1821043 (Refugee)

1821043 (Refugee) [2020] AATA 4463 (2 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821043
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Deputy President Jan Redfern
DATE:2 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 2 September 2020 at 2:16 PM
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 – consideration of complementary protection criteria in s 36(2)(aa) of the Migration Act 1958 – claims rejected – 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.
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
Li v Minister for Immigration & Anor [2017] FCCA 2326
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
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 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 [city], Malaysia and claims to be a citizen of Malaysia. This is not in dispute. He arrived in Australia on 6 November 2017 on a UD-601 Electronic Travel Authority. The applicant applied for a protection visa on 29 January 2018.
In his application for protection, the applicant claimed to fear harm from loan sharks because his uncle used his name to borrow money from loan sharks and they pursued him for the repayment. According to the application, the applicant fears harm because the loan sharks came to his house and hit and beat him badly. It is recorded that the applicant was concerned that he would be killed if he returns to Malaysia.
The applicant sought review of the decision made by the delegate and applied for review of that decision on 20 July 2018. The applicant was invited to attend a hearing by telephone scheduled before me on 1 July 2020.
The applicant did not appear at the scheduled hearing and as a result the application was dismissed. The applicant was notified of the dismissal and advised that he could seek reinstatement within 14 days. On 4 and 6 July 2020, the Tribunal received a request for the application to be reinstated and I requested that the applicant provide further evidence in relation to this request. On 11 July 2020, the applicant provided further evidence, after considering the materials provided, I decided to reinstate the application for review. The dismissal and reinstatement proceedings have been reported.
The applicant was invited to attend a hearing by telephone before me on 6 August 2020. The hearing was conducted with the assistance of a Malay interpreter.
For the reasons that follow, I am not satisfied about the applicant’s claims for protection and I affirm the decision under review.
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 (the refugee criterion). 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.[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 that person would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[2] The persecution must involve systematic and discriminatory conduct, serious harm to the person and one or more of the five grounds must be the essential and significant reason, or reasons, for the persecution.[3]
[1] s.5H(1)(a) of the Act.
[2] s.5J(1) of the Act.
[3] s.5J(4) of the Act.
Subsection 5J(4) of the Act provides that serious harm to a person includes: a threat to the person’s life or liberty, significant physical harassment, significant physical ill treatment, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist and denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
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.
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).
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 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. There is little by way of policy and the guidelines were of limited assistance in the circumstances of this case.
BACKGROUND
The applicant first arrived in Australia on 6 November 2017 on an Electronic Travel Authority. He made an application for a protection visa on 29 January 2018.
In his application for protection it was recorded that the applicant left Malaysia because of fear from loan sharks. It was recorded that the applicant’s uncle, [name removed], had used his name to borrow RM125,000 and had not kept his promise to repay the debts. It is claimed that the loan sharks told him he was to be responsible for the debt. It was noted in the application that the loan sharks threatened to kill him if he refused to repay the debt or if he told anybody about the incident. It was stated that the “loan shark people” would hit and kill him for his failure to repay his uncle’s debt and that they had hit and beat him badly. The application was apparently signed by the applicant. The application included a statement to the effect that the information included was “truthful and honest” and “correct and up-to-date in every detail”. In answer to the question about whether the applicant had received any assistance in completing the form, the box indicating “no” was marked. It was also noted that the applicant had not received assistance from an interpreter in completing the application. The applicant provided no other documents to support his claims to the Department, other than identity documents.
The applicant was not invited to attend an interview with a Departmental officer. On 19 July 2018 the delegate refused to grant the applicant a protection visa based on the material before the Department.
The delegate did not make any findings about the truth 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 the claim was rejected 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 and newspaper articles reporting the results of police action in 2016 and 2017. According to the delegate, Malaysian authorities were willing and able to provide this and 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.
On 5 June 2020, the applicant was invited to attend a hearing scheduled on 1 July 2020 to present evidence and arguments. The applicant was also invited on 16 June 2020 to provide any information or evidence in support of his application, including any document relating to the loan referred to in his protection visa application and any complaints made to authorities.
On 21 June 2020, the applicant provided the Tribunal, by way of email, a completed hearing response form confirming his attendance at the scheduled hearing. In answer to the question about whether the applicant would have any difficultly participating in the hearing by telephone the applicant answered ‘no’.
On 1 July 2020, at the time of the scheduled hearing the applicant did not appear by telephone and the application for review was dismissed under s.426A(1A) of the Act. The dismissal process is a two-stage process whereby the Tribunal must notify the applicant of the dismissal. An applicant may seek reinstatement within 14 days and, on receipt of an application for reinstatement, the Tribunal must, if it considers appropriate to do so, reinstate the application. If the Tribunal does not consider it appropriate to reinstate the application, the Tribunal may confirm the decision to dismiss the application by a written statement under s.430 of the Act. The decisions by the Tribunal to firstly dismiss and then consider whether it reinstates or confirms a dismissal are discretionary considerations which must be exercised reasonably.[5]
[5] Li v Minister for Immigration & Anor [2017] FCCA 2326 at [36] – [38].
On 4 July 2020, the Tribunal received an email from the applicant requesting that the application be reinstated as he had updated his personal and contact details on ‘VEVO’ on 12 June 2020 and while, it was apparent that his email contact details had remained the same, according to the applicant his telephone contact details had changed. As the Tribunal had no record of any notification of a change in the applicant’s details, the Tribunal wrote to the applicant on 8 July 2020, requesting the applicant provide evidence demonstrating that he updated his VEVO account, being the online platform used by the Department. On 11 July 2020, the applicant provided the Tribunal with a copy of a signed Department Form 929 dated 10 June 2020. Notwithstanding that the applicant had not advised the Tribunal of his changed details, I accept that the applicant was confused about the differences between the Tribunal and the Department and that he had in fact changed his telephone contact details and notified the Department accordingly. I was therefore satisfied that the applicant had failed to participate in the hearing on the appointed date because he was unable to be contacted by the Tribunal. There was no evidence before me that the applicant had deliberately avoided answering the telephone call or had deliberately failed to participate in the scheduled hearing and I decided to reinstate the application for review on 13 July 2020. The applicant was invited to attend a telephone hearing on 6 August 2020, which he attended at the scheduled hearing time without incident. The applicant did not provide any further documents in support of his claims but gave oral evidence, an outline of which is set out below.
OUTLINE OF EVIDENCE
The applicant said that he left college in [year] when he was about [X] years old. He obtained an electrical certificate, but this qualification was not recognised so he ended up working as a courier when he left college. The applicant has a mother, father and younger brother living in Malaysia. He left home at an early age to live near the college and worked part-time in a restaurant to pay his rent and tuition fees.
The applicant found work soon after he arrived in Australia and has worked in various roles since his arrival, initially fruit picking and then for [employer] and after this with a residential roofing company. According to the applicant, he has worked regularly over the past two and a half years and has earned between $400 and $500 per week. He said that he no longer has contact with his parents and that they had had an argument before he left to come to Australia. He also said that he had no contact with his younger brother and confirmed that he had no other relatives. The applicant said that his parents did not have siblings.
I asked the applicant why he feared returning to Malaysia and he said he was concerned he would be harmed by loan sharks because he could not repay the debts he owed. The applicant was asked to explain how the debts arose. He claimed that he borrowed money in about 2015 after he had been working for a couple of years. He said that he purchased a small Honda motorcycle which cost RM5,000 and which was purchased on finance through a finance company. His repayments for the motorcycle were approximately RM150 per month. When he was working as a courier, he earned about RM800 per month, but he was unable to keep up with his living expenses which were over RM1,000 per month. The applicant said that he got into debt and borrowed money from a ‘loan shark’. He contacted the loan shark through an advertisement on the street. He could not recall how much his debts were but he recalls that he borrowed about RM5000. The applicant said that he attempted to repay the loan but the interest was high and he was not able to do so. He said that he did not borrow any more money after this, and he did not know how much money he owed.
The applicant said that he was threatened by the loan shark on two occasions in 2015, the first time being around the time that he borrowed the money. The applicant said that the loan shark held onto his motorcycle and said to him words to the effect “you are dead”. He said that this threat was about a week after he borrowed the money. The second threat was after about a month. The applicant said that he did not go to the police because the person who threatened him said that they would hurt him if he did so. When asked whether he had been hurt by the ‘loan sharks’, the applicant said “no” but then said that it was “painful” because he had been held by his neck. The applicant said that the person who threatened him took his driver’s licence and all his money. The applicant said that there had been no further incidents after this, although he said that they came to look for him “everyday”. Because this seemed to be inconsistent or at the least, confusing, the applicant was asked whether these people touched or threatened him. The applicant’s response was to the effect that the moneylenders came to look for him but did not hurt him. According to the applicant he did not seek any help and did not go to the police.
The applicant said that when he arrived in Australia he met a person called [Person A] at the airport. The applicant said that [Person A] was there to pick up somebody else. It is not entirely clear how he and [Person A] came to be talking but according to the applicant, he went home with [Person A] from the airport and lived at his home for a couple of months. [Person A] assisted the applicant fill out the application for protection. According to the applicant, he did not complete the application but told [Person A] what to write in the application. The applicant said that he did not read the application but signed it. The applicant said that he was told that if he signed the application, he would be able to get a visa and an opportunity to work in Australia but would need to pay tax. The applicant said that he did not pay [Person A] for assisting him with the application. The applicant also said that [Person A] had returned to Malaysia.
I read extracts of the application to the applicant and asked why the information in the application was different to the evidence that he had given. The applicant said that the information contained in the application was incorrect. He said that he did not have an uncle called [removed]. He said that he was embarrassed to tell his friend about what had really happened, but he did not know what was included in the application. The applicant said he did not understand why the person who had assisted him to complete the application had written something completely different what from what he had been told. When asked why [Person A] would do this, the applicant responded that perhaps his friend was trying to get him into trouble or trying to embellish his claim. The applicant could not explain why [Person A] would be trying to cause trouble for him, particularly given [Person A] had allowed him to stay in his home and had assisted him to find work. The applicant said that perhaps [Person A] did not like him because he had asked him for help.

When asked why the applicant was concerned he would be threatened or harmed if he returned to Malaysia in circumstances where he had allegedly borrowed the money over five years ago, had not been threatened since this time and had been apparently living in Malaysia, on his own evidence, without incident from 2015 until he travelled to Australia in late 2017. The applicant said that he did not know but that he was still “scared”. The applicant further said that he wanted to stay in Australia so that he could earn enough money to repay his debts. He then said that he had not paid back the debt but wanted to stay in Australia to earn money and “have a better life”. The applicant later said that what he meant by saying that he wanted to have a better life was that he did not want to be hassled every day. When asked why he couldn’t save money to repay the debt so that there was no issue on his return, the applicant said that he believed that it could not be repaid because there was also interest that would have to be paid.
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.[6] 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.[7]
[6] Y. G. Guan, ‘The Long and Short of the "Along" Problem’, May 2003, The Malaysian Bar Association website.
[7] 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”.[8]
[8] 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 Malaysian Muslim Consumers Association (‘PPIM’), which provides services predominately for the Malay community, was involved in over 10,000 cases involving loan sharks between 2012 and 2016.[9] 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.[10]
[9] DFAT report [3.115]
[10] Ahlong.ppim.org
CONSIDERATION
The essence of the applicant’s claim is that he fears he will be harmed by loan sharks if he returns to Malaysia. The basis for the application for protection is that the applicant claims he faces a real risk of serious harm, which would enliven Australia’s obligations to provide protection under the refugee criterion or, if this is not established, significant harm, thereby enlivening Australia’s obligations to provide protection under the complementary protection criterion.
A fundamental but determinative issue in this case is whether I am satisfied about the veracity of the applicant’s claims.
In summary, I am not satisfied about the applicant’s claims and do not accept his evidence that there is a real risk, or indeed that the applicant fears there is a real risk, that he will face either serious or significant harm if he returns to Malaysia.
First, the information contained in the application for protection was not truthful. The applicant does not have an uncle and he was not made responsible for monies borrowed by his uncle which was said to be in the vicinity of RM125,000. The applicant’s evidence during the hearing was that he borrowed money from a loan shark in 2015 because he could not meet his expenses. The sum borrowed was modest and, on the applicant’s evidence, he did not borrow any further monies after 2015. According to the applicant, he gave information to a “friend” who he met in Australia and who assisted him in completing the application for the protection. The applicant could not explain why the information in the application was completely different from the evidence that he gave during the hearing or why his friend would include information that was completely different. When questioned about this, the applicant’s evidence was inconsistent. Initially he said that he was embarrassed to tell his friend the story about the loan. However, there was no suggestion that the applicant told the friend this story because he was embarrassed. The applicant could not explain where this story came from. At one stage when giving evidence, the applicant said that [Person A] may have included this in the application to “get him into trouble” or to “embellish” his claim. He could not explain why this would be so. The applicant’s explanation of why the information in the application was incorrect was unconvincing. It is difficult to understand or even to identify an alternative or satisfactory explanation for the differences between the applicant’s evidence and the information contained in the application.
The applicant’s evidence on this aspect was inconsistent and implausible. Moreover, the fact that the applicant was prepared to sign an important document without reading or understanding it undermines his credibility. The applicant said that [Person A] told him if he signed the document, he would be able to work in Australia.
Secondly, the applicant’s description of how he came to Australia and his dealings with, [Person A], the “friend” who he met at the airport were vague and implausible. According to the applicant he did not know [Person A] but met him by chance when [Person A] was at the airport to meet someone else. Despite not knowing [Person A] before meeting him at the airport, the applicant went home to stay with him, [Person A] allowed him to live at his house for several months, [Person A] assisted him to find work and assisted him to complete the application. The applicant said he did not pay [Person A] any money. According to the applicant, [Person A] returned to Malaysia. The applicant’s evidence about [Person A] is unconvincing and it is implausible that the applicant knew so little about [Person A] given the nature of his dealings with him, apparently over several months. This also counts against the credibility of his claims.
Thirdly, the applicant’s evidence about the circumstances that led to him borrowing money from a loan shark and what he said happened to him in Malaysia are vague. The applicant said he needed to borrow money from the loan shark because he had debts. He could not recall how much his debts were at that time, nor could he recall how much he owed prior to leaving Malaysia.
Fourthly, based on the applicant’s own evidence, it is difficult to understand how he could fear harm when the last incident involving the loan shark occurred in 2015, approximately four years ago and two years before he decided to come to Australia. It is unclear why the applicant needed to come to Australia when there was no immediate threat to him in late 2017. It is the applicant’s evidence that he was harmed by the loan shark about a week after the loan and then about a month later. The applicant described being stopped on his motorcycle on the first occasion but his description of the second incident and the harm that was said to have been inflicted was vague and his evidence seemed to evolve. Initially, the applicant said that the loan shark did not hurt him, then he said the incident was painful because the loan shark had held him by the neck. He also said that apart from these two incidents he had not been harmed or threatened but at one point said he was being harassed every day. These inconsistencies are difficult to reconcile. The applicant could not explain why he still feared harm when the alleged incidences occurred approximately four years ago. It is also difficult to understand why, if the applicant fears harm, he has made no attempts to repay the debt while he has been in Australia earning money. The original amount borrowed was modest and, even with interest, there would have been prospects for him to repay the loan or to negotiate any repayments. The applicant failed to take any steps prior to leaving Malaysia to renegotiate the debt or to approach non-government organisations to assist him. Relevantly, when the applicant was asked to respond to the nature of the country information about these options, he indicated that he did not wish to do so.
Finally, when the applicant was asked why he still feared harm if he were to return, he said that he wanted to continue to live and work in Australia “for a better life”. The applicant later sought to clarify this when he was asked whether this was the real reason he had come to Australia and he said that what he really meant was that he wanted to come to Australia to get away from the harassment. It is relevant to note that the applicant gave evidence to the effect that [Person A] told him that if he signed the application for the visa he could work in Australia. He also said that his intention in coming to Australia was to make enough money to pay his bills. While I have concerns about the veracity of the applicant’s evidence about his fears, I accept that his evidence about why he came to Australia is truthful and that this was likely to be the motivation for the applicant travelling to Australia in the first place. It is clear from the applicant’s evidence that he was having difficulty earning a living and paying his bills in Malaysia. It is also possible that the applicant did not understand that there were limited grounds upon which a non-citizen can live and work in Australia. It is also possible that the applicant’s circumstances in Malaysia were difficult and his opportunities limited because he did not have recognised qualifications and apparently had little support from his family. However, this does not enliven Australia’s protection obligations.
I accept that the applicant owed monies in Malaysia, probably with the finance company and possibly with an unlicensed lender but, on the applicant’s own evidence, the amount borrowed was modest. It is possible that the applicant was originally harassed in relation to the repayment of that debt but again, on his own evidence, this was over four years ago. I do not accept that the applicant was beaten or that he fears harm if he returns to Malaysia. Nor do I accept that there are loan sharks or debt collectors seeking to harm him. The applicant’s evidence about the circumstances leading to the lodging of his application, his explanation for how the incorrect information came to be included in the application and his description of how he came to meet and live with [Person A] is unconvincing and implausible.
I am therefore not satisfied based on the material before me that there is a real risk the applicant will face either serious harm, for the purposes of the refugee criterion, or significant harm for the purposes of the complementary protection criterion.
For completeness it should be noted that I am not satisfied that the applicant’s claims, even if established, could meet the refugee criterion set out in s.36(2)(a) of the Act. This is because I am not satisfied that his fear of persecution has a refugee nexus. To meet the refugee criterion 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). In this case, the claimed harm arises because the applicant says he owes money to a loan shark who he is unable to repay, and the loan shark has threatened to kill or hurt him. This is the essential and significant reason for the harm the applicant claims he will suffer. Relevantly, this is not one of the reasons enumerated in s.5J(1) of the Act. In this regard, I agree with the findings of the delegate.
For the reasons given above, I am not satisfied that the applicant meets the refugee criterion under s.36(2)(a) of the Act. Nor am I satisfied 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 he 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.
…

[2020] AATA 4463

2 September 2020

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