1928426 (Refugee)
[2025] ARTA 744
•12 February 2025
1928426 (REFUGEE) [2025] ARTA 744 (12 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1928426
Tribunal:General Member S Sangha
Place:Sydney
Date: 12 February 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 12 February 2025 at 11:06am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – threats from criminal gang – employment – fear of killing – return visit to Malaysia – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 367, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingam (1993) FCR 220
Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 91
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347
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 3 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [age] years old and claims to be a national of Malaysia. He arrived in Australia as the holder of an Electronic Travel Authority on a valid Malaysian passport [in] 2018 and lodged an application for a protection visa on 28 February 2019.
The delegate was satisfied of the applicant’s identity and that his country of birth and citizenship is Malaysia. The delegate refused to grant the visa on the basis that they were not satisfied the applicant was a person in respect of whom Australia had protection obligations.
The applicant applied for a review of the delegate’s decision to the Administrative Appeals Tribunal (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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal on 2 December 2024 to give evidence and present arguments in support of his application for review.
The issues in this case are whether there is a real chance, if the applicant returned to Malaysia, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he would suffer significant harm.
The Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Independent country information
The most recent DFAT Country Information Report for Malaysia dated 27 December 2024 (the DFAT report) provides the following information at [3.149] - [3.154] regarding victims of unlicensed money lenders or loan sharks:
Usury is illegal. The Moneylenders Act (1951) requires that moneylenders have a licence and not charge interest rates above 18 per cent for an unsecured loan, which must not compound. Loan sharking is also covered under section 427 of the Penal Code, which prohibits ‘committing mischief’ and can carry a five-year prison term.
In practice, loan sharks or ‘pay-day financiers’ (unlicensed lenders, referred to as ‘Ah Long’ by the Chinese Malaysian community, ‘Chettiar’ by the Indian Malaysian community, and ‘Ceti’ in Malay), operate openly in Malaysia and charge interest as high as 50 per cent. Advertisements for cash loans appear on public property, including lamp posts and utility boxes. Loans offered through social media or smartphone apps are also common.
Motivations for taking out loans vary and can include gambling and economic disruption caused by the COVID-19 pandemic. Others take out loans for to finance small business which, if the business fails, sometimes become unsustainable debts. Loans are also made by people rejected by banks or who find bank decision-making slow or to require a lot of paperwork.
Those who do not repay loans face serious harassment. On rare occasions, victims of loan sharks have faced violence or have been sold into slavery. It is common for borrowers to have their house splashed with red paint, which is generally culturally understood to mean that they have not paid debts, causing public shame. They sometimes have their picture or pictures of their identity documents posted on telegraph poles, and families are sometimes harassed. Loan sharks sometimes hold victims bank cards or passports as collateral. Loan sharks sometimes continue their harassment even after loan has been paid off.
State protection is available to victims of loan sharks, but it is often ineffective. Being the victim of a loan shark is often perceived as a moral failing, and some police believe debtors have a religious obligation to pay their debts and consequently will not act to protect them. Formal credit agencies can consolidate loan shark debts and provide payment plans, providing some options for victims.
DFAT assesses that victims of loan sharks and their family members face a moderate risk of discrimination due to familial and societal shame. DFAT assesses that victims of loan sharks also face a moderate risk of harassment and a low risk of violence from loan sharks and/or gangsters. State protection is available but not always effective.
The Tribunal is also aware of non-government organisations which can assist with resolving loan shark debt. The Malaysian Muslim Consumers Association has the Ceti Haram Anti-Corruption Unit, dedicated to resolving loan shark debt by renegotiating it terms with the loan shark. It claims to have resolved thousands of cases for a service fee. The Unit’s webpage allows people to report their individual cases to the unit and their services include:
·Act as a client representative to communicate with the client's creditors.
·Negotiate and deal with the client's creditors.
·Monitor client safety throughout case handling.
·Guaranteeing confidential information & confidentiality of client cases.
·Reduce or eliminate current liability interest charges.
·Reduce the client's overall liability through claim reduction.
·Reschedule the repayment period for the entire balance of the claim.[1]
[1] An English translation of the website for the Ceti Haram Complaints Unit (accessed 4 February 2025) is at:
The DFAT report provides the following information at [2.10] regarding employment in Malaysia:
In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic. There are labour shortages in many sectors, and small, medium, and large enterprises are highly reliant on migrant labour…
CONSIDERATION OF CLAIMS AND EVIDENCE
Protection visa application
The applicant’s visa application stated that he was born in Seremban in Negeri Sembilan, Malaysia. He is Muslim and ethnically Malay. He was never married and did not declare any children. He stated that his mother and father were living together in Seremban. He declared [specified siblings], who were not married and living at his parent’s address in Seremban. He was in regular contact with them.
He did not declare any other family. He stated that he completed high school in Negeri Sembilan in [specified year] and then studied a Diploma course at a college in Johor [between specified years]. He was then employed from [year] as a Manager in [a] business in [Town 1], Negeri Sembilan. He resided at a single address in Seremban from [birth] to November 2018 until he arrived in Australia in December 2018. He departed Malaysia on a valid passport issued [in] August 2015.
The applicant’s claims for protection were handwritten in his visa application. He claimed that he left Malaysia because he had a financial problem due to a “big finance loan amount”. He claimed that he took a loan from an unregistered money lender and was unable to pay the loan on time because the economy was not stable. This meant that the total of the amount increased. He also stated that he was jobless, and he had “difficulties in life”. He claimed that the money lender always called him when he did not pay on time and threatened to kill the applicant and his family.
The applicant claimed that he did not try to move to another part of the country to seek safety because he was afraid to be detected and it was “really hard to find a good life and safe place”. He said the authorities would not protect him because it was difficult to overcome the threat of the money lenders.
The applicant did not provide any evidence in support of his protection visa application.
The delegate’s decision
On 3 October 2019, the delegate refused to grant the applicant a protection visa. The delegate relied on independent country information in relation to the applicant’s claim to fear harm from a loan shark and found while there may be instances of corruption in the police force in Malaysia, the Malaysian authorities were willing and reasonably effective in combating illegal money lending. The delegate found that the applicant would be able to access durable protection consisting of an appropriate criminal law, a reasonably effective police force and impartial judicial system. The delegate was satisfied that effective state protection was available to the applicant.
The delegate also relied on independent country information in relation to the applicant’s claim of economic hardship and found that the Malaysian economy had been growing at a steady rate over the past few decades and the medium to long-term economic outlook was positive. The delegate found that the economic climate in Malaysia affected everyone and economic hardship that the applicant may suffer on his return did not amount to significant harm. The delegate concluded that the applicant would not face a real chance of serious harm under s 36(2)(a) of the Act or real risk of significant harm under s 36(2)(aa) of the Act for any of the reasons claimed.
Evidence before the Tribunal
The applicant provided a copy of the delegate’s decision record with his review application to the Tribunal. In a pre-hearing response form dated 10 April 2024, the applicant stated that he was afraid to return to Malaysia due to the safety of his daughter and his parents. He stated that he had not made any payments to the money lender and interest continued to accrue. He stated that the money lender did not know about his daughter or his parents and that he previously received blackmail messages before changing his number.
The applicant provided supporting documents to the Tribunal at the hearing on 2 December 2024. He provided a copy of his passport, his daughter’s birth certificate, letter from his current employer confirming his employment dated 19 November 2024 and a police report from the Royal Malaysian Police dated [in] October 2024 (the police report). I accept the applicant is a Malaysian national, that he has a daughter living in Malaysia and that he is gainfully employed in Australia. My assessment of the police report is set out below together with the assessment of his claims.
The Tribunal hearing
The applicant stated at the commencement of the hearing on 2 December 2024 that he had the assistance of a friend to complete his visa application. His friend was in Australia on a Student visa. He lived with this friend for one year and he has now returned to Malaysia. He said that he did not read the visa application and simply signed it. His friend knew about his financial issues and assured him that he put that in the application.
I asked why he would sign something as important as his protection visa application without reading or checking it first. The applicant said he was depressed and naive when he came to Australia having “lost” his family and business and completely trusted his friend. Given the applicant’s personal circumstances at the time, I accept the applicant’s explanation as plausible and have decided not to draw a negative inference from the applicant significantly expanding upon his protection visa claims for the first time during the Tribunal hearing.
The applicant confirmed that his parents both continued to live in Seremban, Negeri Sembilan in Malaysia. His father was working in the government in [an area of operations] and has now retired and receives a pension. [One] brother works as [an occupation 1] and lives in Kuala Lumpur with his wife and [family]. [Another sibling] works at a [specified] company and also lives in Negeri Sembilan with [their family].
The applicant married in February 2015 and had a [daughter]. He divorced in 2018 and his ex-wife has now re-married. She works at a [business 1] and lives in Seremban with his daughter. They live close to where his parents live.
The applicant stated that he travelled to [Country 1] with his family in 2016 for one week for a holiday and that he regularly travelled to [Country 2] from 2016 to 2018 for the purpose of business as he was involved in procuring and selling [products 1].
The applicant currently works at [a named location] and stated that he was earning around $1,500 per week. Prior to this, he was [in another job]. He sends around $350 per month to support his daughter and around $500 per month to support his parents.
The applicant stated that he studied a Diploma [specified] in Johor from 2009-2011. He started working part-time in [year] selling [products 1]. He worked for this employer until 2015 when he opened his own business in [Town 1].
The applicant grew up in his family home in [Town 2] in Seremban and then moved into a college hostel in Johor in 2009. He graduated in 2011 and moved back with his parents in [Town 2] in Seremban. He married in 2015 and moved into his wife’s family home in [Town 3], Seremban. He divorced in 2018 and moved into his business address in [Town 1] in Seremban until he departed for Australia. His ex-wife arranged his visa for Australia through her employment in a [business 1].
I asked the applicant why he feared returning to Malaysia. The applicant said that his financial difficulties started when his daughter was born as she was one month premature and spent time in the intensive care unit of a private hospital due to a “[medical condition]”. He said her treatment was expensive. I asked the applicant for details around the diagnosis and treatment. He was unable to provide me with specific details but said she was being monitored. He said he spent business money for their living costs. He paid an initial bond in the sum of [amount] MYR to the hospital and then spent [amount range] MYR on further costs during that period. I note that the applicant’s daughter was born in [specified year].
The applicant said that in February 2018, his business started to experience a downturn. He tried to apply for a loan for [amount] MYR from three banks but was refused. I asked whether he asked his brother who is [an occupation 1] for assistance. He said he did, and his brother could not help him. The applicant said he felt pressure to pay his rent, suppliers for stock, salary for his [employees] and living expenses, so he decided to approach an unlicensed money lender. He applied for a loan in the sum of [amount] MYR but only received [amount] MYR which he accepted.
He claimed he had the assistance of a lawyer with the loan agreement and was required to repay instalments of [amount] MYR per week for 20 weeks (totalling [amount] MYR). He claimed he sold all his assets and borrowed from family and friends and managed to repay the loan amount. However, because he was late for some payments, the gangsters working for the money lender went to his shop and demanded he continue to make payments.
The applicant claimed he approached a non-government organisation, but they told him to pay another [amount] MYR per week for 20 weeks. He said he made a police report, but the police did not take any action and he decided to close his business because he was scared.
I asked whether he had a copy of the loan agreement and he said he did not and he tried to find his lawyer later, but he had disappeared. He said he was “useless” as a young person. I asked whether he attempted to negotiate a resolution with the money lender. He said he told them he repaid the loan. I asked whether there was any further paperwork such as a variation to the loan or repayment schedule. The applicant said he had no paperwork.
The applicant confirmed he neither he nor his family had been harmed but they have asked about his whereabouts and demanded money. He said the gangsters have gone to his family home seven times and asked his mother where the applicant was residing. She said she did not know. He said that the last time the money lenders came to his home was in September 2024 and that he had a police report in relation to this incident. He said the gangsters tracked his vehicle which was hidden at the village. He claimed they stopped his father when he was there and said that the applicant owed [larger amount] MYR. He said they verbally threatened to harm the applicant if he did not repay the funds. No further action was taken. I asked what the value of the car was at the village. He said [amount] MYR. I put to the applicant that he previously told me that he sold all his assets. He said he returned one car to the bank, sold one car and left one car in the village.
The applicant said he felt scared because the money lenders were gangsters. He said he was lucky they did not know about his daughter because he was not living with her at the time. I asked why he had not tried to make further repayments noting that his parents and daughter remained in Malaysia. He said he already paid the loan amount and wanted to support his family. I asked why the applicant didn’t sign with a non-government organisation to attempt to resolve the matter notwithstanding the frustration of having to pay further amounts, noting that this still seemed to be a better option than paying [the larger amount] MYR. He said he didn’t believe they would be able to resolve the matter. I asked why the authorities would not protect him. He said because he hadn’t paid the [larger amount] MYR. The applicant said there were no other attempts to monitor, intimidate or threaten.
I asked the applicant why he believed the money lender would still be interested in pursuing the debt after all this time. He said he was not sure but believed it was because they did not want him to return to Malaysia and continue his business. The applicant claimed Chinese Malaysians had a monopoly over the [products 1] business and the Chinese business owners were jealous because he was the only ethnic Malay in a Malay area. He said the gangsters were Chinese and he believed they were connected to the Chinese business operators in his area. I asked the applicant whether he would in fact re-open his business if he returned to Malaysia. The applicant was frank in his response and confirmed he would not.
The applicant confirmed there was no other reason he feared returning to Malaysia. The applicant confirmed that his claim regarding joblessness or the unstable economy in Malaysia was withdrawn. The applicant said his own health including mental health was now good. His daughter and parents were also of good health. I discussed the applicant’s supporting documents with him.
I discussed independent country information regarding unlicenced money lenders in Malaysia and the assistance given by non-government organisations such as the Malaysian Muslim Consumers Association. The applicant responded that the non-government organisations were corrupt. I also discussed the country information regarding employment in Malaysia. The applicant had no comment.
I asked the applicant whether he had tried to relocate in Malaysia. He said he had not tried to relocate because Malaysia was not a big country. He also said that people did not relocate in Malaysia. I put to him that his brother successfully relocated. He said his brother still struggles.
I discussed with the applicant that the credibility of his account was in issue. The applicant said he had nothing further to say and that he hoped he did not have to return to Malaysia.
FINDINGS AND REASONS
Nationality
The applicant presented his passport to me at the hearing. I note the delegate had no concerns with the applicant’s identity. I am also satisfied of the applicant’s identity as claimed. I find that Malaysia is the receiving country for the purpose of assessing the applicant’s claims for protection under the refugee and complementary protection criteria. There is no evidence before me to suggest that he has a right to enter and reside in any country other than Malaysia.
Assessment of credibility
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[2] However, it is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] Minister for Immigration and Multicultural Affairs v Rajalingam (1993) FCR 220
[3] Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347 at 348
The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear, or that it is for the reason claimed, or that it is well-founded. It remains for the applicant to provide the relevant information in their case in as much detail as is necessary to enable the Tribunal to establish the relevant facts and be satisfied that all of the statutory elements for well-founded fear of persecution or complementary protection are made out.[4] It is the applicant’s responsibility to specify all particulars of their claim to be owed protection and to provide sufficient evidence to establish the claim, and the Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act.
[4] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 91; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
I am satisfied that the applicant was given a reasonable opportunity to present his evidence in support of his claims at a hearing. The Tribunal had the assistance of a Malay interpreter at the hearing, but the applicant elected to give evidence in English. I found the applicant to be an excellent communicator and proficient in English. He was able to respond immediately to the Tribunal’s questions. I had no concerns with his fitness to participate in the hearing.
Claim to fear harm from an unlicenced money lender and gangsters
The applicant was able to give clear and cogent evidence about the way his business operated, and I accept that he owned a business in Malaysia. I also find it plausible that as a young business owner he may have experienced some financial difficulties including cash flow difficulties, particularly while he was managing the demands of a young family. Accordingly, I accept that the applicant borrowed a small amount of money around or less than [amount] MYR at some point to assist with managing cash flow.
However, I also accept his evidence that he repaid the loan amount in full. I accept that he repaid an amount totalling [amount] MYR. I do not accept that he continues to or would face harm from the unlicenced money lender or their gangsters upon return to Malaysia for the reasons set out below.
Firstly, the applicant’s evidence about the monitoring of him by the unlicenced money lender and gangsters was unpersuasive. I do not accept as plausible that gangsters would periodically attend his family home for a significant period of around five to six years just to ask about the applicant’s whereabouts and then leave after his mother said she didn’t know of his whereabouts.
I have considered the police report which purports to corroborate the applicant’s claim of recent monitoring of his car at the village. The police report states that the applicant’s father saw some men watching his son’s vehicle and he went out to ask them if there was a problem. The men said they were looking for the applicant because he borrowed [larger amount] MYR, and that he should settle the account, or “severe action” will be taken. The report states that the applicant has been paying the loan in instalments as agreed and that the son works in Sydney, Australia. When I asked the applicant about why he was providing this document he said his [relative] was a policeman and told his father to prepare a police report in case something happened to him.
The police report is inconsistent with the applicant’s account which was that the men “stopped” his father when he was at the village. It also lacks probative value as it is simply a person’s reporting of claimed events but there is no indication of any official response to this report for example, whether the police propose to investigate the matter or the outcome of any enquiries with the unlicenced money lender. The police report does not mention any of the earlier claimed monitoring attempts at his family home. It also does not refer to the applicant’s claim that he lodged an earlier police report against this money lender before he decided to close his business. I am also concerned by the timing of the police report. The applicant was first sent a hearing notice on 10 September 2024, for a hearing scheduled on 25 October 2024 and this report is dated [in] October 2024. It is not plausible that the money lenders would suddenly escalate their monitoring of the applicant without explanation. I do not accept the police report as corroborative evidence of a recent monitoring attempt and have given no weight to it.
Secondly, I find it implausible that the unlicenced money lender would still be interested in the applicant and be making enquiries about the applicant’s whereabouts in order to pursue additional interest charges after seven years in circumstances where he repaid the loan amount, and his business was no longer operating.
Thirdly, I consider that if the applicant genuinely feared for the safety of his daughter and parents, he would have sent some money to Malaysia to attempt to resolve this matter on a final basis. The applicant has made no attempts to negotiate a resolution to the debt with the money lender or by engaging a non-government organisation for their services. His explanation that he was sceptical of their ability to help was unpersuasive against the claimed seriousness of the potential threat. I also find that the applicant has been able to send significant sums of money to support his family and daughter and has made no attempts to offer a financial settlement to the money lender. He has a car valued at [amount] MYR sitting idle in Malaysia.
Fourthly, I note that the applicant and his family members have been able to live in Malaysia without incidents of harm. The applicant’s parents and daughter in particular continue to live in Seremban. I do not accept the plausibility of the applicant’s claim that the money lender was sophisticated such that they would be able to track him down anywhere in Malaysia if he sought to relocate in Malaysia but at the same time would have no knowledge of his daughter living in the same town.
Fifthly, I do not accept the applicant’s explanation regarding why he had not attempted to relocate in Malaysia after he closed his business. I find the applicant is a skilled and resourceful person who would have the ability to successfully re-establish himself in another city such as Kuala Lumpur where he has family support if he was seeking to avoid harm. I consider the applicant decided to migrate to Australia to improve his economic circumstances.
For all of the above reasons and having regard to the evidence cumulatively, I do not accept the applicant’s claim that he or his family would be targeted, monitored, harassed, discriminated against or harmed by an unlicenced money lender, loan shark, gangsters or associates in Malaysia due to an unresolved debt.
Claim to fear harm as an ethic Malay business owner
The applicant claimed that he was targeted as the only ethnic Malay business owner amongst Chinese business owners. This claim was raised in connection with his explanation for why he believed the money lender continued to be interested in him. He claimed that the money lender and gangsters were Chinese and connected to his former business competitors.
The applicant is no longer a business owner, and he conceded that if he returned to Malaysia, he would not re-open his business. In these circumstances and noting the applicant left Malaysia over seven years ago, I do not accept the applicant’s claim that he would be targeted and harmed as an ethnic Malaysian business owner.
Conclusions
While I accept that the applicant may have had cash flow difficulties and that he took out a small loan from an unlicenced money lender, I have found that he repaid this loan. I do not accept that he has an unresolved debt or any interest from an unlicenced money lender. I do not accept on the basis of adverse credibility findings that the applicant or his family has had any monitoring, threats or harassment in Australia or Malaysia from an unlicensed money lender or their associates. I do not accept that there is a real chance or real risk that the applicant or his family will face discrimination, harassment or harm for this reason. I do not accept that he would be targeted as an ethnic Malaysian business owner.
Having regard to the applicant’s personal circumstances and background, I do not accept that he will be unable to subsist on return to Malaysia. I note that on the basis of country information, unemployment in Malaysia is low. The applicant’s oral evidence at the hearing demonstrates that he has qualifications, employment experience and family support in Negeri Sembilan and Kuala Lumpur. He has also been resourceful and gainfully employed in Australia. The applicant also conceded that he does not fear joblessness or the unstable economy in Malaysia.
In view of the findings and reasons given above, I am not satisfied that if the applicant returns to Malaysia now or in the reasonably foreseeable future, he faces a real chance of serious harm for his claimed reasons, or any other reasons set out in s 5J(1)(a) of the Act. I do not accept there is a real chance the applicant will be pursued by any unlicenced money lenders or loan sharks or their associates/gangsters, the state, or any other non-state actors for reasons of his race, religion, nationality, membership of a particular social group, or political or imputed political opinion (s.5J). I find that he does not have a well-founded fear of persecution and is not a refugee as defined in s 5H of the Act. 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), I have considered the alternative criterion in s 36(2)(aa). While I have accepted that the applicant may have previously taken out a loan from an unlicenced money lender, I have accepted the applicant’s evidence that he repaid the initial loan amount and therefore I do not accept that he would face harm in Malaysia for this reason. I have rejected the applicant’s key claims to fear harm on the basis of adverse credibility findings. I concluded that there was no real chance of the applicant being harmed in Malaysia for reasons of his debt in the reasonably foreseeable future.
As the ‘real risk’ test for the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[5] for the same reasons and findings set out above, I find that the applicant does not face a real risk of significant harm for any reason.
[5] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
I am 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 that he will suffer significant harm. Accordingly, the Tribunal does not accept that the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subjected to torture; or that he will be subjected to cruel or inhuman treatment or punishment; or that the applicant will be subjected to degrading treatment or punishment for any reason. I have concluded that the applicant does not satisfy the alternative criterion in 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.
Date of hearing: 2 December 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.
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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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