AER17 v Minister for Immigration

[2018] FCCA 596

FEDERAL CIRCUIT COURT OF AUSTRALIA

AER17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 596

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

First Applicant: AER17

Second Applicant: AES17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 73 of 2017

Judgment of: Judge Riethmuller

Hearing date: 7 February 2018

Date of Last Submission: 7 February 2018

Delivered at: Melbourne

Delivered on: 14 March 2018

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 73 of 2017

AER17

Applicant

AES17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 9 December 2016, which affirmed the decision of a delegate of the first respondent to refuse to grant the applicants Protection (Class XA) visas.

2. The applicants are a married couple from Malaysia.  The primary applicant is the husband and the second applicant is his wife.

3. The applicants arrived in Australia on 12 June 2011, as holders of Class UD Subclass 976 (Electronic Travel Authority) visas, which were granted to them on 6 June 2011 and were valid for three months.  The applicants resided unlawfully in Australia from September 2011 until they applied for the protection visas on 26 March 2015.

4. On 24 July 2015, the delegate refused to grant the visas on the basis that they found the applicants’ claims to lack credibility and that they were contrived for the purpose of furthering the applicants’ stay in Australia.

5. On 10 August 2015, the applicants applied to the Tribunal for review of the delegate’s decision.  On 6 December 2016, the applicants appeared before the Tribunal to give evidence and present arguments.  On 9 December 2016, the Tribunal affirmed the decision to refuse to grant the applicants protection visas.

Claims for Protection

1. The applicants presented their evidence at the hearing together.  The second applicant does not have claims of her own and rests upon the risk of harm faced by the primary applicant.

2. The Tribunal summarised the applicants’ submissions at [9] of its decision:

   9. … The applicants are a married couple from Selangor, Malaysia.  The primary applicant was a waiter at a nightclub frequented by racing industry people.  He claims that through his contacts at work he was introduced to online gambling, which led to an addiction and considerable debt.  Being unable to pay the debt they decided to flee to Australia.  The applicants fear the gangs who will seek them out were they to return to Malaysia.

Tribunal’s Findings

1. Based upon its findings of fact (see [13]-[18]), the Tribunal accepted that the applicants’ fear of harm from debt collectors was genuine: see [19] and that the potential harm is “serious and significant”: see [20].

2. In considering whether the applicants’ fear of harm was based upon a Refugee Convention reason, the Tribunal stated:

   20. … I now turn my mind to considering if they constitute membership of a particular social group, namely ‘online gambling debtors’ or ‘borrowers unable to make repayments threatened by debt collectors’.  In both of these instances the ties that bind the potential group together breaches the guidance provided in Applicant S v MIMA (2004) 217 CLR 387 at [36] as the group is defined by a shared fear of persecution. I find that the applicant’s fears of harm are not based upon Refugee Convention reasons including being a member of a particular social group as in this case it is the fear of harm itself that would constitute any common characteristic or attribute with others. Nor do the circumstances of the case lend themselves to consideration under any other of the Convention reasons.

3. The Tribunal went on to consider the applicants’ claims under the Complementary Protection criteria.

4. The Tribunal accepted that the harm faced by the applicants from the debt collectors amounted to serious and/or significant harm, and stated;

   22.  I have accepted that the debt collectors have shown a willingness to harm the applicants and reporting from Malaysia has shown illegal money lending is a major problem that leads to gang involvement and what I accept to be serious and/or significant harm including breaking of victims’ limbs, damaging property, and splattering red paint on a house as psychological pressure as well as an indication of further harm.  As such I accept that the harm faced by the applicants amounts to serious and/or significant harm.

5. However, the Tribunal did not accept that the conditions in Malaysia amounted to a ‘systematic breakdown of law enforcement’: see [23]-[24].  The Tribunal went on to find that:

   26.  The type of harm that has been perpetrated in the past, which the primary applicant described as being hit on the head with a motor cycle helmet and bashed with an iron bar I do not construe as ‘cruel or inhuman treatment or punishment’.

6. At first blush that seems surprising, however the Tribunal went on to consider whether the level of harm would rise from what was perpetrated in 2009 were the applicants to return to Malaysia now and into the reasonably foreseeable future.  It found that:

   27. … I accept that the risk the debt collectors will up the ante and fulfil a threat to be more than remote.  As such I accept that the applicant faces a real risk of significant harm in the form of cruel and inhuman treatment upon return to Malaysia or into the reasonably foreseeable future. (emphasis added)

7. The Tribunal then turned its mind to s.36(2B)(b) of the Migration Act 1958 (Cth) and specifically whether the applicants can ‘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’, and considered the country information in this regard: para.28. It found that:

   29.  The applicants stated that they had not approached the police despite the above country information which shows a clear dedication by government ministers, the police and non-governmental groups to act against loan sharks.  Without having pursued a police response to any threats I am left with assessing their reasoning for not doing so which is a perception of corruption among the police force alongside information that shows efforts are being made and protection is available if reported.  I find that in the specific circumstances of this case the applicant could obtain from authorities protection such that it reduces the risk of significant harm to a level considered remote.

8. Lastly, the Tribunal considered whether the applicants, being Chinese Malaysian, may have their access to justice impeded.  The Tribunal found that:

   30. … Considering that they live in the state of Selangor which has one of the largest Chinese Malaysian populations and that country information suggests the Royal Malaysian Police force have undertaken targeted recruitment to increase the number of Chinese among their ranks I do not accept that avenues of recourse to the police would be closed due to her ethnicity and as such do not consider this integer further.

9. Ultimately, the Tribunal concluded that the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) or s.36(2)(b) or (c) and therefore it affirmed the decision of the delegate not to grant the applicants protection visas.

Grounds of Judicial Review

1. The application for judicial review sets out three grounds:

   1. Tribunal failed to taking consideration of my relevant material and consideration about fear of harm from loan shark

   2. Then also failed to take consideration of the lack of protection from Malaysian police force

   3. Tribunal also failed to take consideration of my relevant material and consideration about my partner and my safety upon reaching home country.

2. Despite orders by Registrar Ryan dated 19 July 2017 requiring the applicants to file written submissions 28 days before the hearing, no further material has been filed by the applicants.

Ground One

1. The first ground alleges that the Tribunal failed to consider the material concerning the applicant’s fear of harm from loan sharks.  This argument is unsubstantiated as the Tribunal not only considered the material in [9] to [18], but most importantly accepted that the applicants were at risk of serious and significant harm: see [18], [19] and [22].  In the circumstances, the Tribunal has already found for the applicants on these issues.  I therefore find that this ground cannot succeed.

Ground Two

1. Ground 2 addresses the Tribunal’s considerations as to whether the level of police protection in Malaysia ameliorates the risk of harm.  The Tribunal did consider the issues as set out in [29] of its reasons (as quoted above). 

2. The findings in [29] were supported by the country information which the Tribunal summarised at [28] as follows:

   28.  In this case I now turn my mind to s.36(2B)(b) and specifically whether the applicant can ‘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’.  Country information indicates the following:

   a. Malaysian Chinese Association Head of Public Services and Complaints Department Datuk Seri Michael Chong said “police were powerless against loan sharks as the transactions were on a “willing seller willing buyer” basis.  However, police can take action if loan sharks resort to violence or extortion to recover their money.” [FN: Loan Shark menace worsens in M’sia, The Sun Daily, 2 October 2013, available at [accessed on 8 November 2011].

   b. There is evidence of the Malaysian police pursuing such cases in 2016 including for extortion [FN: CX6A26A6E12449: “4 loan sharks fined RM8,000 each for red paint splashed on debtor home”, Bernama (Malaysian National News Agency), 05 November 2016, available at and quite recently in August 2016 [FN: Six loan sharks from ‘Gang 77’ nabbed by police, Malaysia Outlook, 16 August 2016 available at [accessed on 7 November 2016].  Deputy Minister Datuk Nur Jazlan Mohamed gave past year figures for arrests including “351 illegal moneylenders were arrested, of whom 44 were charged in court last year [2015], while in 2014, 98 were arrested, of whom 90 were prosecuted… If they use force and harm the borrowers, we will taken action under the existing Crime Act”. [FN: Govt getting worried about loan sharks, The Rakyat Post, 29 March 2016 available at [accessed on 7 November 2016].  The biggest arrest in two years was concluded in May 2016. [FN: So long, Ah Long syndicate, The Star Online, 24 May 2016 available at -of-the-biggest-rings-in-the-country-within-12-hours/ [accessed on 8 November 2016].

   c.  Even in circumstances where there isn’t a criminal act the Money Lenders Act of 1951 offers recourse: ‘Kuala Lumpur Consumer Safety Association chairman Samsudin Mohamed Fauzi said the illegal moneylender could be penalized under Section 5(2) of the Moneylenders Act 1951 that carries a fine of not less than RM20,000 and not exceeding RM100,000 or imprisonment not exceeding five years or both, if convicted.  “To those who fall victims to the loan sharks, where some even get death threats, please don’t be afraid to make a police report because Malaysia is a democratic country, we have laws and regulations.” [FN: No need to fear loan sharks – KL Consumer Safety Association].

3. The Tribunal’s findings are therefore supported by evidence.

Ground Three

1. The final ground refers to the risk of harm.  No specific material was identified as being ignored by the Tribunal.  The issues raised were certainly considered and discussed above.

Further issues

1. A further issue that appeared at the hearing arose from the Tribunal’s finding that:

   26.  The type of harm that has been perpetrated in the past, which the primary applicant described as being hit on the head with a motor cycle helmet and bashed with an iron bar I do not construe as ‘cruel or inhuman treatment or punishment’.

2. The definition of the phrase ‘cruel or inhuman treatment or punishment’ is necessarily difficult in practice as violence generally is so abhorrent.  However, the legislation requires a line to be drawn around a category of violence that is ‘cruel and inhumane’.  That a particular act is outside this definition in no way indicates that it is acceptable, condoned, or that the decision made is dismissive of the violence.

3. In this case the question of whether the finding in [26] is correct at law or on the merits becomes academic when one looks to the approach taken by the Tribunal member who, whilst not persuaded the past harm fell within the definition, proceeded on the basis that future harm would escalate and likely fit within the definition, which is set out in [27] (as quoted above).  Thus, the case did not ultimately turn on this point.

4. As a result I am not persuaded that this argument shows a ground that can succeed.

5. I must therefore dismiss the application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 14 March 2018