2008403 (Refugee)

2008403 (Refugee) [2024] AATA 2650 (3 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2008403
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Jessica Henderson
DATE:3 April 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 03 April 2024 at 8:42am
CATCHWORDS
REFUGEE – protection visa – Malaysia – debt to illegal moneylenders – gambling addiction – medical condition – particular social group – people with an acquired brain injury – physical, communication, and cognitive impairments – incapable of looking after own health and safety – unable to make reasonable judgments – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 25 May 2019. The delegate refused to grant the visa on the basis that the delegate did not accept the applicant’s claims to be at risk of harm from loan sharks in Malaysia.
The applicant subsequently suffered a significant medical event, which resulted in him having a guardian appointed by the State Administrative Tribunal. That medical issue and its consequences for the applicant’s ability to care for himself gave rise to new claims which were not before the Department.
The applicant appeared before the Tribunal on 13 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. At the commencement of the hearing it became apparent that the witness upon whom the applicant relied to give medical evidence to the Tribunal was unwilling or unable to give that evidence. It was unclear why she had not made the parties and the Tribunal aware of her position prior to the commencement of the hearing. The Tribunal was not prepared to proceed with the hearing in the absence of medical evidence about the applicant’s medical condition and future prognosis and adjourned the hearing in order to summons complete medical records for the applicant from each of his three treating hospitals.
The Tribunal received summonsed material from [Hospital 1] on 22 December 2023, and from [Hospital 2] on 28 December 2023. The Tribunal has conducted significant research into the applicant’s condition. The Tribunal now considers it appropriate to make a decision to remit the matter without a further hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes 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.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution in Malaysia for a refugee nexus reason or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of removal to Malaysia there is a real risk that the applicant will suffer significant harm.
Protection claims
Protection visa application
The applicant’s claims in his protection visa application were accurately summarised by the delegate as follows:
·The applicant became addicted to gambling while living in Malaysia and borrowed money from the bank, friends and loan sharks to support his habit.
·He was attacked by these loan sharks and hospitalised. He reported this attack to the police but no action was taken.
·He made many other police reports but the Malaysian police never arrested anybody.
·He cannot relocate to another part of Malaysia because those who wish to find him will be able to trace his location.
·He fears he will be killed because of his debts if he returns to Malaysia.
The applicant did not submit any evidence to the Department of the gambling, the loans, or any reported attack on him by his alleged creditors.
After considering the available country information about the police force and judiciary in Malaysia, the delegate was satisfied that there were effective protection measures available to the applicant and consequently s5J(2) of the Act applied and the applicant was not a refugee. The delegate also considered whether the applicant would face a real risk of suffering significant harm, but again decided that there was protection from an authority such that there would not be a real risk to the applicant.
The applicant applied for review of the decision on 18 May 2020. He did not provide the Tribunal with a copy of the decision, or any evidence. Before the matter was listed for a hearing the applicant suffered catastrophic medical problems which have left him incapable of giving evidence in support of his matter. As a consequence, the Tribunal has not even been able to confirm to its satisfaction whether the applicant received and read the decision under review and is on notice as to its content.
Applicant’s medical history and prognosis
The Tribunal understands the applicant’s recent medical history to be this. The applicant was working in a [workplace]. In January 2023 he suffered ear pain and was prescribed antibiotics. Ten days later he was admitted to [Hospital 3] as a priority one patient experiencing seizures, fever, and fluctuating state of consciousness. He was diagnosed with strep intermedius meningoencephalitis complicated by obstructive hydrocephalus. Multifocal cerebral abscesses were identified. He had seizures thought to be likely secondary to mastoiditis. He received extreme emergency treatment, including external ventricular vein insertions. He was intubated and ventilated.[1] There were subsequent problems with his tracheostomy with associated dysphagia and vomiting.[2]
[1] In patient case notes returned on summons from [Hospital 2]
[2] [Hospital 1] FEES Report dated 31 August 2023 returned on summons from [Hospital 1].
The applicant was subsequently diagnosed with an acquired brain injury and transferred to [Hospital 1] on 16 June 2023 where he remains an in-patient.[3] As of 20 June 2023 the applicant was reported by occupational therapy in the following terms:
[3] Letter to the Tribunal dated 27 November 2023 from [Dr A] reporting on the applicant’s condition and Goals of Patient Care records dated 6 July 2023 returned on summons from [Hospital 1]
Cognition:
- Using yes/no response with thumbs/up down and whiteboard
- Pt independently wrote name, age, DOB on whiteboard
- Oriented to hospital
- Oriented to year with C03, oriented to month
- Unaware of day or date
- Nil attempt with yes/no response with reason for admission
- Slow information processing speed
- Limited eye contact throughout, flat affect
- Following simple 1 stage commands
- Intact imitating gestures
- Easily fatigued
UL:
- Fatigued and closing eyes therefore unable to formally assess
- Observed using R) UL > L) UL spontaneously, ie scratching face
- Full PROM, increased tone wrist extension
- Proximal > distal AROM
- Impaired fine motor and coorindation R) UL, i.e handwriting
Seating:
- note redness on sacrum and mepilex in situ for protection
- pt SOOB in TIS w/c with LL's in external rotation impacting knees and foot positioning on foot
plates
- e-referral submitted to REC to review pressure care and LL positioning
E/ Pt tolerated ~15minutes of cognitive therapy this AM post Physio. Fatigues easily throughout.
Appears oriented to person, place, year and month. Ongoing slow processing speed evident
P/ ongoing OT input [4]
[4] Progress Note – Occupational Therapy dated 20 June 2023 returned on summons from [Hospital 1]
On 31 August 2023 the applicant was assessed by FEES which reported ongoing tracheostomy weaning and dysphagia management noting a high risk of aspiration pneumonia “given the severity of his dysphagia, impaired cognition, reduced mobility, respiratory status, and dependence on others for feeding.”[5]
[5] [Hospital 1] FEES Report dated 31 August 2023 returned on summons from [Hospital 1].
[In] September 2023 the State Administrative Tribunal found that the applicant was:
a.unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
b.in need of an administrator of his estate;
c.incapable of looking after his own health and safety;
d.unable to make reasonable judgments in respect of matters relating to his person;
e.in need of oversight, care or control in the interests of his own health and safety; and
f.in need of a guardian.[6]
[6] [Hospital 1] (Applicant) and [the applicant] (Subject) [reference number] 14 September 2023
The SAT consequently made orders for the Public Trustee to become the applicant’s plenary administrator and limited guardian pursuant to the Guardianship and Administration Act 1990 (WA) with the following functions:
(a) to decide where and with whom the represented person is to live, whether permanently or temporarily, including whether he should return to live in Malaysia;
(b) to determine the services to which the represented person should have access;
(c) to advocate in respect to passport and visa matters relating to the represented person's entitlement to a Malaysian passport and his visa and residency status in Australia;
(d) as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person;
(e) as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person, except proceedings relating to the estate of the represented person;
(f) to consent to the use of restraint to give effect to a decision of the guardian made pursuant to these orders and in the interests of the represented person's health and safety, on the following basis:
(i) where restraint is proposed, a medical plan must be developed setting out the purpose and circumstances under which restraint is to be used. The plan must be approved by a medical practitioner and, if it remains in place, be regularly reviewed;
and
(ii) a decision to use restraints should be made only after all reasonably available less restrictive alternatives have been considered and found not to be successful.
(g) The guardian is authorised to obtain relevant medical and allied health information in the conduct of its functions under this order;
As of 27 November 2023 the applicant’s condition and prognosis was described by [Dr A], Registrar, Rehabilitation Medicine at [Hospital 1] in the following terms:
His condition is currently stable, and he has undergone a period of rehabilitation at [Hospital 1].
[The applicant] has a combination of physical, communication, and cognitive impairments due to ABI.
The majority of recover (sic) occurs post ABI in the first 12-18 months with incremental recovery thereafter.
The last medical records provided to the Tribunal are dated 19 December 2023 and comprise an x-ray imaging request showing the tracheostomy and indicating pneumonia.[7] The reason for the testing appears from the records to be blood detected in the applicant’s sputum.
[7] Patient results returned on summons from [Hospital 2]
Country information
Country information about illegal loans and risk arising from them
Current country information for Malaysia is consistent with that which was relied on by the delegate in the decision under review. Malaysian police respond to threats and harassment from unlicensed moneylenders and some non-government associations offer assistance to loan shark clients. Loans from unlicensed moneylenders, typically referred to as ‘loan sharks’ or ‘ah long’ in Malay, are common in Malaysia.[8] Unlicensed money lending activities, including harassment or intimidation of borrowers, are offences under the Moneylenders Act (1951).[9] Individuals prosecuted under the Moneylenders Act face a maximum 1 million ringgit fine or five years imprisonment.[10]
[8] 'Largely pandemic-proof, loan sharks are swimming freely', Bernama (Malaysian National News Agency), 28 March 2023, 20230830133621; 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, sections 3.109-3.118, pp.40-42
[9] ‘Moneylenders Act 1951 (Malaysia)’, amended 15 April 2011, Attorney General’s Chambers of Malaysia, sections 5(2), 29AA, 29B(1)
[10] ‘Moneylenders Act 1951 (Malaysia)’, amended 15 April 2011, Attorney General’s Chambers of Malaysia
Police respond to complaints of illegal money lending activities, including harassment and intimidation, and conduct operations targeting illegal moneylending, resulting in the prosecution of persons under the moneylenders act and the penal code.[11] Between January and August 2021, police investigated 683 cases involving illegal money lending and arrested 801 loan sharks.[12] In December 2017, Malaysia’s central bank cautioned the public about illegal money lending activities conducted by companies using fake licences purportedly issued by the central bank, advising the public to report such instances to the police for investigation.[13] A non-governmental organisation, the Malaysian Muslim Consumers Association (PPIM), offers support for those encountering problems with loan sharks, including a call centre, website, and assistance settling debts.[14] The Malaysian Chinese Association’s Public Services and Complaints Department acts as an intermediary between loan sharks and Chinese Malaysian victims who are unable to repay debt, negotiating loan repayments with lower rates.[15]
Country information with respect to long term disability and incapacity
[11] 'Sarawak police on hunt for loan sharks hiring people to torch houses', Bernama (Malaysian National News Agency), 19 July 2023, 20230830141346; 'Kelantan police declares war against loan sharks', New Straits Times, 07 July 2023, 20230830141104; 'Massive crackdown on Ah Long: 38 unlicensed moneylenders nabbed between June 5 and June 15', New Straits Times, 16 June 2023, 20230830140644; 'Nine individuals arrested over threats made to "ah long" loan defaulters', Bernama (Malaysian National News Agency), 29 March 2023, 20230830140926; ‘Penang cops arrest ‘Ah long’ mule account holder over illegal RM2.67m loan’, Bernama, 9 July 2023, 20230822154031; ‘Suspected ‘Ah Long’ nabbed inside aircraft in Senai’, Bernama, 23 June 2023, 20230822153739; ‘Police arrest a team of Ah long thugs’, The Star (Malaysia), 30 March 2023, 20230822154203; 'Johor police nab five members of loan shark network', Malay Mail, 19 October 2022, 20221123151155; 'Police: 11 loan shark syndicate members arrested in Johor', Bernama, 22 July 2022, 20221123151903; 'Cops find ‘debt slaves’ working for Ah Long rings', Bernama, 30 July 2022, 20220801131146; ‘Terengganu police nab four Ah Long cum contraband cigarette sellers’, Bernama, 20 August 2022, 20221118164918; ‘Penang police: Loan shark gang busted in Bayan Lepas’, Reuters, 3 April 2022, 20220523162724; ‘Penang police nab 20 suspected loan sharks, including a Datuk Seri with alleged gang ties’, Malay Mail, 14 July 2021, 20210726150302; ‘Two illegal moneylenders nabbed in 'Ops Vulture'’, The Star Online (Malaysia), 12 March 2021, 20210312154232; ‘Police nab five ‘Ah Long’ for keeping victim captive in Kedah’, Bernama, 9 November 2020, 20201116130219; ‘Johor cops arrest seven for loan shark activities’, The Star, 3 November 2020, 20201116114714; ‘’Datuk’ arrested in Kuala Lumpur for posing as senior police officer’, Bernama, 18 October 2020, 20201116112655; ‘Johor cops open 398 investigation papers on loan sharks in eight months’, The Star Online (Malaysia), 1 September 2020, 20201116113908; ‘Cops detain 12 men over ‘Ah Long’ syndicate in Johor’, Bernama, 1 September 2020, 20201116131456; ‘18 nabbed over Ah Long activities in Selangor’, The Star (Malaysia), 10 June 2020, 20201116115902
[12] ‘801 loan sharks arrested this year, over RM2.92mil in loans’, Bernama, 9 September 2021
[13] ‘BNM warns of illegal money lenders, Bernama, 6 December 2017
[14] 3 ‘More expected to borrow from loan sharks’, The Star, 23 June 2020, 20201116122942; ‘Loan sharks sharpen their bite’, The Star, 20 January 2018, CXBB8A1DA22631; ‘PPIM urges govt to put an end to ‘ah long’ posters’, Bernama, 6 September 2018, CXBB8A1DA35970; ‘For Malaysia’s sake, consumers group seeks to save civil servants trapped in debt’, Malay Mail, 3 August 2017, CXC90406624589; ‘More than 10,000 people sought PPIM's help over Ah Long cases’, Bernama, 18 October 2016
[15] 4 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, section 3.114, p.41

Malaysia has a universal healthcare system that has integrated income protection support for low income groups; heavily subsidised and accessible to all Malaysians.[16] According to the Human Rights Council Special Rapporteur on extreme poverty and human rights, ‘despite a relatively low level of public expenditure on health, households receive protection from the financial risks of high health-care costs where care is accessible’.[17] According to the World Bank in 2018, only 1.4 per cent of households experience catastrophic health expenditure defined as larger than 10 per cent of total household expenditure, while only 2.5 per cent experienced health expenditures greater than 15 percent.[18] Malaysia has a two-tiered public-private health-care system, however around 70 per cent of specialists work in the private system resulting in shortages of critical staff in the public system, rising incidences of overcrowding, long wait times, delayed consultations and hospital admissions.[19]
[16] 'All The Social Safety Nets We Could Find For Malaysians In Times Of Trouble', The Rakyat Post, 15 June 2020, 20201116164636; 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, section 2.22 p.13
[17] 'A/HRC/44/40/Add.1: Report of the Special Rapporteur on extreme poverty and human rights - Visit to Malaysia ', UN Human Rights Council, 06 April 2020, p. 9
[18] 'Malaysia Economic Monitor, December 2018 : Realizing Human Potential', World Bank, The, 09 September 2022, p. 62
[19] A/HRC/44/40/Add.1: Report of the Special Rapporteur on extreme poverty and human rights - Visit to Malaysia’, UN Human Rights Council, 06 April 2020, p. 9
DFAT’s country information is light on the treatment of long-term disability sufferers but the Tribunal has had regard to a number of not for profit organisations and has drawn the following information:
Malaysia passed the Persons with Disabilities Act in 2008. The act affirmed that PWDs have equal access to public facilities, healthcare services, and recreational activities. It also created a National Council for Persons with Disabilities which makes legislative recommendations regarding disability law to the Malaysian government and promotes employment of people with disabilities. The council maintains a registrar of PWDs in each district. Registering as a PWD can prove eligibility for certain government services targeted towards people with disabilities (PWD Rights in Malaysia).
Registering as a PWD in Malaysia is a completely voluntary decision. Those who register are eligible to receive healthcare benefits, vocational and academic training in special schools and institutions, financial assistance, and work placement. To register, one must obtain a registration form from the Malaysian Department of Social Welfare, have it verified by a medical professional to affirm PWD status, and submit the form along with identification documents to the department (Information on Registration for People with Disabilities).
Malaysia ratified the 2006 United Nations Convention on the Rights of Persons with Disabilities, stating that “Malaysia acknowledges that the principles of non-discrimination and equality of opportunity as provided in articles 3 (b), 3 (e) and 5 (2) of the said Convention are vital in ensuring full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity, which shall be applied and interpreted on the basis of disability and on equal basis with others. Malaysia declares that its application and interpretation of the Federal Constitution of Malaysia pertaining to the principles of non-discrimination and equality of opportunity shall not be treated as contravening articles 3 (b), 3 (e) and 5 (2) of the said Convention.
Malaysia recognizes the participation of persons with disabilities in cultural life, recreation and leisure as provided in article 30 of the said Convention and interprets that the recognition is a matter for national legislation.[20]
[20] accessed on 9 January 2024
The Public Services Commission of Malaysia states that, for registration purposes, disabled persons are classified into seven main categories:
a.Category 1: hearing disability;
b.Category 2: visual disability;
c.Category 3: physical disability;
d.Category 4: learning disorder;
e.Category 5: speech disorder;
f.Category 6: mental disorder; and
g.Category 7: various; for those who have more than one type of disability and/or are not suitable to be classified under any of the other categories.[21]
[21] Public Services Commission of Malaysia - Persons With Disabilities (spa.gov.my) accessed on 9 January 2024
Based on the applicant’s medical records he is likely to be classified as Category 7: Various.
There does not appear to be an equivalent of Australia’s Public Trustee in Malaysia. However, there does appear to be some support for those who are caring for people with disabilities.[22]
[22] MyGOV - OBTAINING FACILITIES, WELFARE & HEALTH CARE | Getting Welfare Assistance | Support Services | Support Services for Persons with Disabilities (malaysia.gov.my) accessed on 9 January 2024
Consideration and Findings
The Tribunal is prepared to accept that the applicant owes money to illegal lenders in Malaysia. The country information for Malaysia indicates that a very significant number of individuals in Malaysia do borrow money from illegal lenders. Without regard to the applicant’s acquired brain injury, the Tribunal would have had serious doubts about any risk to the applicant from such illegal loans, because the country information suggests that there is state protection available. The Tribunal accepts that it is possible that the applicant may have persuaded the Tribunal to the contrary had he had the opportunity to appear at a hearing. However, the Tribunal notes that the applicant did not provide any evidence in support of this claim when it was before the Department. After the Department’s decision the applicant had a period of three years before the onset of his medical condition in which to provide further evidence of his claim to the Tribunal but did not do so.
The Tribunal is also prepared to accept that the applicant had a gambling addiction. The Tribunal would have considered the best evidence in support of this claim to be the oral evidence of the applicant at a hearing, which is now not available to the Tribunal. The Tribunal has the applicant’s assertion that he has a gambling addiction, and it is not a flattering self-assessment. The Tribunal has no evidence to suggest that the applicant does not have a gambling addiction. In the circumstances, the Tribunal is prepared to proceed on the basis that the applicant would, had he had the opportunity, have persuaded the Tribunal that he had a gambling addiction.
The applicant’s claims are now complicated by the acquired brain injury which the Tribunal accepts that the applicant suffered, which renders him:
a.unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
b.in need of an administrator of his estate;
c.incapable of looking after his own health and safety;
d.unable to make reasonable judgments in respect of matters relating to his person;
e.in need of oversight, care or control in the interests of his own health and safety; and
f.in need of a guardian.[23]
[23] [Hospital 1] (Applicant) and [the applicant] (Subject) [reference number] 14 September 2023
The applicant’s ability to act reasonably and his ability to protect himself against agents of harm has clearly been compromised.
The Refugee criteria
The applicant’s claims as set out in his protection visa application do not, on the available evidence, arise because of the applicant’s race, religion, nationality or political opinion. The Tribunal has contemplated whether the applicant is a member of a particular social group comprising people who owe money to illegal moneylenders but does not consider elective personal debt to be an immutable characteristic for the purpose of the Act.
The Tribunal has considered whether the applicant’s alleged addiction to gambling is an immutable characteristic. A gambling addiction could possibly comprise an immutable characteristic if the Tribunal were satisfied that it was a true addiction in the sense of being an involuntary compulsion that was inherent or involuntarily acquired. That is further than the Tribunal is willing to go on the available evidence.
In any event, the claimed risk to the applicant is not for the essential and significant reason of his membership of a social group comprising gambling addicts. It is fundamental to the claimed harm that the applicant is in debt to illegal moneylenders, which is not, in the Tribunal’s view, an inevitable consequence of a gambling addiction.
The applicant’s acquired brain injury is unquestionably an immutable characteristic, and the Tribunal has considered whether the applicant may be persecuted for the essential and significant reason of having an acquired brain injury.
The State Administrative Tribunal has made a declaration that the applicant is incapable of looking after his own health and safety and in unable to make reasonable judgments in respect of matters relating to his person. The declaration included the SAT’s findings that the applicant is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate, and in need of an administrator. There is no evidence before this Tribunal to upset those findings.
Considering the applicant’s claims for protection cumulatively, both the applicant’s debt to illegal moneylenders and his gambling addiction present an unusually significant risk to the applicant because of his membership of a particular social group comprising people with an acquired brain injury. The brain injury prevents the applicant behaving reasonably or self-protectively. It renders him extremely vulnerable to agents of harm.
Further, the Tribunal understands from the country information surveyed above that the nature of the applicant’s brain injury may result in discriminatory withholding of state protection. The brain injury itself is a non-visible condition which affects behaviour and thought processes. The Tribunal understands that the symptoms can present as poor decision making. It is not far-fetched or fanciful to contemplate that state protection will be compromised by the appearance that the applicant is at risk because he is making poor choices.
An additional layer of risk is created by the applicant’s special vulnerability, being his physical ill health and need for care. His economic situation will be marginal in Malaysia because of his inability to work, the limited social support available in Malaysia, and the significant ongoing costs of his medical treatment. The margins for error within which he operates will be smaller than others in Malaysia, and an event with a relatively small economic impact may yet result in serious illness and death for the applicant.
The Tribunal is satisfied that there is a real chance that the applicant will be physically and emotionally harmed by his creditors and the predators who look to take advantage of gambling addicts and vulnerable persons to a more significant extent than he would otherwise have been for the essential and significant reason that he has an acquired brain injury. The Tribunal is also satisfied that there is a real chance that there will be a discriminatory withholding of state protection for the essential and significant reason that the symptoms of his acquired brain injury will make him an unsympathetic complainant, and indeed may lead him to further unlawful acts associated with payment of his existing debt and any future gambling debts.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Jessica Henderson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2650

3 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice