1805902 (Refugee)

The Administrative Appeals Tribunal considered the protection visa application of a Malaysian national who claimed to fear harm from loan sharks in Malaysia due to race and religion. The applicant had arrived in Australia in December 2014, overstayed his student visa, and subsequently lodged a protection visa application. The delegate had refused the application, finding that the claimed fear of harm did not meet the refugee criteria and that there was no real risk of significant harm for complementary protection. The applicant sought review of this decision.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether he was a refugee under section 36(2)(a) of the Migration Act 1958, or if he was entitled to complementary protection under section 36(2)(aa). This involved assessing the applicant's claims of harassment and threats from loan sharks, considering the nexus to protected characteristics, and evaluating the availability and effectiveness of protection measures in Malaysia. The Tribunal also had to assess the applicant's credibility, given significant inconsistencies in his account of the loan and the threats he allegedly faced.

The Tribunal found that the applicant was not a witness of truth and had fabricated his claims regarding owing money to an illegal money-lender. This conclusion was based on numerous inconsistencies in his account, including the loan amount, the purpose of the loan, and the nature of the threats. The Tribunal considered extensive country information regarding loan shark activity in Malaysia and the effectiveness of Malaysian authorities in combating it, including government agencies and NGOs. It noted that while loan shark activity was a problem, effective protection measures were available, such as reporting to the police or seeking assistance from debt support services. The Tribunal concluded that the applicant had not demonstrated a well-founded fear of persecution for reasons of race, religion, nationality, or membership of a particular social group, and therefore did not meet the refugee criterion. Furthermore, the Tribunal was not satisfied that there were substantial grounds for believing there was a real risk of significant harm if the applicant were removed to Malaysia, particularly given the available protection measures and the applicant's failure to utilise them or report the alleged harassment.

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