1705835 (Refugee)

[2021] AATA 5642

1705835 (Refugee) [2021] AATA 5642 (1 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705835

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Simone Burford

DATE:1 November 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 November 2021 at 2:20pm

CATCHWORDS  
REFUGEE – protection visa – Malaysia – multilevel marketing business/pyramid scheme – loan sharks – credibility concerns – inconsistent evidence – effective state protection – race – Chinese ethnicity – ‘Bhumiputra’ policy – decision under review affirmed 

LEGISLATION 
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5LA, 36, 65, 423A, 424A
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

   Background

2. The applicant is a [age]-year-old Malaysian citizen. She arrived in Australia [in] September 2019 on a UD-601 Electronic Travel Authority visa. She travelled to Australia alone and does not have any family here.

3. Prior to coming to Australia, she was living in Johor, Malaysia with her family.

4. The applicant’s parents and [number] younger brothers are living in Malaysia.

   Issues

5. The issues in this review are whether there is a real chance that, if she returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Claims and evidence

   Protection claims

   Protection visa application

7. On her application form the applicant identified herself as Buddhist and as ethnically Chinese.  She indicated she never been married. She confirmed this information at the hearing on 24 September 2020 however she said she had no religion.  When the Tribunal queried this, she said she put Buddhist on the application form because she followed her mother. The Tribunal notes the application made no claims with respect to her religion or lack of religious belief. She indicated she speaks, reads and writes English, Bahasa Malaysia and Mandarin Chinese.

8. Her application form indicated she had resided at one address from 1994 to November 2016 when she left Malaysia.  This was consistent with the Malaysian identity card details she provided to the Department. She listed her mother and father as her only family in Malaysia (Question 42) and did not provide any details of employment in Malaysia and indicated she was unemployed at the time she made the application and was supporting herself through ‘savings’ (Question 84).  She indicated she did not have any assistance in translation on preparation of the application form (Question 101). She indicated she had not travelled to any country other than Australia (Question 80). She declared that the application was ‘truthful and honest in every way’. (Question 1).

9. The applicant initially presented her claims in her protection visa application in which she states, in summary, that:

   ·     She invested money in a multilevel marketing business. She convinced a few of her friends and relatives to invest in her network.  They made a small profit at first and tried to increase their investment.  She borrowed money from a loan shark to invest in the pyramid scheme, which turned out to be a scam. She lost all of her investment and was unable to give money back to her ‘downline’ or her creditor and was scared they would threaten to beat her if she couldn’t repay the money.

   ·     She said she was beaten by her downline who were chasing her for money and the loan shark threatened her and her family.  She fears that if she were to return to Malaysia now or in the reasonably foreseeable future she would be harmed by her downline and the loan shark. She said the loan shark told her not to report the matter to the police or they would hurt her family.

   ·     She cannot move to another part of the country because the loan sharks have gang members throughout the country.

10. The issues in this review are whether there is a real chance that, if she returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

11. The applicant submitted a copy of her Malaysian passport, issued [in] 2015, and a copy of her Malaysia identity card, issued [in] 2015, to the Department.  No further information was provided to the Department.

12. The applicant was not interviewed by the Department in relation to her application.

    The delegate’s decision

13. The delegate refused the visa on 23 March 2017.  The applicant provided a copy of the delegate’s decision with her application for review.

14. The delegate refused the visa on the basis they were not satisfied that there is a real chance that, if the applicant was returned to Malaysia, she will be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act. Therefore, the applicant is not a refugee as defined in s 5H and the criterion in s 36(2)(a) of the Act was not satisfied.

15. Further the delegate did not accept that the applicant was involved in a pyramid scheme as claimed or that she would be denied a reasonably expected level of State protection as accorded to any other nationals in Malaysia, having regard to relevant country information.  The delegate found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Malaysia, there is a real risk that she will suffer significant harm. Accordingly the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(aa) of the Act.

    Review application

16. The applicant filed her application for review on 24 March 2017.

17. The applicant initially appeared before the Tribunal, differently constituted on 16 February 2018 (the first hearing).  Following that hearing the member to whom the matter was constituted became unavailable and the matter was reconstituted. Following reconstitution the applicant appeared again before the Tribunal at an initial hearing on 24 September 2020 (the second hearing) and 3 March 2021 (the third hearing) to give evidence and present arguments. The Tribunal indicated that it had reviewed the recording of the earlier hearing. Adverse information arising from the first hearing was put to the applicant at the third hearing.  Further information was put to the applicant in writing following that hearing.  That information is detailed below.

18. The second hearing on 24 September 2020 was held by telephone.  The hearing was held during the COVID-19 pandemic.  At the time the hearing was conducted, Tribunal registry operations were restricted. 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. At that hearing the Tribunal discussed with the applicant whether there were any changes to her claims and the information on which she was seeking to rely in support of her claims. The hearing was adjourned to a later time when in-person hearings resumed.

19. The third hearing was held in-person at the Perth registry. 

20. The hearings were conducted with the assistance of an accredited interpreter in the English and Mandarin languages.

21. The applicant was not represented in relation to the application to the Tribunal. 

22. Prior to the third hearing the applicant submitted the following material to the Tribunal:

    ·     A signed letter from the applicant dated 24 February 2021 detailing claims and responses to issues raised in the delegate’s decision.

    ·     A statutory declaration dated 24 February 2021 from [Ms A], the manager of [Business 1] where the applicant works as a [Occupation 1].

    ·     ‘Meeting Malaysia’s notorious triads’, BBC News, 20 September 2005.

    ·     ‘Malaysian police nab 21 for loan shark activities in Johor’, The Straits Times, 17 September 2019.

    ·     ‘How to avoid loan sharks in Australia’, Finder, 1 February 2021.

23. At the second hearing the Tribunal put to the applicant a summary of her claims contained in her application for the visa.  She said that her claims were a bit different because she borrowed money from a creditor to pay her downline and she didn’t have money to pay off her creditor, nor her friend. She said the creditor visited her home address in Malaysia last month and that they have been harassing her family because she hasn’t paid the debt.

24. In her submissions the applicant claimed she also feared returning because she invested in a pyramid scheme and brought friends into the scheme and when the scheme failed she borrowed money to repay her friends (her downline) and could not repay the money to the money lender. She claimed she borrowed 8000 Malaysian ringgit (RM) from a boyfriend of a friend to repay her friends and used a further RM5000 of her money to repay them. She was unable to repay the loan and the loan sharks and they pursued her for repayment, including suggesting she work at a bar run by one of the loan sharks entertaining men at the bar to pay off the debt. She claimed she was scared so her cousin loaned her money ($4000) to come to Australia.

25. She also noted she was Chinese Malay.  She claimed that Chinese Malays were more vulnerable due to their lower socio-economic status and the preferential treatment of Malays (Bumiputera).  She claimed that she would be persecuted by the police because she was a Chinese Malay and they would not take any complaints she made seriously on that basis. She did not raise any specific claim to face persecution on the basis of her Buddhist faith. In fact, as noted above, at the second hearing she told the Tribunal she had no religion.

26. The applicant’s claims for protection and the evidence on which she was seeking to rely were discussed at the hearings. This information and the applicant’s oral evidence to the Tribunal at the hearings are discussed further below.

27. The Tribunal notes that it discussed with the applicant at the hearing what was then the current Department of Foreign Affairs and Trade (DFAT) Country Information Report: Malaysia dated 13 December 2019 (the 2019 DFAT Report) in considering the claims raised in the application. On 29 June 2021, DFAT released an updated country information report for Malaysia – the Country Information Report: Malaysia dated 29 June 2021 (the 2021 DFAT Report).  The Tribunal considered the content of that report with respect to the applicant’s claims.  The Tribunal considers that the general content of the report as it relates to the applicant’s claims is consistent with the 2019 DFAT Report and with other country information discussed at the hearing.  Relevant country information is discussed further below.

    DECISION MAKING FRAMEWORK

    Criteria for a protection visa

28. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994. 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.

29. 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.

30. 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).

31. 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.

32. 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).

33. 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 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.

34. 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.

35. 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).

36. 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.

37. ‘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.

38. 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.

39. 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

40. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts 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.

41. 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.

1. 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] 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.[5]

   [4] MIMA v Rajalingam (1999) 93 FCR 220.

   [5] 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.

2. However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[6] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[7]

   [6] 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].

   [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.

3. 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.

4. 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].

5. 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].

6. 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, I November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

7. 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

8. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

9. As noted earlier, the Tribunal discussed with the applicant at the hearing the 2019 DFAT Report, which was then the current DFAT Country Information Report: Malaysia, in considering the claims raised in the application. The Tribunal has also considered the most recent DFAT Report, the 2021 DFAT Report. The Tribunal considers that the information contained in the most recent report was materially the same as the country information put to the applicant at the hearings such that it raised no new issues with respect to the application for review.

10. The Tribunal has included references to both the 2019 DFAT Report and the 2021 DFAT Report where relevant. The Tribunal was satisfied that the issues arising from the 2021 DFAT Report had been raised with the applicant at the third hearing.  Country information is discussed further below.

    CONSIDERATION

    Applicant identity and country of reference

11. The applicant claims to be a citizen of Malaysia. The applicant provided a copy of her 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.

12. The Tribunal finds that the applicant is a citizen of Malaysia, which is also her receiving country for the purposes of the refugee and complementary protection assessments.

    Evidence

    First hearing

13. When the applicant gave evidence before the Tribunal, as previously constituted, on 16 February 2018, she said that [Ms B] had assisted her in preparing her application. The Tribunal reviewed a recording of that hearing. 

14. When asked if [Ms B] lived in Perth she ‘no’ and when asked where she lived the applicant told the Tribunal that [Ms B] had ‘returned back to her own country’. She was asked if that was Malaysia and she said ‘yes’ and when she was asked if she was in Malaysia now she said ‘yes’.  

15. The applicant told the Tribunal at the first hearing that she was involved in a multilevel marketing business.  She said she couldn’t recall the name of the business. She said she was just sending money to a person who was the person who would try to earn money from it.  She said she could make a profit from the multilevel marketing business/pyramid scheme by earning 20% by recruiting one person but the amount depended on how much was invested.  When asked how much profit the applicant had earned she told the Tribunal it was a bit over RM1000.  She said she borrowed around RM8000 from a loan shark.  The Tribunal asked about the terms of the loan and she said that she hadn’t paid off the loan and the interest was still going but there was no deadline for paying off the loan. She said every month she paid off a little bit.

16. The applicant told the Tribunal at the first hearing that her initial investment was RM2000  which she lost when the scheme collapsed.   She said initially she was getting profit but then the profit wasn’t coming anymore.  She said she did not report it because she thought it would be regulated by the government.

17. As noted above, the hearing was adjourned to a later date however the member became unavailable.

    Second and third hearings

18. The applicant told the Tribunal that her parents and [number] younger brothers were living in Malaysia. She said her parents have been divorced for around 10 years and that her mother was living in Johor.  She did not know where her father was living. Her mother was working in a supermarket in Johor.  Her brothers both lived with her mother in Johor. One of her brothers was married and he and his wife were living with her mother. One brother was still in school and the other was temporarily not working due to COVID-19. Her sister-in-law works in a supermarket. She said they lived in a rental property which they had been living in for about four years prior to her coming to Australia.

19. The Tribunal pointed out that her application form gave one address in Malaysia and she said that address was her father’s family home but that the family used it as their address.  She said they had moved two times prior to moving to her current address.  She said the old address was the one on her Malaysian identity card.

20. She said that prior to coming to Australia she had been working in a shop selling [goods] for about two years.  In Australia she had worked as a [Occupation 1] for the past three and a half years. She sends money home occasionally. She said she had repaid the cousin she borrowed from some of the money she owed them, about RM2000.

21. When the Tribunal asked if she had assistance completing the application for the visa she said a woman named ‘[Ms B]’ she met at the backpackers she stayed in had helped her.  She said she didn’t pay her money but she helped her write things down.   She said she didn’t know where she was now but that she was in Australia because she was Australian. She said she ‘told her everything about myself’ and she wrote it in for her. The Tribunal asked if she had told her about her family members in Malaysia and she said ‘no’. The Tribunal asked if she told her about the work she had done in Malaysia and she said ‘no’.

22. The Tribunal asked why she travelled to Australia and she said that she ‘tried to avoid the debtors that owe the money’. The Tribunal asked what her plan was and she said she planned to stay for a few months and if possible, extend her visa to stay. The Tribunal asked if she had approached the Department to discuss what her options might be or look up what her options might be and she said ‘No’. She said she met [Ms B] and she said she could help her.

23. She said [Ms B] told her she would stay here legally if she applied for a protection visa.  The Tribunal asked if [Ms B] was helping anyone else at the backpackers and she said she wasn’t sure. The Tribunal asked when she started working and she said about a year after she arrived.  The Tribunal asked how she was supporting herself during that time and she said that a cousin was helping her.  She said her cousin sent about RM1000 per month to support her in Australia.  She said that during that period she stayed with an Australian family and she helped them babysit the children and they gave her some pocket money.  She said she moved in with them two weeks after she arrived in Australia.

24. The Tribunal asked about the claims she had made for protection.  She said she had joined a pyramid scheme.  She invested money in it and asked three more friends to invest money and then in the end all of a sudden the pyramid disappeared. She said her friends lost money so she had to think of ways to return the money.  Because she didn’t have enough money to pay them back she had to borrow money from a loan shark.   She said after she took out the loan it earned high interest so she couldn’t pay it back. She said the loan shark was a boyfriend of her friend who is a loan shark.  His nickname is ‘[Mr C]’ but she didn’t know what his name was because he was a boyfriend of her friend. The Tribunal asked if they were still together and she said she didn’t keep contact with them.

25. The Tribunal asked who was running the pyramid scheme and she said she wasn’t sure.  She said her friend ‘[Mr D]’ had brought her into it. She said she invested RM3000 once, giving the money in cash to [Mr D]. She said this was in February/March 2016. The Tribunal asked what [Mr D] had told her about how the scheme worked and she said he said ‘invest money into the scheme and the company will pay you interest irregularly’. The Tribunal asked if she earned interest on the investment and she said that sometimes it was RM100–RM200 and sometimes RM700–RM800 but it was irregular. 

26. The Tribunal asked what she meant when she said it was a ‘pyramid scheme’ and she said ‘[Mr D] brought me in and I introduced another friend and they introduced more friends.  If I introduced friends, two or three more friends I can earn a commission.’ The Tribunal asked how much commission and she said it was ‘3–5 % on their investment.’   The Tribunal asked if that was separate from the interest she earnt and she said ‘yes’.  She said that ‘the money I invested, I already got it back.’

27. The Tribunal asked how much she had been paid from the scheme before she got her friends to invest and she said she got back her investment capital and then she introduced her friends. She said that all the interest added up to about RM3000 in interest by then.  The Tribunal asked how much her friends invested in the scheme and she said RM13000. The Tribunal asked how much money she got when they invested and she said ‘3–5%’.  The Tribunal asked how much money that was and she said she couldn’t remember.  The Tribunal put to her that it seemed strange she wouldn’t remember how much money she had been paid in commission yet she could recall the amounts her friends contributed and the interest payments made to her. She said she didn’t ask her friends at the same time and then she didn’t get the interest all at once.

28. The Tribunal asked how much more money she got out of the scheme after her friends had invested and she said she got three payments for the interest which was less than RM1000.  She said her friend [Ms E] invested RM5000 in June 2016. Her friend [Ms F] invested RM4000 in June 2016 (but not on the same day). Her friend [Ms G] invested RM4000 about the same time. She said they gave her the money and she gave it to the upline, [Mr D]. The Tribunal asked if they earned any interest and she said ‘a little bit.’  She said it was ‘a couple of hundred ringitt each’.  She said they got this about a month after they invested. She said the money went straight into their bank account. She said she gave the bank details to her ‘upline’. This was also how she received her money into a bank account.  The Tribunal asked if she had any evidence of this and she said she did in a Malaysian bank. No evidence on bank accounts in Malaysia or Australia was before the Tribunal.

29. The Tribunal asked when she found out the scheme was a ‘scam’ and she said that about two months later when they didn’t receive any money. She said when her friends asked her, she said she didn’t get her money either and she asked her upline and he said he didn’t get money either. The Tribunal asked when she was expecting the money and she said they paid irregularly but she didn’t receive money for a while and previously she had been paid interest two or three times in a month and then in August 2016 she didn’t get paid.  She said her friends started chasing her for the money.  She said they threatened her and said she had to return the money.  The Tribunal asked what they said they would do to her and she said ‘put my photos online to say I was a scammer.’  She said she asked [Mr D] for her money but he said he couldn’t do anything.

30. She said this is when she paid her friends with her own money which she borrowed from a loan shark. The Tribunal asked why she was worried about them saying she was a scammer online and she said ‘If they put your photo online – how can I go out to live and work?’

31. The Tribunal asked what the terms of the loan were and she said ‘every week I have to pay them interest of about RM500 per week’. The Tribunal asked if she made repayments on the loan and she said she paid just once with her salary. She said she paid once and the amount was RM1500 interest and capital as well. The Tribunal asked what the interest rate was.  She then said there was no interest rate because it was the boyfriend of the friend, she was just to pay RM500 per week until she paid the loan back.

32. She said that because she couldn’t pay the money the boyfriend of her friend came to see her at the place where she worked about two weeks after she paid them the RM1500. He told her to pay him back immediately or they would go to her home to get her.  She said she stopped paying because at the place where she worked she was only paid once a month and she had already paid them out of that month’s salary.  The Tribunal asked what he said and she said that he told her she owed him over RM10,000.  The Tribunal queried this as she had earlier said there was no interest just an agreement for her to pay RM500 per week until the loan was paid and she said the RM500 was just for interest every week. She said she borrowed RM8000.

33. The Tribunal queried how if she had paid RM1500 the first week after the loan was taken which she said was interest and principle could she owe RM10000 two weeks later. She then said that at that time when they came they didn’t say she owed RM10,000.  They only told her to return the money immediately. However, because she couldn’t pay them they came back two weeks later and told her she had to pay over RM10,000. She said later the boyfriend of her friend called her to say if she didn’t have money to pay she could go and work for them.  She said this was in September, two weeks after he came to her workplace. She said he told her the workplace he told her to work at was an entertainment venue and she would have to serve as an escort to drink with people.  The Tribunal noted that this would have been a month after his original visit so she would presumably have been due to be paid. The Tribunal asked if she told him she would be giving him more money and she said yes but because her salary was only RM1000 she could not pay the debt so they said she had better come to work for them.

34. She said she told them she would try and pay them off as soon as possible.  She said she was very scared to work for them because she said she would be forced to do something else. She said she told her cousin her situation and her cousin said in that case she should lend her some money and she should go somewhere. She said she loaned her about RM4000. When asked if she thought about using that to pay down some of the debt she said ‘No I did not because I knew I couldn’t pay them much and the interest keeps growing’. She said that even if she paid them off they would still force her to go to work for them. The Tribunal noted she had said her cousin also sent her RM1000 a month while she was unemployed in Australia and it would seem that plus the salary she was earning may have been sufficient to make repayments on the debt.  She said that her cousin didn’t send her money regularly.  The Tribunal asked where she got the RM5000 of her own money to pay back her friends and she said that was her savings.

35. The Tribunal asked if she had reported the threats to police and she said they warned her not to report it to the police. The Tribunal asked if there were any further approaches from the loan sharks and she said there were no further approaches from the loan sharks because not long afterwards she flew to Australia. She said six months after she came to Australia they approached her mother and asked where she was.  Her mother told them she was overseas but she didn’t tell them she was in Australia. The Tribunal asked if they had approached them since then and she said in 2018 they went and then once in 2021 before the Chinese New Year. She said they asked the same question and when I could pay them the money. The Tribunal asked if they did anything else and she said ‘no’.

36. The Tribunal asked how they knew where her mother lives, she said it was a small close knit community. The Tribunal asked who they were and she said two or three boys and she thought one was the boyfriend of her friend. The Tribunal asked if she asked her mother who they were and she said they were loan sharks.  The Tribunal asked if her mother reported them to the police and she said ‘of course not’.

1. Later the Tribunal asked why, if the loan sharks had been trying to enforce the debt, they didn’t seek money from her family in the years which had passed since she took the loan. She responded that it was because her family could not pay them.  The Tribunal asked if they had asked her family to pay them and she said they had.  The Tribunal asked when this was and she said it was after she left for Australia and they went to her family. She said they asked when the applicant was going to pay the money or whether they were going to pay it for her and her mother told them she couldn’t pay the money and they would have to go and get it from the applicant (in Australia).  The Tribunal put to her that this might suggest the loan sharks aren’t seeking to harm anyone to enforce the debt as her family had not been harmed even though the debt remained unpaid. She said they hadn’t been harmed because she was the one who owed the money. The Tribunal put to her that country information suggests loan sharks might enforce debts against other family members and she said that some might threaten family members but most loan sharks would not threaten family members.

2. The Tribunal discussed with the applicant the requirements of s 5J of the Act and in particular how it was she believed the harm she feared was motivated or directed at her for one of the reasons provided for in s 5J(1)(a). She said ‘I should say ‘race’’. In her written submission she stated:

   I wish to state that I am a Chinese ethnically, speaking in Mandarin and a Buddhist by religion. Malaysia is a Malay dominated country whose state religion is Islam. Most of the police come from ethnic Malays who do not see us Chinese as equals in status. Malays are given privileges as they have what is known as "Bhumiputra" policy, which gives privileges to ethnic Malay as against the other ethnic groups like Indian and Chinese. It is generally believed that we Chinese don't get the same rights as the dominant Malays who control the political aspects of Malaysian society. The Malaysian parliament is dominated by Malay politicians and the national language is Malay. We Chinese do not expect to be treated well by Malay police who dominate the Malaysian Police Force.

3. She went on to say:

   I believe that I will be persecuted by the Malaysian authorities especially the police force. It is well known that the police force is corrupt and biased against non~Malays. This may be the reason why the Chinese are involved in unlawful activities like illegal lending, gambling and gangs, Most loan sharks are of Chinese origin. Indians are also involved in these activities as both the Chinese and Indians are economicalIy and political disadvantaged.

4. The Tribunal asked how the feared harm was connected to her race and she said that ‘because I am Chinese and most of the government public servant or police are Malays and if I go back and report to police they are less likely to protect Chinese.’ She said that the system is not fair to Chinese and the Chinese do not get paid attention to them.  The Tribunal said that there was no country information before it to suggest that police would fail to respond to a complaint because a person was of Chinese ethnicity.  The Tribunal noted the country information in relation to Chinese (outlined below).  The applicant said that the Chinese were wealthy but they were still the minority.  Further, the Tribunal noted the applicant claimed to be at risk from loan sharks who would target her because she owed them money. The Tribunal put to her that it didn’t seem that the harm from the loan sharks arose because she was Chinese. She said that mainly her fear was that if she reported the loan sharks to the police the loan sharks would harm and hurt her. She said she also feared if she reported it to the police she would not be protected because she is Chinese. However, she agreed that the threat from the loan sharks did not arise because she was Chinese, because the loan sharks are also Chinese.

5. The Tribunal asked again what the harm was she feared on return and she said it was that the loan sharks would force her to work for them. The Tribunal asked if there was any other basis on which she feared harm on return to Malaysia and she said no, just that she will be physically harmed if she returns to Malaysia. The Tribunal asked why she didn’t mention being worried about being made to work for the loan sharks in her application for the visa. She said she had noted they would come to get her and she meant they would make her work for them.  The Tribunal noted that in her application she had stated that her downline had beaten her and the loan shark had beaten her but she hadn’t mentioned that at the hearing.  She said the downline slammed her in the face just once and the loan shark had pushed her but not beaten her.

6. The Tribunal also noted that in her later statement she said she had moved around in Australia because she feared the loan sharks would find her however she hadn’t mentioned that in her oral evidence, she said they didn’t come to her but she moved to several places to protect herself from them. She confirmed they had not approached her in Australia.

7. The Tribunal discussed with the applicant her written statement.  She said a friend of a friend, ‘Uncle’ had helped her prepare the note. She didn’t know his name.  She said her friend was ‘[Ms H]’. The Tribunal asked how she had met ‘Uncle’ and she said he was her friend’s friend. The Tribunal asked if she dictated her statement to him or told him what she wanted to say.  She said she had an interpreter and they spoke to ‘Uncle’.   The Tribunal asked if the interpreter had read the statement to her before she signed it and she said ‘yes’.

8. As noted earlier, prior to the third hearing the applicant provided a statement from a [Ms A] dated 21 February 2021.[10]  [Ms A] is an Australian citizen originally from Singapore and is the employer of [the applicant]. She stated that they had known the applicant for about two years and she had ‘told them about her predicament’ which they describe as having ‘borrowed money from loan sharks’.  [Ms A] notes the applicant is a good employee and meets the needs of her customers.  The statement also declares that [Ms A] ‘is aware of the operation of loans sharks who take advantage of those in need of money’.  She notes she sees many complaints on Facebook about loan sharks.  [Ms A] states the applicant borrowed money from loan sharks because she comes from a poor family and was unaware of their operations. The statement attests that the applicant would be an asset to Australia.

   [10] The applicant confirmed at the hearing that the deponent was female.

9. The applicant confirmed at the hearing that [Ms A]’s knowledge of the events arises because of what the applicant told her and also because she is from Singapore and so she understands the situation because it is very common in Singapore and Malaysia.

10. The Tribunal accepts [Ms A]’s statement as testimony to the applicant’s work ethic in Australia and to her value as an employee.  The Tribunal also accepts she told [Ms A] that she had borrowed money from loan sharks.  However, as the statement indicates that the witness’ knowledge of these events and of the applicant’s circumstances was limited to what the applicant had told her the Tribunal places less weight on that evidence as corroborating the events claimed by the applicant.  Further, the Tribunal places limited weight on the statement as evidence of the activities of loan sharks in Malaysia noting the witness indicates they base their information on information received second hand, including through social media and on her knowledge of the circumstances prevailing in her home country of Singapore.  The Tribunal considers such evidence to be of limited value in assessing what the applicant’s circumstances would be on return to Malaysia. The applicant did not seek to call [Ms A] as a witness and given the limited nature of the evidence provided by the statement the Tribunal did not contact the witness to give oral testimony.

11. The Tribunal asked the applicant if there was any other basis on which she feared harm on return to Malaysia. She said she was afraid she would be physically harmed by the loan sharks.  The Tribunal notes that at the hearing she did not raise any concerns regarding her Buddhist religion or Bumiputera policies of the Malay government, other than the claimed bias of police against Chinese Malays. The Tribunal did not consider that tany claim arose with respect to either on the basis of the material before it.

12. The applicant’s claims are assessed further below.

    Adverse information

13. At the conclusion of the third hearing, the Tribunal indicated it would write to the applicant putting to her information which the Tribunal considered may be adverse to her case. 

14. Mindful of its obligations under s 424A of the Act following the second hearing, the Tribunal wrote to the applicant to put to her adverse information which would be the reason or part of the reason for affirming the decision under review. The particulars of the information were:

    ·     When the applicant gave evidence before the Tribunal, as previously constituted, on 16 February 2018, she said that [Ms B] had assisted her in preparing her application. When asked if [Ms B] lived in Perth she said  ‘no’ and when asked where she lived she told the Tribunal that [Ms B] had ‘returned back to her own country’. She was asked if that was Malaysia and the applicant said ‘yes’ and when she was asked if she was in Malaysia now she said ‘yes’. However, at the hearing on 4 March 2021, the applicant told the Tribunal that [Ms B] assisted her preparing her application. She said she didn’t know where [Ms B] was. When the Tribunal asked whether she knew if she was still in Australia she said that she was ‘because she is an Australian’;

    ·     The applicant told the Tribunal on 16 February 2018 that she made a profit from the multilevel marketing business/pyramid scheme earning 20% by recruiting one person but the amount depended on how much was invested. However, she told the Tribunal on 4 March 2021 that she earned 3–5% for each investor she recruited to the scheme;

    ·     When asked how much profit the applicant had made from the investment she told the Tribunal it was a bit over RM1000. However, she told the Tribunal on 4 March 2021 that she had earned RM3000 in interest prior to recruiting her friends to invest and had later earned less than RM1000 for recruiting them;

    ·     The applicant told the Tribunal on 16 February 2018 that she hadn’t paid off the loan but she was paying back a little bit every two months. However, she told the Tribunal she was required to pay RM500 per week which she was unable to pay beyond the first payment;

    ·     The applicant told the Tribunal on 16 February 2018 that her initial investment was RM2000 which she lost when the scheme collapsed. However, she told the Tribunal on 4 March 2021 that she had invested RM3000. Further in her statement dated 24 February 2021 said that she was ‘able to get back my RM3000 principle’;

    ·     In her written statement dated 24 February 2021 the applicant said that two people came to her workplace in August 2016 and told her she owed RM17,000. However, she told the Tribunal on 4 March 2021 that two weeks after she made the first payment her friend’s boyfriend came to her office and asked her to make a payment. She did not mention a second person coming to her workplace. She went on to say that two weeks after that the boyfriend of her friend called to say she owed RM10,000.

15. The Tribunal indicated that this information was relevant because inconsistencies in information regarding events central to the applicant’s claims for protection provided by her may lead the Tribunal to doubt the truthfulness of her evidence and to consider that her claims lack credibility. It may also cause the Tribunal to not accept that the applicant had been harmed as claimed or that she had a genuine fear of being harmed on her return to Malaysia. It may cause the Tribunal not to accept that she had a well-founded fear of persecution if she returned to Malaysia or that there is a real risk that she will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia. This would be the reason, or part of the reason, for the Tribunal to affirm the decision under review.

16. The applicant responded to the information on 24 March 2021.  In that response she stated:

    In February 2018 I said [Ms B] was the one who helped me with the protection visa application. I believe that the way she spelt her name.  I said in 2018 that she went to Malaysia which is her country of birth. I believe she's an Australian citizen as she migrated to Australia with her family. At that time she was planning to go to Malaysia to visit her relatives.

    I believe [Ms B] lives in the Eastern states of Australia, perhaps Melbourne. When I met her she was in Perth holidaying. I met her in September 2016. I don't know when she actually went to Malaysia as we lost contact. I did try to contact her over the months but without success. I wanted to request her to be my witness at the hearing.

    I believe [Ms B] was about 28 years old in 2016. She is ethnically Chinese and we spoke in the Chinese dialect (Hokkien). We became close due to ethnic similarities and her family practised Chinese Buddhism. I told her my problems with loan sharks which she seemed to understand. She realised I was a victim as felt sympathetic towards me.

    [Ms B] seemed to understand about refugees coining to Australia, especially in boats. Some of these refugees came from countries suffering from persecution due to various reasons.

    She said in school she was also taught about people seeking refugee status in Australian as Australian was very strong on human rights issues,

17. With respect to the information put to the applicant regarding inconsistencies in her evidence about the multilevel marketing schemes she said:

    In February 2018 I said to the Tribunal that if I recruited one person into the pyramid scheme I got about 20% as a bonus. This is an incentive to recruit more people. It is a one off payment given to me from the "top" people. However, the interest I got from investing in the pyramid scheme is about 4 to 5% paid to me every month. The next time I recruit another person I will again get a bonus of 20%.

    … I told the tribunal I made a profit of over RM$3.000 from my initial investment of RM$3000 after 3 months. When I told the tribunal I had earned RM$3000 in interest what I meant was I got back my initial investment of RM$3000 after about 3 months. This means I got an interest of RM$1,000 per month. However, after I recruited my friends into the scheme I earned less than RM$1,000 which is correct. This is because the pyramid scheme collapsed.

    …

    Yes, it is correct I told the tribunal I hadn't paid of the loan I borrowed from the "loan sharks". I made an initial interest payment of RM$500 per week to them. I had to pay this high amount as I did not have any collateral (eg jewellery or a car) to back up my loan I borrowed from the loan sharks. Unfortunately I could not keep up paying the RM$500 per week and I was only able to pay a little bit every two months.

    According to the tribunal in February 2018 I said that I invested only RM$2000 in the pyramid scheme which eventually collapsed. Actually I invested $3000 in the scheme and I got the money back.

    I believe there is some confusion here. I recall having told the Member in February 2018 about the amount of RM$2000 which I lost, This amount has to do with currency trading with FOREX in Malaysia around 2015. I was learning about currency trading around that time after I turned [age] years. At the time of the hearing I probably confused the Member by mixing up the Forex currency trading matter with the investment in the pyramid scheme. I am sorry for this confusion.

18. With respect to inconsistent information regarding claimed approaches from loan sharks the applicant stated:

    Yes, in my written statement of 24 February 2021 I said two people came to my workplace around August 2016 and demanded RM$1,7000 which I owed according to them.

    According to the tribunal during the March 2021 hearing I said that two weeks after I made the first payment my friend's boyfriend (who is associated with the loan sharks) came to my workplace and asked me to make payment, Actually my friend's boyfriend also came with the other man in August 2016.

    Yes, my friend's boyfriend did call me on the phone and demanded RM$1,7000 and not RM$1,0000.

19. These responses are considered further below.

    Country Information

20. Country information which was before the Tribunal and is relevant to the applicant’s circumstances is summarised below.

21. At the end of the hearing, the applicant noted that in her country the negative news would only be in Chinese media which would be in the Chinese language.  She asked the Tribunal to read the Chinese news.  The Tribunal explained that there was a range of information in English media including the report provided by the applicant, further the DFAT Report, while in English, collected information from a range of sources including local Malay sources.[11]  The Tribunal explained that what it had put to the applicant was an analysis of information in particular the report by DFAT, some of which supported the applicant’s case such as in the sense it suggested that loan sharks operate in Malaysia but that other elements of the information may not support her case, as discussed.  It was for the Tribunal to assess the information and to determine whether it was relevant to her claims and whether it supported or was adverse to those claims.

    [11] 2019 DFAT Report, page 3.

22. The Tribunal indicated that if there was country information the applicant wished to submit which was in Chinese or another language she would need to get it translated or the Tribunal would not be able to understand, and place much weight on it.  She said she understood this.

    Loan sharks

100.   Country information regarding loan sharks, including that submitted by the applicant and information contained in the 2019 DFAT Report was discussed with the applicant at the third hearing.  As noted earlier, this information is broadly consistent with information contained in the 2021 DFAT Report.[12]

[12] 2021 DFAT Report, pages 40–42.

101.   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. Country information indicates it is an offence to illegally lend money in Malaysia and police have broad powers to investigate alleged loan sharks.[13] While such practices are illegal, moneylenders advertise their services publicly.[14] DFAT reports that it understands that ‘authorities tend to be unsympathetic towards individuals who have access to loan shark services, regarding them as having participated in an illegal practice’.[15]

[13] Illegal money lending or loan sharking is an offence under s 5(2) of the Moneylenders Act 1951, which carries a fine of between RM250,000 and RM1 million (AUD80,000–AUD320,000) or, a jail term of up to five years, or both, see 2019 DFAT Report.

[14] 2019 DFAT Report, at [3.108], pages 39–40.

[15] 2019 DFAT Report, at [3.112].

102.   The police actively investigate and prosecute illegal money lenders. Police actions against individual loan sharks under the Moneylenders Act 1951 are reported on regularly in the Malaysian media.[16]  Country information indicates police have made several recent high-profile arrests and investigations of syndicates and undertake major operations to investigate and prosecute loan sharks.[17] Country information suggests the Government has been making efforts to reduce corruption within the political system and the police force, and to target illegal money lenders by charging them with criminal offences and/or fining them. The police actively investigate and prosecute illegal money lenders. Police actions against individual loan sharks under the Moneylenders Act 1951 are reported on regularly in the Malaysian media.[18] 

[16] ‘14 held for illegal money lending in Pahang, items worth RM1million seized’ NST, November 2019 ‘Violent gang of loan shark members nabbed’ The Star, Jan 2020

[17] 2019 DFAT Report at [3.116].

[18] ‘14 held for illegal money lending in Pahang, items worth RM1million seized’ NST, November 2019 ‘Violent gang of loan shark members nabbed’ The Star, Jan 2020

103.   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. [19]

[19] 2019 DFAT Report.

104.   The Tribunal noted that country information indicated that the police and the judiciary are reasonably effective at dealing with illegal money lending and that they are able to afford a degree of protection from the illegal practise of money lenders and that country information suggested that the police would take action if the applicant reported being harassed or threatened by an illegal money lender. The applicant responded that she didn’t report it to the police because the loan shark warned her not to and she was worried the police would be seriously against her. The Tribunal put to her that given she said she worried she would be seriously harmed regardless because she couldn’t repay the debts it may seem sensible to go to police notwithstanding her concerns given the alternative.  She responded the money lenders would get to know about it. She said that if she reported it the boss would take action.  She submitted that if the police take seriously legal action there wouldn’t be so many loan sharks. She said that Malaysians know most police are getting bribes and work together with the triads (gangs). She said the loan sharks weren’t only involved in money lending but other activities including drugs.  She confirmed she was not involved in such activities.

105.   The applicant provided an article in relation to the activities of triads in Malaysia.[20]  She said that the information annexed to this submission in a BBC News article, showed that unlawful activity in Malaysia like ‘Prostitution is easier to get away with, and so is loan sharking or making and peddling fake goods.’ The Tribunal considered that this information was consistent with other country information regarding criminal activity in Malaysia. However, the Tribunal notes while the applicant asserted she was at risk of harm from ‘criminal gangs’ she offered no evidence to support her claim that her friend’s boyfriend was a triad member. She also provided an article about avoiding money lenders in Australia.  She said that she had moved around in Australia to avoid being found by the money lenders but she had been approached by money lenders in Australia.

[20] ‘Meeting Malaysia’s notorious triads’, BBC News.

106.   The Tribunal noted that part of the 2019 DFAT Report indicated that some banks and credit agencies were willing to offer people loans to consolidate and pay off loan sharks and asked whether she felt that she could access such assistance.[21] According to DFAT, The NGO Malaysian Chinese Association’s (MCA) Bureau of Coordinating Government Affairs provides a similar service to renegotiate the terms of loans with loan sharks on behalf of borrowers.19 The Tribunal queried whether the applicant was aware of such services or could approach such services and the applicant said she was not aware. The Tribunal asked if she could reach out to one of these organisations and she asked ‘can they guarantee me 100% safety?’

[21] 2019 DFAT Report,  at [3.113]-[3.114], page 40; 2021 DFAT Report, page 40, at [3.113]-[3.114]; ‘Many still found borrowing from loan sharks’, MCA website May 2017

107.   The Tribunal queried why the applicant would not seek help if she thought she or her family members were at risk of serious or significant harm from loan sharks and she said she wasn’t sure what would happen if she sought help. She said that the way the loan sharks operate is not that simple. Again, she said that the police could not protect her, if they could there would not be the level of criminal activities from loan sharks which existed in Malaysia. The Tribunal explained that what is required was not that there be no crime in a country as that was not possible in most, if not any countries, but that the protection was effective, or that it was such that any risk of significant harm was less than a real risk.

Chinese Malays

108.   In response to questions at the hearing, the applicant claimed police would not respond or protect her if she complained to them about threats from loan sharks.  This was consistent with claims made in written submissions to the Tribunal prior to the hearing.  The claim of being persecuted due to her Chinese ethnicity was not raised in her application for the visa.

109.   Malaysia’s population is ethnically split into two categories namely Bumiputera and non- Bumiputera. Malaysia’s Bumiputera (sons of the soil) account for more than 60% of the country’s population, and are comprised of Malays and other indigenous groups.[22]

[22] 2019 DFAT Report, page 19; 2021 DFAT Report, pages 20–21.

110.   As discussed with the applicant at the hearing, Chinese Malaysians constitute the country’s largest non-Bumiputera population, accounting for approximately 20% of the Malay population.[23] Malaysia’s Constitution affords special privileges to Bumiputera which has given rise to the creation of affirmative action policies that benefit Bumiputera, including preferential programs to boost the economic position of Bumiputera.[24] Malaysia’s Constitution affords special privileges to Bumiputera effectively discriminating against non-Bumiputera. Preferential programs limit opportunities for non-Bumiputera in higher education and government employment, and government procurement and licensing policies favour Bumiputera-owned businesses.[25]

[23] 2019 DFAT Report, page 20; 2021 DFAT Report, pages 21–22.

[24] 2019 DFAT Report, page 19; 2021 DFAT Report, pages 20–21.

[25] 2019 DFAT Report, pages 19–20; 2021 DFAT Report, pages 20–21.

111.   However, as discussed with the applicant, country information suggests that Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia.[26] The applicant agreed but said they were still in the minority.

[26] 2019 DFAT Report, page 20; 2021 DFAT Report, pages 21–22.

112.   There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians (though, by implication, as the second largest ethnic group, they are the principal group affected by the constitutional preference for Bumiputera). Chinese Malaysians freely participate in political life, including as ministers and in opposition parties, but ethnic Chinese politicians have occasionally faced public criticism for interfering with ‘Malay rights’.

113.   The Tribunal notes that country information suggests that there are relatively few Chinese Malaysians in the Malaysian civil service, noting that the predominant use of the Malay language can be a barrier to Chinese Malaysian employment in the civil service, but does not preclude it.[27] Chinese Malaysians often do not apply for government positions, as they believe the positions are more likely to be awarded to Bumiputera and provide limited promotional opportunity. Conversely, Chinese Malaysians are well represented in the private sector and many small and medium enterprises and large corporations are Chinese Malaysian-owned. Country information suggests that Chinese Malaysians report a range of discriminatory practices against the community in the business sector and claim unequal access to certain industries due to Bumiputera ownership laws and Chinese Malaysians reporting obtaining and maintaining a business licence can be difficult, due to Bumiputera ownership quotas and pressures to pay significant bribes. DFAT assesses that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector. The applicant said in reality that is not true.

[27] 2019 DFAT Report, page 21; 2021 DFAT Report, pages 21–22.

114.   The Tribunal put to the applicant that, as noted in the delegate’s decision, this country information suggested that while Chinese Malaysians may be the subject of discrimination, including low levels of official discrimination, the information suggested that there was no real chance of serious or significant harm on return to Malaysia on the basis of Chinese Malaysian ethnicity alone. 

Analysis and findings

Fear of harm from loan sharks and criminal gangs

115.   The Tribunal has carefully considered the claims of the applicant in her original application for protection and her subsequent application and evidence to this Tribunal, individually and then cumulatively. 

116.   Central to the applicant’s protection claims before the Tribunal are that she incurred debts to a loan shark in Malaysia in order to pay off her ‘downline’ who lost money in a pyramid scheme.  While her application claimed she was beaten by her ‘downline’, before the Tribunal she said she is afraid she will not be able to repay her debts to the loan shark if she returns to Malaysia, and claims she fears harm from the loan shark and his associates. She made late additional claims before the Tribunal that she will be forced to work for the loan shark in a bar or as an escort on return to Malaysia and that she will face harm because police will not assist her because she is a Chinese Malay.

117.   The Tribunal had serious concerns regarding the applicant’s evidence regarding her claims.  A number of these concerns centred on inconsistencies in the applicant’s claims and evidence regarding the details of the pyramid scheme, the loan and the nature of the threats she received, in her application for protection and evidence before the Tribunal.  These were detailed in the s 424A letter to the applicant.  Her responses reasserted the later information which had been provided rather than providing a satisfactory explanation for why earlier evidence was not consistent in important respects including the amounts of money invested in and earned from the pyramid scheme.  It was also not consistent with the claims as expressed in her application for protection. In this regard the Tribunal rejects the applicant’s explanation that when she initially gave evidence regarding losses she suffered as a result of the pyramid scheme she was talking about foreign exchange losses.  The Tribunal has carefully reviewed the applicant’s earlier evidence and foreign exchange issues were not raised.  In the Tribunal’s view the applicant’s evidence was clearly with regard to claimed losses from the pyramid scheme.  The Tribunal does not accept the applicant’s explanation of the inconsistencies is credible.

118.   The Tribunal was also concerned that the applicant’s claims to fear harm on the basis of her Chinese ethnicity and her fear the loan sharks would force her to work for them as an escort were not raised until after the initial hearing with the Tribunal. There was no satisfactory explanation as to why these claims were not raised in the application for protection or prior to the primary decision being made.  The Tribunal considers this contributes to concerns regarding the credibility of those claims.

119.   The Tribunal put to the applicant that it was also concerned her claims to be at ongoing risk of serious or significant harm from loan sharks or criminal gangs were not consistent with the fact her family has continued to live in Malaysia in the same home without facing a similar risk.  She said loan sharks had approached her family about her whereabouts and asked them to pay the loan.  She said they refused.  The applicant suggested this was due to the fact it was her loan so the loan sharks would not enforce it against her family.  The Tribunal considered this was not consistent with country information which suggested that loan sharks who employ predatory or intimidatory enforcement practices do so against associates and family members in an effort to secure payment.[28] The Tribunal considers that the fact the applicant’s family have faced no threats or instances of harm in such circumstances  suggests loan sharks are not attempting to enforce a debt against the applicant and that the applicant would accordingly not be at risk of serious or significant harm from them on return to Malaysia.

[28] 2019 DFAR Report, at [3.111].

120.   The Tribunal found the applicant’s account of events regarding the claimed loans to be both inconsistent and implausible.  The Tribunal was also concerned that the applicant was unable to provide any corroborative or supporting evidence of any debts owed in Malaysia.  Further, taking the applicant’s claims at their highest, no threats have been made against the applicant in the five years since she left and her family have not reported any experiences of harm or threats of harm during that period despite remaining living in the same house.  At the highest they have been asked about her whereabouts and asked to repay monies, which they refused to do.  As noted above, having regard to the country information and the evidence, the fact that the loan sharks have not sought repayment from the family in such circumstances casts further doubt on the claims regarding the existence of the debts.

121.   Further, no claimed harassment by loan sharks or criminal gangs was reported to the police, notwithstanding the applicant’s assertion she believed herself to be at risk of serious harm, including being forced to work off the loan as an escort. The Tribunal does not accept that the applicant would not report an ongoing threat of serious harm to authorities if she genuinely believed herself to be at risk in this way. Given the applicant claims she is at risk of serious harm due to an inability to pay her loans it is implausible that she would not seek the assistance of authorities to avoid that harm even in circumstances where she lacked confidence in the ability of the authorities to protect her ‘100%’ at all times. 

122.   The Tribunal also does not accept the applicant’s late claim that she didn’t report the threats or harassment to police because they believed she would not be protected because she was Chinese Malay.  Her claim to fear harm due to her Chinese ethnicity is considered individually further below.  In the context of her claims this was a reason for her failure to report to police the Tribunal notes the late nature of these claims casts serious doubt on their credibility.  Further, the claims were not supported by any country information to suggest complaints to police by Chinese Malays are not entertained by police due to institutional discrimination against Chinese Malays in Malaysia.  While country information points to preferential treatment of Bumiputera and some institutional discrimination against Chinese Malays there is no information to suggest the applicant would be denied police protection on this basis.  Further, the applicant claimed to fear harm from loan sharks who she conceded were not targeting her due to her ethnicity. She noted that they themselves were Chinese.  Accordingly, the Tribunal does not accept that the applicant did not report threats from loan sharks to police because she was afraid the police would persecute her as a Chinese Malay or would withhold protection from her due to her Chinese Malay ethnicity or for any other reason. 

123.   As noted earlier, when it was put to the applicant that country information suggested there were organisations which assisted with resolving outstanding issues with loan sharks and she was asked if she had or would access such a service, she stated she did not know about such services.  She then said she didn’t think they could assist and that they couldn’t guarantee her protection.  Again, the Tribunal does not accept that if there was a real chance the applicant may be seriously harmed by loan sharks, she would not seek to protect herself from such a risk through engaging with such services merely on an assumption they could not protect her from harm which she says she already faces due to her failure to pay the loan. 

124.   The Tribunal also considered that the fact the applicant was able to borrow money from her cousin to fund her travel and living expenses in Australia was not consistent with her claim to fear serious harm from loan sharks in Malaysia.  The applicant told the Tribunal that several weeks after she was unable to make weekly payments of RM500 her cousin loaned her RM4000 to come to Australia. When she was asked how she supported herself here she said her cousin sent her RM1000 per month.  Given the original claimed loan amount was RM8000 and the applicant had already made repayments of RM1500 the Tribunal does not accept that she would not have at least attempted to use or borrow money from her cousin to make repayments to the loan sharks if she believed herself to be at risk of serious or significant harm from loan sharks. Even if the applicant were fearful of approaching the police for assistance, there was no reasonable explanation for why she would not have been able to borrow money from her cousin to repay the debt rather than travelling to Australia.  In this regard, the Tribunal notes that she has paid her cousin back some of the money borrowed from her but ‘not all.’  She did not raise any concerns with respect to monies owed to her cousin and there was nothing on the material before the Tribunal to suggest she would be at risk from her cousin or anyone else due to those loans.

125.   Having regard to the applicant’s claim that the loan sharks would still be looking for her, considering the applicant’s claims and evidence the Tribunal does not accept that this is the case.  The Tribunal notes the absence of evidence of any threats or attempts to enforce a loan since the applicant left Malaysia.  While the applicant claimed before the Tribunal that loan sharks had approached her mother on several occasions, including in the month before the hearing, she offered no evidence to corroborate this, including from her family members.  Further, she did not suggest her family members were threatened or harmed by the loan sharks in the claimed visits or otherwise.  The applicant’s evidence was that loan sharks have asked her mother for the applicant’s whereabouts and in her absence had on one visit asked her mother to pay the loan but in light of her refusal to do so had taken no action to enforce the loan against family members. Further, the applicant’s family circumstances indicate that if there were a real chance they would be seriously harmed because of debts owed by the applicant extended family members would be able to provide financial assistance in meeting claimed debts as the financial assistance provided by the applicant’s cousin previously demonstrates.

126.   The country information makes it clear that loan sharks operate publicly in Malaysia. The country information confirms that individuals who are unable to service the loan shark debt risk being physically harmed, having their home splashed with red paint or having their family safety threatened.[29]  Country information also suggests criminal gangs operate in Malaysia[30] and that human trafficking is an issue for some sectors of the population.[31]However, country information also establishes that the police and the Malaysian authorities act in response to loan shark activities and the various non-government organisations offer services to assist those struggling with debts to loan sharks.

[29] 2019 DFAT Report; New Strait Times, ‘Loan Sharks getting nastier by the day’ by Azdee Amir, October 20, 2020 ww.nst.com.my/news/crime-courts/2020/10/633858/loan-sharks-getting-nastier-day

[30] 2019 DFAT Report at [2.44].

[31] 2019 DFAT Report at [2.45]–[2.46].

127.   The Tribunal has considered relevant country information outlined above 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.  The Tribunal also 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. The fact the applicant has not attempted to avail herself of any support from non-government agencies operating in this space to assist debtors in a meaningful way or to complain to police contributed to concerns regarding her claim that she will face a real chance of serious harm from loan sharks on her return to Malaysia. 

128.   Given the inconsistencies in the applicant’s evidence regarding the pyramid scheme the Tribunal does not accept the applicant was a member of a pyramid scheme which collapsed causing her to owe money to her downline or that she borrowed money to repay her downline.  Having considered all the circumstances of the applicant’s claims regarding debts, including the credibility concerns detailed above, the Tribunal finds the applicant does not have a subjectively held well-founded fear of persecution from loan sharks, criminal gangs or any other person on her return to Malaysia.

129.   Based on country information the Tribunal accepts that loan sharks and criminal gangs operate in Malaysia. However, given the inconsistent nature of the applicant’s evidence, the lack of consistent detail or supporting documentation in relation to the loans, the lack of prior harm to the applicant or any instances of harm to her family since the claimed loan was made and the late raising of claims without satisfactory explanation, the Tribunal does not accept the applicant owes money to a loan shark, or her family face a real chance of serious harm from loan sharks, criminal gangs or any other person, now or in the reasonably foreseeable future.

130.   In any event, if the Tribunal is wrong and the applicant did have an outstanding debt to a loan shark and the loan shark sought to enforce the debt, the Tribunal does not consider that the applicant’s fear of persecution is well-founded. The Tribunal has considered relevant country information and while it accepts that the country information reflects that predatory lending practices in Malaysia can be associated with violence and crime, it also finds 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 money lenders in actions across the country.  Further, the Tribunal accepts there are organisations such as the MCA 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. In addition, the Tribunal finds the applicant has access to family social and financial support which she has accessed in the past and which would assist her meeting any debts due.

131.   Moreover, the Tribunal is satisfied that the applicant would be able to access effective protection measures should she return and receive threats in relation to loans in Malaysia.  While the Tribunal acknowledges that the 2019 DFAT Report identifies some problems with corruption in the Royal Malaysian Police (RMP) force there is no indication that assistance from the RMP would be withheld from the applicant if incidents of threats or harm were reported to the police. The DFAT Report refers to the fact that the RMP have in fact taken action against loan sharks, including fining and prosecuting them.  The Tribunal considers that this meets the requirements in relation to s 5LA(2) regarding effective state protection being taken to be available where a person can access protection, that protection is durable, and in the case of protection provided by the relevant state, that protection consists of an appropriate criminal law (specifically, legislation addressing the activities of loan sharks), and a reasonably effective police force.

132.   As noted above, the Tribunal does not accept that the applicant has established that there is any basis on which it could be satisfied that she faces a real chance of suffering serious harm in Malaysia from a loan shark, associated gangs (including triads), Malaysian police or any other person now or in the reasonably foreseeable future.

Chinese Malay ethnicity

133.   Prior to the third hearing the applicant raised a claim she faced harm on the basis of her Chinese ethnicity.  As noted earlier, she claimed that this was a reason police would not act to protect her from loan sharks if she were to report harassment or threats to the police. She claimed that Malays are given preferential treatment and that Chinese Malays are discriminated against.

134. DFAT states that ethnic Malays and other indigenous groups – collectively known as Bumiputera – are given special status in the Constitution. Government regulations and policies including numerous preferential programs to boost the economic position of Bumiputera.[32] However, country information also records that Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia.[33] While country information suggested Bumiputera may receive preferrable treatment and that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector there was no information to support the applicant’s claim that she would be denied police protection on the basis of her ethnicity or that she would be otherwise seriously harmed by authorities on that basis.

[32] 2019 DFAT Report at [3.2].

[33] 2019 DFAT Report, page 20; 2021 DFAT Report, pages 21–22.

135.   Given these considerations and country information, and the fact the applicant did not claim to have experienced any particular problems as a Chinese Malaysian in the past in Malaysia, the Tribunal finds the applicant does not face a real chance of serious harm on the basis of her Chinese Malaysian ethnicity from Malaysian authorities or any other person now or in the reasonably foreseeable future on return to Malaysia. 

Complementary protection

136.   In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm.  In this case, the Tribunal has found that the applicant is a national of Malaysia and the Tribunal therefore finds that Malaysia is the ‘receiving country’ for the purposes of s 5(1).

137.   ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act. 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. There is an intentional element to the meaning of cruel, inhuman and degrading treatment or punishment (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34). A real risk or a real chance is one that is not remote or insubstantial or a far-fetched possibility.[34]

[34] Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

138.   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.

139.   For the reasons set out above, the Tribunal has found there is not a real chance the applicant will suffer serious harm from loan sharks or associated criminal gangs (including triads) now or in the reasonably foreseeable future.  Tribunal has also found there is not a real chance the applicant will suffer serious harm from Malaysian authorities or any other person based on her Chinese Malaysian ethnicity. 

140.   In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[35]  The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J.  It follows that the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Malaysia for these reasons. 

[35] MIAC v SZQRB [2013] FCAFC 33 (Lander, Bosanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Bosanko and Jagot JJ at [297], Flick J at [342].

141.   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, that there is a real risk that she would suffer significant harm, now or in the reasonably foreseeable future, from any person or for any reason.

142.   There are no other claims that arise from the evidence or country information and the applicant has not raised any further fears regarding her return to Malaysia.

CONCLUSION

143.   Taking the applicant’s claims individually and cumulatively, at their highest, they do not meet the required thresholds under either the refugee assessment criteria or the alternative complementary protection assessment criteria.

144.   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).

145.   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).

146.   There is no suggestion 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 criteria in s 36(2).

DECISION

147.   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:

(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.

…