2104913 (Refugee)
[2025] ARTA 1432
•20 March 2025
2104913 (REFUGEE) [2025] ARTA 1432 (20 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2104913
Tribunal:General Member T H R Baggiano
Date:20 March 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 20 March 2025 at 10:43pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – homosexual – economic conditions – physical assault – fear of killing – employment – state protection – internal relocation – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCA 437
Selvadurai v MIEA (1994) 34 ALD 347Any 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 16 April 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (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 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal. This decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a national of Malaysia, applied for the visa on 15 June 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant was invited to appear before the Tribunal on 10 February 2025. On the day of hearing, the applicant requested for the hearing to be rescheduled to a later date so that he could find a representative to assist him. The Tribunal agreed to rescheduling the hearing. The applicant appeared before the Tribunal on 12 March 2025 to give evidence and present arguments. The applicant did not appoint a representative as originally planned. He explained that he could not find a representative to assist with his matter. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background and receiving country
The applicant claims to be [an age]-year-old national of Malaysia.
The applicant has claimed his place of birth as Johor and his religion as Islam.
The applicant arrived in Australia last arrived in Australia [in] August 2018 on an Electronic Travel Authority (subclass 601). The applicant lodged a protection visa application which was subsequently received by the Department on 15 June 2020.
The applicant provided a copy of the biodata page of his Malaysian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Malaysia and there is no information before me to the contrary. I find that the applicant is a citizen of Malaysia, and that Malaysia is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
In his protection visa application, the applicant claimed that he left Malaysia due to borrowing money from his family and from a bank for business capital. He stated that he borrowed RM 35,000 from his family and RM [amount] from the bank. A few months later, his business ‘was down’ because of Malaysia’s economic situation, resulting in him being unable to pay back the debt within the given period.
In relation to his past experiences in Malaysia, the applicant stated the following:
a.He did not seek help within Malaysia because he did not get harmed and therefore did not need help;
b.He tried to move to Kuala Lumpur to work so that he could cover his debt but could not collect enough money to settle his debt.
In relation to what he fears upon return to Malaysia, he stated that:
a.If he returns to Malaysia with the present economic situation, he does not think that he will be able to pay back the remaining debt within the given period;
b.He does not think that the authorities in Malaysia would protect him because his issue relates to a personal matter and that the government will not interfere in such matters;
c.He is scared to try to relocate because the ‘same things will happen’ and he already knows of Malaysia’s economic situation. Either he moves to another country or he is unable to repay his debt within the given period.
The applicant was not invited to attend an interview with the delegate.
Based on the delegate’s decision, the delegate found that the applicant is not a refugee as defined by s 5H(1) of the Act and that he is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. The delegate also found that they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
Evidence before the Tribunal
Applicant’s pre-hearing evidence
On 4 November 2024, the Tribunal invited the applicant to complete a Pre-hearing Information form.
On 9 November 2024, the applicant completed the form and returned it to the Tribunal. Of note, the form asked the applicant if he wanted to provide any more information about his protection claims and whether there are any other reasons he is afraid to return to his home country. In response, the applicant stated the following:
a.I don’t live my normal life here if I go back to Malaysia.
b.My family forbids me to marry the same sex. If I do it I will be thrown out of the family.
c.I can’t stop the same-sex addiction. If I am sent home I will go crazy.
Applicant’s oral evidence
Preparation of protection visa application
The applicant stated that his application was prepared by a friend known to him as [Mr A]. [Mr A] completed the protection visa application form for the applicant. The applicant confirmed that he provided verbal responses to the questions on the protection visa form, and his friend transcribed the information into the form by hand. When the form was completed, [Mr A] did not re-read the responses to the applicant.
Asked whether the applicant has since read the responses in his protection visa application form, he stated that he had not. Asked whether the applicant can confirm if the details in the protection visa form are correct, he responded by saying that he is not sure but will be able to explain his situation during the hearing.
Personal and family background
The applicant completed school up to [grade].
After school, the applicant worked a number of jobs and never stayed permanently in any one place. He moved around to different locations for work. From 2016 until he relocated to Australia, the applicant resided in [Town 1] in a rental property.
The applicant’s mother and [number] siblings reside in Malaysia. His father passed away in 2006. The applicant last spoke to his family in 2017. He is no longer in contact with his family. The applicant is the [position] in his family. The applicant became visibly emotional when speaking about his family members.
In relation to his employment history, the applicant stated that he has worked in various jobs, including as [three roles specified]. Asked whether the applicant ever worked in a textile store or supermarket as declared on his protection visa application, the applicant confirmed that he had not.
Asked how he supports himself in Australia, the applicant stated that he previously worked on a farm in Australia but spends his time ‘mostly learning about the lifestyle in Australia’. I prompted the applicant to advise whether he is currently working and he stated that he is working for a small [business], and that he pays his taxes.
The applicant stated that he does not provide any financial support to anyone else.
Asked when he arrived in Australia, the applicant confirmed that he entered Australia in August 2018.
Reasons for departing Malaysia
As the applicant stated that he was not sure if the details in his protection visa form were correct, I read out an excerpt of his claims which summarised that he could not return to Malaysia due to a debt owed to his family and the bank for his business capital. His claim had specified that he owed RM 35,000 to his family and RM [amount] to a bank. A few months later, the applicant’s business failed due to the economic situation which resulted in the applicant being unable to pay his debt. Asked whether the claim was correct, the applicant stated that he did not borrow money from a bank but rather from illegal money lenders. Asked whether the amounts of money referenced in the claim were correct, he answered in the affirmative.
The applicant confirmed that he borrowed two separate amounts from two illegal money lenders.
The applicant’s written claim mentions that he borrowed money for business capital. I asked the applicant why he did not mention ownership of a business when we discussed his employment history. The applicant stated that while he owned a restaurant, this was only for a short period of around eight months. The applicant subsequently clarified that his business was not a restaurant but rather a ‘small food place’. The business was not successful as he could not grow his capital and there was a downturn in business.
I noted that in the applicant’s Pre-hearing Information form to the Tribunal, he mentioned his sexuality but did not mention his debt to loan sharks. The applicant stated that he wanted to add to his claims during hearing.
Asked why the applicant did not mention any issues relating to his sexuality in his protection visa application form, he explained that he was not familiar with the form and therefore left some fields blank. Asked whether he mentioned his sexuality to [Mr A] who assisted him with completion of the protection visa form, he said that he did not as he wanted to protect his privacy and because he thought the information was personal and that he did not need to tell [Mr A] about this. Subsequently, it was clarified that the applicant thought that I was asking him about the declaration of his sexuality in general, and not specifically regarding homosexuality and why this was not declared in his protection visa application.
I asked the applicant what subsequently prompted him let the Tribunal know that he is attracted to the same sex. The applicant stated that he is not sure because he did not fill out the form. The Pre-Hearing Information form was filled out by a work colleague known to him as [Mr B].
I then read out the information provided on the Pre-Hearing Information form (also summarised at paragraph 21) relating to the applicant’s sexuality. The applicant advised that the information was not true.
I asked the applicant to confirm his sexuality – whether he is heterosexual, homosexual or whether he identifies with any other type of sexuality. The applicant stated that he had not had a relationship with the same sex but that he has ‘done other things freely’. Asked whether he is attracted to the same sex, the applicant answered, ‘a little bit’.
Given that the applicant had relied on a friend to complete his protection visa application and Pre-hearing Information form, I provided the applicant with the opportunity to explain in his own words what his claims are and why he cannot return to Malaysia.
The applicant stated that since 2016, he had borrowed money from loan sharks but found it difficult to pay the loans back and subsequently became bankrupt. He found it difficult to secure jobs that could assist him in paying back the loan. He then spoke to a friend who told him that Australia can provide him with protection. The applicant claimed that he had been threatened and hit by loan sharks.
Asked whether the applicant faced any other issues outside of his debt to loan sharks, the applicant confirmed that there was nothing else. He only has the issue relating to his loan.
I asked the applicant why his friend would input information about homosexuality in the Pre-hearing Information form, he answered that his friend had mentioned that this type of information would make it easier for the applicant to obtain a visa. I explained to the applicant that providing false and misleading information to the Tribunal would not assist him in his matter. The applicant stated that he did not know at the time but now knows and is sorry for that.
I stated that based on my discussions with the applicant, my understanding is that the applicant does not identify as being a homosexual person. I asked the applicant to confirm my understanding. The applicant confirmed this to be correct.
Asked what harm the applicant experienced in Malaysia, the applicant stated that when he came to Australia, he received lots of threats from loan sharks who said that they would kill him if they find him.
Asked whether the applicant sought help, the applicant stated that he tried borrowing money from banks but his applications were all rejected. Asked whether he sought help from authorities in relation to the threats and harm from loan sharks, he confirmed that he reported the incidents to the authorities but since the loan sharks are gangsters, they can do what they want.
Asked whether the applicant tried relocating to other areas of Malaysia, the applicant stated that he felt he should not move anywhere as loan sharks in Malaysia have a vast network where they can find everyone.
Asked why the applicant’s protection visa form mentions borrowing money from family and a bank, the applicant stated that he did not fill out the form. He simply told his friend what needed to go into the form.
In relation to the loans, the applicant explained that he initially borrowed money to grow his business but since he had no money for himself, he ended up using the money for his personal needs.
In relation to the loan amounts, I reminded the applicant that I had read out to him his protection visa claim where he claimed to have borrowed RM 35,000 from his family and then RM [amount] from the bank. He had confirmed that the claim was correct apart from who he owed money to and had subsequently confirmed that he had only borrowed money from two loan sharks.
Asked how he found the loan sharks, the applicant stated that in his area, it is very easy to locate the services of loan sharks. He confirmed that he met the loan sharks in person to secure the loans.
The applicant then stated that the first loan that he applied for in May 2016 was for RM [smaller amount] and the second loan was taken out at around the end of 2016 for the amount of RM [larger amount]. In relation to the first loan, this was paid off and no interest was charged. For the second loan, the loan shark initially did not charge interest but subsequently started demanding interest payments. The loan shark demanded a total of RM [total amount] consisting of RM [amount] as the principal amount and an additional RM [amount] in interest.
The applicant explained that when he was almost finished paying his first loan with no interest, he was offered a subsequent loan also with no interest. Asked whether it is common for loan sharks to provide loans without interest, the applicant explained that they use a lot of methods to entice him to borrow more money from them.
Asked whether there was any paperwork to evidence the loans, the applicant stated there was no paperwork. He then subsequently stated that there was an agreement for the first loan but that he could not provide a copy as it was on his previous mobile phone that has been lost.
The loan amounts were handed over to the applicant by the loan sharks in cash.
Asked how he repaid the loan and whether he was given receipts from the loan sharks, the applicant stated that all payments were in cash and that no receipts were given. I asked the applicant how the loan sharks would track the debt owing if receipts were not provided. He stated that the loan sharks were the ones who gave the loan, so they know exactly how much is owing.
Given that the applicant paid the loan in cash, I asked the applicant if he withdrew the amounts from his bank account and whether he would have evidence of this. The applicant confirmed that he did withdraw payments from his bank account but that all evidence has been lost given that he lost his previous mobile phone. I asked the applicant if he could contact his bank to obtain bank records or statements showing these transactions, he stated that for statements of withdrawal he might be able to. If bank statements could be provided, I requested that the applicant highlight all cash withdrawal transactions that were being handed over to the loan sharks as repayment of debt. If the applicant is unable to obtain bank statements or records from his bank, I asked the applicant to write to the Tribunal outlining his attempts and why the records could not be obtained.
I asked the applicant how often he was making repayments to the loan sharks and whether there was an agreed schedule. The applicant stated that repayment was on a weekly basis, with the minimum repayment amount being RM 100. He has not made any repayments to them since arriving in Australia as he is scared to be in contact with the loan sharks. He also stated that he does not have the financial capacity to make repayments to the loan sharks.
The applicant stated that he repaid the first loan within three months. After that time, he received an offer for the second loan. In relation to the second loan, he paid off approximately RM 3,000 but could not pay back any further amounts after that.
Asked how the applicant managed to avoid the loan sharks and stay safe in Malaysia from early 2017 when they first confronted him in his rental home until August 2018 when he departed for Australia, the applicant stated that minimum repayments were RM 100 and when he could not pay, the let him go with a warning. After a few attempts, he was unable to repay the debt and went to Australia.
I asked the applicant to detail all instances of harm or threats from the loan sharks. He explained that in early 2017 when he lived in his rental home, loan sharks came to his house to hit him and threaten him. He sustained injuries on his head and hands from being hit by the loan sharks. They also damaged his property. The applicant stated that he made ‘lots of reports’ to the police but they did not do anything. Asked whether the police provided the applicant with copies of his reports, the applicant stated that they did, and that he had photos of these reports, but he lost all of this documentation when his mobile phone went missing. I asked the applicant if it would be possible to contact the relevant police station to ask for copies of these reports. His response was that it has been a long time and he does not believe that the police can help him. I asked the applicant whether he could attempt to contact the police station rather than assume that they will not assist. He stated that he has not contacted them since making the original report and thinks that they do not have that information. I prompted the applicant again and asked him if he would at least attempt to contact the police station. He stated that he would not because if he contacts them, they will not take any action.
Asked whether the loan sharks continued to threaten the applicant while he was in Australia, the applicant stated that the last incident was in early 2018 when he arrived in Australia. They left a note on the door of his rental property in Malaysia stating that if he does not want to be killed, he should pay the loan. The applicant’s friend came across the note. Asked whether the property had been tenanted out after the applicant left, the applicant stated that after he travelled to Australia, his friends would check on his former rental property to ensure there were no disturbances, and this is when they found the note from the loan sharks. Asked whether the property was an ongoing rental property and whether the place had subsequently been rented out to another tenant, the applicant responded by saying that perhaps due to the disturbances from loan sharks, it may have been difficult to find interested tenants.
I discussed with the applicant that when I had asked him to list out his family members in Malaysia, I noted that he was visibly emotional. I asked the applicant if he could explain why the mention of his family conjured up those emotions. The applicant explained that because he borrowed money from loan sharks, his family were not happy with his decision. They also did not assist him with repayments. He stated that his family rejected him and cast him away, so he had to survive by himself.
Asked whether his family members were ever threatened by the loan sharks for his outstanding debt, the applicant stated that in 2017 after he was directly threatened by the loan sharks, they also approached his sister and threatened her. It was after that incident that his sister reported this issue to the applicant’s wider family, after which they disowned him and he has not spoken to his family since then.
Asked what he thinks will happen to him if he returns to Malaysia, the applicant stated that he does not feel safe to return to Malaysia. In Malaysia, there is no one there for him. He is very comfortable with his life in Australia.
Asked what type of harm or mistreatment he thinks he will be subjected to if he returns to Malaysia, the applicant stated that the loan sharks will not hesitate to kill him as there are lots of cases similar to his in Malaysia.
Asked whether he thinks the authorities in Malaysia will protect him, the applicant stated that they would not as the loan sharks are very powerful and can do whatever they want in Malaysia.
Asked whether the applicant thinks he could relocate to another part of Malaysia to avoid threat or harm by the loan sharks, the applicant stated that there is no place in Malaysia that he could flee to. I put to the applicant that it has been about eight years since the loan sharks allegedly threatened him and asked him why he thinks they would still have an adverse interest in him after all these years. The applicant stated that when he goes back, they will ‘do something’ to him.
Issues put to the applicant for comment
I explained to the applicant that I had some issues or concerns to put to him in relation to the evidence he has provided to support his claims. I invited the applicant to provide comments or responses to these issues and explained that I would take them into consideration prior to making a decision.
I provided the applicant with an example of the inconsistencies between his oral evidence and written protection visa application claims. I discussed with the applicant that in relation to his claimed debt, he had stated in his protection visa application that he was not harmed in Malaysia and, as a result, did not need any help from authorities. However, during hearing, he detailed instances of being harmed and threatened by loan sharks in 2017, and threatened again while he was in Australia in 2018 when the loan sharks left a note at his previous rental property in Malaysia. I explained that these inconsistencies raise some concerns with respect to the credibility of his claims. The applicant apologised and stated that he did not fill out his protection visa form. He also stated that the person who helped him fill out the Pre-hearing Information form told him to put forward claims about sexuality.
I put to the applicant that general economic conditions and personal debts in Malaysia which may result in economic disadvantage might not amount to persecution. Persecution must involve serious harm against a person for reasons of their race, religion, nationality, political opinion or membership of a particular social group. Cost of living pressures, economic insecurity, insufficient income to support himself might not appear to be directed at him for any of the above five reasons. I explained to the applicant that while I sympathise with his inability to find work which could assist in paying off his debt, my task is to assess how his situation fits within the refugee and complementary protection provisions. The applicant did not engage with this issue but stated that he does not feel safe in Malaysia. He sees a lot of similar cases in social media. He stated that if he is sent back to Malaysia, he may get hurt.
I shared with the applicant the below country information and explained that the country information might indicate that there are adequate measures in place from the Malaysian government and adequate police protection against loan sharks. This might also indicate that due to effective state protection, there is not a real risk of serious or significant harm if the applicant were to return to Malaysia.
a.Country information indicates that Malaysian police respond to threats, and harassment from unlicensed moneylenders and some non-government associations offer assistance to loan shark victims or clients. Unlicensed money lending activities, including harassment or intimidation of borrowers, are offences under the Moneylenders Act (1951).[1] Individuals persecuted under the Moneylenders Act face a maximum one million ringgit fine or five years’ imprisonment.[2]
b.Police respond to complaints of illegal money lending activities, including harassment and intimidation, and conduct operations targeting illegal money lending, resulting in the prosecution of persons under the Moneylenders Act and the penal code.[3]
c.By October 2023, police had arrested almost 900 suspected loan sharks across Malaysia during that year.[4]
d.A non-governmental organisation, the Malaysian Muslim Consumers Association offers support for those encountering problems with loan sharks, including a call centre, website, and assistance in settling debts.[5] Additionally, a formal credit agency can consolidate loan shark debts for victims.[6]
[1] Moneylenders Act 1951 (Malaysia), amended 15 April 2011, Attorney General’s Chambers of Malaysia, sections 5(2), 29AA, 29B(1).
[2] Moneylenders Act 1951 (Malaysia), amended 15 April 2011, Attorney General’s Chambers of Malaysia.
[3] ‘7 arrested as Melaka police bust loan shark syndicate’, Bernama (Malaysian National News Agency), 27 June 2024.
[4] ‘Nearly 900 suspected loan sharks arrested so far this year’, The Star Online (Malaysia), 11 October 2023.
[5] ‘More expected to borrow from loan sharks’, The Star, 23 June 2020; ‘Loan sharks sharpen their bite’, The Star, 20 January 2018; ‘PPIM urges govt to put an end to ‘ah long’ posters’, Bernama, 6 September 2018; ‘For Malaysia’s sake, consumers group seeks to save civil servants trapped in debt’, Malay Mail, 3 August 2017; ‘More than 10,000 people sought PPIIM’s help over Ah Long cases’, Bernama, 18 October 2016.
[6] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.153, page 35.
I explained that the above country seems to indicate that there are legislative measures in place to protect loan shark victims and to allow police to conduct investigations and pursue loan sharks. There is also an avenue for loan shark victims to deal with their loans through a formal credit agency, as well as assistance from not-for-profit agencies. I raised the point that since the applicant’s situation unfolded in 2016 and 2017, it appears that the police have engaged in activities that try to stem loan shark issues, and these efforts have been reported more recently in October 2023.
The applicant’s response was provided in a form of a question. He said that if the country information is true, then why are there still loan shark issues being reported in the news? He said that he does not believe in the law in Malaysia. If a person has money, they can bend everything to their will.
I put to the applicant that he provided vague details and very little information about his claims of fear or returning to Malaysia when he lodged his protection visa application. The applicant had the opportunity to provide further, information and supporting evidence about his claims on the following dates:
a.19 June 2020 when his protection visa application was acknowledged by the Department;
b.17 April 2021 when he lodged his review application with the Tribunal;
c.20 April 2021 when the Tribunal acknowledged his review application;
d.31 October 2024 when the Tribunal sent a Pre-hearing Information form to the applicant to complete;
e.13 December 2024 when the Tribunal initially notified the applicant of the hearing; and
f.13 February 2025 when the Tribunal notified the applicant of the rescheduled hearing as per his request.
Apart from completing the Tribunal’s Pre-hearing Information form where the applicant included three brief lines about a new claim relating to homosexuality which the applicant has since advised was incorrect, he did not provide any further information.
I explained that this lack of detail and information and lack of response might go to the credibility of the applicant’s claims in part or as a whole as it might not show a genuine fear of returning to Malaysia.
I emphasised that although his friends assisted him with his protection visa application and the Tribunal’s Pre-hearing Information form, he as the applicant must take responsibility for the information provided and that it is an extremely serious issue that he has provided false and misleading information to the Tribunal. I explained that according to the oral evidence given, his friends had told him to include information about homosexuality to strengthen his claims and to get the protection visa but that he had a choice to do the right thing and provide truthful information. This is not a case where the applicant’s friends had simply drafted and submitted the forms without discussion with the applicant. The applicant stated that he had active conversations with his friends in relation to his protection visa and Tribunal Pre-hearing Information form. I explained that the fabrication of false claims to illicit a favourable decision or visa result could impact the overall credibility of his claims. The applicant’s response was that he requests for his visa application to be accepted. He does not have anyone in Malaysia and does not know what to do if he goes back to his home country. He claims that the loan sharks will look for him upon his return.
I discussed with the applicant his delay between arriving in Australia [in] August 2018 and applying for his protection visa in June 2020. I explained that this significant delay in applying for a protection visa and not applying at the earliest possible opportunity might go towards the genuineness or credibility of his claims. The applicant apologised again for having his friend fill out his protection visa application form. He stated that in 2018, he mistakenly believed that another friend (not [Mr A]) had completed and lodged his protection visa application. Asked how the applicant found out that the application had not been lodged, the applicant explained that when he checked his visa status using the Department’s Visa Entitlement Verification Online (VEVO) system, it was only then that he realised he did not have a valid visa application lodged.
Asked when in 2018 his friend offered to assist him with the preparation and lodgement of the protection visa, the applicant stated that this was at the end of January 2018. I queried how the application was prepared in January 2018 if the applicant did not arrive in Australia until August 2018. The applicant then stated that it was actually in November 2018 that this friend agreed to assist him with the application. The applicant’s intention was to lodge the application in 2018 but did not find out that the application was not lodged until 2020. The applicant also added that he was requested by the Department to provide biometrics in Melbourne although he had already moved to Queensland at that point. As he could not afford to travel to Melbourne, he was unable to provide biometrics. He cannot recall the date on which the Department requested biometrics but stated that he completed biometrics some time in 2021 in Brisbane.
Other procedural issues discussed with the applicant
I noted that the Tribunal had received two review applications from the applicant on 17 April 2021 and 22 April 2021.
The applicant advised that a friend who assisted him with his review application thought that the first application was not successfully submitted. This is why his friend submitted a second review application on his behalf.
I explained to the applicant that I will be dealing only with the first application lodged on 17 April 2021 and that a decision on this application will be made in due course after the hearing. With respect to the second review application lodged on 22 April 2021, the Tribunal will need to dispose of that application as only one application can be lodged for this review matter. I advised that the applicant would receive separate written confirmation of the disposal of the second review application in due course.
Post-hearing evidence
The applicant provided a statement dated 17 March 2025 on Queensland Statutory Declaration form after the hearing. I have taken this information into account.
In the statutory declaration, the applicant stated the following:
a.He contacted his bank in Malaysia to obtain bank statements to show withdrawal of funds to pay loan sharks;
b.He cannot access the bank statements because there have been no transactions for a long time;
c.It is possible that the bank has closed his account;
d.In relation to having made a police report against the loan sharks but there being no action taken from police, the applicant explained that police cannot arrest any individual arbitrarily just because of a police report. For the case of complaints against loan sharks, they will see who received these loans. If the complainant wants to make a police report, there must be strong evidence before the police will take action;
e.Loan sharks will not use the same number and their own bank account so the authorities will find it difficult to track where they are;
f.The applicant also requests that the Tribunal and the Department approve his application to stay in Australia;
g.If his application is rejected and he is sent back to Malaysia, he is afraid that it will cause him stress and make him depressed;
h.He is afraid of the death threats that he will get from the loan sharks.
I acknowledge that it is difficult to obtain records of bank accounts that are no longer active. In the absence such bank statements, I will rely on the applicant’s written and oral evidence with respect to his debt and repayment of this debt.
REASONS AND FINDINGS
Credibility and findings of fact
In determining whether the applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[7] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant, and nor does the Tribunal require rebutting evidence before it can find that a particular factual assertion by an applicant has not been made out.[8]
[7] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019, pages 43-44.
[8] Randhawa v MILGEA (1994) 52 FCA 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
There were a number of inconsistencies between the applicant’s oral evidence and written protection visa claims as set out below:
a.In the applicant’s protection visa application, he stated that he worked for a textile company and a supermarket. However, at hearing, he confirmed that these details were incorrect and that he had worked as [three roles specified]. When asked about employment in Australia, he mentioned only previous work on a farm and spends his time ‘mostly learning about the lifestyle in Australia’. When prompted further, he advised that he is currently working for a small [business];
b.In the applicant’s protection visa application, he stated that he owed money to his family and to the bank. However, during hearing, he stated that he did not owe money to either of these groups but to two loan sharks;
c.When asked if the loan amounts of RM 35,000 and RM [amount] were correct as stated in his protection visa application, the applicant confirmed that they were. However, later in the hearing, the application advised that the first loan amount was RM [smaller amount]. The second loan amount was RM [larger amount] but the loan sharks later demanded RM [total amount] in total which included principal and interest;
d.The applicant stated that in early 2018 when he was in Australia, the loan sharks threatened him by leaving a note on his former rental property. However, the applicant was not yet in Australia in early 2018 and only arrived in Australia in August 2018;
e.The applicant claimed that he had attempted to prepare and lodge his protection visa application through a friend in January 2018. When questioned about this date given that he did not arrive in Australia until August 2018, the applicant changed his response to November 2018;
f.The applicant stated in his protection visa application that he had no reason to seek help from authorities in Malaysia as he suffered no harm. However, during hearing, he mentioned being threatened and harmed by loan sharks in 2017 and threatened in 2018.
With respect to discrepancies relating to the applicant’s employment history details, the applicant stated that this was due to his friend assisting him with his protection visa application form. Although minor errors may occur when an applicant is relying on a third party to complete a protection visa application form based on verbal instructions, the discrepancies between the information provided in writing and at hearing were quite significant. Also, when asked about his employment in Australia at hearing, the applicant seemed reluctant to disclose information about his current work and mentioned only his past farm work and that he spends his time ‘mostly learning about the lifestyle in Australia’. It was only when he was prompted that he disclosed his current employment details. In combination, these discrepancies and the hesitancy in being forthright about employment details causes me to have some credibility concerns as it may indicate that the applicant is trying to portray his financial situation to be worse than what it is.
With respect to the discrepancies relating to whom the applicant owes money to, I do not accept the applicant’s explanation that the details were incorrect due to his friend completing the protection visa form on his behalf. As discussed with the applicant, the applicant is ultimately responsible for the contents of his application and must specify all particulars of their claims. In addition, the applicant had the opportunity to read the delegate’s decision issued on 16 April 2021 which summarised his original claims of owing money to his family and the bank. From 16 April 2021 up until the date of the Tribunal hearing on 12 March 2025, the applicant did not provide any further information to correct his original claim despite being given at least six opportunities (see paragraph 74) to do so over the course of nearly four years.
During hearing, I read out the applicant’s original claim to him, including the loan amounts, and asked if the loan amounts were correct, to which the applicant responded in the affirmative. It was only later in the hearing that the applicant confirmed the loan amounts to be RM [smaller amount] and RM [larger amount] respectively, with the second amount being increased to RM [total amount] when the loan sharks allegedly imposed interest repayments. This information is key to the applicant’s claim and it is reasonable for an applicant to be able to confirm such details at first instance when directly asked by the Tribunal. As mentioned in the preceding paragraph, the applicant also had multiple opportunities to correct this information leading up to the Tribunal hearing but failed to do so.
In relation to the applicant’s claim that he received a threatening note from the loan sharks which was placed on his previous rental property door in Malaysia and while he was in Australia in early 2018, I do not accept this evidence as the applicant did not arrive in Australia until August 2023, a date which the applicant provided when asked when he arrived in Australia at hearing.
Although the applicant initially provided an incorrect date (January 2018 when he was still in Malaysia) whereby he attempted to apply for a protection visa whilst onshore and with the assistance of a friend, I have not drawn any adverse findings in this regard as I accept the applicant’s explanation that he made genuine attempts to lodge the protection visa application in November 2018 but only became aware that the application was not lodged in 2020 when he checked his visa status on VEVO. Additionally, the applicant faced difficulties in completing biometrics in Melbourne at the request of the Department, although he had since moved to Queensland. Overall, these reasons contributed to the delayed lodgement and fulfilment of requirements to have submitted a valid protection visa application. I have not made any adverse findings in relation to the delayed lodgement of the applicant’s protection visa application.
There was false and misleading information provided in the applicant’s Pre-hearing information form where he stated that he cannot live a normal life in Malaysia, his family forbids him to marry the same sex and he will be thrown out of the family. He also stated that he can’t stop his same-sex addiction and will go crazy if sent home. When asked at hearing about his sexuality – whether he identified as being heterosexual, homosexual or any other type of sexuality, his response was that he had not had a relationship with the same sex but had ‘done other things freely’. When asked whether he had any attraction to the same sex, he answered, ‘a little bit’. When asked at hearing whether he had any other issues aside from the debt he had with loan sharks, he stated that he had no other issues, only the issue regarding his loan. When asked why his friend input information about sexuality into the Pre-hearing Information form, the applicant conceded that his friend advised him to do so as it would be easier for him to obtain a visa.
While I have taken into account the applicant’s limited education, English language ability and socio-economic background, the oral evidence provided shows that the applicant had an active conversation with his friend before information on sexuality was submitted to the Tribunal. It was ultimately confirmed by the applicant himself that the information was not relevant to the applicant’s situation, however, it took a number of questions to the applicant before he advised that his only claim related to a debt with loan sharks and that he did not identify as being homosexual. His initial response was vague in that he said he had ‘done other things freely’ and that he was ‘a little bit’ interested in the same sex. However, based on the final confirmation from the applicant that he did not identify as being homosexual and that his issues in Malaysia related only to his debt, I find that the applicant does not fear harm in Malaysia with respect to his sexuality.
Aside from accepting the applicant’s explanation for the delayed lodgement of his protection visa application, I am not satisfied with the the explanations offered by the applicant for raising new evidence in relation to his claims. Cumulatively, the initial vague claims in the applicant’s protection visa application, the lack of action taken to correct the alleged incorrect information, reluctance and refusal to attempt to contact police to see if they retained records of the applicant’s police reports and actively agreeing to providing a false and misleading claim regarding his sexuality to the Tribunal has resulted in me drawing an unfavourable inference to the credibility of the new evidence presented in the applicant’s matter at hearing which was not presented before the primary decision was made.
Considering the above, I do not accept the following claims as credible:
a.The applicant borrowed money from two loan sharks;
b.The applicant was threatened and harmed in 2017 by loan sharks who confronted him at his rental property;
c.The applicant received a threat by way of a note from loan sharks in early 2018 when he was in Australia, noting that the applicant arrived in Australia in August 2018;
d.The applicant reported threats and harm by loan sharks to the police;
e.The applicant’s family have disowned him due to him seeking loans from loan sharks;
f.The applicant identifies as a homosexual man;
g.The applicant’s family forbade him to marry the same sex.
I accept the following claims as credible:
a.The applicant borrowed money from his family and the bank for business capital required for a small business that he owned;
b.The applicant has a debt to his family and the bank for an unspecified amount of money;
c.The business was ultimately unsuccessful due to the economic situation in Malaysia;
d.The applicant was unable to secure a job that would assist him in paying off his debt in full;
e.The applicant’s family has disowned him.
I cannot make a finding on the exact amount still owing due to the vastly different information provided in the protection visa application and at hearing.
During hearing, the applicant became visibly emotional each time he spoke about his family. While I accept that he has lost contact with his family and has been disowned by them, I cannot make a finding on the reasons why given that he maintains that this was because his family were not happy with his decision to seek loans from loan sharks, a claim which I have not accepted.
Refugee criterion assessment
100. To be eligible for grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a) of the Act, the applicant must have a well-founded fear of persecution in Malaysia, and owing to that fear, is unable or unwilling to avail himself of the protection of Malaysia. This requires me to be satisfied that there is a real chance the applicant would suffer serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. An applicant may have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 percent.[9]
[9] Chan Yee Kin v MIEA (1989) 169 CLR 379.
101. In light of my earlier findings with respect to the credibility of the applicant’s evidence raised at hearing about owing debts to loan sharks, I am not satisfied that the applicant faces a real chance of serious harm from loan sharks in Malaysia now or in the reasonably foreseeable future as I have rejected claims that he borrowed money from loan sharks. It follows that I do not accept that he would be harmed or threatened by loan sharks upon return to Malaysia.
102. With respect to any harm feared by the applicant due to his debt to his family, I acknowledge that it is difficult and upsetting for the applicant to have been disowned by his family and that this lack of contact with his family is likely to continue should he return to Malaysia. However, this emotional harm does not amount to serious harm as defined in s 5J(5) of the Act. The act of disowning or cutting contact with the applicant does not amount to one or more of the types of harm outlined in s 5J(5). I am not satisfied that the applicant faces a real chance of serious harm from his family in Malaysia now or in the reasonably foreseeable future.
103. While I acknowledge the applicant’s comments regarding the downturn in the Malaysian economy which resulted in him needing to shut down his business and difficulties in securing employment that could assist in paying off his full debt, I must determine whether the socio-economic harm that the applicant fears is for any of the reasons set out in s 5J(1)(a) of the Act, namely, race, religion, nationality, membership of a particular social group or political opinion. In the case of Applicant A v MIEA,[10] the court recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group due to their race, religion, nationality, political opinion or membership of a particular social group. As raised with the applicant during hearing, economic conditions throughout Malaysia impact the broader Malaysian population. As such, I find that the harm feared by the applicant is not for any of the reasons set out in s 5J(1)(a).
[10] (1997) 190 CLR 225 at 258
104. According to the Association of Banks in Malaysia, Malaysian banks have financial relief schemes or repayment assistance in place.[11] These schemes allow for individuals with financial difficulties to seek assistance or negotiated repayment plans with their bank. While legal action against a debtor to recover the debt is possible, under the Limitation Act 1953 creditors may only take legal action against a debtor within the prescribed timeframe of six years from the date of providing the loan.[12] Creditors may also file for bankruptcy action against a debtor for debt amounts of RM [total amount] or above.[13]
[11] ‘Assistance for Financial Difficulties’, The Association of Banks in Malaysia, < Accessed on 20 March 2025.
[12] s 6 Limitation Act 1953 (Revised 1981).
[13] ‘Bankruptcy’, Malaysia Department of Insolvency, < Accessed on 20 March 2025.
105. I accept that persons with insufficient income to service a bank debt might satisfy the definition of a particular social group in s 5L of the Act. However, while legal or bankruptcy action taken by the bank may cause hardship for the applicant, I am not satisfied that such action arises from systematic and discriminatory conduct for the essential and significant reason of the applicant’s membership of this group. The laws which enable legal and bankruptcy action are laws of general application in that they apply to the population of people who choose to enter into contractual loans with financial institutions and the law is appropriate and adapted to achieving the objective of individuals meeting the terms of their loan agreement. Therefore, such action by the bank would not amount to persecution for the purposes of s 5J(4).
106. I find that there is not a real chance that the applicant will be harmed due to his sexuality in Malaysia as he subsequently confirmed that his additional claims with respect to identifying as a homosexual man were untrue.
107. I find that the applicant does not have a well-founded fear of persecution for any of the reasons claimed, and is not a refugee as defined in s 5H(1) of the Act.
108. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criterion assessment
109. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
110. Under the complementary protection criterion, I will need to consider whether the applicant has a real risk of suffering significant harm upon return to Malaysia. As per s 36(2A) of the Act, significant harm encompasses the arbitrary deprivation of life, death penalty, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment.
111. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[14] I have not accepted, for reasons set out above, that the applicant will suffer harm at the hands of loan sharks nor that he will suffer harm due to his sexuality. Therefore, I am not satisfied that there is a real risk of the applicant being subjected to any of the kinds of significant harm set out in the Act.
[14] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
112. I do not accept that the applicant’s family’s lack of communication or the continued disowning of the applicant to fall within the types of significant harm described in s 36(2A).
113. The harm that the applicant fears in relation to economic conditions in Malaysia and the inability to secure a job that will assist in repaying his full debt does not constitute significant harm as conditions resulting from general economic and social conditions apply to the broader Malaysian population and would not fall within the types of significant harm described in s 36(2A).
114. I do not accept that the course of action that the bank could take against the applicant for defaulting on his loan to fall within the types of significant harm described in s 36(2A) of the Act. Legal and bankruptcy actions are those that a lender can take due to default in loan repayments as provided by Malaysian law.
115. In conclusion, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk of significant harm.
116. I do not consider the applicant is a person in respect of whom Australia has complementary protection obligations under s 36(2)(aa).
117. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
118. The Tribunal affirms the decision not to grant the applicant a protection visa.
T H R Baggiano
General Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
0
4
0