2101813 (Refugee)

2101813 (Refugee) [2021] AATA 4472 (13 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2101813

COUNTRY OF REFERENCE: Malaysia
MEMBER:Paul Windsor
DATE:13 April 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 April 2021 at 10:38 am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan sharks – criminal gang – physical violence – voluntary return to Malaysia – period of unlawful residence – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 57, 65, 189, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
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 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 on 17 February 2021 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 27 January 2021.
In his Protection visa application the applicant indicated he was born on [DOB 1] in Taiping, Perak state Malaysia and is ethnic Chinese Malaysian. He indicated he has never married or been in a de facto relationship. He indicated he departed Malaysia legally [in] November 2015 and arrived in Australia on the same day, entering on a Visitor visa. The applicant indicated that he previously had been ‘deported’ from Australia.[1]
[1] See the Departmental file.
In his application, the applicant claimed he came to Australia because he was threatened with violence by members of triad gangs associated with loan sharks who he owes money due to a failed business.[2]
[2] See the Departmental file.
While commenting that she has concerns regarding the applicant’s credibility, the delegate still assessed the applicant’s claim to be indebted to loan sharks in Malaysia. After considering relevant country information, the delegate found there are effective protection measures available to the applicant from the Malaysian authorities, which the applicant can access and which is durable, and which consists of an appropriate criminal law, a reasonably effective police force and impartial judicial system. In relation to the complementary protection criterion, the delegate found the applicant could obtain, from an authority of the country, protection such that there would not be a real risk he will suffer significant harm.
The applicant applied to the Tribunal for review of this decision on 17 February 2021. He provided the Tribunal with a copy of the delegate’s decision record.
The applicant was detained under s.189 of the Act [in] January 2021. He appeared before the Tribunal by video-link with the [named detention centre], where he is currently held in immigration detention, on 17 March 2021. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
At the end of the hearing, the applicant requested additional time to provide a statement from a friend in support of his claim to have borrowed money from a loan shark. He asked that he be provided with a month to do this because COVID-19 related restrictions in Malaysia would make it very difficult for his friend to leave the house. The Tribunal agreed to give the applicant one week to provide the statement, advising him that he should arrange for his friend to email the statement to him (noting the applicant has been receiving documents from the Tribunal by email). On 24 March 2021 the applicant contacted the Tribunal by email requesting a one week extension of time to prepare the supporting documents, which he said are being sent from Malaysia. The Tribunal responded to the applicant the next day, advising that it agreed to his request for an extension of time and indicated that the documents were now due on 31 March 2021. At the time of decision no further documents had been received from the applicant.[3]
[3] See the Tribunal file.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Q. 75. I am seeking protection in Australia so that I do not have to return to:
MALAYSIA.
Q. 76. Why did you leave that country?
BECAUSE OF MY BUSINESS TURN DOWN AND I HAVE DEBTS TO PAY. SO I BORROW MONEY FROM A LOAN SHARK TO TRY TO COVER AND PAY MY DEBTS. I COULD NOT PAY OFF MY DEBTS AND TO RECOVER MY BUSINESS. I START TO BORROW MORE AND MORE LOAN SHARK TO COVER THE INTEREST AND TO KEEP MY BUSINESS. I COULD NOT PAY OFF MY DEBTS AND TO RECOVER MY BUSINESS. I START TO BORROW MORE AND MORE LOAN SHARK TO COVER THE INTEREST AND TO KEEP MY BUSINESS. UNFORTUNATELY, MY BUSINESS FINALLY FAILED. I COULD NOT PAY OFF MY DEBTS. AND THE LOAN SHARKS BEGAN TO COLLECT DEBTS FROM ME IN VARIOUS THREATENING WAYS. THEY THREATENED ME TO KILL ME. I WAS VERY SCARED. I START TO SELL OFF MY BUSINESS AND PROPERTIES TO PAY OFF THE LOAN SHARKS BUT IS NEVER ENOUGH. SO THEY STRAT (sic) TO THREATENING ME AND MY FAMILY. I COULD NOT HANDLE ALL THE VIOLENCE DONE BY THE LOAN SHARKS, THUS I LEFT MALAYSIA AND CAME TO AUSTRALIA.
Q. 77. What do you think will happen to you if you return to that country?
VIOLENCE. THE GANGS WILL HURT ME.
Q. 78. Did you experience harm in that country? Yes
HREATENED (sic) AND BEATEN BY ORGANISED TRIAD GANG
Q. 79. Did you seek help within that country after the harm? Yes
THE TRIAD GANG ARE PROTECTED BY LOCAL CORRUPTED POLICE. SO NO ONE CAN HELP ME.
Q. 80. Did you move, or try to move, to another part of that country to seek safety? Yes
YES. I TRIED TO HIDE BUT THEY FOUND ME.
Q. 81. Do you think you will be harmed or mistreated if you return to that country? Yes
YES, HREATENED (sic) AND BEATEN BY THE GANG.
Q. 82. Do you think the authorities of that country can and will protect you if you go back?
No
NO ONE CAN HELP ME. THE GANG WERE PROTECTED BY THE POLICE.
Q 83. Do you think you would be able to relocate within that country? No
I HAVE NO IDEA, I TRIED TO HIDE BEFORE BUT THEY FOUND ME. I REALLY DID NOT KNOW WHAT TO DO AT THIS STAGE, I CAN ACCEPT THE CONSEQUENCE OF BEING PUNISHED, HOWEVER, I CAN NOT AFFORD TO LOSE MY LIFE.
Findings and reasons
Notification under s.438(1)(b) of the Act
The Departmental protection visa file in this matter contains a notification indicating that paragraph 438(1)(b) of the Act applies to the information at [reference] of the file ([Number]) because this information was given to an officer of the Department ‘in confidence’. The Tribunal formed the view that this notification is invalid both because [reference] does not appear in the file in question and because the Tribunal considers the relevant information (which appears in the applicant’s detention case file – [Number]) was not provided to the Department ‘in confidence’. In this regard, the Tribunal notes that the information in question comprises information compiled by or on behalf of the Australian Border Force (ABF), an agency of the Department, for the purposes of establishing the applicant’s identity and immigration status, based on direct interactions with the applicant, rather than, for example, third party information from a ‘confidential’ source wishing to remain anonymous. The Tribunal further notes that the relevant information includes a Located Person Interview conducted by an ABF officer with the applicant when he was detained [in] January 2021 and information from this interview is cited in the delegate’s decision record, with footnotes acknowledging [reference] as the source.
The Tribunal advised the applicant of the existence of this notification on the Departmental protection visa file and the Tribunal’s view that the notification is invalid. The Tribunal indicated that there were a number of documents relating to his immigration detention in January 2021 and his previous immigration detention in June 2015, contained on the Department’s detention case file which the Tribunal had viewed. The Tribunal’s advised that it will give him the opportunity to comment on this information during the hearing if necessary, including in accordance with the requirements of s.424AA of the Act where appropriate. The applicant indicated that he did not have any questions regarding the notification.
Identity
At the hearing the Tribunal discussed with the applicant the identity assessment and immigration history contained in Part 3 of the delegate’s decision record (a copy of which the applicant provided to the Tribunal). This indicates that the applicant first entered Australia [in] August 2012 on Malaysian passport ([number 1]) in the name [the applicant’s name], date of birth [DOB 2] (rather than [DOB 1] indicated in his protection visa application), and departed Australia [in] July 2015 on this passport. The applicant confirmed this was correct.
The identity assessment/immigration history indicates that the applicant again entered Australia [in] November 2015 on a different passport ([number 2]) in the name [Alias A], date of birth [DOB 1]. He was detained [in] January 2021 and indicated during his Located Person Interview that he returned to Australia in the name of his brother, to circumvent the three year exclusion period that had been imposed on him. The Department sent the applicant a letter on 11 February 2021 inviting him to comment (in accordance with s.57 of the Act) on adverse information, including that he does not have a brother called [Alias A] (and therefore did not use his brother’s passport to re-enter Australia). The applicant’s written response, received on 15 February 2021, is reproduced in the delegate’s decision record. The Tribunal read this to the applicant. It indicates, inter alia, that a friend (who the applicant referred to as ‘brother’), rather than the applicant’s biological brother, arranged for him to be issued a new passport in another name. He indicated that he did this because he was afraid that he would be harmed or killed by triad gangs if he stayed in Malaysia, because they harassed and abused him again after he returned to Malaysia.
The applicant confirmed at the hearing that while he does have two brothers, he was not referring to a biological brother but rather a friend whom he called his older brother. He indicated this person took him to the passport office in Malaysia (rather than the ‘Embassy’ as indicated in the written response) and used ‘some other methods’ to have a new passport produced for him.
On the basis of the foregoing, and the copy of the applicant’s original passport submitted to the Department,[5] the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is set out in Malaysian passport [number 1] (which he used to first enter Australia [in] August 2012). 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 that he has concocted his claim to owe money to a loan shark.
Assessment of claims
Background
At the hearing the applicant advised that his parents and [number] siblings ([specified], live in Malaysia). He indicated they all live in Perak state, where he was born and lived before he came to Malaysia. He indicated that his father, who is now in his [age range], previously worked in construction but no longer works. He said [one] brother lives with his parents and while he is not working at the moment due to COVID-19, has had numerous jobs in the past, including at a [business]. He said [another sibling] is married and lives with [their spouse], and works at a [similar business]. He said [another] brother is also married and lives with his own family. He said his brother works in [a specified occupation].
The Tribunal asked the applicant what work he did when he was in Malaysia. He said he travelled around Malaysia selling [products]. The Tribunal asked if he worked for someone, such as [a product] company. The applicant said he did. When asked what the name of the company was, he said they do wholesale and he got stock from them, commenting that they don’t really have a name. He said he sold many different brands of [products]. When asked he said that was the only job he did while he was in Malaysia. Contrary to what was stated in his protection visa application, which indicated that he was self-employed from 2007 until 2012, the applicant said he did this for 2-3 years, before he first came to Australia.
The Tribunal asked the applicant what work he had done in Australia. He commented that no-one would hire him because he did not have a work visa. He added, however, that he got ‘casual work’ [in occupation 1], and [occupation 2], and indicated he could earn $200-250 a day [occupation 2], depending on hour many hours he worked. He said he generally worked only 1-2 days a week, when ‘they’ were desperate.
Why the applicant came to Australia
The Tribunal asked the applicant why he came to Australia [in] August 2012. He said it was because he owed a huge debt in Malaysia. He said he started to run his own business in Malaysia in 2010 selling [products] but was given some fake [products] that caused a lot of [customers] to have problems. He said his clients started to complain and wanted him to compensate them. He said he did not have the money to do that so he borrowed RM[amount] from a loan shark. He indicated this was in 2011, when the business failed. The Tribunal queried how he was able to run the business for 2-3 years if he was selling fake [product] that was damaging [equipment]. The applicant said the [product] was usually of good quality, it was just one time when he was given fake [products].

He said he was only given RM[amount] of this and was expected to repay RM[amount]. He said he went out and worked for a friend selling [the same products] and had been repaying RM3,000 a month but then found out he was just paying the interest not the actual debt. He said the loan sharks started to push for him to pay back the debt and came to his place threatening to bash him and also threatened his family warning that if he did not repay the debt worse things would happen.
The Tribunal asked the applicant what the interest rate was on the money he borrowed. He said he did not know, only that they only gave him RM70,000.
He commented he was too young to understand at the time and did not know the interest would be so high. The Tribunal asked him why he did not seek advice from someone older before borrowing RM[amount] from a loan shark. He said [one] brother was away at the time and his father and [another sibling] were not working at the time, commenting that his father had a work injury.
The applicant indicated that he has been paying the loan shark RM[amount range] each month while he has been in Australia, commenting that he told them he did not have a full-time job and was doing it ‘little by little’.
The Tribunal queried the applicant that the delegate’s decision record states that Departmental records indicate that he never said anything to the Department about fearing loan sharks when he was first detained in June 2015, when he would have had an opportunity to raise that he was concerned about returning to Malaysia because he owed a debt to loan sharks. The applicant replied that when he was detained he was told that if he did not return voluntarily he would be returned with two escorts. He commented that he thought if that happened the loan sharks would know he had returned.
The Tribunal commented that it while accepts it might have been explained to him that if he was returned to Malaysia as an involuntary returnee, this would be with escorts, the Tribunal does not see why this would have prevented him from raising with Departmental officers any concerns he had about being harmed by loan sharks because he had a debt, or why, if he was escorted, that would alert loan sharks that he had returned. The applicant indicated he was very fearful at the time so he signed the voluntary return form so police would not be informed. He commented that in the past a friend of his ‘had reported’ but found out the loan sharks were friends with the police.
The Tribunal also observed that when the applicant returned to Australia in November 2015 he again became an unlawful non-citizen, for nearly five years, before he was again detained in January 2021. The Tribunal asked the applicant why he did not apply for protection after he returned to Australia. He replied that he had a new fake passport and was afraid if immigration officers found out he would be asked to return to Malaysia immediately. The Tribunal suggested that he would have been aware that he could be detained at any time and that would seem to be an incentive for him to have found out about protection visas so he would not have to return to Malaysia again. The applicant said he was found and beaten severely when he returned to Malaysia and was terrified when he came back to Australia and his focus was to repay his debt, little by little. The Tribunal queried the applicant that he had indicated that because he has not been able to work legally in Australia he has not been able to earn much money. The applicant said he works an average of 1-2 days a week plus [does some duties] and does things for friends so he has been able to save some money and was paying back his debt little by little.
The Tribunal asked the applicant how much he owes the loan shark now. The applicant replied that he is not sure. The Tribunal queried the applicant whether he is saying the loan shark had not told him. He replied, ‘no’ commenting that they had not specified. The Tribunal put to the applicant, in accordance with the requirements of s.424AA of the Act, that rather than state he did not know how much he owed, he had indicated in his Located Persons Interview that he now owes RM[amount]. The Tribunal indicated that, depending on his comment or response, this may cause the Tribunal to doubt the credibility of his evidence that he owes money to a loan shark. The applicant indicated that he understood why the information was relevant and did not request additional time to respond. He commented that he is sorry, but when he was located he was terrified and didn’t know what he was saying so he probably made a mistake.
The Tribunal also discussed with the applicant country information 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.[6] 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.
[6] 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 this information is of no use to him because he tried almost everything but nothing was useful to him. The Tribunal queried the applicant that he had indicated he did not go to the police for help. He said he did not go to the police but did go to NGOs seeking help but did not get any. The Tribunal asked the applicant which NGOs he sought help from. He said he went to the welfare department.
Assessment – claim to owe money to a loan shark in Malaysia
After carefully considering all the available evidence, the Tribunal does not accept that the applicant borrowed money from a loan shark which he could not repay and that he was threatened and beaten by the loan shark and/or their agents. 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 a loan shark 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 regarding having borrowed money from a loan shark generally to be vague, inconsistent and improbable. In his protection visa application he stated he was self-employed in Malaysia from 2007 until 2012. He claimed that he had a ‘business’ which ‘turned down’ and he had debts to pay. He indicated he borrowed from a loan shark to try to pay his debts but could not, so started to borrow more and more from a loan shark to cover the interest and keep his business. He indicated he started to sell off his business and his ‘properties’ to pay off the loan sharks. At the hearing however, the applicant indicated that he worked for himself for 2-3 years selling [products] before he came to Australia (rather than 5 years). Rather than his business turning down, he indicated he had a problem when he sold fake [products] that damaged some [equipment]. Rather than borrow from loan sharks on multiple occasions and to keep his business, he indicated he borrowed once, in 2011, when the business failed, and then went out to work for a friend. He did not indicate that he sold off his business and/or any of his property. The applicant claimed he did not know the interest rate for the claimed loan and when queried on this said he was too young and did not know the interest rate would be so high. When asked why he did not seek advice from someone older he said [one] brother was away and his father had a work injury, but did not explain why that would have prevented him calling either or both of them for advice.
Second, the applicant indicated in his application that he was unemployed in Australia from 2012 until the time of application in January 2021. At the hearing, however, he stated that while he has not had a ‘work visa’ and therefore found it difficult to get work, he got some ‘casual work’ [in occupation 1] and [occupation 2], and could earn $200-250 per day. While he maintained that this was generally only 1-2 days a week, he claimed he had been paying the loan shark RM[amount range] each month and was paying his debt back ‘little by little”. The Tribunal finds the applicant has been untruthful regarding having been unemployed while in Australia. The Tribunal also does not accept that a loan shark would be happy with him paying RM[amount range] a month on a 10 year old debt, which would not cover the monthly interest on a loan shark debt of RM[amount] let alone go any way towards paying down the principal debt.
Third, the Tribunal does not accept that if the applicant had a debt with a loan shark that he had arranged with loan sharks to pay off ‘little by little’, he would not know what the outstanding amount was. Furthermore, as noted above, contrary to his comment at the hearing that the loan shark had not told him how much he still owes, the applicant indicated at his Located Persons Interview that he still owed RM[amount]. The Tribunal did not find convincing and does not accept the applicant’s explanation that he made a mistake when he gave this figure because he was ‘terrified’ at the time of the Located Persons Interview.
Fourth, the Tribunal also found unconvincing the applicant’s explanation for why he did not raise any concerns whatsoever regarding having a debt and fearing harm from loan sharks and their agents when he was first detained by immigration officers in June 2015. While the Tribunal accepts that immigration officers would have explained to the applicant the difference between a voluntary and involuntary departure (that a voluntary departure would be done without escorts), the Tribunal does not accept that if the applicant had concerns regarding his safety in Malaysia at that time, he would not have raised his concerns with immigration officers, which would have resulted in him being informed of the option for him to apply for a protection visa. The Tribunal found the applicant’s suggestion that he was fearful that loan sharks may have become aware of his return through Malaysian authorities being informed of his return fanciful, given there is no information indicating that Malaysian authorities routinely advise loan sharks of the details of involuntary returnees from Australia, in case they have an outstanding loan shark debt.
Fifth, having returned to Australia on a fraudulently acquired passport in November 2015, and knowing from past experience that he could be detained at any time, the applicant did not seek protection, but again remained unlawfully in the community for nearly five years until he was detained for a second time in January 2021. Given the evidence suggests the existence of protection visas is well known in the Malaysian community in Australia (thousands of applications are lodged by Malaysian nationals each year), the Tribunal does not accept that the applicant, if highly fearful of loan sharks and their agents as claimed, would not have found out about protection visas and made an application on or shortly after his return to Australia. If he had made simple inquiries through community sources or a voluntary asylum seeker support agency, such as the Asylum Seekers Resource Centre, he would have obtained advice that he would not have been returned to Malaysia immediately as he claims he feared, but would have been able to have his claims for protection assessed.
As the Tribunal finds that the applicant did not have a debt to a loan shark and does not have any ongoing debt to a loan shark, the Tribunal finds that he does not face a real chance of suffering persecution involving serious harm or a real risk of suffering significant harm, from a loan shark 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, 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 a loan shark 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.[7]
[7] 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 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 a loan shark 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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2101813 (Refugee) [2021] AATA 4472

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

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

MIMA v Rajalingam [1999] FCA 179

[2021] AATA 4472

13 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction