1712448 (Refugee) [2021] AATA 5072 (14 January 2021)
DECISION RECORD
DIVISION: Migration & Refugee Division
CASE NUMBER: 1712448
COUNTRY OF REFERENCE: Malaysia
MEMBER: Simone Burford
DATE: 14 January 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 January 2021 at 9:44am
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from money lender – former employee accused of keeping money repaid by clients – threatened, kidnapped and bashed – unable to repay money father borrowed to secure release – continued threats to parents until their deaths – no approach to authorities – credibility – delay in applying for protection – applied for student visa with no intention to study – new claims and evidence given at hearing – no supporting evidence provided – country information – effective protection measures – government and police actions against money lenders – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5J, 5LA, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33Any 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 25 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 14 December 2016. The delegate refused to grant the visa on the basis that he was not a person in respect of whom Australia has protection obligations as outlined in ss.36(2)(a) or 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 2 April 2020, 20 August 2020 and 15 September 2020 to give evidence and present arguments.
The initial hearing on 2 April 2020 was held by telephone. The hearing was held during the COVID-19 pandemic. At the time the hearing was conducted, the Tribunal registry was closed and the Tribunal was not undertaking in-person hearings. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. At that hearing the Tribunal discussed with the applicant whether there were any changes to his claims and the information on which he was seeking to rely in support of his claims.
The second hearing was scheduled to…
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CaseChat Overview and Summary
The legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether there was a real risk of significant harm if he were removed from Australia to Malaysia, engaging Australia's protection obligations. This involved assessing the credibility of the applicant's claims regarding debts, threats, kidnapping, and the effectiveness of protection measures available in Malaysia.
The Tribunal found numerous credibility issues with the applicant's evidence. These included inconsistencies in his claims about the nature of his debts, a significant delay in applying for protection after arriving in Australia, and the implausibility of certain aspects of his account, such as the circumstances of his alleged kidnapping and the lack of corroborating evidence for his debts and threats. The Tribunal considered country information indicating that while predatory lending practices exist in Malaysia, the government and police do take action against them, and various agencies offer assistance to borrowers. The Tribunal concluded that the applicant had not established a well-founded fear of persecution or a real risk of significant harm upon return to Malaysia, finding that his claims were not credible and that effective protection measures were available.
The Tribunal affirmed the decision not to grant the applicant a protection visa, finding that Australia did not have protection obligations towards him under the relevant provisions of the Migration Act 1958.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
As submitted by the applicant, country information also suggests that corruption can limit the effectiveness of police action against loan sharks. Some police are reported to work with loan sharks (for payment) to avoid investigations against them.[25] DFAT’s overall assessment of police and court process in Malaysia includes the following:[25] ‘The police inspector and the loan shark’ The Star August 2017, The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates 837 police stations across Malaysia. The InspectorGeneral 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, particularlyon 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.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 [EAIC], 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.…5.17 DFAT assesses that while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.Country information suggests that the Malaysian state recognises the threat that loan sharks represent and a number of government and non-government agencies are tasked with trying to prevent people engaging loan sharks, or to negotiate with loan sharks to settle debts, or to encourage the reporting of loan shark activities to the police.[26][26] ‘Malays most notorious for borrowing from Ah Long, says PPIM’, Free Malaysia Today, 5 July 2016, long-says-ppim/; ‘Loan shark menace worsens in M’sia’, The Sun Daily, 2 October 2013. ‘KL Consumer Safety Association - No need to fear the loan sharks’, Bernama (Malaysian National News Agency), 17 February 2015, type="1">The government’s Credit Counselling and Debt Management Agency (AKPK) offers credit counselling on financial status and budgeting to encourage people to use financial institutions under the purview of BNM, rather than loan sharks. The government in some provinces (Penang) has agreed to repay the loans of its own civil servants, minus interest, to the loan sharks.[27] The non-government Malaysian Muslim Consumers Association (PPIM) has a unit dedicated to resolving loan shark debt by renegotiating terms with the loan shark. It claims to have resolved thousands of cases (for a service fee). The unit’s webpage (ahlong.ppim.org.my) allows people to report their individual cases to the agency, providing a range of services in response to registered cases.[28] The NGO Malaysian Chinese Association’s (MCA) Bureau of Coordinating Government Affairs provides a similar service to renegotiate the terms of loans with loan sharks on behalf of borrowers.[29] The Tribunal notes that a number of the articles submitted by the applicant reported activities and cases being managed by the MCA and appeared to reflect attempts by the MCA to draw attention to loan shark activities and their attempts to assist people in dealing with loan sharks.[27] See Free Malaysia Today news, 2017, ‘Penang to help civil servants caught in loan shark web’, 6 February, shark-web/[28] A Google Translation of this webpage accessed October 2020 provides details on how the cases are approached: see also ‘Malays most notorious for borrowing from Ah Long, says PPIM’, Free Malaysia Today, July 2016 long-says-ppim/[29] ‘Many still found borrowing from loan sharks’, MCA website May 2017 type="1">The Tribunal asked whether the applicant or his family had approached any credit or debt management agencies or organisations and the applicant said they had not. The Tribunal queried whether the applicant could approach them for assistance in resolving any issues with loans on return to Malaysia and he said that he could never go and ask them for help as you needed to show income and he had none and he had credit card debts and he said he would definitely be bankrupted. The Tribunal asked if he had any evidence of that he was bankrupt, but he said he didn’t know, he could ask if his cousin could find something and send it to him. No evidence of bankruptcy was provided to the Tribunal. Further, he said the reporting of efforts by agencies to assist borrowers was for political publicity and the agencies were pursuing a political agenda.Consideration and findingsThe Tribunal has carefully considered the claims of the applicant in his original application for protection and his subsequent application to this Tribunal, individually and then cumulatively.Refugee criteria Debtor claimsCentral to the applicant’s protection claims are that he was accused of incurring debts to a former employer in Malaysia, which he was unable to repay. He claimed he also had debts from borrowing money from time to time including prior to leaving Malaysia for Australia. He is afraid he will not be able to continue to repay his debts if he returns to Malaysia, and fears harm from his debtors or new accusations of debts from another employer. In addition, he claimed he would be declared bankrupt.There are aspects of the applicant’s evidence about these matters which cause the Tribunal concern, including his failure to include key details at the visa application stage or to have provided consistent information regarding his claims at the review stage. For instance, the applicant claimed in his application that he borrowed money and had trouble repaying the money to loan sharks, giving rise to threats against him. However, before the Tribunal he claimed his main issue was with claims by his former employer that he owed monies which he did not actually owe. His application did not mention this. His application also failed to mention attempts by his father to settle the debts, any detail of the amounts claimed to be owed or the fact his friend had been kidnapped with him. Further, in his application he claimed he was planning to go to the police but did not due to threats from the loan sharks. However, he told the Tribunal that he did not report the threats and violence against him by the loan sharks because he did not have any confidence that the police would take action because they were corrupt and focussed on more serious criminal activity. Further, no mention was made in the application form of the applicant having borrowed money from other loan sharks or having being declared bankrupt, or at risk of being declared bankrupt.At the hearing, when asked why the claims made in the application were not consistent with those made before the Tribunal, the applicant claimed this was due to the actions of hisprevious agent who had since been de-registered. While the Tribunal accepts the fact of the deregistration, there was no evidence before the Tribunal that the deregistration was connected to the agent’s work for the applicant. Further, there was no evidence to support the applicant’s claim that the agent had failed to record his claims as instructed. As discussed with the applicant, the fact that he signed the form as submitted, on his own evidence doing so having understood its content, casts doubt on the credibility of his claim to have been misrepresented. On this basis, the Tribunal does not accept that he requested changes to the signed documents or that the claims detailed in the application do not reflect his instructions.The Tribunal expressed to the applicant other credibility difficulties with some aspects of his evidence. The Tribunal expressed a concern that the applicant delayed seeking protection until several years after arriving in Australia caused concerns regarding his claims to have left Malaysia due to threats of harm from loan sharks. During his period in Australia, the applicant applied for a further visitor’s visa and a student visa. He only applied for the protection visa once his student visa was cancelled. The applicant told the Tribunal his decision not to apply for protection earlier reflected his hope his father would resolve the issues with the loan sharks and his desire to be able to return to Malaysia, which he understood would not be possible if he applied for protection.The Tribunal did regard the applicant’s explanation to be plausible given he applied for the student visa, with the assistance of an agent, after his father’s death and at a time when he says he knew he would be unable to undertake study due to the loss of his father’s financial backing. Further, while he claims this was his only option, at the time he waited until that visa was cancelled before making claims for protection. Giving the applicant the benefit of the doubt, the Tribunal accepts he may have intended to do some form of study prior to lodging the student visa. However, on his own evidence, by the time that visa was lodged he acknowledged he knew he would not be undertaking study but ‘had no other option’. The fact the applicant applied for the student visa on this basis adds to claims regarding the credibility of his claims and evidence. While the Tribunal accepts that the applicant genuinely desires to remain in Australia, the Tribunal was concerned that the extensive delay in seeking protection, including while making applications for other visas, was not consistent with a genuinely held well-founded fear of persecution on return to Malaysia or with a claim to have left Malaysia due to harm or threats of harm.The Tribunal was concerned that the applicant was unable to provide any corroborative or supporting evidence of any debts owed in Malaysia, or threats made before or after he left Malaysia. The Tribunal also regarded the circumstances of the applicant’s claimed debts to [Employer 2] to be implausible. The applicant claims that he was approached with regard to debts owed to the company some 7 or 8 years after having ceased employment there. During that time, he had continued to live in the same area of Malaysia, as did his family members, and to work for the same employer he had been with since leaving [Employer 2]. There was no explanation as to why the company would suddenly have made such claims against him or why they would have been unable to locate him earlier. Further, the applicant claimed that the company accused him of having pocketed money paid by a client but later said he didn’t go to the police because the company produced a loan document purporting to bear his signature.The Tribunal also found the applicant’s evidence regarding threats by the loan sharks and his claimed kidnapping to be vague and implausible. The applicant claimed that the loan sharks called him but he ignored the calls because he knew he didn’t owe any money. The Tribunal regards it as implausible that if the applicant had worked enforcing loans as claimed he would ignore approaches from his previous employer claiming he owed money rather than attempting to resolve that issue directly to avoid possible enforcement measures. Further, he claimed the loan sharks located him via his friend yet he told the Tribunal he wasliving in a home leased in his name, which he was sharing with his parents (who later had to move out when the lease expired after his move to Australia). There was no explanation as to why the loan sharks would have involved his friend if the applicant’s address was registered (and therefore presumably able to be found), the loan sharks had his mobile number (on which they had already contacted him) and he was living at the same address he had been for some time. Further, he was unable to say who the captors were despite his father travelling to the house where he was held to pay them and having ongoing negotiations with them for the repayment of the debt.The Tribunal found other aspects of the applicant’s claims to be lacking in the detail which would be reasonably expected of someone in the applicant’s circumstances. The Tribunal was also concerned at the lack of detail the applicant was able to provide about his father’s efforts to resolve the issues with the loan sharks. He said he thought his father had made arrangement, but was unable to say what that was or whether his father made any repayments on the loan. Further, the Tribunal found the applicant’s claim to have been unable to pay a debt of MR50,000 inconsistent with his claim to have supported himself financially in Australia without working until 2018, even with the assistance of friends, and with his ability to save $8,000 in Australia, even with the assistance of his father who the Tribunal notes he also claimed was in debt from borrowing money to secure his release during kidnapping.Further, the Tribunal found the applicant’s claims that his family members had been subjected to ongoing threats forcing them to move and disown him to be inconsistent and lacking credibility. The applicant initially told the Tribunal his parents had lived in Negri Sembilan and visited him in Kalang (and vice versa). He later said his parents were living with him in Kalang and that following his arrival in Australia his parents and brother had to move due to the threats of loan sharks. However, when questioned about the circumstances of their move it appeared on the evidence that his father and mother had in fact moved to live with his other siblings when the lease on the house he was renting in Kalang expired after he left Malaysia. While he claimed the landlord was keen for them to move because the neighbours were disturbed by the loan sharks visiting the house, the Tribunal does not regard that claim to be plausible. His parents were elderly, and he had left the country. They had lived previously and at least in part on an ongoing basis in Negiri Sembilan when the applicant was living in Malaysia. The Tribunal considers it can be inferred on the evidence that they relocated because the lease expired and were likely to have the support of his other siblings. In any event, the Tribunal regards it as implausible that the applicant’s father, in particular, sought to escape harassment from loan sharks by moving to the town of his birth where the applicant said he had consistently resided throughout his life and where he would presumably have been easily located by loan sharks with the access to information and resources the applicant claims they had.Further, when initially asked about his family members, the applicant said he lost contact with his sisters when they moved away to marry. He made no mention of them disowning him due to his problems with loan sharks. Further, he claimed to have not had contact with his immediate family since his father’s death. This casts doubt on his claims they have been subjected to ongoing harassment from loan sharks. In any event, the applicant said the last contact the loan sharks had with his family was 2 weeks before his father died, which was in early 2015. This does not support his claim to be of ongoing interest to loan sharks in Malaysia or to his family having been the subject of ongoing harassment from them. In this regard, the Tribunal notes the applicant has contact with a cousin who he says informed him of his mother’s death. The Tribunal regards it as implausible that the applicant would not have been told of ongoing threats of violence against his family if such threats were being made.Even accepting the applicant’s evidence at its highest, the applicant’s family has not been subjected to any physical attacks or threats of violence against them since his father died in early 2015. The fact that the loan sharks have not sought repayment from the family despite their ongoing presence in the applicant’s father’s hometown cast further doubt on the claims regarding the existence of the debts.Further, none of the claimed harassment was reported to the police. The Tribunal also does not accept that the applicant would not report his kidnapping or an ongoing threat of permanent disablement or death to authorities in circumstances where he says the debt claimed is not owed to the company. Given the applicant claims he is at risk of death due to an inability to pay the loans, it is implausible and illogical that he would not seek the assistance of authorities to avoid that harm even in circumstances where he lacked confidence in the ability of the authorities to protect him at all times. This is an easy assertion to make, particularly when the issue was not tested. The evidence is that neither the applicant nor his family members ever attempted to make a report to the police.In any event, as put to the applicant at the hearing, the Tribunal regards it as implausible that the applicant or his family would not seek assistance from the police in circumstances where they claimed to fear for their lives due to threats over money they believe was not owed. As noted above, there is country information to the effect that police are generally unsympathetic to those who borrow money from loan sharks but there is no evidence, other than the applicant’s assertion, that police would fail or refuse to investigate reports of actual physical harm or threats of physical harm to him, his friends or his family members particularly where the monies are wrongfully claimed. The Tribunal notes in this regard that while the applicant claims the monies were said to be owed with respect to money from loan operations, he testified that [Employer 2] was registered to provide such loans and as such there is no basis on the evidence to think the police would not act with respect to complaints of physical violence against the applicant and his family or friends.The Tribunal has considered relevant country information outlined above, including that provided by the applicant, and accepts that it reflects that predatory lending practices in Malaysia can be associated with violence and crime, but also that the Malaysian police and government authorities have taken and continue to take prosecutorial action against such practices and violence, arresting large numbers of illegal and/or violent moneylenders in actions across the country. Further, the Tribunal finds there are organisations who offer assistance to individuals and businesspeople in circumstances such as the applicant has described and that such services may be available to assist the applicant on return to Malaysia. The fact the applicant has not attempted to avail himself of any support from non- government agencies operating in this space to assist creditors in a meaningful way or to complain to police tends to undermine his claim that he will face significant harm on his return to Malaysia. It can be inferred that if such threats were in fact made the applicant and his friends and family did not consider these threats to be sufficiently serious to warrant taking any of this further action.Having regard to the applicant’s claim that the loan sharks would still be looking for him, the Tribunal does not accept that this is the case. While the applicant’s evidence was that he could not approach the police due to a risk to his family, the Tribunal does not accept that this claim is credible when considered in the context of the applicant’s circumstances and the available country information. In particular, the Tribunal notes that in the absence of repayments by the applicant since at least his father’s death, the loan sharks have not sought to harm his family or to enforce the debt against them.Further, the Tribunal did not regard the applicant’s claims not to have sought assistance from debt management agencies due to having been declared bankrupt, having worked as a debt collector or due to political corruption to be supported by evidence or countryinformation. This is particularly the case in circumstances where the applicant says the debt to [Employer 2] was not owed by him and where he had no evidence to support his claim that he may have been declared bankrupt. His circumstances are comparable with cases reported in the media involving debt management agencies, on the country information before the Tribunal and there is no reason to conclude these organisations would not entertain a request for assistance from him or his family.The Tribunal also had concerns regarding the applicant’s claim to have left his subsequent employer at around the same time the threats were made because that employer became aware of the loan claims and lost confidence in him. The applicant claimed that because of this he decided to finish up working for [Employer 1]. However, the Tribunal does not regard it as plausible that he would choose to leave employment over an alleged debt he claimed not to owe and in circumstances where he claimed this placed him under financial strain.Given these concerns, the Tribunal does not accept the applicant was accused of stealing or borrowing money from his former employer, [Employer 2], in Malaysia. It does not accept he was threatened and kidnapped or that his father paid loan sharks for his release. It does not accept his friend was kidnapped. It does not accept the applicant has any outstanding debts, actual or claimed, to his former employer in Malaysia. Accordingly, the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Malaysia from his former employer, [Employer 2], or its associates, due to outstanding debts or for any other reason.The Tribunal has gone on to consider the applicant’s claims to have borrowed money from other unidentified people during an unspecified period prior to leaving Malaysia He claims to have borrowed money from unidentified money lenders and to fear harm from them on return to Malaysia. He also claimed that his father borrowed money to pay for his release and which had not been repaid prior to his death. The Tribunal has several concerns with his claims in this regard, for the following reasons.The Tribunal found the applicant’s evidence regarding these loans to be confused and vague. The applicant was unable to say who he had borrowed money from or for what amounts. He claimed to have borrowed small amounts every few weeks and that the loan sharks would only loan you half your salary. He said that he borrowed around 5 to 6 thousand Malaysian Ringgit[30] just prior to leaving Malaysia, and he said he had made no repayments on that money. He did not identify any threats received in relation to these debts or any attempts made to enforce these debts. However, he claimed that loan sharks seeking to enforce these debts would know if he returned to Malaysia and would harm him because he would be unable to pay the loans. Further, these claims were not raised in the application for protection or supported by any corroborating evidence.[30] Around 1,500 to 2,000 AUD in January 2021 Convert 5000 Malaysian Ringgit (MYR) to Australian Dollar (AUD) - MYR In AUD - 2021-01-06 - CountryCurrencyRates.comThe applicant also suggested that his father owed money due borrowing funds to secure the applicants release from the kidnappers. He did not provide detail of those debts or specifically claim that he was at risk on return because of them. In any event, given the applicant claimed his father supported him financially to come to Australia and provided him with funds to secure his student visa (and to provide funding to enable him to study) the Tribunal does not accept his father had unpaid debts to loan sharks arising from paying for the release of the applicant from kidnappers or for any other reason.Based on the vague nature of these claims, and the Tribunal’s concerns regarding the credibility of the applicant’s evidence, the Tribunal also does not accept the applicant has outstanding debts to unidentified people, including money lenders or loan sharks in Malaysia. As such, the Tribunal finds the applicant does not face a well-founded fear of serious harm from these unidentified people for any reason on return to Malaysia in the foreseeable future. It does not accept he will be harmed on return to Malaysia and will still have to pay his debt as claimed. His fears of persecution for this reason are not genuinely held or well-founded.The Tribunal also considered the applicant’s claim that [Employer 1] may make claims against him that he owes them money, similar to the claims made by [Employer 2]. The Tribunal notes this claim appeared to be purely speculative and was not supported by any evidence by the applicant. He did not claim [Employer 1] had made any claims or threats against him in the 6 years since he ceased working there nor did he establish any basis on which they would, other than because he claimed an unrelated employer, [Employer 2], had. The Tribunal does not accept that [Employer 2] made such claims or sought to enforce any debts owed by the applicant and it does not accept on the evidence that there is any real chance [Employer 1] would do so. As such, the Tribunal finds the applicant does not face a well-founded fear of serious harm from [Employer 2] for any reason on return to Malaysia in the foreseeable future. It does not accept he will be harmed on return to Malaysia by [Employer 1] or their associates. His fears of persecution for this reason are not genuinely held or well-founded.The Tribunal has also considered the applicant’s claim to be indebted to friends in Australia who assisted him when he did not have work rights or with his student visa application. The applicant did not suggest he was at risk of harm due to these debts but the Tribunal but the Tribunal has considered whether those debts would place him at risk on return to Malaysia. The applicant provided no evidence of debts in Australia. However, the Tribunal accepts the applicant may have been financially supported by friends in Australia and may feel indebted to those persons. The Tribunal considers that to the extent he is indebted to persons in Australia his employment and savings history suggests he would be able to meet debts to friends. In any event there was no evidence the applicant’s friends in Australia had attempted to enforce debts in Australia or would attempt to do so if he were returned to Malaysia. Based on the evidence before it, the Tribunal does not consider the applicant to be at any risk due to assistance, financial or otherwise, provided by friends in Australia were he to return to Malaysia.The Tribunal accepts the applicant’s evidence about his work history in Malaysia. It accepts he worked for around 12 to 14 years for [Employer 2] and [Employer 1]. The Tribunal also accepts that he worked in a debt collection capacity for those companies. Given his work and country information that indicates the widespread practice of unlicensed money lending in Malaysia,[31] the Tribunal accepts that the applicant may have borrowed money from different actors in Malaysia in the past, including small amounts as claimed. However, given the concerns it has with the applicant’s evidence in this respect, as set out above, the Tribunal is unable to be satisfied on the evidence before it that the applicant is in actual or alleged debt to the parties he has claimed, in the ways he has claimed.[31] DFAT Country Information Report, Malaysia, 13 December 2019 at 3.108–3.117.To the extent the applicant was claiming to fear harm due to being declared bankrupt in Malaysia, the Tribunal has also considered this claim but does not accept it. There is no evidence before the Tribunal that the applicant has been declared a bankrupt or any basis on which he would be so declared on return to Malaysia. In any event, the Tribunal notes that there is no evidence before it to suggest that the bankruptcy laws of Malaysia have been, or will be, applied to the applicant in a discriminatory manner. Accordingly, the Tribunal finds that this claim relates to a law of general application in Malaysia and has not and will not be enforced against the applicant in a way that would engage Australia’s protection obligations under the refugee or complementary protection criteria.[32]Economic circumstances in Malaysia[32] E.g.: Zheng Jia Cai v MIMA (Federal Court of Australia, French J, 13 June 1997) at [16]; Lama v MIMA [1999] FCA 918 at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620; Alamdar v MIMA [2001] FCA 1244; and SZVYD v MIBP [2019] FCA 648 at [14].The applicant stated that in Malaysia he will not be able to earn a living as it is hard to find another job in his country and he has been disowned by his family. He claimed he did not want to involve his cousin, with whom he is in contact, with his problems so he could not rely on her.At hearing the applicant said he worked consistently from leaving school until coming to Australia. He is currently employed in a supervisory position at [Employer 3]. The Tribunal accepts that if returned to Malaysia, the applicant would again be required to find employment. However, as the Tribunal does not accept he is being pursued by loan sharks, the Tribunal does not accept he would not be able to seek some assistance in re-establishing himself in Malaysia from his cousin who has assisted him in the past and with whom he remains in contact.While the Tribunal accepts that the applicant wishes to remain in Australia for economic benefit reasons the Tribunal finds that there is nothing before it to indicate or suggest that the applicant would be denied the opportunity to work or would be unable to find any work in Malaysia. While the Tribunal accepts the applicant would have to resettle in Malaysia, including finding employment, and may have less disposable income available to him if he returned to Malaysia, the Tribunal does not accept that he faces a real chance of suffering persecution involving serious harm for one or more of the five reasons mentioned in s.5J(1)(a) of the Act if he returned to Malaysia.Given these above considerations, the Tribunal finds that there is no real chance the applicant (as per the non-exhaustive) examples of serious harm mentioned at s.5J(5)(d)–(f) of the Act):·would suffer significant economic hardship that threatens his capacity to subsist;·would be denied access to basic services, where the denial threatens his capacity to subsist; or·would be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsistfor one or more of the reasons mentioned at s.5J(1)(a) of the Act, should he return to Malaysia.Complementary protectionIn considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.For the reasons set out above, the Tribunal has found there is not a real chance the applicant will experience serious harm from groups or individuals due to outstanding debts orhaving his capacity to subsist denied or threatened if he returns to Malaysia. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[33] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J. It follows that the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Malaysia for any of these reasons.[33] 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 Jagott JJ at [297], Flick J at [342].The Tribunal accepts the applicant has concerns about being able to find work if he returns to Malaysia due to his age, lack of family support and the general economic situation in Malaysia. The Tribunal accepts the applicant may have some difficulty in establishing himself at least initially, particularly in the circumstances of the COVID-19 pandemic. However, the applicant does not suggest that any person or group will seek to harm him for any reason relating to his economic situation or COVID-19. He claimed he was worried about getting a job and paying debts, however, for the reasons above the Tribunal does not accept he has outstanding debts or that he would be at risk of harm due to any assistance provided to him, financial or otherwise, by friends in Australia.Australian courts have held that complementary protection obligations are concerned with acts or omissions occurring in the relevant country and how a visa applicant might be treated by another person.[34] Accordingly, the Tribunal finds that any economic hardship the applicant might experience if removed to Malaysia would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing him to suffer significant harm.[34] GLD18 v MHA [2020] FCAFC 2.The applicant raised a concern about COVID-19. He did not express any specific concern regarding this with respect to his personal circumstances or any actions or responses by Malaysian authorities which may give rise to a risk of harm in this regard.It is acknowledged that the international public health crisis arising from the current COVID- 19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia. The Tribunal notes that this decision is not a decision on removal. However, the Tribunal is mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future. Accordingly, for the removal of doubt, the Tribunal finds that that there is no information before the Tribunal suggesting or supporting a claim that the COVID-19 pandemic or the Malaysian government’s response to it give rise to a well- founded fear of persecution on the part of the applicant on return to Malaysia. Further, there is no evidence that as a reasonably foreseeable consequence of the applicant’s return to Malaysia there is a real risk he would suffer significant harm on that basis. In this regard, the Tribunal finds that whatever measures may be applicable to the population of Malaysia generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s.36(2A) of the Act, as a reasonably foreseeable consequence of his being removed from Australia and returned to Malaysia. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).CONCLUSIONFor the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).DECISIONThe Tribunal affirms the decision not to grant the applicant a protection visa.Simone Burford MemberATTACHMENT - Extract from Migration Act 19585 (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 awell-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 ofserious 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 familyFor 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 familyFor 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.…