AJP18 v Minister for Home Affairs

Case •

[2019] FCCA 2424

•

30 August 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJP18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2424
Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal considered whether the police were willing to protect the applicants from loan sharks – whether the Tribunal considered the applicants’ particular circumstances.
Legislation:
Migration Act 1958 (Cth), ss.5LA, 5J(1)(a),(2)
Federal Circuit Court Rules 2001
Migration Regulations 1994
Cases cited:
Minister for Immigration and Citizenship v MZYYL & Another (2012) 133 ALD 465; (2012) 207 FCR 211; [2012] FCAFC 147
Minister for Immigration and Multicultural Affairs v Khawar & Others (2002) 210 CLR 1; (2002) 67 ALD 577; (2002) 187 ALR 574; (2002) 76 ALJR 667; (2002) 23(6) Leg Rep 11; [2002] HCA 14
First Applicant: AJP18
Second Applicant: AJQ18
First Respondent: MINISTER FOR HOME AFFAIRS
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File number: MLG 225 of 2018
Judgment of: Judge Riley
Hearing date: 20 May 2019
Date of last submission: 20 May 2019
Delivered at: Melbourne
Delivered on: 30 August 2019

REPRESENTATION

Counsel for the first and second applicants: Uche Okereke-Fisher
Solicitors for the first and second applicants: Attia Lawyers and Consultants
Counsel for the first respondent: Jamie Grant
Counsel for the second respondent: No appearance
Solicitors for the respondents: Sparke Helmore

ORDERS

  1. The application filed on 25 January 2018 and amended on 7 May 2019 be dismissed.

  2. The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 225 of 2018

AJP18

First Applicant

And

AJQ18

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

  1. This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”).  In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. 

The applicants’ claims

  1. The applicants’ claims are summarised in paragraph 17 of the Tribunal’s reasons for decision as follows:

    The applicant’s protection claims

    The applicant’s written claims for protection are based on the fact that the applicant and the husband borrowed money from a loan shark. The applicants claims are contained in her application and may be summarised as follows:

    •The applicant and her husband left Malaysia because they owed money to a loan shark.

    •The applicant borrowed RM30,000.00 in order to start up an online unregistered food packaging business.

    •The business failed and they could not make the repayments to the loan shark.

    •The loan shark began to harass them and they decided to flee to Australia.

    •There is no state protection as the police are corrupt.

    •There is no safe place to relocate as the loan shark has network everywhere in Malaysia.

    •If the applicant and her husband return to Malaysia they will be harmed and mistreated.

The Tribunal’s reasons

  1. The Tribunal’s reasons for decision are summarised in paragraphs 10 to 14 of the first respondent’s written submissions filed on 13 May 2019 as follows:  

    10.The Tribunal accepted that the applicant was threatened by representatives of a loan shark (CB p 187 [65]). The Tribunal found that the applicant belonged to a particular social group comprising victims of loan sharks (CB p 188 [69]), and accepted that the applicant had a genuine and credible fear of harm if returned to Malaysia for a reason specified at s 5J(1)(a) of the Act (CB p 188 [69]). The Tribunal accepted that the applicant faced a real chance of serious harm in Malaysia on this basis (CB p 188 [70]).

    11.Having regard to the applicants’ evidence that the first applicant had not sought the assistance of authorities in relation to the loan shark (CB p 188 [71]-[72]), and country information, the Tribunal did not accept that the applicant would be denied effective protection measures for any reason set out at s 5J(1)(a) of the Act, or that loan shark activities were so extensive that the applicant would be denied effective protection (CB p 188 [73]). Having regard to country information, the Tribunal was satisfied that the applicant could obtain effective protection from the police or consumer associations (CB p 188 [74]). The Tribunal noted that illegal loan sharking is a criminal offence in Malaysia, and that country information indicates that the Malaysian Police Force is a professional and effective police force that has taken effective measures against illegal money lending (CB p 188 [74]). The Tribunal noted that Malaysia has an independent judiciary capable of dealing with matters in accordance with the rule of law, and found that the effective protection measures would be available from the Malaysian state and that, by operation of s 5J(2) and 5LA of the Act, the applicant did not have a well-founded fear of persecution as a victim of loan sharks (CB p 188-189 [74]).

    12.Although the Tribunal accepted that the loan shark threats would cause the applicant to incur degrading treatment such that there is a real risk that they would suffer harm if returned to Malaysia, the Tribunal found, having regard to country information and the applicant’s accepted circumstances, that the level of protection from the Malaysian police and consumer associations would reduce the risk of significant harm to below that of a real one (CB p 189 [78]). The Tribunal consequently found that pursuant to s 36(2B)(b) of the Act, there was taken not to be a real risk that the applicant would suffer significant harm in Malaysia (CB p 189 [78]).

    13.The Tribunal also accepted that the applicants prefer not to live as traditional Muslims (CB p 187 [67]), and that the second applicant’s family are strict Muslims who expect the applicants to adhere to pious Muslim life whilst in their company (CB p 187 [68]). Having regard to country information, the Tribunal accepted that the applicant may have difficulties in leading a lifestyle different to the second applicant’s parents, but did not accept that it would constitute serious or significant harm (CB p 187-188 [68]). Similarly, the Tribunal found that the applicant did not face a real risk of significant harm on this basis (CB p 189 [76]).

    14.The Tribunal consequently found that the applicant did not meet the criteria for the grant of the Visa at ss 36(2)(a) (CB p 190 [83]), or 36(2)(aa) (CB p 190 [84]).

Ground 1

  1. The first ground of review in the application filed on 25 January 2018 and amended on 7 May 2019 (“the application”) is:

    The Tribunal failed to consider the Applicant’s claims in accordance with law in that it failed to consider an element of the test in s5LA(1)(b) in determining whether the Applicant was a person to whom Australia owed protection obligations under the convention and thereby failed to exercise jurisdiction.

    Particulars

    1.The Tribunal accepted the Loan Sharks Claim [Paragraph 65]

    2.The Tribunal found that the Applicant belongs to … a particular social group, namely victims of loan sharks. The Tribunal accepted that the Applicant and her husband have a genuine and credible fear of harm for a reason mentioned in s5J(1)(a) if they are to be returned to Malaysia.[Paragraph 69]

    3.The Applicant and her husband when asked whether they had sought help, t (sic) said they had not reported to the police as they believed that many in the police force are corrupt. [Paragraph 72]

    4.Subsequently, the Tribunal did not accept that the Applicant will be denied effective protective measures for any reason outlined in s5J(1)(a) - [Paragraph 73]

    5.The Tribunal found that the effective protective measures were available from the relevant state to the Applicant anywhere in Malaysia and therefore the Applicant do (sic) not have a well-founded fear of persecution at [Paragraph 74].

  2. At the commencement of her oral submissions, the first applicant withdrew paragraphs 5 and 8 of her written submissions, and all of paragraph 9 except the words:

    The facts of the case required consideration of whether police corruption claims implied that the police condoned loan shark [crimes if bribed.]

  3. The applicants’ oral submissions in other respects departed significantly from their written submissions.

  4. Section 5LA of the Migration Act 1958 (“the Act”) provided as follows:

    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.

  5. Section 5J of the Act provided that:

    (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;

    …

    (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.

  6. In summary, the applicants argued that the Tribunal failed to consider, in accordance with law, whether the Malaysian police were willing to offer protection to the applicants, in circumstances where the police are corrupt.

  7. The Tribunal said about this issue:

    71.The Tribunal enquired if the applicant and the husband had sought the help of any group or association, such as the Malaysian Muslim Consumers Association, in their dealings with the loan shark. Their evidence was that they had not sought such help due to the fact that they were unaware that such help was available.  

    72.In the hearing the applicant and the husband were asked if they had made a report to the police. They said that they had not made any report as they believed the police would not help them due to the fact that many in the police force are corrupt. Despite their opinion of the Malaysian Police Force they did not say that they would be denied the protection by the police by reason of their race, religion, nationality, membership of a particular social group or political opinion.16 

    73.The DFAT report17 notes that ‘credible local and international sources consider the Royal Malaysian Police to be a professional and effective police force.’ In this case the applicant and the husband have not sort (sic) the assistance of police or any other organisation in dealing with the loan shark. In this respect, the Tribunal does not accept that the applicant will be denied effective protection measures for any reason outlined in s.5J(1)(a) of the Act. While the Tribunal accepts that loan sharks are widespread in Malaysia based on the available country information, the Tribunal does not accept that the activities of the loan sharks are so extensive that the applicant will be denied effective protection measures.

    74.When considering the operation of s.5J(2) alongside the available country information, the Tribunal is satisfied that effective protection measures are available to the applicant and the husband in their receiving country. In this case the applicant and the husband are able to access the police or organisations such as the Kuala Lumpur Consumer Safety Association and/or the Malaysian Muslim Consumers Association to obtain effective protection for the loan shark. Illegal loan Sharking is a criminal offence under Malaysian Moneylenders Act 1951. The available country information indicates that the Malaysian Police Force is a professional and effective police force and that, particularly in more recent years, it has taken effective measure against illegal money lending activities. Finally, Malaysia has an independent judiciary capable of dealing with such matters in accordance with the rule of law. The Tribunal therefore finds that that the effective protection measures are available from the relevant State to the applicant anywhere in Malaysia and therefore, by operation of s.5J(2) and s.5LA, the applicant and the husband do not have a well-founded fear of persecution as victims of loan sharks or any related claim or any other reasons mentioned in s.5J(1)(a).

    75.Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a) regarding the claims by the applicant and the husband in relation to being victims of loan sharks.

    16 s.5J(1)(a) of the Migration Act 1958.

    17 DFAT Country Information Report Malaysia 19 July 2016.

    …

    78.Having considered the country information and the accepted circumstances of the applicant and the husband, the Tribunal finds that the level of protection from state authorities to the applicant and the husband, if removed from Australia to anywhere within the applicant’s country of reference, will reduce the risk of significant harm to below that of a real one. While the Tribunal accepts that the loan sharks threats will cause the applicant and the husband to incur degrading treatment such that there is a real risk that they will suffer significant harm22 if returned to Malaysia, the risk is removed by the effective protection23 provided by the Malaysian Police Force and other organizations such as the Kuala Lumpur Consumer Safety Association and/or the Malaysian Muslim Consumers Association.

    22 s.36(2A)(e) of the Migration Act 1958.

    23 s.36(2B)(b) of the Migration Act 1958.

  8. It was common ground that the Tribunal was in error in saying in paragraph 73 of its reasons for decision that:

    the Tribunal does not accept that the applicant will be denied effective protection measures for any [Convention] reason …

    That is because the denial of effective protection can be for any reason, and does not need to be for a Convention reason. 

  9. However, the Minister submitted that the error did not infiltrate the balance of the Tribunal’s reasoning.  I accept that submission.  It seems to me that the balance of the Tribunal’s reasoning on the effective protection issue does not confine the question to whether the applicants would be denied protection for a Convention reason, but considers whether the applicants would be denied effective protection for any reason.

  10. The Minister submitted that the Tribunal also erred in this case in its consideration of whether the applicants were members of a particular social group, in that the Tribunal defined the particular social group by reference to a fear of persecution, rather than by reference to some other characteristic. The position was explained in paragraph 34 of Minister for Immigration and Multicultural Affairs v Khawar & Others (2002) 210 CLR 1; (2002) 67 ALD 577; (2002) 187 ALR 574; (2002) 76 ALJR 667; (2002) 23(6) Leg Rep 11; [2002] HCA 14, where McHugh and Gummow JJ said:

    In Applicant A42, McHugh J explained why the persecutory conduct itself cannot define the particular social group in question for the purposes of Art 1A(2), but went on to add that the actions of the persecutors may serve to identify or even cause the creation of such a group.43 He held that couples in China who want to have more than one child, contrary to the one-child policy, were not a particular social group, as there was no social attribute or characteristic which linked them independently of the alleged persecutory conduct.

    42 (1997) 190 CLR 225 at 263.

    43 Applicant A (1997) 190 CLR 225 at 264.

  11. The relevant passage in this case is at paragraph 69 of the Tribunal’s reasons for decision, where the Tribunal said:

    Nevertheless, the Tribunal finds that the applicant belongs to a membership of particular social group, namely victims of loan sharks. The country information indicates that there are a number of illegal gangs operating in Malaysia and that loan sharking is widespread in Malaysia. As a result, on an objective basis, the Tribunal accepts that the applicant and the husband have a genuine and credible fear of harm for a reason mentioned in s.5J(1)(a), if they are to be returned to Malaysia. (emphasis added)

  12. The Minister submitted that the error was not jurisdictional, because the Tribunal found that the applicants would be afforded effective protection in Malaysia, so they had no need of protection in Australia. The applicants submitted that the particular social group in this case was not defined by its fear of persecution, but by the fact that the people concerned had outstanding debts to loan sharks.  I accept the applicants’ submissions on this point.  That is, I accept that the Tribunal’s phrase, victims of loan sharks, does not necessarily mean, people who have been intimidated by loan sharks, but can be taken as meaning, people who have been caught up in predatory lending practices of loan sharks.

  13. The Tribunal also appears to have made another error, which neither party mentioned, in saying that the applicants could obtain effective protection from consumer associations. Under s.5LA of the Act, effective protection can only be provided by the State, or

    a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State.

  14. It cannot be said that any consumer association controls Malaysia or a substantial part of its territory.  However, the error was not material, because the Tribunal said that protection by consumer organisations was an alternative to, and additional to, protection by the police and judiciary.

  15. The applicants conceded that the Tribunal set out a good deal of country information in paragraphs 37 to 55 of its reasons for decision relating to loan sharks.  However, the applicants argued that information went to the ability of the State to provide protection rather than its willingness.

  16. The country information cited by the Tribunal included the following:

    41.Police in Perak made 88 arrests during an eight month period and continue to combat Ah Long syndicates by removing marketing materials, such as advertisements, from the public space.

    …

    43.Numerous media reports were located regarding the effectiveness of police investigations and arrests related to Ah Long syndicate crimes. Police in Sabah reported that '16 men believed to be Ah Long members were arrested in 2013 compared to 12 arrested in 2012' during Operation Vulture.

    44.In 2013, Malacca police investigated 29 Ah Long related cases and arrested 20 people. Thirteen cases involved preventative measures with cases being 'investigated under Section 5(2) of the Money Lenders Act 1951 for operating without a license'. Additionally, 'four more cases and seven individuals were investigated under Section 29AA of the same Act for putting up posters.’

    …

    46.The Malaysian Star2 reported that two loan sharks were arrested during a police surveillance operation when collecting money from a victim. The arrested persons were wanted by police 'for suspected involvement in several other cases of illegal moneylending in the district. ‘The Tribunal referred to both Malaysia and other media outlined above which indicates that the police are very concerned about the issue of illegal money lenders in Malaysia because it is a big problem and there have been a lot of reports in the Malaysian media to try to make people aware about the problem of illegal money lenders and their illegal activities and they have encouraged people to report these. The media on this issue indicates there has been a concerted effort to address illegal money lending and they appear to have targeted money lenders and associated criminal gangs.

    47.The Malaysian Times3 reported that there was no need to fear loan sharks. This article reports that the lack of exposure on law to 'ah long' or loan sharks and the fear of making a police report after being threatened are among the factors causing the victims of these illegal moneylenders to endure endless debts. The article goes on to say that the Kuala Lumpur Consumer Safety Association has appealed to people not to be afraid to report threats made by loan sharks because they are not immune from the law but when victims are too afraid to make a police report, that makes them immune.

    …

    2 The Malaysian Digest, 29 May 2015.

    3 The Malaysian Digest 29 May 2015.

    53.The Tribunal notes the following information relating to corruption within the RMP:

    ‘Police Integrity and Accountability

    5.6 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion.’

  1. The applicants’ claim that the Tribunal did not consider the willingness of the Malaysian police to act against loan sharks does not accurately characterise the country information.  The country information contains several reports of the police making numerous arrests of loan sharks and removing large quantities of loan sharks’ material.  That activity on the part of the police demonstrated its willingness to take action against loan sharks.  The Tribunal obviously took that into account.

  2. The Tribunal also noted that a Royal Commission in 2005 recorded a widespread perception of corruption within the police force. The Tribunal then noted a later report, from Human Rights Watch in 2014, which credited the Malaysian government with implementing many of the recommendations of the Royal Commission, but not those dealing with external accountability.

  3. However, as indicated above, the Tribunal concluded that effective protection was available to the applicants because:

    … The available country information indicates that the Malaysian Police Force is a professional and effective police force and that, particularly in more recent years, it has taken effective measure against illegal money lending activities. Finally, Malaysia has an independent judiciary capable of dealing with such matters in accordance with the rule of law.[1]  …

    [1] Paragraph 74 of the Tribunal’s reasons for decision

  4. That conclusion was open to the Tribunal on the material before it.  The Tribunal did consider whether the Malaysian police were willing to provide effective protection against loan sharks, and decided that they were. In making that finding, the Tribunal rejected the applicants’ contention that the Malaysian police were so corrupt that they would not provide the applicants with effective protection.  As is well-established, effective protection does not require a guarantee of protection.

  5. I am not persuaded that there is any substance to ground 1.

Ground 2

  1. The second ground of review in the application is:

    The Tribunal wrongly construed s 36(2B)(b) of the Act as being satisfied if the state’s police force and other state authorities offer effective protection without an inquiry into the particular circumstances that appertain to the non-citizen whose application for a visa is under consideration for the purpose of ascertaining whether the effect of the identified effective protection would be such that there would not be a real risk that the non-citizen (the Applicant) will suffer significant harm.

    Particulars

    The Tribunal found that (i) the level of protection from state authorities to the applicant and husband if removed from Australia to anywhere within the Applicant’s country of reference, will reduce the risk of significant harm to below that of a real one. (ii) accepted that the loan shark threats will cause the applicant and the husband to incur degrading treatment such that there is a real risk that they will suffer significant harm if returned to Malaysia, the risk is removed by the effective protection by the Malaysian Police Force and other organizations such as the Kuala Lumpur Consumer Safety Association and/or the Malaysian Muslim Consumers Association. [Paragraph 78]

  2. For this ground the applicants relied on the following passages from Minister for Immigration and Citizenship v MZYYL & Another (2012) 133 ALD 465; (2012) 207 FCR 211; [2012] FCAFC 147:

    33.At the outset, a number of matters should be noted. First, s 36(2B)(b) is the obverse of s 36(2)(aa). It uses the same language as s 36(2)(aa). Section 36(2B)(b), like the other paragraphs in s 36(2B), deems a particular circumstance to mean that the non-citizen will not suffer significant harm if the non-citizen were to be returned to the receiving country. If any of the circumstances mentioned in s 36(2B) are found to exist, the minister must conclude that the non-citizen would not suffer significant harm for the purposes of s 36(2)(aa). However, the inquiry in s 36(2B) is not at large. It is an inquiry into the particular circumstances that appertain to the non-citizen whose application for a visa is under consideration. That is made clear by the reference in the chapeau to the “non-citizen” and the references in paras (a) and (b) to the non-citizen relocating or seeking protection from an authority of the country but, even more particularly, by para (c) which speaks of the non-citizen personally.

    …

    35.Third, contrary to the submissions of the minister, s 36(2B)(b) does not, in its terms or in its operation, require either the conclusion that it is inevitable that the non-citizen will suffer significant harm or the conclusion that it is certain that he or she will not. The express terms of the section require the minister to be satisfied that, given the protection available to MZYYL in the receiving country, there would not be a real risk that he will suffer significant harm. There is nothing to suggest or warrant the imposition of some kind of guarantee of one or other outcome. And, indeed, such a guarantee is practically impossible: compare S152/2003 at [28].

    …

    39.Section 36(2B)(b) poses the question whether, in obtaining protection from the receiving country, the protection is such that there would not be a real risk that the non-citizen would suffer significant harm if returned. The section proceeds from an assumption (correctly made) that there will be circumstances where the protection offered is not sufficient to remove the fact that there is a real risk that the non-citizen will suffer significant harm.

  3. The applicants argued that, in deciding that the applicants would be given effective protection, the Tribunal failed to consider the applicants’ particular circumstances, and failed to provide examples of people in the same position as the applicants who had previously benefitted from effective protection.

  4. The Tribunal did not have to provide examples of people in the applicants’ position who had previously benefitted from state protection.  However, in broad terms, the Tribunal did provide such examples, by referring to the country information about the police arresting loan sharks. 

  5. The Minister conceded that the Tribunal was obliged to consider the applicants’ personal circumstances, but said that the Tribunal only needed to do so insofar as those circumstances were put forward by the applicants. The applicants did not advance any issues before the Tribunal about their personal circumstances except that they had received threats. 

  6. The Tribunal accepted in paragraph 70 of its reasons for decision that the applicants had been threatened as they described in their evidence and accepted that the threats posed a real risk of serious harm. However, the Tribunal then considered whether the applicants had the benefit of effective protection. The Tribunal concluded that they did, notwithstanding that they had been threatened.

  7. That country information cited by the Tribunal referred to threats made by loan sharks, and, indeed an abduction.  The issue of threats permeated the country information cited by the Tribunal, not least because it is a well-known, and almost defining, feature of loan sharks that they threaten people.  Accordingly, the Tribunal took into account the personal characteristic of the applicants that they had been threatened.

  8. The applicants did not apprise the court of any other of their characteristics that the Tribunal failed to take into account.

  9. I am not persuaded that there is any substance to ground 2.

Conclusion

  1. As neither of the applicants’ grounds has been made out, the application must be dismissed with costs.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 30 August 2019


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