1707006 (Refugee)

1707006 (Refugee) [2020] AATA 5436 (17 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:  1707006, 1705667, 1831602
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Denis Dragovic
DATE:17 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 November 2020 at 7.12pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm by loan sharks – particular social group – ‘borrowers unable to make repayments threatened by debt collectors’ – ‘debtors’ or ‘Muslim debtors’ – complementary protection – options to reduce the risk of harm – Malaysian Muslim Consumers Association – economic hardship – political opinion – involvement in a Bersih rally – no follow up repercussions since the rally – participation in future rallies – low-profile protestor – children bullied at school – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is a combined decision of a single family unit covering three applications raised in response to decisions made by delegates of the Minister for Immigration and Border Protection on 22 March and 27 March 2017 and a delegate of the Minister for Home Affairs on 23 October 2018 refusing to grant the applicants a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicants claim to be citizens of Malaysia. The first named applicant arrived in Australia [in] February 2016. He applied for the visa on 29 December 2016 upon the basis of claiming to fear returning to Malaysia for the reason of having borrowed money from an unregistered money lender who may kidnap his family and harm him to obtain payment. The delegate refused to grant the visa for the first named applicant on the basis that he could receive effective protection from the Royal Malaysian Police and judiciary against the threats of harm he claimed to fear from loan sharks he claimed were intent on harming him.
The second named applicant arrived in Australia [in] November 2016. She applied for the visa on 29 December 2016 on the basis of having participated in a Bersih rally in 2015 and fearing the repercussions. She applied for protection separately to her husband and children. The delegate refused to grant the visa for the second named applicant on the basis that she had not claimed to have experienced any harm and that she would not be a person of interest to the Malaysian authorities.
The third, fourth, fifth and sixth name applicants (“the children”) applied for their visas on 30 January 2018 following their arrival to Australia [in] November 2017. The children had a single claim, namely, that both parents live in Australia and they fear being forced to return to Malaysia as unaccompanied minors without anybody to support them. The delegate refused the visa on the basis that the Department would not deport the children separately from the parents. The delegate then went on to consider the claims made by the parents and found that the children would not face a real chance of serious harm or a real risk of significant harm.
A copy of all of the applicants’ passports were provided to the Department and available to the Tribunal. Based upon the passport copies accompanying the applications I find that the applicants are citizens of Malaysia and that Malaysia is their receiving country.
PROCEDURAL MATTERS
The Tribunal exercised its discretion to hold the hearings by video conference. The hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference having regard to the nature of this matter and the circumstances of the applicants. 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 video conference. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
The applicants were first invited to attend a joint video conference hearing scheduled for the 18 August 2020 at 10am. On the day of the hearing the applicants did not join the MS Teams hearing at the prescribed time of 9.45am. The Tribunal remained in the virtual hearing room through to 11am. In the interim a phone call was received by the switchboard from the first named applicant enquiring whether the Tribunal would be contacting the applicants. The switch operator explained to the first named applicant that they would have to follow the instructions provided and in addition explained how the applicants could join the hearing. The applicants did not join the MS Teams hearing on that day. The applicant did not call switch to seek further instructions.
As the applicant had endeavoured to participate in the hearing the Tribunal did not dismiss the case but rather rescheduled. The Tribunal organised a second hearing for the 25 August 2020. The first four named applicants appeared before the member.
The parents and two oldest children were present throughout the combined hearing as each gave evidence with the exception of a short period when the two oldest children were asked to leave the room while the first named applicant gave evidence regarding the circumstances surrounding his engagement with loan sharks. The two youngest children were not involved in the hearing upon the instructions of their mother. The hearing was conducted using MS Teams according to the guidelines of the Special Measures Practice Direction of 29 April 2020.
At the first hearing the family members confirmed that they had consented to a combined hearing and at the conclusion of the provision of evidence each applicant was separately asked whether they had heard the evidence about the family’s circumstances given by the other applicants and if they disputed any of it.
A second hearing was held on the 21 October 2020 at which it was explained that the hearing was a joint hearing and evidence given in one case would be taken to be given in the other cases. The applicants also consented to a single decision being written for all three applications.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
CONSIDERATION OF EVIDENCE
Evidence and finding of fact
The first named applicant is from a village in Terengganu, a state in northern Malaysia. He claims to have borrowed money from loan sharks in 2014 after the company he worked for went into liquidation in 2013 and he was jobless for several months. He stated that he found the loan sharks through friends. Not being able to make repayments on his and his wife’s credit cards, he said that he borrowed 7,000 Ringgit. The agreement was that he was supposed to repay 9,000 Ringgit through 500-600 Ringgit monthly repayments. The applicant stated that he made some repayments.
The first named applicant said that he met the loan sharks in Johor, a state in the south of Malaysia, where they were living at the time. He said that he was threatened by them when he didn’t make the repayments. He said that he then found a job in [City 1], [distance] from Johor Baru city, but because they did not know his workplace they kept harassing him and the second named applicant, his wife, at their home.
He claimed that the loan sharks came twice to see him when he was at home and other times when he wasn’t. During those instances that he was home he claimed that they were angry, demanding money that he didn’t have. He did not claim that they harmed him. He claimed to have asked for time to pay. They would give him time to repay, but he still defaulted on the payments. He said, for example, that he’d pay for one month and then not the following. He claimed that their income was insufficient to survive and make repayments.
The first named applicant explained that he then sold his motorbike and borrowed money from the second named applicant’s aunt. He managed to compile 5,000 Ringgit and using that money he came to Australia. He said that a month after his arrival to Sydney he sent money to the second named applicant and asked her to move their family to Terengganu where they are both originally from and have family.
The first named applicant stated that throughout his time in Australia he hadn’t sent money to the loan sharks. He said that he hadn’t tried to find them. He claimed that he lost their contact details. I asked if he had sought the details through his friends as he had originally obtained the contact details from them. He claims that he changed the SIM card in his phone when he came to Australia and has no idea how to contact anyone. He claims that he even opened a new account on Facebook since coming here.
The first named applicant stated that he has saved money in Australia and that he now has enough to repay the debt.
I asked him why he didn’t repay the debt when he sold his motorbike and borrowed money from the second named applicant’s aunt. He responded that it was because it would have left them in the same economic situation as they found themselves initially.
I asked the first named applicant where he intends to return to Malaysia if he had to. He responded that he would return to Terengganu, to his mother’s home.
I found the first named applicant to be forthright in most of his answers. The answers were internally consistent and align with country information which indicates that borrowing from loan sharks occurs as described by the first named applicant.[1] As such I accept that the evidence provided by the first named applicant and in particular that the first named applicant had taken a loan from a loan shark as described, that he was harassed and that he has saved sufficient money to pay off the loan. I also accept that the first named applicant would return to his mother’s place in Terengganu. I find it implausible that the first named applicant would have no way of contacting his past friends who introduced him to the loan shark either through email addresses, relatives who know his friends, friends of friends or re-opening his old Facebook account.
[1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Malaysia’, 13 December 2019 at [3.108-3.117]
The second named applicant is from a village near her husband’s (the first named applicant) in Terengganu. She explained that in 2012 her family bought land in a development in Terengganu that the Prime Minister had promised to develop but as the years passed nothing happened. She claims that someone had approached her to join the Bersih movement to demand the development of the area.
The second named applicant claims that [in] August 2015 she joined the Bersih movement in Kuala Lumpur for the sole purpose of seeking justice relating to their land. She claims to have participated in the public rally. She then returned to Johor Bahru. She claimed that only later did she come to know that the 29 August gathering was illegal based upon an announcement made by authorities. She said that she hadn’t been involved with the Bersih movement since. She claims not to have contributed to the movement since that time because others were being arrested.
I put to her that estimates of attendees at the rally ranged from 25,000 to 250,000.[2] She didn’t know how many but said many.
[2] Niluksi Koswanage and Manirajan Ramasamy, ‘Thousands of Malaysians Rally in Capital to Demand Najib's Resignation’, 30 August 2015
She claimed that after the rally she received phone calls from her friends warning her not to talk to anyone about the rally. Despite the warnings she did not receive any calls from any government authority.
I asked if she has been involved in any effort to support justice in Malaysia since being in Australia. She responded that she hadn’t done anything in Australia.
I put to her country information
DFAT 2.34 Many Bersih members currently hold positions in the new government or its agencies.[3]
She responded that she knows this to be the case.
[3] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Malaysia’, 13 December 2019 at [2.34]
I read to her additional country information from an earlier 2018 DFAT report which, in summary, states that as of the time of that report low-profile protestors such as the second named applicant who are involved in peaceful political rallies face a low risk of official discrimination.[4] I note that more recent information would suggest that the 2018 DFAT assessment remains current as the situation has improved since the change of government in 2018.[5]
[4] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Malaysia’, 19 April 2018 (Version 2) at [3.81]
[5] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Malaysia’, 19 April 2018 at [3.81] and Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Malaysia’, 13 December 2019 at [3.92]
I said that based upon this assessment she would not face harm for having participated in the Bersih rally five years ago. She agreed with this assessment.
I asked if the same motivation to seek justice that had compelled her to participate in the 2015 rally was still there. She said the land was bought in 2012 and it hasn’t been developed despite the promises that were made. I accept that her initial motivation remains for her to continue to be politically involved.
The second named applicant confirmed that she had not undertaken any political activity while in Malaysia other than participating in the single rally.
The second named applicant stated that she fears returning to Malaysia because she likes living in Australia. She explained that life is expensive in Malaysia, the children’s upbringing is expensive and that their income is insufficient. She said that they were struggling economically. She said that by the 15^th of the month they sometimes went without food.
She said both her and her husband had worked earning about 1,000 Ringgit per month, but once expenses such as rental, vehicle costs and food were taken into account she said that it was insufficient. I put to her that at the time 1,000 Ringgit was the minimum wage[6] in Malaysia and asked why they couldn’t survive if others could. She said that rent alone was 500 Ringgit. She said that she didn’t want to live with her parents in Terengganu because living in Johor she could earn a salary of more than 1,000 Ringgit but in Terengganu she can only get 700 Ringgit per month. I put to her that were she to move with her family into her parent’s home she would then not need to pay rent. Her response was that her parent’s house was full of other siblings and families.
[6] >
Both the first and second named applicants confirmed that they had work prior to coming to Australia. I referenced country information which shows that for the 2019 year the unemployment rate for Terengganu was 3.5 percent, a rate that is aligned with the rest of Malaysia.[7] The first named applicant said that recently his brother was only able to work for six months and after that he couldn’t find work. He said that in Terengganu it is very hard to find work unlike in Johor Baru. But he said that in Johor Baru house rental is 550 Ringgit per month, while earnings were 750 Ringgit per month. He said that now the minimum wage was 1,200 Ringgit.
[7] Department of Statistics Malaysia Official Portal, and Trading Economics, Malaysia Unemployment Rate
The second named applicant explained that she also fears returning to Malaysia based upon her husband borrowing money from loan sharks. She claimed that in 2014 she was visited twice by them. At no stage was she harmed, instead they asked the whereabouts of her husband and demanded money. They were looking for 2,000-3,000 Ringgit and when she couldn’t give them that they asked her to pay whatever she had.
I found the second named applicant to be forthright in her answers. The answers were internally consistent and align with country information about the Bersih movement.[8] As such I accept the second named applicant’s evidence. I accept that the second named applicant had participated in a Bersih rally in 2015 as described and that they faced economic hardship although they were able to find work in the past as described. I also find that the second named applicant may participate in future rallies was she to return to Malaysia.
[8] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Malaysia’, 13 December 2019 at [3.108-3.117]

The two oldest children gave evidence regarding why they feared returning to Malaysia. In their application form it was written that the four children feared returning to Malaysia for the following reasons:
a.In response to why they left the country: ‘Follow parents’
b.What will happen if you return to Malaysia: ‘No one will taking care of me and all my siblings while my parents in Australia.’
c.Did you experience harm in Malaysia? ‘No’
d.Do you think that you will be harmed or mistreated if you return to Malaysia: ‘No’
e.Do you think that the authorities can and will protect you if you go back: ‘They will not take any action and they will ask us to follow parents where ever reside.’
At the hearing the two eldest children did not mention these claims. Instead, the oldest responded that while he was at the school’s mosque praying a group of students who he referred to as gangsters came and dragged him into the toilets and kicked him. After he was beaten, he returned to complete his prayers and then went home as usual. He said that as a result he was left with blood on his head. This occurred when he was in Year 6, at the age of 12 which would have been approximately 2016. He believes that it was because he was new to the school. He said that he didn’t get any medical attention at the time because there was only some swelling and a little bleeding. He said that when he went home, he treated himself with herbal medicine.
The applicant’s mother approached the teachers at the school and asked whether they could guarantee that he would not be harmed again. A teacher said that they would make sure that it would not happen again. The mother then claimed that it did happen again.
The applicant claimed that his mother made a police report. She explained that the school had asked that they withdraw the report, so she withdrew it. She believes that they were asked to withdraw the police report to preserve the good name of the school.
The eldest went on to explain that in another instance while he was in secondary school, he was dragged into a classroom by a group of students one of whom was also among the group who had beaten him earlier in primary school. They forced him to fight with one of their friends. This encounter, he claimed, occurred when he was in Year 7. In this instance the eldest did not report it to anyone. I asked whether he had any medical injuries, he said he just went home after this incident.
His mother did not engage with the school because by this time his parents were in Australia and he and his siblings were living with their grandmother (father’s side) in Terengganu.
I asked the second eldest why she feared returning to Malaysia. She explained at the hearing that she had been mocked in the past while at school. She described an incident at school when she was bullied as indicative of a pattern of bullying. It was while she was in year 4 or 5, she wasn’t sure. She said that she was called names, had her headscarf pulled off her head and was punched. She said that the boys who did that to her were all in primary school as well. She thought that she was picked on because she was new to the school and was originally from the town (until she moved in with her grandmother). She said that her brother protected her against some of the bullying as they both went to the same school. She also said that she reported it to her grandmother and teacher and the teacher reprimanded the students, but they kept on doing it.
The second named applicant claimed that she spoke to the teacher after her daughter was bullied. She claims that even after the report was made the teacher did not take any action. I put to them that it is hard to believe that a school in Terengganu (one of the more staunchly Muslim states of Malaysia)[9] would allow for a girl’s headdress to be pulled and do nothing. The first named applicant said that it is common in that state for bullying to occur. He claimed that teachers will scold a student for bullying and then the student will act even worse.
[9] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Malaysia’, 13 December 2019 at [3.49], [3.69], [3.134], [3.136], [3.145], [4.20] and [3.42]
I asked the children whether they had encountered any loan sharks seeking repayment from their parents to which they responded that they had not.
I asked the two children present whether there were other reasons why they feared returning to Malaysia to which they responded that there were none. I asked the parents what the reasons were for their four children fearing returning to Malaysia to which the mother responded that it was for reasons of bullying.
The applicants confirmed that the grandmother with whom the children had stayed while their parents were in Australia was still alive and living in the same house.
I found the children to be credible and as such accept their evidence as fact, specifically that the applicants came to Australia to follow their parents and that the two oldest who appeared at the hearing were harassed as described at school by other children and that the other two would encounter similar issues although not having given evidence. I also accept that bullying is common in Terengganu. I accept that the children did not encounter the loan sharks at any time and that their grandmother who had cared for them previously is still alive and lives in the same house as they had lived in.
Considerations – First named applicant
The first named applicant states that he fears loan sharks. I put to him that he has money to pay off the debt. He acknowledged that he has but then pivoted to speaking about how his children have fit into their school in Australia.
Reporting from Malaysia shows that illegal money lending is a problem that leads to gang involvement and what I accept to be serious and significant harm such as the breaking of victims' limbs[10] and intimidatory actions such as damaging property[11] and the splattering of red paint on a house as indications of further harm.[12] Despite the first named applicant not having faced harm to such a degree in the past he may in the future, a chance I find to amount to a real chance of serious harm.
[10] Crackdown on loansharks after debtors tortured in Malaysia, South China Morning Post, 4 June 2009 available at
[11] A living hell for woman trader, The Star Online, 23 July 2016 available Family lives in fear after man fails to pay debts, The Star Online, 23 July 2016, available at
In considering whether the harm the first named applicant fears is based upon reasons outlined in s5J(1) and in particular whether there is a social group as defined by s.5L of the Act that the first named applicant would belong to, I first consider ‘borrowers unable to make repayments threatened by debt collectors’. To be considered a member of a particular social group the social group needs to have a characteristic that is shared by each member of the group (s.5L(a)); the person shares or is perceived as sharing the characteristic (5L(b)); and one of three criteria listed in s.5L(c) need to be met:
(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
The characteristic of being a debtor to loan sharks I accept to be shared by each member of a group and the applicant would be perceived to share that characteristic as such the particular social group of ‘borrowers unable to make repayments threatened by debt collectors’ meets s.5L(a) and (b). In considering s.5L(c) I do not accept that being a debtor is innate or immutable as the applicant acquired a debt and is seeking to dispense with it and I have not seen evidence that being in debt is fundamental to the applicant’s identity or conscience such that he shouldn’t be forced to renounce it, quite on the contrary he is seeking to renounce it. It could be said that the characteristic of being a borrower threatened by loan sharks distinguishes the group from society due to the common but not universal use by loan sharks of splattering red paint on houses. As such s.5L(c) is met. But in such an instance the ties that bind the potential group together breaches s.5L(d): ‘the characteristic is not a fear of persecution’, as the group is defined by a shared fear of harm by loan sharks.
Alternatively, the more general ‘debtors’ or ‘Muslim debtors’ does meet s.5L(a) as being a characteristic shared by each member of a group and s.5L(b), the person shares and is perceived to share the characteristics but fails on the s.5L(c)(iii). Being a debtor is not innate or immutable and I have not seen evidence that being in debt is fundamental to the applicant’s identity or conscience such that he shouldn’t be forced to renounce it, quite on the contrary he is seeking to renounce it. Regarding whether being a debtor or a Muslim debtor distinguishes the group from society I note that the applicant did not mention any engagement with other debtors, any interaction by society with him due to his indebtedness or a sense on the part of the applicant that he thought others distinguished him because of the debt. There is no country information that would suggest that debtors in general, whether from loan sharks, banks or government lenders are distinguished from society.[13]
[13] I searched Refworld, Google, CISNET
For these reasons I find that the first named applicant cannot be considered a member of a particular social group. Nor do the circumstances of the case lend themselves to consideration under any other of the reasons including race, religion, nationality and political opinion as per s.5J(1)(a). As such, the first named applicant does not face a real chance of serious harm for one of those essential and significant reasons as required by s.5J(4). Instead the first named applicant’s claims will be considered under Complementary Protection.
Assuming that the gang still exists, and members of the gang remember the first named applicant, and that they have reach into Terengganu, where the first named applicant indicated he and his family would return to, he has a number of options available to reduce the risk of harm he faces to less than a real risk beginning with repaying the loan.
Accepting that the first named applicant faces harm that amounts to serious harm I explained to him that the Malaysian Muslim Consumers Association has support services that are dedicated to resolving loan shark debt by renegotiating terms if necessary with the loan shark.[14] I note that the unit’s webpage (ahlong.ppim.org.my) allows people to report their individual cases to the agency. The first named applicant responded that he had only learned about this two years ago, after his arrival to Australia.
[14] Malaysian Muslim Consumers Association, >
I summarised the following services that the unit provides:
An investigating officer reviews and handles the case based on the information received
The investigating officer negotiates with ahlong to stop the threat, stop the interest, reduce the claim and reschedule the payment
The complainant is not allowed to communicate with ahlong so that the case can be controlled and there is no ongoing threat. Please contact the investigating officer or the PPIM Illegal Anti-Corruption Unit hotline if there are any threats or offers from ahlong.
The repayment period is extended
Complainant no longer has to communicate with ahlong, all related matters will be handled by officials without the complainant's involvement.
Monitoring the safety of the complainant throughout the case.
Complainant's personal information is kept confidential.
Counseling and counseling sessions throughout the case management.
Guarantee of settlement of cases as long as the complainant adheres to the terms and conditions set forth.[15]
[15] ibid
I asked the first and second named applicants what they would do were they to return with regards to their debt. The first named applicant said that maybe he would be in contact with the Malaysian Muslim Consumer Association. I asked what other option he has, he said that hadn’t thought about it and doesn’t have anything in mind. The second named applicant said that if the loan shark comes asking for the payment that they have no choice but to make the payment.
The applicants have indicated that they are unsure of what they would do. The option remains for them to seek out the loan sharks from the safety of Australia or alternatively through the assistance of the Malaysian Muslim Consumer Association who would on their behalf contact the loan sharks without the applicants having to risk their safety. By taking this course of action the first named applicant could reduce the risk he faces to less than a real risk. As such I find that the first named applicant does not face a real risk of significant harm as a necessary and foreseeable consequence of removal to Malaysia.
Arising from the evidence given to the Tribunal I have also considered whether the first named applicant faces economic hardship such that he would be unable to sustain himself or his family. The first named applicant has previously worked in Malaysia, has family in Terengganu and has savings from his time in Australia. The unemployment rate in Terengganu was inline with the national rate before the pandemic and has subsequently seen only a slight uptick. There is no suggestion that the first named applicant’s employment prospects or ability to access governmental and non-governmental welfare services would be limited in a way that would differentiate him from other Malaysians. While I acknowledge the challenges his brother has faced in finding consistent work based upon these specific circumstances I find that the first named applicant will be able to find employment such that he can meet his and contribute to his family’s needs. For this reason, I find that the first named applicant does not face a real chance of serious harm or a real risk of significant harm arising from the economic circumstances he faces upon return to Malaysia.
Considerations – Second named applicant
I have considered the second named applicant’s claims relating to her fear of returning to Malaysia because of her involvement in a Bersih rally in 2015. The second named applicant admitted that she was not harmed and that there were no follow up repercussions since the rally. The second named applicant in her own assessment agreed when put to her that she would not face harm arising from her participation in the protest. Considering that she did not face harm in the year following her participation in the rally while she still remained in Malaysia and noting that the rally was estimated to include at least 25,000 people making the identification of the second named applicant among the crowd highly unlikely, I find that the second named applicant does not face a real chance of serious harm or a real risk of significant harm arising from her past participation in the 2015 rally.
I have also considered whether the second named applicant would participate in any future political activities. She has admitted not having participated in any other political activities while in Malaysia, though that could be because she was afraid as she saw others being arrested. But she has not contributed to any Malaysian cause while in Australia and now there are Bersih members in government following the historic 2018 change in government. But the second named applicant’s reason for participation in the rally, being the broken promise to develop the land, remains. For this reason, I found that the second named applicant may participate in future rallies. There is no indication that she would engage in any additional activities such as joining a political party or participating in violent rallies and as such I find that any future political activities the second named applicant engages with would be of a similar nature as those she had participated in the past.
Country information put to the second named applicant states that low profile protestors in peaceful protests face a low risk of discrimination. In addition, her own lived experience during a less open period of governance did not lead her to face any harm. For this reason, I find that the second named applicant does not face a real chance of serious harm or a real risk of significant harm arising from any future political activities as a low-profile protestor.
I have also considered the second named applicant’s fears arising from her husband’s borrowing from loan sharks. We discussed the fact that they had enough money to repay the loan and whether in such a case she would still fear harm from the loan sharks, to which she responded that she would remain scared. She suggested that they would demand more. I put to her that she could go to the Malaysian Muslim Consumer Association to seek help. She said that she didn’t know about it so I explained to her that the Malaysian Muslim Consumer Association provides services include intervening on behalf of the borrower by engaging with the loan shark in such a way that ensures their safety and that the agreements reached remain confidential.[16]
[16] Malaysian Muslim Consumers Association, >
Despite country information mentioned earlier showing gangs do carry out violent retributions to some borrowers who have not made repayments there is no country information that suggests that the partner of the borrower is harmed[17] such that it amounts to serious or significant harm and I note her lived experience once again was that she was not harmed despite coming face to face with the borrowers on more than one occasion. As such I find that the second named applicant does not face a real chance of serious harm or a risk of significant harm as a necessary and foreseeable consequence of removal to Malaysia.
[17] Reviewed CISNET, Google and Refworld
Arising from the evidence given to the Tribunal I have also considered whether the second named applicant faces economic hardship such that she would be unable to sustain herself or her family. The second named applicant has previously worked in Malaysia, has family in Terengganu and has savings from her time in Australia. There is no reason to believe that the second named applicant’s circumstances are such that she would be discriminated against or targeted in such a way that her employment prospects or ability to access government or non-governmental welfare would be compromised. The unemployment rate in Terengganu was in line with the national rate before the pandemic and has subsequently only seen a slight uptick. The second named applicant stated that she doesn’t want to live with her in-laws. This is a choice that she and her husband will need to make. Both of their parents are alive and have homes. They can choose to live with either of them in Terengganu or alternatively elsewhere. Based upon these circumstances I find that regardless of the choice she and her family make the second named applicant will be able to find employment such that she can meet her and contribute to her family’s needs. For this reason, I find that the second named applicant does not face a real chance of serious harm or a real risk of significant harm arising from the economic circumstances she faces upon return to Malaysia.
Considerations – Children
In considering the circumstances of the two oldest children I note that they faced bullying. The question I turn to first is whether the bullying amounts to serious or significant harm.

The harm the children gave as examples included bullying, being mocked, called names, having a headscarf pulled and being punched and kicked. The eldest boy described being hit such that there was swelling and a little blood, but he treated it himself. He also described having to be in a fight with another child. The second oldest child said that she had been mocked, called names, had her headscarf pulled off her head and was punched.
Were the children to return to their schools I accept that the bullying and associated attacks from other students would reoccur. While this behaviour is unfortunate, I find that the past examples of harm do not amount to serious or significant harm. This is not to suggest that punching, kicking and the rupture of the skin leading to bleeding can’t amount to serious harm but rather that based upon the subsequent actions of the children, namely that variously they didn’t seek any medical attention, returned to class immediately after or didn’t mention anything to others suggests that the severity of these actions upon them was light. This aligns with the actions of the teachers who reprimanded the students but did not want police involvement.
Considering the findings relating to the two eldest children and no additional evidence having being provided regarding any distinguishing features of the circumstances the two youngest would face I find that they too do not face a real chance of serious harm or a real risk of significant harm.
The applicants’ written submission was that they feared being without their parents if they had to return to Malaysia, but I note that the applicants gave evidence that they had remained in Malaysia while their parents were in Australia. They had lived with their grandmother during this period and the grandmother remains alive. Although it is unlikely that the Australian government would deport the children separately from their parents, I asked what they would do were they to face such a situation. The second named applicant said that if the children had to return then they would go back with them. The first named applicant also stated that he would go back. As the eventuality of the children returning alone is not a possibility based upon the statements of the parents, I am satisfied that the children will not face a real chance of serious harm or a real risk of significant harm for the reasons originally listed in their written application.
I asked the parents whether they had any further concerns for any of their children to which they responded that they did not.
Consequential considerations:
I now turn my mind to consider the situation faced by each of the applicants as they arise from the actions of the other applicants.
The first named applicant feared harm arising from his wife’s participation in a Bersih protest in 2015. I asked why he would face harm if he didn’t participate in any protest but only his wife did. He said that he couldn’t answer the question. The children in their application did not raise such a concern nor did the parents on their behalf nevertheless I have turned my mind to their situation as well.
Having found that the second named applicant does not face a real chance of serious harm or a real risk of significant harm arising from her participation in political rallies in the past or her possible future participation and there being no claim or evidence[18] to indicate that a partner who is not involved in political activities faces a higher level of harm I find that the first named applicant does not face a real chance of serious harm or a real risk of significant harm.
[18] I have reviewed Google, Refworld, CISNET
Regarding the possible impact upon the children considering that I have found that their mother does not face a real chance of serious harm or a real risk of significant harm arising from her past or future political activities and there being no claims nor evidence[19] to suggest that the children of Malaysians who participate in political activities at what I have deemed a low level are of interest I find that the children do not face a real chance of serious harm or a real risk of significant harm arising from their mother’s actions. Furthermore, I find that the mother would not be taken away from the children and as such the children do not face a real chance of serious harm or a real risk of significant harm.
[19] ibid
I have also considered the situation the parents face arising from their children’s case and whether the first or second named applicants could face harm as a result of their situation. The children gave evidence that they were being bullied and harassed at school. The parents become involved by discussing the situation with the teachers who responded positively but the situation did not change. The bullies at school did not threaten the parents, the teachers did not exhibit any anger to the parents. There is no reason to believe that the parents would face any harm arising from the children being bullied or harassed at school into the future. As such I find that the first and second named applicants do not face a real chance of serious harm or a real risk of significant harm arising from the children’s situation.
I asked the parents whether there was a reason why their children would be at risk for the loans the father took. The mother said that she was concerned for their safety. I put to her that she was never harmed and furthermore has the money to repay the loan. She responded that they are gangsters and she is still scared of them. Noting that the applicants’ mother and father have given evidence about their circumstances including that they have the funds to repay the loan, that they had not accessed support from the Malaysian Muslim Consumers Association[20] to help negotiate repayment, that they would repay the loan if the loan sharks confronted them and that the children told the Tribunal that at no stage had they seen the loan sharks let alone been harmed by them I find that the children do not face a real chance of serious harm or a real risk of significant harm arising from the father’s outstanding debt to loan sharks.
[20] Malaysian Muslim Consumers Association, >
I have also considered the circumstances the first named applicant faces collectively including that he has a debt from a loan shark, will need to sustain himself and his family, his wife has participated in a protest and may choose to participate in future protests and his children were bullied and harassed in the past and would be again. Individually, I have found that the circumstances do not rise to such a level that the first named applicant faces a real chance or a real risk of significant harm. When considered cumulatively and having turned my mind to consider how the circumstances could intersect and possibly amplify risks, I find that he does not face a real chance of serious harm or a real risk of significant harm.
I have also considered the circumstances the second named applicant faces collectively including that she has a husband who owes a debt to a loan shark, will need to sustain herself and contribute to her family, she participated in a protest in the past and may choose to participate in future protests and her children were bullied and harassed in the past and would be again. Individually, I have found that the circumstances do not rise to such a level that the second named applicant faces a real chance or a real risk of significant harm. When considered cumulatively and having turned my mind to consider how the circumstances could intersect and possibly amplify risks, I find that she does not face a real chance of serious harm or a real risk of significant harm.
I have also considered the circumstances the children face cumulatively, which includes that they will face bullying in their school at the same time their father will need to negotiate through an intermediary the repayment of a loan he took out and their mother will be participating in peaceful protests while collectively the family will be working hard to make ends meet. Despite there being a considerable number of issues impacting the applicants that the family will be dealing with concurrently, I find that the applicants do not face a real chance of serious harm or a real risk of significant harm.
Although only two of the four applicants appeared before the Tribunal and provided evidence the considerations and findings apply equally to all four based upon the parent’s evidence relating to the specific reasons they fear harm for their children being limited to bullying.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
There is no suggestion that the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
Senior 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.
…

[2020] AATA 5436

17 November 2020

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