2109066 (Refugee)

2109066 (Refugee) [2021] AATA 4222 (20 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2109066
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:K. Chapman
DATE:20 September 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 September 2021 at 10:50am
CATCHWORDS
REFUGEE – Protection visa – Malaysia –fear of harm from loan sharks – delay in lodging the visa application – inconsistent evidence – applicant was an unlawful non-citizen for a significant period of time – state protection is available – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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 12 July 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 10 June 2021. He submitted his application for review on 14 July 2021.
The applicant’s written claims concern him purportedly borrowing money from loan sharks following the financial decline of his small [business]. Additionally, the applicant claims both he and his brother were threatened and physically attacked when he could not repay the loan. The delegate refused to grant the visa on the basis that State protection was available to the applicant if he returns to Malaysia.
BACKGROUND
The applicant claims to have borrowed money from loan sharks in November 2013 due to the financial decline of his business. Thereafter, he worked in [Country 1] between July 2014 and August 2016 as a [Occupation 1]. He returned to Malaysia twice during this period. In August 2016, the applicant concluded his work in [Country 1] and returned to Malaysia. The applicant first travelled to Australia between September and November 2016. He returned to his home town in Malaysia following this visit to Australia. He claims to have been attacked in February 2017.
In March 2017, the applicant made his most recent entry into Australia. He held a Visitor visa at that time. This visa expired in June 2017. The applicant remained in Australia as an unlawful non-citizen for approximately 6 months, then in December 2017 he made an invalid application for Protection. He received confirmation from the Department that this application was invalid, however the applicant did not engage further with them. The applicant then remained as an unlawful non-citizen, working illegally in the agricultural sector, for a further period of approximately 3 years and four months before he was detained by Department Officers in a compliance raid in March 2021.
The applicant made the current protection visa application on 10 June 2021, whilst being held in immigration detention in Brisbane. It was refused on 12 July 2021. On 15 July 2021, the applicant applied for review of the protection visa refusal decision. He provided a copy of that decision to the Tribunal.
The applicant appeared before the Tribunal by video link from immigration detention on 8 September 2021 to give evidence and present arguments. The review hearing was conducted using the assistance of an interpreter in the Mandarin and English languages. The applicant confirmed that he understood the interpreter and there were no other witnesses to be called. The applicant was represented by his registered migration agent, who attended the hearing by telephone.
The applicant remains in immigration detention in Brisbane. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
‘Significant harm’ for these purposes is exhaustively defined in the Act: s.36(2A) and s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Relocation
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
State protection
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of Reference
According to the protection visa application, the applicant claims to be a citizen of Malaysia. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing the applicant’s claims for protection. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s.36(3).
Issues
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.
Documentary evidence before the Tribunal
The Tribunal has its own file, and the Department file, relating to the applicant before it. Information including, but not limited to, the following is contained in those files:
a.the applicant’s protection visa application form lodged on 10 June 2021;
b.written submissions, including country information such as media articles;
c.the Departmental delegate’s visa refusal decision dated 12 July 2021 (a copy of which was provided to the Tribunal by the applicant);
d.the application for review submitted on 14 July 2021;
e.Departmental administrative and Movement records; and
f.Identity documents submitted by the applicant to the Department.
Claims for protection
The applicant’s written claims for protection are contained in the visa application as follows:
a.“The applicant had to leave his country due to receiving a serious threat from the loan shark who lent the applicant money for the failed business of the applicant. The applicant's business [started] to financially deteriorate. The applicant did his utmost to keep his business afloat. In November 2013, The applicant entered into a loan agreement with a money lender and borrowed large sum of money (RM850,000.00) with interest in the hope of keeping the business above water. The applicant kept paying the Loan Shark, however irregularly due to business continued fall in sales. The applicant abandoned the failed business and found work in [Country 1]. The applicant tried to pay as much as possible, however the Loan Shark continued applying exorbitant sums of interest. The applicant did all he reasonable could to discharge the heavy debt. In February 2017 the applicant suffered the first physical harm by way of a vicious attack at the hands of the "debt collectors" who are nothing more than violent thugs with nothing to lose;
b.In February 2017, the applicant was viciously attacked at night by a gang of thugs who identified themselves as "debt collectors" on behalf of the Loan Shark. The violent thugs promised to continue harming the applicant until all money owed is paid. When the applicant tried to talk, one of the thugs viciously kicked the applicant in the face and told him "you only listen, you don't talk". The applicant had real fear for his life on that occasion and clearly understood that these "debt collectors" violent thugs working for the Loan Shark will without any hesitation or remorse inflict more physical bodily harm on the applicant if the demands are not met;
c.The applicant went to the Police station to report the violent incident. The policeman wrote on a piece of paper what happened briefly, and why it happened and if I know these people, and where it happened. The policeman seemed uninterested and was very casual. The policeman said, "go home and we will do our job". I never heard anything from the police after that;
d.The applicant understands that Loan Shark has violent debt collectors (usually unemployed paid thugs) all over Malaysia. These people are not local operators. They conduct their "business" in all parts of Malaysia;
e.In addition to the physical harm the applicant suffered in February 2017 at the hands of the debt collectors thugs, The applicant became also aware of the brutal vicious attack on his brother [Mr A] at the hands of these violent thugs debt collectors for not telling them where the visa applicant is. The violent debt collectors are systematically harassing, scaring, and stalking the applicant's brother promising that once the applicant is found the punishment will be very sever for not paying back the Loan Shark. The applicant wishes to provide more details including a Statutory Declaration and more material evidence to confirm the real harm which the applicant will imminently face if he is forced to return back to Malaysia. However, because the applicant is in detention he is unable to properly have access to such documents and pictures. If The applicant is released from detention he will be able to provide further crucial evidence necessary for a fair consideration of this case, as well as provide a more detailed instructions to his representative;
f.The applicant knows that these thugs violent debt collectors have nothing to lose, they are usually riding motor bikes, they have other violent associates , they most probably have spent time in jails, and they will use whatever means of violence and physical harm to justify the money they receive from the Loan Shark employer for carrying out their debt collection methods. I have no doubt that these violent thugs will severely harm me physically again and if I die in the process, it is of no consequence and that it will be treated as an example and warning to others. I have no where to escape from the Loan Shark organisation and the consequences they have put in place to collect their money from me. The Loan Shark organisations in Malaysia understand that borrowers who become unable to repay their debts may try to escape to other parts of the country. The Loan sharks entities are well established in connections everywhere in Malaysia. Their connections are well extended to members in the police force who are already receiving low salaries and are involved in covered up corruption. The applicant has once witnessed in 2011 a well known drug pusher openly selling drugs to foreign tourists in Kuala Lumpur. There was 2 Policemen on their motorcycles, when the applicant tried to draw their attention to what's happening, they removed their glasses and asked the applicant to "keep walking, not look and shut T.. up". The violent debt collectors thugs know that they are backed up by corrupt Police authorities. I have real genuine fear for my life and safety if I am forced to return back to Malaysia;
g.The applicant has explained in the above Paragraph as why the Police will not protect him. The police did not protect the applicant's brother and are unwilling to do so until present;
h.The applicant has explained in the paragraphs above as why relocation is not an option when dealing with loan shark establishment whose only goal is to literally milk their victims to the last drop of blood. These establishments are violent and are not amateurs about what their borrowers might do when they are unable to repay back the exorbitant amounts of moneys with insane interests imposed. It is very difficult to rationalise how a "relocation" of person/ victim will change a violent mindset of a perpetrator?”
The review hearing
The applicant’s oral evidence may be summarised as follows. He informed the Tribunal that he completed his application for protection with the assistance of his migration agent. The applicant indicated that his claims for protection were all contained in the protection visa application. He confirmed that he understood its contents and that his written claims were accurate. The applicant agreed that his application for protection was important to him.
The Tribunal canvassed with the applicant his background (including particulars detailed above) and confirmed his employment and travel history. When invited to tell the Tribunal about his life in Malaysia, the applicant initially referred to written notes. The Tribunal informed the applicant that it may place lower weigh upon his evidence if he continued to refer to his written notes and he ceased doing so.
The Tribunal invited the applicant to outline the particulars of the loan he claimed to have obtained from loan sharks in Malaysia. He provided a vague and unpersuasive account of the particulars of alleged loan. For example, he could not initially recall when the loan was taken out and he provided only scant detail concerning from whom the loan was obtained.
In due course, the applicant confirmed that he took out the loan due to financial problems with his small [business] in approximately late 2013. He explained that he closed his business and went to work in [Country 1] from 2014 to 2016, returning twice to Malaysia during that period. The applicant confirmed he went to [Country 1] to work as a [Occupation 1], in order to repay a loan of RMB 850,000 plus interest, that he acquired from loan sharks in Malaysia. He obtained this employment through a referral by a friend.
The applicant informed the Tribunal that he failed to make repayments to the loan sharks prior to relocating to [Country 1]. He told the Tribunal that he received threats from the loan sharks prior to departing Malaysia for [Country 1]. The vagary of his account was striking. When pressed by the Tribunal on the nature of the threats, the applicant initially explained that they were not threats of physical harm, rather they texted information about his family to him. He then added that the loan sharks demanded he make repayments otherwise his family would be harmed.

When asked by the Tribunal to outline the particulars of any repayments made to the loan sharks whilst he worked in [Country 1], the applicant offered a meandering account referencing repayment of RMB 10,000. He clarified that he only paid off interest and not any principal amount. The applicant then told the Tribunal that because he made some repayments, when he departed [Country 1] the loan sharks didn’t look for him. When asked by the Tribunal if he feared the loan sharks before departing [Country 1] for Malaysia in 2016, he responded that he did ‘a little bit’. He confirmed to the Tribunal that he received verbal threats from the loan sharks whilst he was still working in [Country 1].
The applicant explained that he returned to Malaysia for a brief period and then travelled to Australia for a visit between September and November 2016. He held a Visitor visa then and travelled with a former girlfriend whilst she visited her mother. The applicant indicated he did not work in Australia during that time and had sufficient savings to undertake the visit. When asked by the Tribunal of the situation with the loan sharks during this period, the applicant explained that they did not look for him because he was making small irregular repayments from his savings.
The applicant returned to his home town in Malaysia in late 2016, as his Visitor visa was expiring. He informed the Tribunal that he hid from the loan sharks upon his return from Australia. When asked by the Tribunal why he would hide upon his return, the applicant explained that he was not making repayments at that time and had been warned by the loan sharks on several occasions. When asked by the Tribunal if he received verbal threats from the loan sharks during his first visit to Australia, the applicant confirmed this to be the case as he was in arrears and only made some repayments. According to the applicant, he had to hide from the loan sharks upon his return to Malaysia from Australia in late 2016.
When asked why he returned to Australia in March 2017, the applicant advised that he was attacked by debt collectors in Malaysia during February 2017 after they located him. When asked by the Tribunal to describe the attack, the applicant provided a vague account of being beaten. The Tribunal invited the applicant to provide further detail on multiple occasions, however the applicant maintained the vagary of his initial response. The applicant added that he reported the attack to the Malaysian Police, however they only took his statement and he never heard further from them. He indicated this is why he believes the Police to be corrupt. When asked by the Tribunal if he has made contact with the Malaysian Police since he has been in Australia, the applicant confirmed that he had not done so because he believes all the Police there to be corrupt. When asked why he holds this view, the applicant indicated that the Malaysian Police Chief has indicated most Police receive bribes, adding that he believes they are bribed by the loan sharks.
The applicant confirmed to the Tribunal that he departed Malaysia legally through the international airport in Kuala Lumpur in 2017. He arrived at [City 1] then travelled to [City 2] where he had friends from his first visit to Australia in 2016. When asked by the Tribunal if he feared the loan sharks when he landed in Australia in 2017, the applicant initially advised he did ‘a little bit’, then changed tack with his evidence to indicate that he was very scared of them and remains so.
When asked of his activities in [City 2], the applicant indicated that he was thinking about returning to Malaysia, however in May 2017 his brother contacted him to advise that he was beaten by the loan sharks and asked to reveal the applicant’s whereabouts. According to the applicant, the loan sharks threatened to kill his brother. The applicant’s account was vague and unpersuasive. Apparently, upon the urging of his brother, the applicant then decided to remain in Australia. When asked by the Tribunal if he feared the loan sharks in May 2017 when he was informed of the attack on his brother, the applicant told the Tribunal he became ‘very fearful then’ because they had threatened to kill his brother.
When asked by the Tribunal what he did next after learning of this attack on his brother, the applicant indicated that he remained in Australia and worked illegally to support himself. He confirmed that his Visitor visa expired in June 2017. When asked by the Tribunal if he feared the loan sharks in June 2017, the applicant confirmed that he did because they had warned him through his brother in May 2017 that they will kill him. The Tribunal enquired as to situation of the applicant’s brother. Apparently, the applicant transferred funds to his brother to make repayments to the loan sharks and there have been no more reports of harm to his brother since that time.
When asked for further detail about the attack on his brother, the applicant confirmed that he did not require hospitalisation. The applicant added that he sought hospital treatment himself in February 2017 following his own attack. The applicant contended that he fractured his left leg and received injuries to his face and body. He apparently obtained a hospital report for the Police. When asked by the Tribunal if he has provided a copy to the Department or the Tribunal, the applicant indicated he cannot because he has no privacy in immigration detention.
The Tribunal canvassed the applicant’s family circumstances with him further. The applicant confirmed that there are currently no problems for his brother or other family members in Malaysia. This apparently is because the applicant continued to make slow repayments to the loan sharks. The applicant indicated that he will be killed himself if he returns because he cannot repay the principal loan amount. He confirmed that he feared for his life when advised in May 2017 by his brother of the threats conveyed during that attack. The applicant added that the loan sharks will not attack his brother now, rather they will attack him.
The Tribunal canvassed the applicant’s immigration history in Australia. He confirmed that he has held two Visitor visas and that he lodged an invalid application for protection in December 2017. The applicant confirmed to the Tribunal that he knew the application was invalid as it was returned to his residential address. He indicated he was confused and did not know what to do at the time. When asked if he made contact with the Department after the invalid application was returned to his residential address, the applicant advised that he did not as he was confused. The applicant confirmed to the Tribunal that his last held Visitor visa expired in June 2017, he worked illegally [in] Queensland and Western Australia, and he remained unlawfully in Australia until March 2021 when he was detained by Officers of the Department.
The Tribunal asked the applicant what he feared if he returned to Malaysia. In response, he indicated that he fears for his safety and his life. When asked by the Tribunal if he had any documentary material to corroborate his claims, the applicant advised that he does however he can’t submit it because he lacks privacy in immigration detention. When asked why he did not submit these documents when not so detained since arriving in Australia in March 2017, the applicant responded that when he received notification of his invalid protection application in December 2017 he didn’t know what to do. The applicant confirmed that he did not make further attempts to engage with the Department thereafter.
The Tribunal raised with the applicant that given he did not attempt to re-engage with the Department following his invalid application in December 2017, nor attempt to submit supporting material since that time, this might tend to undermine the genuineness of his claims for protection. The applicant was invited to comment and he advised that he was very scared and didn’t know what to do. He maintained that only after being detained and understanding that he can consult a representative does he now know what to do.
When asked by the Tribunal why he waited over nine months from his last entry into Australia before attempting to make his first claim for protection, the applicant advised that when his visa expired he didn’t know what to do. He added that his friend said he was eligible for the protection visa so he applied but then the application was returned. When asked by the Tribunal why he waited more than four years from his most recent entry into Australia before making a valid application for protection, the applicant maintained that he was scared and confused. He doggedly maintained that it was only since engaging his representative once detained that he knew what to do.
The Tribunal raised with the applicant that the above delays might tend to suggest that his claims for protection are not genuine, inviting his comment. The applicant maintained his position, in a somewhat formulaic manner, that he was scared and did not know what to do, only learning of the correct process following detention and liaison with his representative.
When asked by the Tribunal why he did not claim protection during his first visit to Australia in late 2016, even after he had earlier received threats from the loan sharks before and during his time in [Country 1], the applicant advised that he didn’t know anything about the visa until his friend told him. He added that he applied in December 2017 and got rejected.
The Tribunal raised with the applicant that given he did not claim protection during his first visit to Australia, which was well after he had taken out the loan from the loan sharks and received threats, might tend to suggest his claims for protection are not genuine. The applicant was invited to comment and he maintained that he didn’t know about the visa until his friend told him, so then he applied.
The Tribunal raised with the applicant that given he was an unlawful non-citizen for a significant period of time and did not engage with the Department concerning his claims until he was located by them might tend to suggest his claims for protection are not genuine. The applicant was invited to comment and he maintained that he didn’t know what to do until he was located and obtained advice from a migration agent.
The Tribunal raised with the applicant that given he has worked overseas before and held other visas, and that he had Malaysian friends in Australia, it might have difficulty accepting he didn’t know how to make a valid claim for protection whilst in the community. The applicant was invited to comment and he replied that his other visas for work overseas were arranged by migration agents. He only knew how to claim in Australia after speaking with friends.
When asked by the Tribunal why he did not earlier seek the assistance of a migration agent in Australia when he was familiar with agents in other countries for visa purposes, the applicant replied that these agents were organised by the companies he worked for. The Tribunal raised with the applicant that it might have difficulty accepting that he did not know he could seek professional help with his visa situation in Australia until he was detained given he was the beneficiary of professional assistance in other countries and he has also held several other visas including for Australia. The applicant was invited to comment and he doggedly maintained that he did not know he could use the help of an agent in Australia because his visas for other countries were organised through the employers.
When asked to provide further information about the loan sharks referred to in his protection visa application, the applicant informed the Tribunal that they have organisations and networks in Malaysia. He added that no matter where you try to hide they will find you. He also advised that the Malaysian Police have serious corruption issues and can’t protect him. The Tribunal asked again whether he had further information regarding his claims for protection linked to the loan sharks and the applicant responded that he ‘explained everything in full for the application.’ When asked if he had any other fears about returning to Malaysia that have not already been discussed, the applicant replied that he cannot return to Malaysia because his life and safety are under threat from the loan sharks. The Tribunal again asked the applicant if he could provide any more details about his claims for protection arising from the loan sharks and he advised he has ‘included everything in the Forms and told the Tribunal everything I want to say.’
The Tribunal canvassed country information, including both from DFAT[1] and open source[2][3][4], suggesting that State protection is available for him if he returns to Malaysia. In summary, the applicant maintained that the Malaysian Police have not assisted him and are corrupt. He referred to his submitted open source articles indicating corruption in the Police, he maintained that the loan sharks collude with the Police and that the loan sharks have links which can find him anywhere in Malaysia.
[1] DFAT Country Report - Malaysia, 29 June 2021, paragraphs 2.47, 3.109-3.118 & 5.5.
[2] Malay Mail online, 14 June 2021, Selangor police cripple 10 Ah Long Syndicates: accessed 7 September 2021.
The Tribunal canvassed with the applicant relocation within Malaysia to avoid the loan sharks, including country information from DFAT[5]. The Tribunal raised with him that his background, including living and working in [Country 1] and Australia, might tend to suggest that he has the attributes to successfully relocate within Malaysia. The applicant was invited to comment and replied that whilst he was in [Country 1] he was working to repay the loan sharks, however when he earlier worked in Singapore he did not have the loan at that time. In summary, the applicant maintained that he could not relocate within Malaysia to avoid the loan sharks because they have links all over the country.
[5] DFAT Country Report - Malaysia, 29 June 2021, paragraphs 5.26-5.28.
At the conclusion of the applicant’s evidence, the Tribunal invited the representative to make submissions. In summary, the representative submitted that he had limited access to the applicant in immigration detention which hampered his ability to present further evidence. He contended that the loan shark interest in the applicant fluctuates, given when he makes payments he stops being hurt whilst when paying he is relatively left alone (including his brother). The representative contended that the DFAT country report does not support that State protection is available to the applicant, nor does it suggest the applicant can relocate within Malaysia to avoid harm. He referred to submitted media articles outlining corruption in the Malaysian Police. The representative contended that the delay in claim by the applicant was due to him initially being assisted by an unprofessional person, combined with being scared and confused. He contended that the applicant returned to Malaysia from [Country 1] even after receiving threats because he was not experienced with loan sharks at the time.
The Tribunal invited the applicant to provide any further evidence he may wish. He confirmed he had nothing further to submit. The Tribunal raised with the applicant that, whilst it had not made up its mind in this review, it had developed concerns regarding his claims for protection. These included the significant delay in substantively claiming protection even though he advised he had started to receive threats from the loan sharks prior to travelling to [Country 1], he appeared to provide a vague account of the particulars of the circumstances of the loan, he provided scant detail of the harm apparently done to him and his brother, he has provided no supporting documents to the Department or the Tribunal despite having years to do so in the community, and he appeared a worldly individual who had held other visas which might cause difficulty in accepting he did not know how to obtain immigration advice until after his detention in 2021. The Tribunal invited the applicant to comment and he replied that he has explained everything and doggedly maintained he did not know how to seek advice until after being detained.
The representative was invited to make further submissions and he maintained the applicant didn’t know what to do after the initial invalid protection application and he could not provide further information after being detained. The representative apologised for the delay in the applicant claiming protection. The Tribunal confirmed with the applicant that he had no further evidence to submit prior to concluding the review hearing.
Analysis
That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. During the review hearing the Tribunal developed serious concerns with the credibility of the applicant’s claims that he (and his brother or wider family) had faced, and would face, harm in Malaysia at the hands of loan sharks. The Tribunal notes it had the benefit of observing the applicant in a clear video link as he gave his oral evidence. He did so in a vague and unconvincing fashion. The applicant was provided with multiple opportunities to provide further detail regarding the particulars of the purported loan from the loan sharks, yet he maintained vagary in his account. Furthermore, the paucity of detail provided by the applicant regarding the purported attacks on him and his brother was stark. These matters detract significantly from the genuineness of the applicant’s claims for protection in the view of the Tribunal.
The significant delay in claiming protection also undermines the genuineness of the applicant’s claims regarding the harm he purportedly fears from the loan sharks. It is worth pausing to reflect that on the applicant’s own account he received threats from the loan sharks prior to and during his stint working in [Country 1] from 2014 to 2016, yet he still returned to Malaysia on holiday and prior to initially travelling to Australia in late 2016. Furthermore, the applicant confirmed that he received threats from the loan sharks during his initial visit to Australia in 2016, yet he still returned to Malaysia and immediately went into hiding due to his fears. Upon his return to Australia in March 2017, following an alleged terrifying assault from the loan shark debt collectors in February 2017, the applicant did not claim protection in a timely fashion. This is despite his own evidence of being very scared of the loan sharks upon his re-arrival in Australia and fearing for his life in May 2017 when his brother reported his own assault to him. Indeed, the applicant decided to remain in Australia following the expiry of his Visitor visa in June 2017 and he worked illegally in the agricultural sector until December 2017 when he made his initial invalid application for protection. Of note, the applicant did not attempt to re-engage with the Department after being notified of this invalid application.

Whilst the Tribunal is prepared to accept that the applicant was confused upon being notified of his invalid protection visa application, it does not accept that he was unaware of how to obtain immigration assistance until he was detained in March 2021. This is because he is a worldly individual who had worked in other countries and held various visas, with the knowledge that his employers had arranged migration agents to assist even though he did not engage them himself. Additionally, the Tribunal does not accept that the applicant did not know how to contact the Department in December 2017 to discuss his situation given his worldly attributes and having held various visas previously.
That the applicant remained in Australia unlawfully and engaging in illegal agricultural work for a further period of approximately 3 years and four months before he was detained by Department Officers in a compliance raid in March 2021, without making another attempt to claim protection, gravely undermines the genuineness of his claims in the view of the Tribunal. Of note, it took the applicant over four years since his last arrival in Australia to validly claim protection. On balance, the Tribunal is satisfied that this delay points to the applicant not holding genuine fears of harm at the hands of loan sharks in Malaysia.
The Tribunal does not accept that the applicant has corroborating documentary evidence regarding the particulars of the purported loan or his injuries from the alleged assault (or any other matter concerning his claims) given the significant passage of time that he was in the community and had the opportunity to submit such material. Rather, the Tribunal is of the view that the applicant’s contention he is prevented from furnishing supporting evidence, due to being in immigration detention, is a convenient ruse designed to bolster his claims for protection. Whilst the Tribunal accepts that the applicant’s location in immigration detention is inconvenient for him and his representative, it is of the view that if the applicant genuinely held fears of harm in Malaysia he would have submitted supporting documentary evidence to the Department well before 2021 if it existed.
Having regard to the matters above, the Tribunal does not accept that the applicant is a witness of candour. Accordingly, the Tribunal does not accept the veracity of his claims for protection. Rather, the Tribunal finds that the applicant fabricated his claims for protection, in an attempt to remain living and working in Australia.
Accordingly, the Tribunal does not accept that the applicant (or any member of his family) has ever interacted with loan sharks in Malaysia. Therefore, the Tribunal does not accept that he (or any member of his family) has ever faced, or would ever face, harm in Malaysia from loan sharks. It follows that the Tribunal is not satisfied that Australia’s protection obligations are invoked on the basis of any of the claims that have been raised by the applicant.
For completeness, the Tribunal has further considered the country information relating to State protection, which is referred to above, and finds that the applicant would be able to avail himself of protection from the Malaysian authorities if he returned to that country. Additionally, the Tribunal has considered the country information regarding internal relocation and finds that it would be reasonable for the applicant to relocate within Malaysia to avoid those he purportedly fears might cause him harm, noting he has demonstrated versatility in being able to travel to Singapore, [Country 1] and Australia, finding employment in these countries. It follows that even if the Tribunal accepted the veracity of his claims that he faced harm from loan sharks, which it does not, the applicant would not be entitled to protection.
CONCLUSION
Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are 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 he will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
K. Chapman
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.
…

[3] The Star online, 10 April 2021, Police cripple four ‘ah long’ syndicates with 29 arrests: accessed 7 September 2021.

[4] Free Malaysia Today, 30 January 2021, Ah Long ‘call centres’ silenced, 200 phones seized in police blitz in Johor: accessed 7 September 2021.

[2021] AATA 4222

20 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal