1907674 (Refugee) - [2024] ARTA 533

1907674 (Refugee) [2024] ARTA 533 (24 October 2024)

Respondent:  Minister for Immigration                 and Multicultural Affairs
Tribunal Number:  1907674
Tribunal:  General Member T Barty
Place:  Melbourne
Date:  24 October 2024

CORRIGENDUM

Date of Corrigendum: 19 March 2025

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alterations are made to the statement of reasons for the decision:
·The word Malaysia in paragraphs 13, 39, 44, 50, 61 and 65 of the written statement of reasons for the decision is altered to read Thailand; and
·The word Malaysian in paragraph 50 of the written statement of reasons for the decision is altered to read Thai.

Statement made on 19 March 2025 at 3:25pm

DECISION AND

REASONS FOR DECISION

Respondent: Minister for Home Affairs

Tribunal Number: 1907674

Tribunal:General Member T Barty
Date:24 October 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 orders that:
·[Applicant 2] meets s 36(2)(aa) of the Migration Act; and
·[Applicant 1] meets s 36(2)(c) of the Migration Act.

Statement made on 24 October 2024 at 3:08pm

CATCHWORDS

REFUGEE – protection visa – Thailand – political opinion – Red Shirt movement supporter – complementary protection – victim of loan shark – fear of killing – attending a protest – threats directed at the family – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367A, 423, 499
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505

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 a review of a decision to refuse to grant [Applicant 1] and [Applicant 2] protection visas.
To assist with clarity in this statement of reasons, the Tribunal will refer to [name] as applicant 1, and [name] as applicant 2.
Applicant 1 applied for the visa on 21 February 2017. In her application she said she was a citizen of Thailand. The application said it was in respect of her and applicant 2. In her application she said that she came to Australia as her life was threatened because she was a former member of the Red Shirt movement and was pro-government. She had been detained and interrogated and released. She had been criticised and harmed and her life is threatened as the government wants to arrest all those involved in the People’s Assembly. She did not seek help from the authorities because she did not want the issues to become more complicated and believed the police would detain her. She could not move to other places as they hunted her.
Applicant 2 did not provide any other or further claims. In February 2017, when asked by the Department of Immigration and Border Protection to provide details of his claims, his written claims were identical to his wife’s claims.
A delegate of the Minister for Home Affairs made their decision on 28 March 2019. They refused to grant the visa on the basis that although high-profile political dissidents face a risk of being arbitrarily detained by authorities, they were not satisfied applicant 1 had a high political profile and there was not a real chance or a real risk of suffering significant harm. The delegate said that applicant 2 was a member of the family unit of applicant 1, and as they refused to grant applicant 1 a protection visa, applicant 2 did not satisfy s 36(2)(b) or (c).
The applicants appeared before the Tribunal on 7 August 2024 and 8 October 2024 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Thai language. On 7 August 2024 the interpreter appeared by video, and on 8 October two in‑person interpreters assisted the Tribunal.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) (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, 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issues in this review are whether there is a real chance that, if either applicant returns to Malaysia, they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that either applicant will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

The applicants attended the hearing on 7 August 2024 together. When asked about their claims, applicant 2 explained that their agent had completed their applications. He said that his reasons for claiming protection related to a loan he had taken from a loan shark. The applicants said that they also went to a political meeting.
In response to the Tribunal’s questions at the hearing on 7 August 2024, applicant 2 provided further information about his personal background. The Tribunal asked whether he had ever been known by any other name, and he said that he had ([alias]). He said he changed his name because he was being chased by the loan sharks. He said that he lived most of his life in [City 1]. His father died when he was about 5 years old. He was sent to school to a different district in [City 1] when he was about 10 years old. He attended school until he was [age] and then returned to assist his mother on their farm. After working on the farm for a few years, he started a [business 1]. He and his wife met, and they were married in [City 1] (in May 2015). They went to Bangkok because he was being chased for debts and got to know an acquaintance who advised them to come to Australia. They travelled to Australia in July 2015. Since coming to Australia he initially [worked] in a [business 1] and then on farms. He and his wife have two children aged [ages].
In relation to their claims, he said they had a migration agent and were not sure what the migration agent wrote on the application. He explained that he had a [business 1] and there was political unrest. He got a loan for the [business 1] for 2 million baht. The [business 1] was doing well in the first 6 months and then there was a military coup and that affected the economy and the [business 1]. He said he also went to a political meeting. He was unable to pay the loan and they were chasing him, and he changed his name. At the conclusion of the hearing on 7 August 2024, applicant 2 agreed to provide any documents he could locate to support his case.
Applicant 2 said his mother still lives in Thailand, one of his [siblings] is in Australia, and his [others] live in different districts in [City 1] with their own families. He is in regular contact with his mother who said that the loan shark is chasing payment and she said it would be dangerous for him to return.
In relation to the claims relating to being a Red Shirt, he said he and his wife went to a meeting against the country being run by the military.
Prior to the second hearing the applicants provided photos of them at a food business, a document and a translated copy of the document described as ‘Loan Agreement (General)’ and certificates and translations relating to applicant 2’s change of name (first name and surname).
At the second hearing on 8 October 2024, applicant 1 provided evidence. She provided information about her personal background, including that she was born in [City 1] and lived there most of her life. She and her husband were living in Bangkok before coming to Australia. They were married in [City 1] in March 2015 but at that time they were living in Bangkok. She said they had been in a relationship for many years but got married so they could get the visa to move to Australia. Before coming to Australia she moved to Bangkok to work while they were waiting for their visas. Her husband had gone to Bangkok to escape the debt and she followed him there. Her parents still live in [City 1] and operate a [business].
The applicant said that after completing her schooling she had worked on her parents’ farm but sometimes she went to [City 1] to help her husband with his [shop]. She had known him since she was in Year 11 at school. Although she was not certain when he started the [shop], she thought that it could have been when she was still at school.
When they came to Australia, initially she worked in a [business 2] for about one year before moving to [Town 1] to be with her husband. She worked [specified duties] but had not worked since she had her first child. They now have two children.
Applicant 1 said that she first became aware of the opportunity to apply for a protection visa before she came to Australia. Her husband told her about it, and he said that they could not live in Thailand. When asked why she did not apply for a protection visa earlier, such as on arrival, she said that a friend told her how to apply for a student visa. When they arrived in Australia, they met people from Malaysia who said that if they were running away, they could apply for a protection visa. That person helped them find someone who helped with the protection visa application. They were not sure what he wrote in the application, but he asked questions, and she told him that she attended a protest. At that time, she did not know much English.
When asked about the claims made in the application relating to being part of the Red Shirt movement and protesting against the government, she said that she went to a protest only once, and she went with her husband. She was not sure what the protest was about or when it was but thought it could have been around the time that her husband opened his [shop]. In response to the Tribunal’s specific questions about her claims, she said nothing happened to her at the protest, she was not harmed, her life was not threatened, she was not detained or interrogated, and nobody spied or investigated her. She said that if she returned to Thailand, she had no fears that related to the protests or political issues.
When asked why she could not return to Thailand now or in the reasonably foreseeable future, she said that it is because she has children with her husband, and she worries about the safety of her children because her husband has a large debt.
When asked about the debt, she said that it is a big loan, even the principal is a large amount. She saw the loan agreement which said he borrowed 1 million baht but her husband told her there was more and she thought it was maybe 200,000 or 300,000 baht more. When questioned about the age of the debt (noting the agreement was from 2009) and why she had any fears given they had been out of Thailand for 9 years, she said that they have not paid it back and her mother-in-law told them that the lender is asking for the money. She added that her mother-in-law mentioned seeing a gun and was scared. She did not know who it was that was making the threats.
When asked if they had made any repayments, she said that before coming to Australia they did not have joint finances, so she did not know, but since coming to Australia they have joint banking arrangements, and she has not seen any payments made. When asked why they had not made any repayments, she said that initially when they came to Australia and were both working, she had to repay the loan to her village and then they had children so only her husband works. She repaid the village debt as a priority because she did not want her family to lose credit in the village. Her husband says they only have enough for everyday living and do not have enough to repay the debt.
She said that her husband says he is not safe, and she does not think he is safe. She does not want the children to go back because the loan is huge. Her mother-in-law told them not to bring the children back.
When asked about the loan agreement document provided before the hearing, the applicant said that they asked her mother-in-law for it, and she sent it from Thailand. When asked whether she was aware of any collateral (or security) being provided for the loan, she said she was not. When asked why her husband changed his name, she said it could have been because of the loan. He said he changed his name so that if he wanted a loan from someone else, it would be easier. She said the lender lives in the same province and would know if they returned. She did not think they could relocate to another place as the lender knows a lot of people. When asked about the country information indicating that victims of loan sharks can access police protection, she said that sometimes she is scared because the police are corrupt, and she does not feel safe.
When asked if there were any other reasons she feared returning to Thailand, she said there were not.
Applicant 2 also provided further evidence at the second hearing. At the commencement of his evidence we discussed why he had not raised his claims about fearing harm from an illegal lender previously and the effect of s 423A of the Act (as it was at the time). He said that it was mainly due to the language barrier. His wife had a Malaysian friend who advised that if they had a problem paying back money, they should claim protection. He told this friend that he had a big debt but is not sure what the agent put in the application.
When asked about his attendance and participation in political protests he said that he did attend one protest. He thought it was in 2014 and it was about their democracy, and he opposed the takeover by the military. He was not harmed. He did not like the effect the coup had on the Thai economy and it affected his business. He is not politically active other than believing in democracy. On social media he encouraged the Thai people to be strong and safe and to vote in favour of democracy. He said he does not concern himself with politics at all. He does not know if the military will return again, but he acknowledged that if that happened, he would not be impacted in any way that is different to the rest of the Thai population. At the conclusion of the hearing, he said that he does not have any concerns about his safety that relates to his political opinion or politics generally.
When asked about the loan document provided to the Tribunal, he said that the loan started when he commenced his business. He borrowed from a money lender. It was very easy to do that in their province and he only needed to provide identification. The money lender was involved in politics. He borrowed 1 million baht and the lender filled out the loan agreement. He could not remember the lender’s name as he did not know him before a close friend introduced them. It was an illegal loan, and he handed his ID card to the lender to hold. When asked about the terms of the loan which do not refer to any collateral, applicant 2 said that was because the loan was illegal, and it is illegal to put such things in a loan agreement.
Applicant 2 said that he did not have the loan agreement with him in Australia, and after the first hearing he had to ask his mother to locate it. When asked about his address which was written in the document, he said that he had never lived in Chiang Mai and the address is wrong.
When asked, he said this was the only money he borrowed. The Tribunal then pointed out that at the first hearing he said he had borrowed 2 million baht. He said that after his business suffered, he borrowed another 1 million baht from another lender. He said that he had not mentioned that when giving evidence at the second hearing because he did not have any evidence of that loan. He had a contract for the second loan but cannot locate it.
He could not remember exactly how long it was between the loans. He got the second loan because there was a downturn in the economy.
When asked whether he made any repayments, applicant 2 said that initially the business was doing well and he made repayments, but after 3 months, he was not able to pay. When he stopped repayments, they came to his business and asked him to repay the money. After the military took over, he said the economy was affected, he had to close his shop for about a month and then after the coup there were fewer customers. He closed the business permanently and escaped to Bangkok where he hid at a friend’s home. It was that friend who suggested he come to Australia. His wife joined him in Bangkok, and she worked before they came to Australia.
The Tribunal asked the applicant whether he had made any repayments since he had been in Australia, and he said he had not. He ran away and had no contact with them. The loan shark cannot contact him but they ask his parents where he is.
In relation to what would happen to him if he returned to Malaysia now or in the reasonably foreseeable future, he said that he fears that it is not safe for him, his wife and their children because the lender keeps asking for him. The first lender keeps coming to his mother’s house about once a month. The second lender cannot find him because that loan was in his business name and his name in the household register is different – it is in his previous name.

When asked what he thought the lender would do to him upon return, he said that the lender would kill him or use his child to get him to pay. It has been a long time; he hasn’t repaid it and it is a large debt. When asked about going to the police, he said that the lender is influential in the area, and because the loan is outside of the system, the police keep quiet.
We discussed whether he could start making repayments now, and he said that he is the only one working and there is not enough to pay for his family’s expenses in Australia. When they first came to Australia their intention was to work to repay the debts, but they could not earn enough, his wife got pregnant, and they decided they could not return to Thailand. He does not know what the balance of the outstanding loan is as it is principal and now also interest on top.
The Tribunal asked about the threats made by the lender. He said that initially there were two or three of them and they came around every day. They had a firearm and said to his parents that if he could not repay it, he would be killed. His parents told him not to come home. Even after 9 years, they come to the house and ask his parents. If he returns and does not have enough, he worries that they would kill him.
When the Tribunal discussed country information that victims of loan sharks can access support through agencies including the police and the Centre for Countering Abuse by loan sharks on a 24/7 hotline, and that loan sharks are regularly arrested, and suggested that the police could protect him, he said that his case is different because the lender is influential and is above the police. His parents used to make reports to the police but the police did not do anything.
We discussed whether he could live anywhere else in Malaysia to be safe from the money lender and he said that wherever he lived they could find him and would find him because of the large amount of money and because of the lender’s influence. He is concerned for his family.
Finally, he said that if he returned to Thailand he feared for his life and the life of his wife and children.

Country information

Loan sharks

Illegal lending is a serious issue in Thailand. DFAT reports that it accounts for an estimated 20 per cent of total lending. Many borrowers have multiple debts – lending from one to pay off another. Loan sharks charge high interest rates.[1] Victims include factory workers, small-scale farmers and operators of small to medium enterprises.[2]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Thailand, 18 December 2023 at 3.112
[2] Ibid
Loan shark operators include criminal gangs, wealthy individuals and corrupt officials. Enforcers use a variety of means to get borrowers to repay their debts, including verbal harassment, threats of legal action and vandalism. It can also extend to seizing household assets, burning down homes or businesses, violent threats against victims, their family members and guarantors, and carrying out physical attacks. DFAT reports of cases where victims were beaten or forced into drug trafficking or sex work to repay their debts.[3] Recent news reports confirm that assaults and harassment and threats continue to occur.[4]
[3] Ibid 3.113–3.115
[4] Thongnoi J, Millions of Thai borrowers struggle to get out of debt, Benar News, 1 March 2024, Millions of Thai borrowers struggle to get out of debt – Benar News; Ngamkham, W, Loan sharks held for hitting woman, Bangkok Post, 29 July 2024, Bangkok Post - Loan sharks held for hitting woman
In relation to Thailand’s laws, loan sharking is a criminal offence and interest is limited to a maximum of 15 per cent. Loan shark victims can get support, and police do investigate loan sharks.[5] The government is active in disrupting the practice and police arrested 100 people in the first half of 2022.[6] In December 2023 the Prime Minister declared a crackdown on illegal loans and loan sharks as a national priority in order to restore normalcy and social order. He announced a process where debtors could file petitions and sign up for a scheme. In addition, the police set up a suppression centre to receive complaints about loan sharks.[7] Mechanisms put in place to help mediate between debtors and non-banking creditors were accessed by 150,000 people.[8]
[5] DFAT 3.115–3.117
[6] DFAT at 3.116
[7] Wipatayotin, A, Loan sharks now targeted by Srettha, Bangkok Post, 9 December 2023, Bangkok Post - Loan sharks now targeted by Srettha
[8] The Nation, Govt will keep helping loan shark victims, even unregistered ones: Anutin, 3 March 2024, Govt will keep helping loan shark victims, even unregistered ones: Anutin (nationthailand.com)
DFAT reported that corruption is a serious obstacle and local officials are often involved in loan sharking or turn a blind eye to it and it can be difficult to access state protection where the alleged loan shark is a high-ranking official, military or police officer or local powerbroker.[9]
[9] DFAT at 3.117

The Tribunal’s analysis, reasons and findings

The applicants have claimed to be citizens of Malaysia and have provided a copy of their respective Malaysian passports to the Department. In the absence of any evidence to the contrary, the Tribunal finds that they are both citizens of Malaysia. The Tribunal accepts that Malaysia is each applicant’s country of nationality and receiving country.
The applicants have consistently provided evidence about their long-term relationship and that they are married. The documents before the Tribunal indicate that they obtained their passports on the same day, travelled to Australia on the same day and made their visa application together. They have lived together in Australia and have two children who were with them at both hearings. They currently reside in [Town 1] together. The Tribunal was told by both applicants that they married in Bangkok in 2015 prior to coming to Australia. The Tribunal does not have a copy of a marriage certificate or other written verification of their marriage in Thailand. The Tribunal is however satisfied that the applicants’ history and current circumstances demonstrate a mutual commitment to a shared life excluding others, it is a genuine and continuing relationship, they live together and there is nothing to suggest that they are related. The Tribunal accepts their evidence and finds that the applicants are married. In the absence of positive evidence that their marriage meets the definition such that they are each other’s spouse as that is defined for the purposes of the Act, the Tribunal finds they are in a de facto relationship. The Tribunal finds that applicant 1 is a member of the same family unit as applicant 2.
Both applicants provided evidence that they had attended a political rally prior to coming to Australia. However, at hearing both indicated that they only attended on one occasion, were not harmed then, and were not otherwise politically active in Thailand and are not politically active now. Their consistent evidence is that they do not hold fears of experiencing any harm related to their political actions or political opinion on return to Thailand. Their evidence did not suggest any fear of harm for reasons of their race, religion, nationality or because they are members of a particular social group. The Tribunal concludes that there is not a real chance that if returned to Thailand, the applicants (individually or together) would be persecuted for one or more of the reasons set out in s 5J(1)(a) and as a result they do not have a well-founded fear of persecution and are not refugees. Section 36(2)(a) is not satisfied.
At the time of the hearings, the Act (s 423A) stated that if an applicant raises claims or presents evidence that was not presented before the delegate made their decision, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the applicant does not have a reasonable explanation for not providing that evidence or making that claim before the delegate. This provision was discussed at the hearing. Since the hearing, the law has changed, and the relevant section is s 367A. The new section has not changed the substantive effect of the provision. The Tribunal accepts the applicants had poor English skills on arrival in Australia, were unfamiliar with visa and legal processes and that they were guided by others. The Tribunal accepts that this is a reasonable explanation for not providing all of their evidence and claims previously.
The applicants provided their evidence at the hearings separately. Prior to the second hearing, the applicants provided photos of them at a food business. They appear much younger in those photos, and although they were not confident in their recollection of the dates the business operated, their separate evidence about operating the business, that it was successful initially, and the business’s eventual demise was clear and consistent. The Tribunal accepts the evidence that the applicants operated a business for some period before coming to Australia.
The Tribunal also accepts that the applicant changed his name in September 2009. The certificates provided by applicant 2 support his evidence, and his explanation of the reason he changed his name was largely consistent at each hearing.
In providing his evidence applicant 2 was often vague about dates and time frames, and in that respect the Tribunal found aspects of his evidence unsatisfactory. However, the Tribunal has accepted that he operated a business. His and applicant 1’s evidence across both hearings was that he took out a large loan to operate the business. The copy of the loan agreement supported this evidence. It is common practice to take out loans to operate any business and country information confirms that small business operators such as applicant 2 borrow from loan sharks. Applicant 2 said that he handed over his identity card (in his first name) as collateral and this is also consistent with country information. Applicant 2’s evidence about his change of name supported his evidence that he needed to take out more than one loan to keep the business operating, and that changing his name facilitated this when the business was facing difficulties. Based on the consistent evidence of the applicants and the weight of country and other evidence, the Tribunal accepts that applicant 2 took out loans to operate his business.
Both applicants spoke of the debt, the size of the debt and their fear because they had not repaid the loan. Neither applicant was able to provide any reliable evidence about the outstanding amount of either loan. Based on country information, the Tribunal accepts interest charged on such loans is high.
Applicant 2 indicated that he had not repaid the loans. He said that only one loan shark was of concern to him – the first lender. There is no evidence upon which the Tribunal can make a finding about the outstanding amounts owing on the loan or loans, however, on balance, the Tribunal accepts that applicant 2 borrowed at least 1 million baht and has not made any repayments for many years. The Tribunal accepts that the outstanding loan is a large amount which is significantly more than the original loan.
Country information indicates that loan sharks include criminal gangs and corrupt officials. Enforcers can use violence and violent threats against the lender and their family members. The Tribunal also accepts, based on the country information, that it is not unlikely that the loan sharks would be harassing and threatening applicant 2’s parents currently given the amount of the loan. Applicant 1’s demeanour when speaking of her fear of the loan sharks reflected her understanding of their methods and extent of their actions – she was distressed and concerned about the safety of her children. The Tribunal accepts that for someone with a large outstanding debt, the threats, intimidation and violence would be at the more serious end of the scale of threats and violence described in country information in order to force a borrower to repay the loan.
Given the large amount of the outstanding loan (which would include principal plus interest), the Tribunal concluded it is not a far-fetched possibility that the loan shark for applicant 2’s first loan continues to pursue the debt and continues to be interested in applicant 2’s whereabouts and presses for repayment of the debt.
Based on the country information about the severity of loan shark’s actions to recover debts, if the applicants were to return to Malaysia now or in the reasonably foreseeable future, the Tribunal cannot discount the possibility of serious threats and violence, including using members of applicant 2’s family to leverage recovery. The Tribunal finds that the risk of serious threats and violence directed at applicant 2 and his family is more than a remote possibility. As the loan shark is in contact with applicant 2’s mother, the Tribunal accepts that the loan shark would be in a position where they would be aware of applicant 2’s return and would have means to locate applicant 2.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition, and the Tribunal concludes that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Having accepted that applicant 2 has a large outstanding loan to a loan shark and that there is more than a remote chance of applicant 2 being subjected to deliberate threats and physical violence, including threats of harm directed at his family, the Tribunal accepts that such threats and violence would be deliberate and include physical and mental suffering which is cruel in nature. The risk of such harm is more than remote. The Tribunal finds that there is a real risk applicant 2 would be subjected to cruel treatment on return to Malaysia. Such harm meets the definition of significant harm.
Having accepted that there is a real risk applicant 2 will suffer significant harm, the Tribunal considered the exclusions in s 36(2B). The risk faced by him is not faced by the population of the country generally. In evidence, applicant 1 and 2 both indicated the loan shark was not only frightening but also was influential, and they did not trust the police to be able to help them or keep them safe. The Tribunal has concluded that the loan is considerable, and this increases the prospect and severity of violence and cruel treatment. Country information indicates that while the government and police are active in disrupting and acting against loan sharks and have put in place mechanisms for victims to seek assistance, corruption exists, and it can be difficult to access state protection. The Tribunal accepts the evidence of corruption and difficulty in protecting victims of loan sharks and does not accept that the authorities could provide protection of applicant 2 and his family which would reduce the risk of harm to less than a real risk. The Tribunal accepts the applicants’ evidence that the loan shark is influential. Given the loan shark’s influence and reach and the amount of the outstanding loan which would increase the motivation of the lender, the Tribunal does not accept that the risk is localised and accepts that applicant 2 could not relocate to avoid the risk of harm.
The Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Thailand, there is a real risk applicant 2 would suffer significant harm. The Tribunal is satisfied applicant 2 meets s 36(2)(aa).
As the Tribunal concluded that applicant 1 is a member of the same family unit as applicant 2, it did not consider whether she met s 36(2)(aa).
Section 36(2) of the Act is qualified by s 36(3) which provides that Australia is taken not to have protection obligations if the person has not taken all possible steps to avail themselves of a right to enter and reside in another country. There is nothing to suggest that the applicants have a right to enter and reside in any other country. The Tribunal finds that s 36(3) does not apply in the circumstances of this case.

CONCLUSIONS

For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that applicant 2 is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Applicant 2 satisfies s 36(2)(c)(i) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(aa).

DECISION

The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with orders that:
·[Applicant 2] meets s 36(2)(aa) of the Migration Act; and
·[Applicant 1] meets s 36(2)(c) of the Migration Act.

Dates of hearing: 7 August 2024 and 8 October 2024

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

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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.
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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.
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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.
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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.
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5H Meaning of refugee

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.

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5J Meaning of well-founded fear of persecution

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.
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.
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.
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.
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.
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

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.
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.

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Protection visas – criteria provided for by this Act

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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.
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