1905904 (Refugee)

1905904 (Refugee) [2020] AATA 2921 (26 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1905904

COUNTRY OF REFERENCE: Malaysia
MEMBER:Alison Mercer
DATE:26 June 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 June 2020 at 5:48pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – particular social group – victims of loan sharks – threats and attacks – employment – economic conditions – racial discrimination – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424A
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33

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 a decision made by a delegate of the Minister for Immigration and Border Protection on 22 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 15 December 2016. The delegate refused to grant the visa on the basis that Australia did not owe the applicant protection obligations.
The applicant lodged an application for review with the Tribunal (differently constituted) on 8 April 2017, which was accompanied by a copy of the delegate’s decision.
The applicant attended a Tribunal hearing on 8 November 2017. On 20 February 2018, the Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant sought judicial review of the Tribunal’s decision [in] March 2018.
[In] February 2019, the Federal Circuit Court remitted by consent the Tribunal’s decision to the Tribunal, to be re-determined according to law. The remittal reason was stated to be that the Minister for Home Affairs conceded that the Tribunal’s decision was affected by jurisdictional error on the basis that the Tribunal was required to put certain to the applicant in accordance with s.424A of the Act and failed to do so. Specifically, the Minister conceded that the Tribunal stated that, at [42], "the New Strait Times reported that Datuk Nadzim Johan from the Malaysian Muslim Consumers Association had been able to negotiate with loan sharks and that they had been battling them for years." It was also conceded that the Tribunal found that the applicant would be afforded effective protection from harm by the authorities upon his return to Malaysia; in particular, the Tribunal stating, at [61]:"For example, the police provide effective protection to the applicant from physical harm. In addition, groups such as the Malaysian Muslim Consumers Association are able to provide him with assistance by acting as his agent in dealing with the loan shark to ensure repayment of the loan and that he is not physically harmed. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority in Malaysia, protection such that there would not be a real risk that she (sic) will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer harm in Malaysia and does not satisfy s.36(2)(aa) in this regard." In the circumstances, the Minister for Home Affairs conceded that the information about Datuk Nadzim Johan was the reason, or part of the reason, for the Tribunal affirming the decision not to grant the visa, and therefore the Tribunal was required to put this information to the applicant in accordance with s. 424A of the Act, and the information was not excluded under s. 424A(3) of the Act.
The matter was remitted to the Tribunal and constituted to the present Tribunal Member [in] February 2020.
On 11 March 2020, the Tribunal wrote to the applicant to invite him to a hearing on 13 May 2020.
The applicant attended the hearing on 13 May 2020, at which he and the Tribunal were assisted by the services of an interpreter in the Mandarin and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 Tribunal is satisfied that the applicant was 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 LAW, CLAIMS AND EVIDENCE
Protection visa application
In his protection visa application, the applicant claims to be citizen of Malaysia, stating that he was born in Klang, Selangor in Malaysia in [year]. He stated that he could speak, read and write Chinese and speak English. He further stated that he was ethnically Chinese and a Buddhist. He left the question about his occupation blank. He stated that he had never been married. He did not provide details of his family composition.
The applicant stated that he arrived in Australia [in] December 2015 on a Malaysian passport holding a visitor visa.
The Department’s records indicate that the applicant was granted a visitor visa [in] December 2015, arrived in Australia [later in] December 2015, and that the visitor visa expired on 22 March 2016. The applicant became an unlawful non-citizen after the expiry of his visitor visa. As noted above, he applied for a protection visa on 19 December 2016, at which point he was granted a bridging visa C.
The applicant’s written claims in his form can be summarised as follows:
·he left Malaysia and was afraid to return there because he could not find a good job with better pay to support himself and his family. One of the biggest current issues in Malaysia was employability. The unemployment rate in Malaysia was getting worse, even recent graduates from university were unemployed. There was racist discrimination but also there were simply not enough jobs to go round for all races. At [his age], he would not be able to find a better job to support himself and his family;
·if he returned to Malaysia, he would be unable to find and get a job to support himself. He had been looking for a job for more than 20 years but he still failed until now;
·he did not experience harm in Malaysia. In relation to whether he had tried to move to another part of the country, he said he did not try to do so because he still could not find a better job with better pay because job opportunities throughout Malaysia were very limited; and
·the authorities in Malaysia could not protect him because they would not interfere in personal matters.
Department decision of 22 March 2017
The delegate accepted that the applicant was a Malaysian citizen and that he claimed to fear unemployment in Malaysia and that he would be financially unable to support himself and his family if he returned.
The delegate found that country information indicated that the economic climate in Malaysia affected everyone and found that the economic harm the applicant might suffer on his return was therefore not discriminatory, and was not for his political opinion, membership of a particular social group, religion, race or ethnicity. There was no information before the delegate to suggest that the applicant would be targetted on return to Malaysia for one or more of the reasons in the refugee definition. While the delegate accepted that the applicant strongly preferred to live in Australia, where he would experience a better quality of life and have better employment opportunities, the delegate was satisfied that the applicant’s principal motivation was to have a better life here. Whilst this was understandable, it did not constitute persecution or discrimination within the meaning of the refugee or complementary protection definition. Moreover, the delegate found that there was no obligation at international law for States to provide protection to people fleeing violations of economic, social or cultural rights. The fact that a person might enjoy less favourable social, economic or cultural rights in another country does not, of itself, give rise to a non-refoulement obligation. Although there was country information suggesting the economic situation in Malaysia was less favourable than Australia, the delegate was not satisfied that the applicant’s capacity to subsist would be threatened.
Tribunal decision of 20 February 2018
The Tribunal (differently constituted) also accepted that the applicant was a Malaysian citizen and that he claimed to fear poor economic conditions if he had to return there. He was divorced and his wife had returned to her home country, [Country 1]. His [age] year old son lived with the applicant’s sister in Malaysia. The Tribunal noted that the applicant claimed at hearing that he borrowed RM[amount] from the bank to buy a house, but then fell behind in payments and had to borrow RM[amount] from a loan shark (‘ah long’) to pay outstanding interest and costs on the loan. The applicant told the Tribunal that the house was worth about RM[amount] and was currently rented out and the income from that was used to pay the interest on the bank loan. The applicant further said that he fell behind repaying the loan shark and was harassed by the loan shark in about October or November 2015, when his car window was smashed. His mother told him that it was the loan shark. The applicant said that he did not make a complaint to the police, but he feared he would be threatened again by the loan shark if he now returned.
The Tribunal considered a range of sources of country information about the economic situation and the situation for victims of loan sharks in Malaysia. The Tribunal provided the applicant with the benefit of the doubt relating to the loan shark claims, despite the lack of independent evidence. The Tribunal further accepted that the applicant belonged to a particular social group, being people who had borrowed money from a loan shark (ah long) in Malaysia, and that he might face a chance of harm, including physical harm, for this reason but found that he would have access to effective protection from the Royal Malaysian Police (RMP). It further considered that it was open to the applicant to realise the value of his property in Malaysia, which exceeded the value of his outstanding loan(s). For these reasons, the Tribunal found that this claim did not satisfy the refugee or complementary protection criteria.
In relation to the applicant’s economic claims, the Tribunal found that there was no intention on the part of the Malaysian authorities (or any other party) to inflict economic harm on the applicant. Nor did the Tribunal accept that the applicant would be able to find any employment if he returned to Malaysia. The Tribunal found that this did not meet the refugee or complementary protection visa definitions.
Second Tribunal hearing on 13 May 2020
The applicant told the Tribunal that he had not had legal representation at any stage of his protection visa application, including during his judicial review application. He said that he did sometimes receive assistance from friends. At the time he made his protection visa application, he had limited English, and his friend helped him complete the form. This friend was also Malaysian, and spoke Malay and English, while the applicant spoke Mandarin, but only limited Malay and even more limited English. They communicated in Malay but the applicant felt that his limited Malay resulted in what was in the form being not that accurate.
The applicant confirmed that he held only Malaysian citizenship and that besides living in Australia and Malaysia, he had also been on holidays in [specified countries]. He confirmed that he was of Chinese ethnicity, mainly spoke Chinese and was a Buddhist. He said that his parents were in Malaysia, but his mother was currently in Australia as she had come to visit him but was as yet unable to return to Malaysia due to the COVID19 pandemic. She was due to return [in] June 2020. His parents normally both resided in Klang and were no longer working. His mother had been in charge of the home, while his father had worked as [an occupation]. The applicant said that he had [a] sister in Malaysia, who was married with her own family, and that their mother normally lived with her. The applicant said that his parents separated some years ago. He confirmed that he was previously married to a woman from [Country 1], but they separated many years before he came to Australia. His ex-wife had returned to [Country 1] after the separation and he did not have contact with her, although they had never formally divorced. The applicant said he had not re-partnered after the separation. Their son, who was about to turn [age] this year, lived in Malaysia with the applicant’s sister and mother. The applicant said that he expected that his son would move out and look for work once he completed his secondary schooling.
The applicant told the Tribunal that he finished [specified school level] in Malaysia, then started work. He said that he became [an occupation 1] and ran his own small business; however, work was hard to find and it was difficult to support his family. His income was stretched and he had no capacity to accumulate any savings. The applicant said that he would like permission to work in Australia and find stable work as [an occupation 1]. At the moment, he was living in shared accommodation with some other Malaysians.
In response to the Tribunal’s query, the applicant said at the time he made his visitor visa application, he was not aware of protection visas. He said that he sought the visitor visa due to avoid people who were chasing him, and that he was running away. It was only after he arrived in Australia that a friend told him about protection visas, and suggested that he might be eligible. When asked why he chose to come to Australia, and not another country, or another part of Malaysia, to run away, the applicant said that a friend told him that Australia was very fair to immigrants, and also that he could make more money working in Australia than in Malaysia. The applicant said that it was well publicised in the Malaysian media that there were good work opportunities for working class Malaysians in Australia. He said that a travel agency obtained the visitor visa for him. The applicant further stated that he didn’t know anyone in Australia, or have any specific plans, but had about $3,000 in savings. About 3 days after he arrived in Australia, he realised that a friend’s younger brother was here and the applicant contacted him to see if he could help the applicant find work. The friend helped him find casual labouring work, but this was different from his previous work as [an occupation 1].
The Tribunal went through the written claims in the protection visa application. The applicant confirmed that the claims about the poor economy and high unemployment rate in Malaysia were correct, as were the claims about racial discrimination, although he also agreed with the written statements to the effect that there were not enough jobs for everyone, regardless of ethnicity or age. The applicant added that there was racial discrimination against Chinese Malaysians, and employment preference was very much in favour of ethnic Malays, whereas in Australia, this was not an issue. The applicant said that you needed Malay connections to be able to get decent work, and he experienced this personally when he worked as a subcontractor. He had experiences of being paid less than ethnically Malay subcontractors for the same work. The applicant confirmed the part of his written claims about having spent 20 years looking for decent employment. He told the Tribunal that it would be very difficult to return now, given he had been away for so long. It would be a challenge to start again. He clarified that he had not experienced any harm in Malaysia, apart from difficulties making ends meet financially, but reiterated that unemployment was rife throughout Malaysia. Therefore it was pointless for him to go back and relocate to another part of Malaysia.
The applicant said that the other reason he feared returning to Malaysia was because he owed a huge debt and he would still be tracked down for this reason. In response to the Tribunal’s query, the applicant said that the debt was for [amount] Malaysian ringgit, which he estimated was about AUD $[amount]. In response to the Tribunal’s query, the applicant said that he did not tell the friend who assisted him with making his protection visa application about this but he did tell the Presiding Member at his first Tribunal hearing. He said that the reason he did not mention it before this was purely cultural: it was a huge shame to be in debt to that extent, and that is why he did not put this in his initial claims.

The applicant told the Tribunal that his economic situation was tight and he went to a loan shark (‘ah long’) to borrow money but the interest rate was very high. It was illegal but he needed to obtain extra funds because he couldn’t afford to live otherwise. The applicant noted that no one wanted to go to a loan shark if they did not have to, but he had to. The Tribunal noted that in the previous Tribunal decision, the Presiding Member recorded the applicant’s evidence as being that he borrowed [amount] MR to cover interest payments that he missed on a bank home loan for [amount] MR. The applicant said that he bought his property a long time before he went to the loan shark, and the reason that he went to the loan shark was for cash flow issues, not because of the home loan. He speculated that the previous Tribunal Member may have misunderstood his evidence in relation to this issue. The Tribunal emphasised that it was important for it to clearly understand the circumstances of why the applicant borrowed money from a loan shark, given that the previous Tribunal decision found that it was to pay the home loan, and further found that the applicant could rent out his property to generate income to repay the loan. The applicant responded that at that time, he was still making monthly repayments on his home loan but needed additional funds to meet his basic living expenses, such as food, fuel and so on. He maintained that there was no other specific reason or purpose for needing additional funds.
In relation to the home loan to the bank, the applicant said that when he left Malaysia, he owed about [amount] MR and that while he was in Australia, a friend forwarded him correspondence from the bank threatening to effect a forced sale. However, he was able to pay off the arrears from his earnings in Australia, and things were now under control with that loan. In response to the Tribunal’s query, the applicant said that he did not try and renegotiate the loan terms with the bank; he just ran away to Australia. The applicant said that the property was vacant because he just locked up and left it. A female friend in Malaysia has kept an eye on it. Shortly after he left, the bank confiscated his furniture due to the arrears and ‘froze’ the property. When asked why the applicant did not rent the property out to generate income to service the bank loan and/or the loan shark debt, the applicant said that he planned that his son would live there once he finished school and entered the workforce.
In response to the Tribunal’s query, the applicant said that he did not know the name of the loan shark, as they did not use formal titles. Loan sharks advertised in the newspapers and this was how he contacted the person he borrowed the money from. The applicant said that he originally asked to borrow [amount] MR, but the loan shark only had cash of [smaller amount] MR available, so he was lent this amount and it was to be repaid over 3 months, or high interest would be charged. The applicant said that he paid part of it back but could not repay the full amount. Interest accrued at about [amount] MR per month. The applicant estimated he took the loan out in May or June 2015. At the end of the 3 month period, the loan shark and his associates came to harass the applicant at his house. They broke his glasses and poured pain on the house walls. This happened in or around November 2015. The applicant said that they constantly came and harassed him after this. He said he was living on his own at this point, and this happened once or twice a week. In response to the Tribunal querying the evidence set out in the first Tribunal decision about a broken car mirror, the applicant said that his car mirror was broken one night, and he assumed it was the loan shark and/or his associates, given what had been happening, and that it was done by a group of people in the middle of the night. The applicant said that he was at home at the time, but hid inside.
The applicant said that he did not remember whether he mentioned that there was more than one visit or not to the previous Tribunal Member. The applicant said that he did report the car damage to the police, and they came over and took photos and interviewed him but then nothing really happened. In response to the Tribunal’s query, the applicant said that he did not tell the police about the loan shark debt, as in Malaysia, loan shark debts are not regarded as criminal cases, and the police were generally not willing to interfere in such cases. The applicant said that if he returned to Malaysia now, he would not feel that the police could protect him. He reiterated that the police would not interfere in this kind of case, and he had no faith that they would protect him or help him.
The Tribunal queried how the loan shark would know if the applicant now returned to Malaysia, some 5 years after he had left. The applicant said that the loan shark and his associates were local and would know if the applicant returned to his property in Klang. They would follow up the debt. Money issues were never ending for them. In response to the Tribunal’s query, the applicant said that the loan shark had not made contact with his family in Malaysia as far as he knew, but they did speak to one of the applicant’s friends, who was now in Australia. The applicant said that the friend told him that the loan sharks came to his old address from time to time, looking for him.
The Tribunal queried whether the applicant could relocate to another area of Malaysia, such as Kuala Lumpur, which had a bigger population and where he might he more anonymous. The applicant said that he still would not be able to make enough money there to pay the debt off – it would still be the same issue, it was a vicious cycle. The applicant maintained that the loan shark had lots of ‘business connections’ interstate in Malaysia, and would be find him. The applicant said that he had not been able to earn enough in Australia to repay the loan shark, only the bank loan arrears. He noted that he had living costs here that he had to meet. If he could make proper money here, he would be able to pay the debt back. He said that all he wanted was a chance for a better life in Australia.
The Tribunal discussed with the applicant various sections of the most recent Australian Department of Foreign Affairs and Trade (DFAT) Country Report on Malaysia (published 13 December 2019) including those on the Malaysian economy, unemployment rate, treatment of Chinese Malaysians, the RMP, and the situation for victims of loan sharks in Malaysia. It noted that the report indicated that the Malaysian economy was in relatively good shape at the time of publication, that Chinese Malaysians had a higher employment rate than other ethnic groups and that the incoming Federal government had pledged to implement a program aiming to further reduce poverty and income inequity by 2030. The applicant said that was probably just talk, and reiterated that Chinese Malaysians needed ethnic Malay connections or patronage to be able to get decent work and make a living, and especially to get government work as a subcontractor. In relation to the loan shark information, the applicant said that he tried to use his business as collateral with the loan shark, but the loan shark did not accept this. In relation to the existence of credit agencies who were able to consolidate and service loan shark loans on behalf of customers, the applicant said that he did not trust such agencies as he suspected that they were probably connected to loan sharks and would share information. The applicant said that he had never heard that the Malaysian Chinese Association (MCA), (a political party advocating for Chinese Malaysians), had intervened on behalf of individuals and successfully negotiated outcomes with loan sharks.
In response to the Tribunal’s query as to why he could not sell his property in Malaysia to generate income, the applicant said that he would still have difficulties in meeting his living costs as he would then have to pay rent.
Findings and Reasons
Identity
The Tribunal accepts from the documentary and oral evidence provided that the applicant is a citizen of Malaysia, that he is of Chinese ethnicity and that his biodata and family composition is as claimed. It finds that Malaysia is the appropriate country of reference against which to assess his claims.
Summary of Claims
The applicant initially claimed that he could not return to Malaysia due to the poor economic situation there. However, at the Tribunal (in the course of his first and second hearings) he made additional claims that he was afraid to return there as he still owed a debt to a loan shark, and that as an ethnically Chinese Malaysian, he faced discrimination.
Credibility
As discussed with the applicant at the second hearing, his failure to raise the claims relating to the loan shark debt and his Chinese ethnicity in his protection visa application raises the question of whether the applicant fabricated these claims after his original claims were rejected by the delegate. However, the applicant gave an explanation for this at the second hearing, and gave relatively consistent and detailed oral evidence at both Tribunal hearings regarding his claimed fear of harm due to an unpaid loan shark debt. Accordingly, the Tribunal considers that the applicant was generally credible in his evidence and has assessed all of the claims raised by him below.
Country information
The Tribunal had regard to the following information set out in the Australian Department of Foreign Affairs and Trade (DFAT) Country Report on Malaysia, issued 13 December 2019:
…
ECONOMIC OVERVIEW
2.9 The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2018, its real GDP growth was 4.7 per cent, while per capital GDP was USD10,942 (AUD14,630). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia is the world’s second largest producer and exporter of palm oil. Manufactured goods comprised 84 per cent of Malaysia’s exports in 2018. Malaysia is the Association of South East Asian Nations (ASEAN) largest energy exporter and income from oil and gas provides the government’s largest single revenue source. The drop in oil price in 2015 and 2016 negatively affected government revenues, but the rebound in oil prices in 2017 has seen revenues pick up again. The International Monetary Fund forecast economic growth of 4.5 per cent for 2019.
2.10 Malaysia’s economic performance over several decades has led to a significant reduction in poverty with the shares of households living below the national poverty line (USD 8.50 (AUD 12.26) per day in 2012) falling from over 50 per cent in the 1960s to less than 1 per cent today. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, which predominantly consists of Bumiputera. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. The UNDP’s Human Development Index ranked Malaysia 57 out of 189 countries in 2018, placing it in the ‘high human development’ category.
2.11 In October 2019, Prime Minister Mahathir Mohamad launched a new plan for sustainable and equitable economic growth in Malaysia called ‘Shared Prosperity Vision 2030.’ The plan is focused on providing a decent standard of living for all Malaysians, and narrowing the wealth gap and the urban-rural divide by 2030.
Unemployment
2.12 The Malaysian Department of Statistics reported a labour force participation rate of 68.6 per cent in June 2019, while in February 2019 the Malaysian Department of Statistics reported an overall unemployment rate of 3.3 per cent. 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.
…
Chinese Malaysians
3.8 The Malaysian Department of Statistics estimated there were 6.69 million Chinese Malaysians in Malaysia in 2018, making up around 20 per cent of the population. Chinese Malaysians are one of the largest overseas Chinese communities in the world, and are Malaysia’s second largest ethnic group. Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia. Chinese Malaysians are concentrated in the west coast states of peninsular Malaysia, living in large urban centres, including within Kuala Lumpur and Penang, and the populous states of Johor, Perak and Selangor, where they comprise approximately 30 per cent of the population.
3.9 There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians. Chinese Malaysians freely participate in political life, including as ministers in the current cabinet and in opposition parties, but Chinese politicians have occasionally faced public criticism for interfering with ‘Malay rights’. Since the 2018 general election, the largest ethnic Chinese party is the Democratic Action Party (DAP) which currently holds 42 of the 222 federal parliamentary lower house seats. Prior to the 2018 general election, the largest Chinese party was the Malaysian Chinese Association (MCA), a member of the BN coalition. However, while the MCA won seven seats in the parliament in the 2013 election and 15 seats in the 2008 election, it won only one seat in the 2018 election. Chinese Malaysian community members advised that the 1MDB corruption scandal had galvanised anti-government sentiment among Chinese Malaysians (as well as others) and had led to greater political engagement.
3.10 There are relatively few Chinese Malaysians in the Malaysian civil service. The predominant use of the Malay language can be a barrier to Chinese Malaysian employment in the civil service, but does not preclude it (see Civil Service). In-country sources advise Chinese Malaysians often do not apply for government positions, as they believe the positions are more likely to be awarded to Bumiputera and provide limited promotional opportunity. Conversely, Chinese Malaysians are well represented in the private sector and many small and medium enterprises and large corporations are Chinese Malaysian. However, Chinese Malaysians report discrimination against the community in the business sector and claim unequal access to certain industries due to Bumiputera ownership laws. Chinese Malaysians also claim the National Department of Islamic Development (JAKIM) commonly raids Chinese Malaysian halal businesses, particularly food and beverage outlets, in order to shut the businesses down or extort bribes (see Federal and State Law Enforcement Entities). Chinese Malaysians also report obtaining and maintaining a business license can be difficult, due to Bumiputera ownership quotas and pressures to pay significant bribes. Chinese Malaysians also claim Inland Revenue Board (IRB) raids of Chinese Malaysian businesses leading to fines are common. Sources claim that IRB raids for ‘verification purposes’ can close down a business for months at a time, with significant economic consequences including loss of income and frozen bank accounts.
3.11 Chinese Malaysians are eligible to access government-provided national primary or high school education, but generally choose to attend one of the 1,298 national-type Chinese primary schools that teach in Mandarin (see Education). This is reportedly usually due to concerns about the quality of public education and perceptions that the curriculum has a strong focus on Islam. Chinese Malaysians report there are insufficient national-type Chinese schools in urban areas to meet enrolment demands, and cite anecdotes of families driving their children to Singapore to access non-Islamic, Chinese schools. Chinese Malaysians report that members of the community living in rural areas have better access to national-type Chinese schools, although many families are unable to live in rural areas due to lack of economic opportunity. The 2019 Federal Budget specified funding for Chinese schools for the first time.
3.12 The Unified Examination Certificate is a standardised test for Chinese high schools. It is a recognised qualification for entrance into tertiary institutions around the world including Australia, the United Kingdom and the United States. The Malaysian federal government does not recognise this qualification for entry into Malaysian public universities (however, this is currently being reviewed at federal level), although the Sarawak state government does. Since the formation of private universities in Malaysia, Chinese Malaysians (as well as Indian Malaysians) have comprised the bulk of the students within non-government universities, although entry remains limited by economic opportunity. Some Chinese Malaysians do not receive a place in public universities despite having high matriculation scores. In-country sources report this is likely attributable to individual-based societal-level discrimination, rather than official discrimination, as practical application (in the form of individual admission decisions) can vary based on the processing official.
3.13 In July 2015, a disturbance referred to as the ‘Low Yat riot’ occurred at a popular retail centre in central Kuala Lumpur. More than 100 Malays shouted anti-Chinese slogans, destroyed property and attacked bystanders following social media reports that a Chinese Malaysian vendor had cheated a Malay man over a fake smart phone. Police detained 25 people for rioting, sedition and theft. Officials dismissed any fraud by the vendor, and downplayed racial elements, blaming the outburst on social media. DFAT understands this was an isolated incident, and not indicative of a broader trend of societal violence against Chinese Malaysians. DFAT is not aware of any significant recent incidents of a similar nature.
3.14 DFAT assesses that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector.
…
Victims of Loan Sharks
3.108 Loan sharks or ‘pay-day-financers’(unlicensed lenders, referred to as ‘Ah Long’ by the Chinese Malaysian community, ‘Chettiar’ by the Indian Malaysian community, and ‘Ceti’ in Malay), carry out money lending activities without a licence, charging high interest rates to do so. Loan sharks operate very publicly in Malaysia and, while the practice is illegal, advertisements listing phone numbers and offers of cash loans for RM10,000 – RM20,000 (AUD3,100 – AUD6,200) appear on public property, including lamp posts and utility boxes. Loans typically carry an interest rate of about 30 to 40 per cent per month, and can be as high as 15 per cent per day. In-country sources advise that loan sharks in Malaysia do not seek protection money.
3.109 Sources report loan sharks are entering into ‘sell and purchase agreements’ in Sabah, whereby the borrower’s house is used as collateral for the loan. DFAT is aware of reports of houses valued up to RM 1 million (AUD 345,311) being used as collateral for a loan of RM100,000 (AUD34,500). If the borrower defaults on their loan, the loan shark exercises the sell and purchase agreement to transfer the house into their name. Sources report lawyers are facilitating the sell and purchase agreements, described as a house sale agreement disguised as a loan agreement, in return for a cut of the house sale profits. Sources claim borrowers agreeing to sign their house over as collateral are under significant duress, or lack sufficient education to understand the agreement they have signed.
3.110 DFAT is aware of a case of an individual in peninsular Malaysia who engaged a loan shark to obtain a loan to repay their mortgage, signing the house over as collateral under a ‘sell and purchase agreement,’ after becoming involved in gambling following the death of their spouse. When unable to repay the loan shark, the individual’s family supported them to engage a formal credit agency to obtain a loan to repay the loan shark. DFAT understands loans ranging from RM200,000 to RM300,000 (AUD69,385 to AUD104,077) accompanied by payment plans have been arranged by formal credit agencies to repay loan shark debts. However, not all debtors may be aware of the availability of such services.
3.111 Sources report that an individual who is unable to service a debt from a loan shark risks threats or actual physical violence, having their home splashed with red paint (culturally understood as a symbol that an individual has defaulted on a loan shark and brought shame to their family), and/or having their families’ physical safety threatened. Sources claim that loan sharks engage gangsters to collect debts and harass and threaten borrowers and their family members, and those borrowers and their family members have been shot at gunpoint and had fingers cut off. Due to the illegal/underground nature of loan shark activity, DFAT is not able to verify these claims. There is significant societal shame associated with not being able to repay a loan shark. Sources report many people see suicide as the only honourable way out of being unable to repay a loan shark debt. DFAT is aware that those in debt to loan sharks have been counselled by intermediaries to place their family in a safe location and travel overseas to earn a foreign income to repay their debt faster, and to reduce risks and shame to their family.
3.112 DFAT understands that authorities tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice. According to local media, the Commercial Crimes Investigation Department reported 3,903 cases and arrested 2,698 people in relation to loan scams between January and November 2018, with total case related losses estimated at RM36 million (approximately AUD12.4 million). Local media also reports loan sharks have become more publicly visible and more ‘corporate,’ and have increased promotion of their services on social media platforms such as Facebook and WeChat in 2019. 3.113 The MCA’s Public Services and Complaints Department (PSCD) plays an intermediary role between loan sharks and Chinese Malaysian victims of loan sharks who are unable to repay their loans, and reportedly receives an average of 500 to 600 complaints regarding loan sharks each year. According to local media, the MCA reported that 16 cases of people owing loan sharks over RM2.11 million (AUD745,000) had arisen in the first 19 days of January 2019 alone. Local media also reported that in 2018, the PSCD of the MCA received reports of 364 loan shark cases with total loan claims amounting to RM25 million (AUD8.81 million), and that 80 per cent of the loan shark borrowers were members of the Chinese Malaysian community who were involved in illegal online gambling. In 2015, the PSCD of the MCA also reported over 70 per cent of borrowers in 214 cases were Chinese Malaysian. Sources report the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the one per cent government rate.
3.114 The PSCD of the MCA held a press conference in July 2019 regarding the case of a 28-year-old woman who had enquired about a RM5,000 (AUD1,760) loan advertisement she had seen on Facebook. The woman had reportedly shared some personal information, including bank details, but had allegedly rejected the offer of a loan due to the high interest rate payable. Nonetheless, funds were banked into her account, and she was later threatened by loan sharks to either pay up or be forced into prostitution. The PSCD of the MCA also cited the case of a 91-year-old woman, who was reportedly threatened by loan sharks in relation to her estranged son’s failure to pay back money he allegedly owed.
3.115 The Malaysian Muslim Consumers Association (PPIM), which provides services predominantly for the Malay community, was also involved in over 10,000 cases involving loan sharks from 2012 to 2016, in which around 70 per cent of borrowers were Malay. The PPIM maintains a Malay language website (ahlong.ppim.org.my) where people can report loan shark cases and which lists details of prior cases. Sources provide vastly differing views on the reasons individuals engage illegal moneylenders. Some claim that up to 80 per cent of borrowers are supporting gambling activities and other debts. Others claim borrowers are public servants trying to cover daily expenses such as children’s education, or businesses excluded from mainstream finance due to insufficient documentation, bankruptcy or a poor credit history.
3.116 The Moneylenders Act (1951; amended 2003 and 2011) gives police considerable investigative powers against alleged loan sharks. Police can visit, enter, inspect or search premises without a warrant, and seize moveable properties and business documents to assist with investigations against alleged loan sharks. Individuals involved in illegal moneylending activities in Malaysia can be convicted under Section 5(2) of the Moneylenders Act, which carries a fine of between RM250,000 and RM1 million (AUD80,000 – AUD320,000) or, a jail term of up to five years, or both. Police have made several recent high profile arrests and investigations of syndicates. In September 2019, the RMP arrested 21 people in Johor allegedly involved in syndicates illegally loaning money. In January 2019, the RMP arrested 13 suspects allegedly involved in a syndicate providing fraudulent loan applications resulting in total bank losses of RM10.35 million (AUD3.65 million); district police also arrested 11 members of a nationwide syndicate that had fraudulently taken funds from borrowers totalling RM1.3 million (AUD458,161). In November 2018, RMP arrested 21 people allegedly involved in a loan scam syndicate.
3.117 Very limited research is available on loan sharks and the individuals that engage these services, possibly due to their links to gangs and corruption. DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, their likelihood of seeking police protection, or the level of protection offered by police. DFAT assesses those who are unable to service debts to loan sharks, and their family members, can face societal discrimination due to familial shame, and may also face a real or perceived risk of harassment and violence from loan sharks and/or gangsters. However, DFAT notes formal credit agencies are able to consolidate loan shark debts and provide payment plans, and therefore engaging such agencies is an option to mitigate against potential risks posed to those in debt.
…
Royal Malaysia Police (RMP)
5.5 The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is 80 – 85 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, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms including establishing compliance units within RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.
5.7 External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission, which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts.
5.8 The then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department in July 2014 to enhance police integrity and image. It sits within the RMP. Suhakam also receives complaints against the RMP, and has investigated police behaviour. The government is not formally required to consider Suhakam’s reports or recommendations.
…
Loan shark claims

The Tribunal accepts that the country information above indicates that loan sharks operate in Malaysia. As also noted above, despite some inconsistencies between the first and second Tribunal hearings in the applicant’s evidence (notably, regarding the amount of the loan and the purpose for which it was taken out by the applicant), the Tribunal gives the applicant the benefit of the doubt in relation to this claim in general terms. It has accepted his evidence from the second Tribunal hearing as being more accurate (as this was the applicant’s view also) and accepts that:
·he initially borrowed [amount] MR from a loan shark in his home area in May or June 2015 to assist him with cash flow issues;
·he repaid some, but not all of the loan, at the end of the 3 month period and thus started accruing interest of about [amount] MR per month;
·when he could not repay the principal, the loan sharks came to his house, broke his glasses and poured paint on the walls. On another occasion, the mirror on the applicant’s car was broken;
·the applicant reported the car damage to the police but no further action was taken by the police. The applicant did not tell the police that he suspected the mirror was broken by loan sharks due to his unpaid debt and did not ask for any further police assistance in connection with the loan sharks;
·he left Malaysia in December 2015; and
·the loan sharks have not contacted the applicant’s family in Malaysia.
However, the Tribunal does not accept that the applicant would now face a real chance of serious harm amounting to persecution as a result of this loan. In reaching this conclusion, the Tribunal gives weight to the following factors:
·     the applicant left Malaysia approximately 4.5 years ago;
·     the Malaysian police attempted to assist the applicant in relation to the broken car mirror, but the applicant did not advise them of his concerns that this was related to his unpaid debt to the loan sharks;
·     the applicant was not seriously harmed by the loan sharks between May to December 2015, when he came to Australia;
·     the loan sharks have not contacted or harmed the applicant’s family in Malaysia since he left, nor have they attempted to seize or deal with his vacant property; and
·     there is no plausible reason to believe that the loan sharks would know if the applicants returned to Malaysia now, nor is it plausible that they would still wish to harm them if they did.
The Tribunal acknowledges the applicant’s claims that he was regularly visited by loan sharks from approximately August to December 2015, and that on one occasion, his glasses were broken and paint was poured on the walls of his house, and that on another occasion, his car mirror was broken. Although the applicant could not provide proof that loan sharks broke the mirror, the Tribunal gives him the benefit of the doubt on this issue.
However, it does not accept that the loan sharks have continued to visit his house from when he left Malaysia until now. The Tribunal considers it implausible that the loan sharks would continue to seek the applicant so long after he left Malaysia (being approximately 4.5 years ago. It considers that this aspect of his claims to have been embellished.
Finally, the Tribunal notes that the applicant might also be able to gain assistance from a credit agency and/or the MCA, which has a specific service dedicated to assisting ethnic Chinese Malaysians come to suitable arrangements in relation to loan shark debts. The Tribunal notes that the applicant expressed scepticism about whether credit agencies in Malaysia were somehow in league with loan sharks but notes that the available material does not suggest this. Moreover, the MCA appears to have had success in other cases in assisting those with loan shark debts.
Having considered the totality of the evidence, the Tribunal finds that it is implausible that the applicant would now face harm from the loan sharks some 4.5 years after he left Malaysia (despite not having repaid the entirety of the loan), nor does it accept that the loan sharks would know if the applicant had returned to Malaysia, or be able to locate him there if he returned now. The Tribunal finds that there is not a real chance that the applicant would face serious harm amounting to persecution from this source if he returned to Malaysia now, or for the reasonably foreseeable future.
Moreover, the Tribunal is satisfied that the applicant would be able to access effective protection measures should he return and receive threats. While the Tribunal acknowledges that the 2019 DFAT report identifies some problems with corruption in the Royal Malaysian Police force, it is generally described as professional, and there is no indication that assistance would have been withheld from the applicant prior to his leaving Malaysia by the RMP, had the applicant disclosed the true situation to the police. The DFAT report refers to the fact that the RMP have in fact taken action against loan sharks, including fining and prosecuting them. The Tribunal considers that this meets the requirements in relation to s.5LA(2) regarding effective state protection being taken to be available where a person can access protection, that protection is durable, and in the case of protection provided by the relevant state, that protection consists of an appropriate criminal law (specifically, legislation addressing the activities of loan sharks), and a reasonably effective police force.
Finally, the Tribunal considers that it is open to the applicant to relocate to another part of Malaysia on his return to avoid the harm he fears. The applicant has demonstrated, through his travel to Australia and his finding work and accommodation here, that he is adaptable and resourceful. The Tribunal considers that he would be able to relocate to another area of Malaysia outside Klang to avoid the harm he claims to fear.
The Tribunal rejects as implausible the contention that the loan sharks from whom the applicant took the loan would have the capacity or willingness to track him down over this debt anywhere in Malaysia.
Ethnic Chinese claims
As discussed with the applicant at the second hearing, the Tribunal accepts that ethnic Chinese and other minorities in Malaysia face some low level official discrimination due to the government’s affirmative action policies, which mainly affect the ability to access government tertiary education, gain employment in the civil service and some business dealings. Notwithstanding this, the country information cited above indicates that Malaysian Chinese comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia. There is nothing to indicate or suggest that the applicant has experienced or faces a real chance of suffering official or societal discrimination amounting to persecution (or faces a real risk of significant harm) or that he faces a real chance of suffering societal violence as a consequence of his Chinese ethnicity.
Economic claims
In summary, the applicant claimed that he would have difficulty supporting himself if he returned to Malaysia, due to lower wages in Malaysia compared to Australia.
The Tribunal notes that the applicant had a history of both employment and running his own [an occupation 1] business in Malaysia before coming to Australia. Although the Tribunal acknowledges the applicant’s evidence that there he has been out of this industry for some time since coming to Australia in late 2015, there is scant evidence before the Tribunal to indicate that the applicant would not be able to find similar employment if he now returned to Malaysia. Moreover, there appears no significant barrier to the applicant finding other work in a large city, such as Kuala Lumpur, although the Tribunal acknowledges the applicant’s view that living costs there would be more expensive. While the Tribunal accepts that the applicant’s earnings would be lower than he might be able to earn in Australia, it is not satisfied that they would be so low as to threaten the applicant’s ability to subsist in Malaysia. The Tribunal notes that the applicant’s son in Malaysia (currently living with the applicant’s sister) is expected to complete school shortly and seek employment, and that the applicant will not be financially responsible for him.
The Tribunal is not satisfied that there is a real chance that the applicant would be denied the capacity to earn a livelihood of any kind, such that his capacity to subsist would be threatened. In reaching this conclusion, the Tribunal has had regard to the applicant’s claims that he is responsible for supporting himself financially. In relation to this issue, the Tribunal finds that he would be able to continue to support himself by finding employment in Malaysia (albeit at a lesser rate than he has been able to do in Australia).
Refugee Claims
Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that he will suffer persecution involving serious harm from loan sharks or any other party for one or more of the five reasons mentioned at s.5J(1)(a), if he was to return to Malaysia, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[1]
[1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances individually and cumulatively, and the relevant country information discussed above, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as set out in s.36(2A) from loan sharks, or anyone else.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies 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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alison Mercer
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.
…

[2020] AATA 2921

26 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal