1707532 (Refugee)

1707532 (Refugee) [2020] AATA 3432 (7 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1707532

COUNTRY OF REFERENCE: Malaysia
MEMBER:Alison Mercer
DATE:7 July 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 July 2020 at 4:19pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victims of loan shark – race – ethnic Chinese – threats from loan sharks – criminal gangs – employment – economic problems – internal relocation – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 7 December 2016. The delegate refused to grant the visa on the basis that she did not accept that his fear of returning to Malaysia due to an economic downturn in the country met the refugee or complementary protection criteria, and she did not accept that his life would be threatened due to a business failure if he now returned to Malaysia.
The Tribunal received a review application from the applicant on 7 April 2017, which was accompanied by a copy of the delegate’s decision.
The applicant attended a hearing by teleconference with the Tribunal on 6 May 2020.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Protection Visa Application
In his protection visa application, the applicant claims to be a citizen of Malaysia, stating that he was born in Melaka in Malaysia in [year]. He stated that he could speak, read and write Bahasa Melayu, Chinese and English. He further stated that he was of Chinese ethnicity and a Buddhist. The applicant indicated that he had never been married and left blank the response to the question of his occupation. He gave details of his secondary schooling and technical college certificate and his work history in [Industry 1] in Malaysia. He did not provide any evidence of his family composition.
The applicant further indicated that he arrived in Australia [in] November 2016 on a validly issued Malaysian passport and holding a visitor visa.
The Department’s records indicate that the applicant was granted a visitor visa on 29 October 2016, which was valid for 3 months from the date he entered Australia, [February] 2017. The applicant was granted a bridging visa A upon the expiry of his visitor visa.
Claims from Protection Visa Application
The applicant’s written claims can be summarised as follows:
·he sought protection in Australia so that he did not have to return to Malaysia because of economic problems in Malaysia which made it difficult for him to bear the expenses of his life. He started to get stuck with a [specified] investment and ultimately he had to bear a lot of debt, and was always followed by a lender to resolve it;
·if he returned, he believed his life would be threatened and he would be at risk. It was very stressful to settle everything;
·he had not experienced harm in Malaysia and did not seek assistance there, nor did he try to relocate within Malaysia;
·he answered ‘no’ to the question of whether he thought he would be harmed or mistreated if he returned to Malaysia and said ‘yes’ to the question of whether he thought the Malaysian authorities would protect him;
·he did not think he could relocate within Malaysia.
Department decision of 22 March 2017
The delegate accepted that the applicant was Malaysian and considered his claims to fear economic hardship and/or threats due to his financial situation if he now returned there (although the delegate noted that they were vague and lacking in detail). In doing so, the delegate also considered available independent country information on the state of the Malaysian economy and employment rate. The delegate concluded that this information indicated that the economic climate in Malaysia affected everyone and the harm the applicant feared would not be discriminatory or targetted at him for any of the refugee definition criteria or for any other discriminatory reason. While the delegate accepted that the applicant preferred to remain in Australia, as it offered better economic opportunities, this did not constitute persecution or significant harm, as set out in the definitions for a refugee and for complementary protection. Moreover, there was no obligation at international law for States to provide protection to people fleeing violations of economic, political or cultural rights.
Tribunal review application
As noted above, the applicant sought review of the above decision with the Tribunal on 7 April 2017. He provided a copy of the delegate’s decision with his application.
On 5 March 2020, the Tribunal wrote to the applicant to invite him to attend a hearing on 6 May 2020. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. 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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant attended the hearing by teleconference on 6 May 2020 and gave evidence to the Tribunal.
He told the Tribunal that he was a Malaysian citizen and did not have any other citizenship or residence rights. He confirmed that he completed the protection visa application himself, but a friend did assist him. This was a friend from Malaysia, who had already made his own protection visa application.
The applicant confirmed that he was born in Melaka in [year], that he was of Chinese ethnicity and a Buddhist, and that he had never been married. He further confirmed that he attended secondary school and then did [a specified] qualification and he then worked in this field, mostly in [Industry 1].
In relation to his family composition, the applicant said that his parents were alive but divorced. His father was in Melaka, while his mother was an Australian citizen, as she married an Australian after she divorced the applicant’s father, and she has lived here for many years. She was now [age] and had separated from her second husband. She and the applicant and the applicant’s [sister] all lived in Perth. The applicant said that his [sister] was also an Australian citizen, and came to Australia with his mother when she migrated. She was now married with her own family. The applicant said that he had [other siblings] in Malaysia[living in] in Melaka. The applicant said that 1 of his brothers ran his own business while the other was [an occupation]. They had been affected by the COVID19 pandemic as Malaysia was subject to movement restrictions.
The applicant said that he had visited Australia several times since he was [age range], when his mother migrated here. He estimated that he visited his mother and sister every 5 years or so.
In relation to the visitor visa he obtained in 2016 to most recently travel to Australia, the applicant said that he used a travel agent to obtain that visa. In response to the Tribunal’s query, the applicant said that he came to Australia at that time because he had previously purchased a franchise business ([in Industry 1)) which cost [amount] Malaysian ringgit (MR). As he could not obtain a loan for that amount from a bank, he borrowed the money from an unlicensed money lender (a loan shark or ‘ah long’). In response to the Tribunal’s query, the applicant said that he opened the franchise business around 2013 or 2014, and it operated for about 1 to 2 years. However, the franchise turned out to be like a scam, and most of the other outlets only remained open for 1 or 2 months. The applicant described it as a ‘hit and run’ franchise, and that it was ‘political,’ in that the mastermind behind the franchise scheme was from a political party, and thus this made it difficult for franchisees to get recompense. The applicant said that he had to close the business down because the economy was very weak around the beginning of 2016. By mid-2016, he had closed the business. In response to the Tribunal’s query, the applicant said that the paperwork related to the franchise and the closure of his business was all still in Malaysia. He estimated he lost about [amount] MR.
The applicant said that at the beginning, he made regular loan repayments but then he began to pay intermittently as the business deteriorated. The loan shark was not happy. He was charged very high interest (20 to 30% per week) and received threats at this home. He therefore just packed up his home and applied for the visitor visa to Australia. In response to the Tribunal’s query, the applicant said that at the time, he just intended to stay in Australia until things blew over. At the time he left, he estimated that he owed the loan shark about [amount] MR.
In response to the Tribunal’s query, the applicant said that the loan shark’s henchmen initially came to his shop and made a disturbance. Later, they came to his house after he closed the business down. They threw a dead chicken on his doorstep. In response to the Tribunal’s query, the applicant said that this had to be the loan shark and/or his henchmen, as he had no other enemies. He said that within 2 to 3 weeks of this, he came to Australia. He said that the loan shark did contact him again before he left the country but he ignored them – they came to his house but he refused to let them in.
In response to the Tribunal’s query, the applicant said that he did once go to the police but it did not work out well. He tried to make a report but the police made no response, and the loan shark kept hassling him while the police did nothing. It was the first time he’d made a police report, and therefore he was not sure what should happen. He left the country after he got an SMS demanding that he pay on time. He reiterated that the police really did not seem that concerned, and this was reflective of the police attitude generally, as he understood that his neighbour had reported an illegal gambling den to the police and they did nothing about it.
In response to the Tribunal’s query, the applicant said that he did not tell anyone of the problems he was having until he came to Australia. He then told his brothers in Malaysia, and his mother. He said that he was not that close to his brothers as they were not that communicative. The applicant said that his father was not really in the picture, as he had remarried and was not in a good financial position; in fact, the applicant gave him money sometimes, before he left Malaysia.
The applicant said that he never asked his sister or mother for financial assistance, and they never offered. His mother was providing him with accommodation in Perth and he could not really ask her for money to repay the loan shark. The applicant estimated that the [amount] MR that he still owed was equivalent to about AUD $[amount range] currently but then noted that he probably owed more than this due to the interest that would have accrued over the last 4 years. The applicant said that no one knew he had gone to Australia so the loan shark had not been able to contact him since he left Malaysia. In response to the Tribunal’s query, the applicant said that the rest of his family were not involved with the loan shark. He said that the loan shark did ask about his family but he said that he had no contact with then and did not provide any details to the loan shark. He had no knowledge that his brothers in Malaysia had been hassled by the loan sharks, though he said that he thought that 1 of his brothers had loans issues also although he was not sure whether it was connected to the applicant’s case or not.
The applicant said that before he came to Australia, he was aware of protection visas, because he knew people who had sought political asylum in Australia, so it was his intention to seek protection when he got here. However, he was not sure how to go about it or exactly how it worked. He had a multiple entry visitor visa that was valid for 12 months. When he met someone who had already made a protection visa application, he got that person’s assistance to do the same. In response to the Tribunal’s query, the applicant said that he initially stayed with his mother in Perth when he arrived. Once he got a bridging visa with permission to work, he moved to [another state] for some months to work for a [product] company. However, he moved back to Perth about 1 month ago as his work dried up. He was not working at present but was looking for work. In the past, he also did some [specified] work in Western Australia. When he was earning, he gave money to his mother regularly, and also sent money to his father. He had enrolled in an online [course] in order to upskill himself, and had about 9 months to go to complete it. In response to the Tribunal’s query, the applicant said that he had no real savings from his time in Australia. He received a $1,000 fine for [a driving offence] recently, when he relocated from [interstate] to Perth. His car was also road-worthied for having a broken side mirror.
The Tribunal asked the applicant what his concerns were about returning to Malaysia. He said that he was not sure whether his life would be threatened if he went back, if the loan shark knew he was back. Also, his mother was nearly [age], she was elderly and needed the applicant to look after her, as the applicant’s sister had her own family to look after. The applicant said that he also had a [brother] in Australia but he was not a responsible guy. In response to the Tribunal’s query, the applicant said that his mother was in good health and was able to live independently but he was not sure for how long that would be the case. She needed help with the maintenance of her house.
The Tribunal queried how the loan shark would know if the applicant returned to Malaysia. The applicant said that loan sharks had Triad associations and networks. He had heard of a lot of cases where loan sharks did track down people who had returned from overseas. The applicant confirmed that he still had an apartment in Malaysia but did not know what had happened to it, as he just locked it up when he departed Malaysia. The Tribunal indicated that it seemed implausible that he would not have checked on it. The applicant responded that his brother had checked on it about a year ago, and no one had broken in. When asked by the Tribunal why he had not arranged to rent it out, in order to generate income to repay the loan and/or support himself, the applicant said that all of his stuff was still there and it would be hard to arrange a lease from Australia. The Tribunal noted that it would seem relatively feasible for the applicant to get 1 of his brothers in Malaysia to arrange for his possessions to be stored and for a lease to be organised. The applicant said that he would not want any tenants to be hassled by the loan shark on his behalf. In response to the Tribunal querying why he would not sell or rent the apartment out to repay the loan, if he was so concerned about what he owed to the loan shark, the applicant said that it was too hard to make such a decision when he did not know whether he would be able to stay in Australia or not. It was too risky if he had to go back as he would have to completely start again there, without secure accommodation.
The applicant said that the loan shark took a copy of his ID card when he borrowed the money, and therefore he and his associates would know the applicant’s face. The loan shark had agents throughout Malaysia so he could be recognised, as this had happened to a friend of his. The Tribunal noted that it was approximately 5 years since he left Malaysia. The applicant said that the loan sharks had pursued people after even 10 years. They would not stop in order to get their loan back, even if it was not a huge amount for the loan shark. It did happen.

The Tribunal queried whether the applicant could relocate to a larger city, such as Kuala Lumpur, where he would be more anonymous. The applicant acknowledged this but said that he still feared that he would be traced. If he had taken out a bank loan, he could declare bankruptcy and the issue would be resolved, but loan sharks did not operate in this way.
The Tribunal noted that the loan sharks had not tried to seize his abandoned apartment or his possessions, which suggested that his outstanding loan was not a priority to them and he would no longer be of interest to them. The applicant responded that to this would cause the loan sharks more problems, to break into his place. The Tribunal observed that breaking the law in this way would not seem a problem to a loan shark given their whole operation was illegal and he had described them threatening him already.
The Tribunal then discussed with the applicant various sections of the Department of Foreign Affairs and Trade (DFAT) Country Report on Malaysia (issued 13 December 2019) on victims of loan sharks, which the Tribunal noted partly supported the applicant’s evidence (as it suggested that loan sharks operated widely but illegally in Malaysia and did threaten people who could not repay) but also partly indicated that there were avenues of potential assistance from the Royal Malaysian Police (RMP), commercial credit agencies and/or the Malaysian Chinese Association (MCA) (a political party who advocated for the Chinese Malaysian community).
The Tribunal noted that there was credible information that the RMP took loan sharking seriously and did investigate and prosecute loan sharks, and that credit agencies and the MCA had been able to broker settlements between loan sharks and their victims. The applicant said that he was aware of the MCA but had not heard of any credit agencies providing loans to settle loan shark debts. In any case, he doubted that he could get a credit agency loan given he had no assets or income or collateral. He had also heard that the MCA had actually been threatened by gangsters. He suspected that some of the credit agencies might actually be affiliated with the loan sharks and might not operate legally. The applicant expressed scepticism about whether the government could really address the loan shark problem as it had failed to deal with anti Chinese racist riots in 1969, despite their public pronouncements. He said Malaysia was going backwards, not forwards, in its development, unlike its neighbouring countries. There were still racist undercurrents there and he did not think that would have changed since he left.
In response to the Tribunal discussing with him the section of the DFAT report on Chinese Malaysians, the applicant said that he was also concerned about anti-Chinese sentiment in Malaysia, but his main reason for not wanting to go back was due to the outstanding loan. He noted that about 10 years ago, the government under Dr Mathahir inflamed racial tensions against Chinese Malaysians, and he felt hatred from some customers of his business – some boycotted his business while others were hostile or rude. He was not sure if this had changed since the new government had come to power; he conceded that it might have. When asked if he wished to add anything, the applicant said that he had nothing further to add except to appeal to the Australian government to let him stay in Australia. He said that he wanted to migrate here, hence his current online study, to improve his ability to contribute to Australia. The system here was better than in Malaysia and there was less racism. He and his mother also wished for him to remain here to look after her as she got older.
The Tribunal then took evidence by telephone from the applicant’s mother, [Ms A]. She gave her evidence without having heard the applicant’s evidence, and told the Tribunal that the applicant had had difficulty in Malaysia due to financial problems with loan sharks, and it was dangerous for him there. She said that she was only just surviving financially herself so she could not give him any financial assistance. [Ms A] said she was separated from her second husband and had to pay her mortgage. She did [a line of] work, which did not pay very well. She confirmed that she was [age] and her health was OK but said that she had been stood down from work due to the COVID19 pandemic and was currently on long service leave. In relation to whether her daughter in Perth could provide support, [Ms A] said that her daughter was recovering from [a medical condition] and had her own problems, as she lost her job when she was undergoing treatment. She was now working again, but only had a 6 month contract. [Ms A] said that she wanted the applicant to stay here with her as she was on her own and growing older. She could not manage the gardening at her place easily any more, and she was less worried now at night that the applicant was staying with her. She noted that she had been separated from the applicant since he was very young but now they were able to spend time together, and they both wanted this to continue.
Following the hearing, the Tribunal sent copies of the sections of the DFAT report of 13 December 2019 discussed above to the applicant for him to make any further comment on by 20 May 2020, if he wished to do so. The applicant did not respond by the due date, and has not made any comments or responded to date.
Findings and Reasons
Identity
The Tribunal accepts from the documentary and oral evidence provided that the applicant is a citizen of Malaysia, that he is of Chinese ethnicity and that his biodata and family composition is as claimed. It finds that Malaysia is the appropriate country of reference against which to assess his claims.
Summary of Claims
The applicant claimed that he could not return to Malaysia due to:
·    fear of being harmed by loan sharks over an unpaid debt;
·    discrimination and possible violence against ethnic Chinese Malaysians;
·    the poor economic climate in Malaysia; and
·    his family ties in Australia.
Credibility
As discussed with the applicant at the hearing, the Tribunal had concerns about various aspects of the applicant’s loan shark claims, which raises the question of whether the applicant fabricated these claims. However, the applicant gave relatively consistent and detailed oral evidence at the hearing regarding his claimed fear of harm due to an unpaid loan shark debt. Accordingly, the Tribunal considers that the applicant was generally credible in his evidence and has assessed all of the claims raised by him below. It has also noted where it did not accept aspects of his claims.
Country information
The Tribunal had regard to the following information set out in the Australian Department of Foreign Affairs and Trade (DFAT) Country Report on Malaysia, issued 13 December 2019:
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ECONOMIC OVERVIEW
2.9 The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2018, its real GDP growth was 4.7 per cent, while per capital GDP was USD10,942 (AUD14,630). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia is the world’s second largest producer and exporter of palm oil. Manufactured goods comprised 84 per cent of Malaysia’s exports in 2018. Malaysia is the Association of South East Asian Nations (ASEAN) largest energy exporter and income from oil and gas provides the government’s largest single revenue source. The drop in oil price in 2015 and 2016 negatively affected government revenues, but the rebound in oil prices in 2017 has seen revenues pick up again. The International Monetary Fund forecast economic growth of 4.5 per cent for 2019.
2.10 Malaysia’s economic performance over several decades has led to a significant reduction in poverty with the shares of households living below the national poverty line (USD 8.50 (AUD 12.26) per day in 2012) falling from over 50 per cent in the 1960s to less than 1 per cent today. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, which predominantly consists of Bumiputera. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. The UNDP’s Human Development Index ranked Malaysia 57 out of 189 countries in 2018, placing it in the ‘high human development’ category.
2.11 In October 2019, Prime Minister Mahathir Mohamad launched a new plan for sustainable and equitable economic growth in Malaysia called ‘Shared Prosperity Vision 2030.’ The plan is focused on providing a decent standard of living for all Malaysians, and narrowing the wealth gap and the urban-rural divide by 2030.
Unemployment
2.12 The Malaysian Department of Statistics reported a labour force participation rate of 68.6 per cent in June 2019, while in February 2019 the Malaysian Department of Statistics reported an overall unemployment rate of 3.3 per cent. In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera, and 2.4 per cent for Chinese Malaysians. In 2018, 28.6 per cent of the Malaysian labour force had tertiary level education, 55.6 per cent had secondary level education, 13.1 per cent had primary level education and 2.7 per cent had no formal education.
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Chinese Malaysians
3.8 The Malaysian Department of Statistics estimated there were 6.69 million Chinese Malaysians in Malaysia in 2018, making up around 20 per cent of the population. Chinese Malaysians are one of the largest overseas Chinese communities in the world, and are Malaysia’s second largest ethnic group. 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. Chinese Malaysians are concentrated in the west coast states of peninsular Malaysia, living in large urban centres, including within Kuala Lumpur and Penang, and the populous states of Johor, Perak and Selangor, where they comprise approximately 30 per cent of the population.
3.9 There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians. Chinese Malaysians freely participate in political life, including as ministers in the current cabinet and in opposition parties, but Chinese politicians have occasionally faced public criticism for interfering with ‘Malay rights’. Since the 2018 general election, the largest ethnic Chinese party is the Democratic Action Party (DAP) which currently holds 42 of the 222 federal parliamentary lower house seats. Prior to the 2018 general election, the largest Chinese party was the Malaysian Chinese Association (MCA), a member of the BN coalition. However, while the MCA won seven seats in the parliament in the 2013 election and 15 seats in the 2008 election, it won only one seat in the 2018 election. Chinese Malaysian community members advised that the 1MDB corruption scandal had galvanised anti-government sentiment among Chinese Malaysians (as well as others) and had led to greater political engagement.
3.10 There are relatively few Chinese Malaysians in the Malaysian civil service. The predominant use of the Malay language can be a barrier to Chinese Malaysian employment in the civil service, but does not preclude it (see Civil Service). In-country sources advise 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. However, Chinese Malaysians report discrimination against the community in the business sector and claim unequal access to certain industries due to Bumiputera ownership laws. Chinese Malaysians also claim the National Department of Islamic Development (JAKIM) commonly raids Chinese Malaysian halal businesses, particularly food and beverage outlets, in order to shut the businesses down or extort bribes (see Federal and State Law Enforcement Entities). Chinese Malaysians also report obtaining and maintaining a business license can be difficult, due to Bumiputera ownership quotas and pressures to pay significant bribes. Chinese Malaysians also claim Inland Revenue Board (IRB) raids of Chinese Malaysian businesses leading to fines are common. Sources claim that IRB raids for ‘verification purposes’ can close down a business for months at a time, with significant economic consequences including loss of income and frozen bank accounts.
3.11 Chinese Malaysians are eligible to access government-provided national primary or high school education, but generally choose to attend one of the 1,298 national-type Chinese primary schools that teach in Mandarin (see Education). This is reportedly usually due to concerns about the quality of public education and perceptions that the curriculum has a strong focus on Islam. Chinese Malaysians report there are insufficient national-type Chinese schools in urban areas to meet enrolment demands, and cite anecdotes of families driving their children to Singapore to access non-Islamic, Chinese schools. Chinese Malaysians report that members of the community living in rural areas have better access to national-type Chinese schools, although many families are unable to live in rural areas due to lack of economic opportunity. The 2019 Federal Budget specified funding for Chinese schools for the first time.
3.12 The Unified Examination Certificate is a standardised test for Chinese high schools. It is a recognised qualification for entrance into tertiary institutions around the world including Australia, the United Kingdom and the United States. The Malaysian federal government does not recognise this qualification for entry into Malaysian public universities (however, this is currently being reviewed at federal level), although the Sarawak state government does. Since the formation of private universities in Malaysia, Chinese Malaysians (as well as Indian Malaysians) have comprised the bulk of the students within non-government universities, although entry remains limited by economic opportunity. Some Chinese Malaysians do not receive a place in public universities despite having high matriculation scores. In-country sources report this is likely attributable to individual-based societal-level discrimination, rather than official discrimination, as practical application (in the form of individual admission decisions) can vary based on the processing official.
3.13 In July 2015, a disturbance referred to as the ‘Low Yat riot’ occurred at a popular retail centre in central Kuala Lumpur. More than 100 Malays shouted anti-Chinese slogans, destroyed property and attacked bystanders following social media reports that a Chinese Malaysian vendor had cheated a Malay man over a fake smart phone. Police detained 25 people for rioting, sedition and theft. Officials dismissed any fraud by the vendor, and downplayed racial elements, blaming the outburst on social media. DFAT understands this was an isolated incident, and not indicative of a broader trend of societal violence against Chinese Malaysians. DFAT is not aware of any significant recent incidents of a similar nature.
3.14 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.
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Victims of Loan Sharks
3.108 Loan sharks or ‘pay-day-financers’(unlicensed lenders, referred to as ‘Ah Long’ by the Chinese Malaysian community, ‘Chettiar’ by the Indian Malaysian community, and ‘Ceti’ in Malay), carry out money lending activities without a licence, charging high interest rates to do so. Loan sharks operate very publicly in Malaysia and, while the practice is illegal, advertisements listing phone numbers and offers of cash loans for RM10,000 – RM20,000 (AUD3,100 – AUD6,200) appear on public property, including lamp posts and utility boxes. Loans typically carry an interest rate of about 30 to 40 per cent per month, and can be as high as 15 per cent per day. In-country sources advise that loan sharks in Malaysia do not seek protection money.
3.109 Sources report loan sharks are entering into ‘sell and purchase agreements’ in Sabah, whereby the borrower’s house is used as collateral for the loan. DFAT is aware of reports of houses valued up to RM 1 million (AUD 345,311) being used as collateral for a loan of RM100,000 (AUD34,500). If the borrower defaults on their loan, the loan shark exercises the sell and purchase agreement to transfer the house into their name. Sources report lawyers are facilitating the sell and purchase agreements, described as a house sale agreement disguised as a loan agreement, in return for a cut of the house sale profits. Sources claim borrowers agreeing to sign their house over as collateral are under significant duress, or lack sufficient education to understand the agreement they have signed.
3.110 DFAT is aware of a case of an individual in peninsular Malaysia who engaged a loan shark to obtain a loan to repay their mortgage, signing the house over as collateral under a ‘sell and purchase agreement,’ after becoming involved in gambling following the death of their spouse. When unable to repay the loan shark, the individual’s family supported them to engage a formal credit agency to obtain a loan to repay the loan shark. DFAT understands loans ranging from RM200,000 to RM300,000 (AUD69,385 to AUD104,077) accompanied by payment plans have been arranged by formal credit agencies to repay loan shark debts. However, not all debtors may be aware of the availability of such services.
3.111 Sources report that an individual who is unable to service a debt from a loan shark risks threats or actual physical violence, having their home splashed with red paint (culturally understood as a symbol that an individual has defaulted on a loan shark and brought shame to their family), and/or having their families’ physical safety threatened. Sources claim that loan sharks engage gangsters to collect debts and harass and threaten borrowers and their family members, and those borrowers and their family members have been shot at gunpoint and had fingers cut off. Due to the illegal/underground nature of loan shark activity, DFAT is not able to verify these claims. There is significant societal shame associated with not being able to repay a loan shark. Sources report many people see suicide as the only honourable way out of being unable to repay a loan shark debt. DFAT is aware that those in debt to loan sharks have been counselled by intermediaries to place their family in a safe location and travel overseas to earn a foreign income to repay their debt faster, and to reduce risks and shame to their family.
3.112 DFAT understands that authorities tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice. According to local media, the Commercial Crimes Investigation Department reported 3,903 cases and arrested 2,698 people in relation to loan scams between January and November 2018, with total case related losses estimated at RM36 million (approximately AUD12.4 million). Local media also reports loan sharks have become more publicly visible and more ‘corporate,’ and have increased promotion of their services on social media platforms such as Facebook and WeChat in 2019. 3.113 The MCA’s Public Services and Complaints Department (PSCD) plays an intermediary role between loan sharks and Chinese Malaysian victims of loan sharks who are unable to repay their loans, and reportedly receives an average of 500 to 600 complaints regarding loan sharks each year. According to local media, the MCA reported that 16 cases of people owing loan sharks over RM2.11 million (AUD745,000) had arisen in the first 19 days of January 2019 alone. Local media also reported that in 2018, the PSCD of the MCA received reports of 364 loan shark cases with total loan claims amounting to RM25 million (AUD8.81 million), and that 80 per cent of the loan shark borrowers were members of the Chinese Malaysian community who were involved in illegal online gambling. In 2015, the PSCD of the MCA also reported over 70 per cent of borrowers in 214 cases were Chinese Malaysian. Sources report the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the one per cent government rate.
3.114 The PSCD of the MCA held a press conference in July 2019 regarding the case of a 28-year-old woman who had enquired about a RM5,000 (AUD1,760) loan advertisement she had seen on Facebook. The woman had reportedly shared some personal information, including bank details, but had allegedly rejected the offer of a loan due to the high interest rate payable. Nonetheless, funds were banked into her account, and she was later threatened by loan sharks to either pay up or be forced into prostitution. The PSCD of the MCA also cited the case of a 91-year-old woman, who was reportedly threatened by loan sharks in relation to her estranged son’s failure to pay back money he allegedly owed.
3.115 The Malaysian Muslim Consumers Association (PPIM), which provides services predominantly for the Malay community, was also involved in over 10,000 cases involving loan sharks from 2012 to 2016, in which around 70 per cent of borrowers were Malay. The PPIM maintains a Malay language website (ahlong.ppim.org.my) where people can report loan shark cases and which lists details of prior cases. Sources provide vastly differing views on the reasons individuals engage illegal moneylenders. Some claim that up to 80 per cent of borrowers are supporting gambling activities and other debts. Others claim borrowers are public servants trying to cover daily expenses such as children’s education, or businesses excluded from mainstream finance due to insufficient documentation, bankruptcy or a poor credit history.
3.116 The Moneylenders Act (1951; amended 2003 and 2011) gives police considerable investigative powers against alleged loan sharks. Police can visit, enter, inspect or search premises without a warrant, and seize moveable properties and business documents to assist with investigations against alleged loan sharks. Individuals involved in illegal moneylending activities in Malaysia can be convicted under Section 5(2) of the Moneylenders Act, 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. Police have made several recent high profile arrests and investigations of syndicates. In September 2019, the RMP arrested 21 people in Johor allegedly involved in syndicates illegally loaning money. In January 2019, the RMP arrested 13 suspects allegedly involved in a syndicate providing fraudulent loan applications resulting in total bank losses of RM10.35 million (AUD3.65 million); district police also arrested 11 members of a nationwide syndicate that had fraudulently taken funds from borrowers totalling RM1.3 million (AUD458,161). In November 2018, RMP arrested 21 people allegedly involved in a loan scam syndicate.
3.117 Very limited research is available on loan sharks and the individuals that engage these services, possibly due to their links to gangs and corruption. DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, their likelihood of seeking police protection, or the level of protection offered by police. DFAT assesses those who are unable to service debts to loan sharks, and their family members, can face societal discrimination due to familial shame, and may also face a real or perceived risk of harassment and violence from loan sharks and/or gangsters. However, DFAT notes formal credit agencies are able to consolidate loan shark debts and provide payment plans, and therefore engaging such agencies is an option to mitigate against potential risks posed to those in debt.
…
Royal Malaysia Police (RMP)
5.5 The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is 80 – 85 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
5.6 According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms including establishing compliance units within RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.
5.7 External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission, which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts.
5.8 The then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department in July 2014 to enhance police integrity and image. It sits within the RMP. Suhakam also receives complaints against the RMP, and has investigated police behaviour. The government is not formally required to consider Suhakam’s reports or recommendations.
…
Loan shark claims

The Tribunal accepts that the country information above indicates that loan sharks operate in Malaysia. As also noted above, despite some concerns, the Tribunal gives the applicant the benefit of the doubt in relation to this claim in general terms. It therefore accepts that:
·the applicant initially borrowed [amount] MR from a loan shark in his home area in 2013 or 2014 to enable him to purchase a [Industry 1] franchise;
·by mid-2016, his business had failed and he was unable to continue to repay the loan shark and thus started accruing interest;
·when he could not repay the principal, the loan shark’s henchmen came to his business and made a disturbance. On another occasion, they threw a dead chicken on his doorstep and they came to his house but he refused to let them in, following which he got an SMS demanding that he pay on time;
·the applicant reported that he was being harassed by a loan shark to the police but no action was taken by the police. The Tribunal acknowledges the applicant’s evidence that he had no contact with his family but considers that the loan shark and/or his henchmen would not simply have accepted this on face value;
·he left Malaysia in November 2016.
However, the Tribunal does not accept that the applicant would now face a real chance of serious harm amounting to persecution as a result of this loan. In reaching this conclusion, the Tribunal gives weight to the following factors:
·     the applicant left Malaysia approximately 3.5 years ago;
·     the applicant was not seriously harmed by the loan shark between mid 2016, when he defaulted on repayments, and November 2016, when he came to Australia;
·     the loan sharks have not contacted or harmed the applicant’s family in Malaysia since he left, nor have they attempted to seize or deal with his vacant property; and
·     there is no plausible reason to believe that the loan sharks would know if the applicant returned to Malaysia now, nor is it plausible that they would still wish to harm them if he did.
The Tribunal acknowledges the applicant’s claims that he was regularly visited by the loan sharks on several occasions between mid and late 2016, and that on one occasion, they came and made a disturbance at his business, and that on another occasion, they came to his house and left a chicken carcase, and that he also received an SMS demanding he pay up.
However, the Tribunal notes that to the best of the applicant’s knowledge, the loan shark and/or associates have not continued to visit his house from when he left Malaysia until now. The Tribunal considers it implausible that the loan shark or his associates would continue to seek the applicant so long after he left Malaysia (being approximately 3.5 years ago). The Tribunal notes that the applicant stated that 1 of his brothers in Malaysia might have had issues with a loan shark, although the applicant was not sure whether this was related to his own matter or not. The Tribunal finds that this claim is speculative at best, as it considers that it is implausible that the applicant’s brother in Malaysia would not have informed him if he (the brother) had been threatened on account of the applicant’s unpaid loan.
Finally, the Tribunal notes that the applicant might also be able to gain assistance from a credit agency (given his evidence is that he has an apartment in Malaysia still, which might be able to be used as collateral) and/or the MCA, which has a specific service dedicated to assisting ethnic Chinese Malaysians come to suitable arrangements in relation to loan shark debts. The Tribunal notes that the applicant expressed scepticism about whether credit agencies in Malaysia were somehow in league with loan sharks but notes that the available material does not suggest this. Moreover, the MCA appears to have had success in other cases in assisting those with loan shark debts (despite the applicant’s expressed fear at hearing that the MCA may be harassed by gangsters).
Having considered the totality of the evidence, the Tribunal finds that it is implausible that the applicant would now face harm from the loan sharks some 3.5 years after he left Malaysia (despite not having repaid the entirety of the loan), nor does it accept that the loan shark would know if the applicant had returned to Malaysia, or be able to locate him there if he returned now. The Tribunal notes the applicant’s evidence that the loan shark has a copy of the applicant’s ID card, and that the applicant’s belief was that the loan shark had Triad connections throughout Malaysia. However, the Tribunal does not find it plausible that this is the case, given the lack of any action taken in relation to the applicant’s property or family members in Malaysia in his absence. It notes the applicant’s evidence that he had heard of people (including a friend of his) being tracked down after 10 years, but gives little weight to this evidence as it considers that it is speculative at best in relation to the applicant.
The Tribunal finds that there is not a real chance that the applicant would face serious harm amounting to persecution from this source if he returned to Malaysia now, or for the reasonably foreseeable future.
Moreover, the Tribunal is satisfied that the applicant would be able to access effective protection measures should he return and receive threats. While the Tribunal acknowledges that the 2019 DFAT report identifies some problems with corruption in the Royal Malaysian Police force, that DFAT is unable to verify the level of protection offered by police and that authorities tend to be unsympathetic towards individuals who have accessed loan shark services, it notes that the RMP is generally described as professional, and also to have taken action against loan sharks on various occasions. The Tribunal acknowledges the applicant’s evidence that he lodged a police report about the loan shark prior to coming to Australia, but no further action was taken, and that the police failed to act on the applicant’s neighbour’s complaint about an illegal gambling premises. Nevertheless, the Tribunal considers that this is not necessarily indicative of the fact the police would refuse to take action in the event that the applicant made a further report in relation to being threatened and/or harmed. The Tribunal considers that this meets the requirements in relation to s.5L(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, a reasonably effective police force and an impartial judicial system.
Finally, the Tribunal considers that it is open to the applicant to relocate to another part of Malaysia on his return to avoid the harm he fears. The applicant has demonstrated, through his travel to Australia and his finding work here, that he is adaptable and resourceful. The Tribunal considers that he would be able to relocate to another area of Malaysia outside Melaka to avoid the harm he claims to fear.
The Tribunal rejects as implausible the contention that the loan shark from whom the applicant took the loan would have the capacity or willingness to track him down over this debt anywhere in Malaysia.
Ethnic Chinese claims
As discussed with the applicant at the hearing, the Tribunal accepts that ethnic Chinese and other minorities in Malaysia face some low level official discrimination due to the government’s affirmative action policies towards Bumiputera, which mainly affect the ability of ethnic Chinese to access government tertiary education, gain employment in the civil service and some business dealings. Notwithstanding this, the country information cited above indicates that Malaysian Chinese 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.
The Tribunal accepts that the applicant may have faced discrimination or rudeness from some customers of his business in the past, which may be related to his Chinese ethnicity. However, and while that is not to be condoned, the Tribunal concludes that there is nothing to indicate or suggest that the applicant has experienced or faces a real chance of suffering official or societal discrimination amounting to persecution (or faces a real risk of significant harm) or that he faces a real chance of suffering societal violence as a consequence of his Chinese ethnicity.
Economic claims
In summary, the applicant claimed that he would have difficulty supporting himself if he returned to Malaysia, due to Malaysia having a poorer economy than Australia.
The Tribunal notes that the applicant had a history of both employment and running his own franchise [Industry 1] business in Malaysia before coming to Australia. Although the Tribunal acknowledges the applicant’s evidence that there he has been out of this industry for some time since coming to Australia in late 2016, there is scant evidence before the Tribunal to indicate that the applicant would not be able to find similar employment if he now returned to Malaysia. Moreover, there appears no significant barrier to the applicant finding other work in a large city, such as Kuala Lumpur, although the Tribunal acknowledges the applicant’s view that living costs there would be more expensive. While the Tribunal accepts that the applicant’s earnings would be lower than he might be able to earn in Australia, it is not satisfied that they would be so low as to threaten the applicant’s ability to subsist in Malaysia.
The Tribunal is not satisfied that there is a real chance that the applicant would be denied the capacity to earn a livelihood of any kind, such that his capacity to subsist would be threatened. In reaching this conclusion, the Tribunal has had regard to the applicant’s claims that he is responsible for supporting himself financially. In relation to this issue, the Tribunal finds that he would be able to continue to support himself by finding employment in Malaysia (albeit at a lesser rate than he has been able to do in Australia).
Family Ties in Australia
The Tribunal accepts that the applicant’s mother and [sister] are both Australian citizens residing in Perth, and that the applicant has re-established close family ties with them since arriving in Australia in late 2016. It accepts that the applicant’s mother is nearly [age], and wishes the applicant to remain in Australia to look after her as she grows older, and that the applicant’s [sister] is recovering from [a medical condition]. While the Tribunal accepts the applicant and his mother and sister are sincere in their desire for the applicant to remain in Australia, it is not satisfied that the applicant having to depart Australia – in circumstances where he would be able to maintain contact with his Australian relatives – amounts to serious harm constituting persecution, or to significant harm, in the absence of any medical evidence of the psychological harm that the applicant would endure in those circumstances.
Refugee Assessment
Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that he will suffer persecution involving serious harm from loan sharks or any other party for one or more of the five reasons mentioned at s.5J(1)(a), if he was to return to Malaysia, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection Assessment
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, the Tribunal has noted that 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 relation to the ‘refugee’ criterion.[1]
[1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances individually and cumulatively, and the relevant country information discussed above, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as set out in s.36(2A) from loan sharks, or anyone else.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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, he does not satisfy the criterion in s.36(2).
The Tribunal notes that it is open to the applicant to seek Ministerial intervention under s.417 of the Act, if he believes that his circumstances are sufficiently unique, compassionate and/or compelling to warrant this, having regard to the guidelines on this topic on the Department’s website: >
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alison Mercer
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 3432

7 July 2020

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal