1712341 (Refugee)

1712341 (Refugee) [2020] AATA 4485 (25 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1712341

COUNTRY OF REFERENCE: Malaysia
MEMBER:Anne Grant
DATE:25 August 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 August 2020 at 1:45pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victims of loan shark – race – Indian Malaysians – threats from loan sharks – physical assault – fear of killing – police corruption – internal relocation – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, 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 an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 May 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 6 February 2017. The delegate refused to grant the visa on the basis that the applicant could obtain effective protection in Malaysia from the harms he fears and also that there were not substantial grounds for believing that there was a real risk that he would suffer significant harm if he returned to Malaysia.
A hearing was originally scheduled for 29^th of April 2020, but due to restrictions on conducting in-person hearings due to the COVID19 pandemic, the applicant was invited to and agreed to attend a hearing by telephone conference which took place on 16 June 2020. The applicant was represented by his migration agent who also participated in the hearing. Prior to the hearing, the applicant’s legal representative had made a written submission and provided a copy of the Department of Foreign Affairs and Trade (DFAT) country information report on Malaysia.
At the commencement of the hearing, I informed the applicant that, given that the delegate had not had an opportunity to interview the applicant and had not discussed his claims with him; and because I was making a fresh decision in his review, I needed to be satisfied of each of the elements of the legislation for him to be considered a refugee or otherwise to be owed protection under the complementary protection obligations. The applicant was put on notice that all aspects of his claims were in issue.
At the conclusion of the hearing, the applicant requested fourteen days to provide further information supporting his claims. On 29 June 2020, the applicant provided a PDF copy of a statutory declaration signed by his parents, and dated 29 June 2020, discussed below.
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
The applicant provided a copy of his Malaysian passport to the Department with his application for protection. I have no reason to doubt the validity of this document. Based on the information before me, I find that the applicant is a citizen of Malaysia, which is also the receiving country for the purposes of the refugee and complementary assessments.
The issue in this case is whether the applicant is a refugee, and if not, whether there are substantial grounds for believing, that as a necessary and foreseeable consequence of him being removed to Malaysia, there is a real risk that he will suffer significant harm.
In his written claims, the applicant claimed, in summary, that he borrowed money from a lender in Malaysia and struck a lot of problems, so he could not pay all the money and interest. The lender was getting angry and starting to bully him and sometimes he sent people to his house to disturb him. The lender threatened to kill him, and he beat the applicant badly. The applicant claimed that if he returns to Malaysia, he fears he will be killed. He didn’t seek help because everyone was too scared. He couldn’t move anywhere else because he would always be noted, and he didn’t go to the police because he feared that the moneylender would become angrier.
On 11 June 2020, the agent’s representative provided a written submission in which he argued that (in summary):
·The applicant borrowed money from loan sharks in Malaysia for his business which later collapsed; the loan sharks threatened to harm him while in Malaysia if his loan is not repaid; he is unable to repay the loan and is fearful for his safety in Malaysia;
·As an Indian Malaysian the applicant is at risk of ‘more serious harm’ from the loan sharks “given” the country information about ongoing discrimination and abuse against ethnic minorities in Malaysia, and the Malaysian authorities are corrupt, protect loan sharks and discriminate against Indian Malaysians.
·The harm inflicted by loan sharks on loan defaulters in Malaysia amounts to significant harm as defined under the Migration Act and the authorities will not protect the applicant from this significant harm because of corruption in the police system. The applicant will face a threat to his life or liberty, significant physical harassment and ill treatment if he returns to Malaysia. [The representative referred to s.91R(1)(b) of the Act however the relevant provision in relation to applications lodged after 16 December 2014 is s.5J(5)]
·The applicant will be subjected to assault, significant harassment, and ‘various forms of punishment’ for his failure to meet financial obligations. This harm involves severe physical and or mental pain or suffering, an act which causes and is intended to cause extreme humiliation which is unreasonable, and also cruel or degrading treatment or punishment. The agent submitted that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the review applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
·Because of the corruption in the Malaysian police force the applicant could not obtain protection such that there would not be a real risk that he will suffer significant harm.
·It is not reasonable to expect the applicant to relocate to an area of Malaysia where there would not be a real risk that he will suffer significant harm. He could be located anywhere in Malaysia due to police corruption through the use of his national identity card.
·The applicant does not have a right to enter and reside in any country other than Malaysia.
At the commencement of our hearing, the applicant stated that the information in his written claims was correct. He gave the following additional information;
·He had a business [specified type] in Kuala Lumpur. He been doing that for around six years. Unfortunately, the business slowed down and then collapsed. He had borrowed money to keep the business going (in order to buy material to sell,) but then he was unable to repay the loan;
·He borrowed [amount]MR initially and paid that back within about six months during 2015. He borrowed a further [larger amount]MR in around December 2015. It was late in 2016 that the applicant’s business collapsed and he ran into trouble. He claims that the interest was 20% per month and he had to make payments every week.
·When he was unable to pay, the moneylender sent people to collect the money from him. They expected at least [instalment amount]RM each week. In August 2016, he tried to buy time from them, but they put pressure on him. They came to his place at the [business], entered without invitation and shut the door. They gave him a stern warning, telling him they will do something to him or his family if he didn’t pay. He asked for more time and promised to settle the loan as soon as possible. He undertook to clear it by January 2017.
·Despite making this promise, the applicant couldn’t meet the repayments. The money lender, or people associated with them started calling him, harassing and threatening to harm him. He was unable to find anyone who could help him, including friends or family. It was then that he fled the country.
·The applicant came to Australia [in] January 2017. He claimed that he came to Australia to keep his parents safe. When I asked what he meant by that, and how him fleeing a debt would keep his parents safe, the applicant said that if he wasn’t there, the moneylenders wouldn’t bother his parents.
·The applicant said that he believes he owes around [amount]MR and has only been repaying the money through a cousin by sending him around $AU[amount] per month for the last year. Before that, he didn’t have enough money to repay the loan, as he had to get established in Australia. He believes he has repaid around [amount]MR in total.
·The applicant clarified his written claims and said that in fact, the moneylender never did harm him; nor did they ‘injure him so badly that he had to be in bed for a week’ as is stated in his written claims. However, he believes now that the debt is even larger there is a real chance that they will kill or harm him if he returns to Malaysia.
·The applicant claimed that the moneylender is still searching for him. When I asked about whether the moneylenders had harassed his parents, the applicant said that they are safe: they can only talk harshly to his parents and won’t harm them. His parents have not reported any threats to the police.
·The applicant claimed to have heard numerous stories through his friends which demonstrate that moneylenders can harm them with no consequences, find them throughout the country, and that he believes that he will receive no protection from the police.
·The applicant claimed that the police in Malaysia are corrupt and working with moneylenders, and so will not provide any protection from harm. Even if they did arrest the moneylenders, they just release them soon afterwards and they will come after him even more angry than before. The applicant claimed that moneylenders operate all over the country and there is nowhere he could go where they would not find him. He also claimed that the moneylenders would be able to track him (using corrupt police officers,) anytime he uses a credit card or his national identification card anywhere in Malaysia.
·The applicant claimed that somehow, the moneylenders discovered he was in Australia. He believes that this was within a month of him coming here, and he said he believes that it was likely they learned this information from the authorities rather than from any other source. I noted that his parents knew where he was and the moneylenders had been in touch with them, and suggested that perhaps, they were the source of locating him. In response, the applicant said he was unsure of how the moneylenders discovered where he was.
·The applicant claimed that he doesn’t want to return to Malaysia until he has repaid the debt. I noted that it seemed unlikely that he would ever repay the debt based upon the amount he claimed he owed, the interest that has accrued, and the repayments he has been making since 2019. I noted that the maths suggested he could never repay the debt – given his evidence that the interest rate was 20% per month. The amount he claimed to be sending back to Malaysia would not actually cover the interest payments and would never reduce the principal. The applicant suggested that once he has repaid an amount equal to the principal he could possibly negotiate on the interest. He repeated his desire to stay in Australia until he could repay the debt.
·The applicant said he had no reason to fear harm in Malaysia apart from his fear of harm due to the moneylenders. However, when it was noted that his representative had also submitted that he would be subjected to discrimination due to his Indian ethnicity, the applicant agreed. He claims that he fears discrimination as a minority in Malaysia. He said that Indian citizens don’t get equal support and education and cited one occasion where he applied for a loan but was refused. He asked why he had been refused and he was told officially that it was due to him being from a minority.
·I discussed the country information in DFAT’s report (which the applicant had also provided to the Tribunal) generally at hearing, noting that it did not support a finding that ‘all police’ in Malaysia are corrupt, or that all police would ignore the applicant’s report of harassment or assault, if that occurred when he returned. The applicant’s representative argued that even if all police officers were not corrupt, the applicant had no means of identifying those officers who would provide him with assistance and who were not corrupt. In any event, even if he could locate some police officers who would be prepared to assist him, given the levels of corruption, the representative argued that it was a certainty that those officers will be overruled by corrupt officers in a higher position. The applicant agreed, saying that he was not prepared to put his life at risk to see whether he could be protected in Malaysia.
·It was noted that the country information provided by the applicant suggests that the Malaysian police are considered to be relatively efficient although they are affected by some corruption and lack of resources. I also noted that there were multiple police operations and actions in Malaysia aimed at reducing moneylender operations and protecting citizens from such people prone to violence over recent years and that I might consider this to suggest that the applicant could obtain protection from the harm he fears, should he encounter difficulties on his return to Malaysia. Both the applicant and the representative argued that the police are too corrupt in Malaysia; and they did not accept that the applicant could obtain effective or any protection from the moneylender.
·The applicant’s representative argued that the country information reflects that the loan shark operates all over the country and therefore there is no part of Malaysia where the applicant could be safe. I noted that I was troubled that the arguments being put before me seemed to suggest that all moneylenders in Malaysia are members of ‘one’ homogenous organisation - “part of one group” or body. I noted that the country information reflects that moneylenders are composed of many small ‘businesses’ or organisations, including from different and within different ethnic groups. They are not one entity operating throughout the country as a single, powerful unit, as was argued by the applicant and his representative. In response, the applicant’s representative suggested that I had misunderstood the country information. He argued that it is the case that the moneylender can obtain official support and information throughout Malaysia from corrupt officers, and that the applicant would be unable to relocate to avoid the harm he fears.
·The applicant noted that he could not be guaranteed safety because he doesn’t know where the good police are and they could not be with him at all times. It was observed that the guarantee of 24-hour safety was above that which was expected to amount to ‘effective’ police protection. The applicant said he was not prepared to risk his life to find out if protection was available.
On 30 June 2020, the applicant provided a statutory declaration signed by his parents on 29 June 2020 and witnessed by a lawyer in Selangor. The content of the declaration is brief and as follows:
“We are the parents of [the applicant] Nric no:[provided] and Passport No [provided] who has to leave the country due to constants harassment, being pressured by the debt hoarders which have threatened his life.
As to date we are constantly being pressured for the debts he owed. These have resulted extensive damage to our life. These debt collectors are being extremely notorious and we fear of our safety of our life and our sons life..”
Consideration
I have carefully weighed the applicant’s evidence, his written claims, the submissions made by his representative and also the declaration he sent in from his parents. During the hearing I discussed with the applicant several concerns which arose around aspects of his evidence about the debt, including the amount and terms of the debt and whether he could ever hope to repay it, the plausibility of the moneylender’s ‘business practice’ being to kill or seriously harm people who don’t pay, and inconsistency in his evidence about the harms he and his parents had experienced. I also raised with the applicant and his representative my concern about those of his claims which seemed to suggest that the money lenders referred to in the country information are all part of one ‘trans-Malaysian’ single entity, which had effectively corrupted government authorities throughout the country and had ‘links’ in all parts of the country.

I accept that the applicant borrowed money from a moneylender as part of his business activities, and also, though I cannot be satisfied about the terms of the debt, for the purposes of this review, I have given him some benefit of the doubt and accept that he fell behind on the debt. I accept that he may have been harassed by the moneylenders in order to ‘encourage him’ to repay the money he owed. However, having considered his evidence overall, I am of the view that the applicant was exaggerating the amount he borrowed and still owes, the terms of the debt, and also the threats made by and the harms he fears from the moneylenders on returning to Malaysia.
At hearing, the applicant gave evidence which contradicted his written claims that the moneylender had beaten him: he said that the money lender had not ever physically harmed him, though he claimed that they came to his place of work to demand payments resume and made vague comments about consequences for he and his family if the contract was not honoured. I prefer and accept his oral evidence on this point. I find that the applicant has not experienced any physical harm from the moneylender prior to leaving the country despite being several months behind on his loan. I accept that he received phone calls and on one occasion a visit from the moneylenders demanding that he honour his debt requirements, but he was able to put them off, advising that he would make arrangements necessary in due course. I do not accept that the applicant was ever threatened with physical violence or that he was subjected to physical violence at the hands of the moneylender or people associated with them.
I also found the applicant’s evidence about the effect of his debt on his family to be internally inconsistent. He claimed that the money lender would go after his family; but also said that he was protecting them by leaving the country. When I asked how him leaving without honouring his debt would protect his family, the applicant said that the money lender would leave his parents alone if he was gone. However he later said that his parents were still having ‘trouble’, and has now provided a declaration from his parents, which suggests that they are ‘being pressured’ for the debts he owed and have suffered ‘extensive damage’ in their lives.
I accept that the statement by the applicant’s parents was made by them to support the applicant’s claims for protection. I accept as plausible that the applicant’s parents have been ‘pressured’ since he left about any debt owed by the applicant. However, the statement gives no details of what they mean by ‘constantly’ or by what ‘extensive damage’ they have experienced, and what action they have taken to protect themselves from the money lender, or even if that was in fact necessary. If the matter were as serious as the applicant claims, (and he was not in any doubt that I had concerns about the plausibility of his claims), I would expect his parents to provide more detail in this declaration, particularly in light of his evidence about the moneylender’s propensity for violence. I place some limited weight on the letter from the applicant’s parents as support for him having borrowed money which remains outstanding, and that the moneylender has pressured them about the loan. I do not accept, after considering that letter, that the information and evidence before me establishes that the applicant’s parents have suffered physical threats or harm at the hands of the moneylender, and I find that they have not.
I do not accept the applicant’s evidence about the size of the debt or the interest on the loan. After seeking clarification from the applicant at hearing, my most serious concern is the lack of plausibility in the mathematics behind the applicant’s claims. If, as the applicant claims, the debt was [amount]MR originally, it would be even higher in January 2017 when he left Malaysia. Using the original borrowed sum he claims, the interest rate was 20% per month ([amount]MR). Over one year, the debt would increase by [amount]MR and even if he only owed [amount]MR at the time he left, he would now owe close to [amount]MR in interest (presuming interest is calculated only on the principal and not on the accumulated debt) plus the original [amount]MR. Despite this, his evidence was that he thought he currently owed around [amount]MR. It can be seen from these calculations that the applicant’s evidence about the amount and terms of his debt are internally illogical. Additionally, his claim that he was expected to pay [instalment amount]MR per week before falling into arrears calls into question his claim that the loan was as large as he claims or had an interest rate of 20% per month. A repayment that size would neither repay the interest nor the principal on an $[amount] loan. The applicant claimed to be unaware how much he had repaid prior to leaving, and said he believed he has paid around [amount]MR since he started sending money from Australia. Even this amount seems unreliable – he gave evidence that he had been paying AUD$[amount] per month ([amount]MR) since sometime in 2019. At only 10 of the supervening 17 months between 1 January 2019 and 1 June 2020, the applicant would have repaid close to [amount] MR. After considering all of the information provided by the applicant and my concerns about it, I do not accept the applicant’s evidence about the interest, the repayments and the amount of the debt borrowed and outstanding to be reliable. I also do not accept his evidence about the amount repaid in Australia to be reliable.
As noted above, I sought clarification about various aspects of the applicant’s evidence at hearing, noting that the business model of the moneylender appears self-defeating – that is, they charge high interest, ensure the repayments don’t even cover the interest, then according to the applicant threaten, disable or kill the borrower when they fall behind. I asked the applicant what he thought the moneylender gained if they lend money never expecting it to be repaid, or killed their borrowers before they were repaid. He claimed in response that they make their money from the interest. I noted that in the example of his own case, the repayments he made (even the ones mandated by the moneylender) would not ever have even covered the interest. The applicant responded that, once he has repaid an amount equal to the principal borrowed, he could probably negotiate an agreement about the interest. He asked for time to stay in Australia so he could repay more of the debt. I noted during the hearing, that if the interest rate were 20% per month, the amount the applicant claims he is sending back to Malaysia suggests that he will never be in a position where even the interest debt is reduced. The applicant did not respond.
After considering his evidence overall, I consider that the applicant is overstating both the size and the interest components of any debt he owes and I cannot be satisfied of the true size and terms of the debt owed by the applicant. Taking into account that he has made some repayments since he has been in Australia, (though the applicant’s evidence about when such payments were made and how much those payments were was vague) I am therefore not satisfied that any debt he owed has actually increased since he departed Malaysia. Based on his conduct both before and after he left the country, and his efforts to repay the loan since being in Australia, I do not accept that the applicant has a debt of [amount]RM as he claims or that is at a level where the persons he borrowed from would seek to harm him or his family if he returns to Malaysia. In reaching that conclusion I have taken into account the evidence as a whole and the likelihood that he has and would continue to repay whatever is outstanding by instalments or otherwise, and that his family are known to the moneylenders but despite some harassment have not otherwise been harmed by the moneylenders whilst he has been in Australia. I turn to consider whether the applicant has a real chance of being harmed by the moneylenders on return to Malaysia, due to his failure to repay a debt (of unknown size).
The country information suggests that Malaysian moneylenders operate throughout Malaysia and that they can be engaged in acts of physical intimidation and violence against borrowers who do not pay. Nonetheless the country information also reflects police efforts over many years seeking to limit and curtail the illegal and violent activities of moneylenders, including referring disputes for negotiation, arrest and imprisonment of violent offenders, and organised operations aimed at shutting down different organisations engaged in crime and moneylending practices.[1] I have also considered the representative submission suggesting that the applicant’s ethnicity means he is more vulnerable to the loan shark because of ‘ongoing discrimination and abuse against ethnic minorities in Malaysia, and that the Malaysian authorities are corrupt, protect loan sharks and discriminate against Indian Malaysians.’
[1] DFAT report paragraphs 3.108 to 3.117
Even though I am not satisfied of the amount borrowed, the terms or the outstanding balance, I accept that, if the applicant owes any money to the moneylender on his return, the moneylenders will most likely resume their demands for him to continue repaying that debt. They may harass him by phone and or by visiting him in person to make arrangements for the debt to be repaid. I have taken into consideration the country information which suggests that an individual who is unable to service a debt from a loan shark risks threats or actual physical violence and or having their families’ safety threatened – but I consider that the individual circumstances must also be considered. I note my findings that he has exaggerated the size and terms of the debt and the consequent harms he fears and about the historical behaviour of the moneylenders (including that involving his parents). The information and evidence before me does not satisfy me that the moneylender is as aggressive or prone to physical intimidation and violence as claimed by the applicant (even though such behaviour may be possible in some cases as referred to in the country information.) I have also taken into account that he has been making some repayments since he has been in Australia. Even if the applicant faces a demand for payment and some harassment from the moneylender on his return, (as he has in the past) I do not accept that it would be at a level which would involve causing him ‘serious harm’. In any event, after considering all of the information and evidence before me, I do not accept that there is a real chance that the applicant will suffer persecution from a moneylender on his return to Malaysia due to his having an outstanding debt, now or in the foreseeable future.
Fear of harm on the basis of his Indian ethnicity.
The applicant claims that he will also suffer harm because Indian Malay citizens are discriminated against in India. He gave an example where, on one occasion, he was refused a loan and was told that it was because he was from a minority ethnic group. He feared that would happen again on return. He did not provide any other experience of having experienced harm due to his ethnicity in Malaysia, or describe any other feared harms on account of his ethnicity, despite being given an opportunity to do so.
I note and accept as reliable the information in DFAT’s report (provided by the applicant in support of his claims), on the issue of the applicant’s claims to fear harm of any kind due to his Indian ethnicity in Malaysia. In particular, as generally discussed at hearing, I note paragraphs 3.15 – 3.21 of that report and DFAT’s conclusion that: “DFAT assesses that Indian Malaysians face low levels of official discrimination when attempting to gain entry into the state tertiary system or the civil service. Indian Malaysians involved in ‘gangsterism’ face a moderate risk of violence.” I have also considered the representative submissions on the issue of the applicant’s Indian ethnicity, referred to above.
The applicant did not provide additional information at hearing suggesting he had been significantly harmed, denied work or otherwise suffered harm on account of his ethnicity apart from one occasion where he believes he was discriminated against in applying for a loan because of his ethnicity in Malaysia, despite being given an opportunity to do so. It was put to the applicant that the country information does not support his claims that he faced a real chance of persecution on account of his Indian ethnicity. The applicant responded, as I have noted, only that he once was refused a loan and was told it was because of his ethnicity, and that might happen again. I consider that being refused a loan constitutes very low level harm and that even if it were to occur again because of his ethnicity, I am not satisfied that it involves causing the applicant serious harm as required by s.5J(4)(b). In any event, based on the information and evidence before me about the applicant’s past lack of experience suffering persecution (including in the form of discrimination) on account of his ethnicity, and taking into account the country information, I find that the applicant has not established and I do not accept that there is a real chance the applicant will suffer persecution in Malaysia because of his Indian ethnicity, now or in the reasonably foreseeable future.
Conclusion on 36(2)(a) consideration
I have found that there is not a real chance that the applicant will suffer persecution in Malaysia from the moneylender or from unknown members of the Malaysian community because of his Indian ethnicity. I have considered those claims individually and also cumulatively. I do not accept that the applicant’s ethnicity increases his chance of harm from the moneylender in any way; nor that his having borrowed money increases his chance of harm due to his ethnicity. I conclude that the applicant does not have a well-founded fear of persecution in Malaysia for any reason. The applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
The applicant claimed to fear harm in the form of discrimination from unknown members of the Malaysian community on account of his ethnicity. I am not satisfied that the harm he fears due to his ethnicity (which he described as discrimination in the provision of financial services on one occasion and which he fears may happen again) satisfies the definition of significant harm as it is of a low level and involves none of the types of harm in s.36(2A).
In any event, I have found that there is not a real chance that the applicant will suffer serious harm on return to Malaysia from unknown members of the community due to his Indian ethnicity. I refer to and rely on my findings above and, bearing in mind that the real risk test is the same as the real chance test, I find that there is not a real risk that the applicant will suffer significant harm because of his ethnicity as a necessary and foreseeable consequence of him being returned to Malaysia.
In relation to his moneylender claim, I have found that there is not a real chance that he will suffer serious harm from the moneylender on return to Malaysia; and that the applicant has exaggerated the size and terms of any debt and the risk of harm. I rely on those findings and repeat them here. I am not satisfied, based on my findings about the exaggeration of the size of the debt and the risk he faces, that there is any risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, or that he will be subjected to torture if he is returned to Malaysia.
I have found that the applicant may be subjected to demands to repay the debt, and potentially to harassment by phone call or in person designed to intimidate him into paying what he owes. I have accepted his evidence that the moneylender did not in the past physically harm him. Whilst they may have harassed his parents since he departed, I have found that the money lender has not physically assaulted his parents or threatened them in that period.
The definition of ‘cruel or inhuman treatment or punishment’ in s.5 of the Act states that it means an act or omission by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person or where ‘pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission would reasonably be regarded as cruel or inhuman in nature.’ The definition in s.5 in relation to ‘degrading treatment or punishment’ states that it means an act that causes, and is intended to cause, extreme humiliation which is unreasonable.
I have accepted that the debt collector called on the applicant at his workplace in a manner which was designed to intimidate him into paying the debt. I find that being harassed to pay an outstanding debt by phone calls and in person visits (if that occurs) would not cause the applicant (or his parents) pain and suffering which could be described as severe pain or suffering, or cruel or inhuman treatment or punishment or even degrading treatment or punishment. In all the circumstances, and bearing in mind my findings that the applicant has exaggerated the amount borrowed and the terms of the debt and also the harm that he fears, I am not satisfied that the harms faced by the applicant from the money lender if he returns to Malaysia satisfy the definition of significant harm in the legislation. I find that there is not a real risk that the applicant will suffer any of the types of harm in s.36(2A) if he is returned to Malaysia due to his having a debt outstanding to illegal moneylenders.
I have considered the applicant’s claims individually and cumulatively. I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Malaysia, the applicant will suffer significant harm from any person or authority. I am 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, the applicant does not satisfy the criterion in s.36(2).
The Tribunal affirms the decision not to grant the applicant a protection visa.
Anne Grant
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 4485

25 August 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction