1609044 (Refugee)

1609044 (Refugee) [2020] AATA 6193 (4 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1609044

COUNTRY OF REFERENCE: Malaysia
MEMBER:Simone Burford
DATE:4 November 2020
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 November 2020 at 4:25pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan sharks – physical violence – fear of killing – business bankruptcy – wife’s numerous returns to Malaysia – state protection – delay in apply for protection – delayed provision of evidence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Alamdar v MIMA [2001] FCA 1244
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Coco v AN Clark (Engineers) Ltd [1969] RPC 41
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v Minister for Immigration and Border Protection [2018] FCFCA 2
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v MIMA (1998) 86 FCR 547
Lama v MIMA [1999] FCA 918
MIAC v MZYYL [2012] FCAFC 147
MIMA v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] 265 ALR 281
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZBEL v MIMIA (2006) 228 CLR 152
SZTYV v MIBP [2018] FCA 1076
SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089
WAKK v MIMIA [2005] FCAFC 225
Zheng Jia Cai v MIMA (Federal Court of Australia, French J, 13 June 1997)
SZVYD v MIBP [2019] FCA 648
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the delegate) on 24 May 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 27 January 2016. The delegate refused to grant the visa on the basis that he was not a person in respect of whom Australia has protection obligations as outlined in ss.36(2)(a) or 36(2)(aa) of the Act.
The application was initially listed before the Tribunal differently constituted on 12 February 2018. On that occasion the applicant failed to appear at the scheduled time and place of the hearing. The applicant applied for re-instatement on 24 February 2018 (by email) and had been told the wrong time to attend when he had called the Tribunal. The application was re-instated on 26 February 2018. However, following re-instatement the Member to whom the matter was constituted became unavailable to hear the matter and it was reconstituted.
The applicant appeared before the Tribunal as currently constituted on 2 October 2019, 6 May 2020, 2 September 2020 to give evidence and present arguments.
With respect to the second and third hearings the applicant was assisted by [Mr A] (the applicant’s representative), a registered psychologist who is an employer of the applicant. The Tribunal notes that [Mr A] is not a registered migration agent. At the commencement of the second hearing the Tribunal discussed with [Mr A] the constraints regarding persons authorised to provide migration advice to applicants under the Migration Act and clarified with [Mr A] that his intention was to assist and support the applicant in relation to the matter and to act as his authorised recipient with respect to correspondence to the Tribunal. The Tribunal cautioned that if [Mr A] were to remain at the hearing in this capacity it would not, in the Tribunal’s view, be appropriate for him to also act as an expert witness for the applicant though the Tribunal would afford him an opportunity to make submissions on the applicant’s behalf. The Tribunal confirmed with the applicant that he wished to have [Mr A] present to assist him on this basis. The Tribunal notes that although [Mr A] was not a witness, to the extent [Mr A] made submissions regarding the applicant’s character or other matters of which he had direct knowledge the Tribunal has had regard to that information. The Tribunal also records its appreciation to [Mr A] for the time he spent assisting the applicant to put his claims to the Tribunal.
The initial hearing on 2 October 2019 was held in person. The second hearing was held by telephone. The hearing was held during the COVID-19 pandemic. At the time the hearing was conducted the Tribunal registry was closed and the Tribunal was not undertaking in-person hearings. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. In response to the hearing invitation, the applicant, through his representative, expressed a concern that the applicant would not be able to put his case properly during a telephone hearing including because ‘have the hearing via a phone link-up would completely sabotage his ability to present his revised case either properly or fairly’. These concerns were discussed with the applicant at the hearing, The Tribunal assured the applicant that its objective was to conduct the hearing in a fair manner designed to enable him to provide evidence and make submissions in support of this application. The Tribunal indicated that in the event any issues arose or the hearing was not completed on this occasion, the Tribunal could consider a further hearing conducted by an alternate means. The applicant indicated he understood this and the hearing proceeded without issue. However, the Tribunal determined a further hearing was required to enable further evidence to be taken and the subsequent hearing was able to be listed as an in-person hearing following the limited re-opening of the Tribunal’s registry.
The two initial hearings were conducted with the assistance of an accredited interpreter in the English and Tamil languages available via telephone. The interpreter appeared via telephone. However, the applicant indicated at the first and second hearings that he did not require an interpreter and the interpreter was not used for the bulk of the hearing. The applicant indicated he did not require an interpreter for the third hearing. At the commencement of the hearing the Tribunal confirmed with the applicant and the witness that they wished to proceed without an interpreter. The hearing proceeded on that basis. The Tribunal notes that at no point during the hearing did the applicant indicate any difficulty understanding or responding to questions in English. Similarly the witness, his wife who has trained as an English translator in Malaysia, did not express any difficulties. During the hearing if the applicant’s responses were unclear or not responsive to the question asked, the Tribunal rephrased or re-asked the question to ensure a clear understanding of what was being discussed.
The Tribunal notes that at the conclusion of the third hearing the applicant’s representative noted it was unfortunate an interpreter had not been present as he felt the applicant had not understood some of the questions put to him. The Tribunal discussed this concern with the applicant’s representative but formed the view that the applicant had understood the proceedings and the questions asked and had a fair opportunity to give evidence. The Tribunal noted that the applicant chose not to use an interpreter on the two prior occasions and had indicated at the commencement of the hearing no interpreter was required. The applicant had not expressed any concern regarding this arrangement during the three hour hearing. In such circumstances the Tribunal did not accept the applicant had any difficulty fully participating in the hearing without the presence of an interpreter.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
DECISION MAKING FRAMEWORK
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 fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
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 s.36(2A): 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.
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.
Credibility assessments
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[1]
[1] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]–[70] per Nicholls J.
The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[2] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3]
[2] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[4] The Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[5] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[6] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[7]
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].
[6] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
[7] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.
Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held.
If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[8]
[8] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
The Tribunal notes that where there is a finding that there is no subjective fear of persecution this may lead to a conclusion that the Tribunal finds the claims not to be credible. In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015 in particular [8], [13], [17]–[19] and [27]–[28].

Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[9]
[9] Prasad v MIEA (1985) 6 FCR 155 at [169–70]; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal notes in particular that it has had regard to the most recent DFAT Country Information Report: Malaysia dated 13 December 2019 (the 2019 DFAT Report) in considering the claims raised in the application.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution in Malaysia because of political and economic issues in Malaysia, because he owes money to loan sharks in Malaysia, or for any other reason, or whether complementary protection provisions otherwise apply.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant identity and country of reference
The applicant claims to be a citizen of Malaysia. He provided a Malaysian passport issued [in] 2015 to the Department. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection. The applicant testified that he is not a citizen of any other country.
The Tribunal finds that the applicant is a citizen of Malaysia, which is also his receiving country for the purposes of the refugee and complementary protection assessments.
Background
The applicant is [an age]-year-old Malaysian citizen. He is Hindu and identified himself as ethnically Tamil.
The applicant is married with one son. He and his wife entered an arranged marriage around 10 years ago. His wife and son were in Australia on a visitor visa at the time of the second and third hearings, having arrived in January 2020. Prior to that they have been residing in Malaysia with his parents-in-law who live in [a location in] Kuala Lumpur.
Prior to coming to Australia he was living in [another location in] Kuala Lumpur with his mother and father. He told the Tribunal that his wife and son had been living with him there prior to his problems when they moved to live with his wife’s parents.
His mother and father remain living in Kuala Lumpur in the family home with [one sibling]. [Other siblings] also live in Kuala Lumpur. All his siblings are married and [some] have children.
Prior to travelling to Australia he travelled as a tourist to [Country 1] in about 2000. He travelled to [Country 2] in [2015] to work on a friend’s farm. He left [Country 2] following the earthquake there and came to Australia in August 2015. He said he was in [Country 2] about three months.
His family own a [product] business in Malaysia. The applicant described this as a [product] delivery service where they bought [product], transported and sold it. [Specified siblings] currently work for his father in the business and [another sibling] is working for a [business]. He told the Tribunal his parents own their home though there is a mortgage on the property. He also told the Tribunal his father has been operating the company for more than 20 years. The applicant started [working] for the company in 1999. He said he had previously operated two of his own businesses, one was a [product] business like his father’s, supplying [product] to small businesses. The other was a club in Kuala Lumpur called [Business 1]. He operated the business for about 2 to 3 years. He said he had the other company for about 3 years and then changed the company name into his [relative’s] name. He couldn’t remember when this was. In Australia he is working [in two occupations].
Summary of the applicant’s claims and evidence
Claims
At the hearing the Tribunal explained to the applicant the documents before it. The Tribunal read to the applicant the summary of claims contained in the delegate’s decision record, which were as follows:
·the applicant had a [product] business with his father, and he borrowed money at a high interest return from a moneylender when the business went bad. He was unable to repay the debt and the moneylenders beat him up and threatened to kill him if he did not pay. They threatened him at home and his business and they took his car. They posted his picture all around his home area. The applicant fears he may be harmed or killed by moneylenders if he returns to Malaysia.
·The applicant has not reported the situation to police as he fears they will hurt his family. The applicant says the moneylenders lodged a police report themselves.
·The applicant claimed that if he returns to Malaysia the authorities there would not protect him because they say ‘it’s personal problem’ and he believes Malaysia is a corrupt country with a corrupt system.
·The applicant attempted to relocate within Malaysia but they managed to track him down. He went to stay in [Country 2] with a friend, but left when the country experienced an earthquake. The applicant does not believe he could relocate within Malaysia if he returned because he can be found easily.
The applicant confirmed this was a fair and accurate summary of his claims for protection. When asked if he wanted to add to his claims for protection, the applicant said ‘no’. He said they (the loan sharks) were still disturbing his family and sisters and when his father goes to functions they are asking him ‘What are you going to do?’ and he feels shame. He said that the week prior to the first hearing the bank told his sister he has to pay $[amount] for his car but the car had been stolen and his father put the house under his name and his sister’s name but he didn’t know about it.
Documentary evidence
The Tribunal had a copy of the Department’s file in relation to the applicant including a copy of the delegate’s decision (the Department’s file). A copy of that decision was provided to the applicant at the first hearing and the information contained in the decision was put to him in general terms pursuant to s.424AA of the Act. This is detailed further below.
The Tribunal notes that it also had a copy of the Department file with respect to the applicant’s wife’s visitor visa before it. However, the Tribunal did not consider that information to be relevant to the review of the applicant’s claims.
According to the material on the Department’s file, before the Department the applicant submitted identity documentation and a bank statement relating to [business name] dated [in] October 2015 showing a closing balance of 10,107.28 Malay Ringgit (MYR).
Before the Tribunal the applicant submitted the following documentary evidence and submissions:
·Written submissions dated 21 October 2019.
·Written submissions provided on 5 May 2020.
·A CTOS Report dated 9 October 2019 regarding [Business 2] and [Business 1]– marked ‘Evidence of Business Activity’.
·A CTOS Report dated 9 October 2019 regarding bankruptcy proceedings in the applicant’s name with an order date [in] October 2015 – marked ‘Evidence of Financial Problem’.
·A statement of the applicant ‘as told by [the applicant] and written down by his brother-in-law’ detailing two loans – marked ‘Recalled details of loans and events’.
·A statutory declaration from [name], the applicant’s sister, dated 21 November 2019 – marked ‘Comments from [the applicant’s] sister’.
·Document in Malay bearing the words ‘[derogatory expression]’ in English marked ‘Copy of poster circulated around [the applicant’s] parents’ house. Public Humiliation, poor likeness, unpleasant photo’.
·A document in Malay – marked ‘Evidence: Custody Agreement, Divorce did not proceed. Wife [named] left due to trouble with Ah Long, wife left because of trouble with loan sharks’.
·A letter from Applicant to Department of Immigration dated 7 August 2016 regarding permission for work rights – marked ‘Past letter with consistent facts’.
·Articles relating to loan shark incidents in Malaysia and India.[10]
[10] ‘Loan sharks splash with paint, burning gate after woman gives family’s address’ The Star, 13 January 2016; ‘strong political will needed to tackle loan shark menace’, The Star, 30 March 2016; ‘Woman claims Ah Long released king cobra into her home’, The Star, 3 January 2014; ‘Father set himself and family on fire over £1600 debt to loan sharks, Metro, 25 October 2017 – marked ‘example of tactics of loan sharks’ (India not Malaysia); ‘Loan sharks now continue to extort money even after debt is paid off: Michael Chong’, New Straits Times, 6 June 2017; ‘Loan sharks attempt to kill Kajang family by setting house on fire’, New Straits Times, 25 February 2018; ‘Business rivalry or Ah Long problem could be among motives for shooting of mobile phone seller’, New Straits Times, 28 May 2018; ‘Father, 3 daughters living in fear of loan sharks due to wife’s gambling habit’, New Straits Times, 18 October 2018; ‘Borrowing from Ah Long keeps people in debt’, The Star, 3 June 2008.
·A printout from the Department of home affairs website ‘refugee and humanitarian program’– marked ‘checklist’.
·A printout from refugee advising caseworker service ‘refugee law definitions’– marked ‘summary of rules’.
·Submissions dated 15 May 2020 regarding adverse information (provided in response to adverse information put to the applicant pursuant to s.424A).
·Submissions dated 18 May 2020 regarding adverse information (provided in response to adverse information put to the applicant pursuant to s.424A).
·A statement by the applicant to [Court 1] (provided in response to adverse information put to the applicant pursuant to s.424A) .
·A statement by [Mr A] to [Court 1] (provided in response to adverse information put to the applicant pursuant to s.424A).
·Submissions dated 20 May 2020 regarding the applicant’s wife.
·A handwritten statement from the applicant’s wife.
·Professional and academic documentation regarding the applicant’s wife, including employment records and university transcripts and degrees.
·Submissions dated 1 June 2020.
The Tribunal notes that the written submissions of 21 October 2019 indicated that the applicant intended to submit the following information:
·Written notes re threats, direct and indirect received in Malaysia.
·Police report(s).
·Company name change information.
·Father’s consultancy evidence.
·Guarantee of loan documents.
·Personal insolvency evidence.
The Tribunal discussed with the applicant at the third hearing that it did not appear that any information fitting the description of ‘police reports’, ‘guarantee of loan documents’ or ‘father’s consultancy evidence’ had been submitted. The applicant confirmed that this was the case.
At the second and third hearings, the Tribunal discussed with the applicant why the evidence in support of his claims had not been provided prior to the primary decision being made. The Tribunal noted that s.5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The Tribunal further noted that s.423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
The applicant stated that ‘last time’ he was not aware. He said he tried to get evidence from Malaysia but it takes time but what he was saying was true. He said it took time to send the material from Malaysia. The Tribunal queried why it would take 4 years to get information and the applicant said he had to call his sister and family to ask them to get the documents he needed. He said the main thing was that he worked out what he needed to do and he didn’t want to disturb his family.
The evidence submitted by the applicant and the inferences to be drawn with respect to that material is considered further below.
Certificates and adverse information
Mindful of its obligations under s.424AA and as noted above, the delegate’s decision refusing the application for protection dated 20 May 2016 was discussed in general terms with the applicant at the first hearing. The Tribunal provided the applicant with a copy of the delegate’s decision record, noting that the delegate had refused the application for the visa and the decision record detailed the delegate’s reasons. The Tribunal noted it was required in conducting the review, to invite the applicant to comment on or respond to certain information which would, if it is accepted, be the reason, or a part of the reason, for affirming the decision under review. It indicated with respect to the delegate’s decision the particulars of the information were:
·the information detailed in the decision,
·country information analysis, and
·findings of fact made by the delegate in refusing the visa.
The Tribunal explained that the information contained in the delegate’s decision was relevant to the review because it identified the reasons why the applicant was refused a protection visa at the first instance, after considering his application within the context of the same legal framework that is binding on the Tribunal. The Tribunal indicated that if it relied on any or all of this information in making its decision, it may affirm the decision of the delegate and find that the applicant should not be granted a protection visa in Australia. The Tribunal indicated that as the initial hearing was only relatively brief and as the applicant may need time to consider the information, the Tribunal was not asking him to comment on the information at that hearing. The Tribunal invited the applicant to give comments on or respond to the above information either in person at the next hearing, or in writing prior to the next hearing. The Tribunal indicated it would discuss the information in the decision which was relevant to the review in more detail with the applicant at the next hearing.
Prior to the second hearing the applicant made detailed written submissions through [Mr A] addressing the country information and findings detailed in the delegate’s decision. These submissions are considered further below.
At the second and third hearings, the findings of the delegate including in relation to the applicant’s migration history and the evidence and information which was before the delegate at the time of the hearing were discussed with the applicant.
The Department’s file in relation to the application contained two certificates, dated 21 December 2018 and 14 March 2019, issued under s.438 of the Migration Act. The certificates related to information contained on the file which had been provide by a third party source. Having reviewed the certificates, the Tribunal wrote to the Department asking them to reconsider one certificate (21 December 2018) which appeared to misidentify the information it sought to cover (using the wrong document reference). In response the Department revoked the certificate dated 21 December 2018 and issued a new certificate dated 13 February 2020. This certificate properly identified information on the Department’s file.
At the hearing on 6 May 2020, the Tribunal made the applicant aware of the two certificates dated 14 March 2019 and 13 February 2020. The Tribunal also informed the applicant of the revocation of the earlier certificate. The Tribunal indicated it had formed a preliminary view the certificates were valid and was proposing not to exercise its discretion to release the information covered by the certificates as the information included personal information of third parties and release of the information would disclose the identity of a confidential source and invited him to make submissions on the validity of the certificates and the exercise of the Tribunal’s discretion to release the information covered by the certificates in the event the Tribunal formed the view they were valid. As the hearing was being conducted by telephone the Tribunal indicated it would write to the applicant providing copies of the certificates and setting out the invitation to him to make submissions on the validity of the certificate and the exercise of the Tribunal’s discretion. The Tribunal indicated that in any event it would put any adverse information which would be the reason or part of the reason to affirm the decision on review to the applicant for his comment or response.
Following the hearing, on 12 May 2020, the Tribunal wrote to the applicant including a copy of the certificates and inviting the applicant to make submissions on their validity and on the exercise of the Tribunal’s discretion. The letter also invited the applicant to comment on or respond to adverse information under s.424A of the Act.
The particulars of the information were:
·The applicant owed $[amount] to a company he was involved with. He threatened to kill persons involved with that company and their family members if they sought repayment of the debt;
·He used another person’s personal details to engage in business activities without their knowledge causing them to incur debts.
The Tribunal indicated that the information was relevant to the review because the information, if accepted, would raise doubt regarding the credibility and the truthfulness of information the applicant had provided to the Tribunal. This may be taken into account in assessing the genuineness of his claims. The consequence of the Tribunal relying on the information is that it would be the reason or part of the reason for the Tribunal to affirm the decision under review.

The applicant responded to this information via [Mr A] on 15 May 2020 and 18 May 2020. The email of 18 May 2020 attached a number of documents relating to a matter in [Court 2] in relation to the applicant and [Mr B]. The applicant’s emails did not make any submissions with respect to the validity of the certificates. However, in the email dated 15 May 2020 [Mr A] noted that the applicant ‘required to have the full text of the Complaint such that all aspects pf (sic) the claim may be address’. The Tribunal took this to be a submission that the Tribunal should exercise its discretion to release the information. The submission on 18 May 2020 addressed the adverse information put to the applicant by the Tribunal. In summary, the material from the applicant indicated the applicant had been involved in a dispute with [Mr B] regarding joint business activities and monies [Mr B] claimed to have loaned to the applicant, which [Mr B] claimed remained owing and which the applicant maintained had been repaid or not owed. The information provided by the applicant is considered further below.
At the commencement of the third hearing the Tribunal indicated it considered that the certificate was valid. With respect to the confidential information the Tribunal notes that s.438(1)(b) contemplates that documents or information may also be subject to a non-disclosure notification if they were given to the Minister or an officer of the Department in circumstances imposing an obligation of confidence. Whether a document is impressed with the necessary quality of confidence required for s.438(1)(b) is a matter for the Tribunal to decide on its merits.[11]
[11] SZTYV v MIBP [2018] FCA 1076 at [42]. An application for special leave to the High Court was dismissed: SZTYV v MIBP [2018] HCASL 382.
For documents or information to have been given in confidence, the information must have the necessary quality of confidentiality. This means the material needs to have been given to the Minister or departmental officer by an external source or third party with the expectation that the material would be treated as confidential and wouldn’t be disclosed, and that the information not be public or common knowledge.[12] In exercising its discretion to release the material to the applicant or another person, the Tribunal may consider whether the consequences of its release may have a detrimental effect on an individual.[13]
[12] See SZTYV v MIBP [2018] FCA 1076 at [42].
[13] Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] 265 ALR 281 at [39]; and Coco v AN Clark (Engineers) Ltd [1969] RPC 41.
With regard to the other material notified in the certificate as having been provided confidence, the Tribunal considered that information possessed the necessary quality of confidentiality contemplated by the Act. Further, having regard to the important public interest in the maintenance of the confidentiality of information provided by the public in consideration of immigration matters, the Tribunal decided not to exercise its discretion to release the documents. Further, the Tribunal regards that the gist of the information contained in the documents, in so far as it might be relevant to the proceedings had been put to the applicant for comment or response without releasing the information or breaching the confidentiality of the informant. In light of the important public interest considerations and having regard to the applicant’s personal circumstances the Tribunal decided not to release the documents.
As noted above, the Tribunal put the relevant contents of the information contained in the confidential documents to the applicant for comment or response in writing and the applicant has responded in detail to that information. In the Tribunal’s view, this approach struck the appropriate balance between fairness to the applicant and the protection of information provided in the confidential information.
At the third hearing, following the evidence of the applicant’s wife, the Tribunal put additional adverse information to the applicant pursuant to s.424AA of the Act. The Tribunal explained the information to the applicant and why it was relevant to the review. The applicant did not seek an adjournment and elected to respond to the information at the hearing. This information and the applicant’s responses are detailed further below.
Evidence
At the second hearing the Tribunal discussed with the applicant the reasons he came to Australia and the experiences which he claimed made him fear returning to Malaysia. These issues were discussed again with the applicant at the third hearing and with his wife who also gave evidence in person.
At the second hearing the applicant explained that he travelled to Australia from [Country 2] where he had travelled around three months prior in search of work on a friend’s farm. He stayed around 3 months leaving about a month after the [Country 2] earthquake.
He told the Tribunal that when he left for [Country 2] he went on his own passport and had no problems obtaining his passport. He said he left from Johor Bahru where he was living for about 3 or 4 months. He said he did not return to Kuala Lumpur before he left for [Country 2]. After the earthquake a friend in Australia suggested he come here.
He said he left Malaysia because of debts. He said he borrowed money from two Ah Longs named [Lender A] and [Lender B]. He said he couldn’t remember how he found the moneylenders but thought it was from a friend. The Tribunal queried how he got the loans and he said he rang them and then went to ‘a small office or something like that’.
He said he took the loan of MYR[amount] from [Lender A] in 2012 but he could not remember the month he borrowed the money. He said he borrowed the money to cover costs in his father’s business when they needed cash. The Tribunal asked why his father didn’t go to a bank for the loan and he said that the banks will ask for lots of documents and how much debt you have in a company. He said a loan from the bank would take time and would be quite hard to get. The Tribal queried whether his father had taken bank loans in relation to the business and he said that he had but business had gone down and he couldn’t pay.
He said the second loan was two years after that. He said the loan was for [larger amount] but he had paid [amount] and the Ah Long kept pushing him.
The Tribunal asked whether he had made repayments on the loans. He said on the first loan he made payments for 2–3 years and then they took his car. He said he made monthly payments of MYR[amount] and repaid about [amount] in total. The Tribunal asked when the car had been taken and he said he thought 2014 but he could not really remember. He said [Lender A] took the car. He said the car they took was in his name but on a loan from a bank and the bank forced a bankruptcy on him because he couldn’t pay that loan.
The applicant submitted a summary of the loans prepared with the assistance of his brother-in-law following the visa refusal by the delegate. The Tribunal notes that the summary of the loans submitted by the applicant to the Tribunal indicated he borrowed MYR[amount] to support his business. The statement indicates the agreement was that the money be repaid on a monthly basis of [amount] without principle so the interest rate was 15%. He paid back approximately [amount]. The summary says they started harassing him for payments on a daily basis. After a couple of years they asked for full settlement of the amount borrowed and when he asked for time to pay they took his car, a [brand] which they said they would hold until he made full payment.
In relation to the second loan he said he had made monthly payments of [larger amount]. He said they would ring him and he would give them cash. He said he did not have any documents in relation to the loans. The summary said the loan was taken to support his business and he made repayments for 16 months. After that the business dropped and he asked for some of the payments to be put towards reducing the principle but the loan shark refused. He said they began chasing him and frightening him and his family. This is when he says the leaflet bearing his Malaysian identity card was distributed ‘within 5–10 km from home’. The summary states ‘[b]ecause of this I was frustrated and my finances back to zero. Overall, it’s made me mental suffering’.
At the second hearing the Tribunal asked whether his father’s business had any assets and he said that he had one big [vehicle] and 3 small [vehicles] plus a car and a forklift. The Tribunal queried whether his parents owned their home and he said that they did and when he was there it was under his father’s name.
The Tribunal asked whether anything else happened to the applicant that caused him to fear returning to Malaysia. He said the moneylenders abused him and were very rough and pushed him in front of his father. He said he was scared and they took him away from his house. This caused him ‘big mental torture’. He said once he was driving his father’s = so he couldn’t supply his customer. The Tribunal queried whether he or his father did anything about this incident and he said the money and everything was gone and they didn’t report it.
He said he didn’t go the police because he was worried about his son and his family. He said he thought they would hurt his family if he went to the police.
The Tribunal asked whether they had harmed anyone else in the family and he said that they went to his father-in-law’s house and he told them he had nothing to do with the applicant. He said this was when he was in Johor Bahru (2014). He said they would also go to his house and just wait there.
The applicant submitted a statutory declaration from his sister dated 21 November 2019 stating that she had been contacted on the house phone number on 23 February 2013 by an unknown person who made a death threat against her brother if he failed to make full settlement of the money he owed. The statutory declaration states that on the same day one of their close family members passed away in a car accident and the person claimed or suggested that the accident was caused because the family member was being chased. The person mentioned that if her brother did not return the money he might face the same fate. The statutory declaration says that they received between five and 10 phone calls to the house number with threats to the brother and the family daily. It states that her brother borrowed money to assist with financial problems in their father’s business and that her brother had been unable to make full payment of the sum borrowed but had paid some of the interest to the moneylenders. It also states that the moneylender had splashed red paint on the front door of the house and that a picture of the red paint was attached. No picture was attached to the document provided to the Tribunal. It states that the applicant feared for his life and attempted suicide in 2015 and that the family believed that for his safety and mental health it was best to send him to [Country 2] with his friend.
The Tribunal notes that the applicant did not mention in evidence before the Tribunal having attempted suicide or the car accident of a family member.
The Tribunal queried whether he had made any payment since 2014 and he said he couldn’t find them. He said [Lender B] called his father and sister in the office. He said this last happened around one month prior to the second hearing but sometimes they just call the office, ‘maybe once or moth or twice a month.’ The Tribunal asked whether they had done anything other than calling and the applicant said they threatened they would wait in the office. He said they threated his wife by coming to the [business] where she worked and waiting every day. He said this was before she stopped working in 2014.
The Tribunal queried what the applicant feared would happen to him if he went back to Malaysia and he said he thought they ‘might kill me’. He said they are everywhere and will come after him. The Tribunal asked why it would be in their interests to kill him as that way it seemed unlikely they would get their money. He said that in Malaysia a lot of things happen and people borrow money and are shot or killed. The Tribunal queried how the Ah Longs would know he had returned to Malaysia and he said they are a very big group and they would know.
The Tribunal asked if he could move elsewhere in Malaysia to avoid the harm and he said the loan shark people were everywhere. The Tribunal asked how he knew this and he said that when he was staying in Johor Bahru they knew where he was staying. The Tribunal asked if they approached him in Johor Bahru and he said no but they knew he was there because they rang him and were telling him the place where he was staying when they approached him in Johor Bahru. He said they attempted to go to his factory. He said he didn’t want to change his phone number.
The Tribunal queried why if they had only called him even though they knew where he was he wouldn’t be safe somewhere else in Malaysia on return and he said that they have a lot of people in Malaysia, how else would they know where he was staying in Johor Bahru?
The Tribunal discussed the credit report documents with the applicant. The Tribunal notes that the document records businesses registered in the applicant’s name. The first ‘[Business 2]’ was a [product] business partnership registered in 1992 and expiring in 2007. The second was a [different products] business, [Business 1], registered in July 2004 and expiring in July 2005. ‘The applicant confirmed the loans were not with respect to those businesses ([Business 1] and [Business 2]) but that he had been subject to bankruptcy proceedings because he didn’t have money to pay the bank.
The Tribunal asked when the order was made and he said it was made after he left Malaysia. He said he didn’t have any documentation in relation to the bankruptcy or a copy of the order. He did not know who the trustee in the bankruptcy was. The Tribunal pointed out that it would be reasonable to expect that a copy of the order would have been sent to his registered address where he said his parents continued to live but he said he didn’t know, he just sent his sister to check his name one to 2 months prior to the second hearing. He said he provided the evidence as the bankruptcy occurred because his car had been stolen by loan shark and he had a bank loan for the car which he could not pay. The Tribunal asked if any property was seized as a result of the bankruptcy and he said ‘no’.
At the second hearing he said he didn’t know if the bankruptcy was discharged. At the third hearing he told the Tribunal he never received the notification of the bankruptcy. The applicant told the Tribunal that the bankruptcy related to the car and loans for the businesses but that he had changed the name so it wouldn’t affect his father’s business. The Tribunal queried why the applicant wouldn’t have received notice of the bankruptcy notice which was issued on issued [in] November 2014 when the address recorded was the address of his family home. The applicant said he didn’t know about it and hadn’t received any notice there prior to going to Kuala Lumpur (and then leaving for [Country 2]). The Tribunal asked when he came to know of the bankruptcy and he said that his family didn’t tell him about it until after he came to Australia. He said the car had been taken by the loan shark so the bank couldn’t repossess it. The Tribunal queried whether the applicant had mentioned the theft of the car to the bank or police and he said ‘No’. He said that the car was still under loan and the bank sent a sent a letter to his sister in 2017 and after that he discovered he couldn’t travel. The Tribunal queried who owned the family home and the applicant said all 5 names were on the house but he didn’t know if his name or his sister’s husband was on it now after the events that occurred.
In relation to the custody document he said his wife applied for custody. She left in 2013 when the problems started and applied for custody of their son. He said they got back together in 2017–2018. The Tribunal asked how long he had been in Australia when they reconciled and he said about one year. As he arrived at the end of 2014 this would have put the reconciliation at around early 2016.
In relation to the document which appeared to be a marked copy of an identity card bearing the applicant’s image, he said copies of this document were distributed in 2013–2014 by the second Ah Long. The Tribunal asked what fears he had in relation to this document and he said that it had been distributed to his neighbours and he ‘had to see my neighbour’s face’. He said this made him feel ‘[f]eel low and small, ashamed’. He said he had not provided a copy of his Malaysian identity card to the Department or Tribunal.
The Tribunal queried why if the loan was taken out to assist his father’s company, the company hadn’t obtained a loan. He said that they would not have been able to pay back a loan because they needed get the product within a period of a couple of months. The Tribunal asked why the company hadn’t paid off the loan and he said that it put him in trouble.
The Tribunal queried why if he had already repaid an amount of money well in excess of the original loan the loan sharks would still be interested in pursuing him and he said that there was interest and principle and they just keep asking for more.
The Tribunal asked about whether he could get assistance from organisations like the MCA or the Public Services and Complaints Bureau and he indicated he could not. He said he was scared and worried and because he was a bankrupt he won’t be able to complain or to work. He said if you are a bankrupt, credit agencies can’t do anything. This was the ‘worst thing’ in Malaysia. The Tribunal queried whether his family had thought of selling any assets to pay debts and he said that the home was mortgaged and the mortgage was greater than the value of the home. He did not offer any evidence of this. He said his [brand car] had been worth about $300,000 ‘in Malaysian money’ but he didn’t sell the car to pay the loan because that would only have covered the value of the car loan and they took the car in 2013 in any case.
The Tribunal queried how the moneylenders would be aware the applicant had returned to Malaysia and he said they would know within 24 hours of his arriving. The Tribunal queried how his wife and son were able to remain living safely in Malaysia and he said that they don’t know his wife is still talking to him and his son is worried about going home. He said that friends in Australia know when his wife comes here. The Tribunal queried how it was relevant that friends in Australia knew that this wife and son travelled here and he said that it showed that people were aware of things in the Malaysian community. He did not suggest he was at risk from those persons in Australia or on return to Malaysia.
The Tribunal notes that other family members had remained living in Malaysia including his parents and [a sibling] who remained living in the same home. The Tribunal queried whether they were receiving threats since he left and he said that they were not receiving threats at home but someone mentioned the debts to his father at prayers but his father didn’t know the person’s name. He said later that they had also come to his father’s factory.
The Tribunal also questioned the applicant in relation to the material submitted in response to the adverse information put to him pursuant to s.424A. The documents submitted by the applicant in response to the information, indicated he had been involved in a financial dispute in Australia with a friend he made here, [Mr B]. The documents included a statement prepared for [Court 1]. The document indicated he was ‘in Australia on a protection visa after being threatened and persecuted in Malaysia by some bad people who had involved me in some businesses that went wrong’. He said [Mr B] helped him establish a [service] business in Australia in December 2016. Money from his work as [an occupation] went into the company. His statement said he ‘had some debts in Malaysia’ and his ‘wife was being hassled’ so he borrowed $A[amount] from [Mr B] and told him he could get some good interest on it from others. He said he paid him back in weekly amounts. He said the interest was 30%. His cousin in Malaysia put MYR[amount] in [Mr B’s] wife’s Malaysian account ‘to pay off the debts and other outstanding amounts’ and the leftover money was for him. He stated, ‘I did not ask for the money to be sent to me in Australia because I thought it would look bad from my immigration status and I trusted the [family of Mr B]. He said that money was meant for him to clear his debt to [Mr B] with left over money for other business costs and to ‘get rid of a few other debts here and there’ however [Mr B] said it was all used and that he still owed him money.

The applicant stated [Mr B] suggested they go into business with another friend importing [products] to Malaysia. The friend, [Mr C] was to put in half (A$[amount]) and he and [Mr B] would but in half each of the rest (A$[amount] each). He paid [Mr B] two payments of $A[amount] which he earned through working and ‘borrowing a little bit here and there’. However, nothing happened with the business and [his payments] was forgotten.
He then states that [Mr B] provided MYR [amount] to the applicant’s cousin in Malaysia who had told them he could give it to a loan shark in Malaysia and earn 30% on it. [Mr B] asked the applicant to pay him the $[amount] per week which was supposed to come from his cousin. The applicant didn’t get any share of the ‘profit’ and the loan shark hanged himself and the money was lost. However, [Mr B] continued to insist the applicant owed him money. When his wife was visiting in 2018 [Mr B] came to the where he was living and insisted they owed him money. He was already holding the applicant’s passports and tried to take his wife and son’s passports but they refused. He then made them sign a document saying they owed him $[amount]. He paid around [half] of this but couldn’t maintain the payments. He said he had agreed to sign to avoid further interest and because [Mr B] was calling his parents and sisters in Malaysia and caused him embarrassment ‘[h]owever, once that threat had been actioned there was not much more he could threaten’.
At the third hearing the Tribunal asked what happened to the $A[amount] mentioned in the statement. He said his friend had given him the money to open a [service] company. The Tribunal noted that his statement said there were no costs associated with the [service] company and that he had said he needed it because he had debts in Malaysia and his wife was being hassled and he could earn interest on it. The applicant responded that it was money for the loan shark scheme but he never received it.
The Tribunal also queried what had happened to the $A[amount] he had given to [Mr B] in his Malaysian account. He said he was planning to start another business. He said he gave $A[part] to [Mr B] for the investment. He said the Tribunal queried where the $A[amount] had come from and why if he and his family had access to that money (MYR[amount]) he had not used it to settle loans he said he was being pursued for. He said he thought if he could make some money he could do something with it. The Tribunal raised a concern with the applicant that the fact his family had paid MYR[amount] to [Mr B] in Malaysia and the fact he had paid [Mr B] $A[amount] in Australia suggested he and his family had financial means which may suggest a capacity to deal with any debts owed to loan sharks. The applicant denied this. Further, the Tribunal raised a concern that the applicant had stated that he thought the money would look bad for migration status if transferred to him here.
The Tribunal noted that the fact the applicant had not reported claimed attempts by [Mr B] to make him repay monies he did not owe until the theft of his passport by [Mr B] was reported to authorities was reported to police in February 2019 might suggest his issue was with involving the authorities generally rather than a fear of inaction or corruption by Malay authorities. He said that at the time he was close to [Mr B] and didn’t want to involve the authorities here. He said he didn’t start pushing him hard until 2018. He said he didn’t want to get a bad name here. He said he loved this country and his son wanted to come here. He said he had a new life here and he had learned a lot of things. He said continuing to pay [Mr B] was a bad decision on his part.

101. The Tribunal queried why other assets owned by the family could not be used to settle the loan. The applicant said the family home couldn’t be used to settle the debts because it was still under loan and the bank would not approve its sale or the sale of any other assets.
102. The Tribunal put to the applicant that the information provided by him might suggest he had financial trouble with respect to business and personal finances and was facing bankruptcy in Malaysia which might suggest that this was the reason for leaving Malaysia. He said that because of his problems he couldn’t service his customers.
103. The Tribunal queried when his wife had first visited and how often she had come to Australia since he arrived and he said she first came in 2017 and had visited 3 times. The Tribunal put to the applicant that the fact she was able to come and go from Malaysia may suggest she was not at risk there because of his loans.

The applicant’s wife who was in Australia with her son on a visitor visa, also gave evidence at the third hearing and submitted a handwritten statement to the Tribunal. She indicated she was living in Kuala Lumpur with her parents and son. She said she moved to her parents’ house in 2012 following problems with her husband but moved back to live with him at his parents’ home following the birth of their son. She said she moved back with her parents in 2013 due to her concerns about her son’s safety and they agreed to separate when he was around 6 months old.

105. She said they had an arranged marriage in 2010. In 2012 she got pregnant and in July of that year people came to the house looking for the applicant. She also noticed changes in his behaviour. She confronted him and he said it was work related but after people came to look for him and were asking for money she realised he owed money. She said there had been an incident with his car and someone had ‘thrown papers’ including a copy of his ID saying he was a liar and pasted it on the front porch. She said the neighbours got annoyed and were worried they would be in danger as well. She said she would receive calls when they couldn’t get hold of the applicant.
106. She said she was under pressure at the time and decided to get herself away from the applicant to be safe. She said she told him you work it out and settle it. She took their son and went to her parents’ place and made it clear she had nothing to do with him by filing for custody of their child and having no contact with him.

She previously worked [in a specified section] of a [business]. She said at one point after their son was born people her husband owed money to had visited [her] office and she had some career problems due to this and she later resigned. She then worked as [an occupation 1] but since coming to Australia to visit in 2017 it had been hard to maintain a proper job so she moved to casual [work].

108. She said eventually they (the loan sharks) stopped calling her. She later realised that she and the applicant had been happy when they were together and that the problems had arisen because he had been too trusting and naive. She said that at the time he was working for his father’s business, [with specified jobs]. The Tribunal asked if he had any other businesses and she said he had some small things but nothing she was aware of.
109. The Tribunal asked how she had been contacted and she said by mobile phone and people coming to the house. She said his parents were put in a situation where they had to disown him. He said at first his father had tried to help but it had been never ending. The Tribunal asked whether she had suggested contacting the authorities and she said she didn’t because she was afraid that the police couldn’t protect them. She said there was a risk if they went to the authorities that this would provoke them more.
110. The Tribunal noted she worked in [a specified financial area] and asked if she had explored options with work for resolving the issue and she said they dealt with [finances] from a legal source.
111. The Tribunal asked if she was aware of the claimed bankruptcy and she knew he couldn’t repay the car loan and eventually was made bankrupt. She said she was working on repaying the bank loans. She said she found out about the bankruptcy in 2013 as he was having difficulty making car payments. She said he had lost the car in 2013. The Tribunal asked what happened to the car and she said she wasn’t sure but that he initially loaned the car to a friend in Malaysia where he thought it would be safe from repossession as at the time he didn’t want to let the car go. She said they talked about it. She said she suggested it might be better to give the car back to the bank but there were issues with the friend who took the car.
112. She said the applicant left Malaysia and his plan was to get away from ‘mental tortures and emotional problems’. She said he wanted to wait to settle things. She he wanted a fresh start where he could focus and get back on track which was the main reason he left. She said there were also people looking for him who could harm them.
113. The Tribunal asked if she and her son were harmed in any way and she said ‘No’. The Tribunal asked if her husband was harmed and she said there were times once or twice when he didn’t come back home and she didn’t know his whereabouts. She said there were also times when they ‘forcefully asked’ him to follow them and tell them how much he could pay. She said this was during her pregnancy in 2012.
114. The Tribunal asked how much the loans were for and she said she wasn’t sure but ‘[amount] plus’. The Tribunal asked if he had worked out a plan for repaying the business loans and car loans and she said he made some arrangement with the bank.
115. She said the applicant had provided her with some financial support in Malaysia after she stopped working as [an occupation 1]. The Tribunal asked if he had sent any other money to Malaysia and she said he had a friend in Australia who invited him to be involved with a [service] job. She said that friend visited the applicant’s parents in Malaysia and told them good things. She said after that when she came in 2018 they had some problems with the friend who came to the house and confronted the applicant and said he owed money. She said she tried to talk things out with him but he got angry, demanded her passport and left. She said they then set up a meeting with him and agreed to pay him. She said they worked out a plan to pay about $A[amount] per month but problems started again and he (the friend) got angry and said he would make a police report. She said the friend was holding the applicant’s passport and they eventually reported this to police. The Tribunal asked why she agreed they would pay when the applicant claimed to have already repaid the money and she said he didn’t want to make things ugly.
116. She said she had travelled to Australia 3 or 4 times and had extended her recent visit due to COVID-19 for 6 months.
117.
The Tribunal asked whether she was in contact with the applicant’s family and she said once she started talking to him again in 2015 she started visiting the family in 2016.

She said she saw them about once a month. She said people had been asking about his whereabouts but not the people seeking the money, just people close to them trying to find out where he was.
118. The Tribunal put to the applicant pursuant to s.424AA that movement records suggested his wife had travelled to Australia 6 times since 2017 which was not consistent with their evidence and might also suggest the family had financial means to meet their debts and call into question his claim to fear harm on return to Malaysia on that basis. It might also cause the Tribunal to doubt the credibility of some of his evidence. The Tribunal also put to the applicant pursuant to s.424AA that his wife had said the car had been loaned to a friend but the applicant claimed it had been taken by loan sharks. The Tribunal indicated this could cause doubt regarding the credibility of his claims regarding the actions of the loan sharks and to find that he did not face a real chance of harm on that basis. Further, the Tribunal put to the applicant that his wife said he knew about the bankruptcy in 2013 and was making plans to repay the bank but he had said he didn’t know this until after he left Malaysia. This would also cast doubt on the credibility of his evidence and his claims to be at risk of harm on return to Malaysia. The applicant elected to respond to this information at the hearing.
119. The applicant said he never told his wife the car was taken by somebody or that he made repayments. He never told her that was what happened to the car.
120. In relation to the bankruptcy he said if he was bankrupt he wouldn’t have been able to leave Malaysia and he was thinking about getting a visa to go elsewhere to get away and work. He said he didn’t know about it but maybe he ‘forget or something’.
121. In relation to his wife’s travel he said he wasn’t sure but she had come every 3 months but couldn’t fly now because of COVID-19. He said he counted 3 or 4 times.
Delay
122. The delegate’s decision notes the applicant arrived on 3 August 2015 and requested to extend his stay in Australia with a visitor visa application lodged on 4 November 2015 noting that the applicant declared their reasons for staying as ‘[h]ave not finished visiting the whole part of Australia, have got friends in Melbourne and Sydney’. The application for the protection visa was lodged on 27 January 2016.
123. In submissions to the Tribunal the applicant stated that he ‘talked to friends and others and Immigration. I decided the best thing was to apply for a protection visa’. He further stated in submissions from [Mr A] that he had been unable to decide how to proceed once he arrived in Australia but his friend had told him there was no rush and he could get a visitor visa for a further three months. His general intent was to remain in Australia for a little longer to explore ‘legal channels for remaining away from his troubles in Malaysia’.
Submissions
124. [Mr A] made written submissions on behalf of the applicant and oral submissions at the third hearing. Written submissions addressed issues and findings in the delegate’s decision, country information and the application of the law with respect to protection visa applications.
125. At the hearing, [Mr A] submitted that the applicant’s delay in some of the documentary information on which he sought to rely in support of his claims sought to address deficiencies in prior information. He noted that it had taken some time and effort to obtain information and noted the lengthy nature of the proceedings as a reason for the delay. In response the Tribunal noted that while the matter had taken some time to resolve due to a number of factors including reinstatement of the application, reconstitution of the application and rescheduling of hearings it was not clear why those matters would have prevented the applicant providing information earlier, and in particular prior to the primary decision being made. In response [Mr A] noted the applicant had a trusting nature and had no assistance until quite late in the process.
126. [Mr A] submitted that it was clear the applicant could not live a normal life Malaysia and was entitled to protection. He noted that what was important was the veracity of the applicant’s claims to fear harm, if not physical harm then serious psychological harm. [Mr A] submitted that the evidence of the applicant’s wife established that if they returned to Malaysia they could not live together as this would place the wife and son at risk of harm and as a result, the applicant’s son would not have proper access to his father. He submitted that the risk of harm to the applicant had not gone away.
127. [Mr A] submitted that any inconsistencies in the evidence were small and in the overall picture of the applicant’s circumstances should not undermine the credibility of his claims for protection.
Country information
128. The Tribunal has had regard to the 2019 DFAT Report, the latest country information report on Malaysia.[14] A summary of country information was also contained in the delegate’s decision. The Tribunal also considered the country information provided by the applicant and discussed the importance of the relevant country information with the applicant at the hearing.
[14] DFAT Country Information Report: Malaysia, Department of Foreign Affairs and Trade, 13 December 2019.
Loan sharks
129. Information regarding loan sharks outlined in the 2019 Report was discussed with the applicant at the hearings.
130. Country information indicates that loan sharks, or ‘Ah Longs’, operate very publicly in Malaysia carrying on moneylending activities without a licence, charging high interest rates to do so. While such practices are illegal, moneylenders advertise their services publicly.[15] According to DFAT, in-country sources advised that loan sharks in Malaysia did not seek protection money.[16] The enforcement activities of Ah Longs in Malaysia is also highlighted in some of the articles provided by the applicant which related to Malaysia. The Tribunal notes loan shark activities may exist in countries including India, however the Tribunal did not place significant weight on that material as relevant to the claimed harm the applicant faces on return to Malaysia.
[15] DFAT Country Information Report: Malaysia, Department of Foreign Affairs and Trade, 13 December 2019 par 3.108, page 39–40.
[16] Ibid.
131. DFAT reports that:
Sources report that an individual who is unable to service a debt from a loan shark risks threats or actual physical violence, having their home splashed with red paint (culturally understood as a symbol that an individual has defaulted on a loan shark and brought shame to their family), and/or having their families’ physical safety threatened. Sources claim that loan sharks engage gangsters to collect debts and harass and threaten borrowers and their family members, and those borrowers and their family members have been shot at gunpoint and had fingers cut off. Due to the illegal/underground nature of loan shark activity, DFAT is not able to verify these claims. There is significant societal shame associated with not being able to repay a loan shark. Sources report many people see suicide as the only honourable way out of being unable to repay a loan shark debt. DFAT is aware that those in debt to loan sharks have been counselled by intermediaries to place their family in a safe location and travel overseas to earn a foreign income to repay their debt faster, and to reduce risks and shame to their family.[17]
[17] Ibid at [3.111]

132. In relation to Malaysian gangs, the 2019 DFAT Report also notes, as cited by the applicant in submissions, that:
Malaysian media citing official police statistics in early 2018 reported that over 100 illegal gangs, with an estimated 9,000 members, operated in Malaysia. Of these gangs, 65 were reported to be Chinese Malaysian, 20 were Malay and 18 were Indian Malaysian-run gangs. DFAT is not able to verify these statistics. Sources report many street-level gang members are Indian Malaysians, reflecting their relative economic vulnerability. High-level crime, including drug trafficking, is more typically associated with Chinese Malaysian gangs. Gangs engage in extortion and loan shark practices. Details of gang activities are difficult to obtain, as victims of gang-related crimes do not generally report them.[18]
[18] DFAT Country Information Report: Malaysia, Department of Foreign Affairs and Trade, 13 December 2019 par 2.44, page 17.

133. DFAT reports that it understands that ‘authorities tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice’.[19] However, country information indicates it is an offence to illegally lend money in Malaysia and police have broad powers to investigate alleged loan sharks. In this regard police can visit, enter, inspect or search premises without a warrant and seize movable properties and business documents to assist with the investigations against alleged loan sharks. Penalties for illegal moneylending include a jail term of up to five years.

155. In this regard the Tribunal finds the applicant’s claims not to have known about the bankruptcy proceedings until recently was implausible and lacked credibility. The applicant’s passport was dated [in] 2015 and was issued in Kuala Lumpur. The applicant told the Tribunal he moved to Johor Bahru some time after he was issued with a passport. The only place the applicant or his wife indicated he lived other than in Johor Bahru was his parent’s home. It follows that he was living at his address in Kuala Lumpur up to April 2015. The proceedings are registered with respect to the applicant’s address in Malaysia where his family have continually resided during this period. Notice of the proceedings was listed as being in November 2014 which, according to the applicant’s evidence was prior to him going to Jahor Bahru. The hearing was on 11 February 2015, which would have been prior to the applicant leaving Malaysia. However, it appears on the (untranslated) document provided by the applicant that the order took effect or was notified on [a day in] October 2015. This is consistent with the evidence the applicant left the country for [Country 2] sometime after April 2015 but before arriving in Australia in August 2015. It is also consistent with any travel restrictions associated with bankruptcy not having effect until after he left the country.
156. The Tribunal regards it as implausible that the applicant would not have been made aware of the bank’s attempts to secure payment of the loan or commence proceedings for bankruptcy and finds the suggestion that he was not aware of these claims until recently lack credibility.   The Tribunal also considers that his evidence on this issue casts serious doubt on other aspects of his claim including his claimed reasons for leaving Malaysia to avoid loan sharks.
157. The Tribunal also does not accept that the applicant attempted suicide as a result of threats from loan sharks. Not only was this claim raised late in the applicant’s sister’s statement with no explanation other than it was difficult to obtain evidence but it was not raised by the applicant in his evidence before the Tribunal. The Tribunal does not accept that it would have been difficult to obtain a statement from the applicant’s sister prior to the primary decision being made. Accordingly, the Tribunal draws a negative inference regarding the credibility of that claim and does not accept it.
158. The Tribunal notes that the applicant’s sister also claimed in late evidence that she had been threatened by reference to a car accident of a family member. The applicant did not mention this in evidence before the Tribunal. Further, the evidence and claim were not raised until following the first hearing and, as noted above, there was no satisfactory reason given for the extensive delay in providing this material. Accordingly, the Tribunal draws an adverse inference with respect to this evidence and claim and does not accept them.
159. Further, due to the late provision of the loan shark flier, the applicant was unable to offer a satisfactory explanation as to why this and other late evidence was not provided earlier. The applicant claims the fliers were circulated while he was still in Malaysia yet they were not provided to the delegate prior to the primary decision being made and were only provided to the Tribunal in advance of the second hearing in early 2020. The only reason given was that it had taken time for the applicant’s sister to collect the evidence and there had been delays in the hearings. As noted at the hearing the Tribunal does not accept that the delay in providing this document could be regarded as reasonable in circumstances where the applicant claims the document was distributed more than six years ago. Accordingly the Tribunal places little weight on the document as corroborative evidence of his claims or as evidence that he faces a real chance of serious harm from loan sharks on return to Malaysia.
160. Given credibility concerns with the applicant’s evidence the Tribunal also does not accept the applicant was beaten or had a [vehicle] of [products] stolen from him. There was no other evidence provided to support the applicant’s claim to have been beaten by the loan sharks. The Tribunal considers it to be implausible that the loan sharks would have access to a [specialised vehicle] in which to transfer and transport the [products]. Further, the Tribunal finds it implausible that if the incident had occurred, the theft of [products] from the company would not have been reported to police by the applicant’s father given the claimed financial impact of the incident on his interests. The applicant stated that he didn’t report it because he was worried about his son and family. However, he also confirmed that at no point was anyone else in the family physically harmed, at the time of this incident or since he left Malaysia. Further, the theft was from the applicant’s father’s vehicle while the applicant was working for him. As the applicant claims to have borrowed from the loan sharks personally (albeit it to assist with the business needs) it is implausible the applicant’s father would not have sought to protect those interests by reporting the incident to the police. There is country information to the effect that police are generally unsympathetic to those who borrow money from loan sharks but there is no evidence, other than the applicant’s assertion, that police would fail or refuse to investigate reports of theft from Malay businesses. This casts doubt on his claims.
161. The applicant’s evidence was that the loan sharks have not sought to enforce the debt against the applicant’s father, his company or the family home. As noted above, he also confirmed that at no point was anyone else in the family physically harmed, while he was in Malaysia or since he left. The applicant testified that since he left Malaysia, members of his family have been approached with questions about his whereabouts and his father was embarrassed publicly by an unidentified person at his Mosque. He said they were not receiving any threats at home. While the Tribunal accepts, on the basis it is plausible, that inquiries may have been made of the applicant’s family regarding the applicant’s whereabouts by persons to whom he owes money, the Tribunal does not regard the evidence of these threats or approaches to constitute serious harm to the applicant’s family members.
162. In the Tribunal’s concerns regarding the credibility of the applicant’s claims are further strengthened by the applicant’s evidence that he has sought to invest money with loan sharks to earn interest while in Australia and has access to significant sources of finance to assist him, including a payment of MYR[amount] from a cousin in Malaysia with respect to his activities with [Mr B]. The Tribunal does not accept that the applicant would reengage with loan sharks even for the purposes of investing money if he had experienced serious harm from such persons in the past or was genuinely fearful of such harm in the future.
163. The Tribunal accepts that if the applicant returns to Malaysia, it is plausible that any remaining creditors may renew their claims for payment, though for the reasons outlined further below the Tribunal regards that it is unlikely they would do so given they have not sought to enforce the debt against the applicant’s family’s business or assets since he left Malaysia. Further, based on his experience in Malaysia, the lack of any demonstrated serious harm to his family in the five years since he left Malaysia, the fact that his wife has been able to come and go regularly from Malaysia and has been in contact with and visiting his family at his registered address and the country information generally, the Tribunal does not accept the applicant’s claim that there is a real chance that he will face harm from his loan sharks which would amount to causing him serious harm on his return to Malaysia. The Tribunal considers, based on the applicant’s evidence overall, that he came to Australia because he wished to escape his financial problems, and in particular the restrictions imposed by bankruptcy, and seek employment in Australia and not because he feared serious harm from loan sharks there.
164. As noted earlier, the applicant’s evidence about threats to his family since he left Malaysia were vague and the Tribunal does not accept there have been any instances of physical harm to any members of his family who have remained in Malaysia since his departure. This includes to his wife and son who have been in contact with the applicant. In his application he said that his father had been approached by unidentified persons asking about his whereabouts and seeking to pressure or embarrass his father. He also mentioned that his family members had been embarrassed by people asking when the loans would be repaid. However, notwithstanding the loans were taken out with respect to the father’s ongoing [product] business, on the applicant’s evidence no attempt has been made by the moneylenders to secure repayment from the business or family members.
165. Even accepting the applicant’s evidence at its highest, the applicant’s family has not been subjected to any physical attacks or threats of violence against them since he left in 2015. The applicant claimed that members of the family have been publicly embarrassed by persons claiming he owes them money and have been questioned about his whereabouts. The fact that the loan sharks have not sought repayment from the family despite the ongoing operation of the [product] business and their ownership of a home in Kuala Lumpur suggests that they are not interested in continuing pursuing the debts, to the extent they consider any monies to be outstanding. In any event, even if they were to do so, the Tribunal finds on the basis of the financial evidence including with respect to significant amounts of money invested in Malaysia or Australia by the applicant or his family since coming here suggests that the applicant and his family would be able to meet any loans due.
166. Further, none of the claimed harassment was reported to the police. The applicant and his sister did not report any of these matters to the police. When questioned about this, the applicant said that he did not believe the police would do anything and it there were threats against his family. This is an easy assertion to make, particularly when the issue was not tested. The evidence is that neither the applicant nor his family members ever attempted to make a report to the police. In any event, as put to the applicant at the hearing the Tribunal regards it as implausible that the applicant or his family would not seek assistance from the police in circumstances where they claimed to fear for their lives, including for the safety of the applicant’s wife and son, due to threats over money they believe had been repaid. As noted above, there is country information to the effect that police are generally unsympathetic to those who borrow money from loan sharks but there is no evidence, other than the applicant’s assertion, that police would fail or refuse to investigate reports of actual physical harm or threats of physical harm to his family members.
167. The Tribunal has considered relevant country information outlined above, including that provided by the applicant, and accepts that it reflects that predatory lending practices in Malaysia can be associated with violence and crime, but also that the Malaysian police and government authorities have taken and continue to take prosecutorial action against such practices and violence, arresting large numbers of illegal and or violent moneylenders in actions across the country. Further, the Tribunal finds there are organisations who offer assistance to individuals and businesspeople in circumstances such as the applicant has described and that such services may be available to assist the applicant on return to Malaysia.
168. The fact the applicant has not attempted to avail himself of any support from non-government agencies operating in this space to assist creditors in a meaningful way or to complain to police tends to undermine his claim that he will face significant harm on his return to Malaysia. It can be inferred that the applicant and his family did not consider these threats to be sufficiently serious to warrant taking any of this further action.
169. Having regard to the applicant’s claim that the loan sharks will not stop regardless of the amounts paid, the Tribunal does not accept that this is the case. While the applicant’s evidence was that he could not approach the police due to a risk to his family the Tribunal does not accept that this claim is credible when considered in the context of the applicant’s circumstances and the available country information. In particular, the Tribunal notes that in the absence of repayments by the applicant since leaving Malaysia five years ago the loan sharks have not sought to harm his family or to enforce the debt against them, notwithstanding his claims that threats had been made to harm his family if the loans were not repaid. This includes with respect to the applicant’s wife and son who have been reunited with and visiting the applicant since 2016, including spending time with his family in Malaysia.
170. The applicant indicated his family had debts and could not assist in settling his debts due to the fact the family home was worth less than the mortgage and the bank would not approve its sale. No evidence was offered to support the claim the applicant’s parents’ house was mortgaged above its value. Further, the applicant’s father has operated a business employing several family members for several decades with assets including [specialised vehicles], cars and a crane. In addition, the applicant’s evidence was that a family member provided [amount] MYR in payment to [Mr B] on his behalf. This suggested the family has access to financial means which they are willing to make available to the applicant. If any debts are outstanding, evidence that no effort has been made to settle or resolve any outstanding debts since the applicant left Malaysia reflects negatively on the applicant’s claim to fear serious harm due to the debts. The Tribunal takes this into account when weighing the seriousness of the actual threat. Similarly, the lack of evidence of any attempt made by the loan sharks to enforce debt against the applicant’s family and family business, also reflects negatively on the seriousness of the threat. Furthermore, the applicant’s lack of effort to find alternative means of settling the debt as identified in country information, including through debt relief agencies, similarly suggest that the applicant is not necessarily fearful for his life. The Tribunal places moderate weight on these factors as evidence in assessing the seriousness of the threat from the loan sharks.
171. In the applicant’s case the Tribunal finds that the harm that has been perpetrated to date does not lead it to conclude that were he to return to Malaysia the applicant would face serious harm. The Tribunal finds that the harm has been low level harassment where he has received threats for a period of several months while still in Malaysia and upon his departure his family has similarly received visits and threats but they have not escalated to a point that would suggest that upon his return he would face significant harm. This leaves an option for him to open a case with the police, allow the police to act and if necessary seek police protection in the event he were subject to threats of harm. It also allows him time to seek assistance with respect to settling any outstanding debts in Malaysia.
172. The Tribunal accepts that if the applicant returns to Malaysia, it is plausible that his creditors will renew their claims for payment.   However, based on his experience in Malaysia, the lack of any serious harm to his family since he left Malaysia, and the country information generally, the Tribunal does not accept the applicant’s claim that there is a real chance that he will face harm from loan sharks which would amount to causing him serious harm on his return to Malaysia.
173. As noted above, having considered the evidence and relevant country information, the Tribunal does not accept that the applicant has established that there is any basis on which it could be satisfied that he faces a real chance of suffering serious harm in Malaysia from a loan sharks or their associates, or for any other convention related reason, now or in the reasonably foreseeable future.
174. For these reasons, the Tribunal does not accept that the applicant has a well-founded fear of persecution. Accordingly, the Tribunal finds the applicant is not owed protection under s.36(2)(a).
175. The Tribunal has also considered the applicant’s claims under s.36(2)(aa), the complementary protection ground. The types of harm that fall under complementary protection are exhaustively defined by s.36(2A), specifically that the person will be either arbitrarily deprived of life, the death penalty will be carried out, the person will be subjected to torture, the person will suffer cruel or inhuman treatment or punishment and that the person may suffer degrading treatment or punishment.
176. The test which the Tribunal must apply is a forward-looking test, namely, whether the applicant faces a real risk of significant harm in the reasonably foreseeable future on return to Malaysia.
177. The Tribunal finds that the applicant has made repayments on his loans in excess of the principle loaned. He has family in Malaysia with whom he maintains contact who have previously provided financial support for him , including with respect to providing substantial sums of money. His family owns and runs a business for which he has previously worked. The Tribunal finds based on the applicant’s evidence and circumstances he would have family support and prospects for employment in Malaysia.
178. Further, the Tribunal has found there is no real chance the applicant would be subjected to serious harm from loan sharks on account of loans owed in Malaysia.
179. The real risk test imposes the same standard as the real chance test. Noting the findings the Tribunal has already detailed, relating to the applicant’s claims, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he would suffer significant harm, now or in the reasonably foreseeable future, from loan sharks or their associates or from any other person or for any other reason.
180. The applicant did not make any specific claim to fear harm on return to Malaysia with respect to the bankruptcy order against him. He was not sure if the order had been discharged. In any event, the Tribunal notes that there is no evidence before it to suggest that the bankruptcy laws of Malaysia have been, or will be, applied to the applicant in a discriminatory manner. Accordingly, the Tribunal finds that this claim relates to a law of general application in Malaysia and has not and will not be enforced against the applicant in a way that would engage Australia’s protection obligations under the refugee or complementary protection criteria.[36]
[36] E.g.: Zheng Jia Cai v MIMA (Federal Court of Australia, French J, 13 June 1997) at [16]; Lama v MIMA [1999] FCA 918 at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620; Alamdar v MIMA [2001] FCA 1244; and SZVYD v MIBP [2019] FCA 648 at [14].
181. Further, notwithstanding the applicant may be subject to travel and work limitations due to being an undischarged bankrupt, the Tribunal finds that the applicant has family support in Malaysia. There is no evidence that the effects of any bankruptcy order would constitute a real risk of serious or significant harm to the applicant.

182. There are no other claims that arise from the evidence and the applicant has not raised any further fears of returning to Malaysia.
Conclusion
183. Taking the applicant’s claims individually and then cumulatively, at their highest, they do not meet the required thresholds under either the refugee assessment criteria or the alternative complementary protection assessment criteria.
184. 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).
185. 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).
Member of the same family unit
186. There is nothing before the Tribunal to suggest 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
187. The Tribunal affirms the decision not to grant the applicant a protection visa.
Simone Burford
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:
)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.
…

[2020] AATA 6193

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

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