2010566 (REFUGEE) [2025] ARTA 1587 (18 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2010566
Tribunal:General Member S Collins
Date:18 June 2025
Place:Melbourne
Decision:The Tribunal affirms the decisions not to grant the applicants protection visas.
The applicants request ministerial intervention.
Statement made on 18 June 2025 at 09:30am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – persons who lack wealth – employment – fear of torture – fear of killing – period of unlawful residence – state protection – request for Ministerial Intervention – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v The Commonwealth (1999) 197 CLR 510
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs, Appellant S396/2002 v Minister for Immigration and Multicultural Affairs, [2003] HCA 71 9 December 2003
Chan v MIEA (1989) 169 CLR 379
Chenafa v MIMA [1999] FCA 1432
CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97
DQU16 v Minister for Home Affairs [2021] HCA 10
DZW17 v MICMA [2023] FCAFC 177
EJC18 v MICMSMA [2020] FCCA 3171
Guo Wei Rong and Pan Run Juan v Minister of Immigration [1996] FCA 1263
Lo v MIEA (1995) 61 FCR 221
Magyari v MIMA (Federal Court of Australia, 22 May 1997) Velmurugu v MIEA [1996] FCA 1499
Mehenni v MIMA (1999) FVA 789
MIAC v Anochie (2012) 209 FCR 497
MIAC v MZYYL (2012) 207 FCR
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Guo Ping Gui (1999) FCA 1496
MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MIMA v Sarrazola (2001) FCA 263
MIMA v Zamora [1998] FCA 913; (1998) 85 FCR 458
Morato v MILGEA (1992) 39 FCR 401
MZAAD v MIBP [2015] FCA 1031
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Ram v MIEA (1995) FCR 565
SZDGB v MIAC [2006] FMCA 341
SZLVZ v MIAC [2008] FCA 1816
SZNRZ v MIAC [2010] FCA 107
SZSHK v MIBP [2013] FCAFC 125
SZSKC v MIBP [2014] FCCA 938
SZVVE v MIBP [2015] FCA 837
Velmurugu v MIEA [1996] FCA 1499Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 June 2020 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 nationals of Malaysia applied for the visas on 16 February 2020. The delegate refused to grant the visas on the basis that on the basis that the applicants were not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal
The applicants appeared before the Tribunal on 22 April 2025 and 10 June 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicants are entitled to protection on the grounds of victimisation by illegal money lenders and economic hardship. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
There are two applicants. The first-named applicant (“A”) was born in [specified year] in Ipoh, Perak, Malaysia. At the hearing, he said that his parents are deceased and he has [number] siblings all of whom living in Malaysia. His de factor partner is the second-named applicant (“B”). He was married before and is now divorced. He said his current relationship with B commenced about 15 or 16 years ago. He describes B as his wife but they are not legally married. He has no children. He has no family in Australia other than B. Before coming to Australia, he lived in Perak. He completed high school. His last employment in Malaysia was as the manager and owner of a factory which specialised in making [products 1] and he employed about 10 people.
A visited Australia briefly in 1994 and in 2009. He last arrived in Australia [in] August 2012. He submitted his application for a protection visa for both applicants on 16 February 2020. He lives with B in in [Town 1]. They both worked on farms in the [Town 1] area and recently [started occupation 1 together]. He does not speak English (or at any rate he has very basic English language skills). His main language is Cantonese.
B was born in [year]. She has no family in Australia other than A. She has [number] siblings who all live in Malaysia. She has little English fluency and her primary language is Cantonese. She also speaks Mandarin. She described herself as Christian. Her last employment in Malaysia was in A’s company as a salesperson. She completed primary school. She said she had been in a de facto marital relationship with A since 2009.
Reasons for seeking protection
In the application for a protection visa, A wrote that he was seeking protection because:
I was running a business in Malaysia for almost 3 years.
During the time I experienced good and bad times financially and borrowed money on a number of occasions to keep the business running. My business was my life and I needed to keep it going so when I had financial issues, lack of cash, I borrowed again expecting to be able to recover like I had done in the past when I borrowed for survival. This time was different. My business did not recover and as a consequence I did not repay the loan. This led to the business closing because I could not pay the bills. It was a traumatic time since I had to terminate all the employees and try to find a way to repay the money I borrowed. No matter how hard I tried I could not find the money to repay the debit. I borrowed from the black market and they are unforgiving. I was now receiving threats of harm and possible death if I did not repay the money.
We applied for a visa to Australia and were granted. This was a day of great relief for us and we departed within a few days to Australia. Once here our priority was to survive and hide from the harm. We have been in Australia for 10 years now and have not had a visa since our visitor visa expired. The problem in Malaysia will not go away and we shake in fear every time we think about having to go back there. A friend recently suggested we apply for a protection visa so we sought a migration agent to apply for us. While we are in Australia we feel safe and have not had issues. The lenders cannot find us here and this has given us peace.
We have received death threats from the people who lend us money.
They are powerful and cannot protect us
Anywhere in Malaysia is unsafe. As I've said they are very powerful.
We will be tortured and later on die.
Torture and death
Police are corrupt and can be bribed by these people.
Anywhere in Malaysia is unsafe
B also provided reasons for seeking protection in the application:
My husband borrowed money for our business and cannot repay. So they are threatening us that they will kill us when we don't repay them
We were threatened to be killed.
You cannot trust anyone.
Anywhere is unsafe in Malaysia.
Tortured and later on death.
Nobody can protect us. These guys are powerful and can pay thepolice to find and surrender us to them.
Anywhere is unsafe in Malaysia.
Procedural history
The application dated is dated 16 Feb 2020. The delegate’s decision refusing their application is dated 19 June 2020. The applicants submitted a review application to the Tribunal on 24 June 2020. A pre-hearing information form was sent to the applicants on 12 December 2024. A hearing invitation was sent to the applicants on 21 January 2025 to attend a hearing scheduled for 11 February 2025. The applicant’s representative requested an adjournment on the ground that he was acting as a representative in several other applications listed for hearings on for the same day. There was an in-person hearing on 22 April 2024 and a further in-person hearing on 10 June 2025.
Documents provided to the Tribunal:
A provided the Tribunal with a statutory declaration sworn 11 March 2025:
1. I borrowed money from loan sharks.
2. I gave them blank company checks as collateral.
3. I managed to roll over payments for 1–2 months initially.
4. I faced constant harassment and threats from loan sharks and Eventually had to wrap up business and flee.
5. I ran a [product] business manufacturing [products 1]. Operated business for approximately 15 years.
6. My Business started around [year] as an agent taking orders and earning commissions.
7. Later opened my own factory to take orders directly. I began with a small office in town for walk in customers and was an agent first. At first as an agent I would get an order and then I would give it to manufacturer and make a commission Then I opened my own factory and took orders directly After some time I had my own factory for the [production work].
8. The Factory was located in Ipoh, Perak, Malaysia.
9. I Started around [year] using personal funds.
10. First I Rented a small factory space
11. I Paid rent (initially RMB 1,600, increased to RMB 2,000 after three years).
12. I Gradually purchased [equipment] and raw materials and Expanded the workforce, with 10 employees ([genders and occupations specified]).
13. Suppliers only sold me raw materials if I paid upfront in cash
14. I started borrowing in 2008 due to financial struggles.
15. For a few years I was able to manage the business with the income and about 2008 I started borrowing. I borrowed [amount] RMB and managed to repay in about 3 months.
16. [Mr A] Is the person I borrowed from interest is 20% per month. He gave me cash. He took the first month interest and only give [amount] I knew him through friends He came to my factory and Introduced himself. He convinced me to borrow from him
17. The First loan I Borrowed RMB [amount] from [Mr A], repaid it in three months
18. Interest rate was 20% per month.
19. I Received only RMB [amount] after first-month interest deduction.
20. Borrowed another RMB [amount] from [Mr A], repaid half, then borrowed RMB 10,000 more
21. After deductions, I only received RMB 8,000, resulting in RMB [amount] debt. Then I Struggled to fully repay the loan.
22. So I Borrowed RMB [amount] from another lender, "[Mr B]." And After deductions, received RMB [amount]. I Used these funds to partially repay [Mr A] (RMB 5,000), still owed RMB 10,000.
23. Now I owed [Mr A] RMB 10,000 and [Mr B] RMB [amount] (total RMB [amount] debt). I Borrowed RMB [amount] in 2011 to pay workers and received the [amount] from [Mr B]. meaning After the deduction of the first month interest I received RMB [amount]
24. This was [amount] to pay my workers and I knew I could not afford it. The lender gave me [amount] and I owed [amount] used the money to pay the workers [amount] approximately and still needed the workers to finish the [jobs]. But I Still owed the supplier about [amount] Ringgit
25. I had to Stop my business and leave for my safety I came to Australia and can live quietly and hide and be safe from these people who want to harm me
26. The [Mr B] kept on calling me and harassing me and coming in person to threaten me.
27. The day I left for the airport they came to my house already. My sister told me this. 28. After that visit my sister moved to another place so she can be safe.
29. Once you borrow money If you don’t pay, they will punch you and beat you and it gets worse the longer you owe the money.
30. When I realised, I could not service the debt I planned to go to Australia So I could go to Australia I sold my gold and borrowed money from my sister and I sold my car and used what Little savings I had and made enough to come to Australia
31. I Arrived in Perth [in] September 2012 and went to Darwin for a few months, then moved to [Town 2], Victoria.
32. My Visa was ETA it was Cheap and fast so just needed money for my airfare My sister gave me 5000 Ringgit to help me.
33. I Came to Australia [in] September 2012 and I arrived Perth. I came to Australia on [named airline]. Then I went to Darwin for a few months and then to [Town 2] Victoria
34. My sister was [an] employee of a [business 1] She has pension now called ([name]) and is retired
35. I give her money now to help if she needs it.
36. If I am to go back they will take me and beat me up and come back often to beat me up until I pay them and if I cant pay they will kill me.
37. I cannot earn income at my age and my partner will struggle to find work but this will put her at the highest risk also
38. I will starve to death if I am returned to Malaysia
39. I took my partner [B] with me to Australia and we were a couple for 3-4 years before leaving Malaysia
40. My partner worked in the business with Me and was in sales Since coming to Australia together We were a couple for 3-4 years
41. The lenders all know her and she was present at the time of all the loans. If we have to go back they will cause harm to both of us. We will be beaten often and my partner will be taken into prostitution and slavery and forced to work for them like this.
42. We were threatened verbally before we left Malaysia. I was warned that if I dont pay that if you try to be funny and try not to pay something serious will happen to you. This happened at the end of July 2011.
43. They were asking for the interest but I went to see them to talk to them and they threatened me. This threat was serious. It happened end of July 2011. I was supposed to pay 10,000 for the interest but I paid nothing
44. If we go home we have no money No superannuation or pension Nowhere to live, We will not have a house to live in If no job and I cannot work and My partner cannot find work then we will die from no food
45. If I have to go back to Malaysia this is certain death
46. My sister is staying with relatives with 2 houses and has little income with her pension.
47. If I go back, they will find out and cause trouble for the relatives as well. They are old people and I can’t put them through it.
The applicant’s representative provided the Tribunal with Australian Bureau of Statistics information about life expectancy (2021 to 2023): life expectancy at birth was 81.1 years for males and 85.1 years for females in 2021- 2023, a slight decrease of 0.1 years for males and 0.2 years for females from the previous year (2020-2022).
He provided a document entitled ‘Malaysia Aging and Retirement Survey Wave 2021 to 2023 from the University of Malaya’. It is 143 pages and is described as a survey conducted by the Social Wellbeing Research Centre with the purpose of collecting ‘nationwide longitudinal micro-level data on aging and retirement” and involved face-to-face interviews with individuals aged 40 years and older in Malaysia.
Representative written submissions
The representative also provided submissions in writing. He provided written submissions to the Tribunal before the first hearing (‘first submissions’) and two further sets of submissions a few days after the final hearing; one was on membership of particular social group (‘second submissions’); and the last was on general issues including a request for ministerial intervention (‘third submissions’).
The first submissions are as follows:
Effects of Relocation in Thailand (sic)
[A] is an aged man born on [date]. Currently he is [age] and has had some health issues.
He has no family to live with in Malaysia because they are all old and limited money and are fearful of the retaliation from the money lenders so will be forced to relocate for his safety. Once he relocates in Malaysia he will be on his own with his partner.
Finding work in Malaysia at his age will be impossible. His partner will struggle to find work and the outcome will be extreme poverty and likely death from either ill health or starvation.
He will not have access to retirement benefits and would be forced to try to find work, whatever he can do to survive. This will be rare and at his age and any onset of illness will affect his adversely leading to death or serious disability with no money to pay for medical treatment. Survival will be extremely difficult if not impossible for [A].
Currently he is working on a farm in [Town 1] in Australia. Regardless his skills in Malaysia he will not find work at his age.
If [A] s sent to Thailand the opportunities for this farm occupation are non-existent. His partner is terrified at that prospect and fearful of having to work as a prostitute to survive.
The options for other work are limited for [B] has no trained skills and is also a farm worker.
The right to live and survive for [A] AND [B] is dependent on [B]’s ability to earn money to allow her to support her partner [A].
If [A] is returned to Malaysia he will have to relocate and then will be deprived of family support and will only have the option to try to find work to earn a living and this will in turn force him into a life of extreme poverty and suffering.
With no relatives around him or close by he will be isolated and could easily die quickly from starvation or illness having no money to pay for medical treatment.
[A] is at the age where labour force participation rates decline rapidly and given his health and age he will find it extremely difficult if not impossible to find any work that will allow him to live a life with security, food, accommodation and health care.
Retirement age in Malaysia is 60 years of age. It is still possible to work after 60 if you can find an employer to hire you. However this is limited and rare and will depend on the skills and occupation. Employers will have concern considering mr [A] with his problem with the
[money lenders] who would come looking for him at the work place.
This add further complication for [A] finding work.
Having no family in the other area of Malaysia means he will be on his own and incapable of securing assistance from his family at a time when he will come to need it most.
When [A] reaches the age where he needs care he will not have any extended family to support him because they are all older than him and most likely will be deceased at that time. This will be cruel and inhuman treatment and punishment for him given he will be able to access aged care services in Australia regardless he has no family here.
The isolation from family will have a serious impact on [A] and place him in a position of isolation, self-dependency and likelihood of no employment or money to provide for himself
Those aged workers in Malaysia are almost entirely working in their own businesses and earn little income per month which is less than 2000 RMB .
MALAYSIA AGEING AND RETIREMENT SURVEY WAVE 2 (2021–2022) SURVEY REPORT
Overall, 45% of respondents were still working, 62% of male respondents and 32% of female respondents. Among those aged 60 and older, the percentage working ranged from 28% among those aged 60–69 to 5% among those aged 80 and older. However, three-quarters of male and 85% of female respondents worked in their own businesses and/or as own-account worker and/or self-employed.
Nearly 80% of respondents reported having income, of which more than 70% had a net monthly income of less than RM2,000 or $476 (RM4.20 = $1.00) and nearly 50% cited public transfer payments as one of their sources of income.
This represents the fate of [A] given he has virtually no other options on employment or family support with family businesses.
Life expectancy in Malaysia is is life expectancy at birth trending?
Data as of 2024
These figures indicate how long a baby newly born in the reference year is expected to live for.
Both sexes
Overall (across all ethnic groups)
75.2 years Male
73 years Female
77.8 years
• Life expectancy for a male in Malaysia is 73 years of age.
This will impact on [A] s life if he is returned to Malaysia. The average life expectancy in Australia is Males: Life expectancy at birth for males was 81.1 years in 2021-2023.
o Females: Life expectancy at birth for females was 85.1 years in 2021-2023.
At a time [A] is approaching [age] he is [compared to] the average life expectancy in Malaysia. if he is allowed to remain in Australia he has a life expectancy of 81.1 years and maybe more given the health care and options to work.
[A]’s claim for protection is supported by the Universal Declaration of Human Rights Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is the foundation of international human rights law. Proclaimed by the United Nations General Assembly in 1948, it was the first internationally agreed statement of the fundamental human rights to which all human beings are entitled. The Declaration is not a legally binding treaty but rather an aspirational statement which aims to set “a common standard of achievement for all peoples and all nations.” However, the Declaration is an extremely influential document and is widely regarded as the standard by which we measure compliance with human rights principles.
Article 14 of the Declaration states that “Everyone has the right to seek and to enjoy in other countries asylum from persecution And futher supported by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
[A] s appeal is further supported by the: International Covenant on Economic, Social and Cultural Rights
Article 6
1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
Article 11
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:
[A] is Especially supported by Article 11, which requires everyone to have an adequate standard of living of which he will be deprived of if sent back to Malaysia.
Refugees and international law and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’).
Key protections Non-refoulement
Under article 33 of the Refugee Convention, refugees cannot be sent to a place where they may be persecuted. This fundamental principle is known as non-refoulement.
This principle now also applies to places where a person may suffer torture or other cruel, inhuman or degrading treatment. The principle is now considered to apply even to countries which have not signed the Refugee Convention .Countries who have signed the Refugee Convention also cannot send a refugee overseas (or ‘expel’ them) except if they pose a risk to national security or public order.
Since Sending [A] back to his home country Malaysia will place him at serious risk of cruel or inhuman treatment or degrading treatment Refugees and international law support his appeal. Cruel treatment will be no money, no job, no family to provide support when needed and a life of isolation with no real prospects of employment and survival.
Inhuman treatment
Guide to refugee law in Australia Chapter 10 states. The definitions of both ‘torture’ and ‘cruel or inhuman treatment or punishment’ refer to ‘severe pain and suffering’, although ‘pain or suffering’ can meet the definition of ‘cruel or inhuman treatment or punishment’ in some circumstances.
(Severe) pain or suffering
To amount to cruel or inhuman treatment or punishment, an act or omission must cause either ‘pain or suffering’ or ‘severe pain or suffering’, which can be either physical or mental.
The act of sending [A] to Malaysia will result in him suffering. Mental and physical pain will be definite outcomes.
[A] is seeking the Tribunal’s decision to remit his visa for grant due to the highly likely outcome of significant harm if sent back to Malaysia.
The total isolation from family, combined with his age and difficulty finding work in a new and strange place, lack of skills which is highly likely to force him into extreme poverty and imminent death, and further degrading his mental health and freedom and the isolation and suffering he will incur when living with no family to fall back on to support him provide the basis for remitting his visa for grant.
Medical Tests
For the second hearing, the applicant’s representative submitted a document from A’s GP which contained the results of various medical tests concerning As’ overall health. It contained very few conclusions. According to the report, A has moderate hypercholesterolaemia. There is a reference to A being in a pre-diabetic condition.
At the second hearing, the applicant’s representative said that he asked the GP for a full report and he was provided with this document. He said that he asked for a medical opinion about A’s instructions to him that A had mobility issues. The representative was asked whether he was seeking an adjournment so that he could obtain a report which contained conclusions about A’s mobility and other medical issues. The representative said that his instructions were that A’s mobility was such that A could no longer engage in farm work and that he had trouble walking distances and carrying things. The Tribunal asked the representative whether he understood those instructions going so far as asserting that A had mobility issues that were more serious or outside the range expected of a [age]-year-old man; if there were not his instructions, the Tribunal indicated to the representative that the Tribunal said it would accept that [an age] year old man would have mobility issues, subject for further evidence from A about his health. The representative said that he was not seeking an adjournment.
Evidence at the hearings
The Tribunal pointed out to A that he had been living outside of immigration control for 8 years. He was asked why he delayed making an application for protection until 2020. A said that he did not seek advice about his immigration status until 2018 or 2019 and he did not know about protection visas until he was introduced to a migration agent.
The interpreter explained that the names of the lenders referred to in A’s statutory declaration and in his evidence were in fact simply [names specified] and that the prefix [used] is a respectful way to refer to someone’s name in Cantonese. To avoid confusion, the Tribunal will refer to ‘[Mr A]’ and “[Mr B]” ([detail deleted]) as’ [Mr A]’ and ‘[Mr B]’ respectively.
A said that [Mr A] was a money lender and involved in finance. He was introduced to [Mr A] by a friend. He said he did not know much about [Mr A]. He said that he borrowed money from [Mr A] at a very high rate of interest in 2012. He said that his business was in trouble and he used the money he borrowed from [Mr A] and later [Mr B] to pay wages and suppliers. He said that he knew that money lenders charged high rates of interest and they could use violence to see that they were repaid. He said that when he borrowed money from [Mr A], he was told that “there would be trouble” if he did not repay him, “bad things would happen”. A said he was very stressed by [Mr A]. He said that he would visit A’s office frequently asking for money.
He said that he then needed money to repay [Mr A]. He was introduced to [Mr B] by a friend. He said that he knew [Mr B] was an illegal money lender. They did not discuss terms. He said [Mr B] would lend him money every month.
He said that by 2012, he was in so much debt that he could not repay either [Mr A] or [Mr B]. He said that he owed [Mr A] RM 10,000 and [Mr B], RM [amount] but this would not have included interest.
He said he sold some gold for RM 6,000 and borrowed RM 5,000 from his sister.
He said that one on occasion, [Mr B] came to his office and shouted at him and banged on his desk and said he would teach A a lesson. A said he was scared because he could not pay him back. He said that this happened a month before he came to Australia.
He said [Mr A] would come by the office every day and he also shouted at him and also banged his desk. A said [Mr A] told him to pay him in a week.
A said that he and B then decided to come to Australia. They got rid of their phone numbers. He said that he has not heard from either [Mr A] or [Mr B] since he came to Australia. He said that as far as he knows, his siblings have not been contacted by either money lender. He said he talks with his sisters over the phone regularly.
He said that about a month after he arrived in Australia, he called a former neighbour who told him he saw people outside his old house.
A said at the second hearing that the interest rate was 18% a month for both money lenders. He said that he is concerned that he would be hurt by either of them if he were to return to Malaysia.
He said that the statutory declaration was wrong when it said at para 27 that he was told by his sisters that someone had come to house the day he left Malaysia; it was in fact his neighbour who told him this.
A said that the statutory declaration was also wrong at paragraph 28 when he wrote that his sister moved to another place to be safe. He said that in fact his sisters did not know about the lenders. He was asked why he wrote this and he said that his sister thought that if he got into trouble then she needed to take precautions just in case.
As to paragraph 28, where he wrote that he would be punched and beaten by illegal money lenders, he said that neither [Mr A] nor [Mr B] threatened him with violence but he believed they would hurt him because they shouted at him and banged on his desk.
A said that he has health issues. He has hypertension for which he takes medication. He was asked about his mobility issues. He said he had to stop working on farms and is now [an occupation 1]. He said that when he is driving, he has lower back pain and pain in his ankles. He said that he experiences joint pain but he has not consulted a doctor about it.
He said that he used to work on farms picking [fruit]. In the [an occupation 1] position, he says that he and B earn about AUD 1,800 a week. They rent an apartment for AUD 300 a week. He said that he has no pension in Malaysia and does not have much money in bank accounts in Malaysia.
B’s evidence
B said that in the [an occupation 1] business [they share specified roles]. They used to work on farms but A was not fit enough for it. She said he was problems walking distances and going shopping. She said that they came to Australia because A owed too much money. She said that the men to whom he owed money disturbed them. She did not know how much A owed them. They would come to the office many times. [Mr A] was the first person from whom A borrowed money but when A could not borrow from him, he borrowed money from [Mr B]. B said that they made threats. She was told about it later by A. She could hear shouting. She said that A told her that one of them pushed him. They would also telephone them, asking for the money to be repaid. B said that she has not heard from either man since they came to Australia and nor have her relatives been contacted by them.
A said that he was pushed once but it was not a big push. He said they called him on the phone a few times asking for repayment.
Further submissions
At the end of the second hearing, the applicant’s representative considered providing further or amended submissions in writing and, if so, he would lodge them by close of business 16 June 2025. At 4:00 pm on 16 June 2025, no such submissions had been received and the applicant was allowed until 4:00 pm 17 June 2025. He did not provide any further submissions on 17 June 2025.
The applicant’s representative, on 18 June 2025, provided the Tribunal with two further sets of further submissions in writing (as noted above they are referred to as the “second submissions’ and the ‘third submissions’)
The second submissions are about membership of a particular social group:
There are two types of particular social groups described in the Act. One provides criteria to be met if a person claims to have a well-founded fear of persecution because they are a member of a particular social group that consists of their family. The other type provides that a person is to be treated as a member of a particular social group if:
* each member of the group shares a characteristic
* the person shares, or is perceived as sharing, the characteristic
* any of the following apply:
* the characteristic is innate or immutable (cannot be changed)
* the characteristic is so fundamental to a person's identity or conscience, they should not be forced to renounce it (go against it)
* the characteristic distinguishes the group from the rest of society
* the characteristic is not a fear of persecution.
SOURCE: Deakin
Australian courts have adopted a wide interpretation of PSG. According to Lockhart J in Morato v MILGEA:
The interpretation of ‘particular social group’ calls for no narrow definition, since it is an expression designed to accommodate a wide variety of groups of various descriptions in many countries of the world which, human behaviour being as it is, will necessarily change from time to time. The expression is a flexible one intended to apply whenever persecution is found directed at a group or section of society that is not necessarily persecuted for racial, religious, national or political reasons.[24] Attorney General of Canada v Patrick Francis Ward, Federal Court of Appeal
Decision A-1190-88, March 5, 1990.
In their more open-ended interpretation of PSG, Australian courts have stated that what distinguishes a particular social group from other individuals and groups is a `common binding attribute other than persecution, and a societal perception that the particular social group is a group that stands apart from broader society'.[28] Depending on the facts of the case and the country in question Australian courts have stated that women,[29] a family,[30] occupational groups,[31] conscientious objectors,[32] people suffering illness,[33] homosexuals[34] and people possessing or lacking wealth[35] constitute a particular social group.[28] DIMIA, above n 2, 69. [30] MIMA v Sarrazola (2001) FCA 263. [31] MIMA v Zamora [1998] FCA 913; (1998) 85 FCR 458 [32] Mehenni v MIMA (1999) FVA 789.[33] Lo v MIEA (1995) 61 FCR 221. [34] MIMA v Guo Ping Gui (1999) FCA 1496.[ Ram v MIEA (1995) FCR 565. For further examples, see DIMIA, above n 2, 73-4. Family - MIMA v Sarrazola (2001) FCA 263.
[A] is a person lacking wealth and as per [35] Ram v MIEA (1995) FCR 565. For further examples, see DIMIA, above n 2, 73-4., he meets the criteria for a particular social group being those who are lacking wealth.
Each member of the social group share the same characteristics which is innate and cannot be changed and once one is Lacking wealth it is innate and is immutable because it cannot be changed. Extreme poverty is a fact of life and in [A]’s case his lack of wealth caused the need for him to borrow from the Ah Long in an attempt to save his business and employees. He used all his Retirement fund and borrowed money to attempt to protect the people he owed money to including his employees, suppliers thus further projecting him into a conclusive category of Lacking wealth. This cannot be changed and he can now be considered as a member of a group of individuals Lacking Wealth.
The third submissions contain further submissions about persecution on loan shark grounds in Malaysia; the applicants’ economic, age and health issues; complementary protection; and a request for ministerial intervention.
The representative’s second set of written submissions begins by citing passages in the 2024 DFAT Country report and cites observations in it about loan sharks in Malaysia. He then writes:
Argument:
The law in Malaysia makes Usury illegal because they are unlicensed, however they freely advertise and operate with freedom from law enforcement.
In this case ( house-and-car#google_vignette) the lender, an Ah Long, was not charged for illegal money lending but was charged and jailed for arson of a house and car of the borrower who defaulted.
In an article from the Star named ‘Nearly 2000 cases of loan shark violence reported since 2020, says Home Ministry’ Quote “Ramli mentioned that the force is unable to completely eradicate the Ah Long menace due to certain constraints.”
This is conclusive in confirming the Ah Long, illegal Lending cannot be stopped by the Government due to constraints.
The open advertising and freedom to operate without police intervention unless a complaint is raised confirms the police have little interest in the Ah Long practices. Some recent activity by the police has seen some Ah Long arrested in a few areas but not country wide.
From unlicensed-moneylenders-nabbed-between Khaw (State police chief Datuk Khaw Kok Chin) recently received a threatening letter from a group of Ah Long.
They had allegedly threatened Khaw not to take action against them, or they would retaliate. Among others, they threatened to shoot or burn down the police station.
It is learnt that the computer-printed letter, written in Bahasa Malaysia, was sent to Khaw's office at the state police contingent headquarters here. It was sent along with six pieces of hell notes.
This confirms the Ah Long are not scared of the police. The Ah Long have threatened the chief of police in Bahasa Malaysia
Advertising is rampant and everywhere on Lamp posts and and Utility boxes for all to see including the police and freely offer loans from Ah Long lenders who can be seen as acting with impunity in most cases. Lending has interest at up tp 50% which is extreme.
There is a conflict between 3.152 and 3.154 3.152 Those who do not repay loans face serious harassment 3.154 DFAT assesses that victims of loan sharks also face a moderate risk of harassment and a low risk of violence State protection is available but not always effective
The protection is not possible. The police will not be there to protect the applicants. DFAT Country Report. - 3.153 some police believe debtors have a religious obligation to pay their debts and consequently will not act to protect them.
This means there is little or no protection for the applicants if they go back to Malaysia
Significant economic hardship that threatens the person's capacity to subsist (ability to survive when referring to refugees Denial of capacity to survive total collapse. You will not be able to survive Malaysia high economic growth and standard of living will enter higher income status by the end of the decade world bank
Given this comment by the world bank, the situation is worse for [A] if he is returned to Malaysia. At [age] years of age he cannot work and has no Retirement fund. He used that before to protect his business. He might have a Pension of 500 Ringgit a month but that would not be sufficient to survive.
As the high economic growth and standard of living cause higher income status the pittance of 300RMB allowance he can obtain from the Malaysian Government will be of less value due to the inflationary effects of the economic growth and prosperity of the country.
After paying rent of 400-500 for a room he will have no money for food, or travel, clothes and other expenses. In fact the 300 RMB per month will not be enough for the room alone
A serious problem is [A] has great difficulty doing any manual labour and his physical condition is deteriorating. Because Both [A] and [B] have no contributions in the retirement fund in Malaysia they will not have a retirement payment.
[A] is still entitled to senior citizen allowance in Malaysia which is only 300 RMB Not as much as if you were on a retirement pension 300 ringit per month is 10 ringgit a day for food. The average cost per day for food in Malaysia is 31.12 ringgit
At 300 RMB per month and the cost of rent about 400 RMB per month there are no choices for [A]:
He will not be able to survive due to extreme financial hardship. FROM: Minimum Amount of Money for food (2400 calories, Western food types)
Milk (regular), (0.25 liter) 1.92 RM
Loaf of Fresh White Bread (125.00 g) 1.02 RM
Rice (white), (0.10 kg) 0.59 RM
Eggs (regular) (2.40) 1.74 RM
Local Cheese (0.10 kg) 5.80 RM
Chicken Fillets (0.15 kg) 2.57 RM
Beef Round (0.15 kg) (or Equivalent Back Leg Red Meat) 5.42 RM
Apples (0.30 kg) 3.60 RM
Banana (0.25 kg) 1.55 RM
Oranges (0.30 kg) 3.32 RM
Tomato (0.20 kg) 1.26 RM
Potato (0.20 kg) 0.93 RM
Onion (0.10 kg) 0.52 RM
Lettuce (0.20 head) 0.90 RM
Daily recommended minimum amount of money for food per person 31.13 RM
Monthly recommended minimum amount of money for food per person (assuming 31 days per month) 964.89 RM
Serious harm has to be for one of the 5 reasons
Significant harm is different to serious harm. It is defined as:
• arbitrary deprivation of life
• the death penalty
• torture
• cruel or inhuman treatment or punishment
• degrading treatment or punishment.
Difference is it does not matter why you are here in Australia dont need a refugee reason What matters is if there is a real risk you will experiene significant harm Significant harm is very precise and serious
Just being unemployed is not serious harm Just because living on senior citizen allowance is not significant harm it means
• arbitrary deprivation of life
• the death penalty
• torture
• cruel or inhuman treatment or punishment
• degrading treatment or punishment. Economic hardship is not significant harm
Being threatened could be considered to be torture.
The effects of threats especially to an old man who is fast approaching a feeble state is torture to him.
See Chapter 3 – Well-founded fear under ‘What if I am wrong?’ and the cases referred to therein: MIEA v Wu Shan Liang (1996) 185 CLR 259; MIEA v Guo (1997) 191 CLR 559; Abebe v The Commonwealth (1999) 197 CLR 510; MIMA vRajalingam (1999) 93 FCR 220. The application of this test in the complementary protection context was accepted by the Court in SZSKC v MIBP [2014] FCCA 938 at [83].
Cruel and degrading punishment
[A] and [B] have already experienced frudel and degrading treatment with the house and car defaced with the red paint.
There was no evidence at all of this during the hearings
This is a reflection of the harm that most likely will happen if they are returned to Malaysia. In a number of cases molotov cocktails have been used by Ah Long to punish defaulting borrowers and some properties have been burnt down as a result.
MINISTERIAL INTERVENTION COMPASSIONATE GROUNDS
[A] AND [B] 2010566
Significant harm living on 300 Ringgit Government allowance.
If [A] was living with a family he could survive with 300 Ringgit per month. It would cover food costs at a bare minimum. Average food cost per day 31 Ringgit so at 10 Ringgit a day it is a very limited food allowance. living with family this would be sufficient to live and survive but [A] does not have any family he can live with due to the serious nature of his problem with Ah Long in Malaysia. The cost to live without other family support and accommodation makes it impossible for [A] to survive.
The cost to rent a room in Malaysia varies significantly based on location, size, and amenities. Generally, you can expect to pay anywhere from RM400 to RM1500 or more per month. In Kuala Lumpur, a room might range from RM480 to RM1500, while in other areas, you could find options for under RM500.
So the cost of a room will eat up all the allowance and leave no money for food, utilities and other expenses. In fact it will be difficult to find a room for 300 RMB only then there is still no money for food.
Police protection: For example, in country sources reported that 95 per cent of Malaysians perceived the police as corrupt and able to be bribed, and a Transparency International Corruption Barometer survey found almost half of Malaysians surveyed perceived the police as corrupt
Areas for Improvement:
• Addressing Police Brutality: There is a need to address reports of torture, ill-treatment, and unlawful killings by police officer
• Strengthening Accountability: Establishing mechanisms for accountability for human rights abuses is crucial.
• Combating Corruption: Further efforts are needed to address corruption within the police force.
He then cites passages from the [2024] DFAT country report about corruption, gang activity and the same passage about loan sharks.
The threshold for the ‘real risk’ element in the complementary protection criterion in s 36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a).20 A ‘real chance’ in the context of refugee assessment has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.
The principles relevant to the ‘real chance’ test are discussed in detail in Chapter 3 –
Well-founded fear, and apply equally in the complementary protection context. This includes the principles that the experience of the past may assist in an assessment of the likely risk of future harm, 22 and that if a decision-maker is unable to make a finding with sufficient confidence, they may need to consider the possibility that the finding is incorrect (‘what if I am wrong?’). 23 However, unlike the refugee criterion, s 36(2)(aa) does not require that an applicant hold a subjective fear.24
Depending upon the claims made, a decision-maker may be able to rely on a finding as to whether there is a real chance of harm to an applicant for the purpose of the refugee criterion when assessing the real risk of significant harm under s 36(2)(aa).25 However, while the judgment of the Full Federal Court in MIAC v SZQRB has clarified the interpretation of ‘real risk’ in s 36(2)(aa), because the construction of that provision was not directly in issue, the judgment does not provide authority on its other elements, including the significance of the expressions ‘substantial grounds for believing’ and ‘necessary and foreseeable consequence’. As the Federal Court has observed, the phrase ‘real risk’ should be read in context: the ‘substantial grounds for believing’ and ‘will suffer’ parts of the provision are not unimportant but, contextually, emphasise and reinforce the need to establish the substantive nature of the risk.26
21 Chan v MIEA (1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559.
22 See MZAAD v MIBP [2015] FCA 1031 at [41], referring to MIEA v Guo (1997) 191 CLR 559 at 574 and 575. The Court went on to say, however, that it would be inappropriate to confine the evaluative
process in assessing ‘real risk’ to consideration of past events or a quantitative or statistical analysis: at [43].
23 See Chapter 3 – Well-founded fear under ‘What if I am wrong?’ and the cases referred to therein:
MIEA v Wu Shan Liang (1996) 185 CLR 259; MIEA v Guo (1997) 191 CLR 559; Abebe v The Commonwealth (1999) 197 CLR 510; MIMA v Rajalingam (1999) 93 FCR 220. The application of this test in the complementary protection context was accepted by the Court in SZSKC v MIBP [2014] FCCA 938 at [83]. 24 SZVVE v MIBP [2015] FCA 837 at [21]. However, the Federal Court has held that a person’s subjective belief is not necessarily a mandatorily irrelevant consideration for the purposes of s 36(2)(aa), noting that whether an individual has a subjective fear of harm can be relevant to assessing the credibility of their claims that they will be harmed if returned: DZW17 v MICMA [2023] FCAFC 177 at [38]–[40]. 26 MZAAD v MIBP [2015] FCA 1031 at [34].
Substantial grounds for believing
The requirement in s 36(2)(aa) that there be both ‘substantial grounds’ and ‘a real risk’ suggests that ‘substantial grounds’ imposes an evidentiary standard, and ‘real risk’ an assessment of the probability of the applicant suffering significant harm. The Full Federal Court has stated that an applicant’s credibility will be plainly relevant to the question of substantial grounds for believing there is a real risk.
28 The Complementary Protection Guidelines also view the ‘substantial grounds’ requirement in s 36(2)(aa) as directed to the evidentiary standard to be met.29 28 SZSHK v MIBP [2013] FCAFC 125 at [31]. In contrast, the Federal Court in MIAC v Anochie (2012) 209 FCR 497 at [67] opined that ‘the superaddition of the words ‘substantial grounds for believing’ [in UN Human Rights Committee General Comment 31 and subsequent jurisprudence of the Committee] do not add any additional requirements to the test’.
However, the Court in that case was considering the non-refoulement obligation arising under the ICCPR by reference to jurisprudence of the Committee rather than the terms of a statutory provision such as s 36(2)(aa). On accepted principles of statutory construction, it would appear unlikely that a Court would infer that Parliament did not intend the ‘substantial grounds’ limb to have any operation (see Chapter 1 – Protection visas for further discussion of interpretive principles).
29 Department of Home Affairs, Complementary Protection Guidelines, section 3.5.5, as re-issued 29 February 2020.
A necessary and foreseeable consequence
The criterion in s 36(2)(aa) also requires that the risk of harm be a ‘necessary and foreseeable consequence’ of the applicant being removed from Australia to the receiving country.
In SZSKC v MIBP, the Court confirmed that the ‘necessary and foreseeable consequence’ element in s 36(2)(aa) attaches to the risk of harm, rather than the actual occurrence of harm, i.e. exposure to the risk (and not the harm itself) must be a necessary and foreseeable consequence of return.30 The test is not applied by putting the applicant in a position where he or she must prove that he or she is in direct way of real harm before the real risk test is applied; nor is there a requirement on the applicant to prove that he or she will suffer harm, because that places the onus of proof in s 36(2)(aa) far too high.31 A similar approach was taken in MIAC v Anochie to the interpretation of this phrase in considering Australia’s non-refoulement obligation under the ICCPR.32
This element is in addition to the real risk test, so even where it is accepted that there is a risk of significant harm, the requirements of s 36(2)(aa) will not be satisfied until it is established that a necessary and foreseeable consequence of return is exposure to that risk.33
The Complementary Protection Guidelines also treat this element of the test as an additional requirement, stating that it requires decision-makers to be satisfied that there is a real, as opposed to speculative, causal and temporal link between removal from Australia and the likelihood or possibility of their facing a real risk of significant harm.34
On a plain reading of the words in s 36(2)(aa) it appears that ‘necessary and foreseeable consequence’ imposes a causal and temporal requirement – there must be some link between the removal of the applicant from Australia to the receiving country, and the real risk of significant harm. In SZSKC v MIBP [2014] FCCA 938 at [71]–[73]. The Court found that the test is not whether the harm (‘imprisonment’) is a necessary or foreseeable consequence (i.e. ‘inevitable’), but whether there is a real risk, as a necessary and foreseeable consequence of return, that the harm will be suffered: at [84].
A distinction can also be drawn between something that is a ‘necessary…consequence’ compared to something that may occur as a result of a particular choice or action taken. In EJC18 v MICMSMA, for example, the Court held that it was open for the Tribunal to reason that as a risk of significant harm was contingent upon the applicants’ ‘choice’ to pursue a particular course of action upon return to Pakistan, the risk was not a necessary and foreseeable consequence of their removal from Australia, and therefore that s 36(2)(aa) was not satisfied.36 For more details, see ‘Modified conduct to avoid threat of harm’
COMPLIMENTARY PROTECTION:
Modified conduct to avoid threat of harm
It is now settled that the principle regarding impermissible behaviour modification, expressed by the High Court in Appellant S395/2002 v MIMA (S395)39 in relation to the refugee criterion, does not apply to the complementary protection criterion in s 36(2)(aa).
In DQU16 v MHA40, the decision-maker concluded that the appellant did not face a real risk of significant harm as it had found the appellant would not sell alcohol upon his return to Iraq (even though it was accepted that he had sold alcohol in the past). The High Court, focussing on the words of s 36(2)(aa) and the definitions of ‘significant harm’ in s 36(2A), held that the appellant’s motivation for modifying his behaviour (i.e. to stop selling alcohol) in order to avoid a risk of harm upon return to his receiving country was not relevant to an assessment under the complementary protection criterion. In particular, the Court highlighted that the definition of ‘significant harm’ in s 36(2A) was not formulated by reference to a person's inherent or immutable beliefs, attributes, characteristics or membership of a particular group, and consequently where a risk of significant harm can be avoided by modification of behaviour, such modification does not involve a manifestation of the harm at which the criterion in s 36(2)(aa) is directed.41 s36 Migration 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.
Furthermore, it also appears that an applicant will not be owed complementary protection where they could, not just would, modify their behaviour upon return to avoid harm, at least in some circumstances.
[A] has no behaviour to modify
In EJC18 v MICMSMA, the Federal Circuit Court held that it was open for the Tribunal to reason that as the applicants had a choice as to whether they would pursue a land claim upon their return to Pakistan, the risk of significant harm arising from such action was not a necessary and foreseeable consequence of their removal and therefore s 36(2)(aa) was not satisfied.42 The Court held that ‘the term ‘necessity’ connotes a sense of inevitability or as following as the next logical step in a sequence of events’, and that there was ‘much force’ to the analysis that ‘the pursuit of land claims was not something that was such an intrinsic part of the applicants that any harm which would follow from pursuing those claims could be said to be a natural consequence of their return to Pakistan’.43 This is not the case with [A] He has no way to modify his behaviour to avoid the consequences of return to Malaysia and the harm that will come from it.
Health
[A] has suffered significant decline in physical ability in the last 12 months leading to inability to work manual jobs such as the farm work he was doing until early 2024.
He is taking medication daily for high blood pressure which is not a good sign at his age. Benefit to Australia [B] and [A[have both been working legally and in the past were farm workers in a critical industry.
Now they are both gainfully employed [in occupation 1] and continue to contribute to the Australian society and economy.
[B] is of an age where she can continue to work for many years depending on the level of care she might need to provide for [A] for however many years he has to live.
Given the average of Malaysian Males and his current age being within 1.5 years of that average age with high blood pressure, the likelihood of living to a ripe old age is unlikely.
If returned to Malaysia survival will depend on the capacity of [B] to work since [A] is too old to be employed and is going to need care in near future given his declining physical capacity.
[B] [B] will end up caring for [A] and when this will happen is unpredictable but indications are that it won’t be many years until this is needed.
The new Aged Care model for Australia, due to come into effect in July has been postponed to November but the main focus of this new operating method is more home care where possible to reduce the reliance on Aged Care Accommodation.
Survival in Malaysia with a pension of 500 Ringgit will be impossible.
The 300 ringgit is workable only if you are able to live with family, your children or others.
Cost of living for rent alone for a 1 bedroom apartment in the province is 800 Ringgit per month and a room from 300-500 per month and in Kuala Lumpur 2,000 ringgit per month. A room in kuala Lumpur is 800 Ringgit per month
A summary of the applicants claims
The applicants’ case is that they have a well-founded fear of persecution if they returned to Malaysia because there is a real chance that they would experience serious harm from the two money lenders. The serious harm would consist of serious harassment, threats of violence and actual violence from the illegal money lenders in order to be repaid the money A borrowed from them. This harm would be directed primarily against A but B could also be harmed so as to persuade A to repay the loan; also, the Tribunal accepts that serious harm to one family member is also serious harm to another family member.
Further, on the applicants’ case, there are substantial reasons to believe that there is a real risk that they would experience significant harm under the complementary criterion. The significant harm could be torture, cruel and inhumane punishment and or treatment, and arbitrary deprivation of life.
Relocation to another part of Malaysia would not have an impact on reducing the real chance or real risk of harm under either criterion; and nor, under either criterion, is there available to the applicants effective state protection.
The applicants also claim that they would experience serious harm in the form of economic and financial hardship. They would both have difficulties finding work, particularly A because of his age and his health. A would also have difficulty supporting himself because of his age and health and B would have to care for him as A began to experience more age-related health problems.
It is not clear why in the third written submissions the applicants’ representative refers to country information about police corruption and brutality and criminal gangs. None of these matters were referred to any of the applicants’ written or oral evidence. The applicants at no point in the history of this application claimed that they had a well-founded fear of persecution on the grounds of corruption, police brutality and or criminal gangs. There is no evidence at all that the applicants experienced harm of any kind from corruption, police brutality and or criminal gang violence or that there was in way a chance or risk that they would experience harm of any kind from these matters. Therefore, the Tribunal does not consider the references to corruption, police brutality and criminal gangs in the third submissions to amount to new or additional claims for protection. At best, the Tribunal considers these issues and the representative’s submissions about them to be relevant in a totally unparticularised way to the applicants’ claims about loan sharks, economic hardship and their request for ministerial intervention.
Country Information – Loan Sharks
The DFAT 2024 Country Report on Malaysia contains these remarks about loan sharks:
2.30 Gangs continue to operate in Malaysia. In 2022, local media reported that 72 underworld gangs were being monitored by police as potential threats to the country. In-country sources reported that many street-level gang members were Indian Malaysians, in part reflecting their relative economic vulnerability. In-country sources also reported high-level crime, including drug trafficking, was more typically associated with Chinese Malaysian gangs. Some gangs engage in extortion and loan sharking. Details of gang activities are difficult to obtain, as victims of gang-related crimes do not generally report them due to fear of retaliation.
3.149 Usury is illegal. The Moneylenders Act (1951) requires that moneylenders have a licence and not charge interest rates above 18 per cent for an unsecured loan, which must not compound. Loan sharking is also covered under section 427 of the Penal Code, which prohibits ‘committing mischief’ and can carry a five-year prison term.
3.150 In practice, loan sharks or ‘pay-day financiers’ (unlicensed lenders, referred to as ‘Ah Long’ by the Chinese Malaysian community, ‘Chettiar’ by the Indian Malaysian community, and ‘Ceti’ in Malay), operate openly in Malaysia and charge interest as high as 50 per cent. Advertisements for cash loans appear on public property, including lamp posts and utility boxes. Loans offered through social media or smartphone apps are also common.
3.151 Motivations for taking out loans vary and can include gambling and economic disruption caused by the COVID-19 pandemic. Others take out loans for to finance small business which, if the business fails, sometimes become unsustainable debts. Loans are also made by people rejected by banks or who find bank decision-making slow or to require a lot of paperwork.
3.152 Those who do not repay loans face serious harassment. On rare occasions, victims of loan sharks have faced violence or have been sold into slavery. It is common for borrowers to have their house splashed with red paint, which is generally culturally understood to mean that they have not paid debts, causing public shame. They sometimes have their picture or pictures of their identity documents posted on telegraph poles, and families are sometimes harassed. Loan sharks sometimes hold victims bank cards or passports as collateral. Loan sharks sometimes continue their harassment even after loan has been paid off.
3.153 State protection is available to victims of loan sharks, but it is often ineffective. Being the victim of a loan shark is often perceived as a moral failing, and some police believe debtors have a religious obligation to pay their debts and consequently will not act to protect them. Formal credit agencies can consolidate loan shark debts and provide payment plans, providing some options for victims.
3.154 DFAT assesses that victims of loan sharks and their family members face a moderate risk of discrimination due to familial and societal shame. DFAT assesses that victims of loan sharks also face a moderate risk of harassment and a low risk of violence from loan sharks and/or gangsters. State protection is available but not always effective.
On the Royal Malaysia Police, there are these comments:
5.5 The RMP is based on the British constabulary model, employs approximately 115,000 officers, and operates over 800 police stations across Malaysia. Multiple local and international sources consider the RMP to be a professional and effective police force, although note the quality of its members’ responses varies depending on levels of training, capacity, and engagement in corruption. RMP officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians, and Indian Malaysians.
5.6 According to Transparency International’s 2017 Global Corruption Barometer for the Asia-Pacific region (the latest available), Malaysians perceive the police as one of the most corrupt institutions in the country. External investigations into allegations of police misconduct were previously conducted by the Enforcement Agency Integrity Commission, which was not well-regarded by complainants. From July 2023, such investigations have been carried out by the Independent Police Conduct Commission (IPCC). The establishment of the IPCC was recommended by a Royal Commission in 2005. Due to the number of deaths in police custody and impunity in detention centres, the incoming government pledged to establish such an agency during the 2018 election campaign. In 2020, the then-government re-introduced what observers described as a ‘weakened’ bill, proposing the creation of the IPCC, which came into force in July 2023. SUARAM stated in April 2023 that the body has ‘too many restrictions which will hinder its investigations’ and that it is effectively ‘toothless’...
5.8 In July 2014, the then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department within the RMP to enhance police integrity and image. SUHAKAM also receives complaints against the RMP and has investigated police behaviour. However, the government is not formally required to consider SUHAKAM’s reports or recommendations. SUHAKAM’s investigation into the disappearance of Pastor Raymond Koh concluded that RMP Special Branch was responsible for the disappearance, but no one was ever held accountable.
In the earlier 2022 Report, there are these comments:
DFAT understands authorities tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice. According to local media, the Commercial Crime Investigation Department reported 3,903 cases and arrested 2,698 people in relation to loan scams between January and November 2018, with total case-related losses estimated atMYR36 million (AUD11.4 million). Local media also report loan sharks have become more publicly visible and more ‘corporate’, in recent years, and have increased promotion of their services on social media platforms such as Facebook and WeChat. In October 2019, media reported that the RMP planned to embark on a ‘major war’ against loan sharks, following reports that Ah Long syndicates were becoming more aggressive. DFAT is not aware of any significant enforcement action in this area.
3.114 The MCA’s Public Services and Complaints Department (PSCD) [the Malaysian Chinese Association] plays an intermediary role between loan sharks and Chinese Malaysian victims of loan sharks who are unable to repay their loans, and reportedly receives an average of 500 to 600 complaints regarding loan sharks each year. According to local media, the MCA reported that 16 cases of people owing loan sharks over MYR2.11 million (AUD670,000) had arisen in the first 19 days of January 2019 alone. Local media also reported that, in 2020, the PSCD received 140 complaints from victims who said illegal money lenders went after their families to try and extort them for payment. In 2015, the PSCD reported over 70 per cent of borrowers were Chinese Malaysian. Sources report the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the government rate.
In July 2024, Datuk Seri Michael Chong, the head of the MCA’s Public Services and Complaints Department, said that ”a majority of the loan shark cases he has handled were fuelled by a persistent gambling habit among the debtors”. He said that since January 2024, they “had 185 cases brought to us” and “in about 80% of them, gambling is the main reason for them taking such loans”.[1]
[1] Online loan sharks a tough catch, Ramendran, C, The Star Online (Malaysia), 19 July 2024
There are numerous press reports about police responding to complaints about the activities of loan sharks.[2] Police regularly engage in specific operations directed at illegal lenders resulting in arrests and prosecutions and with success.[3]
[2] 7 arrested as Melaka police bust loan shark syndicate, Bernama (Malaysian National News Agency),[3] Police say already booked 777 loan shark cases this year, Yahoo News, 26 November 2024; Four loan sharks arrested for criminal intimidation, The Star 22 October 2024; Penang cops bust loan shark syndicate, nab 4, Penang Times, 11 May 2025
In an article in Malaysia Reserve in 2024,[4] despite rigorous enforcement and legal measures to curb their activities, it was said that loan sharks continued to flourish, exploiting gaps and constraints in the financial services market. It was reported that these gaps have led to the public resorting to loan sharks, with recent reports indicating a significant number of investigations and arrests related to such illegal activities. According to the Home Ministry in October, from January to August 2023, nearly 900 suspected loan sharks were apprehended, following over 1,200 arrests in the previous year, highlighting ongoing law enforcement efforts to curb these. In Malaysia, the Moneylenders Act of 1951was described as the ‘cornerstone’ of regulation for moneylenders, mandating licensure for their operations. Despite what the author described as its’ robust’ provisions, the Act, overseen by the Ministry of Local Government Development, had loopholes that often surface when individuals suffer financial or physical harm. However, amendments made in 2003 and 2011 were said to have bolstered enforcement mechanisms, granting enhanced powers to the police to intervene in cases of unfair or unlawful practices by moneylenders.
[4] Loan sharks: Malaysia’s battle against unethical lending practices, Malaysia Reserve, 6 May 2024
The article cited comments by a Taylor’s University Law professor who said that the amendments have been instrumental in tightening regulations and ensuring accountability. He said that the main problem lies in the demand for unlawful money lender services. Finance via the legal financial system was difficult and he recommended providing alternative and cheaper loans, such as through government micro-credit schemes such as National Entrepreneurial Group Economic Fund could help mitigate this demand.
The article noted comments of the International Islamic University Malaysia (IIUM) Institute of Islamic Banking and Finance assistant professor that despite the availability of Shariah-compliant financing, people often resort to loan sharks for several reasons.
-loan sharks tend to operate in communities where access to formal financial institutions is limited, making them a more accessible option for borrowing;
-loan sharks are perceived as being more lenient in their borrowing requirements compared to formal Islamic financial institutions, often not requiring extensive documentation or collateral. This leniency was said to be particularly attractive to individuals facing urgent financial needs, such as unexpected medical expenses or emergencies.
It was also noted that although loan sharks may charge higher interest rates, the speed at which they provide funds may outweigh concerns about unfavourable terms.
The use of loan sharks in Malaysia and in many southeast Asian countries is common and widespread and across all sectors of the community. It is a popular method of obtaining finance, largely to do with dealing with difficulties in obtaining credit from mainstream Asian financial and banking institutions.[5] In Malaysia, persons from all sectors of society will use loan sharks to obtain finance. Loan sharks in Malaysia and other Asian countries tend to operate in communities where access to formal financial institutions is limited, making them a the illegal lending market a more accessible option for borrowing. Loan sharks are seen as being more lenient in their borrowing requirements compared to formal financial institutions, often not requiring extensive documentation or collateral. This leniency is seen as particularly attractive to individuals facing urgent financial needs, such as unexpected medical expenses or emergencies or to pay gambling debts. Although loan sharks may charge higher interest rates, the speed at which they provide funds may outweigh concerns about unfavourable terms.[6]
[5] The loan shark in ASEAN: Can Nanofinance With Qardhul Hassan Deal With It? Lesson Learned From Bank Wakaf Mikro In Indonesian’, Moha Asri Abdullah, Md Siddique E Azam, Economics, Business, And Islamic Finance In Asean Economics Community (2020), Patricia Ordoñez De Pablos, Mohammad Nabil Almunawar; ‘In Cooling China, Loan Sharks Come Knocking’, NYT 13 Oct 201
[6] Loan sharks: Malaysia’s battle against unethical lending practices, The Malaysian Reserve, September 24th, 2024
Country information – Malaysian economic conditions and social protection
The 2024 DFTA report contains these observations:
2.7 The World Bank classifies Malaysia as an upper middle-income, export oriented economy. In 2022, real GDP growth was 8.7 per cent and per capita GDP was USD 11,993 (AUD 18,000). Since Independence, Malaysia has transformed from a commodity-based economy focused on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia has also developed its service sector, which now contributes half the country’s economic growth.
2.8 Malaysia’s strong economic performance over the last few decades has led to a significant reduction in poverty. Households living below the national poverty line of MYR 2,589 (AUD 864) fell from over 50 per cent in the 1960s, to less than less than 6.2 per cent in 2022. Persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population (known as the ‘B40’) who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states.
2.9 The COVID-19 pandemic had a major economic impact on Malaysia, particularly on the most vulnerable. Poverty rates rose and growth fell due to the COVID-19 pandemic in 2020 and 2021, although the economy has since recovered. Ongoing economic challenges include inflation and cost of living increases, as well as high levels of household debt.
2.10 In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic. There are labour shortages in many sectors, and small, medium and large enterprises are highly reliant on migrant labour. In 2023, the Department of Statistics Malaysia estimated there were 2.2 million documented migrant workers in Malaysia. Unofficial estimates of undocumented or irregular migrants vary considerably. In 2023, the IOM estimated there were also a further 1.2 to 3.5 million undocumented migrants living in the country. According to the US Department of Labour, migrant workers in Malaysia are frequently subject to abuses ranging from excessive recruitment fees to serious violations of terms and conditions of their employment.
2.11 Malaysia has a well-established universal health care system which is accessible to most of the population. Health facilities are generally available within a five kilometres radius in urban centres. Healthcare is less available outside major cities, especially in Sabah and Sarawak. Healthcare for Malaysians is generally affordable: in-country sources reported that Malaysians can pay as little as MYR 1 (AUD 0.33) for a doctor’s visit and MYR 1.5 (AUD 0.50) per day to stay in a hospital.
2.12 While foreign nationals, stateless people, asylum seekers and refugees technically have the same access to the public health system as Malaysian citizens, they are required to pay ‘first class’ treatment fees, which are much more expensive. First class fees can range from three to 10 times what would be paid by a Malaysian citizen – in-country sources report first class fees of approximately MYR 15 (AUD 5) for a doctor’s visit and MYR 200 (AUD 66) per day for a stay in hospital – although fees can vary at the discretion of medical and hospital staff. These first class fees are generally unaffordable for poor, undocumented migrants.
2.13 People living with disabilities (PLWD) in Malaysia often face challenges in daily life. UNICEF reports that PLWD, especially children, are often hidden, portrayed negatively or excluded from society, face daily stigma and discrimination, and are prevented from accessing their rights due to gaps in legislation.
According to a World Bank overview in April 2025 about the Malaysian economy:[7]
Since gaining independence, in 1957, Malaysia has undergone a profound economic transformation, transitioning from a predominantly agricultural and commodity-based economy to a robust manufacturing and service sector-based economy. This evolution has positioned Malaysia as a leading exporter of electrical appliances, parts, and components, driving remarkable growth that elevated the country from low- to upper-middle-income status within a single generation.
Key indicators improved significantly. Gross National Income (GNI) per capita grew at an impressive rate of 7.3 percent a year between 1961 and 2023. The workforce is increasingly educated, with the share of the workforce having a tertiary education growing from 23 percent in 2010 to 35.5 percent in 2023. Healthcare improvements have led to a steady increase in life expectancy from 59 years in the 1960s to more than 75 in 2024. Malaysia also slashed poverty, reducing the share of households living below the national poverty line of RM 2,589 a month (around $11 in 2017 purchasing power parity [PPP]) to 6.2 percent. Measured using the international upper-middle-income line of $6.85 in 2017 PPP dollars a day, the poverty headcount rate stood at 2.3 percent in 2021. However, with a Gini index of 39, income inequality in Malaysia is higher than the average for both recently transitioned (mean of 31) and established high-income countries (mean of 30).
Malaysia boasts extensive global trade connections, engaging with 90 percent of the world’s countries, surpassing many of its regional counterparts. Its openness to trade and investment has driven employment creation and income growth, with approximately 40 percent of jobs linked to export activities.
These achievements can be attributed to strategic development policies focusing on outward-oriented, labor-intensive growth, investments in human capital, and credible economic governance to ensure macroeconomic stability. However, as Malaysia prepares for its high-income transition, it confronts new challenges. Growth has slowed, and the share of high-skilled employment is lower in Malysia than in aspirational peers. Wage and productivity growth, tax collection, social protection and spending, environmental management, and corruption control require attention.
Domestically, there is a growing sense that the aspirations of the middle class are not being met. Young people with tertiary education struggle to find high-skilled jobs, and older workers lack sufficient savings for retirement. Learning outcomes of children are weak, with 42 percent of children of late primary-school age are not able to understand an age-appropriate text according to international exams.
Competing successfully on the global stage requires addressing the challenges of job quality, the distribution of wealth, population aging, and the changing nature of work brought about new technologies. Skills development is critical to increasing productivity and wage growth and reducing skills-related underemployment. Narrowing income inequality is also essential. Further improvement and investment in social protection, facilitated by enhanced taxation, would allow the government to address such challenges as Malaysia moves toward high-income status.
[7] type="1">
According to a 2016 UN report, the Malaysian population is aging because of a longer life expectancy and falling fertility rates.[8] There are several social protection schemes in Malaysia, although only two provide old-age pensions: the annuity defined-benefit Civil Service Pension, which is a non-contributory pension scheme for civil servants, and the non-annuity defined-contribution scheme through the Employees Provident Fund (EPF) for private sector workers. Only a little more than half of workers in the labour force are covered by these schemes, which means that the other half has no old-age national insurance pension coverage at all. The Government of Malaysia provides in-kind benefits, such as shelter and food, as well as cash for older persons run by the Department of Social Welfare (under the Ministry of Women, Family and Community Development).
[8] Income Security for Older Persons in Malaysia UNESCAP 2016.
In 2010 (latest available data), out of 1.5 million older persons in Malaysia, about 8 per cent, or 120,496 persons, received assistance under this scheme However, based on the share of workers in the private sector, the EPF scheme only covers 54 per cent of private sector employees. The majority of people without any pension scheme coverage are in the private sector or in the informal economy. Of the total 12.6 million employees in the non-public sector in 2015, only 55 per cent were covered by a pension scheme, while the remaining 45 per cent had no coverage. The number of people without an EPF account has actually increased, from 5.5 million in 2006 to 7.7 million in 2015.
The Senior Citizen Allowance in Malaysia provides financial support to elderly individuals. A senior citizen is defined as someone aged 60 and above.[9] The eligibility for the Senior Citizen Allowance is based on financial need, the aim said to be ensure that aid reaches those who are most vulnerable and have limited means of support. Applicants must provide evidence of their financial status, including income thresholds that may vary depending on regional policies and specific living conditions. In that way, the allowance is said to assist those with the greatest need, prioritizing low-income households and individuals who may not have substantial retirement savings. Aside from the allowance, recipients receive healthcare benefits, transportation discounts and tax relief. The 2025 Budget contains proposals to increase the allowance, a more comprehensive social protection plan, Senior citizens are eligible to receive 500 RM a month.[10]
[9]
Findings – Country Information, Loan Sharks
The Tribunal makes the following finds about loan shark victimisation and protection in Malaysia:
(1) The use of loan sharks is prevalent across Malaysia because of constraints in the legal finance system and lenient borrowing requirements such as the absence of the need for collateral. The cost for the lender is a very much higher interest rate.
(2) Money lending outside of the mainstream finance system is ‘robustly’ prohibited and persons who engage in illegal money lenders commit criminal offences.
(3) There are also general laws dealing with the violence, threats of violence and serious harassment and intimidation.
(4) Loans from illegal money lenders are unenforceable in the mainstream court system.
(5) Illegal money lenders may engage in illegal practices to compel enforcement ranging from harassment through to threats of violence and actual violence.
(6) Even so, the use of illegal money lenders is prevalent across all sectors of the Malaysian community.
(7) There are government and non-government agencies which borrowers can access for assistance in dealing with illegal money lenders
(8) The Malaysia police service is regarded as a professional and effective police force.
(9) There are government and non-government agencies which borrowers can access for assistance in dealing with illegal money lenders.
(10) Despite the prevalence of the use of illegal money lenders, the Malaysian police force has, in recent years, aggressively disrupted the activities of loan sharks including formal operations with some success, leading to numerous arrests and prosecutions.
(11) The Tribunal takes into account the conclusion in the 2024 DFAT Report:
State protection is available to victims of loan sharks, but it is often ineffective. Being the victim of a loan shark is often perceived as a moral failing, and some police believe debtors have a religious obligation to pay their debts and consequently will not act to protect them. Formal credit agencies can consolidate loan shark debts and provide payment plans, providing some options for victims.
The Tribunal finds this opinion unhelpful. It is capable of confusing the different ways the concept of effective state protection is to be applied under in the refugee criterion and under the complementary protection criterion. Secondly, the opinion is based not so much on police effectiveness but reluctance of some victims to make a complaint in the first place and, implicitly, the high degree of prevalence of the use of illegal money lenders by members of the Malaysian community. Thirdly, the opinion is based on a belief that is said to be held by some police about a religious duties of debtors that is not supported or based evidence and is contradicted by the numerous recent press reports of aggressive action taken by the Malaysian police service against loan sharks and illegal money lenders.
Findings – Country information, Economy and Social protection
(1 ) Malaysia is experiencing high economic growth and low unemployment and the overall prospects for the Malaysian economy are good.
(2) Malaysia has a universal health care system with a good reputation.
(3) Social security, especially pensions in Malaysia, is primarily based around a national insurance contribution system. However, many Malaysians work outside the formal employment system and do not have national insurance pensions. Persons above the age of 60 are entitled to allowances beginning at RM 500 per month as well as transport and health benefits.
(4) The applicants’ representative went to some lengths in his third written submissions about the cost of living in Malaysia and maintained that the senior citizen allowance (which the representative incorrectly cited as RM 300 when it is currently RM 500) was not sufficient to reduce the applicants’ economic hardship. However, the Tribunal notes the country information about the purpose of the allowance and that many citizens do not have EFP or national insurance pensions and so have resort to this allowance. The Tribunal is satisfied that the Malaysian government is competent to determine the level of the allowance in terms of cost of living and the wider economic situation in Malaysia.
Findings about the applicants’ claims – loan shark claim
General principles
In SZLVZ v MIAC, the Federal Court commented that ‘in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible but are unable to substantiate all of their claims’. [11] See also UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’):
203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.
204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[11] SZLVZ v MIAC [2008] FCA 1816 at [25].
The courts have not endorsed a free standing ‘benefit of the doubt’ obligation and various judgments have expressed doubts as to its existence under Australian law.[12] In particular, it is questionable whether such an approach is consistent with the statutory requirement for a decision-maker to be ‘satisfied’ of the matters set forth in s 65 of the Act. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In this case the applicant appeared before the Tribunal via video link to give evidence. The Tribunal is aware of the difficulties faced by refugee applicants, including nervousness and anxiety of appearing before the Tribunal, and stress caused by separation from home and family, especially in the light of the guidance contained in the Gender Guidelines. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims.
[12] SZNRZ v MIAC [2010] FCA 107 at [20]
However, the mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. That an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. The applicant must satisfy the Tribunal that all the statutory elements are made out. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. Under s s.5AAA of the Act, the Tribunal is not responsible or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[13]
[13] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt. However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
On these issues of credibility, the Tribunal is mindful of the warnings in the cases such as CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs[14] Guo Wei Rong and Pan Run Juan v Minister of Immigration[15] and Abebe v Commonwealth.[16] In Guo Wei Rong and Pan Run Juan at [26]:
It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected. Exaggeration or even fabrication of parts of a witness's testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony. Where proof beyond reasonable doubt is required, self-contradiction, inconsistency and evasiveness may, of course, give rise to sufficient doubt to warrant the rejection of evidence. However, in cases where only a real possibility need be shown, care must be taken that an over stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
In Abele at page 22:
…the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
Real chance test
The test for determining well-founded fear was enunciated by the High Court in Chan v MIEA.[17] The Court held that ‘well-founded fear’ involves both a subjective and objective element. The definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason. Per Dawson J in Chan:[18]
The phrase “well-founded fear of being persecuted...” contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.
[17] (1989) 169 CLR 379 at 396
[18] Chan v MIEA (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. Whether an applicant has a genuine fear is a question of fact. The relevant question is whether the applicant has a present fear of a risk of harm in the reasonably foreseeable future. A past lack of fear or trepidation is not necessarily inconsistent with a well-founded present fear of future harm.[19]
[19] SZDGB v MIAC [2006] FMCA 341 at [19]
For a fear to be well-founded, there must be a factual or objective basis for that fear. Thus, ‘a well-founded fear’ requires an objective examination of the facts to determine whether the fear is justified.[20] A fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted. In Chan v MIEA Mason CJ, the expression ‘a real chance’:[21]
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
See also McHugh J:
[A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted.
Obviously, a far-fetched possibility of persecution must be excluded.
[20] Chan v MIEA (1989) 169 CLR 379 at 429
[21] Chan v MIEA (1989) 169 CLR 379 at 389
The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution Dawson J stated:[22]
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[22] Chan v MIEA (1989) 169 CLR 379 at 429; Chan v MIEA (1989) 169 CLR 379 at 397.
A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:[23]
Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
Nationality
[23] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293
According to the protection visa application, the applicants claim to be citizens of Malaysia and provided a copies of the biodata page of their Malaysian passports to the Department. Based on this material, the Tribunal finds that the applicants are who they say they are and nationals of Malaysia. Malaysia is therefore the receiving country for the purpose of assessing the applicants’ claims for protection.
Serious harm
The Tribunal accepts that the types of harm the applicants claim might happen to them – serious harassment, threats of violence and actual violence – amount to serious harm within the meaning of the act.
Real chance
The Tribunal finds that while there is a chance that the applicants could experience serious harm from [Mr A] and or [Mr B], the Tribunal finds that it is not a real chance. It is too remote, speculative and far-fetched for these reasons:
(1) The loans are now more than 13 years old.
(2) The applicants have not heard from either lender for more than 13 years
(3) None of the family members have been contacted by either lender
(4) The sums of money (without taking into account interest) are relatively low and so, if unpaid, would represent a relatively minor loss to the lenders. Therefore, in the current law enforcement environment in Malaysia, the lenders would not be highly motivated to risk arrest and prosecution by causing the applicants harm.
(6) The applicants have no up-to-date information about [Mr A] or [Mr B].
Systematic and discriminatory for a Convention reason
The only relevant reason for the persecution would be membership of a particular social group. The Tribunal does not accept that victims of loan sharks would be members of a particular social group merely because they use illegal money lender services. Section 5L of the Act defines membership of a particular social group in these terms:
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.
The use of loan sharks according to the country information is prevalent across the Malaysian community, even though it is illegal and discouraged by the Malaysian government and investigated and the activities of illegal money lenders are frequently disrupted by the police. It might be argued that the applicants could be members of a particular social group of people who resort to illegal money lenders. However, the country information is that there is no particular type of person in Malaysia who uses an illegal money lender and that the use of the services of illegal money lenders is common and prevalent across all sectors of the Malaysian community. It is therefore not an immutable or innate characteristic. Nor is it so fundamental to a member’s identity of conscience that they should be forced to renounce it; and nor does it distinguish the group of the rest of Malaysian society. Accordingly, the Tribunal finds that users of a loan shark or illegal money lending services are not a particular social group.
Alternatively, it could be argued that the particular social group to which the applicants belong might be people who are victims of loan sharks, as the applicant’s representative submitted at the second hearing. The Tribunal finds that the same problems arise here in the application of s 5L of the Act. Being a victim of a loan shark is not an immutable or innate characteristic; nor is it so fundamental to a member’s identity of conscience that they should be forced to renounce it; and nor does it distinguish the group of the rest of Malaysian society. Further, importantly, under s 5L(d)(iv), it is a characteristic which is itself a fear of persecution and so cannot be a characteristic of a particular social group. Accordingly, users of a loan shark or illegal money lending services are not a particular social group on this basis either.
‘Lacking wealth” and membership of a particular social group
In his second written submissions, the applicant’s representative argued that persons who are lacking wealth or in extreme poverty could be members of a particularly social group. It is not completely unclear in the representative’s submissions how this relates to the applicants’ loan shark claim. It could be that, were the applicants not lacking wealth, they could repay the loans to the illegal money lenders.
Alternative, it may be that it is related to the applicants’ claim about persecution based on economic hardship.
In either case, the Tribunal does not accept that A or B, on their own or together, are persons who are in ‘extreme poverty’. The term “extreme poverty’ is not defined by the representative. The economic circumstances of the applicants and the economic and social protection systems of Malaysia in so far as they are relevant to this application are considered more fully below and the Tribunal does not find that the applicants would experience ‘extreme poverty” in Malaysia.
Secondly, the Tribunal accepts that the applicants are persons ‘lacking wealth’, even if term is not defined buy the representative in a relevant and meaningful way. The assertion that persons who are poor or lacking wealth are members of a particular social group as it is defined in s 5L of the Act is a totally rejected by the Tribunal. There is no support for the claim in any of the cases and material referred to in the representative’s submissions. Applying s 5L of the Act, lacking wealth or being poor is not in any way an innate or immutable characteristic; it is not a characteristic is so fundamental to a member's identity or conscience, the member should not be forced to renounce it; and nor it does not distinguishes the group from society. If the claim is relevant to the applicants’ claim of economic hardship as persecution (which, as will be seen below, the Tribunal rejects entirely), the characteristic is a fear of persecution and therefore excluded as a relevant characteristic.
Nor would the persecution be systematic and discriminatory for a s 5J(1)(a) reason. Fear of revenge or extortion does not come within the scope of the Convention unless it can be shown that the retaliation is linked with a racial, religious or other Convention reason. [24] In Ram v MIEA the applicant claimed that he was being extorted on the basis that he was a member of a particular social group - namely villagers who had gone abroad and returned with money, or other wealthy Sikhs. The Full Federal Court rejected this contention. Justice Burchett stated:[25]
In the present case, quite apart from the difficulty of seeing wealthy Punjabis living in circumstances which make them vulnerable to extortion as a sufficient group, it is the greater difficulty of saying that the attacks feared by the appellant would be for reasons of his membership of that group which, it seems to me, he cannot overcome. Plainly, extortionists are not implementing a policy, they are simply extracting money from a suitable victim. Their forays are disinterestedly individual. … [The appellant] does not fear persecution for reasons of membership of a particular social group, but extortion based on a perception of his personal wealth and aimed at him individually.
[24]Magyari v MIMA (Federal Court of Australia, O’Loughlin J, 22 May 1997) at 16–17. Velmurugu v MIEA [1996] FCA 1499 provides another example of revenge which was found to be unrelated to a Convention ground
[25] Ram v MIEA (1995) 57 FCR 565 at 569
In Chenafa v MIMA, the Federal Court observed that:[26]
There are a considerable number of authorities in this court to the effect that extortion of funds from victims is not necessarily evidence of persecution for a Convention reason, in view of the consideration that there may be many other grounds on which money is sought to be extracted in a criminal way from citizens of a country.
Effective state protection
[26] Chenafa v MIMA [1999] FCA 1432 at [12]
The Tribunal finds that there is available to the applicant effective state protection, at least as the concept is to be applied under the refugee criterion. It has been held by Australian courts that a state is not required to guarantee the safety of its citizens from harm caused by non-state agents. In MIMA v Respondents S152/2003, Gleeson CJ, Hayne and Heydon JJ observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’.[27] The joint judgment in MIMA v Respondents S152/2003 refers to the obligation of the state to take only ‘reasonable measures’ to protect the lives and safety of its citizens, including ‘an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’, or a ‘reasonably effective police force and a reasonably impartial system of justice’ indicating that the appropriate level of protection is to be determined by ‘international standards’, such as those considered by the European Court of Human Rights in Osman v United Kingdom.[28] Therefore, an unwillingness to seek protection will be justified where the state fails to meet the level of protection which citizens are entitled to expect according to ‘international standards’.
[27] (2004) 222 CLR 1 at [26]
[28] (2004) 222 CLR 1 at [27], citing Osman v United Kingdom (1998) 29 EHRR 245
The Tribunal finds that Malaysia has a criminal justice system that matches international standards. It has specific and general laws criminalising all forms of loan shark activity. The country information is that the Malaysian authorities are taking active steps to disrupt loan shark gangs. The real problem in enforcing those laws is the prevalence of the use of illegal money lenders and the reluctance of victims to make a complaint, and not inadequate enforcement or insufficient laws. Even the most comprehensive and effective criminal justice system would have difficulties enforcing laws where the demand for a prohibited commodity or service is prevalent and wide-spread. No criminal justice system is expected to provide total protection; however, in this case, the laws and the enforcement activities of the police are capable of deterring the commission of criminal activity and that can take time. The country information about the efforts of the Malaysian police service to disrupt illegal money lending activities is that they have met with success. The Tribunal finds that this may increasingly deter money lenders from engaging in criminal acts against their debtors. That would apply to the applicant’s case. There are good reasons to believe that the illegal lenders in this case would be deterred from engaging in illegal activities to enforce repayment in the current law enforcement environment in Malaysia when the relatively low cost of writing off the loans is taken into account.
Accordingly, the Tribunal finds that there is adequately effective state protection available to the applicant. The Tribunal finds, applying s 5LA of the Act, that the applicant can access the protection, the protection is durable; and the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system
Findings about the applicants’ claims – economic hardship
Serious harm
Section 5L of the Act provides a non-exclusive definition of serious harm:
(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.
The Tribunal accepts that the applicants, especially A by reason of his age, will experience economic and financial difficulties if they returned to Malaysia. Section 5(5), even though it is non-exclusive, focuses on capacity to subsist, denial of basic services, and denial of a capacity to earn a livelihood. What the applicants will experience is something that many people experience in Malaysia. B is still relatively young and could find employment in a country which is experiencing high growth and low unemployment. The Tribunal does not find that the burden that B might experience in caring for A as he ages is serious harm. There is an adequate health care system. A may have greater difficulties finding work than B and it is important that he does not have a pension; but there are many people in Malaysia in his situation. A can rely on B for support, as he does here in Australia. Even in Australia, he has found adequate employment given his age and his age-related infirmities. He has siblings in Malaysia. He might be eligible for senior citizen allowance and benefits. The Tribunal finds, taking into account the country information and the applicants’ personal circumstances, that they will not experience serious harm on this ground.
To avoid any doubt, the Tribunal finds that none of these factors about the applicants personal circumstances (economic hardship, difficulties finding work, age-related health and care issues) cumulatively amount to serious harm under the Act.
Systematic and discriminatory for a Convention reason
Even if there could be said to be serious harm on the ground of economic hardship, the Tribunal finds that the applicants will not experience that harm for a convention reason in s 5J(1)(a) and not would be systematic and discriminatory as regards the applicants.
Conclusion as to refugee criterion
Accordingly, the applicants do not have a well-founded fear of persecution on this ground. Therefore, for these reasons given above, the Tribunal is not satisfied that either of the applicants satisfy 36(2)(a) of the Act
Complementary protection
100. As to the loan shark claim, the Tribunal accepts that the harms that the applicants claim that they could experience might amount to ‘significant harm’ within the meaning of the Act in the form of torture or cruel, degrading and or inhumane treatment or punishment.
101. The issue is whether is a real risk that they would experience it. The real chance test under the refugee criterion is the same as the real risk test under the complementary protection criterion. The Tribunal has found that there is no real chance that the applicants would experience serious harm under the refugee criterion. The Tribunal finds therefore that there is no real risk that the applicants would experience significant harm under the complementary protection criterion.
102. Further, the Tribunal finds that there is effective state protection available to the applicants as the concept is to be applied under the complementary protection criterion. Under s 36(2B) of the Act, there is taken not to be a real risk of significant harm if 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’. The Tribunal has earlier found that the applicant would receive effective state protection when considering the refugee criterion. In MIAC v MZYYL the Full Federal Court held that, to satisfy s 36(2B)(b), the level of protection offered by the receiving country, for the purposes of considering complementary protection must reduce the risk of significant harm to something less than a real one.[29] The Court expressly rejected the argument that s 36(2B)(b) requires only that the receiving country have an effective legal system for detection, prosecution and punishment, or a system that meets ‘international standards’. Instead, it was held that the provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm.
[29] (2012) 207 FCR
103. The Tribunal has found that there is effective state protection available to the applicant under the refugee criterion. The Tribunal further finds that it is available to them in the specific circumstances of their claim under the complementary protection criterion. In this case the Tribunal notes again the following:
(1) The loans are now more than 13 years old.
(2) The applicants have not heard from either lender for 13 years
(3) None of the family members have been contacted by either lender
(4) The sums of money (without taking into account interest) are relatively low and represent a low cost to the lenders if written off. Therefore, in the current law enforcement environment in Malaysia, the lenders in this case would not be highly motivated to risk arrest and prosecution by causing the applicants harm.
(6) The applicants have no up-to-date information about [Mr A] or [Mr B].
(7) Additionally, the applicants at no time ever complained to the police and never considered it.
104. Accordingly, the Tribunal finds that taking into account the evidence of the source and nature of the harm that the applicants claim they may face and the nature and degree of protection able to be afforded by the authorities from the specific harm faced, there is available to them effective state protection as the concept is understood under the complementary protection criterion.
105. As to economic hardship including difficulties finding work, A’s ageing/health issues, and any additional burden placed on B, the Tribunal finds that none of these factors, individually or cumulatively, could be considered significant harm within the meaning of the Act.
106. For the reasons set out above, the Tribunal finds that the applicants do not satisfy s 36(2)(aa) of the Act.
107. There is no suggestion that either applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, neither of the applicants satisfy the criterion in s 36(2).
Request for ministerial intervention
108. The applicants request ministerial intervention based on economic hardship and A’s age and health issues. The Tribunal attaches to the decision submissions and other material relevant to the applicants’ request (however, it was not possible for the Tribunal to print a copy of the GP report as it was not provided to the Tribunal in a format that made it accessible and is attached separately).
DECISION
109. The Tribunal affirms the decisions not to grant the applicants protection visas.
DATES OF HEARINGS:22 April 2025 and 10 June 2025
REPRESENTATIVE: Mr Paul OConnor (MARN: 0854511)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.
…
27 June 2024; Seven arrested in Johor crackdown on Ah Long activities, New Straits
Times, 8 April 2024, 20; Cops nab Ah Long worker who splashed red paint on house fence, Free Malaysia
Today, 16 March 2024; Police detain 2 men over vandalism of cars, houses, New Straits Times, 7 February 2024; Police investigate report on loan shark's paint attack in Batu Caves’ New Straits Times, 25 January 2024; Sarawak police on hunt for loan sharks hiring people to torch houses, Bernama (Malaysian National News Agency), 19 July 2023; Kelantan police declares war against loan sharks, New Straits Times, 7 July 202; 'Massive crackdown on Ah Long: 38 unlicensed moneylenders nabbed between June 5 and June 15, New Straits Times, 16 June 2023; Nine individuals arrested over threats made to "ah long" loan defaulters, Bernama (Malaysian National News Agency), 29 March 2023; Penang cops arrest ‘Ah long’ mule account holder over illegal RM2.67m loan, Bernama, 9 July 2023; Suspected ‘Ah Long’ nabbed inside aircraft in Senai, Bernama, 23 June 2023 ; Police arrest a team of Ah long thugs, The Star (Malaysia), 30 March 2023; Nearly 900 suspected loan sharks arrested so far this year, The Star Online(Malaysia), 11 October 2023; Loan sharks charged in Johor for harassment, vandalism, and drug offences, Malay Mail, 28 May 2025; Police say already booked 777 loan shark cases this year, Yahoo News, 26 November 2024; Four loan sharks arrested for criminal intimidation, The Star, 22 October 2024; Police detain 361 individuals suspected of loan sharking, Selangor Journal, 27 November 2024; Malaysian Loan Shark Arrested for Intimidation and Threats, Kiripost, 7 Aug 2024; Penang cops bust loan shark syndicate, nab 4 FMT, 11 May 2025; Four men arrested for involvement in loan shark syndicates in three states, The Star, 21 October 2024; Police Detain 361 Individuals Suspected Of Loan Sharking, Berama, 27 November 2024; Selangor police arrest trio in arson-for-hire scheme tied to Singapore loan sharks, Malay Mail, 24 April 2025
- AGLC
- 2010566 (Refugee) [2025] ARTA 1587
- Case
- [2025] ARTA 1587
- Decision Date
CaseChat Overview and Summary
The Tribunal examined the applicants' claims under the refugee criterion, considering whether they had a well-founded fear of persecution due to their status as victims of loan sharks or economic hardship. The Tribunal concluded that even if the applicants faced serious harm from these circumstances, it did not stem from a convention reason such as race, religion, nationality, membership of a particular social group, or political opinion. Furthermore, the Tribunal found that the harm was not systematic or discriminatory in relation to the applicants. Therefore, the Tribunal held that the applicants did not have a well-founded fear of persecution as required by the refugee criterion. Additionally, the Tribunal determined that the applicants did not meet the criteria for complementary protection, as they would not face a real risk of significant harm if removed from Australia.
Consequently, the Tribunal affirmed the decision under review, denying the applicants' claim for a protection visa. The Tribunal found that the applicants did not meet the necessary criteria for either refugee status or complementary protection. The Tribunal's decision was based on the evidence presented and the legal framework outlined in the Migration Act and Regulations. The applicants' request for Ministerial Intervention was not successful. The Tribunal's reasoning and findings were based on the specific circumstances of the applicants and the applicable law, leading to the conclusion that the decision to deny the protection visa should stand.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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