1508893 (Refugee)

[2015] AATA 3412

1508893 (Refugee) [2015] AATA 3412 (4 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508893

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Josephine Kelly

DATE:4 September 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 04 September 2015 at 11:08am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants claim to be citizens of Malaysia.  They applied for the visas [in] March 2014 and the delegate refused to grant the visas [in] June 2014.  The applicants sought review in this Tribunal which was unsuccessful.  Their application to the Federal Circuit Court (FCC) was also unsuccessful but on appeal, the Federal Court set aside the decision of the FCC and remitted the matter to this Tribunal for reconsideration.

3. The applicants appeared before the Tribunal by video on 24 and 29 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   SUMMARY OF THE LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

5. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. 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 a protection 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 the applicant 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’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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, AND FINDINGS

9. The issue in this case is whether the applicants’ claims for protection are credible.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

10. Applicant 1 was born on [date].  Applicant 2, his wife, was born on [date].  Applicant 1’s parents live in Malaysia. Applicant 1 claims to be a citizen of Malaysia by birth and not to hold any other citizen or nationality or have a right to enter or reside in, whether temporarily or permanently, any country other than his country of nationality.  The Tribunal accepts that he is a citizen and national of Malaysia.

11. Applicant 1 claims to speak Mandarin. He has [number] years of education, completing Chinese High School in December [year]. 

12. Applicant 2 claims to speak Mandarin and to be a citizen of Malaysia.  She does not claim to hold any other citizenship or nationality.  She was educated in two Chinese schools in Malaysia, completing high school in December [year]. The Tribunal accepts that she is a citizen and national of Malaysia.

13. The applicants married [in] July 2007. 

14. Applicant 1 arrived in Australia holding a visitor visa [in] February 2010.  Applicant 2 arrived about a month earlier. 

15. Applicant 1 was detained at [an Australian] airport [in] March 2014. He had not held a valid visa since [date] May 2010.

16. A migration agent assisted the applicants to lodge their protection visa application. The applicant attended a departmental interview [in] May 2014. A recording of that interview is before the Tribunal.

    The applicants’ claims for protection 

17. Applicant 1 made the following claims in his visa application:

    • After they discovered their friend using their bank account for a large amount of illegal money laundering, they made it clear to their friend not to use their bank accounts. However, the gangsters refused to do so. To avoid the conflict with the gangsters, they fled to Penang City. The gangster found them after they withdraw money from the bank at Penang [City]. Thereafter they were abducted. They found a way to report the organized crimes to the police. The police interviewed them and recorded their evidence but, asked them to amend their evidence in favour of the gangsters. If they did not do so, they would be beaten by the police. Although they did what the police told them, the gangsters have still been intimidating, threatening and stalking his family. They had no choice but to go into hiding in [Country 1]. The gangsters had strong connections to the [Country 1] criminals and they quickly located them. They had had to return to Malaysia and then manage to come to Australia.
    • He left Malaysia to escape harm from criminal gangsters and the persecution by the Malay police.
    • He had been kidnapped by the gangsters and forced to fabricate evidence by the police. They had no place to live in Malaysia but have gone into hiding in [Country 1].
    • Applicant 1 fears being harmed by the criminal gangsters and the police, and fears for the safety of his family’s lives.
    • If Applicant 1 goes back, he may be harmed or mistreated by the criminal gangsters and the police.
    • The corrupt police and authorities accept the bribes offered by the gangsters. Their perverted collusion would prevent Applicant 1from being protected by the authorities if they were removed to Malaysia.

18. The applicants filed with the first Tribunal a copy of the Department’s Decision Record dated [in] June 2014. It indicates that the applicants attended an interview with the delegate [in] May 2014. A recording of the interview is before the Tribunal.

19. Applicant 1 made the following claims during the course of the interview, as summarised in the decision record:

    • He and his wife operated a [business] in Johor, Malaysia. He was unable to get a loan from the bank to expand his business. He initially claimed that it was difficult for ethnic Chinese to get money from the government. He subsequently stated that he and his wife were unable to get a loan from the bank because they had only been operating their business for two years and were unable to satisfy the lending criteria.
    • He borrowed 50,000 ringgit from a friend who operated a lending business. He was initially only required to pay interest on the loan. In May 2009, they were unable to make the necessary repayments on the loan and their problems began.
    • He and his wife were warned by a criminal gang that they would be kidnapped if they did not make payments on their loan. He and his wife decided to go to Kuala Lumpur but were kidnapped on their way. The kidnappers took all their possessions from them but his wife managed to hide her mobile phone. His wife went to the toilet and called the police. He and his wife were rescued by the police and taken to Penang the following day. They made a statement to the police. The gang members contacted the police and they were then forced to change their statement to the police before they could be released.
    • He and his wife then decided to go to [Location 2] to obtain false passports to depart Malaysia. He subsequently stated that he went to the passport office in [Location 2] and applied for genuine passports.
    • He and his wife were then arrested by the police. He was threatened and beaten and he and his wife were forced by the police in Penang to change the statements they made in relation to their kidnapping.
    • He and his wife travelled to [Country 3], [Country 4] and [Country 1] on a number of occasions to evade the criminal gang. They only stayed in these places for a short time and then returned to Malaysia as they needed to return to operate their business and pay their employees.
    • The delegate asked him how he was able to pay for their frequent travel overseas in view of his claim that he could not afford to pay 12,500 ringgit per month in interest repayments on his loan. He responded that he and his wife used their savings to travel overseas often. When asked why their savings could not be used to repay the interest on the loan, he responded that he did not see why he should have to use joint savings to repay a business loan.
    • He could not seek protection from the police in Malaysia as they are corrupt. When asked why he did not relocate elsewhere in Malaysia, he responded that he and his wife tried to relocate to Penang and [Location 2] but the criminal gangs were able to find them through their bank account transactions. He claimed that various gang members would wait outside various banks in various locations in Malaysia waiting for either he or his wife to go to the bank to conduct business there. He claimed that gang members would impersonate him and ring the bank to find out where the last bank transaction had occurred and then send gang members to find him and his wife. He was unable to explain how gang members would have been able to obtain detailed personal information about him to convince a bank to disclose information to them.
    • The delegate asked him why he and his wife did not close their bank account, change their names lawfully by deed poll and then open a new bank account in their new names. He responded that he did not consider it to be fair that he should need to consider this option.
    • When the delegate raised some of the inconsistencies between his written and oral claims, he responded that their bank account was used by the gangs to launder money.

20. Applicant 2 did not lodge any written claims for protection. The Department’s Decision Record dated [in] June 2014 indicates that during the course of her interview with the delegate [in] May 2014 she raised claims that mirrored those of the first named applicant. It indicates that she made the following claims during the course of the interview:

    • When she and the first named applicant could no longer afford to repay the interest on their loan, the gangs provided them with further time to pay if they allowed their bank account to be used to deposit money. This went on for some time. When she and her husband had to pay tax on it they told the gangs they could no longer use their bank account.

    The first Tribunal hearing

21. The first Tribunal held a hearing on 23 July 2014.  A recording of the hearing was available to the Tribunal. The claims during the hearing were similar to or variations on the various claims set out above and those that arose during the course of the hearings before the second Tribunal.

    The second Tribunal hearings

22. The applicants made the following varied or additional claims during the hearings before this Tribunal on 24 and 29 July 2015 and in the written submission.

23. Their migration agent did not include all the details of their claims and they should not be held responsible for his conduct.

24. Applicant 1 was working for [Company 5]. Head office made applicant 1 establish an independent company.  The applicants started [a] business. They bought the machine.  Customer payments were delayed.  A friend of Applicant 1 introduced him to a loan shark.  The applicants fought over money.  Applicant 2 needed to order and purchase material. Applicant 1 wanted to pay the loan shark first. The loan sharks threatened them if they did not repay. Applicant 2 knew that it was useless to report to the police. It would probably offend the loan sharks. She tried to get loans from banks and small medium enterprise funding but they were young and had no property. Family and friends were unable to help. They had to flee to another city, Penang.  They got 20,000 Ringgit for their new life from the loan shark.  She was able to get a job but her husband could not. 

25. The loan sharks harassed their employees who could not get his number and so they called Applicant 1’s mother who tried to negotiate with them but they threatened her. They stalk her and want to know Applicant 1’s whereabouts.  He has not contacted his family for a long time.  Applicant 2 claimed her family has been harassed many times before and forced them to pay the debts.

    Material provided to the department

26. Applicant 1 claimed in his visa application to have “oral records conduced and interviewed by the police” and “bank statements of transaction (sic) related to money laundering” but provided no documents to the Department to support his application.

    Material provided to the first Tribunal

27. Three police reports in Bahasa Malay were before the first Tribunal. The Tribunal understood the following from those reports because of the similarity to or use of English words. Two were dated [in] June 2009 and were from police in Batu Pahat, Johor, and one was dated [in] July 2009 from police in Penang.

    Material provided to the second Tribunal after remittal from the Federal Court

28. The following material was provided to the Tribunal after the matter was remitted to it for reconsideration:

    ·An 80 page submission, under the headings: Case Background (which included two statements by the applicants), Reasons of unable to return to Malaysia, Reasons of delayed Protection Application, Omission of Migration Agent and Evidences;

    ·two original police reports and translations relating to the kidnapping of the two applicants [in] June 2009;

    ·a letter dated [in] August 2014 from the Member of Parliament for [a location in] Malaysia;

    ·documents relating to the bankruptcy of Applicant 1 in Malay and English dated November and Disember 2011;

    ·documents about  a bank guarantee with no apparent reference to either applicant;

    ·emails dated June 2015 between Applicant 1 and [Company 5]mailto: in which he requests documentation about his being charged with bankruptcy and how much money he owed;

    ·a letter dated [in] May 2013 and addressed to Applicant 2, trading as [name] Center, from a lawyer about a debt owed to [Company 6], arising from not paying monthly rent on equipment from [date] July 2009;

    ·a Tribunal decision dated 12 March 2014 in which Malaysian citizens successfully claimed protection in Australia because of owing money to loan sharks;

    ·an article dated 30 May 2003 from “the Malaysian Bar” entitled The Long and Short of the “Along” Problem;

    ·the Tribunal’s Guidance on the Assessment of Credibility;

    ·a Human Rights Watch document entitled Malaysia: End Police Abuse dated 1 April 2014;

    ·black and white copies of photographs of the exterior [of the] Centre, two photocopiers and an Imagebox, a Canon machine and other equipment; and of people apparently in an office.

    ·five photographs, including two with the following captions: “Image – one of the money lenders’ member hold a knife to threaten us. Photo took by our previous staff.  Found it in a very old hard disk; First applicant clean office and the moneylenders’ member came in”; two photographs showed apparent internal and external construction work; the final photograph showed a person standing at a table in a room.

29. After the second Tribunal’s second hearing on 29 July 2015, the applicants provided a printout from a blog apparently dated 28 May 2009 about the rescue of three men from a “hell-hole” where they had been held for two months by loan sharks, “Ah Longs”.

    Consideration and findings

30. For the reasons that follow, the Tribunal found the applicants’ evidence not credible and concludes that the claims for protection were fabricated. It follows, and for reasons given below, that it does not accept that the police reports provided in support of the claims are genuine.

31. In summary, the applicants’ claims before the second Tribunal were:

    ·They fled their business in Johor in May 2009 and went to Penang because of the fear of loan sharks to whom they owed money.  They were kidnapped outside a bank in Penang and were being taken back to Johor. However, Applicant 2 had a mobile telephone which the kidnappers did not find and contacted her friend in Johor who in turn contacted the police.  When they stopped at a [restaurant] near Kuala Lumpur, police were there and helped them.  They took them back to Penang where they made a statement.  However, later they police got them to withdraw the statement. They think the loan sharks bribed them. The police reports show that the kidnapping occurred [in] June 2009. 

    ·After the kidnapping, they went to [Country 1] for about 17 days or three weeks. One or both of the applicants also went to [Country 3] at least on one other occasion and to [Country 4] a couple of times for just 24 hours or so when they were fearful, for example if they saw people they thought were a threat. 

    ·They kept returning to Penang because they had rented and fitted out an apartment, and had jobs there.

32. The Tribunal finds the applicants’ claims about Applicant 2 contacting her friend in Johor several times during their journey with the kidnappers from Penang to near Kuala Lumpur is inconsistent with what a person who was kidnapped would do if they had access to a mobile telephone.  Such a person would contact the police.  When asked about this inconsistency, Applicant 2 said that she cannot expect the police to help, she could only think of her friend. Her friend understood that they owed money.  The Tribunal does not accept that is a satisfactory explanation, particularly when she claims her friend eventually called the police who rescued them. 

33. The Tribunal finds the applicants’ returning to Penang after the kidnapping and then after travelling to [Country 1], [Country 4] a few times, either separately or together, and to [Country 3], either separately or together, is inconsistent with their fearing harm from the loan sharks who had kidnapped them in Penang and from whom they had escaped.

1. Both applicants explained their returning to Penang because they had no plan, and that they had rented an apartment and bought new things for it.  They also had various jobs in Penang.  Applicant 1 said that he returned from [Country 4] on one occasion because he had to work.  The Tribunal does not accept that those explanations are satisfactory. 

2. Further, that the loan sharks did not find the applicants again after having kidnapped them in Penang at about the end of June while the applicants continued to live there and in the same apartment and work in Penang  for another six or seven months, is inconsistent with loan sharks being a threat to the applicants as they claim.  The Tribunal has taken into account the various claims by the applicants to have been watching out and travelling out of Penang when they thought they saw someone who was looking for them, but does not accept that is a satisfactory explanation, particularly as the trips apart, from to [Country 1], were only for about 24 hours.

3. The Tribunal finds that having the funds to undertake the travel they claimed they did from Penang, including their travel to Australia, is inconsistent with their having left Johor after pawning a few things and getting little money, or having no money, as claimed variously by Applicant 1, or finding 20,000 ringgit in a bank account from the money laundering through their account, a week after they left Johor as Applicant 2 claimed.  In making those findings, the Tribunal has taken into account that they both worked in Penang at various times but does not accept that their expenditure is consistent with their claimed financial circumstances.  They were in Penang from around the end of May 2009 until February 2010 in the case of Applicant 1 and until January 2010 in the case of Applicant 2, including about 17 or 21 days spent in [Country 1]. In the submission, they claimed to have used the 20,0000 ringgit to rent an apartment, buy a used scooter, a fridge, washing machine, mattress and other household items and then started to look for jobs. They gave similar evidence before the Tribunal.  

4. The applicants have provided three different versions of the police report made by [Ms A] at Batu Pahat, Johor, [in] June 2009, two to the first Tribunal and one to the second Tribunal. One provided to the first Tribunal is different in formatting, contains some different wording at the bottom and does not provide for the signatures of the maker or receiver of the report. Having no translation of that document, the Tribunal gives it no weight.  The Tribunal has considered in detail the reports that are identical in terms of the typed information and of which it had a translation. 

5. They differ in the following respects. The report provided to the first Tribunal had no signatures or stamps or certifications on it.  It has been downloaded from a web-site [in] March 2014.

6. The version provided to the second Tribunal with the submission had signatures of the maker of the report and the receiving officer.  On it was written “Certified a true copy” with initials and date of [date]/5/2014 over a stamp, apparently of a superintendent of police. There is another stamp that certifies that that person is “Royal Malaysia Police” and states “The Ministry of Foreign Affairs, Malaysia is not responsible for the accuracy of the information contained therein”. Below that stamp are a signature and another stamp including the name of the apparent signatory who is “Consular Officer Consular Division Minster of Foreign Affairs [town name] Malaysia.  There is a further stamp in Malay which include the words “[deleted], and written initials which was not translated.

7. Both reports have been apparently downloaded from a web-site.  The first was downloaded [in] March 2014 and the second [in] August 2014.

8. The Tribunal does not accept that the reports are genuine for the following reasons.

9. It does not accept that a later report would have the signatures of the maker and recipient of the report and the earlier report would not, particularly given that the report was made in June 2009 and would have been signed at that time.

10. The Tribunal does not accept Applicant 2’s explanation that her mother-in-law represented them and could not get a signed report but her friend went to the Member of Parliament who helped to get police statements, stamps and signatures.  The Tribunal does not accept that the MP obtained the reports.  His letter says that he has received a complaint from Applicant 2’s friend, that she lodged a police report about the abduction and made various claims and that he has “been reliably informed by [Ms A]” that the applicants escaped to Australia due to fear for their physical safety and dignity.  “[Ms A] testifies” that if the applicants “were to return to Malaysia, they would be in grave danger”.  He verifies that “this is true to the best of his” knowledge and “that all matters deposed herein are made based on the documents which I have access to”. The Tribunal finds that the MP was relying on the information in the documents and provided by [Ms A].  As the Tribunal does not accept that the documents are genuine or [Ms A]’s claims are true, it gives no weight to the MP’s letter.

11. Applicant 2’s friend names Applicant 1, the husband of her friend Applicant 2, incorrectly as “[name]” in the [June] 2009 report.  That is consistent in each of the three similar reports before the Tribunal and in the translation.  The Tribunal does not accept that a friend would not know her husband’s name, or if she did not know what it was, that she would provide any name. That an incorrect name of Applicant 1 is included in the report is inconsistent with the report being genuine.

12. The Tribunal does not accept that it would take three text messages before a friend would act to report such a kidnapping to police.  There is no apparent reason in the report for the friend making the report to the police station after the third text message rather than after the first or second text message.

13. Further, that the friend did not immediately telephone police, rather than going to a police station personally after a third text message, and wasting another hour before any action would be taken, is inconsistent with a fear that her friend was in danger of harm from kidnappers.

14. The Tribunal does not accept that the police report made [in] July 2009 in [Penang] is genuine.  In it, Applicant 2 “voluntarily withdraws” an earlier report she made and says that she and Applicant 1 went willingly back to Johor to settle their debt problem. It has the same certifications and stamps as the police report made at Batu Pahat.  Notably in both cases, there is an explicit statement in relation to the certification of a true copy that that the [Ministry] is not responsible for the accuracy of the information contained in the document. That information is in English.  Curiously, both the reports have the stamp and initials of a policeman at Batu Pahat, Johor.  There is no translation of what the stamp says. The Tribunal gives that information no weight in determining the genuineness of the documents.

15. The Tribunal has taken into account the black and white copies of photographs provided to the Tribunal, including the one claimed to show Applicant 1 being threatened by a loan shark or representative of the loan shark holding a metre long knife out in front of him pointing at Applicant 1 and another of that person in front of the same background, holding the knife in a different position, back over his shoulder. They are the only two of several photographs provided that have a date stamp on them, “[date].03.09 5:18 pm” and “5:19 pm” respectively.  The Tribunal does not accept that the photographs depict a real incident.  It does not accept that an employee would stand back and take two photographs of an incident where his employer was being threatened with a metre long knife, being apparently swung backward and then pointed at the employer.  When the Tribunal put that proposition to Applicant 1, he said that he had no idea that his employee had taken the photograph and could not explain how it happened. When the Tribunal commented that dates can be reset on a digital camera, he did not respond.  The handwritten annotation on the photographs stated, inter alia, “Photo took by our previous staff.  Found it in a very old hard disk”.

16. Although the Tribunal was not convinced that it was Applicant 1 in the photograph in any event, assuming that it was, given the capacity to alter and photo-shop digital photographs, the Tribunal does not accept that it is a photograph of an actual event as claimed.  Further, it was a black and white photocopy of the original.

17. The Tribunal also finds it implausible that in 2015, the applicants being in detention, that they or a person supportive of the applicants, would have had access to a “very old” computer hard-drive containing a photograph taken on a digital camera by a former employee in March 2009, which Applicant 1 did not know had been taken, and find the photograph so that the applicants could provide it to the Tribunal on the day of the first hearing in 2015, not having previously provided it.

18. The Tribunal does not accept the applicants’ various claims that their migration agent misstated their claims or failed to state all their claims. The claims in their visa application about being caught up in a money laundering operation are inconsistent with their later claims about borrowing from loan sharks for their business and to repay [Company 5].

19. For those reasons, the Tribunal does not accept that the applicants’ claims for protection are credible.  In making the credibility finding, the Tribunal has taken into account the extensive submissions the applicants provided to the Tribunal and the Tribunal’s Guidance on the Assessment of Credibility.

20. The Tribunal’s finding that it does not accept the applicants’ claims for protection is reinforced by the following.

21. Applicant 1 said that he rang the supplier of the machines they had to take them back but the loan sharks did not allow them to take the machines away.  He is liable for payment of the machines.  The letter from the advocate and solicitor representing [Company 6] supports the claim that Applicant 2 owed them RM84,120.30 at that time.  However, the Tribunal does not accept that loan sharks would be able to prevent an organisation such as [Company 6] from taking away the machines.  Applicant 1 also said that his staff  “just took stuff”.  The Tribunal finds that a more plausible explanation for [Company 6] not being able to take the machines, given that the applicants just disappeared from the business, owing money, including to their staff based on Applicant 1’s evidence, as well as to [Company 6] and [Company 5]. Applicant 1 did not say that the loan sharks took the equipment.  

22. The applicants claimed that loan sharks were transferring money through Applicant 1’s bank account.  No documentation has been provided to support that claim.

23. The delay in applying for protection, four years after arriving in Australia and after being detained by Australian migration authorities, reinforces the Tribunal in finding that it does not accept that the applicants’ claims are genuine.  The Tribunal finds that that they have been fabricated.

24. In making the above findings, the Tribunal has taken into account all the material before it, including the submissions and the various explanations provided to overcome the different and inconsistent claims and  the delay in applying for protection. Decisions in other cases are not of assistance when the question of credibility of the applicants is the issue.  In this case, country information has not been of assistance for the same reason.

25. The Tribunal accepts that the applicants ran a business for about six months very unsuccessfully.  It accepts that Applicant 2 owes money to [Company 6] and Applicant 1 has been bankrupted by [Company 5]. It accepts that they fled Johor to get away from their financial woes. However, it does not accept their claims about fearing harm from gangsters or loan sharks or the Malaysian police.

26. The applicants did not claim protection because of Applicant 1’s bankruptcy or the debt to [Company 6].  In any event, the Tribunal does not accept on the evidence before it that there is a real chance that either or both of the applicants will suffer serious harm for either or both of those reasons if they return to Malaysia, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants’ being removed from Australia to Malaysia, there is a real risk that he or she will suffer significant harm.

27. For those reasons, taking the claims singly or cumulatively, the Tribunal is not satisfied that there is a real chance that either or both of the applicants will suffer serious harm in the reasonably foreseeable future for a Convention reason, if he and/or she return/s to Malaysia.

28. It is necessary to consider whether either or both of the applicants satisfy the complementary protection criterion.  Because the Tribunal does not accept the applicants are credible witnesses and for the extensive reasons given above, it is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of either or both of the applicants being removed from Australia to Malaysia, there is a real risk that he and/or she will suffer significant harm

29. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or s.36(2)(aa) for a protection visa.

30. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

31. The Tribunal affirms the decision not to grant the applicants Protection visas.