1822391 (Refugee)

1822391 (Refugee) [2021] AATA 4547 (24 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:  1822391/1822393
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Tania Flood
DATE:24 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants’ protection visas.

Statement made on 24 October 2021 at 19.10pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm because of economic conditions and from loan shark – borrowed money to start business, which failed – threats and relocations within local area – ethnicity and religion – Kadazan Catholics – no reference to loan and threats in application and no documentary evidence provided – country information – preferential policies for indigenous peoples – COVID-19 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 26 July 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Malaysia, applied for the visas on 27 April 2018. The delegate refused to grant the visas on the basis that there is not a real chance or a real risk the applicants will suffer serious or significant harm on return to Malaysia for economic reasons.
The applicants agreed to attend a joint hearing to discuss their collective claims. They were invited to appear before the Tribunal during the Covid-19 pandemic and the Tribunal exercised its discretion to hold the hearing by MS Teams video link. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicants agreed to appear before the Tribunal by video link on 31 August 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. There was no indication that the applicants had any difficulty in understanding and responding to the questions being put to them during the video hearing. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicants will suffer serious harm if they return to Malaysia for reason of their race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to Malaysia there is a real risk they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
Summary of claims and evidence
Applicant One
According to information contained in his application for a Protection visa the applicant is a [Age 1]-year-old Malaysian male who was born in Penampang, Sabah. He was married [in] November 2015 and has only ever resided at one address in Penampang, Sabah. He completed high school in Malaysia. He speaks, reads and writes English and Malay. He entered Australian [in] March 2018 on a Visitor visa.
As to the reasons why he left Malaysia the applicant states in his application for a Protection visa that he left his country after quitting his job as an [Occupation 1] due to the economic decline in his daily life and inability to support his family. He claimed not to have experienced harm in Malaysia but stated that he will have difficulty finding a job on return and will face similar economic problems to those he had prior to departure. The authorities will not be able to help him as his is a personal problem.
The applicant made no supporting submissions to the Department.
Applicant Two
According to information contained in her application for a Protection visa the applicant is a [Age 2]-year-old Malaysian woman who was born in Penampang, Sabah. She married applicant one [in] November 2015. From [birth] until [April] 2018 she resided at one address in Penampang, Sabah. She completed high school in Malaysia. She speaks, reads and writes English and Malay.
As to the reasons why she left Malaysia the applicant states in her application for a Protection visa that she left her country after quitting her job as [an Occupation 2] citing the same issues noted by her husband above. She also claimed not to have experienced any past harm in Malaysia but stated that she too will have difficulty finding a job on return.
Submission to the Tribunal
On 24 August 2021 the Tribunal received separate but identical submissions made on the applicants’ behalf by an immigration lawyer. The submissions provide the following information:
The applicants fear returning to Malaysia due to their circumstances there. The first named applicant borrowed a significant sum of money from a loan shark (“Ah Long”) and dissipated the funds. A very high rate of interest was charged and the couple have no prospects of repaying the loan, either the principal or the interest, which would be continuing to accrue to date.
The couple were young semi-professional workers in Malaysia but were unable to secure employment that paid sufficiently to support themselves and their reliant family members. The couple made claims about their employment difficulties to the Department but did not expand upon the full extent of the problems that this caused them. The couple link their lack of prospects for viable employment to their minority ethnic and religious status as Kadazan Catholics. The financial hardship that they believe to have been caused by discrimination, led them to fall prey to the loan shark due to their attempt to open a [business] in the face of insufficient paid employment.
The couple are afraid that the loan shark, individually or as part of an organised group, will harm or kill them or their families if they return to Malaysia and do not pay back the capital and interest owed on the original loan. They do not have the financial capacity to do so.
The couple believe that the police will not act sufficiently to protect them. Regarding this, Kuala Lumpur Consumer Safety Association Chairman Samsudin Mohamad Fauzi recommends making a police report, but only after paying out the debt in full (which the couple cannot do): “[t]herefore, after clearing the debt, the borrowers should immediately make a police report if they were continuously harassed by the loan sharks’.
It is acknowledged that loan shark activity may be prosecuted under Section 5(2) of the Moneylenders Act 1951. However, the couple were threatened against seeking police help and believe that the protection offered by the law as it is implemented in practice by the police is not sufficient to constitute effective protection, given the extreme prevalence of loan shark activity and harm caused by them, in Malaysia. Additionally, the couple believe that their status as Kadazan Catholics leads to the same discrimination as caused their employment issues, prejudicing their access to lawful protection. Malaysia requires citizens to carry a national identification card called My Kad. Smart Cards identify citizens as Muslims or Non-Muslims. The couple have names that identify them as Kadazan. They cannot escape identification and by extension the attitudes that led to their employment difficulties and into the hands of the loan shark.
The couple also believe that relocation within Malaysia will not ameliorate the risk of harm. They tried moving with Malaysia before coming to Australia.
Attached to the submissions is a statutory declaration by applicant one. He states the following:
He is a Kadazan Catholic. His name identifies his race and religion.
He feels his religion has contributed to his failure to get a job.
He said that during a job interview he was told that if he wants to succeed he should change his name to a Muslim name. He said he experienced this a couple of times.
Before he came to Australia he was [an Occupation 3] for four years. He obtained his qualification from the government of Malaysia after studying as [an Occupation 3]. He quit the job because the wages were too low for him to support his family.
He quit his job in about 2016. He was hoping that he could get a better job with better income but he failed. He tried to start a business but failed again and was struggling to survive and pay the interest on the loan.
He obtained a loan from a loan shark in cash and had to make monthly repayments. The interest rate was 20% and he borrowed MYR200,000 which was enough to start a business.
He tried to start a [business] but it was very difficult because the Malaysian economy was struggling. He lost the money he borrowed from the loan shark. He bought a lot of things including equipment for [a business task]. He also spent the money shopping for non-business-related items like food and clothes.
After that he was looking for another job and struggled for another two years just to pay the loan. He couldn’t continue to pay because he couldn’t get a proper job. The loan shark tried to find him and threatened to cut off his head if he did not pay. They also threatened to harm his family. They said they could find him anywhere.
He and his wife ran away from the loan shark. They went from house to house until they could not do it anymore. They moved back to their parents’ house and rented a small room until they came to Australia.
If he returns to Malaysia the loan shark will find him and harm him and his wife. The interest has continued to grow and the debt has increased over the years.
He didn’t seek the help of the police because the loan shark told him they would make things more difficult for him if he did.
He is also afraid to go back to Malaysia because of COVID. His health and life will be affected. Certain of his relatives have passed away.
Also attached to the submission are various news articles which refer to problems faced by persons indebted to loan sharks in Malaysia and Indonesia.
An article titled “World Directory of Minorities and Indigenous Peoples – Malaysia: Indigenous peoples and ethnic minorities in Sabah published by Minority Rights Group International in January 2018 states that refuges and illegal immigration have altered Sabah’s ethnic composition to such an extent that indigenous peoples are in effect being politically marginalised and as a consequence their rights relating to land ownership and resource allocation have increasingly been watered down in recent years. Though in theory indigenous peoples in Sabah are supposed to benefit from some of the programmes for Bumiputera’s, the trend has been for authorities to direct these mainly towards the now dominant Malays and Muslims. Indigenous peoples and non-Muslim minorities such as the Chinese are clearly under-represented in the political and economic arenas.
A statutory declaration made by the second named applicant provides the following:
She is a Christian and a Kadazan.
She came to Australia three years ago with her husband. She met her husband when they studied together in Malaysia.
She was studying [Subject 1] and graduated around 2013. After graduating she applied for jobs everywhere. She struggled to get a job and repay her education loan.
She once had an interview for a job where the interviewer told her she would have a better chance if she converted to Islam and changed her name. She didn’t do so and she didn’t find a job. She has never worked in Malaysia.
She also has a Diploma in [Subject 2]. With these qualifications she should be able to get a job.
Malaysia doesn’t offer government benefits to unemployed people. She tried to do some online business, like selling products, but didn’t earn much money.
She and her husband decided to get a loan from a bank but they couldn’t because they didn’t have a proper job. So they took a loan of MYR200,000 from a loan shark to open a [business]. Unfortunately their business failed.
The loan shark threatened her husband and she is afraid they will be harmed or killed. They also threatened their family.
They did not go to the police because the loan shark warned them against it.
There is no evidence because her husband has no paperwork or details to show that he got the loan.
She fears for both her and husband’s safety. They cannot relocate because the loan shark can find them anywhere. Before coming to Australia they moved between relatives’ houses. They then found a small room for a while to avoid the loan shark before coming to Australia.
Tribunal hearing
The Tribunal used the opportunity of the hearing to discuss with the applicants their backgrounds in Malaysia, their claimed reasons for departing Malaysia and their claimed fears of returning there. Their testimony and responses to issues put to them by the Tribunal during the hearing are summarised as follows:
The applicants confirmed they were both born in Kota Kinabalu in Malaysia. They both claimed to be Kadazan Catholics.
The applicants are married but have no children. They both have family, including parents and siblings living in Penampang in Sabah. Immediately prior to travelling to Australia they were residing with the parents of applicant two.
The applicants remain in regular contact with family members. When the Tribunal enquired about the content of their discussions with family members they reported that they speak about the COVID situation and their economic problems.
The applicants both completed University degrees in Malaysia. Applicant one is a qualified [Occupation 3] and Applicant two completed a [Subject 1] degree.
Applicant one obtained employment as [an Occupation 3] after graduation. He worked as [an Occupation 3] in Selangor for three years earning 1200 ringgits per month. Applicant two claimed never to have found work after graduation.
The Tribunal put it to the applicants that the information contained in their applications for protection do not mention or even allude to the fact that they were threatened by a loan shark in Malaysia from whom they borrowed a large amount of money. The Tribunal also noted that no mention was made previously of them encountering any discrimination in employment on account of their race or religion. The applicants responded that their applications were written by an agent who never asked them the reasons why they were applying for protection visas. When the Tribunal asked them whether the agent had made up the claims outlined in the application forms they replied yes but said they were not aware of this. Applicant two stated that they didn’t know what they were applying for and at the time they just wanted to live and work in Australia and pay off the debts that made them run away from Malaysia in the first place.
As to the loan shark applicant one confirmed that he took out a loan to start a business after quitting his job as [an Occupation 3] and being unable to find any other work. When the [business] endeavour was unsuccessful and when he could not repay the loan they ran away to avoid being threatened by the loan shark. Before departing Malaysia they moved house a lot.
When the Tribunal questioned the logic of applicant one’s decision to quit his job before first securing other employment and/or securing a bank loan while still employed he replied that he thought starting his own business would be a better option. He said obtaining a loan from a loan shark was his only option because the bank wouldn’t lend to them because they did not have jobs.
Applicant one confirmed that he borrowed 200,000 ringgits which he acknowledged was a lot of money in Sabah. He said the loan shark gave him the funds without the need to sign a contract and did not seek any security in the event he defaulted on the loan. The Tribunal discussed with the applicant country information which indicates that debtors are generally asked to sign a contract with the terms and conditions of lending and the loan sharks often take the bank cards of debtors to ensure payment and/or request house titles as collateral for the loan in the event of non-repayment. The applicant replied that he has no evidence of the loan and the loan shark accepted his promise of repaying the loan.

As to the monthly repayment amount on the loan applicant one stated that he was required to pay interest at the rate of 2.5% each month. When the Tribunal pointed out that his written statement indicates he was charged 20% interest he said that was an error.
Applicant one stated that when they could not repay the loan the loan shark came looking for them and threatened them. He said they then ran away and eventually came to Australia. He said their family members were not threatened because the loan shark does not know them. He confirmed that the places they sought refuge in were in the local area. He also confirmed the loan shark did not find them in any of those locations.
The applicants were asked why they could not relocate to another part of Malaysia such as Selangor where applicant one has previously lived for three years. He replied that the loan shark threatened him that they could be located anywhere in Malaysia. When the Tribunal pointed out that based on his evidence they remained in the local area and yet the loan shark did not find them there he replied that had they found them they would have been in trouble.
The Tribunal discussed with the applicants’ country information which indicates they could have approached the police for protection from the loan shark. They responded that the police would not take any action against the loan shark unless the loan was first repaid. They also claimed not to have any evidence of the existence of the loan.
As to their Catholic religion the applicants’ confirmed that they can freely practice their religion in Malaysia without harm or interference. However, they both claimed that their race and religion has made it difficult for them to find work. When the Tribunal pointed out that applicant one’s evidence is that he did find work in his profession he replied that this was because his qualification was issued by the government. The Tribunal also put it to the applicants that they both gained entry to University and obtained student loans despite the discriminatory conduct which is claimed. Applicant one then agreed that he didn’t face any discrimination in the past but said that now he is worried he won’t find another job.
The Tribunal discussed with the applicants’ country information which indicates that discrimination based on religion or race is forbidden under the Malaysian Constitution which also accords a special position for the Malays and natives of Sabah and Sarawak thus permitting affirmative action policies. Applicant one replied that when he was employed he didn’t face discrimination but after he quit his job he experienced discrimination when searching for new employment. The applicants indicated that the discrimination which they fear is prevalent throughout Malaysia.
As to the concerns in respect of COVID the Tribunal acknowledged that infections have been reportedly high and that the Malaysian health system had come under strain. When the Tribunal put it to the applicants that this is a situation which is affecting the general population of Malaysia, and that it doesn’t appear they would be treated any differently to others in the same situation they provided no response.
The Tribunal noted that its records indicate that applicant one appears to have made a second application for review of the same primary decision and advised that that application would need to be finalised after completion of the first review. The Tribunal indicated that it would likely have no jurisdiction in the matter as it could not conduct a second review of a decision which has already been finalised. The Tribunal advised that it is also open to the applicant to withdraw the second application for review if he so wishes.
The applicant’s representative submitted that when applicant one said he wasn’t discriminated against in employment he was referring to the job he obtained through the government. The representative acknowledged that there are some special privileges for Kadazan’s but maintained the applicants have faced discrimination. She undertook to provide further country information in respect of ongoing discriminatory conduct.
Post-hearing submission
On 3 September 2021 the applicant’s representative made a further submission on their behalf. It is acknowledged that the applicants are not claiming discrimination or persecution regarding their freedom of religion. It is also acknowledged that Kadazan people are amongst the “Bumiputera” who have enjoyed considerable affirmative action in some regards. Nevertheless it is submitted that the applicants’ claims of employment discrimination ring true in the context of their ethnicity and religion and that this can arguably have been a factor in why they ended up in the hands of the loan shark to whom applicant one now owes a large sum and also why the applicants spent some of the money they borrowed on living expenses. It is submitted that the claims made by the applicants, which the Tribunal regarded as difficult to believe regarding their families’ unemployment are credible. It is further submitted that the applicants’ worries about inability to find employment if they return to Malaysia, and consequent incapacity to repay the person they fear, are also credible. It is further noted that while applicant one was able to obtain a government arranged position when he left university, such measures may not extend to private sector jobs. The second applicant was unable to find work despite her qualifications, which it is acknowledged were gained due to government initiatives. The submission goes on to state that many countries, including Australia, have affirmative action initiatives for the advancement of Aboriginal peoples in education and employment, which result in some great outcomes yet at the same time leaves many people behind and does not put the people involved on wholly equal terms with the rest of their societies. It is suggested that these issues are to a greater or lesser extent represented in many countries and that the problems the applicants’ have described regarding employment discrimination are quite believable in such a context.
It is also submitted that information contained in the following sources support the applicants claimed experiences of discrimination :
-The Straight Times, “Who are Malaysia’s Bumiputera”, 3 August 2017
-Washing the Tigers, Addressing Discrimination and Inequality in Malaysia, The Equal Rights Trust in Partnership with Tenaganita ERT, Country Report Series: 2, London, November 2012, particularly pages 22-28 and 36-37.
FINDINGS AND REASONS
Country of reference
Attached to the Department files are copies of the applicants’ Malaysian passports which verify their claimed identities and nationalities. In the absence of any information to the contrary the Tribunal finds the applicants are nationals of Malaysia.
Fear of harm from a loan shark
In their applications for Protection visas the applicants claimed that they experienced economic difficulties in Malaysia and would find it difficult to find employment if they are required to return. They indicated that they had suffered no prior harm in Malaysia. Prior to the Tribunal hearing they submitted that they fled Malaysia after being threatened by a loan shark from whom applicant one had borrowed a large sum of money. They stated that they and/or their families might be seriously harmed or killed by the loan shark if they return to Malaysia for reason of failing to honour their debt.
Having considered the available evidence the Tribunal is not persuaded that applicant one was ever or is indebted to a loan shark in Malaysia. The Tribunal considers elements of the applicants claims to be implausible and inconsistent with independent country information regarding the operations of loans sharks. Significant inconsistencies have also arisen between their original claims and their latest submissions to the Tribunal. The Tribunal’s reasons are outlined in more detail below:
As discussed with the applicants during the hearing the Tribunal considers the claimed circumstances leading up to the application for the loan difficult to accept. Based on the applicants’ testimony they consider it extremely difficult for Kadazan Catholics to secure employment in Malaysia and yet applicant one claims he quit his [Occupation 3] position before first securing a new job. Relevantly he did so despite claiming to have substantial financial responsibilities toward his family. Also, according to his testimony he was aware the economy was in decline and he also knew that it wouldn’t be possible to secure a bank loan to commence a private business while unemployed. Further, he was aware that his only option to secure a loan in such circumstances was through a loan shark with cripplingly high interest rates. Given the applicants are both tertiary educated semi-professionals the Tribunal considers it difficult to accept that applicant one acted in the manner which is claimed in the circumstances.
Irrespective of the above, the Tribunal has significant concerns about the claimed way applicant one secured a considerably large loan from the loan shark. That is, with no contract or other documentary evidence setting out the terms of the loan and without being required to provide any collateral or security in the event he defaulted on the loan.
As discussed with the applicants during the hearing Malaysia’s Credit Counselling and Debt Management Agency, in describing common features of loans offered by loan sharks, states that upon receiving the loan money the debtor is asked to sign a contract with the terms and conditions of the lending[1]. Furthermore, the Tribunal put it to the applicant that reports indicate that loan sharks commonly take the borrowers ATM card to deduct repayments.[2] In Sabah it is reported that loan sharks commonly use a borrowers house as collateral for the loan. If the borrower defaults on the loan the loan shark exercises the sell and purchase agreement to transfer the house into their name.[3] As discussed with the applicants surprisingly none of these procedures were enacted in their case. In response to these concerns applicant one said that he was loaned 200,000 ringgits on a promise that he would repay it and because he had no money in the bank he did not have an ATM card. In the Tribunal’s view the latter situation would have been further reason for the loan shark to insist on some form of collateral before granting the loan.
[1] AKPK, ‘Loan Sharks and Their Illegal Activities’, July 2013
[2] ‘Easier, faster for civil servants to borrow from loan sharks’, Malaysian Insider, March 2016
[3] DFAT Country Information Report, Malaysia, 29 June 2021
The Tribunal has considered the applicants responses but in light of the size of the loan and the country information discussed above, it remains unconvinced that the applicant could have secured such a sizeable loan from a loan shark in the manner described. Given this and as there is no verifiable evidence of any kind to support the existence of the loan the Tribunal remains concerned about the veracity of this aspect of the applicants claims.
Furthermore, the applicants claim that the loan shark threatened them when they could not make the loan repayments and that they were forced to move house repeatedly to avoid being found before they ultimately took the decision to depart Malaysia. Applicant one confirmed that the loan was obtained locally and they remained in their local area at all times. He informed the Tribunal that the loan shark never found them despite that they returned to stay with family for a time prior to leaving the country. When questioned further about this applicant one said that they didn’t move further away because the loan shark had informed him they had the capacity to locate him anywhere in Malaysia. If that is to be believed it is difficult to accept that the applicants managed to evade the loan shark while continuing to live in their local area. The Tribunal is not persuaded that the applicants were living in hiding prior to departing Malaysia and this also causes the Tribunal to doubt the existence of an unpaid loan
In addition to the above the applicants claim that their families were also threatened by the loan shark in Malaysia and that they remain concerned for the safety of their relatives in Malaysia. At the outset of the hearing the Tribunal asked the applicants what their families talk about when they communicate with them. They referred to discussions about COVID and general economic difficulties. Neither applicant indicated that their families had been contacted by the loan shark or threatened in any way. When the Tribunal indicated that this seems unlikely in the circumstances applicant one replied that the loan shark does not know who their families are. This also app unlikely to the Tribunal given the applicants testimony that the loan was obtained locally and the loan shark claimed to have extensive reach within Malaysia. That the applicants’ families have not been contacted or threatened by the loan shark at any time since their departure from Malaysia also causes the Tribunal to doubt that the applicants are indebted to a loan shark. In this respect the Tribunal notes country information, including reports produced by the applicants in submissions, which indicate that loan sharks are known to harass, intimidate and also physically assault borrowers who default on their loans. In such circumstances the Tribunal considers it likely that family members of loan defaulters would also be contacted and/or harassed or even harmed in a bid to recover the money.
Lastly, and as discussed with the applicants during the hearing, the Tribunal remains concerned that the applicants made no mention of the fact they fear being seriously harmed or even killed by the loan shark in their applications for protection. The Tribunal has considered their response that the application was prepared by an agent and that they had no idea what they were applying for at the time but is not persuaded by this. As noted above, the applicants are tertiary educated semi-professionals who speak a degree of English and the Tribunal finds it difficult to accept they would have failed to mention this detail to the agent preparing their applications for protection or that they were unaware of or disinterested in the claims made on their behalf. The absence of such critical details from the applications for protection is concerning and the Tribunal considers the applicants have embellished their claims after the receipt of the unfavourable primary decisions.
For all the above reasons the Tribunal is not prepared to accept that applicant one took out a loan with a loan shark. Nor does the Tribunal accept that the applicants or their families were threatened by a loan shark in Malaysia or that the applicants were forced to hide from the loan shark before departing to Australia. It follows that the Tribunal does not accept there is a real chance or a real risk the applicants and/or their respective families will suffer serious or significant harm at the hands of a loan shark on return to Malaysia.
Discrimination in employment based on race and religion
The Tribunal accepts the applicants are Kadazan Catholics. The applicants acknowledge that they are free to practice their Catholic religion in Malaysia without fear of persecution. However, they claim to have experienced discrimination in employment on account of their Kadazan race and Catholic religion and fear that this will be repeated if they are required to return to Malaysia.
As reported by DFAT[4] article 8(2) of the Constitution forbids discrimination against citizens based on religion or race. Article 153(2), however, accords a ‘special position’ for ‘the Malays and natives of any of the States of Sabah and Sarawak’, thus permitting affirmative action policies. According to the Minister of Law, the term is often used by the government for policy and often used to refer to Malaysian citizens who are either Malay, ‘Anak Negeri’ (indigenous peoples of Sabah and Sarawak, including Malays of these states), or ‘Orang Asli’ (indigenous peoples of peninsular Malaysia). The Malaysian Department of Statistics estimates there were 20.07 million Bumiputera in Malaysia in 2018, making up over 60 per cent of the entire population and nearly 70 per cent of citizens. In the last public data available on the composition of Bumiputera (2015), there were over 14 million ethnic Malays (about 55 per cent of Malaysian citizens) while other Bumiputera constituted just over 3 million people (around 12 per cent of Malaysian citizens). Government regulations and policies have included numerous preferential programs to boost the economic position of Bumiputera. Such programs promote increased opportunities for Bumiputera to access higher education, careers within the Civil Service (see Civil Service), commercial opportunities and housing. Some industries (including tertiary education and distributive trade) maintain race-based requirements that mandate a certain level of Bumiputera ownership, and the government and many government-linked companies maintain procurement policies that favour Bumiputera-owned supplies. National budgets continue to allocate large amounts of funding intended to benefit Bumiputera. Given their preferential treatment enshrined in the Constitution, DFAT assesses Malays do not face negative official discrimination on the basis of their ethnicity. Indigenous peoples of Peninsular Malaysia (Orang Asli, who are usually included within the category of Bumiputera) face some additional barriers in practice, including in relation to land ownership.
[4] DFAT Country Information Report, Malaysia 29 June 2021
On the employment situation generally, DFAT[5] reports that in February 2021, the Malaysian Department of Statistics reported a labour force participation rate of 68.5 per cent and an overall unemployment rate of 4.8 per cent. Prior to the pandemic, Malaysia’s unemployment rate was 3.3 percent in 2019. In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera, and 2.4 per cent for Chinese Malaysians. In 2018, 28.6 per cent of the Malaysian labour force had tertiary level education, 55.6 per cent had secondary level education, 13.1 per cent had primary level education and 2.7 per cent had no formal education.
[5] DFAT Country Information Report, Malaysia, 29 June 2021
As with their claims in respect of the loan shark the Tribunal again notes and is concerned by the fact the applicants did not raise claims of racial or religious discrimination in their initial applications for protection despite noting the difficulties of obtaining employment in Malaysia. Notwithstanding this, the applicants’ testimony and post-hearing submission acknowledges that they have previously benefited from affirmative action policies in favour of the Bumiputera, a grouping to which they belong. For instance, applicant one obtained employment as [an Occupation 3] after graduation and maintained that gainful employment until such time as he voluntarily quit the position. In addition, both he and applicant two obtained entry to University and obtained student loans despite the discrimination they claim against Kadazans and Catholics. That said, the Tribunal is prepared to accept, based on their testimony, that they might have encountered some discriminatory treatment in the past on account of their race and religion when seeking private sector employment.
The Tribunal also accepts, as is submitted, that the existence of affirmative action policies is not in itself guaranteed protection against discrimination or equal treatment in all circumstances. While the Tribunal accepts the applicants might, as submitted, encounter some discriminatory treatment on account of their race and religion when seeking private sector employment, there is insufficient evidence before the Tribunal to satisfy it that they would be denied public sector employment for this reason. On the contrary the Tribunal notes the above country information which indicates that affirmative action policies promote increased opportunities for Bumiputera to access public sector employment as applicant one managed to do in the past. While the Tribunal is prepared to accept that applicant two struggled to find employment in the past it considers the applicants are well placed, given the preferential treatment of Bumiputera which is enshrined in the Constitution, their respective qualifications in [Subject 2] and [Subject 1] and the general state of the Malaysian labour market to find employment, at least in the public sector. The Tribunal is not satisfied that they will be unable to find any employment or that they will be unable to subsist if they return to Malaysia. Accordingly, the Tribunal is not satisfied that there is a real chance or a real risk the applicants will suffer serious or significant harm in Malaysia for reason of being denied employment on the grounds of their race and/or religion.

The Tribunal notes the submission that concerns were expressed during the hearing about the credibility of the applicants claims in respect of applicant one’s family members all being unemployed and the suggestion that this situation further supports the claim that racial and religious discrimination is prevalent in Malaysia. During the hearing the applicant did not attribute their unemployment to racial or religious discrimination and there is no evidence before the Tribunal to conclude that this is the case. Irrespective of this, the Tribunal notes and finds it significant that the applicants indicated during the hearing that extended family members are working and were able to assist them financially to travel to Australia. Applicant one also stated that his father previously worked before retiring and he conceded that some of his immediate family do casual work. In addition, applicant two stated that her father is also currently working. This is despite their families being Kadazan Catholics.
The Tribunal also notes the submission that the applicants inability to find employment on return to Malaysia due to racial and religious discrimination and consequent inability to repay the loan shark ought to be considered credible in light of the arguments and information presented however as noted above the Tribunal does not accept the applicants are indebted to a loan shark.
COVID
The Tribunal acknowledges the applicants expressed concerns in regard to the COVID situation in Malaysia and accepts that this is a contributing factor to their reluctance to return home. However, as discussed with the applicants during the hearing any difficulties they might encounter as a result of COVID will be difficulties faced by the general population in Malaysia and will not be the result of any systematic or discriminatory treatment aimed at them personally. The applicants did not object to the Tribunal’s observation. The Tribunal is satisfied that there is not a real chance or a real risk that they will suffer serious or significant harm, for the purposes of the Act, if they return to Malaysia for this reason.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the same reasons already articulated above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia there is a real risk that they will suffer significant harm. Accordingly, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decisions not to grant the applicants protection visas.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 4547

24 October 2021

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