1836192 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the protection visa application of a Malaysian citizen who claimed to fear harm from a loan shark due to outstanding debts, including an education loan and a debt incurred as a guarantor for her partner's loan. The applicant arrived in Australia in February 2017 and applied for a protection visa in May 2018.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as a refugee, or under section 36(2)(aa) as a person facing a real risk of significant harm if returned to Malaysia. The Tribunal was required to assess the applicant's claims against the relevant country information and legal protections available in Malaysia, and to determine if her fear of harm was well-founded and constituted persecution or significant harm.

The Tribunal reasoned that it is the applicant's responsibility to provide sufficient particulars and evidence to establish her claims, and the Tribunal is not obliged to assist in this process. While acknowledging the applicant's debt and potential for harassment from a loan shark, the Tribunal found that being in debt does not inherently distinguish her from the general Malaysian population. Crucially, the Tribunal noted the availability of government support services for those in debt and the capacity of the Malaysian police to act against illegal money lenders. The Tribunal was not satisfied that the applicant would be unable to seek assistance from authorities or available debt services. Furthermore, the Tribunal found that the applicant's apprehension about the loan shark did not amount to a fear of persecution, and her continued payments towards the loan while in Australia reduced any perceived risk. The Tribunal also considered the applicant's capacity to work and support herself, concluding that any financial blacklisting would not constitute significant harm.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that there was no real chance she would face persecution or significant harm upon return to Malaysia. The applicant did not satisfy the criteria under either section 36(2)(a) or 36(2)(aa) of the Migration Act.