1705375 (Refugee)

The applicant, a citizen of Malaysia, sought review of the Refugee Tribunal's decision to refuse to grant a protection visa. The applicant claimed to be a victim of loan sharks and to have suffered physical violence and forced and abusive marriage, asserting that these experiences placed them within a particular social group for the purposes of the *Migration Act 1958* (Cth). The matter came before the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the applicant's claimed experiences constituted membership of a "particular social group" as defined by Article 1A(2) of the Refugee Convention, to which Australia is a signatory. This required the court to consider whether the alleged group was defined by an immutable characteristic, a past commitment, or a fundamental aspect of identity, and whether it was a social group in Australian refugee law. The court also had to assess whether the applicant faced a real chance of persecution and whether Malaysia offered effective protection measures against the alleged harms.

The court found that the applicant's asserted group, "victims of loan sharks," did not constitute a particular social group for the purposes of the Convention. It reasoned that the defining characteristic was not an inherent or immutable trait, nor a past commitment or fundamental aspect of identity, but rather a consequence of the applicant's personal circumstances and choices, specifically their engagement with loan sharks. Furthermore, the court determined that the applicant had not established that the Malaysian authorities were unwilling or unable to protect them from the alleged harms, and therefore, the risk of persecution was not sufficiently real or substantial.

Consequently, the court dismissed the application for review, upholding the Refugee Tribunal's decision to refuse the protection visa.