1928998 (Refugee)
[2025] ARTA 1168
•28 February 2025
1928998 (REFUGEE) [2025] ARTA 1168 (28 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1928998
Tribunal:General Member M Stratos
Date:28 February 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 28 February 2025 at 6:28pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – blackmail – fear of torture – criminal gang – physical assault – threats to family – fear of killing – state protection – 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] FCAFC 33
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 7 October 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 national of Malaysia, applied for the visa on 2 July 2019. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
On 11 October 2019 the applicant lodged an application for review with 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), 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. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 21 February 2025 to give evidence and present arguments.
BACKGROUND
The applicant is [an age]-year-old Indian Malaysian of the Catholic faith. He completed high school in Seremban, obtained a [Qualification 1] at a polytechnical school in Johor, and completed his [Qualification 2] in [specified year] in Pahang. He is married and his wife lives in Kuala Lumpur with their [children]. The applicant departed Malaysia for Australia [in] May 2019 and applied for a protection visa on 2 July 2019.
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.
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.
Evidence before the Department
In the applicant’s protection visa application, the following statement was provided:
I was having some financial difficulties past few years. I was unable to repay my car loan, housing loan & credit cards too. It ended up until the banks hired third party to do the collections till everyday I receives calls from them torturing to pay. To escape from them I was forced to get money from some of money lenders. This made me more in trouble till the money lenders look for me to pay interest money every month. I was unable to pay them the interest money till they look for me everywhere including my working place. This made me hide somewhere else for protection. Even can’t get any job to survive also as they keep on hunting for me. Since I did not pay the interest & principal it became a big lump sum till I run away from my country without no options.
The money lenders blackmail me through phones calls & SMS too. They too have blackmail me that if I go to police they will destroy me & my family. Because the money lenders are big gangsters whereby I can’t fight them back.
I have asked for help from my friends & none of them came forward to help me. I have request through a NGO (AKPK) which is related to Malaysian government. But all were declined as my name is blacklisted.
I tried to move to another state which is Selangor so that I can work there & earn something to cover up my family expenses. But they have found me through out their gangster link & came to the place where I was hiding few months. At last without any option of help of my family I came to this country to work here.
I’m very much knows that they are still looking for me. If I’m returning to my country sure they will torture me for the money & will blackmail me too.
As the money lenders are still looking for me in my country if they get to know I’m back sure they will come and harm me as they have mentioned that earlier. They have blackmailed me that if I run away they will find me & kill me. I can say in another word that they are a very big mafia gang in my country.
When I was there in my country I went to police station to make a report & ask for a protection but the policeman refused to take my word & advice me to listen to them. In that case if I return back to my country sure they will look for me & torture me.
If I relocate to my country sure the money lenders will look for me as they have their own links to trace me easily. I have tried to hide in a different state for a few months only yet they trace me back & came to me.
The applicant was not invited to an interview with the Department.
By decision dated 7 October 2019 the delegate refused to grant the applicant a protection visa. The delegate was satisfied there were effective protection measures available to the applicant in Malaysia and thus did not meet the criteria to find he had a well-founded fear of persecution or that there would be a real risk of significant harm should he be returned to his home country.
Evidence before the Tribunal
On the application form to the AAT dated 11 October 2019, the applicant reiterated his fears as follows:
I came here to Australia to escape from the money lenders in my country Malaysia. Even though the police in my country can save me from the money lenders but because of the corruption in my country police doesn't willing to help as the money lenders are big gangsters. If I go back to my country again sure they will find for me & harm me. I'm very positive & willing to stay here in Australia & build my future here. Hope I can stay here & work here with support of Australian Government. If my visa remain as what have granted earlier I can stay here & work here happily while I can pay my tax as well to this government.
The applicant reiterated in his pre-hearing Information form dated 24 April 2024 that he feared being harmed, mistreated, harassed and threatened if returned to Malaysia, and that he had no reason to believe authorities were willing to protect him. He felt he was in grave danger.
Applicant’s Evidence at the Hearing
The applicant worked in Seramban following completion of his studies as [an occupation 1] carrying out [work] for a [company] until 2010. In 2010 he switched careers to work at [Employer 1] as an agent, receiving no salary other than commissions on [sales]. He had been earning around 7,000 to 8,000RM[1] per month in commissions in this employment. He married in 2012, and he and his wife lived in Seramban with his parents. They have [number and ages of children specified]. The applicant has [number] siblings, one living in Malacca and [others] in Seramban.
[1] Approximately $2,485 to $2,840 AUD as at February 2025
In late 2017 after some difficulties with his manager, he left [Employer 1] and obtained a new position with [Employer 2], again selling [products] on a commission only basis. His wife was not working at this time, although she trained and worked as [an occupation 2] prior to their marriage. Because he was new to the position and had not yet built-up numerous [sales] to earn higher commissions he found himself with a very limited income, initially starting at 300 to 400RM[2] per month, increasing to 1,000 to 1,500RM[3] per month. The applicant found it difficult to pay his car loan (1,300RM[4] per month), credit card debts from four separate cards (1,500RM[5] per month) and a personal loan (800RM[6] per month), along with general grocery and living expenses. He started to borrow small amounts from numerous friends and his parents.
[2] Approximately $105 to $140 AUD as at February 2025
[3] Approximately $350 to $530 AUD as at February 2025
[4] Approximately $460 AUD as at February 2025
[5] Approximately $530 AUD as at February 2025
[6] Approximately $285 AUD as at February 2025
A friend of a friend of the applicant introduced him to an unlicensed money lender who loaned him [amount]RM[7] in November 2017, which he used to settle the debts he had to friends. The terms of the loan required him to pay 10% interest every month and was of unlimited duration until such time as the principal amount was paid out. No paperwork was entered into to formalise this loan.
[7] Approximately $[amount] AUD as at February 2025
The applicant claimed he paid the 1,000RM interest in December 2017 through a bank transfer. He then preceded to take another loan of [amount]RM[8] from the same lender in December 2017 on the same terms. He paid the interest in January and February 2018 by using his commission and borrowing from friends. He thought one time he paid cash in person, another time through a bank transfer.
[8] Approximately $[amount] AUD as at February 2025
Many of his friends stopped talking with him around this time due to his requests for money, and as a result he lost the means of gaining referrals from friends to sell [products], thereby denying him the means of obtaining new work.
By March and/or April 2018 he was unable to pay the interest owing to the money lender and debt collectors hired by the lender commenced visiting him at the house he shared with his parents. These visits would take the form of an agent of the money lender quarrelling with the applicant and promising to return for the money. The applicant claimed, upon repeated questioning from the Tribunal, they called his house on the landline telephone on a daily basis. They would call and text his mobile phone daily, but he would not answer or respond and at times would switch off his phone. In messages they asked when he would repay the debt and they provided bank account details for the purpose of repayment. The applicant tried to keep working to obtain the funds to pay back the debt. The collectors started to come to his house about three times a week. At times when the applicant was not present, they would speak with his father.
The applicant recalled paying some small amounts of around 300-400RM[9] three or four times in May 2018 when the collectors visited his house. He would pay them in cash in person in an effort to have them cease their visits. Despite this, the applicant claimed they continued to call him every day throughout May and June 2018. He began to avoid being at home and would only return to his house late at night in an effort to avoid meeting the collectors who visited during the day.
[9] Approximately $105 to $140 AUD as at February 2025
When he was contacted in person by the collectors, they would ask for money, request answers as to why the applicant had not paid, advise of the dates by when money was due and generally quarrel with him. They would make vague threats but were not specific about what they might do if he did not repay on time. They advised the applicant to “take care of himself and his family” without specifying whether or how they intended to harm him.
It was the applicant’s evidence that at no time after June 2018 did he make any other repayments to the money lender.
His parents were supporting the applicant and his family throughout this period while he continued to receive small commissions from his [sales] work and had no other income, with the debts both legitimate and private becoming larger through non-payment. His car was repossessed by the bank in June 2018 although the applicant claimed he still owed 50,000RM[10] on the loan which was originally for a car worth 120,000RM[11].
[10] Approximately $17,830 AUD as at February 2025
[11] Approximately $42,790 AUD as at February 2025.
By July 2018 the collectors were visiting him at his office about once per week seeking repayment. They told him he was putting his life in danger by not repaying the debt. As a result of prompting by the Tribunal, the applicant recalled attending upon AKPK, an organisation designed to assist people with repayment of their debts to avoid the harassment metered out by loan sharks or illegal money lenders. He recalled attending their booth at a local shopping mall for assistance, but was told they could not help him as he needed a source of income for them to be able to arrange repayments. The applicant did not have any paperwork from this meeting.
The applicant described an incident in a restaurant where he was dining with his family around this time. The people hired by the money lender to harass the applicant were dining at the same place and they approached him, quarrelling and using vulgar language, saying he was bringing shame on his family by not paying the debt. The applicant argued back and a physical fight began in the restaurant. The applicant broke a chair over one man’s head, and the applicant was punched in the face. The fight was broken up by restaurant staff and police were not called.
His father advised the applicant not to seek the assistance of authorities. The applicant asked a friend who was a police officer to look into the issue on his behalf so he did not have to make a formal complaint. His friend told him not to get involved as the people he had been quarrelling with were gangsters. Despite this, the applicant himself was contacted by police and given an informal warning regarding the physical fight. He claimed he told them what happened and the police advised him to be careful of the gangsters.
Following this incident, the gangsters started to drive past his house or sit in a parked car outside his house every day. The applicant thereafter would not leave the house in Seramban at all. The collectors continued to call his mobile daily, often from different numbers, and one or two calls would be made to his home landline phone number daily. Meesages left would tell him to be careful.
Remaining in his house meant he was struggling to obtain new sales in his [employment] and he was falling even more behind in his financial situation. He sought the assistance of friends from his study days in Johor Bahru and they told him they could help find work. The applicant left for Johor in around September or October 2018 and stayed with a friend for about one or two months. Throughout this period he continued to receive daily phone calls asking for repayment of the money. His family also received daily phone calls to the house, and once or twice a week would be visited in person by someone asking for repayment. Threats were made to his father that they would do something to the applicant if they found him. Threats were made against the father in the event the applicant would not meet the collectors.
The collectors advised the applicant’s father they knew he was in Johor, and his father advised him accordingly. Despite this, no one ever approached the applicant while he stayed in Johor for repayment in person, although the applicant claimed the daily phone calls continued. The applicant then returned to Seremban in November 2017, despite not being found by the collectors while in Johor, as he was scared they were becoming more aggressive and might harm his family. He claimed he returned home, but yet still did not meet up with the collectors when they sat outside his house in their parked car, or answered their calls when they rang daily.
The applicant was asked how he knew the money lender had sent the people to sit outside their house three to four times a week if they didn’t approach the house. The applicant explained the people in the car outside would stare at the house, although he would not leave the house for fear of what they might do. He stated he lived on a quiet street and thus a stranger sitting in a car several times a week was easily noticed. Sometimes they would approach the house, knocking on the door and asking for him, threatening whichever family member opened the door that the applicant’s life was in danger.
Despite being contacted by phone daily and in person several times a week, coupled with the regular stalking outside the house and threats to their son’s life, the applicant’s parents would not take this issue to police, although the applicant advised they did speak with a local community leader. This leader told his father that as this was the applicant’s problem there was no assistance they could offer. The applicant’s wife was told not to contact police by her father-in-law, and she made no reports or requests for assistance from authorities at any time.
The applicant would only leave the house at night to socialise with friends or to try and drum up sales to earn in his [employment]. He would also perform some work for his [friend] at night in an effort to earn some money.
The applicant described an incident in early 2019 when he was walking at night to the petrol station at the end of his street where he lived with his family, when he was set upon by the gangsters who he fought with in the restaurant. They grabbed him, put him in their car, blindfolded him and tied his hands. They drove for about 40 minutes to a building site, where he was slapped and pushed to the ground. He called for help but none came. Men kicked him and used hockey sticks to beat him. The applicant confirmed he did not think the money lender had sent these men to harm the applicant, but rather they were opportunistically seeking retribution for the fight in the restaurant, although they were connected to the money lender. The men called the money lender who arrived 20 minutes later, all the while the applicant was being pushed and slapped. When the money lender arrived he pushed the applicant down and told him to pay 100,000RM[12] within one week. He was then untied and left alone, and the applicant used his mobile phone to call a friend to collect him.
[12] Approximately $35,600 AUD as at February 2025
The applicant stated that he did not go back to his family home after this event but stayed with a friend in Kuala Lumpur. He obtained a new mobile phone number to talk with his family without being harassed by gangsters or the money lender. He performed some work for his [friends] to earn money during this period. The applicant travelled once or twice a month at night from Kuala Lumpur to Seremban to see his wife and children, spending an hour with them before returning. Sometimes he would stay one or two days with his family before returning to Kuala Lumpur. At this time the collectors continued to call the family home two times a day, and once or twice a week visit the house and walk straight in without permission, although the applicant confirmed he was never present when this happened. The approaches had become more threatening towards his parents at this time, demanding they repay the funds owed. A vase was broken on one such foray into the family home and the applicant’s father was told the gangsters would kill the applicant if they found him.
His parents, wife and children started to spend their time moving between the house in Seremban and his sister’s house in Malacca from March 2019 in an effort to find some relief from the constant calls and approaches. The gangsters and collectors only had the landline phone number and home address, so were unable to contact them when they were not at Seremban. The applicant was also travelling to Malacca at this time to see his family.
There was only one contact with the gangsters or the money lender’s collectors during the five months following the 2019 incident where he claimed to have been abducted and the time he left for Australia in May of that year. There was one instance where the applicant was at the family home in Seremban and he answered the landline. When the person on the other line told him to stay where he was, the applicant fled. He thereafter bought a ticket to Australia and left two weeks after this incident.
When he first arrived in Australia he worked as [an occupation], but since 2020 has been employed six days a week in a [business 1], [in specified roles]. He contacts his wife and children two to three times per week and sends money to support their upbringing. He contacts his siblings but his parents no longer speak to him due to the turmoil his actions brought to the family.
Following his departure, the applicant’s parents continued to receive phone calls and in person visits when they were at the house in Seremban twice a week. The applicant’s parents moved to Malacca to live with his sister in 2020 for caring purposes due to their age and medical issues, but the applicant noted it was also out of a desire to avoid the continued harassment. His parents have not been contacted by the money lender or their agents since they moved to Malacca.
The applicant’s wife moved with their [children] to Kuala Lumpur in 2020, where she now works as [an occupation 2]. She has not been contacted at any time by the gangsters, money lender or his agents.
The applicant has had no contact with any gangsters or collectors on behalf of the money lender since he departed Malaysia. He claimed he was aware from a friend (who was also a friend of the money lender) that he was still a person of interest to the lender. He thought he received this information in 2024. He also considered, due to the connections between his friends and the money lender, if he was to return to Malaysia that such information would be revealed and the lender would seek to re-enliven his harassment or other harm against the applicant.
The applicant fears that if he were to return to any part of Malaysia his circle of friends would reveal his location to the money lender, whereupon he would be hunted by the money lender and their agents who would harm him over the unpaid debts. Police could not assist to protect him, as they have not been able to assist in the past.
REASONS AND FINDINGS
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and Receiving Country
The applicant claims to be a citizen of Malaysia and no other country. A copy of his passport was provided to the Department, and the delegate was satisfied with its authenticity and the applicant’s identity. The Tribunal has no information to suggest this is a bogus document, and the Tribunal is thus satisfied of the authenticity of the applicant’s passport and that the applicant is a Malaysian citizen. The Tribunal is satisfied that Malaysia is the receiving country for the purpose of assessing claims against the refugee and complementary protection criteria.
Country Information
Unlicensed moneylenders, typically referred to as ‘loan sharks’, operate openly in Malaysia, despite these activities being illegal[13]. Those who do not repay these loans can face serious harassment and on rare occasions victims of loan sharks have suffered violence. It is common for borrowers to be identified through various means in an effort to cause public shame, and the families of victims are also often harassed.
[13] DFAT Country Information Report Malaysia (DFAT Report) Department of Foreign Affairs and Trade, 24 June 2024, section 3.150
In-country sources report that many street-level gang members are Indian Malaysians, due in part to economic instability within that community[14]. Some gangs engage in extortion and loan sharking, but details of gang activities are difficult to obtain, as victims of gang-related crimes often do not report them out of fear of retaliation[15].
[14] DFAT Report 2.30
[15] ibid
Police respond to threats and harassment and conduct operations targeting illegal lending. It has been reported that police arrested almost 900 suspected loan sharks across Malaysia during 2023[16]. Non-governmental organisations offer support for those encountering problems with loan sharks, including assistance settling debts[17]. Formal credit agencies can consolidate loan shark debts to assist victims[18].
[16] 'Nearly 900 suspected loan sharks arrested so far this year', The Star Online(Malaysia), 11 October 2023, 20240719125438
[17] ‘More than 10,000 people sought PPIM's help over Ah Long cases’, Bernama, 18 October 2016, CX6A26A6E31142
[18] ‘DFAT Report section 3.153
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[19].
[19] DFAT Report section 3.145
Does the applicant satisfy the refugee criterion for protection?
The Tribunal understands the applicant’s claim to be based on a fear of suffering serious harm at the hands of money lenders and their gangsters due to an unpaid loan should he return to Malaysia.
The applicant was unable to produce corroborative evidence regarding his claims. He was unable to obtain bank statements or loan documents as he feared attending upon the banks for this purpose in case they reactivated their requests for repayment or took other legal action against him. There was no paperwork available to prove the private loan agreements existed. No mobile phone calls or messages were kept as the applicant no longer has the phone that he used at the relevant time. He has no record of his attendance upon AKPK to assist him with consolidating his debts, and he had no formal attendance upon the police and therefore no reference number or documentation to attest to any approach.
The Tribunal expressed concerns to the applicant regarding inconsistencies that arose between the evidence he gave at the hearing and that which he had provided to the delegate in his initial protection visa application. The applicant confirmed in evidence he had completed the visa application himself without assistance.
The applicant claimed in his application to the Department he had a housing loan he was unable to service as a result of financial difficulties. The applicant had outlined to the Tribunal the existence of an outstanding car loan, credit card debts and a personal loan to pay for his wedding. The applicant explained this housing loan referred to a loan his parents had over the family home which he would contribute to while he and his family lived there. He confirmed this was not a loan for which he was legally liable, and nor was he required to contribute any repayments once he found himself in financial difficulty.
He also claimed in his statement debt collectors on behalf of the banks to which he owed money as a result of the unpaid car loan, personal loan and four credit cards (through three different banks) called him everyday, ‘torturing’ him to pay the debts. He clarified they did not threaten him with physical harm, but insisted they called daily. When the Tribunal expressed some concern about the methods legitimate lenders might use to seek repayment of debts, the applicant further clarified that because he had debts to more than one bank, the collectors for each bank would contact him weekly, but each on a different day. The applicant thought the banks continued to seek repayment and send letters through 2018 and 2019, but he was concerned about trying to obtain copies of such documents for fear they would commence recovery actions against him.
The applicant’s statement indicated he took the loan from the money lender to pay off his legitimate debts. The applicant gave evidence at the hearing he used the money lender amounts at first instance to repay friends, and secondly to cover Christmas gifts, groceries and baby items for his new-born child.
The applicant’s statement references that he relocated to another state but that they found him and ‘…came to the place where I was hiding…’. The Tribunal queried the applicant regarding this statement, noting he had given evidence he had never been physically found while in Johor or Kuala Lumpur. He confirmed that the statement was not correct in that regard.
The protection visa application also mentions he attended a police station to make a report and seek protection. The Tribunal queried this, noting the applicant at hearing stated he did not make any formal police report. The applicant claimed the reference in the written statement is to the instance when he spoke to a friend who is a police officer about whether there was anything he could do about this situation.
The Tribunal raised directly with the applicant that he had not mentioned overseas travel undertaken throughout 2018, and that this travel might appear inconsistent with someone who was not earning and being harassed on a daily basis by gangsters. The applicant had initially given evidence to the Tribunal that his last overseas travel was some time in 2017. The Tribunal assisted the applicant’s memory by confirming details in his application that referenced travel to [Country 1] in January 2018, [Country 2] in April 2018 and [Country 1] in October 2018.
a.The applicant stated the January 2018 trip was a prize or incentive received from the [company], for completing specific tasks such as a number of [product] sales. The applicant stated that despite not earning much in commissions at this time he had completed the task and won the incentive prize.
b.The applicant explained he travelled to [Country 1] in April 2018 for a job interview for his wife. She was offered a job but declined to take it up as despite it potentially meaning a way out of the harassment they were facing at home, they thought the expense of living in [Country 2] would not be covered by his wife’s wages.
c.The Tribunal was particularly concerned regarding travel in October 2018. The applicant had given evidence that around this time he was staying in Johor both as a means of hiding from the gangsters and in an effort to find work, as he was not earning more than 1,500RM per month with his [sales]. When asked how it was that he was hardly earning any commissions at this time yet won a prize for performing certain tasks through his work or winning certain sales, the applicant stated he was still working to sell [products] and he was able to complete the incentive task as it was not very onerous.
Although the applicant explained the nature of the inconsistencies between his statement and in person evidence upon questioning, the Tribunal considers those statements made in his protection visa application show a propensity to exaggerate the difficulties the applicant may have been facing. This is a material consideration for the Tribunal’s assessment of the reliability of the applicant’s evidence.
The Tribunal also has concerns regarding the reliability of the evidence provided at hearing. The applicant was unable to particularise many details of his history. He was unable to specify how many friends he borrowed from, and how much collectively he borrowed or still owes to them. The details around how often gangsters or collectors on behalf of the money lenders would approach him and his family in person, and what threats if any they would make, were vague and somewhat inconsistent throughout the hearing.
Although the applicant was steadfast in his recollection, his evidence that debt collectors and gangsters associated with the money lender called his mobile telephone daily from April 2018 until 2019 when he obtained a new mobile number is not credible. The applicant claimed his family’s landline was called from July 2018 every day, continuing even after he had departed Malaysia, but the Tribunal considers the evidence regarding the intensity of these approaches to be inflated. Furthermore, visits to the family home that occurred around three times per week from April 2018 through to 2019 appears an incredible level of engagement and effort by gangsters for a debt worth 25,000RM (plus mounting interest).
Despite the claimed harassment through phone calls and visits to the family home which escalated to involve threats of harm, the applicant does not describe any actual harm being perpetrated at the behest of the money lender. The two instances of physical violence described by the applicant were not planned by the money lender but rather were actioned opportunistically by the gangsters, firstly when they were dining at the same restaurant and secondly when they saw him at a petrol station near his house.
The incident in early 2019 where he was set upon and kidnapped by gangsters, despite being an important part of the applicant’s history and reason for his fear of returning was not mentioned in his initial application or any subsequent statements. It is unclear why the money lender purported to raise the amount owing as part of this event, and why if they had been chasing the applicant for a year for repayment with daily approaches why he would continue to be given more time to repay.
The applicant contended his income from commissions never went above 1,500RM per month, yet the applicant’s travel in January 2018 and October 2018 would indicate that he was obtaining some sales and commissions in an effort to win these incentive travel prizes. The date of his travel in October 2018, and his inability to recall that until questioned by the Tribunal do not appear to accord with a person who was at that time hiding out in Johor and trying to find work.
The applicant’s claim that the gangsters could find him anywhere he went was undercut by his own evidence that they did not find him when he stayed in Johor for several months in 2018, and neither did they approach him or find his new mobile number when he stayed in Kuala Lumpur in 2019. They did not find his family’s mobile phone or address details when they moved back and forth to Malacca in 2019 or when they permanently left Seremban.
Given these inconsistencies, inability to recollect certain pertinent details, exaggerations and implausibility of aspects of the applicant’s history, the Tribunal considers the applicant’s evidence as to his interactions with illegal money lenders to be unsatisfactory. Noting these concerns, for the above reasons the Tribunal does not accept the applicant borrowed money from a private or illegal money lender as claimed, nor that he or any family member has been harassed, threatened or harmed in any way for the reason of an unpaid loan to an illegal money lender. It follows that the Tribunal finds there is no harm the applicant will face upon a return to Malaysia now or in the reasonably foreseeable future by money lenders or gangsters as a result of an unpaid loan.
The Tribunal is not satisfied there is a real chance that any person or group will seek to harm the applicant because of unpaid loans now or in the reasonably foreseeable future should he return to Malaysia. The Tribunal is not satisfied there is a real chance of serious harm if the applicant returned to Malaysia now or in the reasonably foreseeable future. The Tribunal finds the applicant does not have a well-founded fear of persecution as a result of an unpaid loan and as such does not satisfy the criterion set out in s 36(2)(a) of the Act for a protection visa.
Does the applicant satisfy the complementary protection criterion for protection?
As the Tribunal has found the applicant is not a person for whom Australia has protection obligations as a refugee under s 36(2)(a) of the Act, the Tribunal must then consider whether the applicant meets the complementary protection criteria under s 36(2)(aa) of the Act. The applicant will satisfy those criteria if the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk he will suffer significant harm.
In the decision of MIAC v SZQRB [2013] FCAFC 33, it was held that the ‘real risk’ test in respect of complementary protection obligations imposes the same standard as the ‘real chance’ test as required to determine a person meets the refugee criteria. For the reasons set out above, the Tribunal has found the applicant will not suffer any harm if returned to Malaysia due to approaches by money lenders concerning any unpaid loan. Accordingly, the Tribunal finds there is no real risk the applicant will suffer significant harm.
It therefore follows the Tribunal does not have substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Malaysia that there is a real risk the applicant will suffer significant harm.
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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of Hearing: 21 February 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
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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