2011526 (Refugee)
[2025] ARTA 1516
•1 May 2025
2011526 (Refugee) [2025] ARTA 1516 (1 May 2025)
DECISION AND REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2011526
Tribunal Member: General Member B Gogarty
Date:1 May 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 01 May 2025 at 4:33pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from money lenders – personal loans while working in third country – increased repayments, harassment, threats and assault – lenders’ links to criminal organisation in third and home countries – approached during return visit to home country – implausible claims and no documentary evidence – history of loans and harm in third country accepted – country information – longstanding and ongoing illegal money lending and sometimes inadequate responses by state authorities to debtors – laws and wide-ranging crackdowns on lenders – no evidence of relevant links between home and third countries – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Mohamed v MIMA (1998) 83 FCR 234
MIAC v SZGIZ [2013] FCA 427
MIAC v SZQRB (2013) 210 FCR 505
MIAC v SZRKT [2013] FCAFC 80
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shang Liang (1996) 185 CLR 259
MIMA v Rajalingam (1999) 93 FCR 220
MZXRY v MIMA [2006] FCA 1475
Randhawa v MILGEA (1994) 52 FCR 437Any 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 Immigration and Multicultural Affairs on 9 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for a review of that decision to the Administrative Appeals Tribunal (AAT) on 12 July 2020. As the review was not finalised by 14 October 2024 when the AAT became the Administrative Review Tribunal (the Tribunal), the application for review to the AAT is taken to be an application to the Tribunal.[1]
[1] By virtue of the operation of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
The applicant who the Tribunal accepts is a Malaysian national, applied for the visa on 17 March 2019. The delegate refused to grant the visa on the basis that he did not meet the criteria for protection under s 36 of the Act.
The applicant appeared before the Tribunal on 20 January 2025 to give evidence and present arguments.
BACKGROUND
The applicant was born and spent most of his life in Malaysia, most recently in the state of Johor. The applicant told the Tribunal he has no spouse or children. His parents are separated. His mother lives in Sabah and his Father, lives in Johor. He has a younger brother who is currently studying at university in Sabah. The applicant told the Tribunal that he maintains contact with his family and sometimes sends them money when he can afford to do so.
The applicant completed primary and secondary education in different parts of Malaysia before beginning a diploma in [subject 1] which he did not complete and then going on to obtain a diploma in [subjects 2 and 3]. He said that he paid for his secondary education through a combination of family support and student loans.
Following the completion of his diploma the applicant was offered work for a [Country 1] company operating in Papua New Guinea (PNG). He said this role was as [a Job title], which he described as executive in [nature]. After accepting the role, he moved to Port Moresby in PNG in or around July 2017 where he lived for around two years in accommodation paid for by his employer.
The applicant said that he returned to Malaysia in 2018 and during that trip he decided to leave PNG permanently. He stated that he applied for an Australian tourist visa while in PNG and flew to Australia shortly afterwards. Movement records show the applicant arrived in Australia [in] February 2019.
After arriving in Australia, the applicant said he worked in a [workplace] in [Suburb] for around two years. He then obtained a full-time job in [work sector] in Melbourne, at a business he considers to be a well-respected employer. Despite the work the applicant said he is attempting to manage a significant amount of personal debt, including loans, credit card debt and payday loans totalling around $30,000. He also referred to overseas debt, including student and other loans, and estimated his total present liabilities are in the order of $80,000 to $90,000.
Evidence before the Department
In his original application the applicant made the following claims:
I left Papua New Guinea in a reason of taking a holiday in Australia while trying to negotiate with individuals which I have some financial issues with ,however they are seem not to be negotiable and decided to threaten me by harming me brutally and life threatening , those individuals are belonging to triad or gangster association which i am not aware before I got involve of owing them some money , they increased the interest unreasonably and demanded a big amount ransom in recent time or not they will brutally harm me and threaten my life . These individuals has connection between Papua New Guinea and also Malaysia whereas Im feeling afraid to be in any of these Countries as I had been threaten and hit before I decided to leave for holiday in Australia. After trying to negotiate with them as well they are even more aggressively threatening my life as well which I cant risk my life showing up in both countries which in Malaysia and Papua New Guinea. I am really afraid that these individuals will do what they do to some of the other victims I know recently. That is the main reason why I left these countries for protection.
…
[the details of harm experienced are] slap and kicks which left temporary bruises.. Threatening of weapons such as knifes , bush knifes and also baseball bats. I only know the individual called as [Nicknames].
…
Because I was really afraid and left the country while I still can. Some of the other association and organization are also their connections. These triads has connections even including some of the government department which are suppose to protect us but I believed they are being sponsored by these individuals threatening me as to my knowledge.
…
It is still not safe as the individuals has connection almost anywhere in both countries
…
I believe that i will be hurt and maybe forced into doing criminal stuffs and life threatened by them and maybe also into forced labor without pay. They might also brutally force me to point out my close relatives and also close friends to put them into trouble as well.
…
I believe they will hit me by weapon with intention to harm which include physical disability and also life threatening. They would do this as i believed they are triads and gangster which sometimes does not negotiate by reasons.
…
The authorities wont be able to protect me as these individuals will be able to get me once I enter the country. They also have connections within the government department which will be some of the authorities which will try to help me still will be not able to protect me and I do not want to risk the possibility of them getting into my families and threaten more of us.
…
These individuals have connections throughout the places of these both countries and i believe with my knowledge of knowing them recently they will be able to locate and threaten me again while Im back to any of these countries. ” [Mistakes in original, all-caps removed].
The department did not interview the applicant.
The Delegate found that the applicant had not substantiated his claims with sufficient evidence relating to the debt or its terms, the identity of the alleged money lenders, or the risk of harm they posed to him in Malaysia. The delegate considered that effective state protection was available to him in Malaysia. The delegate was not satisfied that the applicant subsequently met the definition of a refugee, or he faced a real risk of significant harm as a foreseeable consequence of being returned to Malaysia under ss 36(2)(a) or 36(2)(aa) of the Act.
Evidence before the Tribunal
On 3 June 2024, the AAT sent a letter to the applicant notifying him that the matter was to be constituted and inviting him to provide any updated relevant evidence or claims. The applicant completed a pre-hearing information form in response but did not update his evidence or claims.
The Tribunal file records procedural submissions relating to the hearing, but no substantive pre-hearing submissions other than an unlabelled bundle of images which appear to be screen grabs of two separate news stories from online, mobile websites. The first describes a Malaysian person working in Singapore who, along with his family, experienced predatory practices, and harassment after accepting money from persons on social media who the article suggests were scammers posing as money lenders.[2] The second describes an NSW police investigation of a suspected double murder a theory that debt was owed by the victims and the perpetrators may have fled overseas.[3]
[2] The relevant images appear to be of the online news article, Bavya Rawat “Despite repaying over $15,000 for $300 debt, Malaysian family still hounded by loan sharks” (AsiaOne, 5 March 2024) Mikala Theocharous "NSW Police investigating suspected targeted double murder after man's body found" (Nine News, 17 December 2024), >
The movement records relating to the applicant which were before the Tribunal and relevant to his claims indicated that the applicant arrived in PNG [in] July 2017, left that country [in] December 2018. At that time, he travelled to [Country 3] via [Country 4]. He returned to the PNG [in] January 2019 via [Country 3] and then flew to Sydney [in] February 2019.
Country information
Based on the applicant’s claims in his original application the Tribunal had before it, country information[4] about Malaysia and PNG prepared by the Department of Foreign Affairs and Trade (DFAT),[5] as well as other country material about those countries is footnoted through this decision. Both sources provided information on illegal money lending activities in Malaysia, but neither (DFAT and the Tribunal’s own research[6]) referred to any international connections or networks via which illegal money lending or related debt recovery is organised or conducted. The Tribunal was able to find literature suggesting transnational organised crime is on the rise in PNG, but not in respect of the sort of activities the applicant was referring to in his original claims.[7] The DFAT report for PNG does not contain any reference to illegal money lending or associated risks in the Tribunal was not able to identify any materials relating to that issue prior to the hearing.[8] Further country research was conducted by and on behalf of the Tribunal following the hearing.[9]
The hearing
[4]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.
[5] Department of Foreign Affairs and Trade Country Information Report – Malaysia (24 June 2024); Department of Foreign Affairs and Trade Country Information Report -- Papua New Guinea (6 September 2022).
[6] Sources consulted include targeted searches of CISNET, online general searches and searches of research repositories.
[7] A 2024 issues paper released by the National Research Institute of Papua New Guinea highlighted “inadequate capacity among police personnel and insecure borders have led to a rise in activities such as human trafficking, wildlife trafficking, firearms smuggling, drug smuggling, artifact smuggling, and maritime piracy” but made no mention of loan-shark or other similar crime activities with a PNG connection. See Julian Melpa “Transnational Crime on The Rise In Papua New Guinea: Challenges And Some Ways It Can Be Addressed” (2024) Issue Papers 46, National Research Institute Papua New Guinea, Similarly, the United Nations Office on Drugs and Crime 2024 report “Transnational Organized Crime in the Pacific: Expansion, Challenges and Impact” highlighted the following transnational criminal risks in PNG, illegal trade in small arms and weapons (p 39), drug trafficking, (pp 45-69), people trafficking, sex trafficking and forced labour (pp 70-84), environmental crimes (pp 93-110), cybercrimes on public institutions (p 133), UNDOC, October 2024, < (accessed 1 April 2025).
[8] Ibid.
[9] See note 19.
At the review hearing the applicant was asked to articulate what his fear or fears are about returning to Malaysia. In response he said that believes that he will “face serious harm and also threat of life if I actually return to my home country”.
Consistent with his original application, the applicant said that this fear arises from debts incurred around late 2017 or early 2018 while he was living in PNG. He said he took out a loan to assist his mother who was in financial distress and to address his own financial needs at the time. The applicant said a friend put him in touch with a group of individuals – who he later identified as Chinese Malaysians – who offered credit services from commercial premises (which may have been a gambling business, restaurant, or both). He said the creditors were “like gangster or loan sharks”.
Country information indicates that a contributor to Malaysia’s so called “loan shark” problems is that the limits on lending at interest and other restrictions on legal moneylenders create a black market for unlicensed lenders.[10] That does not appear to be the case in PNG and the applicant was therefore asked why he did not simply take a loan from a bank or licensed credit agency in that country. He said that he was not making a large amount of money at the time, was not a permanent resident, and believed he would not be approved for a loan in PNG. He also claimed that, when he took out the loans, he did not know that the lenders were part of a criminal organisation, and only later discovered they were Triads who operate between, at the very least, Malaysia and PNG. He said that the Malaysian lenders operate in PNG “because there's a lot of Malaysian big companies are actually based in Papua New Guinea at the moment”.
[10] DFAT Country Report – Malaysia, note 4
The applicant told the Tribunal he requested approximately [amount] PNG Kina (around AUD$ [amount] at the time of the hearing) and was told the interest rate on that loan amount would be around 15%. He said that this “sounded reasonable” and agreed to sign an “IOU”, provided employment details, and then received the loan amount in cash instalments.
When asked about the repayments, the applicant said that he paid the first three or four months as agreed, but “defaulted” by two weeks on one payment. He claimed that this led to an escalation in demands by the creditors who demanded “three times” the amount of monthly interest. The applicant said that his attempts to negotiate a fairer amount were fruitless and the creditors insisted he paid the higher amount. However, he said that he continued to pay only pay the 15% of interest he had originally agreed in monthly payments over the next six or seven months. To avoid harassment, the applicant said that he avoided in person meetings with the creditors and sent a friend to pay on his behalf.
The applicant claimed that the creditors began to issue threats against him using a social media [app], demanding the full interest that they asserted he owed and that, if he did not pay it, they would increase his interest again, by “multiply, doubling up the interest”. Asked if he had records of these threats, the applicant said he had lost the phone that they were stored on.
The applicant said that he eventually met members of the illegal money lending organisation while shopping for groceries. He said he was approached in a car park and was punched, kicked, and held off his feet. The applicant said he had “never faced anything like that in his life”, but didn’t go to the police because, in PNG “the police actually robbed you” and that he believed many were “corrupted very badly”. He also did not go to a hospital, saying he believed it was unsafe for an expatriate to do so in PNG. Nor did he report the incident to an employer, because he also owed them money from an advance they had given him, adding that “most of them are really scared when anything small things happens, they will always say, oh, you're not supposed to do this, you're not supposed to do that”. Instead, he retreated to the secure compound in which he lived and limited his movements as much as possible.
Asked why he had not kept any records of the assault given its seriousness, the applicant said that he was panicked by the situation and ultimately lost his phone. He further claimed “I never thought about evidence” as he had not considered coming to Australia for protection, and “didn’t know that there is something like a protection visa” until he met some friends in Australia, and they suggested he apply for one.
The applicant stated that he continued to pay the ordinary rate of interest to the creditors after the carpark assault, and then took a holiday to Malaysia in around December 2018, and didn’t pay them for the month he was away. Asked what the reaction of the creditors was to his non-payment, he said that they messaged him and said: “Don't think that we can't find you in Malaysia at that time”; and separately that “you come back here, we got a good deal for you, we'll talk it out”. He claimed that while still in Malaysia on holiday in the Genting Highlands in Peninsular Malaysia he was approached by a stranger who told him that he had been living in PNG and asked him “do you know this guy?” and that he said no and walked away. He said the stranger did not stop him or do anything, but that “from there I had an idea that they actually know where I am”. The applicant claimed that the event proved that the PNG creditors “literally know my movement where I was in Malaysia” and could find him “at any time they want if they want to”.
The applicant returned to PNG in January 2019 to continue working there. Asked why he would do that given the serious assault and ongoing risks he faced there, he said that he was forced to for financial reasons. He claimed that a week after he returned, he was contacted by a person identified as “[Mr A]”, who he described as being high up in the criminal organisation. He said [Mr A] met with him in person, was holding a firearm, showed him the IOU, and asked if he was going to repay. The applicant told the Tribunal: “at that point, the only thing that I can say is yes, because I just want to get out of it.” The applicant did not report the encounter to PNG police. However, he said it was the catalyst for his departure from PNG and decision to flee to Australia.
The applicant was asked if he had read the delegate’s decision and in particular its concern about the lack of any credible evidence of a link between organised criminal money lenders operating between Malaysia and PNG. The applicant said he had, and that his messages (which the Tribunal took to mean social media or messaging app messages) were the only thing that he had to prove such a link. However, he said that he had left PNG in a panic and didn’t retain these. He said that he could not obtain any other supporting evidence of those links. The applicant reiterated that the creditors were Malaysians who were simply operating in PNG, rather than Papua New Guineans. He said that, given the size of their operation: “if they are organisation like that, I believe they would have it in Malaysia too … they know my whereabouts … I'm pretty sure they're well connected”.
The applicant said that after arriving in Australia he attempted to restart negotiations to repay the PNG creditors, but they continue to insist on the full amount at the higher interest rate. As a result, he said that he blocked all contacts and ceased communications. However, he said that he continued to receive messages from social media users which would start like “normal conversation” but then transitioned to saying they knew he used to be in PNG or asked where he had moved to, and some became “weird messages, like threatening”. Asked if he had records of these conversations the applicant said he did not as they were on his old phone.
The applicant was asked if he had considered the delegate’s finding that he could return to Malaysia without the PNG creditors knowing. He said that was not possible as even though he was not living in his “regular area” when he returned on to Malysia in 2018, the creditors knew where he was and “found me within a day” so “I don’t risk this”. The Tribunal pointed out that this would require accepting that an organised criminal organisation operated between PNG and Malaysia, with connections to Malaysian border authorities, and had told those officials to alert them of the applicant’s movements to and within Malaysia, notwithstanding it is a relatively small sum of money in the context of international organised crime. The Tribunal highlighted a lack of support from the country information to support that form and degree of conspiracy. The applicant said that while Malaysian corruption is not as bad as that affecting PNG, the latter country “is well known as one of the high corrupted countries as well” and “if they did have somebody inside, which I assume very well that they do because they are Triad gangsters and they're doing a lot of stuffs like this and still gets away with it until today”. While he acknowledged he did not have any evidence he asserted “I really believe that will happen”.
The Tribunal noted that given the amount of time that had apparently passed, it may seem likely that he was no longer being pursued by any organised criminals or corrupt border officials. The applicant acknowledged the issue but did not respond to it.
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. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[11] 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.
[11] Chan Yee Kin v MIEA (1989) 169 CLR 379.
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’). Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB,[12] the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. 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.
[12] (2013) 210 FCR 505.
The Tribunal’s fact-finding role
In assessing the credibility of an applicant's claims, the Tribunal must make findings of fact in relation to each claim and its integers. This process necessarily takes places within a statutory framework that places the onus on the applicant to establish that they are a person in respect of whom Australia has protection obligations.[13] At the same time, the Tribunal must remain alert to the inherent difficulties faced by applicants who may have fled their country of origin, or who are required to recount experiences of harm, including the effects of trauma, cultural differences, language barriers and the passage of time.[14] Given these factors may affect the applicant's ability to produce documentary or other evidence to substantiate their claims there is no legal requirement that those claims must be corroborated to be accepted by the Tribunal.[15] However, that does not mean that the Tribunal must uncritically accept claims or evidence that it considers implausible, manufactured or otherwise unreliable.[16] Rather it is the role of the Tribunal to assess the veracity of each claim in light of the material facts before it.[17] A reasonable approach to credibility must be adopted, taking into account the totality of the evidence, the particular circumstances of the applicant, and the country information available applicable to it.[18]
Mandatory considerations
[13] Migration Act 1958 (Cth) s 5AAA; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 570
[14] MIAC v SZRKT [2013] FCAFC 80, [79]; MIEA v Wu Shang Liang (1996) 185 CLR 259, 291; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 1992, [196].
[15] MZXRY v MIMA [2006] FCA 1475, [11]; Mohamed v MIMA (1998) 83 FCR 234, 246 (Hill J).
[16] Randhawa v MILGEA (1994) 52 FCR 437,451.
[17] Mohamed v MIMA (1998) 83 FCR 234, 246 (Hill J).
[18] MIAC v SZGIZ [2013] FCA 427, [42]; MIMA v Rajalingam (1999) 93 FCR 220, 224.
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
A key issue in this case is whether the applicant has established that he is at a real risk of being harmed – even setting aside the question of whether the harm is serious or significant – in Malaysia because of events he claims happened in PNG. That requires accepting that the PNG creditors are willing and able to track his movements in Malaysia and pursue him for the debt they claim from him. To the extent that the Tribunal is not satisfied that is a credible, objective, and real risk it considers the issue dispositive, given that risk is the basis for the applicant fearing harm (in either the serious or significant sense) as a foreseeable consequence of being returned to Malaysia. For the reasons set out below the Tribunal is not satisfied that there is a well-founded fear of harm to the applicant on the objective evidence before it.
There is ample evidence that the applicant has struggled with debt in every country he has lived in, including Australia, up to the present day. The Tribunal accepts that:
· The applicant may have become indebted to creditors in PNG.
· There are unlicensed creditors operating in PNG and that the applicant may have sought a loan from them given his financial circumstances, residency status and lack of security at the time.
· The applicant may have come to fear harm from his PNG creditors when he could no longer service his debts to them.
· The applicant may have been harmed by those creditors, or their associates in PNG.
· The people who threatened the applicant indicated that he could not simply abandon his liability by leaving PNG, and that they could track him in Malaysia.
However, the Tribunal does not accept that these findings objectively support a rational basis for the applicant to fear harm in Malaysia. The Tribunal finds that this definitively breaks the causal chain between the events in PNG and any alleged risk in Malaysia.
The applicant’s asserted fear hinges on the proposition that his PNG creditors and their associates have the capacity and inclination to pursue him across borders – specifically to track him down in Malaysia and inflict harm there. The Tribunal raised its concerns with the applicant that the evidence and country information did not provide an objective basis for such a fear.
Country information about Malaysian illegal money lending syndicates and the organised crime gangs they are part of indicates that they are domestic and internally territorial, insofar as they tend to be involved in “turf wars” in different states of Malaysia.[19] The Tribunal made substantial efforts to find country information that would support the applicant’s assertions about transnational loan shark syndicates operating between PNG and Malaysia. It was not able to do so before the hearing, nor after the applicant had given further evidence at that hearing.[20] Nor was the applicant able to provide any documentary evidence to support his claims, despite being on notice since the primary decision that the delegate could also not find any credible country information about such transnational activities. For the avoidance of doubt the Tribunal has reviewed all the screen shots of news articles provided by the applicant in his bundle of pre-hearing evidence; and found that nothing in that bundle supports a link between unlawful money lenders in PNG and Malaysia much less the sort of transnational organised crime the applicant alleges.[21]
[19] Global Initiative Against Transnational Organized Crime, Organized Crime Index 2023: Malaysia (Report, 2023), 4 < Mohd Mizan Aslam and Gerald Kamalanathan Pillai, 'Mitigating Crimes & Securing National Security Using the National Core Values' (2022) 14(5) Journal of Public Security and Safety 117, 119 < ; Raviechandran, Shathesh and NK Tharshini, ‘Gang Membership among Malaysian Indian Young Adults’ (2023) 13(7) International Journal of Academic Research in Business and Social Sciences, 1325 < Mohd Mizan Aslam & Gerald Kamalanathan Pillai “Mitigating Crimes & Securing National Security Using The National Core Values” (2022) 2:14 Journal of Public Security and Safety, 117. Criminality in Malaysia - The Organized Crime Index, accessed on April 25, 2025, < See notes 6-9 above. Following the hearing the Tribunal again conducted online general searches and searches of research repositories and global crime data (ocindex.net). In addition to its own research the Tribunal requested country research be conducted in relation to unlicensed money lenders or loan sharks in Malaysia, country researchers undertook independent searches of CISNET, government and non-governmental organisations, domestic and international media outlets, and targeted internet searches.
[21] See notes 2-3. The first story relates to a Malaysian person who was in Singapore and was apparently subject to an online scam after seeking a small loan. The article does not identify the location of the scammers, other than to suggest, but not confirm, they operate in Malaysia. The second news outlines police ‘suspicion’ of why a couple might have been murdered in NSW, and where the suspects might have fled, but has no reference to or suggestion of organised criminal networks operating within Malaysia or having any connections there.
The applicant’s oral evidence in support of his proposition of transnational organised criminals operating between PNG and Malaysia was advanced on two bases. First, he sought to prove it by reference to his own purported knowledge of loan shark syndicates, combined with his speculation that, because of the size of the syndicate he borrowed money from in PNG, that organisation must be well connected in Malaysia. Second, he supported his assertion on the basis that he had an interaction with a stranger in Malaysia while he was on holiday from PNG in the Genting Highlands. For the following reasons, the Tribunal did not find the applicant’s answers compelling or credible.
The applicant’s assertion that his creditors are part of a “Triad” group with links “in both countries” was not supported by any information or evidence he provided. The applicant’s evidence does not support him having anything but a peripheral and highly unreliable knowledge of the organisation his PNG creditors belonged to. He conceded that he only knew one or two of them by name. He could not provide details of their organisation beyond it being a credit service that may have operated from a restaurant or gambling venue. He had very limited interactions with them during his time in PNG.
Nothing in the applicant’s evidence suggests that he had any knowledge or reason to have insight into the size, reach, or resources of the organisation beyond what those individuals told him. It is not plausible that criminals would genuinely and honestly disclose such things to a person like the applicant in the circumstances. The one specific threat the creditors allegedly made – that they could “find him in Malaysia” if he failed to pay – does not, in the Tribunal’s view, prove an ability to carry out that threat. Such words are more plausibly hyperbolic and designed to pressure the debtor to hold to their bargain as part of an unlicensed lending arrangement than they are proof of a sophisticated international surveillance capability. Country information about Malaysia – where the applicant asserts his creditors transnationally operate – suggests that illegal lenders’ tactics are opportunistic and aimed at immediate intimidation to recoup debts rather than sustained surveillance, tracking and long-term persecution of debtors.[22]
[22] Department of Foreign Affairs and Trade, Country Information Report Malaysia (24 June 2024), [3.149]-[3.154]. Global Initiative Against Transnational Organized Crime, Organized Crime Index 2023: Malaysia (Report, 2023), 4 <>
The Tribunal is also not satisfied that the applicant’s answer that he was approached by a stranger in the Genting Highlands (Malaysia) while on holiday proves that he was being tracked by the PNG creditors. The Tribunal provides the applicant the benefit of the doubt and accepts that he did briefly interact with the stranger and the stranger asked him if he knew a person, namely “do you know this guy”. The Tribunal is willing to infer from the evidence that the name of “this guy” was the same as a person in PNG, and possibly one of the creditors the applicant had been interacting with, even though the applicant did not go so far to state that in his evidence. However, the applicant stated that when he denied knowing that person the stranger walked away and there was no other interaction or any other repercussions or events from the brief interaction. The stranger did not identify themselves, their associations, make any direct connection with creditors or organised criminals in PNG or Malaysia, or even state that they knew the applicant. The applicant did not give evidence that “[Mr A]” or any other person involved with the PNG creditors referred to or knew about his interaction with the stranger when he was in Malaysia. In the Tribunal’s view the interaction was more plausibly a case of coincidental, mistaken identity. Given the applicant’s understandably heightened state of anxiety at the time it is understandable that he might have made assumptions about the encounter that are not supported by rational or objective scrutiny.
For the Tribunal to accept that the brief interaction was proof that the applicant’s movements were tracked, it would need to accept that such tracking was possible and plausible in the circumstances. It does not. For the PNG-based creditors to have orchestrated the encounter (or otherwise monitor the applicant’s whereabouts in Malaysia), they would have needed to access data and resources well beyond what has been established on the evidence. The applicant was travelling in Malaysia as a private citizen. To track him to a specific location like the Genting Highlands would require extraordinary surveillance efforts by the creditors, and on his evidence, the authorities they colluded with. It would also generate risk of exposure for both the organised crime gang and the corrupt officials providing personal and tracking data. The Tribunal considers the applicant’s insistence that he would be subject to such a coordinated form of transnational surveillance in the circumstances, and given the amount he owed, to have no reasonable or rational basis. The Tribunal does not accept applicant’s purported knowledge of money lenders or his speculations in the circumstances and prefers the country information available to it.
The most recent DFAT Country Information Report on Malaysia acknowledges the longstanding and ongoing problem of illegal money lending in the country, and sometimes dismissive responses by state authorities to the plight of debtors.[23] However, DFAT and other country information indicates that authorities have: enacted laws to deal with; established specialist bodies to target; and engaged in wide ranging crackdowns on illegal money lenders and associated gangs.[24] This indicates that Malaysian authorities target, rather than collaborate with, criminal gangs. While DFAT acknowledges political and low-level corruption is an issue in the country,[25] the Tribunal was unable to identify any country information supporting systemic collaboration between state authorities and organised crime for tracking purposes.[26]
[23] Department of Foreign Affairs and Trade, Country Information Report Malaysia (24 June 2024), [3.149]-[3.154].
[24] Ibid, [3.153]; Nuradzimmah Daim ‘Three ministries to formulate solution to Ah Long problem’ (Perak Today, 29 March 2016)< ;Ed. ‘We are coming after you, IGP warns loan shark’, (Bernama, 22 Oct 2019) Ed. ‘801 loan sharks arrested this year, over RM2.92mil in loans’, Free Malaysia Today, 9 September 2021.
[25] Department of Foreign Affairs and Trade, Country Information Report Malaysia (24 June 2024), [5.5].
[26] While a December 2021 report mentions loan sharks engaging gangsters for debt collection, this indicates a link between criminal elements and private individuals rather than a coordinated effort with government agencies for surveillance. [Department of Foreign Affairs and Trade, Country Information Report Malaysia (29 June 2021), 3.112] The Tribunal could find no other relevant information in the current or historic country reports for Malaysia resembling the type of collusion alleged.
In summary, the necessary elements required to support the applicant’s assertions of a coordinated conspiracy between organised crime and state authorities to track him in Malaysia are improbable, unrealistic and not supported by cogent evidence. The Tribunal has rejected both the applicant’s speculative claims about the nature and scale of the PNG syndicate and its purported Malaysian connections, and his account of the Genting Highlands interaction as demonstrating surveillance or targeting. When considered within the context of events recounted about the Genting Highlands meeting – and the Tribunal’s finding they were more likely coincidental, mistaken identity – the Tribunal rejects that event as providing any support to the applicant’s claims. That is, the Tribunal is not satisfied that the applicant was been tracked or surveilled in Malaysia by people who would harm him in the past, nor that there is any reasonable evidence would be subject to such a risk in the future.
Based on all the objective, credible evidence before it, the Tribunal does not accept the applicant’s claim that any PNG creditors he is indebted to have meaningful connections with individuals or organisations in a manner which is material to his case. Nor is it satisfied that the PNG creditors have any ability to enforce their debt agreement against the applicant in Malaysia. That agreement, was, by definition, illegal and unenforceable in both countries. The Tribunal is not satisfied the creditors have any other means, illegal or otherwise, to identify the applicant’s location in Malaysia, and if he was there, to compel him to pay his debts or harm him if he does not. For all intents and purposes, the applicant is free to come and go from Malaysia without knowledge, interference or any reasonably foreseeable chance of harm from his PNG creditors.
The Tribunal has considered all of the evidence and claims before it. The core claim that the applicant would be targeted in Malaysia by PNG creditors has not been established. That finding is determinative, insofar as the absence of a link between the applicant’s history in PNG and his future risk in Malaysia all other aspects of the applicant’s claims fall away. The Tribunal has considered all the materials before it and is not satisfied they raise implicit, alternative or residual claims that do not rely on the determinative link between PNG and Malaysia.
DECISION
The Tribunal finds that there is no objective evidence that the applicant faces a real risk or real chance of harm – much less serious or significant harm – as a reasonably foreseeable consequence of being returned to Malaysia. As that is an essential element for both forms of protection provided by s 36 of the Act, the applicant is determined not to meet the criteria for refugee status or complementary protection under ss 36(2)(a) and s s36(2)(aa) of the Act respectively.
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 20 January 2025
Representative for the Applicant: N/A
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.
…
0
10
0