1809032 (Refugee)

1809032 (Refugee) [2020] AATA 4206 (18 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1809032
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Michael Hawkins
DATE:18 August 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 August 2020 at 4:15pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from loan shark – loan for business purposes – threats but no harm – credibility – inconsistent evidence – country information – government and police actions against loan sharking – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
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 Home Affairs on 20 March 2018 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 19 November 2017. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s.5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
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, 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 issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The Tribunal has obtained the following background information from the applicant’s visa application forms and evidence presented to the delegate and the decision of the delegate:
The applicant is a Malaysian national.
The applicant is [Age] years of age.
The applicant arrived in Australia [in] October 2017 pursuant to a [visitor] visa.
The applicant lodged a XA-866 Protection visa on 19 November 2017.
The applicant was not invited to attend an interview with a Departmental officer. On 20 March 2018 the delegate refused the application based on the material before the Department. The delegate did not make any findings about the veracity of the claims made by the applicant that he had been threatened by loan sharks but rejected the claim for protection under the refugee criteria on the grounds that the applicant’s claimed fear of harm in Malaysia did not have the relevant refugee nexus. The delegate considered whether Australia’s obligations were engaged under the complementary protection criterion but rejected the claim because he was not satisfied there was a real risk of the applicant suffering significant harm. In summary, the delegate found that, while there may be instances of corruption in the police force, the Malaysian authorities were willing and reasonably effective in combating illegal moneylending. According to the delegate, this would provide the applicant with an adequate level of protection such that there would not be a real risk that he would suffer significant harm.
The applicant applied for review of the Delegate’s decision on 3 April 2018.
Claims:
The applicant‘s claims are summarised in his Protection Visa application and in the Delegate’s Decision.
The applicant claims that he borrowed money from a loan shark to help his business but he could not afford the repayments.
The applicant claims that his business was damaged by the loan sharks and they have threatened to harm him.
The applicant claims that he reported this to police but they have not helped.
The applicant claims he fears his family will be harmed or he will be killed if he returns to Malaysia.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
- The applicant’s protection visa application forms of 19 November 2017(visa application);
- The applicants’ identity documents being copies of a Malaysian passport; a Malaysian learner’s driving licence; a Personael Pentadbiran card; and Malaysian identity card;
- Evidence provided by the applicant to the Department including:
- The protection visa decision record (delegate’s decision record) dated 20 March 2018;
- Application for review form lodged with the Tribunal on 3 April 2018 which also included:
- Application for review form lodged with the Tribunal on 3 April 2018;
- Submissions provided to the Tribunal on 29 July 2020;
- Submissions and attachments provided to the Tribunal on 31 July 2020; including:
- Submissions and enclosures received by post by the Tribunal on 7 August 2020, including:
- Submissions provided to the Tribunal on 11 August 2020;
- Country Information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the DFAT Country Information Report on Malaysia, published on 13 December 2019 (the DFAT Report).
Pre-hearing Submission
The Tribunal received pre-hearing submissions from the applicant dated 29 July 2020, 31 July 2020, 7 August 2020 and 11 August 2020. The submissions were generally duplicates of each other and included photographs, letters and a USB file purportedly of CCTV security footage from the applicant’s place of work in Malaysia.
Country of reference/ receiving country:
The applicant claims to be a Malaysian national. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Malaysia is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The applicant did not raise any concerns in relation to holding a video hearing during the hearing. In fact, the Tribunal notes it was the applicant’s preference for a video hearing in place of a telephone hearing as initially proposed by the Tribunal. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was satisfied that the video service was clear and uninterrupted; it confirmed that the applicant, the interpreter and the Tribunal Member could hear each other clearly and the Tribunal paused on several occasions to ensure that the applicant was satisfied with the clarity of the hearing.
The applicant appeared before the Tribunal on 12 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Malaysia. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Malaysia. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Malaysia.
The Tribunal discussed his claims as summarised in the Delegate’s Decision. It confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that he did not need to change them.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
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.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal has some reservations about the genuineness of the applicant’s claims.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at >
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Tribunal considered the applicant’s specific claims.
The Tribunal discussed with the applicant the details about his loan. The applicant advised that the loan amount was 70,000 RM.
The Tribunal enquired as to the interest rate. The applicant advised that the interest rate was 10% per week.
The Tribunal enquired as to the term of the loan. The applicant replied that it went until it was repaid.
The Tribunal queried the rate of interest, noting that 10% per week would be the equivalent of 7,000 RM per week. The applicant agreed, saying that the loan had been going for two years and seven months at 7,000 RM per week.
The Tribunal asked the applicant how much he had repaid of the loan. He replied that he had repaid close to 1,000,000 RM in interest. The Tribunal paused to clarify that he had, over the course of two years or more, repaid nearly 1,000,000 RM in consideration of a 70,000 RM loan.
The Tribunal took the opportunity to take a calculator to check the amount so paid. At 52 weeks x 2 + 28 weeks x 7,000 RM, it calculated the sum repaid was 924,000 RM in interest alone.
The Tribunal asked the applicant when he stopped paying interest. He replied that he stopped making repayments one month before he came to Australia. The Tribunal confirmed that was September 2017.
The Tribunal asked the applicant how much he still owed to the money lender. He replied, “About 600,000 RM”.
The Tribunal asked the applicant what the lender’s name was. He replied that he wasn’t sure, but that it was a Chinese guy called [Mr A].
The Tribunal enquired as to the purpose of the loan. The applicant replied it was for his business, and more specifically for supplies being [product].
The Tribunal enquired of the applicant whether he had a copy of the Loan Agreement. He replied that there was no Loan Agreement as nothing was in writing.
The Tribunal asked the applicant how he could possibly agree to a loan arrangement that had a principal of 70,000 RM yet he managed to repay nearly 1,000,000 RM in interest in a little over two years. He replied that the lender was meant to be his friend, [Mr B] and [Mr B] was going to lend the applicant 100,000 RM. However, the problem arose when the applicant called upon the loan funds but [Mr B] didn’t have any money. The applicant was in a position whereby he needed the money urgently to pay suppliers for the [product] which were the primary product of his business. As [Mr B] did not have the funds, he connected the applicant with a loan shark. The applicant and [Mr B] agreed that as soon as [Mr B] got his money, he would pay the loan shark out. It transpired that [Mr B] didn’t pay the loan shark.
The Tribunal queried the amount of 100,000RM, given the submitted police reports refer to various amounts of 150,000RM, 144,000RM, and 30,000RM. The applicant consulted his notes and agreed that the amount that [Mr B] was to lend him was 150,000RM.
The Tribunal enquired as to the commencement date of the loan. He replied that it was January 2015.
The Tribunal again confirmed with the applicant that by August 2017, he had repaid to the loan shark a little under 1,000,000 RM and that he still owed 600,000 RM. The applicant confirmed again that was correct.
The Tribunal asked the applicant whether he had any record at all of the repayments of 7,000 RM per week. He replied that he did not as payments were made in cash.
The Tribunal asked the applicant how he came to still owe 600,000 RM if he had made all of his weekly payments. The applicant replied that he started skipping payments in January of 2017. At that time, the loan shark started chasing him.
Asked why he stopped making payments, he replied that his business could no longer afford to make them.

The Tribunal confirmed that he stopped making repayments in January 2017, and not September 2017 as previously stated to the Tribunal.
The Tribunal asked the applicant what happened when the loan shark started chasing him. He replied that the loan shark began putting notices on his building and sending notices to his house. The notices demanded payment and contained a threat to break his legs.
The Tribunal asked the applicant whether he had a copy of any of the notices that had been stuck on his premises and delivered to his house. He replied that he didn’t.
The Tribunal asked why he wouldn’t have presented such an important document to the Tribunal, given that he had managed to provide copies of letters to the Queen, police reports and video evidence of CCTV security footage. He replied that he couldn’t access them, and that no one was wanting to help him.
At this moment, the Tribunal considered the evidence that had been submitted to it prior to the hearing. It considered each of the photos that had been submitted, the first one being a photo of the applicant with [Mr C] who the applicant explained was the man who introduced him to the business and who invited him to supply [Country] with the business’ product. He stated that [Mr C] asked him to operate another factory and then when it became successful, he wanted it back. There were also many photos of the applicant and his factory, together with photos of the applicant in his previous employment when he was working with the Chief State Minister of [Malaysian state]. An explanation under that photo explained how he came to be sacked by the said Minister. There was also a photo of the applicant with the [Government minister] of Malaysia. There is a photo of the applicant with a group of people whom he explains as being a group for whom he was a motivational speaker. Asked when he was a motivational speaker, he replied that he did that when his business was successful. He was an inspiration to others. There are further photos of the applicant meeting with government about Youth Councils and receiving his qualifications from the Youth Minister.
The applicant provided a USB stick with video pieces of CCTV security footage that he claims are within and outside his business premises. Two of those video clips relate to a man sticking notices on his business building dated 1 September 2017 and are time-[stamped].
Two further clips are of two men in motorcycle attire and helmets dated 19 July 2017 (time-stamped 6.58am) which appear to be of the men seeking to enter what is claimed to be the applicant’s business premises. The Tribunal enquired of the applicant as to whether he knew the men. He replied he did not know who they were. The Tribunal put to the applicant that they may have been random men attempting to break into his premises for the purposes of a robbery. He believed they were connected to the loan shark.
The final two clips were of a security camera being repositioned. These clips are dated 20 September 2017 and are time-stamped 4.02am. Asked the significance of those clips, the applicant replied that on the next day was when the man appeared in order to stick notices on his door. The Tribunal notes that the date of this video does not align with the claim made in paragraph 63, though may relate to another incident.
The Tribunal stated that it had concerns with the relevance of this evidence. It was not conclusive evidence supporting the applicant’s claims and there may be multiple explanations for each of the events that unfolded in the video sequences. The Tribunal stated that it would consider the weight it could give to such evidence. The applicant’s explanations as to their relevance was speculative only.
The Tribunal confirmed with the applicant that at no time had he suffered any physical harm at the hands of the loan shark or anyone else. He confirmed that was the case.
The Tribunal turned to the two police reports provided prior to the hearing.
The first report was dated [Date 1] September 2017 and was made at [time]. This report was made at Police Headquarters.
The statement included a declaration that the applicant had borrowed 30,000 RM. The Tribunal asked the applicant why that was the case when it was clear from his previous statements that he had borrowed 70,000 RM. He replied that 30,000 RM was just a number he gave them. He claims that he was advised by the Sergeant that if he reported the sum of 70,000 RM as the loan amount, then he would be referred to another Department, being the Commercial Department. The Sergeant appeared to suggest that by keeping the loan amount smaller, he would be able to have the matter handled by the Criminal Department. The statement also referenced a payment by the applicant to [Mr B] of 1,000 RM which was intended to be a loan attracting interest at 10% per week. The statement also referenced a sum of 144,000 RM as having been repaid. Asked what it related to, the applicant replied that it was just another number he created so as to keep it below the commercial threshold.
The second police report is dated [Date 2] September 2017 and was made at 5:00pm, but this time at a branch office. The focus of this report was the 1,000 RM that [Mr B] owed the applicant. The Tribunal noted that this complaint was more in the nature of a civil commercial issue as he was himself the lender.
The applicant stated that the police did not help him.
However, the Tribunal noted that the police did appear to help him by offering him advice as to how he might better make his complaint in order to keep it as a crime.
The applicant replied that he wanted a Protection Order.
The Tribunal asked what happened after he had filed his Police reports. He replied that [Mr B] rang the applicant and requested a meeting at the Police Station.
The Tribunal noted that the police must have done something in relation to his complaint - it appeared that they had contacted [Mr B]. The applicant agreed that was most likely.
The applicant went on to state that when he called the police when people were trying to break into his premises, the Police always said they would attend, but then never showed up.
The applicant restated that there was no follow-up from the police.
The Tribunal asked the applicant when it was that he decided to come to Australia. He replied “some-time in September 2017”. The Tribunal noted that at that time his business was in a financial mess and that he appeared fearful of the loan shark. The applicant agreed.
The Tribunal asked the applicant whether he had spoken to any Financial Counsellors. The applicant confirmed that he had and had spoken to the PPIM. The applicant advised that the PPIM was a Department within the Malaysian Muslim Consumers Association.
The Tribunal asked the applicant when he had approached the PPIM. He replied in January 2017, but went on to state that the PPIM did nothing to help him. It advised him that he still had to repay the loan. The Tribunal expressed surprise at that, given its charter and what it is reported to have done with other people in a similar position to him. The Tribunal said it would discuss that later.
The Tribunal asked the applicant whether he had any evidence of his contact with the PPIM. He replied that he did not as it involved a face-to-face interview.
The Tribunal asked the applicant whether he had had any contact with the loan sharks since he had been in Australia. He replied that he had not as he had changed his telephone number. The Tribunal asked the applicant whether he had attempted to repay the loan sharks since he had been in Australia. He replied that he had not as it was not worth it to pay them off.
The Tribunal asked the applicant whether he maintained contact with his parents in Malaysia. He advised that his parents were divorced, but that he did keep in contact with them. He also confirmed that the loan sharks have not bothered either of his parents.
The Tribunal discussed with the applicant a major concern that it had with his evidence. Apart from having no evidence of the loan itself or of the repayment of any of the loan, or any evidence of having visited or sought advice from the PPIM, the Tribunal advised the applicant that it was having grave concerns understanding how he could have agreed to borrow 70,000 RM and repay close to 1,000,000 RM in interest alone and why he would not at some point during the two years of repayments, drawn a line under the repayments and sought to refinance what was by then a very minor amount of 70,000 RM. Further, and referring to the photographs provided to the Tribunal by the applicant of the important positions in which he has been employed and the contacts that he has made, including the Attorney-General no less, and the fact that he is a motivational speaker with time to help and advise others, why he could not have sought to renegotiate his loan arrangements and reduce the risks that he felt he faced.
The applicant replied that it was because [Mr B] kept deferring the payment of the amount that he had promised.
The Tribunal commented that that was quite extraordinary given that he still believed that [Mr B] would provide the money when, on his own evidence, [Mr B] had requested, firstly, a payment of 15,000 RM from him and then had requested a loan of 1,000 RM from him to buy milk for his children and over the course of those two years had not repaid him. The Tribunal explained that it was having trouble believing that the applicant could continue to pay 7,000 RM per week in interest for two years.
The applicant then went into a long explanation about how bad business conditions were having to pay that interest. The Tribunal replied that he was only serving to make the Tribunal’s point. The applicant then explained that in addition to having to pay the interest, he also needed to spend money on improving the business. His clients were telling him that he needed to improve his services, for example by providing [specified products] for his products. The provision of [specified products] alone could have cost him 200,000 RM.
The Tribunal asked the applicant whether he had considered relocating within Malaysia. He replied that he had tried to relocate and also had tried to move his factory. The Tribunal asked the applicant when he had tried to relocate. He replied that he did that after he closed the factory. When asked when the factory was closed, he replied that he closed it two weeks before he came to Australia.
When the Tribunal commented that was hardly a genuine attempt to relocate, he replied that the loan shark will find him wherever he is in Malaysia.
The Tribunal discussed Country information with the applicant.
The Tribunal noted that the applicant would have had access to debt support services in Malaysia.
Loans shark loans can result in harassment, threats and violence towards the borrower, their family, or former family members like ex-partners. The range of these actions reported in national newspapers and by police and NGOs at news conferences is wide and in constant evolution. DFAT’s summary on this point is:
3.111 Sources report that an individual who is unable to service a debt from a loan shark risks threats or actual physical violence, having their home splashed with red paint (culturally understood as a symbol that an individual has defaulted on a loan shark and brought shame to their family), and/or having their families’ physical safety threatened. Sources claim that loan sharks engage gangsters to collect debts and harass and threaten borrowers and their family members, and those borrowers and their family members have been shot at gunpoint and had fingers cut off. Due to the illegal/underground nature of loan shark activity, DFAT is not able to verify these claims. There is significant societal shame associated with not being able to repay a loan shark. Sources report many people see suicide as the only honourable way out of being unable to repay a loan shark debt. DFAT is aware that those in debt to loan sharks have been counselled by intermediaries to place their family in a safe location and travel overseas to earn a foreign income to repay their debt faster, and to reduce risks and shame to their family.
The Malaysian state recognises the threat that loan sharks represent and a number of government and non-government agencies are tasked with trying to prevent people engaging loan sharks, or to negotiate with loans sharks to settle debts, or to encourage the reporting of loan shark activities to the police.[3] Anecdotal evidence reported in 2018 that seven out of ten borrowers would either lodge a police report or seek assistance from NGOs when an ahlong attempted to collect payments.[4]
[3] ‘Malays most notorious for borrowing from Ah long, says PPIM’, Free Malaysia Today, 5 July 2016, from-ah-long-says-ppim/; ‘Loan shark menace worsens in M’sia’, The Sundaily, 2 October 2013. ‘KL Consumer Safety Association - No need to fear the loan sharks’, Bernama (Malaysian National News Agency), 17 February 2015, ‘Loan sharks sharpen their bite’, The Star, August 2018 packages-for-major-events-aim-to-lure-more-victims/.
The government’s Credit Counselling and Debt Management Agency (AKPK) offers credit counselling on financial status and budgeting to encourage people to use financial institutions under the purview of BNM, rather than loan sharks.[5]The government in some provinces (Penang) has agreed to repay the loans of its own civil servants, minus interest, to the loan sharks.[6]
[5] AKPK, ‘Loan sharks and their illegal activities’, July 2013
[6] See Free Malaysia Today news, 2017, “Penang to help civil servants caught in loan shark web’, 6 February, servants-caught-in-loan-shark-web/
The non-government Malaysian Muslim Consumers Association (PPIM) has a unit (Ceti Haram Anti-Corruption Unit) dedicated to resolving loan shark debt by renegotiating its terms with the loan shark. It claims to have resolved thousands of cases (for a service fee). The Unit’s webpage (ahlong.ppim.org.my) allows people to report their individual cases to the agency, and in response the agency indicates that:[7]
[7] A Google Translation of this webpage accessed April 2020 provides details on how the cases are approached: see also ‘Malays most notorious for borrowing from Ah long, says PPIM’, Free Malaysia Today, July 2016 from-ah-long-says-ppim/;
·An investigating officer reviews and handle the case based on the information received
·The investigating officer negotiates with ahlong to stop the threat, stop the interest, reduce the claim and reschedule the payment.
·The complainant is not allowed to communicate with ahlong so that the case can be controlled and there is no ongoing threat. Please contact the investigating officer or the PPIM Illegal Anti- Corruption Unit hotline if there are any threats or offers from ahlong.
·The repayment period is extended
·Complainant no longer has to communicate with ahlong, all related matters will be handled by officials without the complainant's involvement.
·Monitoring the safety of the complainant throughout the case.
·Complainant's personal information is kept confidential.
·Counselling and counselling sessions throughout the case management.
·Guarantee of settlement of cases as long as the complainant adheres to the terms and conditions set forth.
The NGO Malaysian Chinese Association’s (MCA) Bureau of Coordinating Government Affairs provides a similar service to renegotiate the terms of loans with loan sharks on behalf of borrowers.[8]
[8] ‘Many still found borrowing from loan sharks’, MCA website May 2017 201704&_param2=TS.
The Tribunal also considered country information in relation to the applicant’s capacity to access state protection.
The Malaysian government has acted against illegal money lenders over several decades on diverse fronts, including by legislation, police investigation and prosecution, the removal of loan shark advertisements, and through publicity campaigns. Illegal money lending is an offence under the Moneylenders Act 1951 and punishment includes fines and imprisonment. Police powers under the Act and the penalties are summarised as follows by DFAT:
The Moneylenders Act (1951; amended 2003 and 2011) gives police considerable investigative powers against alleged loan sharks. Police can visit, enter, inspect or search premises without a warrant, and seize moveable properties and business documents to assist with investigations against alleged loan sharks. Individuals involved in illegal moneylending activities in Malaysia can be convicted under Section 5(2) of the Moneylenders Act, which carries a fine of between RM250,000 and RM1 million (AUD80,000 – AUD320,000) or, a jail term of up to five years, or both.[9]
[9] DFAT, Country Information Report - Malaysia, December 2019.

100. Sections 5(2) and 29(B) of the Moneylenders Act 1951 (as at May 2015)[10] state:
[10] Moneylenders Act 1951 (As at 1 May 2015) 15.pdf.
5 (2) Any person who carries on or advertises or announces himself or holds himself out in any way as carrying on the business of moneylending without a valid licence, or who continues to carry on such business after his licence has expired or been suspended or revoked shall be guilty of an offence under this Act and shall be liable to a fine of not less than two hundred and fifty thousand ringgit but not more than one million ringgit or to imprisonment for a term not exceeding five years or to both, and in the case of a second or subsequent offence shall also be liable to whipping in addition to such punishment.
Harassment or intimidation, etc. of borrower
29B. (1) Any moneylender who, either personally or by any person acting on his behalf, harasses or intimidates a borrower or any member of the borrower’s family or any other person connected with the borrower at, or watches or besets, the residence or place of business or employment of the borrower, or any place at which the borrower receives his wages or any other sum periodically due to him, shall be guilty of an offence under this Act and shall be liable to a fine of not less than fifty thousand ringgit but not more than two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both, and in the case of a second or subsequent offence shall also be liable to whipping in addition to such punishment.

101. The police do actively investigate and prosecute illegal money lenders. Police actions against individual loan sharks under Section 5(2) are reported on regularly in the Malaysian media.[11] Major operations are undertaken by the police every few years to investigate and prosecute loan sharks. Most recently in October 2019, Inspector-General of Police announced that loan sharks also “could face action under Anti-Money Laundering, Terrorism Financing and Proceeds of Unlawful Activities Act (AMLA)…a multi-prong legal approach”.[12] Similar police operations against loan sharks occurred in 2014 and in 2017.[13]
[11] ‘14 held for illegal money lending in Pahang, items worth RM1million seized’ NST, November 2019 items-worth-rm1million-seized; ‘Violent gang of loan shark members nabbed’ The Star, Jan 2020 ‘We are coming after you, IGP warns loan shark’, Bernama, Oct 2019 ‘Loan shark ring busted, 31 nabbed in nationwide raids’ The Sun Daily, April 2017 BTARCH440034; Tan, S C, ‘Crackdown on Ah Long’, The Star Online, 25 April 2014 curb-illegal-moneylending/ ; Police: Over 2000 loan shark cases reported from Jan 2016 to July 2017’, The Star Online, 7 August 2017 2000-loan-shark-cases-reported-from-jan-2016-to-july-2017/.
102. Malaysian authorities respond to the changing tactics of loan sharks. The Urban Wellbeing, Housing and Local Government Ministry, which is responsible for issuing licences and monitoring operations of money lenders under the Moneylenders Act 2011, recognised in 2016 that the issue remained a serious one given the greater use of electronic media, and that extra measures were required to curb illegal lending. The Deputy Minister highlighted measures to educate the public against the use of loan sharks and greater financial assistance to small business to achieve this. He quoted the following statistics on prosecutions and investigations at the time:
·A total of 306 illegal money lenders have been charged in court since 2011.
·They were among 905 suspects detained for investigations to 2015.[14]
[14] ‘Three ministries to formulate solution to Ah Long problem’ Perak Today March 20916 Corruption can limit the effectiveness of police action against loan sharks. Some police are reported to work with loan sharks (for payment) to avoid investigations against them. [15] DFAT’s overall assessment of police and court process in Malaysia includes the following:
[15] ‘The police inspector and the loan shark’ The Star August 2017, The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is 80 – 85 per cent Bumiputera.
5.6 According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms including establishing compliance units within RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.
5.7 External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission [EAIC], which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts.
…
5.17 DFAT assesses that while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.

104. Based on complaints received by the Malaysian Anti-Corruption Commission (MACC) between 2013 and 2018, the enforcement sector emerged as the second highest (after procurement) at 24%. The former Pakatan Harapan (PH) government that was elected in 2018 was willing to contain corruption across Malaysia, shown through its five-year National Anti-Corruption Plan 2019-2023. This plan includes the goal “to transform and convert the current Enforcement Agency Integrity Commission (EAIC) into an Independent Police Complaints and Misconduct Commission (IPCMC) to address integrity issues and curb misconducts among members of the Royal Malaysia Police”. The IPCMC Bill was tabled for its first reading in July 2019. Following the collapse of the PH government in February 2020, the Bill now is undergoing review by the Law and Parliamentary Affairs and Home Ministers of the new Perikatan Nasional (PN) government which formed in early March 2020.[16]
[16] ‘IPCMC Bill to be reviewed before reaching Cabinet’, Malay Mail website, March 2020 cabinet/1848016.
105. The Tribunal invited the applicant to comment on that country information. The applicant advised that he had been to the PPIM, but that it didn’t help him. The applicant stated that he had been to the police but they had done nothing.
106. The Tribunal was troubled by the two police reports. The first report on [Date 1] September, reported amounts totally inconsistent with the amount of loan the applicant claimed to have borrowed, as was the interest repaid. The applicant did offer an explanation for this. But he also stated that he had repaid some of the principal, and that he now owed only 10,000RM and had offered to pay 30% of that. He then reported that [Mr B] had cut off communication with him, including through [Social media] and other things. But he claims he still made contact with [Mr B] about the sum of 1000RM owed by [Mr B] to him. He went out of his way to chase [Mr B] for 1000RM, an extraordinary thing to do when he claims to fear [Mr B]. He then stated that [Mr B] said some things to him that intimidated him, including having a friend who would throw red paint at him. He then makes a second complaint, at a different police station, the following day. This time the complaint is about [Mr B] owing him money, and there is no mention of loan sharks to whom he owes money. There is no claim about threats from loan sharks, only some threats from [Mr B] about wanting to have a boxing match or meet him with other people. And mention of a lady who will throw paint on him.
107. The police complaints are not consistent. The police complaints do not accurately state the position in which he claims to be – having purportedly repaid nearly 1,000,000RM in interest on a 70,000RM loan. He does not report the notices left on his premises or the threats referenced therein. He does not report any of the incidents captured on his security footage.
108. The Tribunal is also concerned generally about the form of the complaints. In the second report, his complaint is against [Mr B], who owes him money. There is no mention of loan sharks or threats by them. In both police reports, he does not address fears of threats from the loan sharks, only from [Mr B], whom he has gone out of his way to chase for repayment of a debt of 1,000RM, a remarkably small amount given the amount of money the applicant claims to owe a loan shark. The applicant provided no plausible explanation as to why he attended two different police stations within a day of each other.
109. The Tribunal has grave concerns about the genuineness of the claims of the applicant as to the amount of money he owes and to whom. As previously noted, the applicant has no record of the loan, no certainty as to the identity of the lender, no record of any repayments made, no copies of notices of default or threats made to him. He has police records that make no complaint against the loan shark, only [Mr B] who owes him money, and complains only of threats made to him by [Mr B] and his friends. Consequently, the Tribunal has similarly grave concerns about the genuineness of the complaints allegedly made to the police.
110. The Tribunal is not satisfied that the applicant has made a genuine complaint to the police when he had the opportunity to do so.
111. The Tribunal is not satisfied that the applicant reported his position as claimed to the PPIM either. There is no evidence of his having sought assistance, only vague reference to a face to face meeting and no support offered. The powers of the PPIM are well stated in country information, yet the applicant claims they only advised him to keep repaying the loan – totally contrary to the purposes and objectives of the PPIM.
112. The Tribunal has serious reservations about the credibility of the applicant in relation to his claims about the loan, the amount of the loan and interest payable and repaid. As discussed in detail with him, the Tribunal was troubled by how a man such as the applicant, with the business experience he had, the successful business that he had, the previous high level government employment that he had, the contacts that he had made (in the Attorney General), and the time that he took to counsel and advise others in mentoring roles, could enter into such a loan with someone he only vaguely knew as “[Mr A]”, not have it in writing, agree to pay 10% interest per week, freely repay the loan for two years or more, and with interest in an amount near 1,000,000RM, have no evidence of any of the repayments he had made, not attempt to renegotiate the loan shortly after the interest amount exceeded the principal loan amount, and all the time claim to be holding out for a loan from [Mr B] in an amount of 100,000RM or 150,000RM, a man to whom he had to lend 1000RM for milk for his children and who after some time, admitted he could not raise the money for a year.
113. The Tribunal has commented on the concerns it has in relation to the police reports.
114. It also has concerns about the video evidence submitted. There are essentially three sequences recorded, from two separate cameras. The first is of two unidentified men in bike helmets approaching the doors to what is claimed is his business. They approach the doors, and finding them locked and chained, move off. The applicant stated he didn’t know who they were. The second sequence is of a man approaching the front door of what again is claimed to be his business with a notice which he affixes to the front of the door. Again, the applicant does not know who he is. But it is conduct consistent with someone attaching a notice of default on premises. It could be a rent default, effectively any type of default in payment relating to his business, which the applicant admits in one of his police reports, is “facing deficit”. The third sequence is simply of a corridor and at the end of the sequence, the camera is moved to face upwards. The evidence is not conclusive of anything, and as such, the Tribunal gives it no weight at all.
115. Similarly, the Tribunal gives no weight to a copy of a letter submitted by the applicant addressed to the Queen.
116. The Tribunal accepts that the applicant may have borrowed some money from a lender for his business at some stage. But it does not accept that the applicant has borrowed and repaid the sums of money as claimed in his application based on all of the concerns raised by the Tribunal aforementioned. It does not accept that the applicant has attempted any genuine contact with the police or credit counsellors about his true position. It does not accept that he has received any threats of violence or other harm from [Mr B] – as it is [Mr B] that owes the applicant money. The applicant’s evidence is that [Mr B] sought to disassociate himself from the applicant, yet the applicant tracked him down. There is no evidence of any actual physical violence from [Mr B] towards the applicant. The Tribunal does not accept that the applicant has any genuine fear of harm from [Mr B], money-lenders or anyone else. The Tribunal finds that the applicant’s business was in a financial mess, that he closed the business and sought a fresh start in Australia.
117. The Tribunal considered whether the applicant’s fear of harm, if genuinely held, is based upon reasons outlined in s5J(1) and in particular whether there is a particular social group as defined by s.5L of the Act that the applicant would belong to. The Tribunal has considered whether he would be perceived to be a member of a group such as ‘debtors’, ‘borrowers unable to make repayments’, ‘borrowers unable to make repayments threatened by debt collectors’, and other similar iterations.
118. The Tribunal acknowledges that if it accepted the applicant’s claims, the applicant could be perceived to be a member of such a group. However, the ties that bind the potential group together is defined by a shared fear of persecution and therefore s.5L(d) is enlivened.
119. The circumstances of the case do not lend themselves to consideration under any other of the reasons in s5J(1) (i.e. race, religion, nationality or political opinion). As such the applicant cannot be considered a refugee and for this reason Australia does not owe the applicant protection under s.36(2)(a).
Cumulative claims
120. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his owing money to a loan shark, or any other reason if he returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Malaysia. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
121. The Tribunal has considered the applicant’s claims under complementary protection.
122. The Tribunal does not accept that the applicant faces harm based upon the threats of harm he has allegedly received. The applicant has not suffered any actual harm by means of physical violence. The threats he has received are contained in notices that he has been unable to provide a copy of. There are threats complained of made by [Mr B] – the man who owes the applicant money. The applicant claims that [Mr B] claims that the applicant owes him money, but there is no evidence of that – quite the contrary.
123. The Tribunal accepts that the incidence of loan sharks in Malaysia is a problem and that, on occasion, unscrupulous loan sharks or gangs may use violence or threats of violence against debtors to collect debts. However, the Tribunal is not satisfied, based on the evidence before it, that this is what happened to the applicant before he left Malaysia or that there are substantial grounds for believing that there is a real risk of this happening to him on his return.
124. For the sake of completeness, the Tribunal has considered that whatever money the applicant has borrowed in the past was borrowed from an illegal money-lender. The Tribunal notes that the country information indicates that the Malaysian authorities, including the police and judiciary, are generally considered to be professional and effective and are reasonably effective in combating illegal money-lenders and criminal gangs and there has been a great deal of coverage in Malaysian media regarding the various operations by law enforcement authorities to combat this. The Tribunal also notes that although there is corruption within the system, there is nothing in the independent information to indicate that the state is unable or unwilling to protect him in his particular circumstances.
125. In relation to the overall effectiveness of authorities in Malaysia, as noted earlier, the Tribunal has relied on country information showing that measures have been put in place to address corruption and police and indeed the government has been making a concerted effort since at least 2013 to combat corruption and money lenders and gangs and there is no evidence that the police have refused the applicant any assistance. The country information and media reports indicate the government has taken this issue seriously and has committed extensive resources to do so. This, in the Tribunal’s view, demonstrates that effective protection measures are available, namely that protection against serious or significant harm could be provided to the applicant by the Malaysian State and that the Malaysian State is willing and able to offer such protection. The Tribunal is satisfied that the applicant has not attempted any genuine contact with the police about his true position. Had the applicant pursued these options genuinely, the Tribunal is of the view that the state would have acted to provide protection measures to the applicant.
126. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Malaysia now or in the reasonably foreseeable future.
127. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Malaysia now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
128. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
129. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal 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 that there is a real risk that he will suffer significant harm.
Overall Conclusion
130. 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).
131. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
132. 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
133. The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Hawkins
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.
…

[2020] AATA 4206

18 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction