1925964 (Refugee)
[2025] ARTA 1241
•27 March 2025
1925964 (REFUGEE) [2025] ARTA 1241 (27 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1925964
Tribunal:General Member L Luo
Date:27 March 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 27 March 2025 at 4:26pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – loan default – fear of being declared bankrupt – real estate scam – threats from criminal gang – employment – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 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[1] of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 8 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] On 14 October 2024, the Administrative Appeals Tribunal (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 who claims to be a national of Malaysia, applied for the visa on 5 April 2017. The delegate refused to grant the visa on the basis that the applicant will not suffer significant harm for economic reasons upon return to Malaysia.
The applicant appeared before the Tribunal on 8 January 2025 and 6 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of interpreters in the Mandarin and English languages.
BACKGROUND
The applicant was born in Perak, Malaysia, on [date]. He worked in [occupation 1] in [Country 1] and lived in Malaysia before coming to Australia [in] February 2017.
Evidence before the Department
In the applicant’s protection visa application, he claimed that he bought a car and took out a bank loan. He did not repay the loan and feared further court action from the bank and being declared bankrupt if he returned to Malaysia. The applicant was not interviewed by the delegate.
Evidence before the Tribunal
The applicant gave the Tribunal the following evidence:
a.Response to a pre-hearing information request
b.Two hearings before the Tribunal
c.A document titled “Statement of Account” dated 13 June 2018.
At the first hearing, the applicant said that his original visa application was incorrect as he did not take out a bank loan to buy a car, but to buy a property. I accept this evidence and make no adverse findings about it.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, 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.
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.
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
The issue in this case is whether there is a real chance or real risk that the applicant will suffer serious or significant harm if returned to Malaysia now or in the reasonably foreseeable future. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
I accept that the applicant is a Chinese Malaysian man of Buddhist faith, who was born and grew up in Perak, Malaysia. Having viewed a copy of the applicant’s passport, I accept that he is a Malaysian citizen and has no citizenship of any other country. Accordingly, I find that Malaysia is the receiving country.
The applicant claims that he was scammed by a real estate agent into taking out a significantly larger bank loan than he initially agreed to purchase an off-the-plan property from a property developer. He tried to cancel the loan agreement once he discovered that it was not what he agreed to, but the bank ([Bank 1]) did not allow him to do so. He claimed that the bank forced him to repay the loan every month and sent gangsters to harass and threaten him at his home and workplace. He complained to the bank, the real estate agent and the property developer, but they all ignored him. He did not otherwise seek any other assistance or go to the police. He left Malaysia for Australia to avoid the bank and gangsters’ harassment. He claims that, before he left Malaysia, the bank told him it planned to auction his property for 25% lower than the amount he paid for, and he believes that this occurred at some point. He does not want to return to Malaysia because the bank will put him on a black list and have him declared bankrupt, which means he will not be able to get employment, further loans from any bank or travel overseas. He also fears being harassed further by the gangsters if he returns. The applicant gave the Tribunal a document as evidence of the bank loan.
I accept that the applicant entered into an agreement to purchase an off the plan property from a developer. I accept that he entered into a home loan agreement with [Bank 1] to facilitate the purchase of this property. I do not accept that he was scammed by the real estate agent into taking out a higher loan than he agreed because he provided documentary evidence to show that the loan amount was the original loan amount he agreed to and it had been paid by the bank up until June 2018, more than 2 years after he claimed to have refused to repay the loan.
The applicant claims that he met the real estate agent, a representative of the property developer, when he went to visit the property development. He claims that he entered into an agreement to buy the property at a particular price, and agreed to take out a bank loan of RM[loan amount] (approximately 75% of the total property price) to pay for the property. He claims that, as part of his agreement with the real estate agent, the bank loan would be secured on his behalf through negotiation between the bank and the real estate agent. He claims that the real estate agent was taking care of everything. He provided the Tribunal a copy of what he claims was the original agreement between himself and the real estate agent, which showed the purchase price of the property ([property amount]) and the bank [loan amount] ([specified]). However, he then claimed that he signed a different loan agreement with the bank for 100% of the property purchase price ([property amount]).
At the second hearing, when I queried the applicant about the contents of the document he had provided to the Tribunal, I found his explanation for the discrepancies unconvincing. When asked why the document was dated 13 June 2018, more than 2 years after he claimed to have refused to repay the loan, he said that it was sent to him by the property developer and he did not know why. When asked why the document was called “Statement of Account” and seemed to show a series of payments from himself and the bank to the property developer at different stages of property construction between 2015 and 2018, he first said that it was not the document he gave the Tribunal, then he said that he did not know why as it was the property developer’s document. When asked why the first section of the document showed that he paid the property developer around [amount] (being the difference between the property purchase price and the bank loan amount), he stated that he did not make those payments and that they were automatic deductions. When asked where they were deducted from, he said that he did not know. He said that he only paid [amount], which was represented by the first two entries on the statement, but the bank paid the rest. When queried why a separate section showed the bank paid RM[loan amount] and why the entries would not reflect who in fact paid the account, he said that he did not know.
The applicant stated that he did not have a copy of the actual loan agreement that he signed and he gave different explanations for why he did not have this loan agreement. First, he claimed that the real estate agent took the loan agreement. Then he claimed that the bank took away the agreement when it came to collect the first repayment. Finally, he claimed that upon realising he had signed a higher loan than agreed, he took the agreement to the bank to ask them to cancel it but the bank refused to do so, and that was when the bank took the agreement away. The applicant also said that he did have a copy of the signed loan agreement but it was on his old phone that is now broken. At the second hearing, he maintained that his copy of the signed loan agreement was on his broken old phone, which he is unable to retrieve.
I find that the document provided by the applicant is a genuine document. I find that it is a statement of account issued by the property developer to the applicant. I find that it includes a series of payments made by the applicant and [Bank 1] to the property developer during various stages of property construction between 2015-2018. I find that it clearly shows the property purchase price as [property amount] and [Bank 1] as the applicant’s lender, with a loan amount of RM[loan amount] which was paid by [Bank 1] to the property developer between 2017 and 2018. I do not accept the applicant’s claim that this document reflects a loan he did not enter into. The applicant did not provide a copy of the loan agreement he claimed was actually entered into and I do not accept his evidence that he is unable to access it. I find that the loan agreement he claims to have entered into does not exist. The applicant also could not explain why this document was dated after he claims to have refused to pay the loan. I do not accept the applicant’s evidence that the document does not reflect who actually paid each of the items listed in the statement to the property developer as his only explanation was that he didn’t know why. At no stage has the applicant claimed that this document is not a genuine document, he simply asserted that it does not reflect the actual agreement, but he could not provide what he claims to be the actual agreement.
As I find that the applicant entered into a loan agreement with [Bank 1] for RM[loan amount], it follows that I do not accept the applicant was scammed and entered into a higher loan agreement. I do not accept that the applicant was harmed by the bank or gangsters because he refused to pay. As the statement of account showed that the bank continued to pay the real estate developer in 2018, a year after the applicant came to Australia, I find that the applicant had capacity to repay his bank loan and he did so even after coming to Australia. I do not accept that, if the applicant returns to Malaysia, he will be harmed on the basis of his bank loan by the bank or gangsters. Accordingly, I find that, if the applicant returns to Malaysia, there is no real chance he will face serious harm, and no real risk he will face significant harm, now or in the reasonably foreseeable future from [Bank 1] or gangsters.
The applicant has not claimed that he will be harmed on the basis of his ethnicity or religion. Country information also indicates that there are no laws discriminating against Chinese Malaysians and the Malaysian constitution guarantees freedom of religion. Accordingly, I find that, if the applicant returns to Malaysia, there is no real chance he will face serious harm, and no real risk he will face significant harm, now or in the reasonably foreseeable future on the basis of being Chinese Malaysian or a Buddhist individually or cumulatively.
Does the applicant satisfy the refugee criterion for protection?
Having found that there is no real chance of serious harm in the reasonably foreseeable future if the applicant were returned to Malaysia, I find that the applicant does not have a well-founded fear of persecution under s 5J(1), and he is therefore not a refugee under s 5H and does not meet the criterion in s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
For the above reasons, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. Accordingly, he does not satisfy
s 36(2)(aa).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) or 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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Dates of hearings: 8 January 2025 and 6 February 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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