1914220 (Refugee)
[2025] ARTA 1072
•6 January 2025
1914220 (REFUGEE) [2025] ARTA 1072 (6 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1914220
Tribunal:General Member A Ryan
Date:6 January 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 06 January 2025 at 11:58am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – threats from criminal gang – torture – fear of killing – internal relocation – delay in applying for protection – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367A, 499
Migration Regulations 1994, Schedule 2CASES
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 an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the protection visa (Class XA, Subclass 866) on 24 January 2019.
On 4 June 2019, the applicant made an application for review to the Administrative Appeals Tribunal (the AAT).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant was not represented in relation to the review.
The applicant appeared before the Tribunal on 4 and 23 September 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
Evidence before the Department
Protection visa application
The applicant provided the following background details in his protection visa application. The applicant is a Malay Muslim man who was born in Kuala Lumpur, Malaysia in [specified year]. The applicant resided in Kuala Lumpur from his birth until leaving Malaysia to come to Australia in 2017. The applicant completed high school and can speak, read and write in English and Malay. The applicant worked as [an occupation 1] in [a business 1] after leaving school until coming to Australia.
The applicant’s claims in his protection visa applicant are summarised as follows. The applicant left Malaysia because he had incurred a debt of RM[amount] due to money he borrowed from friends, relatives and also illegal money lenders. The applicant incurred the debt when he was working at the [business 1] and was involved as a part-time agent in a small [multi-level marketing] (MLM) company called [Company 1].
As part of his work in the MLM company the applicant was required to make monthly sales targets and he borrowed money to meet his monthly target as he tried to be the best agent by buying and sponsoring people below him in the marketing scheme to buy [Company 1] products. His debts continued to increase each month and he could not afford to pay back the monthly interest to the illegal moneylenders.
The applicant’s relatives, friends and particularly the illegal moneylenders are searching for the applicant. Many of those that are chasing him warn his family members and demand that they repay back all the money he borrowed with high interest. The applicant fears that he will be in significant trouble because before he borrowed the money from the illegal moneylender and signed the documents for the loan he was warned by them that if he failed to pay or he ran away he would be in big trouble. The illegal moneylender’s network is huge and so the applicant is very scared to face them.
Each month the illegal moneylenders came to the applicant’s workplace to collect the interest. Sometimes the applicant failed to pay the monthly interest and the illegal moneylenders would push him to pay on the spot and sometimes they would verbally insult him. The illegal moneylenders know that the applicant is in Australia and his debts keep increasing every month.
When the applicant resigned from the [business 1] and was without work things became messy and uncontrollable. The illegal moneylenders were always torturing him and kept following him. His relatives and friends also keep torturing him by asking for money daily.
The applicant did not ask anyone for assistance because no one will help him as they know that he borrowed a huge amount of money from the illegal moneylenders and if they help him they will also be in trouble with the illegal moneylenders.
The applicant’s friends, other [Company 1] colleagues including those below him at [Company 1] avoid the applicant and won’t answer his calls, texts or Whatsapp messages.
The local authorities cannot help the applicant as they can only advise him to pay the debts as soon as he can. No one is willing to assist him to settle the debts. The applicant was living with his family and did not know where he could go to hide from the illegal moneylenders as they will find him wherever he goes. He cannot relocate anywhere in Malaysia as they will find him. He does not know anyone in another state in Malaysia. It is impossible for the applicant to relocate anywhere in Malaysia with no job, no money and being scared of being caught by illegal moneylenders.
The illegal moneylenders could do anything if they find him and there is no safety for his life if he returns to Malaysia. The applicant’s friends and relatives also keep torturing his family members and because of the applicant everyone is in trouble.
The applicant is very scared of the illegal moneylenders because of their warning and attitude which is scary. The applicant has [number] siblings and parents, and he is scared that something will also happen to them.
Department interview
The applicant was not invited to an interview with a delegate of the Department of Home Affairs.
Delegate’s decision
The delegate refused the protection visa application on 11 May 2019. The delegate found that there are effective protection measures available in the receiving country and as such that the applicant does not have a well-founded fear of persecution.
Further the delegate found that the applicant could obtain protection from the authorities in Malaysia such that there would not be a real risk that the applicant will suffer significant harm.
Evidence before the Tribunal
The review application
The applicant made an application for review to the Tribunal on 4 June 2019.
On 12 March 2024 the Tribunal wrote to the applicant to advise him that his case was being prepared to be given to a Member and invited more information about his protection claims.
On 16 March 2024 the applicant provided further information in support of his protection visa application which can be summarised as follows.
The applicant has debts of RM[amount] that he borrowed from his friends, relatives and an illegal moneylender. He incurred this debt while he was working at the [business 1] in Kuala Lumpur. He became involved in a small MLM business as part time agent. The company which is called [Company 1] has immense potential in the [MLM] business. Since he joined [Company 1] he was pushed and mentally tortured by his superiors to meet his monthly targets. The business was very profitable and to maintain the profit the applicant needed to keep borrowing to achieve his monthly targets. He wanted to be the best agent and so he kept buying and sponsoring those ‘down line’ from him to buy [Company 1] products.
The applicant’s debts increased each month, and he cannot pay back the monthly interest to the illegal moneylender. Currently, all the moneylenders especially the illegal moneylenders keep searching for the applicant and warn his family and keep forcing the applicant and/or his family to repay all the borrowed money with highest interest.
The applicant is very scared to return home because if he is caught by the illegal moneylender he will be in big trouble. Before the applicant borrowed from the illegal moneylender, he was required to sign some documents and they had warn him that he must pay back on time with interest and if he fails to do so or run aways he will be in big trouble. The money lenders network very large, and the applicant is really scared to face them. The illegal moneylender would come to the applicant’s workplace every month to collect the interest fee.
Things became messy and uncontrollable and so the applicant decided to resign from his full-time work at the [business 1] to protect the safety of the staff as he was worried the illegal money lender will disturb their privacy.
The applicant was jobless and did not have sufficient money to pay the moneylender. He owes is RM[amount] which is a large amount for the applicant and does not include the interest that is owed. The applicant has to pay a lump sum to the illegal money lender. He also has to keep paying the interest fee every month until he has enough to pay the principal amount.
The applicant knows that it was his mistake to borrow these funds. Initially the applicant thought that he would obtain profits from the MLM company in the first 6 months, and that is why he was confident to borrow the money from the illegal moneylender. In the end, the applicant found out that the MLM company was a scam. The police cannot take action against the moneylender as the applicant agreed to the terms with the moneylender and there is not a formal agreement.
The applicant has kept hiding from the moneylenders. The applicant became anxious, panicked and could not live peacefully during that time. The applicant’s family moved to another state to avoid the moneylender and the applicant was left alone. The applicant is facing a stressful life and hardships due to his problems with the moneylender and he does not have any support or backup because everyone has left him. He continues to face trauma because of these problems with the moneylender. The applicant’s parents are old and his siblings struggle.
The applicant is also afraid that if he returned home unexpected things will happen. The applicant is still struggling to save and collect money to pay his debt as he is a casual worker in Australia and does not have a job every day. The applicant is afraid that the illegal moneylender will harm his new family including any future children he has.
On 26 July 2024 the Tribunal wrote to the applicant informing him that the Tribunal was not able to make a favourable decision on the information he had provided. The Tribunal invited the applicant to attend a hearing on 4 September to give further evidence or arguments.
The Tribunal hearing
The applicant appeared before the Tribunal on 4 and 23 September 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Malay and English languages. At the request of the applicant the Tribunal took evidence from the applicant’s father and his former work partner at [Company 1]. Where relevant, the applicant’s and his witnesses’ oral evidence is discussed in the Tribunal’s findings and reasons below.
Post hearing submissions
On 9 September 2024 the applicant provided submission to the Tribunal consisting of 12 documents including 6 photos of the applicant and other at purported [Company 1] events, information about the [Company 1] group company profile, a document marked [Company 1] marketing plan and [Company 1] template documents related to membership, agreements, sponsorship declaration and an Instagram post from July 2015 showing cash money. At the hearing of 23 September 2024 the applicant explained that copies of these documents were provided to him by his former [Company 1] business partner.
On 23 September 2024 the applicant provided a further submission noting that since he has been in Australia, he has done his best to contribute to the Australian community and comply with his bridging visa. The applicant noted that if he returned to his home country there is a real possibility he would face violence or worse and he fears for the safety of himself and his family. The applicant stated that this is not just about avoiding financial trouble, but it is about protecting his life and he desperately needs protection in Australia.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, 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.
REASONS AND FINDINGS
Nationality
The applicant claims to be a Malaysian citizen in his protection visa application. The applicant travelled to Australia on his Malaysia passport and attached a copy of the identification page of his passport, to his protection visa application. The Tribunal finds that the applicant is a Malaysian citizen.
There is no information before the Tribunal to suggest that the applicant is a citizen of another country or that he has a right to enter and/or reside in another country.
The applicant’s personal background
The applicant gave evidence at the Tribunal hearing that he was that he was born and raised in Kuala Lumpur, living at the same family home until coming to Australia. He graduated high school and speaks, read and writes Malay and English. The applicant is Muslim and of Malay ethnicity.
The applicant updated to the Tribunal that he married in January 2024 and he lives with his wife in Australia. His wife is in Australia on a student visa and is studying accounting. He met wife approximately 8 years ago in Malaysia.
The Tribunal accepts the above matters to be true.
The applicant’s protection claims
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
At hearing the applicant confirmed that he completed his protection visa application himself without assistance. The applicant confirmed that he had a copy of the application, had reviewed it and the information in the application was correct.
Section 367A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. At the hearing, the Tribunal discussed with the applicant why he had not included the documentary evidence related to the [Company 1] to the Department of Home Affairs. The applicant stated that he thought he could provide this evidence later in the application process however then his phone, containing the evidence broke and could not be repaired. The applicant also explained that at that time he was concentrating on working. Later he was able to contact one of his [Company 1] business partners, who could assist him to get the evidence and who also gave evidence as a witness for the applicant. The Tribunal also takes into account the applicant’s response and also notes that he was not represented in preparing his application or before the Department of Home Affairs and did not have an interview with the Department of Home Affairs to further expand on his claims. In these circumstances the Tribunal accepts that there is a reasonable explanation as to why the applicant did not provide the supporting documentary evidence related to his claims. The Tribunal does not draw an unfavourable inference to the credibility of the new evidence.
The Tribunal has considered country information which indicates that although it is illegal, loan sharks operate very publicly in Malaysia[1] with media reports noting loans carry an annual interest rate of 24 to 60 per cent; others report rates of 30 to 40 per cent per month; or up to 15 per cent per day.[2] Sources report loan sharks enter into ‘sell and purchase agreements’ in Sabah, whereby the borrower’s house is used as collateral for the loan.[3] DFAT understands loans ranging from RM200,000 to RM300,000 (AUD63,000 to AUD95,000) 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.[4]
[1] DFAT Country Information Report - Malaysia, DFAT, 12 June 2024 (DFAT Report 2024) at [3.109].
[2] DFAT Report 2024 at [3.109].
[3] DFAT Report 2024 at [3.110].
[4] DFAT Report 2024 at [3.111].
According to DFAT individuals who are not able to pay back a debt as required risk 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.[5] Specifically, ‘in February 2021, police arrested three people, believed to be involved in illegal money lending, after they threatened to torch and throw paint on the home of a woman who had allegedly refused to settle a debt of MYR11,000’ (AUD3,500).[6]
[5] DFAT Report 2024 at [3.112].
[6] DFAT Report 2024 at [3.112].
According to DFAT loan sharks ‘engage gangsters to collect debts and harass and threaten borrowers and their family members, and that borrowers and their family members have been shot and had fingers cut off. Due to the illegal/underground nature of loan shark activity, DFAT is not able to verify these claims’.[7] Further, 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.[8]
[7] DFAT Report 2024 at [3.112].
[8] DFAT Report 2024 at [3.112].
It is reported that the Malaysian authorities tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice.[9] Overall DFAT assesses that ‘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’.[10]
[9] DFAT Report 2024 at [3.113].
[10] DFAT Report 2024 at [3.1138].
The Tribunal has considered the abovementioned country information which indicates that usurious and illegal moneylenders operate publicly in Malaysia and that those who cannot pay back a debt risk threats and or violence against them and family members.
At hearing the applicant stated that he previously had small debts to a cousin and a former business partner of RM1000 and RM3000 respectively. The applicant stated that he paid off some of these debts when in Malaysia and then paid the remainder of these two debts in 2018 or 2019 when he was in Australia. At hearing the applicant confirmed that he does not fear harm from his friends or relatives in Malaysia. The Tribunal accepts the applicant’s evidence that he no longer has a debt to any relatives or friends and does not fear harm from any relatives or friends. Considering the evidence before it, the Tribunal finds that there is no real chance that the applicant or his family will face harm in Malaysia from the applicant’s relatives or friends due to his past debts.
The Tribunal has considered the evidence of the applicant to have worked part time for a MLM company. The applicant’s oral evidence and written evidence was generally consistent that he started this part-time work with the MLM business in 2014. The Tribunal also took evidence from the applicant’s colleague in Malaysia who joined the MLM company with the applicant. The applicant’s colleague gave evidence that they joined the MLM together in about 2014 and had to pay a business license fee of approximately RM 30,000 to 60,000. The applicant’s business partner explained that he came to know that the MLM business was a scam as they did not receive commissions as they were meant to and so he stopped working for the company in approximately 2014. He gave evidence that that he thought the applicant continued working with them until 2016. It is difficult for the Tribunal to understand why the applicant would continue to put large amounts of money into the MLM company, especially after, his colleague has realised that the business was a scam and quit the business. The applicant explained that his colleague was 2 levels higher than the applicant and had helped him to strategize and the applicant hoped that it would work out. While the Tribunal has some concerns about the applicant’s evidence to have worked at the MLM company, considering the applicant’s oral evidence, photos and document purporting to show the applicant at MLM events and the evidence of his colleague and father, the Tribunal accepts that the applicant worked on a part time basis for the MLM company between 2014 and 2016.
Despite the Tribunal’s acceptance that the applicant worked at a MLM company in Malaysia the Tribunal has serious concerns about the reliability of the applicant’s evidence to have borrowed money from an illegal moneylender, his failure to repay the debt and the genuineness of his claims to fear harm from a moneylender.
Firstly, the applicant’s evidence about the loan and the illegal moneylender was lacking in detail in a number of respects. At hearing the applicant clarified that he only borrowed money from one illegal moneylender (moneylender). The applicant’s description of the moneylender was vague. When asked who he borrowed money from the applicant stated that the illegal moneylender was a random company on the side of the road whose name was ‘licensed moneylender’. The applicant did not know the address of the company and he could only provide the name of the general area where he met the moneylender. The applicant could not detail the exact amount of money he owed the moneylender when he came to Australia, he initially said he owed them around [amount] but did not know the exact amount as he did not have the bank statement to show how much he paid. The applicant does not know if the money lending company is currently operating as he has lost contact with them. The Tribunal found the applicant’s evidence about the moneylender vague and unconvincing.
Secondly, the Tribunal finds the applicant’s evidence about why he has not made repayments to the moneylender since being in Australia unconvincing. The applicant gave evidence to the Tribunal that since being in Australia he has been working. In the past he sent approximately AUS300 per month to his father and more recently this amount has reduced to AUS150 every three weeks. The applicant gave evidence that he currently pays RM2100 per month towards his wife’s mortgage on her property in Malaysia. He also gave evidence that he has less than RM10,000 in savings in Australia. The Tribunal explained to the applicant that it has trouble understanding that if he fears harm from the moneylender, why he would pay money to his family and his wife’s mortgage, rather than discharge his debt to the moneylender and mitigate his risk of harm. The applicant explained that the money he pays for his wife’s mortgage and his family is his responsibility. He also noted that in Australia he has work sometimes and other times he does not have work. He also stated that he will return the money to the moneylender when he really needs to pay it back. The applicant also informed the Tribunal that the moneylender will ask him to pay a lumpsum payment of RM[amount] because the debt is from such a long time ago and so it is only when the applicant has this total amount he can repay it. The Tribunal is not persuaded by the explanation that the applicant would be required to pay the RM[amount] in full rather than being able to pay by instalments as he had in the past. The Tribunal has also considered the applicant’s explanation that the payments he makes to his wife’s mortgage for her house in Malaysia and to his family are part of his familial responsibilities. However, the Tribunal is of the view that prioritising payments to his family rather than the loan to the moneylender, and not making any payments to the moneylender since coming to Australia in 2017 undermines his claims to fear harm from the moneylender.
Thirdly, the Tribunal is concerned that the applicant did not provide any documentary evidence of the loan payments made to the moneylender or his attempts to obtain such evidence. The Tribunal discussed its concerns with the applicant about why, considering that he transferred money from his bank account to the moneylenders on a regular basis in Malaysia, he did not provide evidence of his bank statements or money transfers to moneylender as evidence to the Tribunal. The applicant stated that the evidence of his bank transfers was linked to his phone that broke and could not be repaired. The Tribunal discussed with the applicant that his lack of effort to obtain his bank statements or other records to show his claimed money transfers to the moneylender raises concerns for the Tribunal about the reliability of his evidence to have made loan payments to the moneylender and to have an outstanding loan. The applicant explained that he had tried to obtain these records but he was told by his bank that he could not get his bank statements unless he was in Malaysia, especially as the records are from a long time ago. The Tribunal questioned the applicant about providing evidence of his attempts to obtain these records and that the Tribunal would expect there to be legal process to obtain bank records. The applicant explained that he called the bank but did not have evidence of this call. The Tribunal provided the applicant with seven days to provide further evidence and explained to the applicant that he could request further time if needed. No further evidence related to the applicant’s loan payments or information from his bank or evidence of trying to obtain his bank statements was provided to the Tribunal. The Tribunal considers that this lack of documentary evidence including evidence of his attempts obtain evidence of his bank transfers to the moneylender casts further doubt on his claims to have loan to a moneylender.
Fourthly, the Tribunal considers that the delay by the applicant in lodging his protection visa application after arriving in Australia undermines his claims to have come to Australia due to his fears of harm from the moneylender. The applicant came to Australia in August 2017 and did not apply for protection until January 2019. At hearing when the Tribunal questioned the applicant about why he stayed in Australia after his 3-month visa expired in 2017 and the applicant stated that he has his own reason and that he came to Australia for a holiday and for work. He later clarified that he was confused by the Tribunal’s question and stayed in Australia because of the threats from the moneylender. The Tribunal discussed with the applicant about why he delayed in lodging his protection visa. The applicant indicated that he was confused about the process, needed to work to support himself, could not find people to assist him and was told by a friend that his Australian photo identity card was just like a visa in Australia. The Tribunal has considered the responses and understands that it may take some time for someone newly arrived in Australia to determine how to lodge a protection via, however, the Tribunal does not accept that the applicant’s extended delay of over a year in applying for protection is adequately explained by his need to work, lack of understanding of the process and inability to find people to assist him. The Tribunal finds in this case that the applicant’s delay in lodging his protection visa application undermines his claim to fear harm in Malaysia.
The Tribunal has considered the evidence provided by the applicant’s father which corroborated that the applicant worked for a MLM company, had taken out a loan from a moneylender, that that family had been harassed at his home by the moneylender on 2 or 3 occasions including red paint being splashed on the house due to the debt from his son. The applicant’s father gave evidence that he had moved house in 2017 due to the harassment and since October 2017 that time has not been contacted by the moneylender to the applicant’s family. The Tribunal notes that the applicant’s father’s evidence was largely corroborative of the applicant’s claims to have borrowed money and to have been harassed by a moneylender until October 2017. However, the Tribunal is also mindful that the applicant’s father is not a disinterested witness in the proceedings and has carefully weighed the evidence of the applicant’s father with the other evidence before the Tribunal.
The Tribunal has carefully considered the applicant’s claims for protection and the oral and documentary evidence provided. Although the Tribunal has given some weight to the corroborative evidence of the applicant’s father’s evidence, when considering all of the evidence, and the Tribunal’s cumulative concerns about the reliability of the applicant’s testimony as discussed above, the Tribunal does not accept that that the applicant borrowed money from a moneylender, or that he, his family were harassed, threatened, suffered psychological harm, their house splashed with red paint by a moneylender and/or his associates due to a debt incurred by the applicant. The Tribunal does not accept that the applicant or his work colleagues at the [business 1] were harassed or threatened by a moneylender and/or his associates due to a debt incurred by the applicant. The Tribunal does not accept that the applicant has any outstanding debts to a moneylender, including any illegal moneylenders in Malaysia. The Tribunal finds that there is no real chance the applicant or his family, including any future children he may have, will be harmed on return to Malaysia by an illegal moneylender, the moneylender’s network or associates. For the reasons given above the Tribunal also finds there is no real chance the applicant or his family, including any future children he may have, will be harmed in Malaysia by the applicant’s relatives or friends due to past debts owed by the applicant.
Accordingly, the Tribunal does not accept that there is a real chance that the applicant would suffer serious harm if returned to Malaysia, now or in the foreseeable future. For these reasons the Tribunal does not accept that the applicant has a well-founded fear of persecution if he returns to Malaysia, now or in the reasonably foreseeable future.
Complementary protection
If a person is found not to meet the refugee criterion they may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.
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 that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[11]
[11] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]
The Tribunal has found that the applicant does not face a real chance of serious harm from his relatives, friends, the moneylender and/or the moneylender’s network or associates in Malaysia. For the same reasons, on the basis of the principles in MIAC v SZQRB [2013] FCAFC 33 the Tribunal is not satisfied that there is a real risk of significant harm if the applicant were removed from Australia to Malaysia.
The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk of significant harm.
No other claims of harm have been made or arise on the material before the Tribunal.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is 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, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hearing dates: 4 September 2024 and 23 September 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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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
(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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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