1816541 (Refugee) - [2020] AATA 3476

1816541 (Refugee) [2020] AATA 3476 (3 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816541
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Deputy President Jan Redfern
DATE:3 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 3 September 2020 at 11:30 AM

CATCHWORDS
REFUGEE – Protection (Class XA) (Subclass 866) visa – Malaysia – application for protection on basis the basis of the refugee and complementary protection criterion – applicant claims to fear harm from loan sharks – consideration of refugee criterion in s 36(2)(a) of the Migration Act 1958 – no refugee nexus – consideration of complementary protection criteria in s 36(2)(aa) of the Migration Act 1958 – whether real risk of significant harm – applicant found to not be a person in respect of whom Australia has protection obligations under s 36 of the Migration Act 1958 (Cth) – decision under review affirmed.
PRACTICE AND PROCEDURE – virtual Microsoft Teams hearing in circumstances of COVID-19 pandemic – applicant and brother made separate applications for a Protection visa based on similar claims – both applications constituted to the same Tribunal Member –Tribunal determined evidence in one application would be evidence in the other application – common witnesses.
LEGISLATION
Migration Act 1958 (Cth), ss. 5(1), 5H, 5J, 5L, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 36(2A), 36(2B), 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Australian Securities Investment Commission v GetSwift Limited [2020] FCA 504
AVN15 v Minister for Immigration and Border Protection [2019] FCA 1825
Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486
Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Tetley v Goldmate Group Pty Ltd [2020] FCA 913
SECONDARY MATERIALS
Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Complementary Protection Guidelines’
Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Refugee Law Guidelines’
Department of Foreign Affairs and Trade, Country Information Report on Malaysia, dated 13 December 2019.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 June 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (‘the Act’).
The applicant was born in [year] in the state of [x], Malaysia. She claims to be a citizen of Malaysia. This is not in dispute. The applicant first arrived in Australia on 12 March 2017 on a UD-601 visitor visa Electronic Travel authority, she departed Australia and returned on 14 November 2017 on a UD-601 Electronic Travel authority and applied for a protection visa on 23 January 2018.
The applicant claims to fear physical and emotional harm from loan sharks if she returns to Malaysia because she owes money that she says she cannot repay. She lodged an application for protection which sets out her claims. The applicant was not invited to attend an interview with the Department. The delegate refused the application, finding that the applicant was not a person to whom Australia had protection obligations under ss.36(2)(a) or (aa) of the Act. The applicant applied to the Tribunal for review of this decision on 6 June 2018.
I was originally constituted to review an application made by the applicant’s brother. Because it was apparent that his claims for protection related to the loans owed by the applicant, I requested that both cases be constituted to me. I determined that the reviews should be heard together, with the evidence in one case being the evidence in the other. This is consistent with the approach advocated by Logan J in AVN15 v Minister for Immigration and Border Protection [2019] FCA 1825.
Both the applicant and her brother were invited to a telephone hearing and both objected on the basis that they lived in regional [state] and did not have good stable telephone connections. They requested delay until the matter could be listed through an in-person hearing.
I scheduled a telephone directions hearing on 2 July 2020 to discuss what arrangements should be made about a hearing. The applicant and her brother, who live together in [city], [state] agreed they had a good internet connection and had a private space in the house they shared which would allow them to participate in a hearing. Pre-hearing outreach was undertaken, and the applicant provided documents said to support her claim, together with telephone contact details for her mother. As a result of the outreach undertaken by a Tribunal officer, I determined to proceed with a hearing by video conference through the Microsoft Teams (MS Teams) platform. As observed by the Federal Court on several occasions since the commencement of the COVID-19 pandemic, the legal system must continue to function, and parties may have to accommodate less conventional approaches to hearings. Whether a hearing can or should proceed through online platforms is a matter that should be determined on the facts of each case.[1] In this case, I formed the view that the matter could proceed through MS Teams. Both applicants had good access to the internet, there were few documents to consider, there was a private place in their home for the hearing to be conducted and arrangements could be made for an interpreter to assist them.
[1] Refer for instance Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Perram J); ASIC v GetSwift Limited [2020] FCA 504 (Lee J) [7] [33] and
The hearing was conducted with the assistance of a Malay interpreter on 30 July 2020 by MS Teams videoconferencing. The applications were listed separately and, while both applicants gave evidence separately, evidence was taken from their mother by telephone from Malaysia in the presence of both applicants. Both applicants requested that I take evidence from each other and from their mother in Malaysia. Their evidence was different insofar as they reported different experiences but was broadly consistent. This was discussed in general terms with both the applicant and her brother near the end of the scheduled hearings, when they were brought together to hear the evidence of their mother and to discuss the issues more generally.
I have considered the claims made by the applicant and her brother independently but have taken into account the evidence given by both. These reasons set out my consideration of the claims and necessarily detail the same evidence and country information and, in this respect, are repetitive.
In summary, I accept much of the evidence given by the applicant and her brother and it was therefore unnecessary to adopt the formal procedure in respect of adverse information under s.424AA of the Act. Despite this, I am not satisfied that the applicant meets the criteria for protection.
I therefore affirm the decision under review and my reasons follow.
RELEVANT LAW
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 ss.36(2)(a), (aa), (b), or (c) of the Act.
To meet the criterion under s.36(2)(a) of the Act the applicant for a protection visa must satisfy the decision-maker that he or she is a refugee as defined by the Act. Relevantly, the decision-maker must be satisfied that, owing to a well-founded fear of persecution, the applicant is unable or unwilling to avail themselves of the protection of that country.[2] 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.[3] This is referred to as the refugee criterion in this decision.
[2] s.5H(1)(a) of the Act.
[3] s.5J(1) of the Act.
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of the visa under s.36(2)(aa) of the Act (being the complementary protection criterion) if the decision-maker is satisfied there are:
.. 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 the applicant for the protection visa will suffer significant harm.
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) of the Act.
Subsections 36(2)(b) and (c) of the Act provide that an applicant may meet the criterion for protection if he or she is a member of the same family unit as a person who meets the refugee or complementary criterion and who holds a protection visa of the same class as applied for by the applicant.
Extracts of the relevant provisions of the Act are an attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84[4] made under s.499 of the Act, the Tribunal is required to take into account policy guidelines prepared by the Department of Home Affairs -Procedural Advice Manual 3 ‘Refugee and humanitarian - Complementary Protection Guidelines and Procedural Advice Manual 3 ‘Refugee and humanitarian - Refugee Law Guidelines- and any country information assessment 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.
[4] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.
The most recent report from DFAT is the Country Information Report for Malaysia dated 13 December 2019 (‘DFAT report’), which I have considered.
Generally, the Guidelines prepared by the Department contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. They were of limited assistance in the circumstances of this case.
BACKGROUND
The applicant first arrived in Australia on 12 March 2017 on a visitor visa and subsequently departed after about two months. She re-entered Australia on 14 November 2017 on a visitor visa obtained through an Electronic Travel Authority. The applicant applied for a protection visa on 23 January 2018.
In her application, the applicant stated that she was claiming protection because she feared harm from loan sharks. In response to the question about why she left her country, the applicant stated to the effect that she left Malaysia was because she was in debt with a loan shark, the bank and her company customers and owed a total of RM200,000 or (AU66,000) because her business partner run away with the company money and all loans from the “loan shark” and the bank were in her name. The applicant stated that she was concerned about her health because of the pressure of the debt. She had depression and had fallen sick over the past year because of concerns about the debt. The applicant further stated that she had suicidal thoughts.
In response to the question in the application about what the applicant thought would happen to her if she returned to Malaysia, the applicant stated to the effect that she was concerned if she returned she would be harmed and threatened emotionally and physically by the loan shark and by “any other party involved in the business”. She was also concerned that she would be declared bankrupt, her assets would be frozen and that she could not be a director for any business, buy any asset or travel outside Malaysia as it usually takes 10 years or more under a court order. She was concerned that any money she earns would be taken by the bank and this money would not be paid against the debt owed to the loan shark.
In answer to the question in the application about what harm she had experienced, the applicant stated that she had received threats and had been followed by a loan shark several times and warned about late payments. She stated that she had been threatened verbally and was concerned that she would be physically harmed on her return.
The applicant’s brother arrived in Australia on a visitor visa, through an electronic travel authority, on 10 January 2018 and made an application for protection on 16 March 2018. His claims were set out in his application for protection and were to the effect that he was concerned he would be harmed by loan sharks because of the debts owed by the applicant that he had “guaranteed”. He recounted an incident where he stated that he was followed and then hit by a car when he was riding his motorcycle. He also stated that the loan sharks had come to his house and to his work and had slapped and beat him a few times.
The delegate’s reasons for refusing the applicant’s visa were set out in a decision record dated 4 June 2018. The delegate did not make any findings about the truth of the claims made by the applicant about threats from loan sharks but rejected the claim for protection under the refugee criterion 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 the delegate 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. Relevantly, the delegate relied on extracts from the DFAT report about enforcement action against loan sharks and loan shark syndicates together with newspaper articles reporting the results of police action in 2016 and 2017. According to the delegate, Malaysian authorities were willing and able to provide the applicant with an “adequate level of protection” such that there would not be a real risk that she would suffer significant harm under s.36(2B)(b) of the Act.
OUTLINE OF EVIDENCE
As a result of the directions hearing the applicant was requested to provide any further evidence or information in support of her application, including any loan agreement, documents relating to the loan, any guarantees, a copy of any report made to authorities and any correspondence or receipt of repayment.
On 21 July 2020, the applicant provided a copy of TransferWise Transfer Confirmation receipts recording the transfer of AUD200 and AUD360 on 3 September and 17 October 2019 respectively and copies of handwritten pages from a notebook said to be a ‘ledger’ recording payments made to the applicant’s former client. The applicant said that these transfers recorded payments made by her into her mother’s account which her mother then paid to the moneylender. The applicant’s brother said that these were monies that he paid to the applicant for repayment to the moneylender. Ultimately, I have formed the view that any inconsistency in this evidence is immaterial as I accept the evidence of the applicant and her brother that they both remitted money to their mother to pay towards the debt owed by the applicant. The applicant said that the handwritten notes represented a ledger of the amounts owing and paid by the family to the moneylender, who was a former client of the applicant. This document was said to have been prepared by the former client and is said to show that the amount outstanding is RM33,750 (approximately AUD11,000). The ledger refers to amounts which appear to be increased by 50%. The applicant could not explain these amounts and whether they included interest but said that she believed the amount recorded was said to be the amount outstanding as at January 2020.
The following is an outline of the evidence given by the applicant, her brother and their mother.
The applicant left college in [year] when she was about [x] years old with a Diploma in Hotel Management and Hospitality. She has a mother, father and younger sibling in Malaysia. Her brother came to Australia a few months after her and they have lived and worked together in Australia since their arrival. She initially worked in [city] and was now working in regional [state], where she had a full-time role until November 2020. The applicant said that she completed her brother’s application for protection on his behalf.
The applicant said that she worked with her mother in the family business for a period and then started her own business, initially selling spices, and then operating food vending machines from 2016 with a business partner. This business was operated near [city] for about 6 to 12 months. The business was operated through an incorporated company but ran into financial difficulties when her business partner ran away with money. She borrowed money from a bank but needed to borrow more money and ended up borrowing money from a former client. The applicant said that she borrowed about RM55,000 between 2015 and 2017 but that she had to pay interest of about RM45,000. The applicant said that she did not sign any documentation. Her mother assisted her with the arrangements to borrow the money. The applicant said that she found it very difficult to keep up with repayments by late 2016 and in early 2017 the moneylender’s debt collectors visited her house. They banged on the door and demanded payment. They did not physically harm her but threatened her verbally. She said that they came to the factory where she worked and spilled animal blood and red paint on the floor. The applicant said that the moneylender asked her brother to take over the debt. The applicant said that she did not report this to the police because when she had previously complained about her business partner, the police told her this was a personal matter and they would not investigate. The applicant said that she believed this was a serious matter but she could not explain why these incidents were not reported to the police. When asked about whether she sought help from government agencies, she said that she sought help for her depression and anxiety but when she went to the Malaysian Muslim Consumers Association (‘PPIM’) for assistance there was delay and they told her that she would need to pay the principal, although they may be able to negotiate in relation to the interest. The applicant said she did not pursue this because at the time she still owed a large amount of the principal and could not afford to repay that amount.
The applicant said that she was very concerned about going bankrupt and about the money that she owed to the bank, which we she said was in the vicinity of RM80,000 to RM100,000. She came to Australia to get away and to try and earn some money to pay the debt.
She said that her brother told her he had been followed by the loan sharks and that she saw two people pushing her brother at the factory one day. The applicant said that she was overwhelmed by her financial problems and still had depression and mental health issues. She did not seek any assistance from the police or credit agencies because she did not believe they would be able to assist her.

The applicant’s brother gave evidence that he left college in [year] with a diploma from a vocational college in welding technology. He was [x] years old when he left college and he worked for approximately three months on a construction site in [state]. He also worked assisting his mother in the family business while he was attending college. The applicant’s brother said that he did not know much about the circumstances of the loan but he took on the role of assisting his mother and sister in the repayment of the loan and paid as much money as he could towards the repayment of the loan.
He said that there were two occasions when he was visited by associates of the loan shark. He said that they came in twos or threes. On the first occasion they visited him in about 2016 when he was coming home from work late at night. He said that one of them threatened him and that he was slapped across the face with an open hand. The applicant said that he told his family about this in the morning, but he did not go to the police because he believed the police would not assist him. He did not seek any medical treatment at that stage, when questioned about why he did not report this matter to the police, the applicant’s brother said he was concerned it would embarrass the family but could not explain why this was so. When asked about whether he knew there were agencies in Malaysia that could assist with people in negotiating repayments of loans with unlicensed moneylenders, he said he did not know this because he was too young. The applicant’s brother said the second occasion was when he was at his work construction site in [state] in late 2017. Two people that he did not know came to his worksite and threatened him, asking why the debt had not been paid. The applicant’s brother said that they threatened him, physically grabbed him by the neck and slapped him. He was only slapped once and there were no witnesses on the construction site because it was early in the morning and no one was there. The construction site was approximately two hours from [city]. The applicant’s brother could not explain how the associates to the loan shark knew where he was working. According to the applicant’s brother, he did not tell his family about this because he did not want to worry them. He said that he did not go to the police because they were “only there for a few minutes”. The applicant’s brother said that he was aware of threats made to the applicant by the loan sharks because she told him about this. He said that he was concerned about returning to Malaysia because of the possibility of threats and being physically harmed by the loan sharks. He described a further incident when he was riding his motorcycle in [city] and the loan sharks tried to hit him with the car they were driving.
Both the applicant and her brother said that they were concerned about the associates of the moneylender hurting their family.
The mother of the applicant and the applicant’s brother, [name removed], gave evidence by telephone. She said that when the applicant started her business, she needed to borrow money. She borrowed about RM50,000 from a ‘loan shark’ and also borrowed money from a bank. The applicant’s mother said that she was paying money to the moneylender from money that was being sent to her by her son and daughter from their work in Australia. The applicant’s mother said that the family had moved to the country after the children had left Malaysia and the loan sharks had never come to visit them there. She said that earlier they had been threatened verbally to repay the money. When asked what was said, the applicant’s mother gave evidence that the associates of the loan shark had said they would harm their younger daughter. When asked why she did not report this to the police, the applicant’s mother said that this was an isolated incident and she decided not to report it because the children were repaying the loan. The applicant’s mother said that she did not tell her children about the threat against their younger sister. She also said that she had never seen her children being harmed or assaulted by loan sharks but they had subsequently told her about this. According to the applicant’s mother, the amount owed as at January 2020 was RM33,750. She could not explain the ledger entries in the document provided to the Tribunal. This document was prepared by the applicant’s former client who loaned the applicant the money.
CONSIDERATION
Outline of the applicant’s claims
The essence of the applicant’s claim is that she fears harm, being psychological, physical and economic, as a result of borrowing money from a former client who she describes as a “loan shark”. A person described as a loan shark is generally understood to be a moneylender who charges very high interest rates typically under illegal conditions. According to DFAT, loan sharks or payday financiers, referred to as ‘Ah Long’ by the Chinese Malaysian community, carry out moneylending activities without a licence but operate very publicly in Malaysia even though the practice is illegal.
The harm feared by the applicant relates to the fact that she is not able to repay the money borrowed and she fears being harassed by debt collectors. She also fears being physically harmed because even though she has not been she claims that her brother has. It is also apparent from her evidence and her written application for protection that she fears bankruptcy, formal court orders being made against her and the legal implications of any enforcement action being taken against her, principally by the bank, but possibly by the moneylender. The psychological harm she claims is a combination of the stress she is facing given these unresolved debts and the harm from what she claims is the harassment and threats of the debt collectors.
Relevant country information
There is country information available to the effect that loan shark activities have been a persistent and deep-rooted feature of Malaysian society for several decades.[5] According to DFAT, although it is noted that this cannot be verified:
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.[6]
[5] Y. G. Guan, ‘The Long and Short of the "Along" Problem’, May 2003, The Malaysian Bar Association website.
[6] DFAT report at [3.111].
DFAT also reports that while “authorities tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice… the Commercial Crimes Investigation Department reported 3,903 cases and arrested 2,698 people in relation to loan scams between January and November 2018”.[7]
[7] Ibid at [3.112].
Unlicensed money lending is illegal under the Moneylenders Act (1951; amended 2003 and 2011) which gives police considerable investigative powers against alleged loan sharks. DFAT reports that police have made a number of recent high-profile arrests and investigations at [3.116] but note as follows:
3.117 Very limited research is available on loan sharks and the individuals that engage these services, possibly due to their links to gangs and corruption. DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, their likelihood of seeking police protection, or the level of protection offered by police. DFAT assesses those who are unable to service debts to loan sharks, and their family members, can face societal discrimination due to familial shame, and may also face a real or perceived risk of harassment and violence from loan sharks and/or gangsters. However, DFAT notes formal credit agencies are able to consolidate loan shark debts and provide payment plans, and therefore engaging such agencies is an option to mitigate against potential risks posed to those in debt.
According to DFAT, the PPIM, which provides services predominately for the Malay community, was involved in over 10,000 cases involving loan sharks between 2012 and 2016.[8] The PPIM maintains a Malay language website where people can report loan shark cases. The website records that the PPIM has resolved “thousands of cases” and the website sets out the procedures that are adopted and available remedies, including an investigating officer negotiating to stop the threats and interest, reducing the claim and rescheduling payments.[9]
[8] DFAT report [3.115].
[9] Ahlong.ppim.org
Findings
I accept the applicant’s claims that she is in debt in Malaysia and that she borrowed money from a bank and then from a former client who was operating as an illegal or unlicensed moneylender. I also accept the applicant’s claim that when she could not repay those debts, she was pursued by debt collectors acting for the moneylender and possibly also the bank. I accept the applicant’s claims that if she returns to Malaysia and she cannot repay the bank loan, the bank may seek to enforce the debt in the courts and make her bankrupt.
The first question is whether these claims could ground a claim for protection under the refugee criterion set out in s.36(2)(a) of the Act.
To meet the refugee criteria in s.36(2)(a) of the Act the Tribunal must be satisfied the applicant is a refugee, as defined by s.5H of the Act. In brief and as already noted, any fear of persecution must be well-founded and must have a refugee nexus, namely, the person claiming protection must fear being persecuted for reasons of race, religion, nationality, political opinion or because he or she is a member of a particular social group. The reason, or reasons, must be the essential and significant reason for the persecution (s.5J(4)(a) of the Act).
Having regard to the material before me, I am not satisfied that the harm claimed is for one or more of the reasons set out in s.5J(1) of the Act. There is no claim that the applicant’s former client, or any debt collectors on her behalf, are threatening the applicant because of her race, religion, nationality, political opinion or because she is a member of a particular social group. It is clear from the evidence provided by the applicant that any claimed threat or potential for harm relates to fear by the applicant that she will be verbally abused and harassed and potentially physically harmed if she does not repay the money owed. The applicant is also concerned about bankruptcy. This claimed harm arises because she owes money to an illegal moneylender that she is unable to repay. This is the essential and significant reason for the harm that the applicant claims she will suffer. This is not one of the reasons enumerated in s.5J(1) of the Act.
While the refugee nexus of being a member of a particular social group can have a broad application, s.5L of the Act makes it plain that each member of the identified particular social group must share a characteristic and that characteristic must either be innate or immutable or so fundamental to a member’s identity or conscience the member should not be forced to renounce it or it must be a characteristic that distinguish the group from society. The characteristic cannot be the fear of persecution. In this case, the common characteristic of the social group would be persons in Malaysia who borrow money from illegal moneylenders and who cannot repay the loans. However, this is not a characteristic that could be described as innate or immutable to each of the persons. It is based on something each member has done based on their individual circumstances. Nor can this be described as something done by the person because it is fundamental to the member’s identity or conscience. There is no evidence contained in the country information that being a victim of an illegal moneylender is a feature that is recognised in Malaysian society as something that distinguishes that ‘group’ from other members of the community. While it is recognised in Malaysia that this illegal practice is not uncommon and failure to pay may cause societal shame[10], this practice is widespread and does not discriminate in relation to particular sectors of the Malaysian community. For instance, groups who borrow from loan sharks include low-salary civil servants, small start up businesses, gamblers and drug users.[11]
[10] Refer DFAT report at [3.111].
[11] ‘Easier, faster for civil servants to borrow from loan sharks’, Malaysians Insider, March 2016; ‘Loan shark menace worsens in Malaysia 2013, The Sun Daily, 2 October >
As such, I am not satisfied the applicant has a well-founded fear of persecution as required for the purposes of the definition of a refugee contained in s.5H of the Act. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act because I am not satisfied she is a refugee.
Having decided that the applicant does not meet the refugee criterion, I must then consider whether the applicant is a person in respect of whom Australia has protection obligations under the complementary protection grounds set out in s.36(2)(aa) of the Act.
Accordingly, the critical issue in this case is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk the applicant will suffer significant harm.
Significant harm is exhaustively defined in s.36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. There is an intentional element to the meaning of cruel, inhuman and degrading treatment or punishment (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34). A real risk or a real chance is one that is not remote or insubstantial or a far-fetched possibility.[12]
[12] Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally (refer s.36(2B) of the Act).
Both the applicant and her brother gave evidence that was consistent with the claims that the applicant borrowed money from a former client who was an unlicensed moneylender and who apparently engaged in sharp practices by charging high interest and engaging debt collectors to apply pressure to the applicant and her family to repay the loan. It is apparent these practices were successful because on the applicant’s evidence, the debt has reduced from approximately RM100,000 (including interest) to RM33,750. While it is not entirely clear, this appears to include interest. These claims are consistent with the country information to the effect that this practice is widespread.
According to the applicant, she was not physically harmed but she was verbally harassed and there was an incident at her factory where animal blood and red paint were spilled on the floor. There are some inconsistencies in the evidence of the applicant’s brother about the nature of the harm that he says he faced in Malaysia. For instance, he was unable to explain why the debt collectors would drive two hours from [city] to visit him at his workplace to threaten him for only “a few minutes”. While this is difficult to understand, it is not entirely implausible. The applicant and her brother did not report any of these matters to the police. When questioned about this, both said that they did not believe the police would do anything. However, this is an easy assertion to make, particularly when the issue was not tested. The evidence is that neither the applicant nor her brother ever attempted to make a report to the police.
Their mother provided evidence confirming the existence of the loan and that she was receiving payments from them to pay off the loan but her evidence that the loan sharks had threatened to hurt her younger daughter and that she did not report this to the police is implausible. The only explanations for this are that she did not believe the threats; she is exaggerating the nature of the threats or they simply did not occur. There is country information to the effect that police are generally unsympathetic but there is no evidence, other than the mother’s assertion, that police would fail or refuse to investigate reports of actual physical harm or threats of physical harm to the younger sibling. As such, I give this evidence little weight.
In summary, while I accept that the applicant, her brother and possibly some members of her family were verbally harassed by the moneylender, or on the moneylender’s behalf, I am not satisfied that they were seriously physically assaulted or that the threats of harm were as serious as initially conveyed in their respective applications for protection. When both applicants were questioned on the particulars of these claims, the harm was described as verbal abuse, the incident at the factory and a slap on two occasions. There was an incident alleged by the applicant’s brother that the debt collectors attempted to hit him with their car when he was on his motorcycle, but this claim was vague, it is unclear how the applicant’s brother knew this was a deliberate action and he did not report this to the police. Neither the applicant nor her brother gave evidence that either of them were “beaten”. I accept that verbal harassment can be a form of harm and I accept that the experience that the applicant, her brother and her family have had in relation to the illegal money lending would have been deeply distressing and would have no doubt weighed on the applicant’s mental health. However, the critical question is whether I am satisfied that, based on these claims and my findings about what I accept happened, there is a real risk the applicant will be exposed to significant harm on her return to Malaysia.
In this case, there is no evidence provided by the applicant or her brother and mother to the effect that the former client was involved with criminal gangs or that they were subjected to pain or suffering of a serious or severe nature. Relevantly, the nature of the threats and harm described by the applicant and her brother at the hearing could be characterised as low-level harassment. Notably, neither the applicant, her brother or mother have gone to police to report the harm claimed and the only evidence that police would fail or refuse to investigate potentially criminal conduct, was their own evidence where it was apparent they did not test the issue. The only evidence raised by the applicant about this was evidence that the police refused to investigate the alleged malfeasance by her business partner, which the police reportedly described as a private matter. This can be distinguished from cases where there has been harm or threats of harm and there is a claim the police have failed or refused to investigate or take any action. There is no evidence of this in this case. The fact the applicant has not attempted to avail herself of any support from non-government agencies, such as the PPIM, in a meaningful way or to complain to police tends to undermine her claim that she will face significant harm on her return to Malaysia. It can be inferred that the applicant and her family did not consider these threats to be sufficiently serious to warrant taking any of this further action.

Having regard to the country information, it is evident that the applicant has various options available to her on her return to resolve the issues she has with her former client. She can approach PPIM to assist her in renegotiating the debt and arrangements for payment, particularly given the debt has reduced significantly. She may also complain to police if there are threats of harm. There is no evidence that, either from the applicant or in the country information, police would fail to provide assistance.
As such, I am not satisfied that there is a real risk the applicant will face significant harm on her return to Malaysia. As already noted, significant harm is exhaustively defined in s.36(2A) of the Act. Based on the evidence before me, I am not satisfied there is a real risk the applicant will face death or torture or that she will face cruel or inhuman or degrading treatment or punishment at the hands of the former client or any debt collectors on her behalf. Torture is defined in s.5 of the Act and includes an act or omission by which severe pain or suffering is inflicted on a person for a particular purpose. Cruel and inhuman treatment or punishment also involves acts or omissions by which severe pain or suffering is intentionally inflicted on a person and degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable (refer s.5 of the Act). There is no evidence that the former client or those assisting her have inflicted severe pain or suffering on the applicant, her brother or her family. Moreover, a significant period has passed since these alleged incidents took place, the applicant and her brother have already repaid a substantial amount of the loan and there are various options open to the applicant to manage the debts or to deal with the former client on their return. Accordingly, I am not satisfied there is a real risk that the applicant will face significant harm if she returns to Malaysia.
My findings are not based on the notion that the applicant could obtain “an adequate level of protection” from authorities such that she does not face a real risk under s.36(2B)(b) of the Act, as found by the delegate. As observed by the Full Federal Court in MIAC v MZYYL [2012] FCAFC 147 the provision is ‘obverse’ to s.36(2)(aa) of the Act, which requires an assessment of the ‘real risk’ of harm to an applicant.[13] This assessment necessarily involves the consideration of a range of matters, including the availability of protection from the authorities. As such, there is some overlap between these provisions and s.36(2B)(b) of the Act is not to be read as a ‘carve out’. The Full Federal Court expressly rejected the Minister’s submission that s.36(2B)(b) of the Act requires only that the receiving country have an effective legal system for detection, prosecution and punishment, or a system that meets ‘international standards’ and held that s.36(2B)(b) of the Act requires the Minister to be satisfied that the protection available would remove the real risk of significant harm to the non-citizen to “something less than a real one”.[14] Rather, my findings are based on the whole of the circumstances, my findings about what has occurred and the relevant country information.
[13] MIAC v MZYYL [2012] FCAFC 147 [33].
[14] Ibid, refer to [36]-[40].
I accept the applicant may face enforcement action by the bank if she cannot repay the debts she owes to the bank but this is not significant harm within the meaning of the Act, it is lawful legal action that is faced by the general population in circumstances where a debt cannot be repaid.
For the reasons given above, I am not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s.36(2A) of the Act, if she is removed from Australia and returned to Malaysia. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies ss.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jan Redfern PSM
Deputy President

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.
…

Tetley v Goldmate Group Pty Ltd [2020] FCA 913 (Bromwich J) [16].