2000805 (Refugee)

2000805 (Refugee) [2021] AATA 3304 (4 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2000805
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Paul Windsor
DATE:4 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 June 2021 at 3:17pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – financial problems after business failure – fear of economic hardship – threats of harm by money lenders – Ah Long – vague and inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
BMY18 v Minister for Home Affairs [2019] FCAFC 189
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
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 17 December 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 13 June 2018.
In his Protection visa application the applicant indicated he was born on [date] in [City 1], Kelantan state Malaysia, is ethnic Malay, a Muslim and has never married. He indicated that he departed Malaysia legally [in] March 2018 and arrived in Australia [later in] March 2018, entering on a Visitor visa.[1]
[1] See the Departmental file.
In his application, the applicant stated he came to Australia because he was surrounded by financial problems, debt and depression following a ‘failure in business’. He indicated he was being harmed by a money lender and pushed to repay debt immediately. He stated he feared ‘police and bank’ would take action if he is unable to pay his debt and that would affect his ‘wife and baby’.[2]
[2] See the Departmental file.
The delegate assessed that the applicant was claiming to fear economic hardship in Malaysia. The delegate refused to grant the visa, finding that there was no information before her to suggest the applicant will be targeted on his return to Malaysia for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act. Therefore, the delegate was not satisfied there is a real chance the applicant will suffer persecution for one or more of the reasons mentioned in s5J(1)(a) if he returned to Malaysia. In relation to the complementary protection criterion, after considering relevant country information regarding the Malaysian economy, the delegate found that absolute poverty has been largely eradicated in Malaysia and, noting that the economic climate in Malaysia affects everyone, concluded that any economic hardship the applicant might suffer on his return to Malaysia does not amount to significant harm, as defined in s,36(2A) of the Act.
The applicant applied to the Tribunal for review of this decision on 16 January 2019. He did not provide the Tribunal with a copy of the delegate’s decision record. On 25 January 2019 the Tribunal (differently constituted) found it did not have jurisdiction in the matter, as the review application was lodged out of time.
On 10 January 2020 the Tribunal’s finding that it did not have jurisdiction in the matter was set aside by consent by the Federal Circuit Court of Australia, and remitted to the Tribunal for reconsideration according to law. The court noted that the first respondent concedes that the decision of the second respondent (Tribunal) is affected by jurisdictional error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (DFQ17) at [41]–[65] per Perram J and BMY18 v Minister for Home Affairs [2019] FCAFC 189 (BMY18) at [32]–[35] per Reeves, Perram and Charlesworth JJ. The court commented that, in circumstances where the letter notifying the applicant of the decision of the first respondent's delegate to refuse to grant the applicant a visa did not clearly state the time by which the application to the Tribunal was to be made as required by subparagraph 66(2)(d)(ii) of the Migration Act 1958 (Cth), the Tribunal erred in concluding that the applicant was notified of the delegate's refusal decision in accordance with the statutory requirements (at [3]), that the review application was out of time (at [4] and [6]), and that it had no jurisdiction to entertain the review application (at [6]-[7]).[3]
[3] See the Tribunal file.
The applicant appeared before the currently constituted Tribunal on 3 June 2021 in a hearing held by video-conference (with the applicant’s consent) due to COVID-19 related restrictions in Melbourne. The 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 (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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection were set out in his protection visa application. His claims were as follows (as written by the applicant):[4]
[4] See the Departmental file.
75. I am seeking protection so that I do not have to return to: Malaysia
76. Why did you leave that country?
6 months ago, failure in business made me confront with financial problem. Choose to leave my country is best way to settle my problems. Especially I have a family to support and I am suffer and lack by giving money to them. They leave me in suffer because I am the who support my family. Surrounded by debt from everywhere makes me depress and stressful. I can’t even pay after broke from business. I cannot afford for family expenses in addition I unable to pay rental almost 3 months. I almost lost my saving and sold all my valuable things just to afford my family expenses. Its useless. Others, confront with pressure from my wife almost commit myself to suicide. I choose to leave because I cannot stay in my place anymore. I believe Australia giving me chance to change my life to solve my problem. I know my country have many jobs but the reason I’m leaving I’m surrounded by financial problem, debt and depression.
77. What do you think will happen if you return to that country?
I am probably unable to return to my country because of my problem. I don’t have enough money and will further problems and trouble to my wife and baby. Being unable to pay debt and unsettle rental makes me feeling insecure to return back my country.
78. Did you experience harm in that country? Yes
Being harm by money lender and pushed to pay debt immediately. I feel insecure and I worry about my family who involved in my problem caused by me. If still choose to stay and the interest of my debt become more maybe I will confront with big problem.
79. Did you seek help within that country after the harm? Yes
Difficulty of asking help from parent and sibling because I still have outstanding debt from them. as my condition I was ignored by them. My condition affected me to unable asking help. No one will look at us when were in trouble. Having sad life.
80. Did you move, or try to move, to another part of that country to seek safety? No
I believe Australia is big country and can help people like me from my suffer life and try as my hard to change my life. I will follow the rules and regulation conduct by this country.
81. Do you think you will be harmed or mistreated if you return to that country? Yes
In future yes, I believe I will lose everything in my life. I will not run out from my problem. As what happened to others and try to take early step before I destroy everything in my life.
82. Do you think the authorities of that country can and will protect you if you go back? No
I’m guilty by surrounded debt. No authorities can protect person like me.
Q83. Do you think you would be able to relocate within that country to an area where you would not be harmed? No
I’m facing financial problem in my country and I believe police and bank will take action if unable to pay my debt and this will affect to my wife and baby.
Findings and reasons
Identity
On the basis of the copy of his passport submitted to the Department,[5] the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is as claimed. The Tribunal accepts that Malaysia is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[5] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…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’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the 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 possibly be 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 a particular factual 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.
For the reasons set out below, the Tribunal found the applicant was not a credible witness and considers he has concocted his claims to have opened a [Occupation 1 business] that failed and to owe money to Ah Longs (unlicensed money lenders or loan sharks).
Assessment of claims
Background
At the start of the hearing the Tribunal asked the applicant if he was sure that everything in his protection visa application was true and correct as far as he knows and believes. He indicated it was. When asked if there were any mistakes he wished to point out to the Tribunal, the applicant replied, ‘no’. When asked if he had any help or assistance in preparing his application, contrary to the advice in the application that he had no assistance, the applicant indicated ‘a friend’ named [Mr A] helped him because he does not have English language skills. He said he paid his friend $150 for his help. He indicated his friend has now returned to Malaysia. When asked if he was happy that his friend wrote down what he told him, the applicant indicated he was.
Noting there were no details in the application regarding the applicant’s family, education or work history and that, despite the application indicating he had never married (at question 32), the written claims make reference to the applicant having a wife and a child (at questions 77 and 83), the Tribunal spent some time discussing the applicant’s background with him.
The applicant indicated that he is one of six siblings. He indicated that his parents live in his kampung (village) in [City 1] in Kelantan state with a sister and a brother, both of whom have down’s syndrome. He indicated his other siblings live either in [City 1] or in the Malaysian capital, Kuala Lumpur. He indicated one of his other brothers is still at school, one works in a factory and the third drives a [vehicle]. He indicated his parents are elderly and do not work.
When asked if he has a wife and child, the applicant indicated he does not, commenting that he is not married. When asked to confirm this is the case, given the written claims in his application indicated he was supporting a wife and child, the applicant replied, ‘no. I don’t’.
The Tribunal asked the applicant what work he did in Malaysia. He said he worked in a factory and then opened a [Occupation 1 business].
When asked about his education, the applicant said he completed up to SPM (Sijil Pelarjaran Malaysia or the Malaysian Certificate of Education, taken by fifth form secondary students). He could not remember what year he completed his schooling.
The Tribunal asked the applicant what he did after leaving school. He said he started working. When asked, he indicated he first worked at [Employer 1] in [City 1]. He indicated he did this for two years. He said he then worked [at Employer 2] in Kuala Lumpur for one year. He indicated he then returned to the village were he helped his father in his father’s business selling [food], which he did for about 5 months. He indicated that after that, he helped his brother in his brother’s [shop] in [City 1] for about 9 months. When asked what he did after that, the applicant said he made the decision to come to Australia. The Tribunal asked him when he worked in a factory and when he opened a [Occupation 1 business]. The applicant replied that he had forgotten when he had the [business] because it was a failure and he owed too much money and had too much debt.
The Tribunal again asked the applicant about his earlier comment that he had worked in a factory. He said he worked in [Factory 1] in Kuala Lumpur. When asked how long this was before he came to Australia he said it was one year. When asked why he stopped working there he indicated it was because the wages were low. When asked about the [Occupation 1 business] the applicant indicated that he opened the [Occupation 1 business] after his time at [Factory 1] and he failed. The Tribunal queried the applicant how could he forget when he had the [business] if was just before he came to Australia. He replied that he did do this before he came to Australia but it was a failure. The Tribunal queried the applicant that earlier in the hearing he had indicated that he made the decision to come to Australia after he had been working with his brother in the [shop]. The applicant indicated that he opened the [Occupation 1 business] after he returned from Kuala Lumpur and before he came to Australia, but it was a failure.
Noting that the applicant’s passport was issued [in] 2018 in Sabah state (on the northern portion of Borneo Island, in east Malaysia, rather than peninsula Malaysia where [City 1] is located) and that (in the Tribunal’s experience) many people from Sabah come to Australia to work and apply for protection visas, the Tribunal asked the applicant if he had ever been to Sabah. He said he had. When asked why he went there he replied, ‘for holiday’. When queried further he said he went there to find peace of mind and relief from his problem because an Ah Long (loan shark) was looking for him. The Tribunal asked the applicant if he knew anyone in Sabah. He indicated he had friends there. When asked what they were doing in Sabah he said they were not doing anything. When asked why his friends were in Sabah the applicant said they were working. When asked what work they were doing he said he did not know. When queried that it is a long way from [City 1] to Sabah (it is a two and a half hour flight) and asked if went there by airplane the applicant indicated he did but said the flight was cheap. The Tribunal asked the applicant if he met someone in Sabah about coming to Australia to work. He denied this was the case. Noting that he departed Malaysia from Kuala Lumpur to come to Australia, the Tribunal asked the applicant why he got his passport in Sabah. He said he was afraid in [City 1] so he did it in Sabah.

The Tribunal asked the applicant how he was able to afford the costs of coming to Australia, such as the cost of the passport, airfares and accommodation expenses. He said he took a loan from an Ah long.
The Tribunal asked the applicant what he did when he got to Australia. He said he worked, doing many things including work on [farms]. The Tribunal asked the applicant how he knew about this kind of work. He said his friend [Mr A] told him and he followed. When asked if his visa gave him work rights the applicant replied, ‘yes’. When queried that visitor visas do not give work rights and that he had not obtained a bridging visa with work rights until he applied for a protection visa nearly three months after he arrived in Australia, the applicant did not comment. The applicant indicated that he earnt between $60-80 cash per day and worked 4 days a week in summer and 3 days a week in winter.
Why the applicant came to Australia in March 2018
The Tribunal asked the applicant why he came to Australia [in] March 2018. He said he was running away from the Ah Long and he hoped his luck in life would change. He indicated that the Ah Long wanted to kill him because he could not repay his debt.
The Tribunal asked the applicant when he borrowed money from an Ah Long. He said it was when the [business] failed. He indicated he made the decision to borrow as he had to support his family and had to pay his rent which was three months overdue. He said his father was not working and he had to help support his two down’s syndrome siblings. The Tribunal asked the applicant if he had lived in the kampung with his parents. He indicated he did. He said he had been helping them and then he ran away to Sabah.
The Tribunal queried what rent he was referring to if he was living with his father in his father’s home in the kampung. The applicant indicated that he was referring to the rent for the [business]. He said when he shut the [business] he had to pay rent. When asked if he paid the overdue rent, the applicant indicated he did not. When asked why not if he borrowed money so he could pay it, the applicant said he needed money. When pressed that he indicated he needed both to pay the overdue rent and to support his family, the applicant said he gave it all to his mother and father.
The Tribunal asked the applicant why he decided to start an [Occupation 1] business, querying what skills he had in that area. He replied that he can [perform the work of Occupation 1], so made the decision to open a [business] in [City 1]. The Tribunal asked if he took over an existing [business]. He replied, ‘no’, indicating he opened a new business. The Tribunal how he was able to do that from scratch, given the [equipment] needed. He said he borrowed money to do it. The tribunal queried the applicant that he had indicated previously that he borrowed money when he decided to close the business. He replied, ‘yes’, but said he used two Ah Longs.
The Tribunal asked the applicant how much he borrowed the first time. He said he borrowed RM200,000 (the equivalent of AUD63,295 at the current exchange rate). The Tribunal queried why an Ah Long would have loaned him such a large sum of money. The applicant said the Ah Long was confident in him. The Tribunal observed that Ah Long’s do not want to risk losing their money and commented it seems unlikely given his background, with no relevant experience or work history in [Occupation 1], that an Ah Long would loan him RM200,000. The applicant replied that he had a friend who told him they were a good [Occupation 1] and could help and teach him how to do it.
The Tribunal asked the applicant what the interest rate was on the loan. The applicant said it was 20 per cent per month. The Tribunal asked how much he had to repay each month. The applicant said RM1,500. The Tribunal observed that if the monthly interest rate was 20 per cent, he would have to repay RM40,000 each month just to cover the interest, let alone to make any payments to reduce the principal. The applicant did not comment.
The Tribunal asked the applicant what his monthly rent was on the premises. He said it was RM5,000. When asked, he also indicated he paid his friend a monthly salary of RM3,000 (resulting in minimum monthly expenses of RM48,000). The Tribunal asked the applicant how long he ran the business for. He said it was for one year and two months. The Tribunal asked how much he owed when he closed the business. He said it was RM150,000. The Tribunal queried how this was possible if he borrowed RM200,000 and he was incurring RM40,000 interest costs per month, commenting that it is difficult to see how it could have survived for 14 months let alone have been able to reduce the principal debt owed. The applicant said he took more money from the Ah Long. When queried that that would have increased his debt not reduced it, the applicant replied, ‘yes’.
When asked if he borrowed from the same or a different Ah Long the applicant said it was a different person. The Tribunal queried whether this was when he decided to close the business. The applicant replied indicating that when he was about to go bankrupt he borrowed from the other Ah Long, shut the [business] and ran away.
The Tribunal asked the applicant why he decided to borrow more money. He said he wanted to clear his debt with the first Ah Long. When asked if he did this he replied, ‘yes’. When asked, he said he borrowed RM100,000 from the second Ah Long. The Tribunal queried how he was able to clear the debt with the first Ah long if he only borrowed RM100,000 from the second. The applicant said he only paid half of what he owed then he ran away. When queried that he had just told the Tribunal that he cleared the debt with the first Ah Long, the applicant replied, ‘only half’. When asked how much he still owed the first Ah Long after he repaid half the debt, rather than say RM75,000 (half of the claimed RM150,000 still owed when he closed the business), the applicant said he has forgotten as there is so much debt.
The Tribunal asked the applicant what the interest rate was on the second loan. He said it was 10 percent per month. The Tribunal observed that country information indicates that Ah Longs typically charge interest of 30 per cent per month,[6] and queried why an Ah Long would have loaned him RM100,000 at 10 per cent per month when he had no job, no business and was in debt. The applicant said he showed the Ah Long his [business] that went bankrupt and the Ah Long believed him and had confidence in him.
[6] DFAT Country Information Report, Malaysia, 13 December 2019, section 3.108.
The Tribunal asked the applicant how long after that did he depart. The applicant said two months later he ran away to Sabah.
The Tribunal asked the applicant if he paid anyone back any more money. He said he paid half to the first Ah Long and the rest he gave to his parents. The Tribunal queried the applicant that he would have had to make repayments of RM10,000 per month to the second Ah Long and asked if he made any such payments. He indicated he did not. He indicated he did not make any further repayments to the first Ah Long either. The Tribunal asked what happened when he did not make any payments to either Ah Long. The applicant said they threatened him, said they would kill him and kept looking for him.
The Tribunal asked the applicant if he has made any repayments since he has been in Australia (for over three years since mid-March 2018). He replied, ‘no’ and indicated he did not make any payments at all but was helping his family. The Tribunal observed that country information indicates that if people stop making payments and can’t be located, Ah Longs will target family members to repay the debt or to force the debtor to pay the debt.[7] The applicant replied, ‘yes’, commenting that they have ‘disturbed’ his parents. The Tribunal queried if that is the case, how has he been able to continue for over three years without engaging with the Ah Longs and making arrangements to repay any money. The applicant said they tried to force his father to pay but his father told them he did not have any money to pay. The applicant added that his father always ‘moves here and there’ to avoid them. He said they tried to force him to pay as well, by telling his father if he (the applicant) does not pay they will kill him (the applicant). The Tribunal queried why his father wouldn’t have told him to make an arrangement with the Ah Longs, so he did not have to keep moving around, and asked the applicant where his father has been moving to. The applicant said his father told him to pay them, adding that he has given money to his father and his father has given money to the Ah Longs. The Tribunal queried the applicant that before he said they had not paid any money to the Ah Longs. He replied that he gives money to his father who keeps half and gives half to the Ah Longs, so he is paying it bit by bit.
[7] DFAT Country Information Report, Malaysia, 13 December 2019, section 3.111.
The Tribunal asked the applicant where his father is moving around to. The applicant replied that he is not sure but commented that his father is always moving around. When asked why his father is doing this, if he has made arrangements to pay some money to these people, the applicant said he does not know, adding that it may be because his father is frightened.
The Tribunal asked the applicant if he went to the police for assistance when he was threatened. The applicant said the Ah Longs bribe the police so police will not do anything, commenting that the police in Malaysia are terrible. The Tribunal asked the applicant if he went to anyone else for help. He said he did not because there is no one else, only the police.
The Tribunal discussed with the applicant country information drawn from the DFAT Country Information Report (and other sources as indicated) regarding government action to address loan sharking in Malaysia and support services available to victims of loan sharks in Malaysia.[8] This information indicates that:
·unlicensed money lending in Malaysia is an offence under the Moneylenders Act 1951 (amended in 2003 and 2011) which gives the Royal Malaysia Police (RMP) considerable investigative powers against alleged loan sharks, including the right to search premises without a warrant and seize documents and moveable properties. Penalties for illegal moneylending activities are a fine of up to RM1 million or a jail term of up to five years, or both.
·Press reporting indicates ongoing activities by the police around Malaysia addressing loan sharking and threats to harm by loans sharks and their agents (clearly, assaulting people and making threats to kill are offences in Malaysia, where the criminal code is based on British law). The DFAT report comments that police have made several recent high profile arrests and investigations of syndicates, and notes that in October 2019 media reported that the RMP planned to embark on a ‘major war’ against loan sharks.
·The DFAT report and press reports indicate there are consumer support agencies in Malaysia such as the Malaysian Muslim Consumers Association (PPIM) and the Malaysian Chinese Association (MCA) that assist victims of loan sharks to negotiate fair terms with loan sharks to repay their debts. The DFAT report indicates that PPIM assisted over 10,000 cases involving loan sharks from 2012 to 2016, and sources report that the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the one per cent government rate. DFAT also notes that formal credit agencies are able to consolidate loan shark debts and provide payment plans, and therefore engaging such agencies is an option to mitigate against potential risks posed to those in debt.
·DFAT comments that the RMP is based on the British constabulary model, employs approximately 115,000 officers and operates 837 police stations across Malaysia.
·DFAT notes that local and international sources consider the RMP to be a professional and effective police force. While it is noted that the quality of members’ responses varies depending on levels of training, capacity and engagement in corruption, DFAT notes that, following a 2005 Royal Commission which identified a widespread perception of corruption within the RMP, the government implemented a number of reforms. These include the establishment of compliance units within the RMP and making it possible for officers to be tried by criminal and civil courts and be subject to disciplinary actions including suspension, dismissal or demotion. An Integrity and Standards Compliance Department was established within the RMP in July 2014 to enhance police integrity and image. Suhakam, the Human Rights Commission of Malaysia, has also investigated police behaviour.
·DFAT indicates that the subordinate civil courts hear the majority of criminal and civil matters in Malaysia. DFAT assesses that most cases in Malaysian civil courts comply with the rule of law and legal procedure.
[8] DFAT Country Information Report, Malaysia, 13 December 2019, sections 2.38- 2-39, 3.108-3.117, 5.5-5.8 and 5.13-5.17;
The Tribunal observed that the country information seems to indicate there are effective protection measures available to victims of harassment from loan sharks in Malaysia because there are relevant laws addressing the issue, there is a reasonably effective police force, and there is an impartial judicial system. The Tribunal added that additionally there are organisations like PPIM and the MCA that people can go to for support and assistance if they are being harassed by loan sharks.
The applicant commented that his father does not know what PPIM is because he is quite old. He indicated he did not have any other comments on the country information.
Assessment – claim to owe money to Ah Longs in Malaysia
After carefully considering all the available evidence, the Tribunal does not accept that the applicant ever opened a [Occupation 1 business], or that he ever borrowed money from an Ah Long, either to establish a [Occupation 1 business] or because of debt incurred when a [Occupation 1 business] failed. The Tribunal does not accept, therefore, that the applicant was ever harassed or threatened with physical harm or death by Ah Longs, that he fled to Sabah because of fear of Ah Longs, or that he came to Australia because of fear of Ah Longs. Accordingly, the Tribunal is not satisfied that the applicant faces a real chance of suffering serious harm or a real risk of suffering significant harm from Ah Longs and/or their agents, should he return to Malaysia. This is for the following reasons, considered cumulatively.
Firstly, the Tribunal found the applicant’s evidence generally to be vague, inconsistent and riddled with contradictions. For example, while he indicated that he was confident that his friend had recorded his claims correctly, his written statement of claims indicated that he had a wife and baby, while elsewhere in the application it indicated he had never married. At hearing he confirmed that he had never married and did not have a child. At hearing he indicated he was supporting his parents and two siblings with down’s syndrome, but this was not mentioned in the application, which indicated that he found it difficult to ask for help from his parents and siblings because he had outstanding debts with them and therefore they ignored his plight. While the applicant stated in his application that he was harmed by a money lender and pushed to pay debt immediately, he did not refer to Ah Longs or loan sharks and stated that he believes police and ‘bank’ will take action if he is unable to pay his debt. While he stated in the application that his business failed ‘6 months ago’, at the hearing he struggled to provide a clear sense of when he started his claimed business and when it failed, initially commenting that before he came to Australia he was helping his brother in a [store] in [City 1], and that he forgot when he had the business because it was a failure. He later stated that he working in [Factory 1] in Kuala Lumpur one year before he came to Australia, but subsequently indicated his claimed business ran for 14 months before it failed, prompting him to flee to Sabah two months later and then come to Australia. The Tribunal concludes that the applicant had little or no input to the claims made in his application.
Second, the applicant’s evidence regarding why he chose to go to Sabah (rather than to Kuala Lumpur for example, if he was fleeing Ah Long as claimed) - incurring the additional cost of a flight before returning to Kuala Lumpur to depart Malaysia for Australia - was unconvincing. While he denied he met anyone in Sabah regarding going to Australia to work, he was unable to say what the friends he claimed to be visiting were doing in Sabah other than they were working there - he could not say what work they were doing. It was clear from his evidence that when he arrived in Australia he was able to find accommodation and work immediately, suggesting that this was facilitated by people experienced in bringing people to Australia to work for cash payments on farms. In this regard the Tribunal notes that the same person who assisted the applicant find work in Australia was [Mr A], the claimed friend who also charged the applicant $150 to complete his error-ridden protection visa application form.
Third, the applicant’s account of establishing a [Occupation 1 business] was totally unconvincing. He had no relevant training or experience in [Occupation 1]. When queried about this he initially said he was good [at Occupation 1]. He then said he had a friend who could teach him. He also indicated that, rather than take over an established business, he started the [business] from scratch. The Tribunal found this highly improbable.
Fourth, the applicant had little understanding of the loan he claimed to have taken from the first Ah Long. He said the interest rate was 20 per cent per month, but indicated the monthly repayment was RM1,500, when a loan of RM200,000 at 20 per cent a month would require a monthly interest payment of RM40,000. Despite this, and indicating that the business was not successful and failed, the applicant indicated that he reduced the loan amount outstanding to RM150,000 at the time the business failed 14 months later. The Tribunal found the applicant’s explanation of the loan terms and the balance of the loan after 14 months to be implausible.
Fifth, the applicant’s evidence in relation to having subsequently taken a further loan of RM100,000 at an interest rate of 10 per cent per month was vague, inconsistent and improbable. The applicant initially claimed that the second reason (apart from a need to support his family) he borrowed from a second Ah Long was he had to pay 3 months overdue rent on his business premises when the business failed. When asked whether he did this, however, he indicated that he did not, but gave all the money to his parents. The applicant also said he borrowed a second time because he wanted to clear his remaining debt with the first Ah Long (which he indicated was RM150,000). When asked, he said he did this. When queried, however, how he was able to do this if he only borrowed RM100,000, the applicant altered his evidence and said he only paid half of the remaining initial loan. While this would mean that he still owed RM75,000, the applicant could not state how much he still owed on the claimed first debt after he had paid half of it. When queried why an Ah Long would loan him RM100,000 at 10 per cent interest per month (when they typically charge 30 per cent per month and his business was failing), the applicant said he showed the Ah Long the [business] and the Ah Long had confidence in him. The Tribunal found this improbable given, as observed to the applicant, Ah Longs do not want to lose their money. The Tribunal considers that an Ah long would have made some inquiries regarding the profitability of the business which would have revealed that it was not a going concern, and would have been unlikely to loan money to the applicant at only 10 per cent interest per month.

Sixth, the applicant’s evidence in relation to whether he or his family members have made repayments on the claimed loans since he came to Australia in March 2018 also was vague, inconsistent and unconvincing. When first asked if he had paid any money to the Ah Longs on either claimed loan since he came to Australia, the applicant clearly stated that he had not paid any money at all, commenting that his focus has been on helping his family. It was only when the Tribunal put to the applicant that this would likely have resulted in his family members being harassed and threatened for the money that the applicant progressively altered his evidence. Initially the applicant stated that his father tells the Ah Longs he does not have any money to pay them and his father moves ‘here and there’ to avoid the Ah Longs. When pressed further, however, the applicant said his father gives the Ah Longs half of the money he sends to his parents. When pressed on where his father moves to, the applicant said he was not sure.
As the Tribunal finds that the applicant did not establish a [Occupation 1 business], did not borrow from an Ah Long for this purpose and did not borrow from a second Ah Long when the business failed, the Tribunal finds that the applicant does not face a real chance of suffering persecution involving serious harm or a real risk of suffering significant harm, from Ah Longs and/or their agents, should he return to Malaysia. Accordingly, the Tribunal finds that the applicant does not need the protection of the Malaysian authorities.
Does the applicant have a well-founded fear of persecution if he returned to Malaysia?
Having carefully considered the applicant’s claims individually and cumulatively, and having regard to the relevant country information, for the reasons given above the Tribunal does not accept that there is a real chance that the applicant will suffer persecution involving serious harm from Ah Longs and/or their agents, or anyone else, for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, if he was to return to Malaysia, now or in the foreseeable future.
Accordingly, 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
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[9]
[9] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances and the relevant country information, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from Ah Longs and/or their agents, or any other authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor

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.
…

KL Consumer Safety Association - No need to fear the loan sharks’, Bernama, 17 February 2015, shark menace worsens in M’sia’, The Sundaily, 2 October 2013, most notorious for borrowing from Ah long, says PPIM’, Free Malaysia Today, 5 July 2016. cooperate with Council to wipe out loan sharks’, Daily Express, 28 December 2013,
‘57% drop in commercial crime losses, say cops’, The Star Online, 2 July 2014, S C, ‘Crackdown on Ah Long’, The Star Online, 25 April 2014 loan shark ring busted, couple held’, Bernama (Malaysian National News Agency), 10 October 2015,
Gomes E, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May 2015,
‘2,700 Ah Long materials removed’, Daily Express, 28 May 2015, Police probe nine Ah Long cases in 2013’,The Malaysian Times, 3 January 2014, police investigates 29 Ah long cases since January’, Malaysia Edition, 28 December 2013, Free Man Abducted By Loan Sharks’, Malaysian Digest, 16 October 2014, sharks caught red-handed’, The Star Malaysia, 29 May 2015, Shark Ring Busted, 31 Nabbed in Nationwide Raids’, Malaysian Digest, 18 April 2017, Y M, ‘Some 36,000 suspected criminals have been arrested, says minister’, The Star Online, 10 December 2013, death has spurred us on, say police’, The Star Online, 24 September 2013,

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2000805 (Refugee) [2021] AATA 3304

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DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64

BMY18 v Minister for Home Affairs [2019] FCAFC 189

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

[2021] AATA 3304

4 June 2021

Key Legal Topics

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Immigration

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