1704840 (Refugee)

The applicant, Mr A, sought merits review of a decision by a delegate of the Minister for Immigration to refuse his application for a protection visa. The dispute centred on whether Mr A would face persecution or significant harm if returned to Malaysia. Mr A's initial application claimed fear of persecution due to his involvement with the Bersih political movement. However, at the hearing before the Tribunal, his claims shifted to a fear of harm from loan sharks due to significant personal debts.

The legal issues before the Tribunal were whether Mr A was a "refugee" within the meaning of section 5H of the *Migration Act 1958* (Cth), based on a well-founded fear of persecution for reasons of political opinion or membership of a particular social group, and whether Australia had protection obligations under section 36(2)(aa) of the Act due to a real risk of significant harm. The Tribunal was required to assess the credibility of Mr A's claims and determine if the alleged harm met the threshold of persecution or significant harm as defined by the Act.

The Tribunal found that Mr A's evidence regarding his involvement with the Bersih movement was not substantiated and that his primary concern was the economic hardship arising from his substantial debts. The Tribunal accepted that Mr A might face economic hardship but concluded that this hardship would not threaten his capacity to subsist or constitute significant harm. It reasoned that Mr A was not required to repay his largest debt while unemployed and that there was no evidence to suggest he would be prevented from finding employment in Malaysia due to his debt or potential bankruptcy. Furthermore, the Tribunal found that any harm from money lenders would be motivated by personal debt recovery and not by reasons outlined in section 5J of the Act, such as race, religion, nationality, or political opinion, and therefore did not constitute persecution. Similarly, for complementary protection, the Tribunal determined that the economic hardship and potential actions of money lenders did not amount to significant harm as defined by the Act, particularly lacking the element of intentional infliction required for torture, cruel, inhuman, or degrading treatment.

The Tribunal affirmed the decision not to grant Mr A a protection visa, finding that he did not face a real chance of serious harm or significant harm if returned to Malaysia. The Tribunal noted that Mr A's wife had lodged a separate application, which would be considered independently.