2009759 (Refugee)

2009759 (Refugee) [2024] AATA 1548 (20 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2009759

COUNTRY OF REFERENCE: Malaysia
MEMBER:Garry Fitzgerald SC
DATE:20 February 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 February 2024 at 12:09pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – no Convention nexus – threats from loan sharks – property destruction – arson attack – fear of killing – threats of physical violence – return visit to Malaysia – effective protection measures – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
NABE v MIMIA (2004) 144 FCR 1
Prasad v MIEA (1985) 6 FCR 155
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 dependants.
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 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Malaysia, applied for the visas on 12 May 2019. The delegate refused to grant them protection visas on 5 June 2020, deciding that they did not satisfy s 36(2) of the Act.[1]
[1]The applicants gave the Tribunal, for the purpose of the review, a copy of the Department’s refusal decision record.
The applicants appeared before the Tribunal on 9 January 2024 (the first hearing) and on 9 February 2024 (the second hearing) to give evidence and present arguments.
The hearings were conducted with the assistance of an interpreter in the Malay and English languages.
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). 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.
Refugee
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).
Under s 5J(1), a person has a well-founded fear of persecution:
a.If he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
b.if there is a real chance they would be persecuted for one or more of those reasons; and
c.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.
Complementary protection
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 (Department or DHA), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent report from DFAT on Malaysia is dated 29 June 2021 (DFAT June 2021).
OTHER MATERIAL BEFORE THE TRIBUNAL FOR THE REVIEW
The Tribunal has also had regard to the documents contained in the applicants’ Department file ([number], as provided to the Tribunal by the Department) and contained in the applicants’ Tribunal file. The applicants were not invited for an interview by the Department.
The Tribunal has also considered the oral evidence and arguments presented by the applicants at the hearings, as well as further documents provided to the Tribunal after the first hearing referred to later in these reasons.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are:
a.whether there is a real chance that, if the applicants return to Malaysia, they will be persecuted for one or more of the five reasons set out in s 5J(1)(a), under s 36(2)(a) of the Act; and, if not
b.whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm, under s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality, country of reference and receiving country
The Department was satisfied as to the identity documents that the applicants produced. The Tribunal accepts that the applicants are Malaysian citizens. Accordingly, Malaysia is the country of reference and receiving country for their application for a protection visa.
The applicants’ background
Based on their application for a protection visa to the Department,[2] departmental records and their oral evidence at the hearing:
[2]Application for a protection visa dated 12 May 2019 (the Departmental application).
a.the first applicant is the daughter of the second applicant;
b.the first applicant is in her [age range];
c.the second applicant is in her [age range];
d.the applicants are ethnic Malay and of the Sunni Muslim faith;
e.the applicants lived in Malaysia in the town of [Town 1] in the state of Pahang;
f.[specified family members] and the second applicant’s mother still live in [Town 1], where they have lived for a long time;
g.another sister of the second applicant and her family have lived in Kuala Lumpur for about 20 years but they often travel back to [Town 1] on weekends;
h.the applicants have made three trips to Australia on Electronic Travel Authority (ETA) visas:
i.[in] December 2017 (staying about a month);
ii.[in] June 2018 (staying for over two weeks); and
iii.[in] February 2019 (when they last arrived in Australia, before they applied for protection on 12 May 2019).
i.while the application for review of her visa refusal was on foot, the second applicant travelled from Australia to Malaysia [in] August 2023 and spent over two and a half months in Malaysia, mainly in [Town 1] but also in Kuala Lumpur, for the purpose of attending her father’s funeral and dealing with the disposal of his property with her family;
j.the first applicant married her husband [in] October 2020;[3] and
k.the first applicant and her husband had a daughter on [date].[4]
[3]He is [name] (the first applicant’s husband). He is also an applicant to the Tribunal for a separate review of his protection visa refusal: Tribunal reference 1732220; Departmental reference [number]. His review is being conducted by the same member of the Tribunal. The first applicant has not given the Tribunal a copy of the marriage certificate.
[4]The first applicant has not given the Tribunal a copy of the birth certificate.
The Tribunal accepts these matters as true for the purposes of this review.[5]
[5]Subject to proper proof of the marriage and birth of the daughter.
The applicants’ claims for protection
Summary of applicants’ claims
At the hearing, the applicants said the only claims they wished to make for protection in Australia arose from a debt to loan sharks and a fire incident, referred to later in these reasons. The Tribunal’s own review of the materials before it does not disclose any other claim which clearly emerges from them.[6]
The applicants’ initial claims for protection
[6]NABE v MIMIA (2004) 144 FCR 1, [55, 68].
In their electronic application for a protection visa to the Department (which the first applicant completed), the applicants stated (in identical terms) that they left Malaysia because:
We leave our country because we had problem with shark loan . Before I go hiding from them because they always looking us . Another people from our family already run away from Malaysia . [7] Only we left . Because we don’t like to move another country . But after thats we had no choice because they keep looking us and they ask money from us . They start bullying us and destroy our property . [8] Until we live in scare and we take choice to move from our country. We sell everything we have and take all money here and start new life here . I hope this goverment can provide us to stay here lawfull as Australia is good country for people.[9]
[7]At the first hearing, the first applicant clarified that this was a reference to a distant relative who had left Malaysia as a result of a different loan shark debt.
[8]At the second hearing, the second applicant clarified that the bullying and property destruction were the loan shark debt and fire incident discussed later in these reasons, and nothing else.
[9]The Departmental application, at page 24. Reproduced as set out in the application (but not in capitals, as in the original).
They also stated (in identical terms) in their Departmental application that they had experienced harm in Malaysia as follows:
They always bullying us and destroy our property.[10]
[10]The Departmental application, at page 24. Reproduced as set out in the application (but not in capitals, as in the original). See also footnote 9.
They also stated (in identical terms) in their Departmental application what they thought would happen if they returned to Malaysia as follows:
They will kill us because we already run away from them.[11]
The Reasons
[11]The Departmental application, at page 25. Reproduced as set out in the application (but not in capitals, as in the original).
The applicants also gave the Tribunal an unsigned statement described as ‘Reasons’ (the Reasons). It was in English, yet the second applicant acknowledged at the hearings that she was not proficient in English. She could not read it. The first applicant said at the second hearing that she had written it in Malaysian, based on what the second applicant told her, and she used Google Translate to translate it into English. The Reasons provided further details about the alleged debt owing to the loan sharks and the fire incident, which will be referred to below.
Summary of the applicants’ evidence at the hearings
The applicants both gave evidence at the hearings.
They said towards the end of the first hearing that the Tribunal’s decision should be based on the oral evidence they gave at the hearings and the documents which they provided to the Tribunal (such as the Reasons), rather than on the earlier Departmental application. The second applicant confirmed this at the second hearing.
The main evidence was given by the second applicant who was allegedly directly and personally involved. The first applicant was a student in high school at the time of most of the alleged events and had no personal involvement in them.
The second applicant ultimately said[12] at the first hearing that:
[12]The second applicant gave evidence of three versions of these events, discussed later in these reasons. The version set out here is based on what she said at the end of the first hearing, when asked what her final evidence was about them.
a.she borrowed [amount] Malaysian Ringgit (MYR)[13] in cash from Chinese loan sharks[14] in a village near [Town 1] sometime in 2018 (the loan);
[13]About [amount] AUD. The exchange rate is 1 Australian Dollar (AUD) = 2.97 Malaysian Ringgit (MYR) (Get foreign cash), Commonwealth Bank of Australia, accessed on 9 February 2024 at described them as ‘Ah Long’.

b.she did so to make repairs to a [business 1] she had been running in [Town 1];

c.the loan was undocumented;

d.the loan was initially repayable in three weeks, together with interest of 5% per day;[15]

e.the [business 1] repairs were not done by the contractor she engaged, who disappeared and kept the money;

f.the loan sharks demanded repayment;

g.she went into hiding at her relatives’ homes in other parts of Malaysia to avoid the loan sharks;

h.she has never repaid any part of the loan or the interest;

i.on about 25 February 2019, her car[16] was set on fire while parked in the driveway of her house[17] in [a location] (near [Town 1]), which also damaged the house (the fire incident);

j.she suspected this was done by the loan sharks because of her failure to repay the loan;

k.her family (including the first applicant) did not know anything about the loan until after the fire incident; and

l.as a result of the fire incident, about two days later, the applicants made urgent arrangements to flee to Australia, arriving here [later in] February 2019.

[15]This is an effective annual interest rate of over 1,800%.

[16]At the second hearing, the second applicant gave evidence this was her former husband’s car, which he permitted her to use.

[17]At the second hearing, the second applicant gave evidence this was her former husband’s house, which he permitted her to use.

The first applicant said at the first hearing that:

a.the second applicant’s [business 1] was opened in 2014;
b.she was a student in high school until [a specified year];
c.she did not know about the loan until the fire incident, when the second applicant told her about it;
d.the fire incident occurred in late January 2019; and
e.as a result of the fire incident, the applicants fled to Australia.

At the second hearing, the applicants confirmed that the fire incident had occurred on 24 February 2019. They also confirmed that they had fled Malaysia as a result of the fire incident, with the second applicant saying that after the fire incident, she had urgently arranged through a friend for travel visas and tickets to Australia. She said she did so because of her fear of the loan sharks, whom she suspected had carried out the fire incident.

Other evidence

The applicants also gave the Tribunal a copy of the second applicant’s council-issued card for business operators and some photographs of what was said to be the second applicant’s car and house in Malaysia when they were damaged in the fire incident (the Photographs).

On 18 January 2024, after the first hearing, the applicants gave the Tribunal some CCTV footage, said to be from their neighbour in Malaysia and said to show two people carrying out the fire incident (the CCTV footage).

After the second hearing, the applicants filed with the Tribunal a copy of Royal Malaysian Police (RMP) report dated [later in] February 2019, together with a certified English translation (the police report).

The applicants’ claims – credibility and findings

The Tribunal has concerns about the applicants’ credibility and the reliability of their evidence.

Credibility

When assessing claims, the Tribunal must make findings of fact. In doing so, it has had regard to the difficulties faced by refugee applicants, including issues related to anxiety in the hearing. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.

On the other hand, the Tribunal is not required to make out the applicant’s case. It is the responsibility of the applicant to provide enough evidence to establish the claim to be a person in respect of whom Australia has protection obligations. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[18] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[19]

[18]Section 5AAA of the Act.

[19]MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.

All these matters have been considered in the following findings in these reasons.

The applicants’ credibility

The Tribunal found the second applicant’s evidence confused and confusing. It harbours serious doubts about whether the second applicant’s evidence about the loan and the fire incident can be accepted and relied upon. It does not accept her as generally credible.

The second applicant gave three different versions of the loan and fire incident to the Tribunal at the hearings.

The first version was given orally at the beginning of her evidence at the first hearing. She said initially and repeatedly that the loan was made in about April 2014, shortly after she opened the [business 1] in March 2014. She said the loan was necessary because the [authorities] had closed the [premises] due to [safety] concerns involving the repair of the [fixtures] and other repairs. Despite the lack of a trading history at the [business 1], she was then confident she could repay the loan and interest, but she never did. She ultimately closed the [business 1] in 2018. The fire incident occurred on 25 February 2019, almost five years after the loan was taken out.

The second version was given orally later in the first hearing. She said she opened the [business 1] in April 2014. She said the [equipment] was fine until 2018. She took out the loan sometime in 2018 to repair the [equipment]. She could not remember when in 2018 the loan was taken out. However, she confirmed again that the fire incident occurred on 25 February 2019.

The third version was set out in the Reasons. Here she stated that she opened the [business 1] in March 2018 (not 2014). Shortly after it opened, in March 2018, she took out the loan for the repairs. The repairs were delayed because of ‘insufficient construction materials’ and then the contractor blocked her calls. Unable to repay the loan, she ran away in June to December 2018 with the first applicant, initially to her mother’s house in [Town 1] and later to the houses of friends and siblings, also in [Town 1]. The fire incident occurred in January 2019.

At the second hearing, upon viewing the CCTV footage, the applicants accepted that the fire incident took place on 24 February 2019. [20] Nothing turns on any difference between 24 and 25 February 2019 as the relevant date for the fire incident; however, when the [business 1] was opened, when and why the loan was alleged to have been taken out and what happened and when, after she failed to repay the loan, are all material in considering the credibility of the evidence.
[20]The CCTV footage was, as best as the Tribunal can determine, and which the applicants accepted at the second hearing, timed-stamped with the date 24 February 2019. The police report later received by the Tribunal also records this as the date of the incident. The report comes from a statement by the second applicant to the police [later in] February 2019.
There were also inconsistencies in the second applicant’s other evidence.
At various times in her oral evidence, she said:
a.she did make a police report;
b.she did not make a police report because she was afraid of the loan sharks;
c.she could not remember if she made one. [21]
[21]At the second hearing, the first applicant said that a police report had been filed with the Tribunal. A check was made during the hearing, but no such filing could be located. The applicants were asked to file it after the hearing, which they did later on that day.
She also said at different times that she initially told the first applicant about the loan after the fire incident, and that she first told her a couple of months before it.
There were also inconsistencies about how she financed the trip to Australia in February 2019: in the Departmental application she stated she sold ‘everything we have and take all our money here’ (after the fire incident) but at the hearings and in the Reasons, she said her parents gave her the money to come here.[22]
[22]At the second hearing, the second applicant also said that she had sold her [business] equipment for about AUD1,000 after the fire incident, during the few days before she came to Australia. She did not know what happened with the house or car, which belonged to her former husband. She said she got most of the money for the trip to Australia from her parents.
When questioned about these different versions and inconsistencies, the second applicant said repeatedly at the first hearing that she could not remember details and that she had forgotten everything. She was unable to explain or clarify them.
The Tribunal accepts, based on the police report and the CCTV footage, that the fire incident occurred on 24 February 2019. This date is material to an assessment of the applicants’ credibility because they said they left Malaysia hurriedly, following and as a result of their fear over the fire incident. The second applicant said at the hearings that she decided to flee to Australia after the fire incident, and after that incident arranged with a friend to urgently obtain visas and tickets to Australia. The first applicant also confirmed that they had decided to flee to Australia after the fire incident. The applicants arrived in Australia [days later in] February 2019.
At the second hearing, in the light of this evidence, the applicants were asked to explain why they had applied for an ETA visa to come to Australia [in early] January 2019, some six weeks before the fire incident. [23] The second applicant said they had been thinking of coming to Australia before the fire incident, after the first applicant finished school. She was unable to explain the contradiction between her earlier evidence that they applied for visas after the fire incident and the record showing that they applied six weeks before it. The first applicant said she did not know why a visa had been applied for [in early] January 2019.
[23]According to Departmental movement records for both applicants.
The second applicant was also asked at the second hearing about the trip she made to Malaysia between August and November 2023, for over two and a half months. She was asked why she went (mainly) to [Town 1], near the scene of the loan and fire incident, if she had a genuine fear of harm of the loan sharks. She said she had to go, and that she stayed inside her parents’ home in [Town 1].
Finally, statements in the Reasons raise their own concerns. It is stated there – and was confirmed at the second hearing orally by the second applicant - that the applicants ‘ran away’ in June to December 2018 to friends and relatives’ houses in [Town 1] and other parts of Malaysia to escape the loan sharks. It is puzzling that the loan sharks would not find or even try to locate the applicants in [Town 1], as they were based in a village near that town. Moreover, the applicants travelled to Australia for just over two weeks in June 2018. The first applicant said that they came to Australia then to ‘look around’ and attend a wedding; the second applicant confirmed that they came for a wedding. This trip is not mentioned in the Reasons and is inconsistent with the flight described there. It also raises the question of why a protection application was not made while the applicants were in Australia then, if persecution by the loan sharks in Malaysia was genuinely feared at that time. When asked, the second applicant said she did not know about protection then.
Conclusion on the applicants’ credibility and findings
Given all these things taken together – the different versions of the events that the second applicant described, her inconsistencies, her contradictions, the applicants’ failure to apply for protection in June 2018 while in Australia, and the second applicant’s return to Malaysia in 2023, as well as the applicants’ responses when questioned about them – and absent independent evidence, the Tribunal is unable to be satisfied that it can rely on the second applicant’s evidence about the loan and the fire incident. The Tribunal is therefore unable to accept that the applicants had and have a genuine fear of persecution as claimed.
The Tribunal does not accept the second applicant as a credible and reliable witness. The Tribunal found her vague, forgetful, unreliable, contradictory and confusing as a witness. Based on her evidence, it does not accept that the loan occurred and that the fire incident was carried out by the loan sharks as she suspected.
Although the Tribunal did not have the same difficulties with the first applicant in her giving of evidence, her evidence was really limited to the occurrence of the fire incident, not the loan or the causes of, or perpetrators behind, the fire incident. Moreover, she was also inconsistent, as explained above, about when and why the applicants decided to come to Australia in February 2019.
The Photographs[24]show a severely fire-damaged car and a mildly damaged carport in front of a house. The CCTV footage[25] is quite indistinct, low resolution and taken at night but it appears to show two figures across a road, walking up and down the road and then apparently lighting something, which flares up at the front of a house. Neither of the applicants recognised the figures in the footage. It is not possible to confidently determine if the same house is shown in the CCTV footage as in the Photographs. The police report records the report by the second applicant of the fire incident on 24 February 2019 by ‘two men of indeterminate race’.
[24]The second applicant said her neighbour across the road took these photographs, shortly after the fire incident.
[25]The CCTV footage was alleged to have been taken from the same opposite neighbour’s house.
Based on the police report, the Photographs and the CCTV footage alone, the Tribunal is prepared to accept that the fire incident took place; but it is not prepared to accept that the loan was taken out or that the loan sharks were responsible for the fire incident.
At the second hearing, the second applicant said that both the house and the car did not belong to her; they were her long-divorced husband’s property, which he let the applicants use.
The only positive finding about the claims the Tribunal therefore makes is that the fire incident occurred on 24 February 2019, but it finds it was done by unknown persons for unknown reasons. The Tribunal does not accept the other claims.
The Tribunal does not accept that the applicants left Malaysia because they genuinely feared persecution there because of the loan and they genuinely fear persecution as claimed if they return there.
To be clear, the rejection of the applicants’ claims is of those made in the Departmental application, the Reasons and their oral evidence. The Tribunal does not accept that these claims are genuine. The Tribunal is not prepared to give the applicants the benefit of any doubt, except as to its findings on the fire incident.
REASONS FOR THE TRIBUNAL’S DECISION
Assessment of refugee criterion
The applicants will be refugees and have a well-founded fear of persecution if they establish to the Tribunal’s satisfaction, among other things, that:
a.they fear being persecuted for a refugee reason;
b.there is a real chance they would be persecuted for that reason; and
c.the real chance of persecution relates to all areas of Malaysia.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there is a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
This in turn involves considering the applicants’ claims and the relevant country information, in the light of the findings made above.
The Tribunal has not accepted the applicants’ claims and evidence as to the loan and the cause or perpetrators of the fire incident. It does not accept that their fears of harm arising from these reasons are genuine. Accordingly, the Tribunal is not satisfied that they will suffer any harm if they return to Malaysia for these reasons. In the Tribunal’s view, there is no real chance they will suffer serious harm in the foreseeable future if they return to Malaysia as a result of these reasons. The Tribunal concludes that the applicants’ fears of persecution expressed are therefore not subjectively held or are not well-founded.
The finding as to the occurrence of the fire incident does not alter this assessment. It has occurred, but the Tribunal does not know why or who did it. The Tribunal is unable to make any rational assessment of the chance of it or any similar harmful incident occurring to the applicants again in the foreseeable future. However, the Tribunal does not accept that it occurred because of any persecution of the applicants by loan sharks.
The applicants were also asked during the first hearing why the loan sharks would wish to find and do them any harm, in the foreseeable future, if they returned, over five years after the events they allege took place. Their answer was, in substance, that they might. The Tribunal finds that any such prospect is remote or fanciful.
In any event, the applicants’ refugee claims also fail for three other reasons.
All areas of Malaysia
The Tribunal is not satisfied that any real chance of persecution relates to all areas of Malaysia.
The loan and fire incident were confined to in and near [Town 1] in Pahang. On one version of the second applicant’s evidence, she avoided harm for six months from the loan sharks (based in a village near [Town 1]) by living with friends and family in [Town 1]. There were suggestions by the applicants that the loan sharks would find them, using their powerful networks; however, this was contradicted by their evasion of them for the six-month period and the lack of any evidence of threats made against or even attempts to locate the applicants through their remaining family members in Malaysia, including in [Town 1] itself. Moreover, the second applicant returned to Malaysia for two and a half months in 2023 and spent most of her time in [Town 1]. In the light of all this, it is not credible that there would be any real risk of persecution to the applicants by the loan sharks in all areas of Malaysia.
No refugee nexus
Section 5J(1)(a) of the Act states that a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’. The reason, or reasons, must be the essential and significant reason for the persecution: s 5J(4)(a) of the Act. Having regard to the material before it, the Tribunal is not satisfied that the harm claimed is for one or more of the reasons set out in s 5J(1) of the Act. There is no claim that the loan sharks are threatening the applicants because of their race, religion, nationality, political opinion or because they are members of a particular social group. It is clear from the evidence provided by the applicants that any claimed threat or potential for harm relates to fear by the applicants that they will be harmed if the money owed to the loan sharks is not repaid. This claimed harm arises because the second applicant claims to owe money to an illegal moneylender that she is unable to repay. This is the essential and significant reason for the harm that the applicant claims she will suffer. This is not one of the reasons enumerated in s 5J(1) of the Act.
While the refugee nexus of being a member of a particular social group can have a broad application, s 5L of the Act makes it plain that each member of the identified particular social group must share a characteristic and that characteristic must either be innate or immutable or so fundamental to a member’s identity or conscience that the member should not be forced to renounce it or it must be a characteristic that distinguishes the group from society. The characteristic cannot be the fear of persecution. In this case, the common characteristic of the social group would be persons in Malaysia who borrow money from illegal moneylenders and who cannot repay the loans. However, this is not a characteristic that could be described as innate or immutable to each of the persons. It is based on something each member has done based on their individual circumstances. Nor can this be described as something done by the person because it is fundamental to the member’s identity or conscience. There is nothing in the country information to the effect that being a debtor to an illegal moneylender is a feature that is recognised in Malaysian society as something that distinguishes that ‘group’ from other members of the community.
Effective protection measures
Under s 5J(2), a person does not have a well-founded fear of persecution if ‘effective protection measures’ are available to him or her in a receiving country. Under s 5LA(1), such measures are available to the person if protection could be provided to him or her by, among other things, the relevant State, which is willing and able to offer such protection. In the case of Malaysia, the relevant State agencies or emanations are the police and the courts. The RMP is generally a professional and effective police force, although there are concerns about corruption.[26] It has been recently involved in crackdowns on loan shark criminal gangs.[27] The Malaysian courts in most ordinary cases comply with the rule of law and legal procedure. [28] The Tribunal accepts that the police and the courts would be willing and able to offer protection against persecution to the applicants and could provide such protection if they were to return to Malaysia, by the relevant State through its courts (legitimate prosecution for any criminal acts by loan sharks) or by the police (investigation and prosecution against any threatened harm by loan sharks). Moreover, there is nothing to suggest that the applicants could not access such protection, which is clearly durable, and which consists of appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2). The applicants did report the fire incident to the police and sought their protection. Although it is not a complete or absolute guarantee of their safety at all times, the Tribunal nevertheless finds that effective protection measures, as set out in s 5LA, would be available to the applicants if they returned to Malaysia, so that they do not have a well-founded fear of prosecution as required by s 5J(2).
Summary of refugee assessment
[26]DFAT June 2021, para 5.5.
[27]DFAT June 2021, crackdowns on criminal gangs from October 2019, para 3.114; arrests of gang members in 2019-2020, para 3.116. DHA has also issued more recent country information on Malaysia, effective 14 September 2023, prepared by the Country of Origin Information Services Section (COISS) of that Department. This information notes police have responded to complaints of illegal moneylending activities (including harassment and intimidation) and conducted operations targeting illegal moneylending gangs, resulting in prosecution of persons (citing about 17 media reports of such operations and prosecutions between June 2020 and July 2023): at page 20, footnote 240.
[28]DFAT June 2021, para 5.18.
In summary, the Tribunal is not satisfied that the applicants are refugees and entitled to protection in Australia under s 36(2)(a) because, as set out above:
a.it does not accept the applicants’ claims of persecution arising from the loan and the fire incident as being genuine;
b.there is no real chance, in the Tribunal’s view, in the foreseeable future, if the applicants returned to Malaysia, of them being so persecuted;
c.moreover, the real chance of persecution also does not relate to all areas of Malaysia as required by s 5J(1)(c);
d.in any event, there is no refugee reason nexus as required by s 5J(1)(a), because there is no relevant particular social group; and
e.there are effective protection measures available to them as provided for in s 5LA.
Conclusion on refugee criterion
For the reasons given above, the Tribunal is not satisfied that the applicants:
a.are refugees within the meaning of s 5H;
b.have a well-founded fear of persecution within the meaning of s 5J(1); and
c.are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criterion
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal must consider the alternative criterion in s 36(2)(aa). In considering the complementary protection criterion, the Tribunal must consider whether the applicants will suffer ‘significant harm’, which is exhaustively defined in s 36(2A) of the Act (see the attachment).
As recited above, the Tribunal has not accepted as genuine the applicants’ claims and has rejected their claimed fears of harm if they return to Malaysia.
In Minister for Immigration and Citizenship v SZQRB, the Full Federal Court held[29] that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J.
[29][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], Flick J at [342].
Based on its findings and the discussion above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants’ removal from Australia to Malaysia, there is a real risk that the applicants will suffer significant harm, as required by s 36(2)(aa), because it does not accept their claims as genuine, so there is no real risk they will suffer significant harm.

The Tribunal therefore finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants’ removal from Australia to Malaysia, there is a real risk that they will suffer significant harm.
Accordingly, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
Assessment of family member
There is no suggestion that the applicants satisfy 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 applicants do not satisfy any of the criteria in s.36(2).
Protection in another country
There is no evidence before the Tribunal to indicate that the applicants have any right to enter and reside in any country other than their country of nationality, Malaysia. Accordingly, s 36(3) of the Act does not apply in this case.
Conclusion
For the above reasons, the Tribunal is not satisfied that Australia has protection obligations in respect of the applicants pursuant to s 36(2) of the Act. Accordingly, the Tribunal has concluded that the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Garry Fitzgerald SC
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 1548

20 February 2024

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