1905588 (Refugee) - [2024] ARTA 898

1905588 (REFUGEE) [2024] ARTA 898 (18 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1905588
Tribunal:Ben Goulding
Date:18 December 2024

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(aa) of the Migration Act.

Statement made on 18 December 2024 at 11:06am
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from loan shark – borrowed for business after refusal by bank – debt believed to have been repaid but demands for more payments, including the debt of another person – attacked and family threatened – vandalism of property continuing after applicant’s departure – wife continuing to pay – clear and consistent claims and evidence including documentary, video, audio and photo evidence – police inaction – attempt to resolve issue by community organisation – ethnicity and relocation – discrimination against Indians – country information – laws and official actions against unlicenced moneylenders – some police corruption – affirmative action policies in education, employment and housing – membership of particular social group not essential and significant reason for harm – complementary protection – financial vulnerability and relocation not reasonable – state protection often ineffective – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J(1), (4)(a), 5L(c)(iii), 36(2)(a), (aa), (2A), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 18 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 6 August 2018. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia. The applicant appealed the Department’s decision on 9 March 2019.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (ART). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the ART. The Transitional Act gives the ART the authority to continue and finalise any aspect of the review not already completed by the AAT.
Following this, references in these reasons to ‘the Tribunal’ refers to the AAT prior to 14 October 2024 as well as the ART from that date.
The applicant appeared before the Tribunal on 10 October 2024 to give evidence and present arguments. The Hearing was conducted primarily in English, however, an interpreter in the Tamil (Malaysian) and English languages was present during the hearing.
BACKGROUND AND OVERVIEW OF CLAIMS
The applicant’s personal background
The applicant is a [Age]-year-old male from Kuala Lumpur, Malaysia. He travelled to Australia on an apparently genuine Malaysian passport. A copy of the biodata page of the applicant’s passport is contained in the Departmental file. He has at all times stated that he is a citizen of Malaysia and has been assessed on that basis by the Department. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.
At hearing, the applicant gave evidence that he is married and has [children] aged [Ages]. His wife was pregnant with his youngest child when he departed Malaysia. The applicant is in daily contact with his wife. The applicant confirmed that his parents and siblings are living in Malaysia.
The applicant completed high school and commenced a course in [subject], however, he did not complete his studies and he has not undertaken any further study since then. Prior to arriving in Australia, the applicant was self-employed as both [occupations 1 and 2]. Since arriving in Australia, the applicant has worked as [occupations 3 and 4].
According to Department records, the applicant arrived in Australia [in] June 2018 and he applied for protection on 6 August 2018.
Consideration of application by the Department
In summary, in his protection visa application lodged with the Department, the applicant made the following claims:
a.He borrowed money from a Chinese illegal moneylender (referred to herein as the ‘loan shark’.
b.He was attacked by the loan shark at a restaurant and his life was threatened.
c.If he does not repay the loan he will be kidnapped or killed.
d.He reported the issue to the police, but the police cannot help him.
e.The loan shark will be able to track him if he returns to Malaysia.
No further material was provided by the applicant in support of his claims. The delegate refused the applicant’s protection visa application on 18 February 2019 on the basis that the applicant is not a refugee as defined within s 5H(1) of the Act, and he is therefore not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. In relation to the complementary protection criterion, the delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk he will suffer significant harm as outlined in s 36(2)(aa) of the Act.
Consideration of application by the Tribunal
The applicant appealed the Department’s decision to the Tribunal on 9 March 2019.
Following this, on 27 February 2024, the Tribunal wrote to the applicant as part of its standard pre-constitution outreach and invited the applicant to provide updated information. In response, the applicant provided updated information with respect to his circumstances in Australia.
On 4 September 2024, the applicant was invited to attend a hearing on 10 October 2024. The applicant’s evidence at hearing is outlined below.
Following the hearing, the applicant submitted the following material to the Tribunal:
a.Country information regarding the activities of loan sharks in Malaysia;
b.Country information regarding the economic situation in Malaysia;
c.Country information regarding discrimination directed at the Indian population of Malaysia;
d.An email from the applicant of 18 October 2024, regarding discrimination in Malaysia;
e.Videos and still images of vandalism to the applicant’s house and property;
f.A warning notice from the loan shark that was stuck to the front of the applicant’s property in Malaysia;
g.Police reports regarding the recent incidents at the applicant’s property; and
h.Audio recordings, together with transcriptions and translations of threats directed at the applicant’s family.
The applicant’s claims and evidence are considered in more detail below.
Evidence at hearing
A summary of the applicant’s relevant evidence is provided below:
a.The applicant borrowed approximately MYR100,000 (about AUD34,588)[1] across multiple loans from a loan shark between 2010/11 to 2013/14. As he borrowed multiple amounts, the interest rates varied but started at about 10 per cent, with payments needing to be made monthly. The applicant provided his ID, contact details and residential address details to the loan shark.
b.The applicant required the money for his business. He had been to a formal lending institution but the loan application was refused. The applicant explained that banks discriminate against the Indian community in Malaysia, and the bank loan application was ultimately rejected.
c.The applicant was able to make regular repayments, and, to the applicant’s knowledge, he has repaid the debt. However, the loan shark insists that he either owes additional interest or that more money is owed. The applicant has attempted to settle this debt, but he is told every few months that he needs to pay more money. This keeps occurring and the applicant believes he is being scammed by the loan shark.
d.The applicant first had issues with the loan shark in about 2015 when he approached the loan shark and discussed the amount outstanding. The applicant was of the view that he had repaid 80% of the principal loan; however, the loan shark insisted that he had only being paying interest and the full loan was still outstanding. It was at this point that the loan shark made threats against the applicant and his family. Red paint was splashed on the applicant’s property by associates of the loan shark, and he was told that his house would be burnt down and his child kidnapped.
e.Additionally, the applicant was attacked in a restaurant by three or four men in about 2018. Whilst the men did not say anything to the applicant about the loan, the applicant was confident that the attack was related to the loan as he did not have any other problems and it appeared to be a targeted attack to send a warning to the applicant. The applicant’s leg and hand were injured in the attack.
f.Following his departure from Malaysia, the loan shark left the applicant’s family alone for an extended period, however, the applicant’s wife occasionally receives letters or notices instructing her to pay the debt. During the hearing, the applicant produced a copy of one such notice on his mobile phone and the applicant provided an oral translation at hearing. Following the hearing, the applicant submitted a photo of the notice together with a translation. Details of the notice are addressed below.
g.More recently, the applicant’s family house and cars have been attacked on multiple occasions since August. At hearing, the applicant presented CCTV video footage of two of these incidents to the Tribunal. Following the hearing, a copy of the CCTV footage was sent to the Tribunal. The videos have date stamps of [Day 2] September 2024 and [Day 3] September 2024. In the video from [Day 2] September 2024, there are clear signs of paint splashed on the applicant’s car during an earlier incident.
h.The applicant claimed that the loan shark is now insisting that the applicant is responsible for the debt of another person, [Mr A], who previously lived on government land that adjoined the applicant’s property. When questioned as to why the loan shark would think this, the applicant indicated that the loan shark is doing this because his wife has continued to make payments to the loan shark, and they want the applicant and his family to keep paying. Consequently, the threats have continued. The applicant’s wife most recently paid money to the loan shark about two months prior to the hearing. The applicant pays money to his wife from his job in Australia, and his wife then pays the loan shark in cash.
i.The applicant confirmed that his family had been to the police about this issue, but the police had been unable to do anything. At hearing, the applicant produced a copy of a police report on his phone. According to the applicant’s oral evidence, the police report indicated that on [Day 1] September 2024 at about 4:30 am, the applicant’s house and car were attacked and damaged. The applicant gave evidence that his family have made multiple reports to the police, but the police have not been able to prevent the loan sharks from harassing his family.
j.The applicant then gave evidence that he had spoken to several non-governmental organisations (NGOs) that can assist people with loan shark issues. The advice given was that if his family keeps paying, the loan sharks will be encouraged to return.
[1] Xe Currency Converter (web page, 4 December 2024), >
Following this, the Tribunal discussed with the applicant that the Department of Foreign Affairs and Trade (DFAT) reports that ‘credit agencies can consolidate loan shark debts and provide payment plans’ to assist the victims of loan sharks. The applicant confirmed that the NGOs he had spoken to can assist with this, and that his family had recently had a meeting with an NGO. The NGO had attempted to resolve the issue with the loan shark and to settle the debt. However, the loan shark insisted that the applicant and his family are responsible for the debt of [Mr A]. [Mr A’s] name was also included in the notice shown to the Tribunal and referred to below.
The applicant gave evidence that he and his family have also sought the assistance of the Malaysian Chinese Association (MCA), who also assist with these matters. The applicant gave evidence that even though he is not Chinese, he is able to access their services.
The applicant claimed that according to the various NGOs that he has spoken to, the loan shark operation that is pursuing the applicant is large and is considered dangerous.
The Tribunal discussed the possibility of relocation with the applicant. The applicant gave evidence that he feared that he could be tracked if he were to relocate. He also gave lengthy evidence regarding the discrimination that he has been subjected to since childhood on account of his ethnicity, and the implications this would have for his ability to relocate. The applicant claimed that he has been subjected to racial abuse and denied opportunities. Additionally, the quota system in Malaysia favours the Malay population, and Indian Malaysians struggle to get jobs. Consequently, he would struggle to find employment if he returned to Malaysia. Finally, the applicant claimed that whilst the economy in Malaysia is booming for some, for people in his situation, life is a real struggle. In short, the applicant claimed that he would need to spend money to relocate, and he does not know if this would be possible given the economic situation he would face on return to Malaysia.
Documentary evidence
As noted above, the applicant relied on documentary evidence at hearing, and referred to other evidence that was available to him. Following the hearing, the applicant provided several documents, together with translations, in support of his claims. Details of that evidence is outlined below.
First, the applicant has provided three audio recordings and transcriptions of voice messages that the applicant claims were left by the loan shark. Each audio file has a file name based on the date that it was saved by the applicant, however, this does not necessarily correspond to the date that the messages were received. Consequently, it is somewhat unclear what date the applicant received the messages.
Details of those messages are as follows:
a.First message: message from an unidentified male:
THIRD TIME AROUND, I WILL BURN THAT CAR
OKAY
[LAUGHTER]
So you want to challenge me… so
you want to challenge me
Its easy [to deal with] people like you
[laughter]
a.Second message: message from an unidentified male:
Remember, if anything happens…
[If the] police call me, I am not afraid
[of them]
I’ll just send them your number yea
[laughter]
You’re dead
a.Third message: message from an unidentified male:
Hey stupid!
Have you seen that house?
[laughter]
Second, the applicant provided copies of the police reports and translations that were discussed at hearing. In summary, the reports outline the following:
a.Report of [August] 2024: The report was lodged with the police by the applicant’s father. The report notes that on [Date] August 2024 at approximately 1200 hours at the applicant’s residential address as recorded in his protection visa application, a person claiming to be looking for an individual named [Mr A] who owes money to an illegal moneylender has claimed to use the applicant’s address as his residence. The report also notes that the claimant is concerned for the safety of his family.
b.Report of [Day 1] September 2024: whilst a formal translation has not been provided, the applicant did give an oral translation at hearing, which has been summarised above. It is also evident from the report that the report was lodged by the applicant’s wife and related to an incident that occurred at the applicant’s residential address in Malaysia.
c.Report of [Day 2] September 2024: a formal translation has not been provided for this report. However, it is evident from the report that the report was lodged by the applicant’s wife and related to an incident that occurred at the applicant’s residential address in Malaysia.
d.Report of [Day 3] September 2024: The report was lodged with the police by the applicant’s father. The report records that on [Day 3] September 2024 at approximately 0630 hours at the applicant’s residential address, blue paint was splashed across the fence and car at his property. The CCTV footage showed a white [car] occupied by two males. One of the two males splashed the fence and car with paint. Following this, a relative of the applicant received a WhatsApp message saying that they intend to set the applicant’s house on fire. The report also notes that the claimant has not borrowed money and he is concerned for the safety of his family.
Third, a copy of the warning notice stuck to the front of the applicant’s property and car, together with a translation was provided to the Tribunal. The warning notice sets out that a person named [Mr A], residing at the applicant’s residential address, borrowed money. Contact details are also listed on the notice.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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 (Cth) (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, the applicant 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) of the Act 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.[2] 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.[3]
[2]Migration Act1958 (Cth), s 5H(1)(a).
[3]Migration Act1958 (Cth), s 5H(1)(b).
Under the Act, 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.[4] 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 the Act, which are extracted in the attachment to this decision.[5]
[4]Migration Act 1958 (Cth), s 5J(1).
[5]Migration Act 1958 (Cth), s 5J(2)–s 5J(6) and s 5K–s 5LA.

If a person is found not to meet the refugee criterion,[6] s 36(2)(aa) of the Act sets out that a person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).
[6]Migration Act 1958 (Cth), s 36(2)(a).
The Act sets out that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[7]
[7] Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are defined in s 5(1) of the Migration Act 1958 (Cth).
The Act also provides certain circumstances where it is taken not to be a real risk that a person will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[8]
[8]Migration Act 1958 (Cth), s 36(2B).
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Available country information
Information relating to loan sharks
The applicant’s evidence at hearing was generally consistent with available country information. Available sources suggest that crime and loans from unlicensed moneylenders are common in Malaysia.[9] Unlicensed money lending activities, including harassment or intimidation of borrowers, are offences under the Moneylenders Act 1951.[10] Individuals prosecuted under the Moneylenders Act 1951 face a maximum one million ringgit fine or five years’ imprisonment.[11] Whilst country information indicates that police are taking steps to respond to illegal moneylending activities, it is evident that illegal moneylending remains a persistent and pervasive problem within Malaysia. In this regard, the most recent DFAT Country Information Report for Malaysia provides the following information on victims of loan sharks in Malaysia:
3.149    Usury is illegal. The Moneylenders Act (1951) requires that moneylenders have a licence and not charge interest rates above 18 per cent for an unsecured loan, which must not compound. Loan sharking is also covered under section 427 of the Penal Code, which prohibits ‘committing mischief’ and can carry a five-year prison term.
3.150    In practice, loan sharks or ‘pay-day financiers’ (unlicensed lenders, referred to as ‘Ah Long’ by the Chinese Malaysian community, ‘Chettiar’ by the Indian Malaysian community, and ‘Ceti’ in Malay), operate openly in Malaysia and charge interest as high as 50 per cent. Advertisements for cash loans appear on public property, including lamp posts and utility boxes. Loans offered through social media or smartphone apps are also common.
3.151    Motivations for taking out loans vary and can include gambling and economic disruption caused by the COVID-19 pandemic. Others take out loans for to finance small business which, if the business fails, sometimes become unsustainable debts. Loans are also made by people rejected by banks or who find bank decision-making slow or to require a lot of paperwork.
3.152    Those who do not repay loans face serious harassment. On rare occasions, victims of loan sharks have faced violence or have been sold into slavery. It is common for borrowers to have their house splashed with red paint, which is generally culturally understood to mean that they have not paid debts, causing public shame. They sometimes have their picture or pictures of their identity documents posted on telegraph poles, and families are sometimes harassed. Loan sharks sometimes hold victims bank cards or passports as collateral. Loan sharks sometimes continue their harassment even after loan has been paid off.
3.153    State protection is available to victims of loan sharks, but it is often ineffective. Being the victim of a loan shark is often perceived as a moral failing, and some police believe debtors have a religious obligation to pay their debts and consequently will not act to protect them. Formal credit agencies can consolidate loan shark debts and provide payment plans, providing some options for victims.
3.154    DFAT assesses that victims of loan sharks and their family members face a moderate risk of discrimination due to familial and societal shame. DFAT assesses that victims of loan sharks also face a moderate risk of harassment and a low risk of violence from loan sharks and/or gangsters. State protection is available but not always effective.[12]
[9] Bernama, ‘Largely pandemic-proof, loan sharks are swimming freely’, New Straits Times (28 March 2023), Department of Foreign Affairs and Trade, Country Information Report Malaysia (24 June 2024) (2024 DFAT Report), [3.149]-[3.154].
[10] ‘Moneylenders Act 1951 (Malaysia)’, amended 15 April 2011, Attorney General’s Chambers of Malaysia, ss 5(2), 29AA, 29B(1).
[11] Ibid.
[12] 2024 DFAT Report, [3.149]-[3.154].
In May 2024, it was reported that MCA Public Services and Complaints Department Chief, Datuk Seri Michael Chong, had ‘been at the forefront of’ combatting loan shark activity ‘for decades’.[13] An October 2024 article in the New Straits Times refers to Chong presenting ‘three cases of individuals being pursued by loan sharks for debts incurred by unknown persons’.[14] A September 2024 article in The Star also refers to the comments of Chong, who said that four people had become the latest victims of loan sharks ‘prowling social media by posting advertisements to entice victims’. Chong described these loan sharks as scammers. The article indicates that Chong had helped a 23-year old customer service officer, who had ‘borrowed RM5,900 from nine loan sharks she found online but only received around RM1,400 in total’, to negotiate and settle ‘her debt with seven of the loan sharks by paying about RM15,000 in total, including interest’. The other two loan sharks had refused to settle, and were demanding more money from the woman. Chong said people ‘should avoid borrowing money from these shady money lenders’, with people ending up ‘getting blackmailed or worse’. He had seen at least 23 of these cases during 2024.[15]
[13] ‘Loan sharks: Malaysia’s battle against unethical lending practices’, The Malaysian Reserve (6 May 2024), < 'Loan shark targets woman over absent father's debt', New Straits Times (10 October 2024), < ‘Four more fall victim to cyber loan sharks’, The Star Online (Malaysia) (19 September 2024), <>
In a May 2024 article in The Malaysian Reserve, Chong said the modus operandi of loan sharks had ‘evolved, morphing into a more aggressive and ruthless enterprise’. Loan sharks were ‘becoming more aggressive, resorting to threats and extortion, demanding much more than the borrowed sum, and harassing not only borrowers but those around them as well such as family and neighbours’. He also said that the government had ‘enacted new laws to strengthen penalties against loan sharks, sending a clear message that such illicit activities will not be tolerated’.[16] However, he also ‘noted that loan sharks rely on borrowers to sustain their business operations’.
[16] ‘Loan sharks: Malaysia’s battle against unethical lending practices’, The Malaysian Reserve (6 May 2024), <>
A November 2023 article in The Rakyat Post refers to Chong’s involvement in negotiating with loan sharks being scrutinised on social media, with one person questioning ‘Chong’s focus on mediating the payment amount rather than taking action against illegal money lenders’.[17] The issue is reported to have arisen following a report in The Star about a man named Pek, who had tried to extort RM60,000 from another man named Chua, to whom he had lent RM3,000 seven years previously. Pek had been a friend of Chua. Chua’s mother had ‘sought help from MCA Public Services and Complaints Department, and ‘[f]ollowing a discussion with the friend, Chong said Pek agreed to lower the amount to RM33,333’.[18] The Rakyat Post article states that ‘opinions vary regarding Michael Chong’s involvement in negotiating with loan sharks’. The motive behind Chong’s actions continued ‘to be a subject of debate as concerns about the prevalence of loan sharks persist in Malaysian society’.[19]
[17] ‘Controversy Arises As MCA’s Michael Chong Negotiates With Loan Sharks’, The Rakyat Post (4 November 2023), < ‘Man extorted RM60,000 over RM3,000 loan’, The Star Online (Malaysia) (4 November 2023), < ‘Controversy Arises As MCA’s Michael Chong Negotiates With Loan Sharks’, The Rakyat Post (4 November 2023), <>
Available country information also suggests that there are ongoing police operations targeting criminal gangs and crime syndicates. In recent years, police report making an increasing number of criminal gang-related arrests.[20] Numerous media reports indicate that targeted police operations disrupt gang criminal activity across the country.[21] However, DFAT reports that crime and gang activity remains a persistent problem.[22]
[20] ‘KL police prosecution, case-solving rate up since 2018, says city police chief’, Malay Mail (7 September 2020), < 'Cops cripple five-gang alliance with arrests of 21', The Star Online (29 May 2024), <
[22] 2024 DFAT Report, [2.30].
DFAT also reports as follows with respect to the police:
5.5 The [Royal Malaysia Police (RMP)] is based on the British constabulary model, employs approximately 115,000 officers, and operates over 800 police stations across Malaysia. Multiple local and international sources consider the RMP to be a professional and effective police force, although note the quality of its members’ responses varies depending on levels of training, capacity, and engagement in corruption. RMP officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians, and Indian Malaysians.
5.6 According to Transparency International’s 2017 Global Corruption Barometer for the Asia-Pacific region (the latest available), Malaysians perceive the police as one of the most corrupt institutions in the country. External investigations into allegations of police misconduct were previously conducted by the Enforcement Agency Integrity Commission, which was not well-regarded by complainants. From July 2023, such investigations have been carried out by the Independent Police Conduct Commission (IPCC). The establishment of the IPCC was recommended by a Royal Commission in 2005. Due to the number of deaths in police custody and impunity in detention centres, the incoming government pledged to establish such an agency during the 2018 election campaign. In 2020, the then-government re-introduced what observers described as a ‘weakened’ bill, proposing the creation of the IPCC, which came into force in July 2023. [Malaysian human rights NGO, SUARAM] stated in April 2023 that the body has ‘too many restrictions which will hinder its investigations’ and that it is effectively ‘toothless’.
5.7 In-country sources reported in 2020 that the RMP had engaged in the practice of ‘chain of remand’ whereby police arrest someone, hold them until a court will not or cannot extend their remand, and release them only for police from a different police station to re-arrest that same person. Human rights observers reported that this practice occurred regularly.
5.8 In July 2014, the then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department within the RMP to enhance police integrity and image. [The Human Rights Commission of Malaysia (SUHAKAM)] also receives complaints against the RMP and has investigated police behaviour. However, the government is not formally required to consider SUHAKAM’s reports or recommendations. SUHAKAM’s investigation into the disappearance of Pastor Raymond Koh concluded that RMP Special Branch was responsible for the disappearance, but no one was ever held accountable. See also Deaths in Custody.
Whilst there have been efforts to improve policing standards in Malaysia, available country information indicates that police corruption and criminality remains an ongoing issue, with police officers found to have taken bribes to close investigations and to have turned a blind eye to criminal activity – including in cases involving illegal moneylenders.[23]
Information relating to ethnic discrimination
[23] ‘Over 1,600 police officers, personnel in Malaysia sacked in past decade over various offences’, Channel News Asia (26 July 2024), < ‘4 cops held for bribery involving loan shark in Lahad Datu’, Free Malaysia Today (23 August 2017), < ‘Probe into loan sharks offering bribes to cops continues’ Free Malaysia Today (12 July 2017), <>
Malaysia’s population is broadly divided into two ethnic categories namely Bumiputera and non-Bumiputera. Malaysia’s Bumiputra (sons of the soil) account for almost 70 percent of the country’s population and are comprised mostly of Malays and other smaller indigenous groups including the Orang Asli, Sabah Bumiputra and Sarawak Bumiputera.[24] Ethnic Malays are defined by the nation’s Constitution as Muslim by birth.[25]
[24] ‘Launching of Report on the Key Findings Population and Housing Census of Malaysia 2020’, Department of Statistics Malaysia (14 February 2022), pp.8-9, < 2024 DFAT Report, [3.3].
Malaysia has long-standing affirmative action policies that benefit Malays and Indigenous peoples.[26] These policies give preferential treatment in areas including public service jobs, higher education, property ownership, government contracts and housing, and were introduced as part of a social engineering programme that followed race riots between the Malays and ethnic Chinese in May 1969.[27] Although these policies were supposed to be temporary measures some have remained in place, and many non-Bumiputera have left the country in search of better opportunities elsewhere.[28] Successive governments have justified affirmative action policies as a means to attain ‘ethnic harmony and political stability.’[29]
[26] 2024 DFAT Report, [3.3]-[3.7]; 'BTI 2024 Country Report - Malaysia', Bertelsmann Stiftung (19 March 2024), pp.4-5, < 'Freedom in the World 2024 - Malaysia', Freedom House (3 April 2024), F4, < 2024 Country Report - Malaysia', Bertelsmann Stiftung (19 March 2024), pp.4-5, < 2024 DFAT Report, [2.3].
[28] 'BTI 2024 Country Report - Malaysia', Bertelsmann Stiftung (19 March 2024), p.5, < ‘With more pursuing careers abroad, can Malaysia stem the talent brain drain?', Channel News Asia (13 August 2022), < ‘Majority Affirmative Action in Malaysia: Imperatives, Compromises and Challenges', Institute for Southeast Asian Studies (March 2017), pp.10-11, < 'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State (22 April 2024), section 6, p.17, <>
With respect to the Indian population, DFAT reports as follows:
3.16 Indian Malaysians constitute the third-largest ethnic group in Malaysia. Department of Statistics Malaysia estimates their population at 2.02 million, approximately 6 per cent of the population. Most are Tamil speakers, whose ancestors migrated as agricultural labourers for the British prior to independence.
3.17 Many Indian Malaysians are relatively poor. Historically Indian Malaysians had a higher average income than Malays, however Malays have made significant gains due to the benefits of the Bumiputera system, which Indian Malaysians are excluded from. Indian Malaysians also reportedly suffer discrimination in obtaining rental accommodation. Indian Malaysians are predominantly Hindu, though some are Muslim, Christian, or Sikh.
3.18 Indian Malaysians tend to be underrepresented in the civil service, and even more so in the police and military. Very few occupy senior positions; however, there are exceptions, and there are several Indian Cabinet ministers. In-country sources reported that while the use of the Malay language can be a barrier to employment in the civil service, it does not preclude it. According to in-country sources, Indian Malaysians sometimes convert to Islam to get ahead in the civil service. According to in-country sources, many Indian Malaysians do not apply for the civil service, assuming they will not be successful. Indian Malaysians also report they are often excluded from employment by the Chinese-dominated corporate sector because of a requirement to speak Mandarin.
3.19 There are publicly-funded Tamil-language primary schools; however, Indian Malaysian students must attend Malay-language public high schools, where some reportedly struggle to make the linguistic adjustment. Indian Malaysians often struggle to access state-based tertiary education. In-country sources reported clear discrimination for university entry in favour of Malays, to the detriment of Indian Malaysian students. In-country sources reported that some students with ‘Flat A’ marks (a perfect GPA of 4.0) were awarded their 6 or 7th preferred course, while Malay students with lower marks received their first choices.
3.20 A disproportionate number of Indian Malaysians are in prison. According to Malaysian human rights NGO SUARAM, 55 per cent of prison deaths between 2010 and 2017 were Indian Malaysians. Many in-country sources stated that the high level of incarceration, as well as economic and social alienation experienced by Indian Malaysians, was leading to gangsterism.
3.21 A significant number of Indian Malaysians are either stateless or lack citizenship papers. Historically, many lived on self-contained agricultural estates and never received birth certificates or other forms of documentation, and some newly urbanised Indian Malaysians still lack documentation. These undocumented individuals are not able to access health care and other government services on the same affordable terms as citizens (see Health). Many undocumented Indian Malaysians reportedly work in informal labour sectors or drift into gangsterism. Indian Malaysian in-country sources reported that authorities have arrested many undocumented ethnic Indians when registering at hospitals to access health services, resulting in a reluctance to access services within the community.[30]
[30] 2024 DFAT Report, [3.16]-[3.21].

Overall, DFAT assesses that the Indian population face ‘moderate levels of official discrimination’ in Malaysia.[31]
[31] 2024 DFAT Report, [3.22].
ACCEPTED FACTS
The applicant’s oral evidence at hearing regarding the loan shark was clear and consistent with available country information. Additionally, the applicant had readily available supporting documents and CCTV footage indicating that the loan sharks have continued to harass his family, even in recent months. The Tribunal accepts that the documentary and audio/video evidence provided by the applicant is genuine.
Consequently, the Tribunal accepts that the applicant borrowed money from a loan shark and that he has repaid most, if not all of that debt. The Tribunal also accepts that the loan shark has continued to demand payments from the applicant and his family, and the applicant’s wife has continued paying money to the loan shark out of fear of further reprisals.
Furthermore, on the applicant’s oral evidence, together with the video, photographic and documentary evidence provided by the applicant, the Tribunal accepts the following:
a.That the loan shark has directed threats at the applicant, his family and his property;
b.That in about 2018, the applicant was physically assaulted by associates of the loan shark;
c.That the applicant and his family have engaged with various NGOs, including the MCA, in order to attempt to negotiate a settlement with the loan shark;
d.That despite these efforts to negotiate a settlement, the applicant’s family have continued to be targeted, harassed and threatened by the loan shark, with the loan shark continuing to extort money from the applicant and his family;
e.That the loan shark has splashed paint on the applicant’s family home and vehicles on multiple occasions, most recently twice in September 2024; and
f.That whilst the applicant’s wife has lodged multiple reports with the police, the police have to date been unable or unwilling to take action.
The Tribunal accepts that if the applicant were to return to Malaysia, the loan shark would seek to enforce repayment of the loan or to extort money from the applicant. Given the applicant’s overall financial situation, the Tribunal is satisfied that if the applicant returned to Malaysia, he would not be able to settle the debt with the loan shark.
ASSESSMENT OF CLAIMS
The issue in this case is whether the applicant is 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.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Refugee criterion
Whilst the Tribunal accepts that the applicant is being pursued by a loan shark, as explained to the applicant at hearing, the refugee assessment at s 5J(1) of the Act requires that a person have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The applicant fears being harmed by the loan shark for reasons of the alleged debt that is owed to the loan shark. The Tribunal has considered whether the applicant will face persecution for reason of his membership of a particular social group such as ‘persons owing money to loan sharks’ or ‘persons being pursued by loan sharks for a claimed debt’. Having regard to the country information referred to herein, the Tribunal is satisfied that these characteristics distinguish the group from society such that s 5L(c)(iii) applies.
However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. Under s 5J(4)(a), the particular social group must also be the essential and significant reason for the persecution. On the evidence before it, the Tribunal does not accept that the loan shark would seek to harm the applicant on his return to Malaysia for reasons of his membership of the particular social groups described above. Rather, the Tribunal finds that the moneylender would be motivated to harm the applicant due to him personally having owed a debt to the loan shark in the past or for purposes of extorting money from the applicant. For these reasons, the Tribunal finds that the membership of the particular social group is not the essential and significant reason for the harm under s 5J(4)(a).
Given the above, the Tribunal is not satisfied that the applicant has a ‘well-founded fear of persecution’ for one of the five enumerated reasons in s 5J(1) of the Act. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has a protection obligation under s 36(2)(a) of the Act.
Complementary protection criterion
Significant harm
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), namely, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk that the applicant will suffer significant harm.
In considering whether the harm feared by the applicant would amount to significant harm in the complementary protection criterion under s 36(2)(aa), the Tribunal has had regard to the definition of ‘significant harm’ as exclusively defined in s 36(2A), as follows:
(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.
Relevantly, s 5(1) of the Act defines ‘cruel or inhuman treatment or punishment’ as:
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;
The Tribunal accepts that the loan shark has continued to harass, intimidate and threaten the applicant and his family.
In assessing the risk to the applicant if he were to return to Malaysia, the Tribunal is cognisant that the applicant’s family have not been physically harmed since the applicant has been in Australia. However, it is accepted that the applicant has been assaulted and physically injured in the past by the loan shark or the loan shark’s associates. Moreover, the loan shark’s recent behaviour is indicative of an escalated risk if the applicant were to return to Malaysia given the frequency of harassment directed at his family has increased significantly. The Tribunal also accepts that if it were not for the applicant’s wife continuing to make payments to the loan shark, this harassment may have escalated further. Furthermore, given the applicant’s evidence, the Tribunal accepts that if the applicant were to return to Malaysia, the applicant and his family would be in a more financially difficult situation and unable to make regular payments to the loan shark.
Consequently, given the applicant’s evidence and the country information referred to above, the Tribunal accepts that there is a real risk that the applicant will suffer significant harm if he returns to his home region of Malaysia, including being physically assaulted by the associates of the loan shark, as has occurred in the past. The Tribunal finds that the harm the applicant will be subjected to if he returns to Malaysia would amount to cruel or inhuman treatment or punishment, and that any harm directed at the applicant from the loan shark would be with the actual intention of inflicting severe pain and/or suffering on the applicant.
Relocation
Section 36(2B)(a) of the Act sets out that there is taken not to be a real risk that a non-citizen will suffer significant harm in their home country if 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. The test in s 36(2B)(a) broadly reflects the relocation test in the Refugees Convention context – that is, that depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared harm.[32]
[32] SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.
As per the outline of evidence above, the Tribunal discussed with the applicant the possibility of relocating to an area in Malaysia where he would not face a real risk of harm from the loan shark. In response, the applicant made several observations.
First, the applicant gave evidence that the loan shark had the means to track him throughout Malaysia if he were to attempt to relocate. Whilst he was uncertain exactly how the loan shark would do this, he indicated that it was possible through technology.
Second, the applicant gave lengthy evidence with respect to the difficulties he would face in relocating due to a combination of his financial position, his need to support his family, and the discrimination he will face on account of his ethnicity. The applicant also provided country information which supported his claim that he would face discrimination and economic disadvantage as a consequence of his ethnicity if he were to return to Malaysia.
Available country information would seem to indicate that criminal gangs and loan sharks are active throughout Malaysia. [33] This is accepted by the Tribunal. However, this does not necessarily mean that the specific loan shark that the applicant owes money to is active throughout Malaysia. Rather, the applicant’s evidence focused primarily on the activities of the loan shark in and around the applicant’s home area of Kuala Lumpur. Moreover, the applicant was not able to provide an explanation of how the loan shark or his associates would be able to use technology to track him to another part of Malaysia. Additionally, the Tribunal has not been able to find reliable country information regarding how loan sharks in Malaysia are able to find loan defaulters, including whether a returnee such as the applicant, who has been out of Malaysia for several years, would be able to be located if he lived away from his home area. Consequently, the Tribunal does have some reservations with respect to how the moneylender would be able to locate the applicant if he were to return to Malaysia and live away from his home area.
[33] Bernama, ‘Largely pandemic-proof, loan sharks are swimming freely’, New Straits Times (28 March 2023), < 2024 DFAT Report, [2.30],[3.149]-[3.154].
However, it is not a criterion for complementary protection that the real risk of significant harm relates to all areas of the country. Rather, as per s 36(2B)(a), the applicant will be entitled to complementary protection unless it would be reasonable for him to relocate to an area of the country where he would not be at real risk of significant harm.
In this case, the Tribunal accepts that the applicant would be returning to Malaysia in a vulnerable situation, with limited financial means and as the father of [dependent children] and a wife who are relying on him for financial support. Whilst the applicant has worked in Malaysia in the past, he did so in his own businesses, which he would need to re-establish if he returned to Malaysia. Moreover, in view of the applicant’s evidence and the country information cited above, the Tribunal accepts that Malaysian nationals of Tamil/Indian ethnicity are subjected to a level of discrimination throughout Malaysia as a result of preferential government treatment for ethnic Malays and indigenous groups. As such, the Tribunal accepts that the applicant will likely be subjected to a level of discrimination on account of his ethnicity when attempting to find employment, particularly away from his home area where he would not be able to rely on known support networks. It is also accepted that upon return to Malaysia, the applicant would for at least a period be unemployed and without sufficient means to relocate away from his family home. The Tribunal also finds that the applicant’s financial burden when trying to relocate would increase as the applicant would likely seek to relocate his family with him.
Due to the combination of these factors, the Tribunal accepts that the applicant would need to return to his home area and family home in order to have financial support and accommodation on return to Malaysia. Consequently, the Tribunal is not satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm as required by s 36(2B)(a).
Protection from the authorities
Section 36(2B)(b) of the Act sets out that there is taken not to be a real risk that a non-citizen will suffer significant harm in their home country if 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.
The Tribunal has considered whether the applicant could obtain protection from the Malaysian authorities, such that there would not be a real risk that he will suffer significant harm. As noted above, DFAT reports that multiple local and international sources consider the Malaysian police force to be a professional and effective police force, while noting the quality of its members’ responses varies depending on levels of training, capacity, and engagement in corruption.[34] However, DFAT notes that whilst state protection is available to victims of loan sharks, it is often ineffective, and that being the victim of a loan shark is often perceived as a moral failing, with some police believing that debtors have a religious obligation to pay their debts and consequently not acting to protect them.[35]
[34] 2024 DFAT Report, at [5.5].
[35] 2024 DFAT Report, at [3.153].
The applicant also gave evidence at hearing that the police have been largely non-responsive when his family has reported the threats and vandalism from the loan shark or the loan shark’s associates. Whilst the police have recorded the incidents, they have failed to take further action.
Given the available country information and the applicant’s evidence, the Tribunal considers that the applicant could not obtain protection from the Malaysian authorities, such that there would not be a real risk that he will suffer significant harm. Therefore, s 36(2B)(b) does not apply in his circumstances.
Risk to the applicant personally
Section 36(2B)(c) of the Act sets out that there is taken not to be a real risk that a non-citizen will suffer significant harm in their home country if the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
The Tribunal accepts the harm the applicant fears from the loan shark is not one faced by the Malaysian population generally; rather, it is one faced by the applicant personally arising from his debt to the loan shark or the loan shark’s attempts to extort the applicant and his family.
For these reasons, the Tribunal is satisfied that the applicant faces a real risk of significant harm if he returns to Malaysia, now or in the reasonably foreseeable future.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person 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). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. In this case, there is no evidence to suggest that the applicant has any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Date of hearing:                  10 October 2024
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.
…

'Kedah police bust 'Gang Bri', group leader arrested' New Straits Times (21 November 2023), <
‘Cops nab ‘Eddy Gang’ responsible for string of daytime burglaries’ Bernama (14 July 2023), < ‘Melaka police nab six Faiz Tanah Merah Gang members, including 13-year-old’ Bernama (9 June 2023), < ‘Shah Alam police nab two motorcycle theft gangs’ Bernama (2 June 2023), < ‘Tawau cops nab trio linked to armed gang robberies’, The Star (18 May 2023), < ‘Police cripple luxury car theft gang, 14 including mastermind nabbed’, New Straits Times (18 February 2023), <

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Citations

1905588 (Refugee) [2024] ARTA 898

Cases Citing This Decision

Cases Cited

Statutory Material Cited

SZATV v MIAC [2007] HCA 40

SZFDV v MIAC [2007] HCA 41

SZATV v MIAC [2007] HCA 40