1721987 (Refugee)

1721987 (Refugee) [2023] AATA 1274 (13 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1721987
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Peter Katsambanis
DATE:13 February 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 February 2023 at 2:13pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – political and economic issues and capacity to subsist – father’s and brother’s bank loans in home country and applicant’s in home country and Australia – late, unsupported claim that brother also borrowed from loan shark – arrived on tourist visa intending to work – no involvement in politics, past harm or fear of future harm – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), (4)(b), (5), 36(2)(a), (aa), 65, 424(2)
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 4 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 6 July 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 6 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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 (Cth) (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 issues in this case are whether there is a real chance that if the applicant returns to Malaysia he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, 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 purposes of s 36(2)(aa) of the Act.
Protection Visa Application
In his protection visa application form, the applicant stated that he was born on [Date] in Terengganu, Malaysia. He is of Malay ethnicity and Muslim religion. He has never been married and has no children. The applicant did not provide any details on his application form about any family members either in Malaysia or elsewhere.
The applicant claimed that he arrived in Perth [in] May 2017 on a valid Malaysian passport and as the holder of a valid Australian visitor visa. He provided a copy of his Malaysian passport biodata page to the Department. He claimed that he had never previously travelled to any other country.
The applicant provided no details on his application form about where he had lived in the past in Malaysia. He also provided no education or employment details in Malaysia. He stated that he was currently living in a suburb of Perth and that he was currently unemployed in Australia.
The applicant claimed that he was seeking protection in Australia because he could not return to Malaysia. He claimed that he left Malaysia because of ‘political issue and economic issue’ and feared that if he returned to Malaysia, he would have no job so he could not support his family or himself.
The applicant claimed that he had experienced harm in Malaysia in the past because he had no job and could not support himself and his family, so a friend suggested that he come to Australia. He claimed that he had applied for many jobs in Malaysia but had failed because of ‘economy and political issue’ in Malaysia.
The applicant claimed that he feared harm on return to Malaysia because he had no job and could not support his family or himself and claimed that the authorities in Malaysia could not protect him from the harm he feared because ‘Malaysia has bad economy and political issue’.
In his application form the applicant claimed that he could not relocate to any other part of Malaysia because the political and economic issues happen in the whole of Malaysia.
The delegate refused to grant the applicant a protection visa on 4 September 2017.
Application for Review
The applicant applied to the Tribunal for a review of the delegate’s decision on 15 September 2017. The applicant also provided the Tribunal with a copy of the delegate’s decision and a copy of the accompanying notification letter.
On 11 May 2022 the Tribunal wrote to the applicant seeking further information from him pursuant to s 424(2) of the Act.
In a response received on 30 May 2022, the applicant stated that he claimed protection in Australia because he did not have a job in his country, and he could not support his family if he went back because he was the breadwinner. He claimed that his mother was a single mother, and he was the one who supported her since his father passed away. He also claimed that he was the one who paid for his father’s medical bills, including dialysis, from 2017 until February 2022. The applicant also claimed that he had to pay for his house and car loan.
In his submission the applicant stated that since Covid happened, the situation in his country was getting worse, there had been several lockdowns, most businesses had closed down, most people had become jobless, the economy was down, and the cost of living was getting higher. He also claimed there was a crisis ‘about less supply of food’.
The applicant claimed that he had a full-time job in Australia, his financial situation was strong, and he could pay all his commitments and support his family. The applicant also claimed that his employer was considering sponsoring him for a subclass 482 visa.
Together with this submission, the applicant also provided the following documents to the Tribunal:
·An article dated 9 January 2021 written by June Moh titled ‘Many job losses during Covid-19 pandemic likely permanent’
·A comment piece dated 20 May 2022 by Dr Rais Hussin titled “Malaysia is entering a serious food security conundrum’
·An employment reference for the applicant from [Mr A], operations manager for [Employer 1], as well as an employment contract between this company and the applicant.
·A newly issued Malaysian passport in the applicant’s name
In a submission received by the Tribunal on 25 January 2023 the applicant claimed that his father and his brother owed money on a loan and the applicant needed to support them. He stated that his brother lost his job last year because of Covid and his father had passed away early last year. He claimed that his mother was now a single mother who did not work so the applicant had to support her as well as his brother who had lost his job. He claimed that Malaysia had increased its OPR rate (official interest rate) four times last year which increased the burden on his family.
The applicant claimed that he had been working full time in Australia since 2019 and he needed to stay here to work so he could support his family. His father had died last year but the applicant stayed in Australia to help his family. He claimed it was very difficult for him to get a steady job in Malaysia and he did not have a university degree. He also had a personal loan he had to pay off, so he needed to stay in Australia to support himself and his family. He hoped he could gain enough experience in Australia to be sponsored by his employer sometime in the future so that he could remain here permanently.
The applicant also provided the Tribunal with the following documents:
·Details of funds transferred by the applicant over time from Australia to Malaysia
·A statement dated 14 November 2022 from [Bank 1] in Malaysia indicating that [Mr B] owned money to this bank pursuant to a hire purchase agreement dated 13 August 2021 and that the hirer was in arrears on repayment
·A credit report dated 8 January 2023 from [Bank 2] Malaysia indicating that [the applicant] had borrowed money from this bank
·A death certificate for [Mr C], the father of the applicant, indicating that this person had deceased [in] January 2022
·A letter from [Employer 2] confirming that the applicant had been employed by this company since 3 January 2023 as [an Occupation]
·Australian Taxation Office notices of assessment for the applicant for the 2019, 2020, 2021 and 2022 income tax years
·A statement from the [Bank 3, Australia] confirming that the applicant had a fixed rate personal loan with this bank and that the outstanding balance of this loan was $17285.97 on 31 December 2022
Tribunal Hearing
At the hearing, the applicant claimed that he was of Malay ethnicity and Muslim religion. His father passed away in 2022. His mother is still alive and living in Terengganu, Malaysia. She is around [Age 2] years old, had previously worked as [an Occupation 2] for [Employer 3], but was now retired and in receipt of a [pension]. The mother lives in her own home, which is still subject to a mortgage. She has lived in this house for around 20 years.
The applicant claimed that he had three adult brothers who were all married and currently living in Malaysia. All three brothers lived in their own properties. One was currently living in Terengganu and the other two were living in Kuala Lumpur.
The applicant claimed that he grew up in Terengganu and had finished high school in [Year]. Prior to his arrival in Australia, the applicant had always lived in the family home in Terengganu with his parents. He had never been married and has no children.
At the hearing, the applicant stated that after he finished high school, he commenced work as [an Occupation 3] in a [Workplace]. He did not obtain any formal qualifications, however gained work experience in this [Workplace] and then worked in several other [Workplaces] in his local area. The applicant claimed that apart from his work in [Workplaces] he had not been employed in any other type of work in Malaysia in the past. He confirmed that prior to his departure for Australia in 2017 he had been employed working as [an Occupation 3] in a [Workplace] in his local area.
The applicant stated that he had never been a member of a political party in Malaysia and had never been involved in politics in any way. He also claimed he had never been arrested, detained or charged with any criminal offence in the past in Malaysia.
When asked if he had experienced any problems in Malaysia before coming to Australia, the applicant stated that he had financial problems and added that his brother had taken out a loan. When asked how a loan taken out by his brother had caused him problems, the applicant stated that his brother had borrowed money from a loan shark and this loan shark demanded money from the family. The applicant claimed that he did not want his family to face any difficulties, so he came to Australia to work. He added that he sends his family money every month.
When asked if this loan had now been paid off, the applicant stated that his brother was taking out new loans every time the brother faced a problem. The applicant added that he would help his brother to pay off each of his loans. However, the applicant indicated to the Tribunal he did not know why his brother needed to continually borrow money from loan sharks. He added that his father had been sick last year, and the applicant did not want his family to suffer financial difficulties.
It was pointed out to the applicant that in his two submissions to the Tribunal prior to the hearing he had indicated that both his father and one of his brothers had borrowed money from banks in Malaysia, and the applicant had provided documentation to verify the existence of these loans. However, despite the opportunity to do so, the applicant had never mentioned that his brother had owed money to loan sharks in any previous submission he had made to the Tribunal or in the claims for protection he made to the Department. On this basis, the applicant was asked why he had neglected to mention this loan taken out by his brother from loan sharks in the past to both the Department and the Tribunal. The applicant responded that he did not mention this loan because of privacy reasons. When asked why he was not concerned about the privacy of the bank loans he had revealed to the Tribunal, the applicant responded that he had proof of these loans, but he had no proof of the loan shark loan. When asked what had changed between the time he made his previous submissions to the Tribunal and the hearing so that he was now prepared to breach any privacy issues relating to his brother’s loan from the loan shark, the applicant indicated that he did not wish to answer this question.
On the basis of these responses, the applicant was asked why the Tribunal should accept his evidence that his brother had ever taken out loans from loan sharks in Malaysia given that he had never raised this issue to the Department or in his submission made to the Tribunal on 30 May 2022 or in his submission made to the Tribunal on 25 January 2023. In response, the applicant apologised to the Tribunal and stated that it was his mistake.
The applicant stated that he was not aware of the name of any loan shark from whom his brother had borrowed money and he was not aware of any amount that his brother had borrowed from any loan shark. On the basis of these responses, the Tribunal asked the applicant why it should accept that his brother had ever borrowed money from any loan shark in Malaysia. The applicant responded that he did not know.
The applicant confirmed his claim that he had experienced financial problems in the past in Malaysia. When it was pointed out to the applicant that, based on his evidence to the tribunal, he had been employed in Malaysia before he came to Australia, he responded that he could not earn a lot of money in Malaysia. The Tribunal pointed out to the applicant that he was employed in Malaysia in the past and based on his own evidence he was residing at home with his parents. On this basis, he was asked what specific financial problems he had experienced in the past in Malaysia. He responded that he could not buy a car. He agreed with the Tribunal that he was able to feed himself and sustain himself in the past in Malaysia, but added that there was not much money left after he did so.
The applicant confirmed that he arrived in Australia [in] May 2017. When asked what the purpose of his visit to Australia was, the applicant stated that he came to Australia to find a job. He confirmed that he arrived in Australia on a holiday or visitor visa and also confirmed that he was aware on arrival in Australia that this visa did not permit him to work in Australia. On this basis, the applicant was asked why he came to Australia to look for a job if he knew that he was not able to legally work in Australia. In response, the applicant stated that he only applied for work after he applied for a protection Visa.
When the applicant was asked if he intentionally lied to the Australian authorities about intending to holiday in Australia in order to obtain his visitor visa, the applicant responded that he came to Australia on a holiday visa and he initially came for a holiday. He added that as his visa was about to expire, he decided he must work here so he applied for a protection visa.
It was pointed out to the applicant that the Tribunal was concerned that he was changing his evidence about his initial intentions when he arrived in Australia as the failings in this evidence were being pointed out to him. In response, the applicant apologised to the Tribunal but offered no explanation as to why he had provided two different and inconsistent explanations at the hearing about his intentions upon arrival in Australia.
The applicant confirmed that he was currently working in Australia as [an Occupation 1] in the [Work] sector. He claimed that he worked on a fly-in, fly-out basis and that he was currently living in the Perth suburb of [Suburb].
The applicant confirmed that he had completed his original application for a protection visa himself and that he had answered all of the questions on the application form himself. The applicant was asked why he had chosen to not provide any details about his family members, his past employment history in Malaysia or his past education history in Malaysia despite the application form requesting this information. The applicant responded that he did not have enough time because his holiday visa was about to expire. When it was pointed out to the applicant that it would have only taken him a few additional minutes to complete this information and it would not have unduly delayed him from lodging his application, the applicant responded that he knew this was the case and apologised for not providing the information on his application form. When asked if he had any other explanation for not providing this information on his protection visa application form, the applicant responded that he did not have any such explanation.

The applicant claimed that he had not experienced any problems since he had arrived in Australia.
The Tribunal asked the applicant to explain in his own words what he feared about returning to Malaysia now or in the reasonably foreseeable future. The applicant responded that he was afraid that he may not get any job opportunities in Malaysia. He added that he also had a loan here. He explained that this loan was a personal loan with [Bank 3], for which he had provided details in his previous submission to the Tribunal. When asked what the purpose of taking out this loan was, the applicant initially stated that it was for survival. However, when the Tribunal expressed some concern that this may not be a reason or purpose for which a bank in Australia would agree to advance a personal loan to the applicant, he indicated that he had told the bank that the purpose of the loan he had applied for was to purchase a car. He confirmed that he had bought a Honda motor vehicle for which he paid around $9000 but added that the initial sum of money borrowed from [Bank 3] was $25,000. The applicant also stated that he was currently repaying this loan on a monthly basis. When it was pointed out to the applicant that the necessity to repay a loan to an Australian bank may not necessarily be a ground to seek protection in Australia, the applicant stated that he understood this to be the case.
When asked why he feared that he would not be able to obtain employment if he returned to Malaysia, the applicant stated that it was too difficult now and had become even worse after the pandemic.
It was pointed out to the applicant that based on his own evidence he had a job in Malaysia prior to coming to Australia and had gained more work experience during his time in Australia. On this basis, he was asked why he would not be seen as a very employable person to potential employers if he returned to Malaysia. In response, the applicant stated that he was gaining more experience in his current job which may give him better prospects in the future. When it was pointed out to the applicant that this answer did not appear to be directly responsive to the question asked, the applicant added that he did not think he would be very employable if he returned to Malaysia because in his previous job in Australia, where he worked in a [business], he did not gain as much experience as he was gaining in his current job. He added that job opportunities in Malaysia were mainly for low-level jobs. When asked why he could not obtain one of these low-level jobs, the applicant stated that the economic situation in Malaysia was very bad.
The applicant was asked if he feared any other problems about returning to Malaysia, apart from his fears about being denied employment opportunities and his fears about being unable to repay a bank loan to a bank in Australia. In response, the applicant stated that he had no other fears about returning to Malaysia.
It was pointed out to the applicant that in his application form he had mentioned political issues in Malaysia, and the Tribunal asked him to elaborate on these political issues. In response, the applicant stated that there were bad political scenarios in Malaysia, the government changed often, and this created a bad economic situation with less job opportunities for people like himself. The applicant agreed with the Tribunal that it was a fair summary of his claims relating to political issues that he was ascribing blame for the bad economic circumstances in Malaysia to politicians and the political system. He clarified that he did not have any fears whatsoever about returning to Malaysia for reasons of any actual or imputed political opinion.
The applicant then added that he was also afraid of returning to Malaysia because his brother’s loan shark lenders may harm him. He also stated that if his brother failed to service his loans, the loan sharks may look for his brother’s family. However, when asked why these loan sharks would target the family in any way, the applicant replied that he did not know.
The Tribunal pointed out to the applicant that country information from a variety of sources, including the Australian Department of Foreign Affairs and Trade (DFAT) and official Malaysian government websites, indicated that Malaysia was a middle-income nation with an economy that had been on an upward path since the Asian financial crisis in the late 1990s. This information indicated that the Malaysia economy had experienced some problems during the Covid pandemic, however similar problems had been experienced by many other countries including Australia. The country information indicated that after the initial impact of the pandemic the economy had recovered strongly, unemployment in Malaysia was currently low (at levels of less than 4%, which was similar to the current levels of unemployment in Australia) and that some country information indicated that workers from neighbouring countries were being attracted to Malaysia to fill the employment opportunities that could not be filled by local workers. It was pointed out to the applicant that this country information, and his own previous employment history in Malaysia where he had regular employment in [Workplaces] in his local area, would indicate that if he returned to Malaysia, he would be able to obtain some form of employment. It was further pointed out to this applicant that although this employment may not be his preferred employment and although it may not pay him as much as he would be paid in Australia, it would be sufficient to enable him to sustain himself in Malaysia.
In response, the applicant stated that the foreign workers coming to Malaysia were brought there by agents and it was difficult for locals to compete with them. It was pointed out to the applicant that an unemployment rate of less than 4%, which was similar to the current rate in Australia, would not tend to indicate that employment opportunities were scarce or that there was some sort of economic crisis limiting employment opportunities in Malaysia. In response, the applicant stated that he understood this point.
At the conclusion of the hearing, the applicant stated that he would like to be in a position in the future where an employer could sponsor him for an Australian visa. However, he indicated that he understood that this was not a reason for claiming protection in Australia.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
There is no issue as to identity or nationality. The applicant arrived in Australia on a valid Malaysian passport and as the holder of a valid Australian visitor visa. The Tribunal therefore accepts that the applicant is a national of Malaysia and has assessed his claims accordingly.
There is no evidence before the Tribunal to indicate that the applicant has any right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations pursuant to s 36(3) of the Act.
In his initial application for protection the applicant claimed that he left Malaysia because of ‘political issue and economic issue’ that prevented him from obtaining a job and sustaining himself. He also claimed that he feared that if he returned to Malaysia these political and economic issues would also prevent him from obtaining a job and he would therefore be unable to sustain himself.
However, at the Tribunal hearing the applicant stated clearly that he had never been a member of any political party in Malaysia and had never been involved in any political activity whatsoever. He agreed that his reference to political issues was in reference to him ascribing blame to politicians and the political system for the state of the economy in Malaysia and for reduced employment opportunities. The applicant also clearly stated that he did not have any fears that he would suffer any harm if he returned to Malaysia now or in the reasonably foreseeable future for reasons of any actual or imputed political opinion.
On the basis of these clear statements by the applicant at the hearing, the Tribunal finds that the applicant has not made any claims that he fears harm if he returned to Malaysia now or in the reasonably foreseeable future for reasons of his actual or imputed political opinion and no such claims arise from the facts before the Tribunal.
In his initial application for protection the applicant claimed that he was unable to obtain employment in Malaysia and was therefore unable to sustain himself. However, at the Tribunal hearing the applicant provided clear and direct evidence that after he completed high school in 2010, he commenced working as [an Occupation 3] in a [Workplace] in his local area and was subsequently regularly employed as [an Occupation 3] in other [Workplaces] in his local area until he came to Australia. Although the applicant claimed that he had suffered financial difficulties in the past in Malaysia, at the hearing he indicated that the income he earned from his employment in Malaysia was sufficient to sustain himself and indicated that the financial issues he suffered were because his income was insufficient to enable him to afford to buy a car.
On the basis of this evidence that the applicant provided at the hearing about his employment history in Malaysia, the Tribunal finds that the applicant was able to obtain regular employment in the past in Malaysia and that the income he received from this employment was sufficient to enable him to sustain himself in Malaysia.
At the Tribunal hearing, the applicant indicated that one of his reasons for leaving Malaysia was because his brother owed money to loan sharks, the loan sharks were seeking repayment from the family and the applicant did not want his family to face difficulties, so he decided to come to Australia to work so he could send money back to his family to repay this loan.
However, the applicant did not raise this issue relating to any money owed by his brother to loan sharks either when he submitted his application for protection to the Department or in his submission to the Tribunal on 30 May 2022 or in his further submission to the Tribunal on 25 January 2023. In his submission on 25 January 2023, the applicant did state that both his father and his brother had outstanding loans to banks in Malaysia and submitted verifying documentation to evidence these loans. However, as discussed with the applicant at the hearing, he did not state that his brother had any loans or issues with loan sharks despite having the opportunity to do so.
The applicant did offer the explanation at the hearing that he did not previously mention that his brother had debts and issues with loan sharks because of what he described as privacy issues but when asked what had changed that enabled him to overcome these privacy reasons when giving evidence at the hearing, the applicant did not offer any explanation and instead indicated that he did not want to answer this question. Accordingly, based on this response, the Tribunal does not accept that privacy reasons prevented the applicant from previously mentioning the existence of his brother’s loans from loan sharks in his application for protection or in his two written submissions to the Tribunal.
At the hearing, the applicant provided vague and undetailed evidence about his brother’s loans from these loan sharks. The applicant was not able to state the name of the loan sharks that his brother had borrowed money from over time or any of the amounts the brother had borrowed. The applicant was also unable to provide the reason or purpose for which his brother needed to borrow money despite having told the Tribunal that his brother had taken multiple such loans over time, which the applicant would assist him to repay on an ongoing basis, even after the applicant came to Australia in 2017.
The Tribunal would expect that the applicant would know the name of at least some of these loan sharks and some of the basic details of the loans including the amount borrowed, particularly given his evidence at the hearing that the loan sharks started demanding money from the family when the applicant was still in Malaysia. The Tribunal would also expect that the applicant would have some knowledge as to the purpose of the loans taken out by his brother, particularly given the applicant’s evidence at the hearing that he had continued to assist his brother with repayment of multiple loans even after he came to Australia in 2017.
Given that the applicant did not mention any issues relating to any outstanding loans his brother had with loan sharks in either his application for protection or his two written submissions to the Tribunal, and given the applicant’s vague and undetailed evidence at the hearing about the name or names of the loan sharks his brother had borrowed from, the amount borrowed or the purpose for which his brother took out these loans, the Tribunal does not accept that the brother of the applicant ever took out these loans from loan sharks as claims. Accordingly, the Tribunal finds that the applicant’s brother never borrowed any money from loan sharks as claimed, the loan sharks never sought repayment of any loans from the applicant’s family, the applicant did not come to Australia to work to help repay these loans, that the applicant has never assisted his brother with these claimed loans and that the applicant and his family have never had any issues with loan sharks in the past in Malaysia.
Based on the documents provided by the applicant, the Tribunal accepts that the applicant’s late father and the applicant’s brother had or have outstanding bank loans with legitimate banking institutions in Malaysia. The Tribunal also accepts that the applicant may feel some moral obligation to assist his family with any outstanding loans or debts. However, a perusal of the documentation supplied by the applicant does not indicate that the applicant is a party to any of these loans or that he has any legal obligation to repay any of these loans. In addition, the applicant has made no claims that he has any legal obligation relating to these loans. Accordingly, on the evidence before it, the Tribunal does not accept that the applicant has any legal obligation for repayment of such loans or that any default by his family members on these loans would enliven any protection-related claims for the applicant under either s 36(2)(a) or s 36(2)(aa).
The applicant has claimed that if he returned to Malaysia now or in the reasonably foreseeable future, he fears harm because he would not be able to get a job in Malaysia and because he fears harm from the loan sharks to whom his brother owes money. He has also claimed that he fears harm because he has an outstanding personal loan with [Bank 3] in Australia.
Based on the documentation provided and based on the applicant’s comments at the hearing, the Tribunal accepts that the applicant has an outstanding loan with [Bank 3] in Australia. Based on the applicant’s evidence at the hearing, the Tribunal also accepts that if the applicant departed Australia, it is highly unlikely that he would continue to repay this loan and that he would therefore default on this loan. However, as was discussed with the applicant at the hearing, the Tribunal does not accept that any such loan and any likely default on return to Malaysia does not give rise to any claims for protection. Accordingly, on the facts before it, the Tribunal finds that the applicant’s bank loan in Australia, including any potential or likely future default on this loan if the applicant returned to Malaysia, does not give rise to any claims for protection under either s 36(2)(a) or s 36(2)(aa).
The Tribunal has already found that the applicant’s brother has never borrowed money from loan sharks in Malaysia, that the loan sharks never sought repayment of any loans from the applicant’s family, that the applicant did not come to Australia to work to help repay these loans, that the applicant has never assisted his brother with these claimed loans and that the applicant and his family have never had any issues with loan sharks in the past in Malaysia. Based on these findings, the Tribunal finds that if the applicant returned to Malaysia now or in the reasonably foreseeable future there is no real chance that he would suffer any harm for reasons of any alleged loans that his brother may have taken out with loan sharks.
In relation to the applicant’s fears of harm if he returned to Malaysia now or in the reasonably foreseeable future for reasons that he would not be able to obtain a job due to the economic circumstances in Malaysia, as was discussed with the applicant at the hearing, the Tribunal has considered country information from the Department of Foreign Affairs and Trade (DFAT) indicating that Malaysia is an upper middle-income, export-oriented economy with a real GDP growth in 2019 (prior to the Covid-19 pandemic) of 4.3% and a per capita GDP of USD11,418[1]. Malaysia’s economic performance over several decades has led to a significant reduction in poverty[2]. Despite an economic contraction in 2020 due to Covid-19 and a decline in oil prices, the economy was expected to rebound strongly in 2021 with growth forecast to be between 6% and 7.5%[3].
[1] Department of Foreign Affairs, DFAT Country Information Report Malaysia, 29 June 2021, p10, para 2.9
[2] Ibid, p11, para 2.11
[3] Department of Foreign Affairs, DFAT Country Information Report Malaysia, 29 June 2021, p11, para 2.12
Specifically in relation to the employment situation in Malaysia, DFAT reports as follows:
2.13 In February 2021, the Malaysian Department of Statistics reported a labour force participation rate of 68.5 per cent and an overall unemployment rate of 4.8 per cent. Prior to the pandemic, Malaysia’s unemployment rate was 3.3 percent in 2019. In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera, and 2.4 per cent for Chinese Malaysians. In 2018, 28.6 per cent of the Malaysian labour force had tertiary level education, 55.6 per cent had secondary level education, 13.1 per cent had primary level education and 2.7 per cent had no formal education.
2.14 The International Labour Organization estimated in 2020 that around 3 million migrants (including irregular migrants) worked in Malaysia, constituting up to 30 percent of the country’s workforce. Of the migrant worker population, 1.7million were registered, and an estimated 1.9 million were undocumented (irregular) migrants, as at 2017. Recent years have witnessed a rise in increasingly virulent rhetoric against migrants within the popular media, blaming migrants for a host of social problems ranging from electoral fraud to increases in street crime. Scapegoating of migrants, regardless of realities, has contributed to an environment where exploitation and abuse are sometimes viewed as acceptable. In May 2020, during the COVID-19 pandemic, the government conducted mass arrests of undocumented migrants in coronavirus hotspots in order to prevent the spread of the disease to its own ‘innocent citizens’, according to one government minister[4].
[4] Ibid, p11, para 2.13-2.14
More recent figures from the Malaysian government indicate that the unemployment rate in Malaysia fell to 3.7% in July 2022[5]. The figures for November 2022 show that this low rate of unemployment remains stable with a small further decline in the unemployment rate between July 2022 and November 2022 to a rate of 3.6%[6].
[5] Department of Statistics Malaysia Official Portal (dosm.gov.my), accessed 9 February 2023
[6] Department of Statistics Malaysia Official Portal (dosm.gov.my), accessed 9 February 2023
The Tribunal has considered the applicant’s claims in his submission on 30 May 2022 that things in Malaysia have got worse since the Covid-19 pandemic, that businesses have closed down which has made more people jobless, the economy has got worse, and the cost of living is higher. The Tribunal as also considered the article submitted by the applicant dated 9 January 2021 suggesting that many job losses during the Covid-19 pandemic are likely to be lost permanently. The Tribunal accepts that during the Covid-19 pandemic and especially during 2020 the Malaysian economy suffered job losses, which was a phenomenon that was experienced across many other nations including Australia. However, the applicant’s claims about the ongoing impact of the Covid-19 pandemic and the prediction in the article that the Covid-19 related job losses may be permanent is directly contradicted by the more recent information from DFAT referred to above that the Malaysian economy rebounded strongly in 2021 and from the official unemployment rate in Malaysia (as referred to above), which shows that unemployment in November 2022 is less than 4%. Accordingly, the Tribunal has placed no weight on this article when considering the current economic circumstances and the current employment market in Malaysia.

The Tribunal accepts that the applicant may not be able to earn as much in Malaysia as he could earn working in Australia. The Tribunal also accepts that the money the applicant would earn from employment in Malaysia may not be sufficient to enable him to live a lifestyle he desires, including not being sufficient to buy a car. However, as he stated at the hearing, the applicant was able to obtain employment in the past in Malaysia and this income was sufficient to sustain himself.
The Tribunal has considered the applicant’s comment at the hearing that Malaysians like himself may not be able to compete with foreign workers who are brought into Malaysia by agents, However, the Tribunal has placed little weight on this statement given the country information referred to above highlighting the overall low rate of unemployment in Malaysia and the statement by the applicant at the hearing that he understood that there was no current economic crisis in Malaysia that limited economic opportunities for Malaysians.
Based on the country information referred to above indicating that unemployment in Malaysia is at low levels and based on the finding made above that the applicant was able to obtain employment in the past in Malaysia that provided him with sufficient income to sustain himself, the Tribunal finds that if the applicant returned to Malaysia now or in the reasonably foreseeable future he would be able to obtain some form of employment in Malaysia even if it is not his preferred employment and even if the earnings from this employment may not enable him to save any money. Based on this finding, the Tribunal also finds that the income from this employment would enable the applicant to provide for himself and therefore the applicant’s economic circumstances resulting from a lower income generated from his employment in Malaysia would not threaten his capacity to subsist or otherwise amount to serious harm of any kind.
Accordingly, the Tribunal finds that the economic circumstances leading to a lower income for the applicant in Malaysia than he could earn in Australia do not amount to serious harm for the purposes of s 5J(4)(b) of the Act having regard to the non-exhaustive definition of serious harm pursuant to s5J(5) of the Act.
The Tribunal has considered the vague statement made in the applicant’s written submission of 30 May 2022 that there was an emerging crisis in Malaysia ‘about less supply of food’ and the accompanying comment piece dated 20 May 2022 which was titled ‘Malaysia is entering a serious food conundrum’. The applicant did not advance any claims in his submission about how any food conundrum would impact on him and at the hearing he made no mention of this issue, despite having the opportunity to do so. The article itself is offering commentary rather than stating facts and is highly speculative. It discusses potential future issues that may eventuate if Malaysia does not follow the suggestions made by the writer. Accordingly, the Tribunal has placed no weight on this article when considering the current status of food supply in Malaysia.
Based on the vague evidence before it, and based on the fact that the applicant made no claims whatsoever in either his submission or at the hearing about how any speculative future food crisis may impact upon him, the Tribunal finds that the vague statement about less supply of food made by the applicant does not give rise to any claims for protection under either s 36(2)(a) or s 36(2)(aa).
The applicant did not make any claims, and no claims arise on the facts before the Tribunal, that he fears any harm if he returned to Malaysia now or in the reasonably foreseeable future for any other reason, including for reasons of his Malay ethnicity or his Muslim religion.
Having considered all of the applicant’s claims individually and cumulatively, on the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
For 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 has already found that if the applicant returned to Malaysia that he would not face any harm for reasons of his actual or imputed political opinion or for reasons of any alleged loans that his brother may have taken out with loan sharks.
The Tribunal has also already found that no claims for protection arise under either s 36(2)(a) or s 36(2)(aa) for reasons of any potential default by any of the applicant’s family members on loans they have from banks in Malaysia or for reasons of the applicant defaulting on a loan to a bank in Australia if he returned to Malaysia.
The Tribunal has also already found that the applicant would be able to obtain employment if he returned to Malaysia and that, through the income from this employment, he would be able to sustain himself so that his capacity to subsist would not be threatened. On the basis of these findings, the Tribunal finds that the nature of this feared harm about earning less income in Malaysia does not constitute significant harm as exhaustively defined in s 36(2A).
The applicant has not made any other claims that he fears harm for any other reason if he returned to Malaysia and no other claims arise from the facts before the Tribunal.
Having considered all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if he were to return to Malaysia.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Katsambanis
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.
…

[2023] AATA 1274

13 February 2023

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