GLK24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1140

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (the Tribunal) dated 9 August 2024 affirming a decision made by a delegate of the First Respondent (the delegate) not to grant the applicant a Protection (Subclass 866) visa (the visa).
2. For the reasons set out below, the application must be dismissed.

1. The applicant is a citizen of Malaysia. She arrived in Australia on 17 May 2018 on an Electronic Travel Authority visa.
2. On 17 August 2018, the applicant applied for the visa. The applicant claimed to have left Malaysia because she owed a debt to loan sharks, who mentally tortured and disturbed her because she could not repay them.
3. On 9 February 2019, the delegate refused to grant the visa as s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) were not met. On 11 February 2019, the applicant applied to the Tribunal for merits review of the decision. She provided a pre-hearing information form on 19 April 2024 in which she requested to present her claims at a hearing.
4. The applicant was invited to attend a hearing scheduled for 7 August 2024.
5. On 14 July 2024, the applicant wrote to the Tribunal via email (14 July email) confirming that she "will not participate in the hearing, and consent (sic) the decision to be made".
6. On 9 August 2024, the Tribunal affirmed the decision under review.

1. The Tribunal proceeded to make a decision on the evidence before it based on the 20 July email, which confirmed the applicant was content for the Tribunal to make a decision without the applicant making an appearance or providing further evidence [4].
2. The Tribunal summarised the applicant's background and claims made to the delegate:
   • She departed Malaysia in May 2018 and arrived in Perth.
   • The applicant had previously worked as a telemarketer and had received financial support from her parents.
   • The applicant claims she left the country because she borrowed money from a loan shark to invest in a multi-level-marketing money game, which eventually closed down without notice. The applicant has a debt of RM58,000.00 9 (approximately $21,002.99 AUD), of which she claims she has used all her savings to pay interest to the loan shark.
   • In answering whether she has experienced harm in Malaysia, the applicant claimed, "I'm mentally tortured and disturbed by the loan sharks. They will come to my house and throw paint all around my house' [9]. Further, the stress she faces is 'exhausting", and that 'they' would 'disturb' her family as well, and her vehicle will be damaged [9].
   • The applicant has tried to seek help from the police, but they did not provide any help to her. The applicant referred to fearing that the police had a connection with the loan shark [10].
   • The applicant has not tried to move to another part of her country as she could not afford to. She also claims 'they' will continue to disturb her until she makes more payments, and added that the "worst situation I can imagine is they will take my belongings".
   • She claims to fear returning as her creditor will not give up on collecting the debt, she cannot trust the authorities as they are corrupt, and she does not have the money to move or relocate.
3. The Tribunal had regard to the criteria for a protection visa in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and the Ministerial Direction No. 84. It took into account 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 (DFAT).
4. The issue on review was whether Australia owes the applicant protection obligations pursuant to the relevant provisions of the Act.
5. The Tribunal accepted that the applicant held no other citizenship or right to enter or reside in any other country permanently or temporarily. It accepted that Malaysia would be the receiving country.
6. In assessing the criteria for a protection visa under s 36(2)(a), the Tribunal considered whether the applicant faced a real chance of harm [22] - [30].
7. The Tribunal had regard to the written information and claims set out in the applicant's online application form, and country of origin information (COI) which it was required to consider in reaching its decision. The COI included reports on the general Malaysian economy and had commentary on illegal loan sharks and the measures to protect women who are at risk. The Tribunal placed particular weight on extracts from the DFAT Country Information Report - Malaysia (24 June 2024) and reproduced the extracts at [24]:

2.8 Malaysia's strong economic performance over the last few decades has led to a significant reduction in poverty. Households living below the national poverty line of MYR 2,589 (AUD 864) fell from over 50 per cent in the 1960s, to less than less than 6.2 per cent in 2022.

2.10 In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic. There are labour shortages in many sectors, and small, medium and large enterprises are highly reliant on migrant labour.

3.149 Usury is illegal. The Moneylenders Act (1951) requires that moneylenders have a licence and not charge interest rates above 18 per cent for an unsecured loan, which must not compound. Loan sharking is also covered under section 427 of the Penal Code, which prohibits 'committing mischief' and can carry a five year prison term.

3.154 DFAT assesses that victims of loan sharks and their family members face a moderate risk of discrimination due to familial and societal shame. DFAT assesses that victims of loan sharks also face a moderate risk of harassment and a low risk of violence from

1. Based on COI, the Malaysian state recognises the threat that loan sharks represent, and government and non-government agencies exist tasked to prevent people from engaging loan sharks, encourage the reporting of loan sharks and to assist with negotiating debt settlements.
2. Despite the applicant not providing credible independent evidence to support her claim of borrowing money from a loan shark for investment purposes, the Tribunal proceeded on the basis that she did, in fact, owe some money to an unnamed lender in Malaysia. However, the Tribunal still rejected the applicant's claim that she faces a real chance of serious harm as defined by s 5J(5) based on the following findings:
   • The Tribunal acknowledged that whilst a debt can cause some stress and anxiety, it was not satisfied on the evidence before it that the debt had caused mental torture and disturbance. Even if the creditors had thrown paint at the applicant's house, the Tribunal was further satisfied that the applicant is able to make a complaint and have it investigated based on the COI reporting on the effective and professional police service in Malaysia [26]. Further, the Tribunal rejected the applicant's proposition that she cannot access effective state protection against her claimed persecutor based on COI reporting that whilst state protection is imperfect, it is available to loan shark victims.
   • The Tribunal considered that her family can take action to prevent any harassment if the applicant does not pay the loan, through police and other credit regulating services in Malaysia.
   • On this basis, the Tribunal rejected the proposition that the applicant faces any risk of harm for reason of her family being harassed.
   • The Tribunal applied the same reasoning as above to the applicant's claim that her vehicle will be damaged. The Tribunal noted that the solution to the issue of her vehicle potentially being damaged can be found through state protection services rather than international non-refoulement protection.
   • As to the applicant's claim that her creditor will continue to disturb her until she makes more payments, the Tribunal did not find any real chance of the applicant experiencing serious harm on this basis. The Tribunal noted that there was no credible evidence to suggest the applicant could not return to Malaysia, acquire a job in a labour market, which was reported by COI to be a healthy one, and resume loan payments to the creditor. Further, there was no evidence to suggest the creditor would prefer to inflict harm on the applicant rather than have her resume her loan repayments.
   • As to the applicant's claim that the "worst situation I can imagine is they will take my belongings", the Tribunal found that if the applicant had items of value, then the liquidation of those items is and should be a further option for the applicant to consider meeting her debt obligations.
   • The Tribunal commented at [27] that it should not be the case that the applicant utilises non-refoulement protection because she chooses not to utilise the mechanisms available.
3. The Tribunal found that the applicant faced no real risk of proscribed harm for the purposes of s 5J(5). The Tribunal did not consider the question of state protection in further detail or the issue of internal relocation. As such the Tribunal concluded that the applicant did not satisfy s 36(2)(a) of the Act.
4. In considering the criterion under s 36(2)(aa) for 'complementary protection', the Tribunal asked, "Does the applicant face a real risk of significant harm?".
5. At [33], the Tribunal concluded that it had considered all the information before it individually and cumulatively, to assess whether there was a real risk of the applicant being harmed in any way for any of the reasons claimed if she were to be removed to Malaysia. Ultimately, the Tribunal was not satisfied that the applicant would suffer significant harm, and she did not meet the requirements of s 36(2)(aa).
6. The Tribunal affirmed the delegate's decision.

1. The applicant advances two grounds of judicial review contained in an Originating Application filed on 22 August 2024. They are as follows:
   1. The Tribunal overlooked key evidence that substantiates the threats and harm I have endured from loan sharks in Malaysia. Specifically, my experiences of mental distress, property damage, and threats against my family were not fully considered. The Tribunal's conclusion that I can rely on state protection in Malaysia was based on general information rather than the specific and personal evidence I provided, which demonstrates the failure of the police to act and potential collusion with the loan sharks.
   2. The Tribunal has incorrectly applied the legal definition of persecution under s 36(2)(a) of the Migration Act 1958 (Cth). My fear of persecution arises not only from the direct actions of the loan sharks but also from the Malaysian state's inability or unwillingness to protect me. This situation should have been evaluated as persecution related to my membership in a particular social group - those targeted by loan sharks - yet the Tribunal mischaracterised my situation as a mere financial issue, ignoring the broader implications of state inaction.

1. The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court book and that the respondent's written submissions had been translated for her. The Court also ensured the applicant had access to a pen and paper so she could take notes during the course of the hearing should she so wish to.
2. At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
3. Despite Court orders, no written submissions or other material were provided to the Court by the applicant in support of her case. The applicant confirmed that she did not attend the Tribunal hearing.
4. As to the Grounds of judicial review, they were each interpreted to her, and she was asked to comment. The applicant told the Court she had nothing to add to Ground one.
5. As to Ground two, the applicant reiterated that if she went back to Malaysia, she would face the same persecution.
6. Asked if there was anything else she wished to add, the applicant told the Court she has been in a same sex relationship for the past four years. The applicant cannot go back as same sex relationships are illegal in Malaysia. The applicant was advised that the Court was unable to take account of new information and could only consider the matters that were before the Tribunal, as the Court was undertaking judicial review, not merits review.
7. At the conclusion of the first respondent's oral submissions, the applicant was asked if she wished to state anything in reply. The applicant answered that she just wants an opportunity to stay in Australia. The police force is not effective in Malaysia.

1. The applicant has a burden to demonstrate on the balance of probabilities that the Tribunal did not consider a relevant claim. The Tribunal's decision at [5] - [12] plainly shows the Tribunal had regard to, and identified the applicant's claims. The Tribunal gave reasons at [25] - [27], where it assessed and made factual findings about the claims that it had identified. The Tribunal recorded that there was no credible or reliable evidence to suggest the alleged moneylenders had a real intention to inflict harm on the applicant. On the basis of the evidence before it, the Tribunal was not satisfied she had experienced mental torture or disturbance as a result of the debt.
2. The Tribunal considered the applicant and her family could take further action to prevent harassment based on COI. The applicant did not provide any evidence to the Tribunal to demonstrate "the failure of the police to act and potential collusion with the loan sharks". The Tribunal's use of country information before it was permissible: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (NAHI) at [11] - [13].
3. It is submitted that the Tribunal's reasons demonstrate an active and intellectual engagement with the applicant's claims. In circumstances where the applicant had elected to have a decision made on the papers, the inevitable consequence was that the delegate's decision would be affirmed.
4. Ground two is an allegation that the Tribunal incorrectly applied the refugee criterion in s 36(2)(a). The Tribunal's reasons show that it correctly identified that the application of this section required an assessment of the non-exhaustive provisions contained in s 5J to determine whether an applicant held a well-founded fear of persecution.
5. The Tribunal found in this case that the applicant did not face a real chance of harm according to the categories set out in s 5J(5). Accordingly, the 'serious harm' element in s 5J(4)(b) was not made out, and the applicant could not have a well-founded fear of persecution and could not be taken to have satisfied the definition of a refugee for the purposes of ss 5H and 36(2)(a).
6. For completeness, the first respondent clarified that the Tribunal complied with its exhaustive procedural fairness obligations set out in Division 4 of Part 7 of the Act by inviting the applicant to attend a hearing pursuant to ss 425 and 425A, which the applicant elected not to attend. The Tribunal had no information before it that it was required to ask the applicant to comment on or respond to under s 424A, given the information it used to make its decision was contained in her visa application and the country information before it, both of which were exempt under ss (3)(ba) and (a) respectively.

1. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:

... An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. It is well established that the Tribunal is not required to accept uncritically any, and all claims made by an applicant_: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs_ [1994] FCA 1253; (1994) 52 FCR 437 at 451.
2. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
3. It is well settled that the country information and the weight it gives to that information is a matter for the Tribunal: NAHI.
4. It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 187.
5. Firstly, the Court is satisfied that the Tribunal complied with all of its procedural fairness obligations. The applicant was invited to attend a hearing, and while she initially gave inconsistent information, the Tribunal clarified this, with the applicant stating clearly, she did not wish to attend the Tribunal hearing. No error arises in this regard.

1. Ground one is a claim that the Tribunal overlooked key evidence that substantiates the threats and harm the applicant had endured from loan sharks in Malaysia. No particulars were provided in support of this bare assertion. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
2. A fair reading of the Tribunal decision record indicates that the Tribunal fully set out the applicant's claims, such as they were, and then proceeded to engage with them actively and assess them against the relevant legislative criteria for the grant of a protection visa.
3. The Tribunal then proceeded to assess the claims made against the relevant country information. The country information indicated that there was an effective governmental response to loan sharks, which included measures to combat illegal loan sharks together with measures to protect women who are at risk. The Tribunal was entitled to consider relevant country information and place any weight, as it felt appropriate, on that information in coming to its assessment that the applicant would not face a real chance of serious harm based on the claim that she did owe money to an unnamed money lender in Malaysia.
4. There is nothing illogical, irrational or legally unreasonable in the conclusion that was arrived at by the Tribunal based on information that was before it, which was limited to that contained in the visa application, given that the applicant declined to attend the tribunal hearing and provide further information. Ground one has no merit.

1. Ground two is a claim that the Tribunal incorrectly applied the legal definition of persecution under s 36(2)(a) of the Act. The applicant claims this matter should have been evaluated on the basis that she was a member of a class of persons targeted by loan sharks. The Court agrees with the first respondent's submissions that the Tribunal correctly applied the relevant legislation, and in particular found that the applicant did not face the risk of 'serious harm' as set out in s 5J(4)(b). The Court is satisfied the Tribunal correctly determined that the applicant did not meet the definition of a refugee for the purposes of s 5H and ss 36(2)(a) or (aa). Ground two has no merit.
2. As the applicant is unrepresented, the Court has carefully perused the relevant Court books and associated documentation. The Court is unable to ascertain any unarticulated jurisdictional error.

1. In these circumstances, the Application must be dismissed.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.