1720366 (Refugee)

The applicant, a Malaysian national, sought a protection visa in Australia, claiming a well-founded fear of persecution and significant harm if returned to Malaysia due to substantial credit card debt. The dispute centred on whether the consequences of his financial difficulties, including potential bankruptcy proceedings, constituted persecution or significant harm under Australian migration law. The matter was heard by Frances Simmons, a member of the Tribunal.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as a refugee, or alternatively, under section 36(2)(aa) as a person in respect of whom Australia has complementary protection obligations. Specifically, the Tribunal had to determine if there was a real risk that the applicant would suffer persecution for a Convention reason or significant harm as a necessary and foreseeable consequence of his removal to Malaysia.

The Tribunal considered the applicant's evidence regarding his substantial credit card debt and his fear of bankruptcy proceedings in Malaysia. While accepting that the applicant was likely to face bankruptcy proceedings, the Tribunal found no real risk of him suffering significant harm. The Tribunal noted that bankruptcy in Malaysia is generally enforced under a law of general application and does not ordinarily constitute persecution or discriminatory conduct. Furthermore, the Tribunal was not satisfied that the applicant would be jailed, subjected to torture, or cruel, inhuman, or degrading treatment or punishment. The Tribunal also found that any economic hardship resulting from bankruptcy would not amount to significant harm, as it would not threaten his capacity to subsist or deny him access to basic services or the capacity to earn a livelihood. The Tribunal also found the applicant had exaggerated his claims of threats from debt collectors and that his wife and children had not been subjected to serious harm.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy the criteria under either section 36(2)(a) or section 36(2)(aa) of the Migration Act 1958 (Cth).