1732882 (Refugee)

1732882 (Refugee) [2020] AATA 2315 (24 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1732882
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Paul Windsor
DATE:24 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 June 2020 at 11:03am
CATCHWORDS
REFUGEE – protection visa – Malaysia – loan sharks – credibility concerns – discrepancies with written claims – effective state protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 December 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 August 2017.
In his protection visa application, the applicant stated he was born in Seremban, Negri Sembilan state Malaysia on [date], is ethnic Malaysian Chinese and is a Buddhist. He indicated that he had never married or been in a de facto relationship. He stated that he departed Malaysia legally [in] May 2017 and arrived in Australia [in] May 2017, entering on a Visitor visa.[1]
[1] See the Departmental file.
In his protection visa application the applicant indicated that he left Malaysia because he borrowed a large amount of money from a loan shark because he wanted to upgrade his business. He indicated his business did not run as planned so he couldn’t make any profits and failed to pay his debts. He stated the moneylender threatened to harm him and his family because he failed to pay them.[2]
[2] See the Departmental file.
The delegate refused to grant the visa, finding that the refugee criterion is not met because the basis of the claimed harm feared is not for one or more of the reasons mentioned in s.5J(1)(a) of the Act. In relation to the complementary protection criterion, the delegate found that country information indicates that the Malaysian authorities, including the Royal Malaysian Police (RMP) and the judiciary, are reasonably effective in combating illegal money lending. While accepting there is some corruption within the system, and that the applicant may not have absolute protection in Malaysia, the delegate found that country information indicates that the Malaysian authorities are able to provide an adequate level of protection from the criminal behaviour feared by the applicant. The delegate concluded that, on the information before him, the applicant could obtain protection from the RMP and other Malaysian authorities such that there would not be a real risk that he would suffer significant harm if removed to Malaysia.
The applicant applied to the Tribunal for review of this decision on 24 December 2017. He provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
The applicant participated in a telephone hearing on 22 June 2020, conducted with the assistance of an interpreter in the Cantonese 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 (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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s written claims for protection, as set out in his protection visa application, are summarised as follows:
·He left Malaysia because he borrowed a big amount of money from a moneylender (loan shark). He borrowed because he wanted to upgrade his own business but his business did not run as he planned. He could not make any profits and failed to pay the debts.
·He started working with ‘[Company 1]’ but his salary was still not enough to settle his debts with the moneylender. He failed to pay them within the given date. The moneylender kept increasing the interest for his loan.
·They moneylender threatened to harm him, his family and his property because he failed to pay them.
·He did not seek help because he did not want others to get involved and know about his problem.
·He moved to other states around Malaysia but felt insecure because the moneylender can find him easily, as they have many informers in Malaysia.
·He fears the moneylender will harm him, his family and his property if he returns to Malaysia because he can’t pay the debts within the given time frame. He does not think the Malaysian authorities will protect him because they don’t want to get involved in loan shark matters.
Findings and reasons
Identity
On the basis of the copies of the bio-data page of his Malaysian passport and his national identity card submitted to the Department,[4] the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is as claimed. The Tribunal accepts that Malaysia is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[4] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
For the reasons set out below, the Tribunal did not find the applicant to be a credible witness.
Assessment of claims
Background
At the start of the hearing the Tribunal asked the applicant if everything in his Protection visa application was true and correct as far as he knows and believes. He indicated it was. When asked if there were any mistakes he wished to point out to the Tribunal or anything he wished to add he indicated there were not. When asked if he had any assistance in preparing the application the applicant indicated a friend helped him. He said that he did not pay his friend for their assistance. He indicated that his friend knows about his situation and when asked if he was happy that his friend recorded his claims correctly, said he thought his friend provided what he wanted to be included.
The Tribunal asked the applicant about his family in Malaysia. He confirmed that he was born in Seremban in Negri Sembilan state and indicated that his mother remains living in the family home in Seremban. He said his father is deceased. He indicated that he also has [siblings] living in Malaysia but said they have both left home and his mother lives alone, although his siblings visit her. He said his mother works [part-time].
The Tribunal asked the applicant what work he had done in Malaysia. He indicated that in the one to two years before he came to Australia he worked [in a business]. When asked what he did before that he said he worked [in another business]. When asked to explain what that involved, he said ‘like [deleted]’. The Tribunal asked him whether he worked for himself or others. He said he worked for other people. When asked if he had ever worked for himself he replied ‘no’.
The applicant confirmed he was now living in [Town 1] in regional Victoria. He said he had some friends in Melbourne who asked him to go to [Town 1] for some work. When asked what work he does there he replied that he does almost everything. When asked for examples he said he [deleted].
Claim to have a debt to a loan shark (unlicensed money lender).
The Tribunal asked the applicant why he came to Australia in May 2017. He said he came to escape from some troubles. When asked what sort of troubles he simply replied, ‘about money’. When asked for more information he said, ‘I was owing some money’. When asked why he owed money and to whom, the applicant said he was set up by someone who took his stuff and forced him to do what they asked him to do. When again asked by whom and how, he said someone took his information to borrow some money from loan sharks. When asked who did this, he said he didn’t know, commenting that he only found out when someone knocked on his door. When asked, he said this occurred before he came to Australia. When pressed, he said it happened about two to three months before he came to Australia. He commented that there was nowhere he could go. The Tribunal found the applicant’s evidence vague and uncertain, and asked him why he couldn’t go to the police for assistance. He replied that you can’t rely on the police in Malaysia.
The Tribunal asked the applicant what happened when the people came knocking on his door and if he told them that it was not him who had borrowed the money. He replied that ‘they’ follow the information they have to find the person responsible, and indicated they don’t care if the person has been cheated.
The Tribunal asked the applicant what these people did to him. He said in the beginning they were nice, but then they said that if he did not repay the money owed ‘this or that’ will happen. He said they then raised their voice and threatened to hit or kill him. The Tribunal again asked the applicant why he did not go to the police if he was being threatened by loan sharks over money that he had not borrowed. He replied that in Malaysia, if criminals give police a bit of money, the police will smooth things out for them.
The Tribunal asked the applicant if these people ever harmed him. He replied ‘yes’, and said he had been beaten twice.
The Tribunal put to the applicant that his oral evidence at the hearing is very different to what was written in his protection visa application. The tribunal indicated that, depending on his comments, this may make the Tribunal question the truthfulness of his claims. The Tribunal read the applicant the key elements of his claims from the application, commenting that it expects that his written claims and his evidence at the hearing would be similar, but the claims in his application are completely different to what he has told the Tribunal at the hearing. The applicant did not respond. The Tribunal asked the applicant why his claims were so different, both in relation to the work he claims to have done, and his experiences with a loan shark. The applicant still did not respond. After another long pause, the Tribunal asked the applicant to please answer. He replied that he has forgotten what happened because it was a long time ago.
The Tribunal discussed with the applicant information from the DFAT Country Information Report (and other sources as indicated) which indicates that unlicensed money lending in Malaysia is an offence under the Moneylenders Act 1951 (which gives police considerable investigative powers against alleged loan sharks) and that the Royal Malaysia Police (RMP) has taken action against Ah Longs; that making threats to hit or kill people and beating people are criminal offences; and that there are organisations in Malaysia such as the Malaysian Chinese Association (MCA) which assist victims of loan sharks to negotiate fair interest rate terms with loan sharks to repay their debts (the DFAT report indicates that sources report the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the one per cent government rate). The Tribunal indicated that, while it has significant doubts that he has ever been involved with a loan shark, if he had, the country information seems to indicate that effective protection is available to victims of harassment by loans sharks in Malaysia, given there are relevant laws addressing the issue; DFAT indicates that local and international sources consider the RMP overall to be a professional and effective police force (notwithstanding concerns about engagement in corruption by some officers – which the government has sought to address); and DFAT assess that most cases in the Malaysian civil courts (which hear the majority of criminal and civil cases) comply with the rule of law and legal procedure.[5] The Tribunal put to the applicant that it would seem he could get assistance from the MCA to help him to engage with the police to get assistance if he was harassed by loan sharks.
[5] DFAT Country Information Report, Malaysia, 13 December 2019, sections 3.108-3.117, 5.5-5.8 and 5.13-5.17;
The applicant commented that he thinks that what the Tribunal has said is very superficial. He added that, as a Malaysian, what he has experienced is very different to what can be read in the press. The Tribunal commented that the information that it had put to him was not drawn just from press reporting, but was also drawn from DFAT’s on the ground knowledge and discussions with a range of government and non-government sources in Malaysia, including UN bodies and human rights organisations, and may include protected sources.[6] The applicant replied that things are very different in different places in Malaysia, and what happens in Kuala Lumpur is different to what happens in his home town and other places in Malaysia. The Tribunals prefers the advice from DFAT and other sources, noting that the applicant indicated that he never sought assistance from the police in Malaysia, and did not provide any specific examples of problems he or people he knew had experienced obtaining assistance from the police in Malaysia.
[6] DFAT Country Information Report, Malaysia, 13 December 2019, section 1.4.
While the Tribunal accepts that no state can guarantee absolute protection for its citizens, based on the relevant country information the Tribunal finds that, generally, there is effective protection, as defined in s.5LA of the Act, available to persons in Malaysia suffering harassment by loan sharks in relation to unpaid debts. The Tribunal considers that the country information indicates that the protection can be accessed through the wide network of police stations in Malaysia and is durable, and consists of an appropriate criminal law; a reasonably effective police force; and an impartial judicial system.

While the Tribunal considers that effective protection would be available to the applicant in Malaysia against harassment by loan sharks and their agents in his claimed circumstances, if he required it, having carefully considered the available evidence in this matter, the Tribunal did not find the applicant’s evidence regarding his claimed experience with a loan shark to be credible, and finds that he has concocted his claim to have been harassed, threatened and beaten by a loan shark and/or their agents.
In this regard, the Tribunal finds that the applicant made totally different claims in his oral evidence at the hearing to what was written in his protection visa application. In the application he indicated that he had been self-employed (had his own [business] called [Company 2 from] May 2005 [until] September 2016), and willingly borrowed money from a loan shark to expand his business, but the business was not profitable and he was unable to repay his debt. He indicated that he then took paid employment as a [Occupation 2] with [Company 1] at a [workplace] in Kuala Lumpur [from] October 2016 [until] May 2017 (the day before he departed Malaysia for Australia), but the salary was not enough for him to be able to settle his debts. At the hearing, however, he indicated that had never been self-employed, and had not worked with [Company 1] before coming to Australia. He indicated that he never willingly took a loan from a loan shark, but stated that a third party used his identity to take a loan in his name, without his knowledge. When asked to explain the significant material differences in his two accounts, the applicant was unable to do so. Eventually, he stated that he had forgotten what had happened because it was a long time ago. The Tribunal found this explanation totally unconvincing, noting that the original written account was prepared in August 2017, just a few months after the applicant arrived in Australia, and is totally different to the applicant’s subsequent oral evidence. While the Tribunal accepts that issues of memory might explain differences of detail in the two accounts, it does not explain why the two accounts are so fundamentally different. At the start of the hearing the applicant indicated that the information in his application was all true and correct as far as he knew and believed and commented that the thought the friend who helped him prepare the application had included what the applicant wanted in the application. The Tribunal also found that the applicant’s oral evidence generally was stilted and vague. He did not give his evidence in a spontaneous and forthcoming manner as might be expected if his account was of a genuine, lived experience.
Considering the totality of the applicant’s written and oral evidence, the Tribunal concludes that the applicant was not a victim of identity theft and someone did not take a loan from a loan shark in his name without his knowledge. The Tribunal also considers that the applicant did not willingly take a loan from a loan shark, as originally claimed in his application. The Tribunal finds, therefore, that the applicant does not have an actual or implied (due to identity theft) debt to a loan shark, and finds that he was not being harassed, threatened and beaten by a loan shark and/or their agents because of an actual or implied debt.
Because the Tribunal has found that the applicant does not have an actual or implied debt to a loan shark, the Tribunal finds that he does not face a real chance of suffering persecution involving serious harm from a loan shark and/or their agents, for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, should he return to Malaysia. Consequently, the Tribunal finds that the applicant does not need to access state protection in relation to any risk of harm from a loan shark and/or their agents.
Does the applicant have a well-founded fear of persecution if he returned to Malaysia?
Having carefully considered the applicant’s claims, for the reasons given above, the Tribunal does not accept that there is a real chance that he will suffer persecution involving serious harm from a loan shark and/or their agents, for one or more of the five reasons mentioned at s.5J(1)(a), if he was to return to Malaysia, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[7]
[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances individually and cumulatively, and the relevant country information discussed above, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm as set out in s.36(2A), from a loan shark and/or their agents, or anyone else.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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.
Paul Windsor
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.
…

KL Consumer Safety Association - No need to fear the loan sharks’, Bernama, 17 February 2015, shark menace worsens in M’sia’, The Sundaily, 2 October 2013, most notorious for borrowing from Ah long, says PPIM’, Free Malaysia Today, 5 July 2016. cooperate with Council to wipe out loan sharks’, Daily Express, 28 December 2013,
‘57% drop in commercial crime losses, say cops’, The Star Online, 2 July 2014, S C, ‘Crackdown on Ah Long’, The Star Online, 25 April 2014 loan shark ring busted, couple held’, Bernama (Malaysian National News Agency), 10 October 2015,
Gomes E, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May 2015,
‘2,700 Ah Long materials removed’, Daily Express, 28 May 2015, Police probe nine Ah Long cases in 2013’,The Malaysian Times, 3 January 2014, police investigates 29 Ah long cases since January’, Malaysia Edition, 28 December 2013, Free Man Abducted By Loan Sharks’, Malaysian Digest, 16 October 2014, sharks caught red-handed’, The Star Malaysia, 29 May 2015, Shark Ring Busted, 31 Nabbed in Nationwide Raids’, Malaysian Digest, 18 April 2017, Y M, ‘Some 36,000 suspected criminals have been arrested, says minister’, The Star Online, 10 December 2013, death has spurred us on, say police’, The Star Online, 24 September 2013,

Key Legal Topics

Areas of Law

Immigration
Statutory Interpretation

Legal Concepts

Judicial Review
Procedural Fairness
Statutory Construction
Jurisdiction
Remedies

Actions

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Citations

1732882 (Refugee) [2020] AATA 2315

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

MIMA v Rajalingam [1999] FCA 179

[2020] AATA 2315

24 June 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies