1704840 (Refugee)

1704840 (Refugee) [2021] AATA 679 (9 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704840
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Sheridan Lee
DATE:9 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 9 February 2021 at 12:34 pm
CATCHWORDS
REFUGEE – Protection visa – Malaysia – political opinion – involvement in the Bersih political movement – evidence at hearing was entirely different to the claims made on the application form – significant debt – loan sharks – particular social group – people with large debts – hardship will not threaten his capacity to subsist or constitute significant harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a [age]-year-old male from Malaysia. He applied for the protection visa on 30 November 2016 on the basis that he would be persecuted by the Malaysian Government for his involvement in the Bersih political movement. The delegate refused to grant the visa on the basis that there was no real risk or chance that the applicant would suffer persecution or significant harm.
The Tribunal viewed a copy of the applicant’s Malaysian passport. I accept that the applicant is a citizen of Malaysia and will assess the applicant’s claims against Malaysia as his country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
The applicant appeared before the Tribunal to give evidence and present arguments on 30 January 2020. On 16 November 2020, the Tribunal wrote to advise the applicant that it wished to discuss further issues that had arisen and a second hearing would be required. The Tribunal sought [Mr A]’s consent to hold a combined hearing with each member of his family - who lodged independent claims for protection - in order to discuss common issues. On 1 December 2020, the applicant’s wife, [Ms B], responded on behalf of the family to advise that they would be in attendance.
A second hearing was conducted on 9 December 2020 in conjunction with [Mr A]’s wife, and their two young children. At the hearing, the Tribunal provided an opportunity for [Mr A] and [Ms B] to provide evidence together and separately. Both hearings were conducted with the assistance of an interpreter in the Malay and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Application for protection
The applicant first arrived in Australia [in] March 2016 on a Subclass 601 Electronic Travel Authority visa. He applied for protection on 30 November 2016. The application for protection form claimed that:
·the applicant joined a group called Bersih because he was dissatisfied with the Malaysian Government.
·he participated in a rally, after which the Minister of Home Affairs, Ahmad Zahid Hamidi said action must be taken against all Bersih members. The Minister cited the Peaceful Assembly Act, the Sedition Act, the Penal Code and Police Act.
·many Bersih members were imprisoned during the rally and people have searched “every single member of Bersih”.
·if he returns to Malaysia the applicant will be jailed or will face legal action.
·Bersih members are located across Malaysia and the applicant would face trouble in any Malaysian state. The applicant noted that Malaysia is a small country.
·Malaysian authorities would not provide protection because Bersih is an illegal party opposed to the Government.
Application for merits review
The application for protection was refused by a delegate of the Minister for Immigration on 10 March 2017. [Mr A] applied to the Tribunal for merits review of that decision. No further evidence was submitted at the time of application.
[Mr A] appeared before the Tribunal to give evidence and present arguments on 30 January 2020. The applicant gave evidence that he was born in [Sabah], and is one of [number] children. He identifies as a Muslim and a member of the Murut ethnic group from Sabah. The applicant continued to live in Sabah, where he held a [job] until he departed Malaysia to travel to Australia.
The applicant has a wife and two children. His family are Malaysian citizens, but his second child was born in Australia. The applicant confirmed hat his family were not included on his application for protection and have not lodged a separate application. The applicant’s wife was employed as a [Occupation 1] in Malaysia.
The applicant claimed he was afraid to return to Malaysia because he would be hunted by loan sharks to repay very serious debts. He started working on 15 November 1999 and borrowed money to build a house for his family three years later in 2002. The applicant borrowed money on several occasions from licensed money lenders. The final loan was from [Bank 1] for 180,000 MYR (approximately $61,221 AUD). He has made small repayments on the loan, but still owes 120,000 MYR (approximately $40,414 AUD).
The money was used to build a house in the applicant’s [village]. The applicant claimed that houses in the village have no street address and there is no registered title because it was built on village land. The applicant’s brother and his family currently live in the house. The applicant explained that if the house were in his name it would be repossessed, however he then gave evidence that the house was purchased in both he and his wife’s name. Before the applicant departed Malaysia, people from the bank went to the house and took all the property.
The applicant gave evidence that the house repayments were made via a deduction of 900 ringgit from his salary and 600 from his wife’s salary. He then went on to say that the deductions related to a government loan that was taken out to purchase a property in the city. He wasn’t sure how much he borrowed, but thought it was around 200,000 MYR for a unit. The applicant could not remember the address of the property but committed to provide the details post hearing. The applicant estimated that he owes around 180,000 MYR on the government loan but explained that repayments are only required on a government loan when you have money available.
The applicant committed to provide the Tribunal with documents from the bank in respect of the home loan and in relation to the government loan for the unit after the hearing. He requested additional time as the documents were located in Malaysia, and I agreed to this request and asked that the evidence be submitted to the Tribunal by 14 February 2020.
In addition to the loans taken for property, the applicant claimed to have taken a loan from [the] Bank for the purchase of a car. The car was purchased in the applicant’s name and when he could no longer afford the repayments the car was repossessed. The applicant could not recall how much he borrowed, but thought the repayments were around 600 ringgit a month. He did not retain any records relating to the car because after it was repossessed he ‘didn’t care’. The applicant believed he no longer owed any money to [the] Bank, but thought his name had been blacklisted.
At the time of the hearing, the applicant was working [in] Australia and gave evidence he had been repaying the loan bit by bit. Everything is handled by his wife, who transfers money to her sister, and she pays [Bank 1]. The applicant could not remember the name of his sister-in-law but committed to provide records post hearing.
The applicant explained that he is afraid he will be unable to repay the debt if he returns to Malaysia and his family would be threatened or harmed. He won’t have any work because he resigned from his [position]. The applicant explained that he never reported his concerns to police, because he owed them money. Presumably because they form part of the Government.
The applicant was also concerned that when he does earn a salary, deductions would be made. He noted that in the past, when he stopped working and there wasn’t any money, they got very angry. I asked the applicant to be specific about who got angry and he said whenever he didn’t have sufficient money, he borrowed money from them for his living expenses. The applicant provided no further details.
I asked the applicant if he completed his protection application himself, to which he explained that he completed it together with his wife. However, he then gave evidence that when his electronic travel authority visa expired, he paid an agent to get him a new visa – he believed it was his first bridging visa C. The applicant claimed that he paid the agent, named [Mr C], and he handled everything. The applicant did not read the application forms or the decision of the delegate.
I highlighted to the applicant that his evidence at the hearing was entirely different to the claims made on the application form. In response, the applicant explained that he went through the process over the telephone, he never met [Mr C] and didn’t know what he included in the application. I asked how the applicant was able to sign the forms, and he explained that another [person] acted as a middleman.
The applicant confirmed that he was not involved in the Bersih movement. In fact, he worked [in government] as a [position] at one of the rallies in Penang. The applicant noted that if you work in government, you can’t be politically active.
Despite earlier giving evidence that his wife had not claimed protection, the applicant then gave evidence that she is also claiming protection for the same reasons, because they both owe money. Post-hearing, the Tribunal confirmed that separate applications for protection were lodged by [Mr A]’s wife, [Ms B], with their son as a dependant, and an independent application was lodged in respect of their daughter.
Post-hearing submissions
On 14 February 2020, [Mr A] emailed the Tribunal to provide eight images in support of his application. None of the documents displayed in the images were translated and no further explanation was provided by the applicant. The email requested an additional one to two weeks to provide further documentation that would be sent from Malaysia. However no further submissions were received.
Although the text was not translated, it is possible to ascertain that the images contain evidence of accounts held by the applicant with the [Financial Institution 1], [Credit Corporation 1] and an emergency loan application:
·The first two images appear to be screen shots of an account held in the name of [Mr A] with the [Financial Institution 1], a public sector [financing] agency. The outstanding balance of the account is [amount] RM and the login date was 13 February 2020.
·The third image appears to be a photograph of an emergency loan application submitted by [Mr A] on 2 March 2015. The image does not contain information about the amount borrowed, the terms of the loan or whether the money lender is licensed.
·The fourth and fifth images are photographs of handwritten slips relating to monthly deductions from [Mr A], an employee of [a workplace]. It is unclear who wrote the slip, where the money was going and what the amounts were deducted from.
·The final three images appear to be screenshots of a statement of an account held with the [Credit Corporation 1] by [Mr A] showing various transactions made in 2016 and 2019. The most recent transaction listed was on 2 December 2019 and looks to show an outstanding balance of [amount] RM.
I accept that the images demonstrate that in late 2019/early 2020, the applicant had outstanding debts to both the [Financial Institution 1] and the [Credit Corporation 1] totalling [amount] RM (approximately $88,861.45 AUD).
Second hearing
At the hearing conducted on 9 December 2020, I advised the applicant that I accept he has accumulated significant debt. In particular, I explained that [Ms B] was able to provide more detail in respect of the debt held by her, some of which was shared with the applicant. I asked [Mr A] to confirm if he held separate debts to those held by his wife. In response, he explained that the figure provided for the house in Kota Kinabalu was the total combined debt for that property, however he also held personal debt of nearly 300,000 MYR.
In a separate hearing relating to her claims, [Ms B] gave evidence that her mother lived in the house purchased in Kota Kinabalu. At his first hearing, [Mr A] gave evidence that his brother lived in the property. However, a credit report provided by [Ms B] stated that the house was repossessed and sold at auction [in] August 2019. I asked [Mr A] and [Ms B] to clarify where [Ms B]’s mother and [Mr A]’s brother live and what property they owned at the time of the hearing.
[Ms B] gave evidence that the house had been auctioned, but her mother was still living there. A lawyer had been arranged by the government to manage the couple’s debts when they were ‘black-listed’. I confirmed that this referred to the time they were declared bankrupt. [Ms B] explained that the house had been placed on the market for auction but there had been no buyer. [Mr A] gave evidence that his brother had returned to the village to live in his own property. The applicants confirmed that they still owned one property in the [village].
Although a lawyer had been appointed to manage the couple’s debt, they continued to express concern about unlicensed lenders. In particular, they were concerned that if they ran away or didn’t pay, the lenders would go looking for their family.
When provided with an opportunity to provide evidence in private, the applicant advised that he had nothing further to add.
At the conclusion of the hearing, I advised both [Mr A] and [Ms B] that in addition to considering their claims separately, I would consider if they are the member of the family unit of a person who is owed protection. If I made a positive finding for any member of the family it would have implications for each of them as a member of the family unit. On the other hand, if I made an adverse finding on one it would also have consequences.
Findings and reasons
I accept that the applicant is a Muslim man and a member of the Murut ethnic group from Sabah. I accept that he is married with two children, however his family have not been included in his application for protection. I accept that the applicant has accumulated significant debt and has been declared bankrupt. I accept that he has borrowed money from at least the [Credit Corporation 1] and the [Credit Corporation 1] and that he has borrowed from unlicensed money lenders. I do not accept any of the claims articulated in the application for protection form.
As noted above, the applicant supplied a number of images to the Tribunal to evidence the loan agreements he entered into in Malaysia. Although the images do not depict official statements, and were not translated or certified, I have provided the applicant with the benefit of the doubt and accept that while the applicant was an employee of [a government agency], he borrowed money through the [Credit Corporation 1] and still owed [amount] RM in respect of that loan in February 2020. I further accept that the applicant owed approximately [amount] RM to the [Credit Corporation 1]. Finally, I accept that on at least one occasion the applicant took a smaller loan from a money lender to cover his living expenses and I can accept the possibility that the applicant took small ‘emergency loans’ on other occasions to cover his day to day expenses. It is not clear of the amount borrowed on the basis of the documentation provided.
I accept that the applicant took a separate loan to purchase a car that was later repossessed, and he no longer owes money in respect of that loan. Given that the loan obligations had been discharged, the applicant did not retain any documentation.
In relation to the alleged loan from the [Bank 1] , the applicant committed to provide the Tribunal with loan documentation and evidence to demonstrate transactions made between the applicant’s wife and her sister and evidence as to the ownership or location of the properties claimed to have been purchased by the applicant. This documentation was not sent to the Tribunal. At the Tribunal hearing, the applicant gave evidence that he had taken a total of three loans from licensed lenders: the government, the [Bank 1] Bank and [another] Bank (which was later discharged and for which he had no documentary evidence). In post-hearing submissions, the applicant supplied evidence of a loan taken from the [Financial Institution 1] and money owing to the [Credit Corporation 1]. I do not accept that these debts were taken in addition to a loan from the [Bank 1]. Without any supporting documentation, I find that the applicant does not owe money to [Bank 1].

According to the applicant’s own evidence at the first hearing, he took two loans from separate registered banks and one through a Government loan scheme. I accept this to be true. As such, the outstanding debt to financial institutions totalled 264,941 MYR in February 2020. This figure is consistent with the applicant’s evidence during the second hearing that he held personal debt of nearly 300,000 MYR in December 2020. As previously outlined, I accept that the applicant owes money to unlicensed lenders. While he was unable to provide documentary evidence or an estimate of the outstanding balance of these loans, I accept that those loans represent the difference (35,059 MYR).
As such, I accept that the applicant has a total accumulated personal debt of up to 300,000 MYR. I note that on the evidence, this figure is inclusive of [Mr A]’s portion of the loan taken on the property in Kota Kinabalu, as reflected by the [Financial Institution 1] loan. [Ms B] provided the Tribunal with separate documentary evidence that she personally owes 162,000 MYR in respect of that property. Her evidence on this point was also accepted.
While I accept that the applicant owes a significant amount of money, I do not accept that the applicant will be pursued by any registered money lender that would seek to threaten or harm him or his family in relation to his loans, other than as allowed under Malaysian law. In response to this concern, the applicant explained that all his property had been taken. They came to his house in the city and chained and locked the gate. Although they are licensed, they have people that come to find you if you don’t pay. I asked if this was similar to a debt collector in Australia and the applicant said yes. I note that the applicant has a legal obligation to repay debts for which he entered into an enforceable contract. There is no evidence before the Tribunal to support the applicant’s suggestion that the Malaysian Government or major banks would engage in physical intimidation against citizens and customer. In fact, at the second combined hearing, [Ms B] gave evidence that a lawyer had been appointed to them in order to manage the debt when they were declared bankrupt. This suggests that the Malaysian Government is providing a level of support.
In relation to the applicant’s small ‘emergency loans’ the Department of Affairs and Trade (DFAT) report on Malaysia suggests that unlicensed loan sharks operate relatively publicly in Malaysia, despite being illegal. In this case, the applicant gave evidence that on occasion he would borrow small amounts of money to cover his day to day expenses and the loan sharks would become angry if they weren’t being paid. I accept this to be true.
At the Tribunal hearing, the applicant departed from his original claims. I have accepted the applicant’s oral evidence that he was never involved in the Bersih movement and that he has abandoned his written claims. I have therefore assessed the claims raised by the applicant at the Tribunal hearings only.
Refugee criteria
The applicant did not raise any claims during the Tribunal hearing in relation to his race, nationality, political beliefs or activities, his religion or ethnicity. Further, there is nothing on the facts or in respect of the applicant’s personal profile to indicate that he would face serious harm on the basis of those attributes. I note that the applicant has identified himself as a member of the Murut ethnic group from Sabah and an adherent of the Islamic faith. As a member of a native ethnic group the applicant is a member of the majority Bumiputra along with being a member of the majority faith.
Article 8(2) of the Malaysian Constitution forbids discrimination against citizens based on religion or race. Article 153(2), however, accords a ‘special position’ for ‘the Malays and natives of any of the States of Sabah and Sarawak’, thus permitting affirmative action policies.[1] The applicant falls within this category of persons and would benefit from affirmative action policies as a native of Sabah. At the Tribunal hearing, the applicant gave evidence that prior to departing Malaysia, he worked as a member of [a government department]. While the applicant may experience some difficulty recovering his prior position given his unannounced departure from Malaysia, he would not be prevented from finding alternative employment or earning a wage on the basis of any personal attribute.
[1] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 13 December 2019
According to the most recent census in 2010, Muslims comprise 61.3 per cent of the Malaysian population. As a member of the majority faith, I find that the applicant is not at risk of societal discrimination on the basis of his religion. As discussed with the applicant at the second hearing, on the basis of the above information, I find that the applicant does not face a real chance of persecution as a result of his race, religion or nationality.
I have also assessed the applicant’s claims on the basis that he belongs to a particular social group, consisting of people with large debts. For the purposes of Australian law, the concept of ‘persecution’ is not defined, but is further explained by ss.5J(4) and (5). The provisions have the effect that a person will not meet the definition of a refugee unless:
·the essential and significant reason or reasons for the persecution is one or more of the following: race, religion, nationality, membership of a particular social group or political opinion; and
·the persecution involves serious harm to the person; and
·the persecution involves systematic and discriminatory conduct.
The language in which each of these conditions is expressed calls for a qualitative judgment in order to determine whether it is satisfied in any given case.[2]
[2] MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 per French CJ, Kiefel, Bell and Keane JJ at [35], Gageler J agreeing.
In this case, I accept that the applicant may face economic hardship as a result of his significant debts. However, I do not accept that this hardship will threaten his capacity to subsist or constitute serious harm. In particular, I note that the applicant is not required to make repayments on his largest debt while he is not earning an income. In addition, he would not be restricted from finding employment in order to service his debts for any systemic or discriminatory reason. Despite [Mr A]’s claim to have been ‘blacklisted’, there is no evidence to support the assertion that a centralised list of persons holding debt could be accessed by prospective employers. As discussed at the second hearing, the publicly available website of the Malaysian Department of Insolvency[3] reports that:
When you are declared a bankrupt, it would not deny you of your right to continue serving with your current organization. Neither would this status prevent you from any future or potential recruitment. However, you must be subjected to your terms of contract with your current employer. For instance, where the contract requires you to inform the employer if you are declared a bankrupt, then you must inform your employer of your status.
[3] Accessed at >
I do not accept that [Mr A] would be prevented from seeking or securing employment as a result of holding a large debt or being found bankrupt.
In respect of the potential harm claimed by the applicant from individual unlicensed money lenders and licensed money loaning institutions, the Tribunal notes that those money lenders seek to recover outstanding debt from the applicant on the basis that he personally borrowed money from them. The money lenders seek to recover money from [Mr A] personally as a result of an agreement reached between them and for no other reason. As such, any harm that the applicant might face as a result of his debt is motivated by the creditors’ personal desire to recover or profit from the debt. There is no evidence before the Tribunal to suggest that the essential and significant reason for any harm the applicant might face at the hands of the money lenders is one of the reasons outlined in s.5J of the Act.
I have considered cumulatively what I have accepted of the applicants claim and find that the applicant does not face a real chance of serious harm, now and in the reasonably foreseeable future, for any reason if he were returned to Malaysia. I therefore find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a).
Complementary protection
For the same reasons that I found there is no real chance of serious harm as a result of the applicant’s ethnicity or religion, I find that the real risk element of the test in s.36(2)(aa) has not been met in relation to those factors.[4] The applicant gave evidence to the Tribunal that his primary concern is that he would be unable to earn sufficient money in Malaysia to make the repayments on his loans and may face harm from individuals seeking to recover the outstanding amounts.
[4] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.
As previously outlined, in order to fall within Australia’s complementary protection obligations, there must be 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 the applicant will suffer significant harm: s.36(2)(aa). 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).
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.
As previously outlined, I accept that [Mr A] may face economic hardship as a result of his significant debts. However, I do not accept that this hardship will threaten his capacity to subsist or constitute significant harm.
The definitions of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment in s.5(1) of the Act require an element of intent. There must be an act or omission by which severe pain or suffering, or extreme humiliation, ‘is intentionally inflicted on a person’. The general economic situation and the financial impact of loans taken out by the applicant are not circumstances that were intentionally designed by an individual or the state to cause significant harm to the applicant. There is no intent on behalf of Malaysian society or the authorities to prevent the applicant from gaining employment or accessing social services that are available to other citizens. While the applicant may not earn a wage comparable to that he would earn in Australia, he would not face extreme humiliation and he is not in a position of vulnerability vis-à-vis the State. Further, I note that the applicant gave evidence that he is under no obligation to repay his government loan while he is not earning a wage and the Government has appointed a lawyer to assist with the management of the applicant’s debt.
In relation to [Mr A]’s money borrowed from loan sharks, he gave evidence that while in Malaysia he did not face any physical harm from unregistered money lenders when he was unable to pay. I note that while he gave evidence that they would become angry if he couldn’t pay, he provided no specific examples to the Tribunal. [Mr A] gave no evidence to indicate that he had been threatened with physical harm or that the money lenders had engaged in any other threatening behaviour, such as extortion.
The applicant gave evidence that he would borrow small amounts of money from unlicensed lenders to cover his day to day expenses. Money owed to unlicensed lenders constitutes a small portion of the applicant’s overall debts. [Mr A] gave evidence that he held employment in Malaysia and had been working in Australia. I consider that the applicant would be well-placed to find employment on return to Malaysia and continue making repayments to the unlicensed lenders.
The Explanatory Memorandum to the Migration Act provides some guidance on the interpretation of real risk. It outlines that:
[a] real risk of significant harm is one where the harm is a necessary and foreseeable consequence of removal. The risk must be assessed on grounds that go beyond mere theory and suspicion but does not have to meet the test of being highly probable. The danger of harm must be personal and present.[5]
[5] Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth) at [67]. Similarly, the Second Reading Speech on the introduction of the Bill stated ‘[a] real risk of significant harm has been found in instances where there is a personal or direct risk to the specific person’: Commonwealth of Australia, Parliamentary Debates, House of Representatives, 24 February 2011, 1357 (Chris Bowen, Minister for Immigration and Citizenship).
When considering the absence of threats or physical harm in the past when the applicant was unable to pay, the ability of the applicant to gain employment and make repayments, and the provision of assistance with the management of the debt incurred from licensed lenders by the state, I do not consider that there is a real risk that the applicant will suffer significant harm. While I accept that unlicensed lenders in Malaysia have engaged in threatening and sometimes physically harmful activity generally, I do not accept that there is a real risk that this will happen to [Mr A] personally in the circumstances outlined above. In making this finding, I note that the Tribunal is not required to make the applicant’s case for him. Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim by the person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claims.
For the reasons above, I find that there are no 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 will suffer significant harm: s.36(2)(aa).
The applicant originally gave evidence that his family had not applied for protection, however he later gave evidence that his wife had made a separate application. The Tribunal will consider those claims and make separate decisions in those matters. However at this time, the applicant cannot satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 679

9 February 2021

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