1816541 (Refugee)

The applicant sought review of the Administrative Appeals Tribunal's decision to affirm the refusal of her Protection (Class XA) (Subclass 866) visa. The applicant claimed to fear harm from loan sharks in Malaysia due to significant debts incurred after her business partner absconded with company funds. She asserted that these debts were in her name, leading to threats and concerns about her physical and emotional safety, financial ruin, and inability to conduct business or travel if returned to Malaysia. Her brother, who had made a similar protection visa application based on guaranteeing her debts, also claimed to have experienced physical harm from loan sharks.

The legal issues before the court concerned whether the applicant met the criteria for a protection visa under section 36 of the *Migration Act 1958* (Cth). Specifically, the court had to consider whether the applicant was a refugee under section 36(2)(a) by having a well-founded fear of persecution for a Convention reason, and alternatively, whether Australia had protection obligations under the complementary protection criterion in section 36(2)(aa) due to a real risk of significant harm upon removal. The court also considered the availability of effective protection measures in Malaysia.

The Tribunal affirmed the delegate's decision, finding no refugee nexus for the applicant's claimed fear of harm. While accepting the applicant and her brother had remitted money towards the debt, the Tribunal found that Malaysia's authorities were willing and reasonably effective in combating illegal moneylending, as evidenced by DFAT reports and newspaper articles detailing enforcement actions. Consequently, the Tribunal was not satisfied that there was a real risk of the applicant suffering significant harm, nor that Malaysia was unable or unwilling to provide adequate protection. The Tribunal concluded that the applicant did not satisfy the criteria for a protection visa under section 36 of the Act.