2007326 (Refugee) - [2025] ARTA 1229

2007326 (REFUGEE) [2025] ARTA 1229 (6 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2007326
Tribunal:General Member G Simm
Date:6 January 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 06 January 2025 at 1:34pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Malaysian Chinese ethnicity – Religion – Buddhist – fear of harm from a loan shark – had committed a serious assault for which criminal and civil proceedings were still underway in 2021 – evidence was consistently vague and lacking in substantive detail – not satisfied that the applicant faces a real risk of serious or significant harm – credibility concerns – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2
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 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 5 June 2019. The delegate refused to grant the visa on 8 April 2020.
The applicant appeared before the Tribunal on 18 October 2024 by video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was unrepresented in relation to the review.
BACKGROUND
The applicant is a [age]-year-old man born in [City 1], Penang, Malaysia. He identifies as being of Malaysian Chinese ethnicity and a Buddhist. He speaks Mandarin, Malay, Cantonese, some English and Hokkien. Based on documentary, written and oral evidence, the Tribunal accepts the following matters to be true:
a.His parents live in [City 1], Penang, where they run [a] business. He is in contact once every 2-3 weeks and sends them money every 2 months.
b.He has two younger brothers and one older sister who live with their parents in Penang. His youngest brother is at school and his other siblings are working. He speaks to them when he rings his parents.
c.He completed primary school and finished [a grade]. He left school after completing part of [a grade] in [City 1].
d.After finishing school, he worked in a [Workplace 1] for one year, then as a [occupation] in a [shop], then he helped his parents with their business.
e.He has a girlfriend from [a country] who is studying in Australia. They have been together for about 3 years.
f.Since arriving in Australia, he has worked [at various workplaces].
Evidence before the Department
In his protection visa application, the applicant claimed that in January 2019 he invested RM30,000 in his cousin’s business. A month later, he applied for a loan in his own name to invest more in the business but his cousin ran away with the money. The loan company started to threaten him and his parents so he went to south Malaysia to find another job. He could not afford to repay the money as the interest was very high. Within three days the lender found him again and threatened him so he decided to come to Australia. He signed an agreement which meant the lender was legally entitled to have the money repaid so the authorities were unable to protect him.
The applicant was not invited to interview. The delegate refused his application on the basis that state protection from loan sharks was available in Malaysia.
Evidence before the Tribunal
In his response to the pre-hearing information form, received by the Tribunal on 21 May 2024, the applicant repeated the claims made in his application for a protection visa.
At hearing the applicant stated that a friend had helped him to fill out his application form for a protection visa, speaking Mandarin, and confirmed that the claims made there were still his claims. He gave further evidence as follows:
a.He had borrowed money from two loan sharks but had not managed to repay any of it. He still had an outstanding debt of AUD$50,000 including interest.
b.One of the agreements was in writing, the other oral. He did not have any details of the agreements or the lenders as they had been on his [social media] account which was now deleted.
c.When the applicant could not pay back the loan, the first warning he received was that someone threw paint on the wall outside the house where he lived with his parents. He didn’t contact the police because he had been in trouble with the police before. The police saw it when they were patrolling and asked about it. He told the police it was just a prank.
d.The loan sharks would send two people at a time to his house who would come in disguise. He wouldn’t be able to recognise those people. They also sent him threats such as: if he did not repay the loan, he should be careful when he went out.
e.He did not contact the police because he had signed a contract so he needed to repay the loan. He was also worried that if he contacted the police the situation might deteriorate.
f.The last time he was contacted personally by the loan sharks was in August 2019 after he arrived in Australia. After that, he changed his [social media] account and has not been contacted since.
g.In March 2020 his parents moved to a new house in [City 1] to get away from the paint throwing and the threats. The loan sharks have not found the new house. They only had his ID card which had his parents’ old address.
h.When asked what would happen if he returned to Malaysia now, the applicant said that loan sharks might throw some paint on the walls of the house. They might harass him and his family. They would harass his mother and ask her to repay the money. If he could repay the loan, they wouldn’t do anything.
i.If he returned to his parents’ new house, the loan sharks would possibly not be able to find him. He was still worried that the loan shark would ask him to repay the loan. [City 1] was a small town and it was easy to run into people.
j.He didn’t know what sort of work he could do in Malaysia. He was used to working in Australia and the pay rate in Australia was higher than in Malaysia. If his siblings could help him, it would be to help his mother run the business.
The applicant gave further evidence that on 7 October 2018 he had assaulted someone with a knife.
a.This person had owed him money and had tried to start a fight so the applicant had stabbed him. He only knew the victim by his nickname, [name]. The victim had to go to intensive care in hospital and suffered a serious and ongoing injury to his foot. He still could not walk properly as a result.
b.The police had caught the applicant and detained him for 10 days. Then he went to court. As he was aged under [age] when it happened, he was released on bail. He did not attend the court on the date set for hearing.
c.If he had to go back to Malaysia he might be imprisoned because the case was still ongoing. The victim was suing him. His parents had been contacted by police and the victim in December 2018. At the time there was a warrant out for his arrest but he was detention at the time.
d.When he arrived in Australia, he contacted his lawyer in Malaysia. His lawyer asked him to settle and pay the victim money. He didn’t do that because he didn’t have the large sum of money the victim was asking for. He last spoke to his lawyer in 2021 when he said that the applicant’s case was still open.
At hearing the applicant indicated that he might be able to provide documents about his legal proceedings so the Tribunal granted him until 1 November to provide any further documents. On 21 October 2024 the Tribunal received an email from the applicant with the following message: ‘Good morning member so sorry because my family moved house I couldn't find a lot of information. I only found this Chinese newspaper.’ In the body of the message was copied a webpage, with individual photos of six men, some photos of empty tables in a restaurant, and photos of lamps. There was also untranslated text in Mandarin. The article appeared to be dated 7 October 2018 from [a] website.
On 18 November 2024, the Tribunal invited the applicant to attend a further hearing by video on 16 December 2024 at 10 am. On 26 November 2024, the applicant replied, declining to participate in the hearing and requesting the Tribunal to make a decision on the papers without holding a further hearing.
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.
REASONS AND FINDINGS
The issue in this case is whether the applicant is entitled to a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Findings
The applicant provided the Department of Home Affairs with a copy of his Malaysian passport and his MyKad identity card. On this basis, and given that the delegate had no concerns about the applicant’s claimed nationality, the Tribunal accepts that the applicant is a national of Malaysia and has assessed his protection claims accordingly.
The applicant has consistently claimed that the reason he fears return to Malaysia is due to his outstanding debt to loan sharks. At hearing, the applicant disclosed for the first time that he had committed a serious assault for which criminal and civil proceedings were still underway in 2021.
Under s367A of the Act, where an applicant raises a claim that was not raised before the primary decision was made, the Tribunal is to draw an inference unfavourable to the credibility of the claim if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised before the primary decision was made.
The applicant has not been represented at any stage of the process. It was only at the hearing with the benefit of an interpreter that he made the claim about ongoing legal processes for the assault he admitted. This claim is unfavourable to the applicant’s character, which makes it more likely to be true. The applicant’s oral evidence was frank and unembellished. Further, his first claim was consistent with his application for protection. For these reasons, the Tribunal declines to draw an inference unfavourable to the credibility of this claim.
I accept that the applicant has an outstanding debt estimated at AUD$50,000 to loan sharks in Malaysia. I find that people sent by the loan sharks visited his parents’ house in [City 1], Penang, on several occasions, including when they threw paint on the house and made threats about what would happen if he did not repay the money. I find that the applicant has not personally been contacted since August 2019 when he changed his [social media] account. I accept that the applicants’ parents have not been contacted since March 2020 when they moved to another house in [City 1]. I accept that, if returned to Malaysia, the applicant would live with his parents in their house in [City 1]. I do not accept that the loan sharks are still interested in pursuing the debt owed by the applicant in light of the passage of time and their lack of success in locating him during this period.
I accept that the applicant committed a serious assault which led to his victim suffering a permanent injury to his foot. I accept that the applicant faces ongoing civil and criminal proceedings in relation to this assault, including possibly being arrested and jailed for a criminal offence and having to pay compensation to the victim in relation to the civil proceeding.
I acknowledge that the applicant has a strong desire to remain in Australia, at least in part because the wage differential between Australia and Malaysia means that he can earn more in Australia, despite his lack of qualifications. I accept that if the applicant returns to Malaysia, he will take longer to find work than a high school graduate or someone with other skills or training. I accept that the applicant will suffer some economic hardship if he has to pay compensation arising from civil proceedings initiated by the victim of his assault while supporting himself if returned to Malaysia.
Country Information
The DFAT Country Information Report on Malaysia of 24 June 2024 (DFAT 2024) describes the situation regarding loan sharks as follows:
3.149 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.
3.150 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.
3.151 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.
3.152 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.
3.153 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.
3.154 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.
Under the Malaysian federal Penal Code, ‘grievous hurt’ is defined as ‘destruction of or permanent impairing of the powers of any member or joint’.[1] Voluntarily causing grievous hurt is an offence,[2] the penalty for which is ‘imprisonment for a term which may extend to 7 years.’ If convicted, the person ‘shall also be liable to a fine.’[3]
[1] Malaysian Penal Code, Act 574, as at 1 January 2015, s320(e).
[2] Malaysian Penal Code, s322.
[3] Malaysian Penal Code, s325
DFAT reports that ‘Malaysia retains the death penalty as an option for 34 criminal offences, although it is not a mandatory sentence for any of them. Malaysia has had a moratorium on executions since 2018.’[4]
[4] DFAT 2024, 4.6.
On arbitrary deprivation of life, DFAT notes that ‘isolated incidents occurred of Malaysian officials committing arbitrary or unlawful killings, mostly in the prison system.’[5] It refers to a SUHAKAM report for 2020 when12 deaths in custody occurred, including 6 in prison, 4 in police detention and 2 at immigration depots.[6] In January 2022, a detainee died in temporary detention centre in Perak State.[7] Also in January 2022 the Royal Malaysia Police Unit on Deaths in Custody began investigations into all custodial deaths.[8] The Independent Police Conduct Commission came into effect in July 2023 as part of a response to deaths in police custody.[9] Four people disappeared in 2016 and 2017, with police Special Branch implicated. DFAT was not aware of any reports of state-sponsored enforced or involuntary disappearances since 2017.[10]
[5] US Department of State Report on Human Rights Practices 2022 (covering 2021), cited in DFAT 2024, 4.1.
[6] Ibid 4.3.
[7] Ibid.
[8] Ibid 4.4.
[9] Ibid 4.5.
[10] Ibid 4.2.

Malaysia is not a party to the Convention Against Torture and ‘no law specifically prohibits torture’. The Malaysian Human Rights Commission SUHAKAM considers that ‘Malaysia has inadequate legal safeguards against torture in custodial settings’.[11] NGOs Human Rights Watch, Freedom House and SUARAM report that ‘torture and abuse of suspects in custody, sometimes resulting in death, remain serious problems in Malaysia, as does the lack of accountability for such abuse.’[12]
[11] Ibid 4.9.
[12] Ibid 4.10.
On cruel, inhuman or degrading treatment or punishment, DFAT reports that ‘several Malaysian laws allow for preventive detention and/or lengthy periods of detention without trial’, namely for security, terrorism and dangerous drugs offences and prevention of crime.[13]
[13] Ibid 4.11. See further 4.12-4.16.
Does the applicant satisfy the refugee criterion for protection?
Real chance of serious harm
Under s5J(1)(b) of the Act, the applicant has a well-founded fear of persecution if there is a real chance that, if he returned to Malaysia, he would be persecuted for one or more of the refugee reasons in s5J(1)(a).
S5J(5) provides illustrations of serious harm as follows:
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.
Loan shark claim
The applicant has an outstanding debt to the loan sharks. They have threatened the applicant's family and thrown paint on their family house in the past. The applicant expressed concern that the loan sharks would locate him given that [City 1] is a small town.
However, the applicant was last contacted by the loan sharks in August 2019. Since then, he changed his [social media] account and has not been contacted again. His parents were last contacted by loan sharks before they moved house in March 2020, nearly five years ago. The applicant gave the loan sharks his identity card which does not contain his parents’ current address.
For these reasons, the Tribunal finds that the chance that the loan sharks will locate, contact and threaten him or his parents is remote and does not reach the threshold of a real chance, now or in the reasonably foreseeable future.
Legal proceedings for assault
The instances of serious harm included in s5J(5)(c) of the Act include a threat to the person’s liberty which might flow from a sentence of imprisonment.
The applicant gave evidence that he breached bail and did not return for his court date. It is therefore likely that he will be arrested on his return to Malaysia.
However, enforcement of a generally applicable law does not ordinarily constitute persecution as enforcement of such a law does not ordinarily constitute discrimination.[14] As Brennan CJ stated in Applicant A:
The feared persecution must be discriminatory…[It] must be ‘for reasons of’ one of [the prescribed] categories. This qualification … excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of ‘refugee’.[15]
[14] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chen Shi Hai v MIMA (2000) 201 CLR 293 at [20].
[15] Applicant A v MIEA (1997) 190 CLR 225 at 233.
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook) is not binding on this Tribunal. Nevertheless, it represents the views of the relevant UN specialized agency informed by international state practice so I consider it highly persuasive. On this point it states:
56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim – or potential victim – of injustice, not a fugitive from justice.[16]
[16] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, reissued February 2019) at [56].
The applicant has not made any claim or submitted any evidence, nor does the country information suggest, that any criminal law under which the applicant might be prosecuted has a discriminatory intent behind it, nor that it has a discriminatory impact, nor that it is selectively enforced. Similarly, neither the applicant nor the country information raised any question as to whether the law of personal injury under which he is being sued has a discriminatory intent behind it, a discriminatory impact, or that it is selectively enforced. Based on the lack of any evidence of discrimination, I find that these laws are laws of general application. While the applicant is likely to be prosecuted and/or sued for assault on his return to Malaysia, such legal proceedings do not amount to serious harm.
For these reasons, the Tribunal does not accept that there is a real chance of serious harm to the applicant arising from legal proceedings for assault if he returns to Malaysia.
Economic hardship
The applicant did not articulate a claim of economic hardship; however, this could be implied in his response to questions from the Tribunal. I have therefore considered whether there is a real chance that the applicant will face serious harm in the form of significant economic hardship that threatens his capacity to subsist under s5J(5)(d) of the Act.
Two aspects of the applicant’s evidence suggest that he might face economic hardship on return to Malaysia. First, he stated that he did not know what sort of work he could do in Malaysia and that the pay rate in Australia was higher than that in Malaysia. Second, the applicant faces the possibility of having to pay an unspecified large sum in compensation to the victim of his assault. He is in contact with his parents every two to three weeks and sends them money every two months.
However, the applicant has a range of work experience which shows that he is adaptable and likely to find work. In Malaysia, the applicant worked in a [Workplace 1], in a [shop] and in his parents’ business. In Australia, the applicant has established himself in a new country, found accommodation and supported himself working on farms and in factories, despite having to navigate a foreign culture while not speaking the language. I note that the applicant is young ([age] years old) and appears to be in good health. Further, the applicant has the support of his parents and siblings and has previously worked in his parents’ [business].
As a result, I do not accept that the applicant will become homeless and/or be without food or other basic needs if he returns to Malaysia. I do not accept that any hardship and stress he might suffer due to reduced economic circumstances would amount to serious harm. I find that there is not a real chance that the applicant would suffer serious harm in the form of significant economic hardship that threatened his capacity to subsist; that he would be denied access to basic services, where the denial threatens his capacity to subsist; and/or that he would be denied the capacity to earn a livelihood of any kind as per the instances of serious harm in s5J(5)(d)-(h) of the Act for a refugee reason.
Conclusion
Having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept that there is a real chance of serious harm to the applicant if he returns to Malaysia, now or in the reasonably foreseeable future. Therefore I find that the applicant does not have a well-founded fear of persecution.
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).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Real risk of significant harm
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, I note that in MIAC v SZQRB the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[17]
[17] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Significant harm is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
Loan shark claim
I have found that there is not a real chance of harm to the applicant arising from his debt to the loan sharks. Applying SZQRB, it follows that there is not a real risk of harm to the applicant arising from his claim regarding his unpaid debts to loan sharks.
Legal Proceedings for assault
I have considered whether the criminal proceedings for grievous hurt that the applicant may face if he returns to Malaysia amount to significant harm. This could be the case if he were convicted of a crime for which the death penalty is prescribed, for example, or if he faced a real risk of torture, whether as part of police interrogation or in prison.
According to the country information, ‘grievous hurt’ is not a crime for which the death penalty is prescribed in Malaysia. On arbitrary deprivation of life, DFAT is not aware of any enforced disappearances since 2017. There were 12 deaths in custody in 2020 and at least one in 2022. At the same time, in 2022 the Royal Malaysia Police and in 2023 the Independent Police Conduct Commission commenced investigating deaths in police custody, which aims to deter future deaths in custody.
The penalty for grievous hurt in Malaysia is specified to be period of imprisonment of up to 7 years and potentially a fine of an unspecified amount. I do not accept that having to pay a fine amounts to significant harm.
However, given the gravity of the assault which the applicant admits, a sentence of imprisonment may be imposed. According to SUHAKAM, ‘Malaysia has inadequate legal safeguards against torture in custodial settings’.[18] The possibility that the applicant may be subjected to torture while in custody therefore cannot be excluded. While it raises concerns about the lack of accountability for torture in Malaysia, nothing in the country information suggests that torture is so prevalent as to make it more than a remote risk. Hence I do not accept that the applicant faces a real risk of torture if returned to Malaysia, now or in the reasonably foreseeable future.
[18] SUHAKAM cited in DFAT 2024, 4.9.
I have also considered whether the applicant faces a real risk of cruel or inhuman treatment or punishment or degrading treatment or punishment. The country information indicates that preventive detention and/or lengthy periods of detention without trial are possible under security, terrorism, crime prevention and dangerous drugs legislation.[19] However, the applicant’s profile does not raise national security, terrorism, or drugs concerns. The crime which he has admitted, while serious, is an ‘ordinary’ assault in the sense that it is unrelated to security, terrorism or drugs. Further, there is nothing to suggest that he would be considered for detention under crime prevention legislation. Therefore I do not accept that there is a real risk that he will face cruel or inhuman treatment or punishment or degrading treatment or punishment if returned to Malaysia.
[19] DFAT 2024, 4.11-4.16.
Considering the applicant’s circumstances and the relevant country information, and having regard to the findings of fact set out above, I find that there are not 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 the applicant will suffer significant harm as set out in s.36(2A) arising from legal proceedings for assault.
Economic hardship
Applying SZQRB to the applicant’s circumstances, the Tribunal has found that there is not a real chance of harm to the applicant on the basis of economic hardship. It follows that there is not a real risk of harm to the applicant arising from any implicit claim that he would suffer economic hardship.
I find that any economic hardship the applicant might experience if returned to Malaysia would not amount to significant harm for the purposes of the Act, because the harm would not result from any deliberate act or omission by any group or person done with the intention of causing him significant harm.
Conclusion
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the family unit
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   18 October 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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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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