘harmed or killed’. She states that:
The gangsters have not stopped looking for me. They told my family they would wait for me at the airport. They also called my sister back in 2017 looking for me. Warning my sister that I owed a very large amount of money and that if I come there, I am not safe because they can kill me…This year they came to my father’s home and in 2023 some gangsters called my father asking where I am and that they can kill me.
She claimed that ‘these gangsters can go anywhere’ and moving to another place to avoid them is not possible. She wrote that they found her at her parents’ home and at her grandmother’s home.
At hearing, the applicant’s wife repeated that she would be harmed or killed by the moneylender if she returned to Malaysia.
She told the Tribunal that her first husband had convinced some of his friends to invest in his foreign exchange trade in return for a guaranteed return. She said this was a problem when his trading was unprofitable or did not make enough profit to pay the returns.
The applicant’s wife told the Tribunal she borrowed the first amount of money at her first husband’s request in May 2016 because he could not pay his investors. She said she called a number in an advertisement on a noticeboard outside her work and the moneylender came to her office to look at her bank statement and payslip. She said she gave him her PIN and bankcard. She said he transferred RM15,000 within a few hours (the first debt). She said that they withdrew RM1,500 each month from her bank account leaving her with approximately RM500. She said her first husband reimbursed her so that she could meet her living expenses. The moneylender returned her bank card when she repaid the debt.
The applicant’s wife said her first husband asked her to borrow a second debt of RM20,000 in January 2017. She used the same moneylender and agreed to repay RM25,000 with interest. She said the moneylender did not require any proof of her income on that occasion. She said the monthly repayment was higher than her salary and the lender withdrew so much money in the first month that she could not meet her living expenses. She said her first husband refused to reimburse her so she arranged for her salary to be paid into another account so that she could meet her living expenses.
She said she had not paid the moneylender for 2 months when she was assaulted in April 2017. She provided a photo showing an abrasion on her head resulting from the
assault. She repeated her written evidence that she went to stay with her parents and said she stayed for 2 weeks. On the first day of hearing, she said she then went to stay at her sister’s home in Terengganu for about 3 weeks and, on the second day of hearing, she said that this was only 2 or 3 days. On both days, she said she went to stay at her grandmother’s home in Kelantan. She told the Tribunal that her grandmother had died and that she stayed there alone. She said her father asked her to return to the family home after 2 weeks because he was worried about her living alone at her grandmother’s home. She said she went back to her family home and stayed there until she left for Australia. She said she stayed in the house and hid her car so that the moneylender did not know she was there.
The applicant’s wife told the Tribunal she remained ‘in hiding’ from the moneylender until she left for Australia. On the second day of hearing, the Tribunal noted her written evidence that her first husband repaid the second debt in mid-May 2017. The applicant’s wife said her first husband had paid the arrears only. The Tribunal suggested there was no reason to hide in late May and early June if her first husband had paid arrears. She then told the Tribunal that she was also concerned about her first husband’s investors (discussed below) and, when pressed, she did not provide any reason for hiding from the moneylender during this period.
At hearing, the applicant’s wife repeated the evidence in the written statement that her first husband went missing. She said she tried to contact him but he did not return her calls. She said she thought he might have travelled to Singapore because his mother comes from Johor near the Singapore border and she travelled to Johor from her grandmother’s home in Kelantan to see if one of his friends knew where he was. The Tribunal suggested travelling to Johor was not consistent with her evidence that she was ‘in hiding’ in Terengganu or Kelantan to avoid the moneylender and investors. She said she went to Johor for only one day.
The Tribunal asked why she did not speak to her first husband’s friend over the telephone. She said she did and that he asked her to come to see him in person. She said he knew that she had to travel a long way to Johor and does not know why he insisted on a face-to-face meeting. She said he told her he was making enquiries about whether her first husband was in Singapore and had no information about her first husband’s whereabouts.
The applicant’s wife advised that she travelled by car from Kelantan to Johor and back. She agreed with the Tribunal that the trip takes more than 7 hours each way and she said she drove through the night.
The applicant’s wife told the Tribunal that her first husband contacted her by [a viseo service] in early June 2017 and she could see that he was wearing warm clothes. She said she inferred he had travelled to Australia and that he said she had to borrow RM40,000 for him if she wanted to know his location. She said he assured her that he would be able to repay the debt from his Australian earnings.
She told the Tribunal that, at his request, she borrowed RM40,000 from the same lender and agreed to repay RM45,000 with interest (the third debt). She repeated the evidence in her written statement about how that money was distributed and used for her travel to Australia.
On the first day of hearing, the Tribunal asked her why the lender would lend her a larger sum if she had not repaid the debt. She told the Tribunal that they will lend money quickly and do not care if the person has capacity to repay. The Tribunal suggested this is inconsistent with her evidence that they required documentation of regular income for the first debt and that they would not lend to her first husband because he did not have that kind of documentation. The applicant’s wife repeated that they are willing to lend money at any time.
As noted above, on the second day, the applicant’s wife told the Tribunal that her first husband had paid the arrears owing in mid-May 2017. She did not give this evidence in response to questioning about her capacity to borrow more money in June 2017 given on the first day of hearing.
The Tribunal asked the applicant’s wife why she borrowed from the lender again for her first husband, rather than arranging a personal loan from a licensed lender. She said arranging a personal loan from a licensed lender would take months and that she needed to leave Malaysia quickly to be safe from the lenders.
At hearing, the applicant’s wife said she fears that she and her children will be harmed physically by the moneylender if she returned to Malaysia. She said they contacted her father soon after she left Malaysia and that they have either phoned him or attended her home at least once per year since then. She said that they ask him to tell her to repay the amount and to tell them where she is. She said that they refused to tell him how much is owing. She said she is mainly afraid for her children and claimed the moneylender could kidnap them and use them in an illegal organ trade that operates in Thailand or they could sell them to the Philippines for prostitution.
Foreign exchange investors
At hearing, the applicant’s wife said her first husband left Australia because he could not pay the debts he owed to his investors. She said his investors were watching her father’s home and a home that her first husband’s family owned in Terengganu. She said they visited her father in 2017 asking after her and that she was also worried about what they would do to her. When asked for more details, she said that she did not know who they are and does not know what they could do to her.
When pressed on the second day of hearing about why she would be afraid of the investors, the applicant’s wife said she received a message on [social media] in Australia from someone she thinks is an investor stating they would hurt her. She told the Tribunal she closed her [social media] account at that time and does not have a copy of the message. When pressed for more details, she told the Tribunal that, when the investors visited her father, they told him to warn her to return their money and not to let it escalate to the point where they would do something. However, the applicant’s wife also said that it was ‘a long time ago’ since she and her family heard from the investors.
Country information
The DFAT report relevantly includes the following information about victims of unlicensed moneylenders:
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-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.
The Tribunal also takes account of recent media reports that confirm unlicensed moneylenders are active in Malaysia. Most reports are of moneylenders harassing neighbours and shaming debtors or approaching family members for repayment (‘Loan shark’s menace in Malaysia affect debtor’s neighbours, spark concern’, The Star, 29 January 2024; ‘Mum disowns son over loan shark debts’, The Star, 27 April 2024 and ‘He is no longer my father’, The Star, 24 April 2024).
Assessment
On 27 August 2024, the Tribunal sent the applicant a notice under s 424A of the Act inviting him to comment and respond to the following information by 10 September 2024:
The Tribunal has made a decision on your wife’s visa application for review of a decision to refuse to grant her a protection visa. It has found there is no real chance she would be harmed by unlicensed moneylenders if she returns to Malaysia. If the Tribunal made the same finding in your application for review, it would find that there is no real chance that you would be harmed by unlicensed moneylenders if you returned to Malaysia.
The notice also advised that, if the Tribunal relies on the finding that there is no real chance of harm from unlicensed moneylenders to his wife, it may form a reason, or part of a reason, to affirm the delegate’s decision in relation to his application.
The Tribunal received a response to the notice on 8 September 2024. In it, the applicant repeated his evidence at hearing that the threat to his wife is also a threat to him and to their children and that, despite the findings of the Tribunal, ‘Her case is true’ and that she ‘can’t go home with the problems she faced’. He also said that she had an emotional response to the decision to refuse her application for review.
Taking account of the country information, in the Tribunal’s view, it is not unlikely that the applicant’s wife borrowed the first and second debt and that the moneylender’s agent harassed and assaulted her when she did not make payments on the second debt. It accepts her evidence of those debts and the assault. The Tribunal also accepts that the assault was traumatic and that the applicant’s wife left her work and went to stay in her hometown and at her grandmother’s home. She might well have been in hiding from the moneylenders until her first husband made payments in mid-May 2017. However, she had no reason to fear the moneylender from that time until the next payment became due the following month.
The applicant’s wife’s evidence of borrowing for a third time from the same moneylender is entirely unconvincing. She took steps to ensure the moneylender could not recover the second debt from her bank account and failed to make voluntary payments. The moneylender resorted to harassment and assault to collect that debt. Her original evidence was that she was in hiding from the moneylender at the time that she borrowed the third debt because she feared violence because of that default. Her assertion that the moneylender did not hesitate to lend a much larger sum to a person who had defaulted on a loan is not believable, particularly as they took steps to determine the applicant’s wife’s capacity to repay before making the first loan. Lending more money would not have been good business practice.
It is also implausible that the applicant’s wife borrowed money from the moneylender because she had to have money quickly to leave Malaysia because she was afraid of the moneylender. If there was a real chance of harm from the moneylender at that time, it would arise from her default on her previous debt. Again, it would not be good business practice to lend more money to the applicant’s wife if that were the case.
The Tribunal accepts that the applicant’s wife did not repay the second debt and that the moneylender might have further harassed her to ensure repayment if she had remained in [Town 1] in 2017 if she did not make repayments owing to the moneylender. That is not sufficient to satisfy the refugee criterion which contains a forward-looking test. The question for the Tribunal in this case is whether the applicant would be at risk from the moneylender if he and his wife returned to Malaysia in the foreseeable future.
The applicant’s wife told the Tribunal she has made no repayments to the moneylender since arriving in Australia and the Tribunal has no evidence of the amount outstanding at the time of writing. The applicant’s wife asserted the amount owing after borrowing the third debt would be so large that it would be impossible to repay because of the interest rate charged by unlicensed moneylenders. However, the Tribunal is not satisfied the applicant’s wife borrowed the third debt. Her assertion that she owes an amount that is impossible to repay is not convincing and the Tribunal does not accept that she owes a very significant amount to the moneylender.
At hearing, the Tribunal asked the applicant’s wife whether the moneylender would be pursuing the debt after approximately 7 years. The applicant’s wife said the moneylender or
their associates contacted her father soon after she left Malaysia and that they have either phoned him or attended the family home at least once per year since then. She said that they ask him to tell her to repay the amount and to tell them where she is living. However, curiously, she said they refuse to tell him how much is owing.
The applicant’s wife provided statements in English from her father and brother to support a contention that, despite the passage of time, the moneylender is pursuing recovery of the debt by regularly visiting family members. The applicant’s wife told the Tribunal that her father does not speak or write English and that her brother has limited English language skills. They are not the original words of her family members translated for the benefit of the Tribunal. The statements are unsworn and were not supported by sworn oral evidence from her family members at hearing. The Tribunal gives the documents no weight.
On 14 May 2023, the applicant’s wife provided a copy of a text message in English sent from her brother in January 2023 warning her that the moneylender had attended the family home. When asked why the message was in English, the applicant’s wife said her brother sometimes sent messages in English to practise his language skills. The Tribunal asked the applicant’s wife to provide another example of a text message from her brother in English. The applicant’s wife produced a text message in English sent in December 2023 with a similar subject matter. The applicant’s wife did not produce messages in English relating to any other topic. The Tribunal finds the text messages were produced in English to support the applicant’s wife’s claims rather than because the contents of the messages are true. The Tribunal gives the text messages no weight.
On 29 May 2024, the applicant’s wife sent a translation of a police report provided in Malay on [a day in] May 2023. The document states the applicant’s wife’s father told the police on
[a day in] January 2023 that 3 men came to the family home and said they would take action if the applicant’s wife did not pay her debts. The Tribunal is not convinced by the document that the moneylender’s representatives have attended the home. It is difficult to know if the document is genuine and, given there are no earlier similar reports, the Tribunal gives the document little weight.
At hearing, the Tribunal noted that country information suggested that family members are likely to be harassed or shamed by moneylenders if debts were unpaid. It suggested that she would be aware of that and, to ensure their safety, she would not have borrowed the third debt and/or she would have made efforts to repay debts when she came to Australia. She told the Tribunal the moneylender’s representatives who visited her father were respectful and they assured him they would not harm him. She said they addressed him as ‘father’. The Tribunal finds it is unlikely the moneylender’s representatives would demonstrate respect to the applicant’s wife’s father considering the country information set out above that moneylenders shame and harass family members to recover debts. It also finds the characterisation of the moneylender’s representatives as respectful does not sit well with the applicant’s wife’s evidence that the moneylender would take drastic steps to recover the debt such as kidnapping and harming her children.
Taking account of the above, the Tribunal does not accept the moneylender has made regular and recent efforts to recover a debt of an unknown amount by attending her family home. Whether or not they are licensed, the moneylender is operating a business and, in the Tribunal’s view, they are not likely to be spending money and resources to unsuccessfully attempt to recover the outstanding debt. It is more likely that they have written off the debt after such a long time.
As noted above, the applicant’s wife told the Tribunal she fears that she and her children would be harmed physically by the moneylender if she returned to Malaysia. She said she is mainly afraid for her children and that they could kidnap them and use them in an illegal
organ trade that she said operates in Thailand or they could sell them to the Philippines for prostitution. The Tribunal noted that it had no country information suggesting that moneylenders in Malaysia engaged in such activities. The applicant’s wife said it is not publicly known but that Malaysians all know that it happens. In the Tribunal’s view, this assertion is no more than hyperbole and affects the applicant’s wife’s credibility.
At hearing, the applicant’s wife asserted the moneylender had connections throughout Malaysia and that she would not be safe in any area. The Tribunal has no country information to support an assertion that moneylenders have widespread networks throughout Malaysia and the Tribunal finds the assertion is also unconvincing.
If the moneylender is still operating, the Tribunal accepts they might restart their efforts to recover any outstanding debt if the applicant’s wife returned to [Town 1] and came to their attention. It also accepts that this might include harassment and assault of the kind that happened in 2017. However, the applicant’s wife lived in [Town 1] for work and later to be near her first husband. There is no reason for her to return to [Town 1] with the applicant and their children. The Tribunal infers they would not return there if they returned together to Malaysia.
Both the applicant and his wife were living in Terengganu with their families immediately before leaving for Australia and the Tribunal infers they would return to those homes or live nearby for family support. The Tribunal does not accept the applicant’s wife’s evidence that the moneylender makes regular contact with her family in Terengganu. It finds she would not come to their attention and be subject to any recovery efforts if she returned to Malaysia. It follows from this that there is no real chance of serious harm to the applicant from the moneylender if they were to return to live in Malaysia.
Foreign exchange investors
For completeness, the Tribunal considered whether there is a real chance of harm to the applicant because the applicant’s wife’s first husband has not paid debts to his investors. The Tribunal accepts that the applicant’s wife’s first husband left Australia with debts to investors related to his foreign exchange trading activities and that the investors attempted to locate him through the applicant’s wife before she left Malaysia. The Tribunal also accepts the evidence that the applicant’s wife had no role in her first husband’s business and, given she has no apparent assets, there is no reason for them to make efforts to recover money owed by her first husband from her. Taking this into account, with its findings about her credibility, the Tribunal does not accept her uncorroborated evidence of threats made to her through her father and over [social media] by the investors. Without further detail or convincing evidence, it finds there is no real chance of harm to her or to the applicant from the investors if they returned to their family homes in Terengganu or to any other part of Malaysia.
Conclusion
The Tribunal is not satisfied that the applicant has a genuine fear of prosecution and imprisonment in Malaysia and has found that there is no real chance that, if he returned to Malaysia, he would lose his citizenship; be prosecuted and imprisoned; or that he has a mental health condition that would be exacerbated.
The Tribunal has also found there is no real chance of harm from foreign exchange investors or from unlicensed moneylenders if he and his wife returned to Malaysia.
In that case, the Tribunal finds there is no real chance that the applicant would suffer persecution involving serious harm if he were to return to Malaysia. He therefore does not meet the refugee criterion in s 36(2)(a).
Complementary protection assessment
A person who is not a refugee may satisfy the criterion for a protection visa in s 36(2)(aa) if the Minister (or Tribunal) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm. Section 36(2A) contains a definition of significant harm.
The Tribunal has found for the reasons above that there is no real chance of serious harm to the applicant if he returns to Malaysia. For the same reasons, the Tribunal finds that there is no real risk of significant harm if he were to be removed to Malaysia. He does not meet the complementary protection criterion in s 36(2)(aa).
CONCLUSION
The Tribunal has found that the applicant does not meet the refugee and complementary protection criteria in s 36(2)(a) and (aa). It has no evidence that he is the family member of a person who meets those criteria and he therefore does not meet the criteria in s 36(2)(b) or
(c). The Tribunal will affirm the decision under review for that reason.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kathleen Timbs Member
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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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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