EPT19 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 690

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EPT19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 690

File number(s):

MLG 4101 of 2019

Judgment of:

JUDGE KAUR-BAINS

Date of judgment:

16 May 2025

Catchwords:

MIGRATION – judicial review – protection visa – Tribunal accepted the applicant was a member of a particular social group being “persons being pursued by loan sharks” – Tribunal found on the country information the applicant would not be denied effective protection by the police from loan sharks – issue as to whether the Tribunal ignored or failed to have regard to relevant country information as to effective protection by the police from loan sharks – no jurisdictional error – application dismissed   

Legislation:

Migration Act 1958 (Cth) ss 5, 5J, 5LA, 476, 477, 499

Ministerial Direction no. 84

Moneylenders Act 1951 (Malaysia)

Penal Code 1976 (Malaysia)

Cases cited:

BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095

Hamod v New South Wales [2011] NSWCA 375

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445

Division:

General Federal Law

Number of paragraphs:

25

Date of hearing:

31 March 2025

Applicant:

In person

Solicitor for the First Respondent:

Ms Warren of Sparke Helmore Lawyers

ORDERS

MLG 4101 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EPT19

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KAUR-BAINS
DATE OF ORDER:	16 MAY 2025

THE COURT ORDERS THAT:

1.The name of the second respondent be amended to Administrative Review Tribunal.

2.The application is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Kaur-Bains

1. The applicant, a citizen of Malaysia, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 19 October 2019. The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicant a Protection (Class XA) visa (visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for review has been brought within the time set out in s 477 of the Act.

2. The Tribunal found that the applicant was a member of a particular social group, being “persons being pursued by loan sharks”, and the applicant feared harm if returned to Malaysia, unless she continued to make regular repayments to the loan shark. However, the Tribunal found the applicant did not have a well-founded fear of persecution, because on the country information the Tribunal found the applicant would not be denied effective protection from the loan sharks by the police.

3. The issue arising for determination is whether the Tribunal committed jurisdictional error by ignoring or failing to have regard to relevant country information. The said country information stated that an individual who is unable to service a debt from a loan shark may risk physical threats and due to a lack of reliable information, the Department of Foreign Affairs and Trade (DFAT) was unable to verify the level of protection offered by police in Malaysia.

4. For the reasons that follow, I find the applicant has not demonstrated jurisdictional error.

   TRIBUNAL’S DECISION

5. On 15 July 2019, the applicant appeared before the Tribunal, assisted by an interpreter in the Malay language.

6. The Tribunal recorded the applicant’s evidence that she feared returning to Malaysia as she had unpaid debts to loan sharks, or “Ah Long”, the colloquial Cantonese term for illegal loan sharks in Malaysia ([19] to [29] of the reasons). The applicant claimed she and her husband had taken out a loan from loan sharks for their wedding and were unable to repay the loan as it was a large amount. At [37] of its reasons, the Tribunal recorded the applicant’s claims as follows:

   (a)The applicant and her husband owed Ah Long 10,000 Malaysian Ringgits (MYR) (roughly the equivalent of $3,519 Australian Dollars (AUD)) plus interest, for their wedding. The applicant and her husband could settle the debt in its entirety by paying 20,000 MYR.

   (b)The applicant feared she might be harmed or even killed by Ah Long.

   (c)When the applicant did not make payment, Ah Long visited her family. The applicant feared her family would be harmed by Ah Long.

   (d)The applicant had not been to the police about the matter.

   (e)The applicant had concerns about her employment prospects in Malaysia given she only had a secondary education.

   (f)The applicant and her family were in a financially difficult situation in a village in Sabah.

   (g)The applicant was concerned about the high cost of living in Malaysia and the low wages.

   (h)The applicant lived in a small village with many foreigners and not many job opportunities.

   (i)Healthcare in Malaysia was expensive. The applicant had a debt in Australia of $23,233 AUD owed to the Murrumbidgee Local Health District.

7. The Tribunal had some concerns about the applicant’s credibility. However, it proceeded on the basis that it accepted, due to the applicant’s profile as a member of a particular social group, being “persons being pursued by loan sharks”, the applicant had a subjective fear of facing serious harm in the event she was returned to Malaysia and she and her family members may be harmed unless she continued to make regular repayments to the loan sharks (at [45] of the reasons). Therefore, the Tribunal accepted the applicant had a genuine and credible fear of harm for a reason in s 5J(1)(a) of the Act ([46] of the reasons).

8. At [46] of its reasons, the Tribunal noted, for the purposes of s 5(2) of the Act, it needed to consider whether the applicant had access in Malaysia to effective protection measures as a victim of loan sharks. From [48] to [62] of its reasons, the Tribunal considered the country information and other material. At [48] of the reasons, the Tribunal concluded the applicant would not be denied effective protection by the police from the loan sharks. The applicant’s judicial review ground raises the question of how the Tribunal dealt with the issue of whether there was effective police protection from the loan sharks and the country and other information, which I consider below at [18] of this judgment.

   PROCEEDINGS BEFORE THE COURT

9. The applicant appeared at the hearing before me as a litigant in person, assisted by a Malay interpreter. Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445 at [37]), I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application, affidavit of Lawson John Bayly filed on 22 November 2019 and the Minister’s written submissions filed on 18 March 2025. Before the hearing started, the interpreter interpreted the Minister’s submissions for the applicant. The applicant did not provide any written submissions.

10. The affidavit of Lawson Bayly affirmed on 20 November 2019 was read by the applicant without objection. It contained the Tribunal’s decision, but more importantly annexed at LJB-2, a copy of the DFAT Country Information Report for Malaysia dated 19 April 2018 (Version 2) (2018 DFAT Report), which the applicant alleges the Tribunal failed to consider.

    GROUNDS FOR REVIEW

11. The applicant’s application filed on 22 November 2019 contained the following ground for judicial review (as per original):

    The Administrative Appeals Tribunal (the Tribunal) made the following jurisdictional errors, by reason of which it is claimed that the migration decision under review is not a ‘privative clause decision’ within the meaning given by subsection 474(2) of the Migration Act 1958 (Cth) (the Act).

    1. The Tribunal erred in law by ignoring the most relevant and up-to-date material or by failing to have regard to a relevant consideration.

    Particulars

    a.        The Tribunal found at paras [45]-[46] of its reasons that:

    … due to the applicant’s profile as a member of a particular social group, “persons being pursued by loan sharks”, the applicant has a subjective fear of facing serious harm in the event she is returned to Malaysia now or in the reasonably foreseeable future, and that she fears that she and her family members may be harmed unless she continues to make regular repayments to the loan shark, Chin Delta, and his criminal associates.

    Therefore, the Tribunal accepts that the applicant has a genuine and credible fear of harm for a reason mentioned in s.5J(1)(a), were she to return to Malaysia now or in the reasonably foreseeable future. However, while the Tribunal accepts there is a real chance of serious harm, including physical ill-treatment, for the specific claimed reasons, the Tribunal has considered whether the applicant has access to effective protection measures as a victim of a loan shark by operation of s.5(2) of the Act.

    b. Clause 3 of Direction No. 84 – Consideration of Protection Visa Applications, made under s 499 of the Act, required the Tribunal to take into account, where relevant, country information assessment prepared expressly for protection status determination purposes by the Department of Foreign Affairs and Trade (DFAT).

    c. The Tribunal failed to take into account the relevant part of the country information assessment prepared by DFAT in respect of Malaysia, which indicated at para [3.101] that:

    An individual who is unable to service a debt from a loan shark may risk physical threats. Due to a lack of reliable information, DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, their likelihood of seeking police protection, or the level protection offered by police.

    d. The material ignored by the Tribunal was capable of altering its findings in respect of the availability of effective protection measures, and the Applicant was thereby deprived of the possibility of a successful outcome.

    RELEVANT LAW

12. Section 5J(2) of the Act provides “a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.”

13. Section 5LA of the Act sets out the meaning of effective protection measures, relevantly as follows:

    (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.

    CONSIDERATION

14. The applicant submits the Tribunal failed to consider the 2018 DFAT Report, which is said to be evidence relevant to whether there is effective protection measures available to the applicant in Malaysia from the loan sharks. The Minister accepts, that in accordance with Ministerial Direction no. 84 made under s 499 of the Act, the Tribunal is required to take into account country information to the extent it is relevant. The Minister also observes that the weight the Tribunal gives to the country information is a matter for the Tribunal, as part of its fact-finding process (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, [11]).

15. Thus, the applicant’s ground for judicial review, turns on a consideration of whether the Tribunal did in fact properly have regard to [3.101] of the 2018 DFAT Report, which provided as follows:

    An individual who is unable to service a debt from a loan shark may risk physical threats. Due to a lack of reliable information, DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, their likelihood of seeking police protection, or the level protection offered by police.

16. The Minister contends the Tribunal’s reasons disclose it did not overlook [3.101] of the 2018 DFAT Report. First, the Minister says that at [10] of the Tribunal’s reasons, it expressly stated that in accordance with Ministerial Direction no. 84, made under s 499 of the Act, the Tribunal took into account the country information prepared by DFAT, to the extent it was relevant to the decision. Second, the Minister says that at [60] of its reasons, the Tribunal expressly referred to the 2018 DFAT Report and parts of that report, which stated that local and international sources considered the Royal Malaysia Police (RMP) to be a professional and effective police force, although the quality of its members’ responses varied depending on levels of training, capacity and engagement in corruption. Further, at [61] the Tribunal referred to other parts of the 2018 DFAT Report. 

17. The Minster submits that even though the Tribunal did not expressly refer to [3.101] of the 2018 DFAT Report, this Court should draw an inference the Tribunal was aware of the contents of the said paragraph, which only relevantly said DFAT was unable to verify the level of protection offered by the police in relation to loan sharks, and the said paragraph did not say there was no effective police protection against loan sharks. Therefore, the Minister contends it is not surprising the Tribunal did not expressly refer to the said paragraph which, as said, was to the effect that DFAT was unable to verify the level of protection offered by the police. The Minister says that from the reasons, instead the Tribunal looked at other information to try to ascertain whether there was any information that could verify the level of police protection from loan sharks.

18. Turning to the Tribunal’s reasons, I note the Tribunal concluded on the basis of credible and corroborated country research, that the applicant would not be denied effective protection by the police on the basis of her particular social group, being persons being pursued by loan sharks ([48] of the reasons). To reach that conclusion, the Tribunal considered the following:

    (a)An article written by Borneo Postonline, “No need to fear loan sharks-KL Consumer Safety Association”, posted on 18 February 2015, which reported on comments made by the Kuala Lumpur Consumer Safety Association chairman, informing people if they did fall victim to loan sharks not to be afraid to make police reports because Malaysia is a democratic country that has laws and regulations and the loan sharks are not immune from the law (at [48] of the reasons).

    (b)An article on banking in the Straits Time, “5 Ways legal moneylenders in Malaysia are different from Ah Longs”, referring to a section in the Moneylenders Act 1951 (Malaysia), which identified five ways legal money lenders in Malaysia were different to loan sharks, being that legal money lenders needed a licence, which had requirements including they cannot be convicted of a crime involving fraud or dishonesty, cannot be convicted of an offence against a body or property in the Penal Code 1976 (Malaysia), cannot be a bankrupt, cannot be the management of a moneylending business that went bust and cannot get a licence if there is evidence of bad character ([49] and [50] of the reasons). The Tribunal noted the article also raised public awareness by stating, “If you’re having a difficult time managing your finances, the Credit Counselling and Debt Management Agency (AKPK) might be able to help. They provide financial education, financial counselling, as well as a debt management programme” ([50] of the reasons).

    (c)Comments by the former Prime Minister Najib about the need to curtail the activities of illegal money lenders with proper financing schemes provided to small and medium enterprises ([51] of the reasons).

    (d)Media reports as to the police having mounted campaigns against loan sharks and police reports as to arrests of Ah Long members in 2012, 2013 and 2014, and police operations against unlicenced money lenders in 2014 ([52] of the reasons).

    (e)Reports from the AsiaNewsNetwork, The Star, dated 21 May 2019, as to police taking action against loan sharks as late as 2019 ([53] of the reasons).

    (f)Country information as to the structure and functions of the police force in Malaysia ([54] and [55] of the reasons).

    (g)Country information as to specific measures that have been initiated in crime prevention by the police ([56] and [57] of the reasons).

    (h)Country information which referred to community involvement being the most influential component of the criminal justice system in Malaysia ([58] of the reasons). The Tribunal noted at [59] of its reasons this country information indicated Malaysia is not a lawless country.

    (i)The 2018 DFAT Report which stated the police force is a professional and effective police force, although responses vary based on training, capacity and corruption ([60] and [61] of the reasons).

    (j)Country information as to the judiciary’s independence ([62] of the reasons).

19. The country information set out in the preceding subparagraphs 18(a) to 18(c) of this judgment are about the public awareness campaigns in Malaysia. Subparagraphs 18(d) and 18(e) of this judgment refer to country information pointing to the police taking action against Ah Long as late as 21 May 2019. Subparagraphs 18(f) and 18(g) of this judgment refer to country information which is relevant to whether the police force is a reasonably effective police force generally. The country information in [18(i)] of this judgment is generally about the police’s ability to protect against crime, although I note it is not specifically about loan sharks. Subparagraph 18(j) of this judgment refers to country information as to whether Malaysia has a reasonably impartial judicial system, which consideration is relevant to whether there are effective protection measures as set out in s 5LA(2)(c) of the Act.

20. I find on a fair reading of the Tribunal’s reasons, the Tribunal was aware of the 2018 DFAT Report and its contents, because it referred to the report itself and then parts of the report at [60] and [61] of the reasons. Therefore, I find the Tribunal was aware of [3.101] of the 2018 DFAT Report, although it did not expressly refer to the said paragraph.

21. In any event, I find [3.101] of the 2018 DFAT Report is not evidence that is centrally relevant to the question of effective protection measures by the police in relation to loan sharks. This is because that paragraph does not indicate the effectiveness of police protection in relation to loan sharks, but only says it is “unable” to verify the level of protection. Therefore, the Tribunal was required, as it did, as set out in [18(d)] and [18(e)] of this judgment, to look at other country information to assess whether there are effective protection measures in place against harm from loan sharks.

1. Accordingly, I find no jurisdictional error disclosed.

   Self-evident jurisdictional error

2. Given the applicant was self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11]. I have not identified any such jurisdictional error.

   CONCLUSION

3. As no jurisdictional error has been disclosed, the application must be dismissed.

   COSTS

4. I will hear the parties as to costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.

Associate:

Dated:       16 May 2025