1608271 (Refugee) - [2017] AATA 2218

1608271 (Refugee) [2017] AATA 2218 (23 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608271
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Sean Baker
DATE:23 August 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 August 2017 at 3:52pm

CATCHWORDS
Refugee – Protection visa – Malaysia - Political opinion – Bersih rally – Posting images – Moneylenders – Fear of harm – Credibility – Extensive adverse material – Effective police system in Malaysia – Unwilling to relocate
LEGISLATION

Migration Act 1958, ss 5(1), 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZRQR v MIAC [2013] FMCA 21

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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] May 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] November 2015. The delegate refused to grant the visa on the basis that the receiving state could provide protection against persecution to the applicant and is willing and able to provide such protection. The applicant provided a copy of the delegate’s decision at the hearing.
CRITERIA FOR A 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 (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 themself 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.56, made under s.499 of the Act, the Tribunal has taken 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 relevant 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
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one of the five reasons specified in s.5J or, if not, whether there is a real risk he will suffer significant harm on return to his receiving country. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and nationality
The applicant provided a copy of his Malaysian passport to the Department. The Tribunal accepts that the applicant is who he claims to be and finds he is a National of Malaysia, also his receiving country. The Tribunal finds on the evidence before it that he does not have a right to enter and reside in a third country.
Claims and evidence
The applicant is a [age]old Malaysian. He identifies as Malay and as a Muslim. He lived in Kedah, where he ran a [business] called the [name]. He has a wife and [number] children and his mother and siblings, all living in Kedah.
In his application for protection the applicant claimed that he left Malaysia because:
·He was a guarantor for his [Family Member A]’s debt. He claims his [Family Member A] borrowed money from loan sharks;
·The applicant claims his [Family Member A] 'failed to settle the loan instalments' and claims that is when they started to receive threats from debt collectors.
·The applicant claims his [Family Member A] and he 'failed to settle the remaining loan of RM [amount]:
·He claims he was 'forced to surrender the house,' his 'hand and foot are tied up and my head hit by them.'
·The applicant claims they splashed [colour] paint on his car and house and 'write abusive words' to him. He claims he is depressed.
·The applicant claims he was hit, threatened that they will burn down his house and or kill him, claims his leg bones were cracking as 'they hit him with wood.
·The applicant claims he has no money.
·He claims he reported the matter to police and claims the police have not taken action.
·The applicant claims he has not attempted to relocate and claims 'won't be able to relocate' within his country.
·The applicant claims his life is in danger and claims he came to Australia to seek protection.
·The applicant claims he does not feel safe to return to Malaysia due to the debt collectors and claims 'they still hunt me' and claims 'wherever I go I will hunted by them.' He claims they will find him if he returns to Malaysia.
·He claims he is afraid that they will threaten his family.
·The applicant claims his [Family Member A] 'cannot be found and I'm a victim of them.'
·The applicant claims that the authorities will not protect him completely and have only provided 'some safety just a few days,' after he filed his police report.
At the hearing the applicant made a number of other claims that he had not previously provided. He claimed that he had been declared bankrupt in Malaysia, and that he had expressed an anti-government opinion against the Malaysian government in Australia by providing [drawings] of the Malaysian Prime Minster, posing with them with people in Australia and putting the photographs of this on his social media page, this being shared on at least one Facebook site, and leading to him being interviewed.
Credibility
As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):
‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)
As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:
‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’
If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.
In this case I have considerable concerns with the evidence of the applicant, which I expressed to him over the course of the hearing.
Adverse material
I am cognisant that this material does not directly impact on the applicant’s claims to fear harm on return to Malaysia. However, it caused me concerns in relation to his general credibility, as I explained to him at the hearing.
At the beginning of the hearing the applicant said that his agent had helped him to draft his protection application. He said his agent’s name was [Mr A]. He said he had paid [Mr A] to help him fill out his application. He said he knew [Mr A] because he had worked with him in the field. I asked if he had worked with [Mr A] at all and he said he had not. The applicant also said that he had come to Australia to get away from Malaysia, and not to work, but he was forced to work here and had worked in [occupations] and was now a [occupation] in [city]. I asked if he had helped others from Malaysia to come to Australia and work and he said no he had never done that.
I noted to the applicant that I had on the files three certificates covering three distinct pieces of potentially adverse information that had been given to the Department in relation to him. I noted that the first piece of information, from the [certain] unit, provided to the Tribunal [in] September 2016, I did not accept was covered by s.438 because the notification from the department (Tf. 26), claimed that the information had been given to the Department in confidence but this was not evident on the face of, or by implication, in the material from the [certain] unit. I noted that the second certificate, provided to the Tribunal [in] March 2017, (Tf. 116) did appear to me to meet the requirements of s.438 because it appeared that the source of the information did indicate they wished to remain anonymous and so had given the information to the Department in confidence (s.438(1)(b)) and the disclosure of the information would potentially reveal the identity of the person, and so I would put to the applicant only the gist of this information. I noted that in relation to the third certificate, provided to the Department [in] April 2017, (Tf. 123), the information referred to also indicated that the source was given to the Department in confidence, (s.438(1)(b)), and so I would only be disclosing the gist of the information to him.
I asked the applicant if he wished to comment on the certificates and my views on the certificates both before and after I had put the information to the applicant under s.424A. His response was that all he could say was that they created that story, because Malay culture is such that if you see somebody do better they get jealous.
I have had regard to the applicant’s responses. For the reasons given above I find that the first certificate/notification under s.438, purportedly issued [in]/9/2016, is not valid for the reasons above. I find that the second certificate/notification, issued [in]03/2017, does refer to information covered by s.438(1)(b). I find that the third certificate/notification, issued [in]4/2017, does refer to information covered by s.438(1)(b).
I put the information the subject of these three certificate/notification notices to the applicant pursuant to s.424AA.
Because I have found that the first certificate was invalid I put to the applicant – and showed him at the hearing, all relevant information the subject of the certificate. I noted that the information from the [certain] unit of the [agency] in Malaysia identified his personal details and that he has or had [number] Facebook accounts – [names]. I noted that information on those Facebook accounts indicates [details deleted]. I showed the applicant the print outs of the Facebook posts in question. I noted to him that earlier in the hearing he has said he was not involved in facilitating others coming to work here.
He indicated he understood the information. I then explained that this information was relevant because it may indicate that he had contrived his protection application to remain and work in Australia, which may lead the Tribunal to doubt his claims for why he fears returning to Malaysia. I noted that if the Tribunal relies on this information it may find that he has not suffered harm in the past as claimed, nor is there a chance or risk he will in the future, and may also lead the Tribunal to have concerns with his general credibility and that this, subject to any comment or response he made, would be the reason, or a part of the reason for affirming the decision that is under review. He indicated he understood why the information may be relevant to the decision. He was given an opportunity to ask for more time but elected to respond immediately. He said he wanted to answer his one first. He said that he was only [details deleted]. He said he was helping people. I noted that it seemed to indicate he was [details deleted]. He said this was not the case.
I then put to him the gist of the information covered by the second certificate/notification. I noted that it identified a Facebook account the applicant had said was his, [details deleted].
He indicated he understood the information. I then explained that this information was relevant because it may indicate that he had contrived his protection application to remain and work in Australia, and because it matched with the other allegation it may cause me to place greater weight on these allegations which may lead the Tribunal to doubt his claims for why he fears returning to Malaysia. I noted that if the Tribunal relies on this information it may find that he has not suffered harm in the past as claimed, nor is there a chance or risk he will in the future, and may also lead the Tribunal to have concerns with his general credibility and that this, subject to any comment or response he made, would be the reason, or a part of the reason for affirming the decision that is under review. He indicated he understood why the information may be relevant to the decision. He was given an opportunity to ask for more time and indicated he would respond after the third piece of information was put.
I then put to him the gist of the information covered by the third certificate/notification. I noted that it identified that the applicant had [details deleted].
He indicated he understood the information. I then explained that this information was relevant because it may indicate that he had contrived his protection application to remain and work in Australia, and because it matched with the other allegation it may cause me to place greater weight on these allegations which may lead the Tribunal to doubt his claims for why he fears returning to Malaysia. I noted that if the Tribunal relies on this information it may find that he has not suffered harm in the past as claimed, nor is there a chance or risk he will in the future, and may also lead the Tribunal to have concerns with his general credibility and that this, subject to any comment or response he made, would be the reason, or a part of the reason for affirming the decision that is under review. He indicated he understood why the information may be relevant to the decision. He was given an opportunity to ask for more time and indicated he would respond immediately. He said he had [details deleted].
He said in relation to the second allegation that there was a guy called [Mr B] who asked the applicant where he had got his visa and the applicant introduced this person to [Mr A] but that something had happened and [Mr A] blocked [Mr B] and maybe [Mr B] was angry and made these allegations.
I asked if the applicant wished to say anything about the concerns I had expressed that this information, individually and/or cumulatively, may lead me to doubt his general credibility. He said he did not know how to make me believe him.
I have carefully considered the applicant’s responses. I have considered that, of the information, the second and third pieces are unsupported allegations which cannot be tested, and I would normally give these little weight. However, they correspond in material ways with the information from the first piece, made up of Facebook posts from the applicant’s admitted Facebook page. He did not claim that these Facebook posts were not his, nor that anything in them had not been provided by him. The correlation between key parts of the evidence therefore, I consider, increases the weight I place on the second and third allegations. The commonality is that the applicant is involved in the [details deleted]. I do not find the applicant’s evidence that he just helps people who are here convincing – the Facebook posts which he was shown and which are from his account indicate that he is [details deleted].

The second piece of information contains an allegation that the applicant [details deleted] I have considered his response that he believes this may be ‘[Mr B]’ who was unhappy with the applicant’s referral of [Mr B] to his agent [Mr A], but I do not find this convincing – the allegation identifies the applicant, and specifically, his Facebook page, it is similar to the information in the first set of information, some of it on that Facebook page, but contains more detail and serious allegations about the applicant’s role in [details deleted]. These are serious allegations, which, as I noted to the applicant, may be given greater weight because of their similarity to the other pieces of information. I do not believe that the applicant has explained or removed these concerns with his responses and I place considerable weight on this allegation and the claims that the applicant is involved in [details deleted]. I note but do not make findings (because I find these allegations are not directly relevant to the case I have to decide) on the other allegations that the applicant is involved in [details deleted].
The third piece of information contains an allegation that he is [details deleted]. I have considered the applicant’s response to this, essentially this appears to be that he took on the responsibility for [details deleted] I found the applicant’s evidence on this undetailed and not to address the gist of the information that had been put to him and I do not accept that he has addressed the concerns put to him. I find that this third allegation lends further weight to the claim that the applicant is [details deleted]. I note but do not make findings (because I find these allegations are not directly relevant to the case I have to decide) on the other allegations that the applicant was [details deleted].
I give the three pieces of information considerable weight, and I do not accept the applicant’s explanations and comments. I noted to him that these pieces of information, individually and/or cumulatively, may lead me to doubt his general credibility. He said he did not know how to make me believe him. I do not accept this comment; it does not address the concern. Having weighed the information, and his comments and responses, I find that the applicant has been untruthful about his role in [details deleted]. I find that he has an association with and works with [Mr A], despite his claims that he does not. I find that the applicant has been untruthful in explaining his role and his association with the organisation of this travel and work arrangement, and this leads me to find that the applicant is not generally credible and is not a witness of truth.
Debtor/loan shark issues
At hearing the applicant provided more detail in relation to his claim that he feared harm from loan sharks. He said that [Family Member B] (rather than his [Family Member A]) borrowed money but that the applicant was a guarantor. He said it was [Family Member B]. He said he had borrowed money at the end of 2013. I asked the name of the loan shark and the applicant said he could not remember but he was Chinese. I asked how much [Family Member B] had borrowed and he said [amount] MYR, and he had had to pay [amount] MYR a week. I asked what [Family Member B] had needed the money for and the applicant said he didn’t know, and he then said that [Family Member B] is a drug addict. I asked would he not have found out what the loan was for if he was going guarantor and the applicant said that [Family Member B] had said it was for business. I asked if the applicant had known [Family Member B] was a drug addict before going guarantor and he said he did. I noted I found it strange then that he would agree to go guarantor. The applicant said [Family Member B] had begged him. I said even if that was the case it was a lot of money. The applicant said he did not think much about that because [Family Member B] said he would only be the guarantor, not the one who paid. I asked, had he not had some concerns about [Family Member B]’s capacity to pay the money back if he was a drug addict. The applicant said [Family Member B] had told him he could pay as he was planning to do business with the money. I asked what being guarantor involved and the applicant said he gave his ID to [Family Member B]. He then said that he didn’t know [Family Member B] wanted to borrow that much money. I asked what had happened with the loan. He said that 2 months later [Family Member B] disappeared as he could not pay.
I asked what had happened then and the applicant said that after that the loan shark came after the applicant’s family as he was the guarantor. I asked when this was and he said the middle of 2014. I asked him to provide as much detail as he could about what had happened. He said that the loan shark had asked him for money, the [amount] MYR a week. The applicant said the balance owing was about [amount] MYR. He said he didn’t think it was right that he should have to pay. I noted to him that he had agreed to be a guarantor. He said he was not sure all he knew was that [Family Member B] was supposed to pay so he was just the guarantor. He said he was not really sure about being a guarantor. I asked if he was saying [Family Member B] had managed to pay off [amount] MYR from the loan. He said he didn’t know how much [Family Member B] had paid, but the loan shark told the applicant there was a balance of [amount]. I asked if he had ever paid the loan shark and he said he had never paid, he had moved house. He said before he moved house the loan shark had always disturbed his family. I asked what had happened after he moved. He said that so far the loan shark had not managed to find him so nothing had happened. I asked when he had moved house and he said in August 2014 he had moved with his family from Penang to Kedah, where he had opened his [business]. He confirmed August 2014 was when he opened his [business] and that nothing further had happened after August 2014. He confirmed that he was saying that the loan shark had not found him after August 2014. I noted that he had claimed earlier in the hearing that he had closed his [business] because the loan shark kept bugging him. He said he had closed the [business] as he was afraid that the loan shark would find him and that was when he had come to Australia. I asked if he was saying that the loan shark had not found him for a year but he was worried that they would find him and he said he was. When asked why he thought this he said he was really worried what would happen to his family if the loan shark found them. I asked why he would think they would if they had not for the year before he left Malaysia. He said he was afraid they would find out and he would be in bigger trouble.
I asked if he could provide any detail about the loan shark, he said again he did not know the name but a Chinese guy and the people that came to hassle were all Chinese. I asked what they had done and he said they were just very angry. He said they had given him a strong warning, that they would kill his family if he did not pay. I asked if they had harmed or threatened him in any other way and he said no, they just threatened him like this.
I then read to him from his written claims where he said he had had his hand and foot tied up and his head hit. The applicant said this was not real, [Mr A] had added that in. I read to him that he had claimed his house was splashed with [colour] paint and they wrote abusive words. The applicant said that that had not happened and [Mr A] had written that as well. I read to him where he claimed he was depressed and he said no but he was worried about his family. I read to him from his written claims where he said he was hit, threatened that they will burn down his house and kill him, claimed his leg bones were cracking as they hit him with wood. He said no, he had not been hit or threatened. I asked if he was now claiming that the only thing they had done was threaten his family. He said he was, but they had also threatened that if he went to the police they would go further so he had not reported this to the police. I noted he had claimed he had made a police report but said they had not assisted. He said he had not gone to the police he was afraid the loan sharks might harm his family, so he decided to move and they had not found him yet.
I noted to the applicant that I had doubts that he had gone guarantor for [Family Member B] to an Ah Long who had then required the applicant to pay back the money and had threatened or harmed the applicant because of the differences in his written protection claims and then at hearing. In response he said that his problem was not so much the Ah Long as the distribution of the [drawings]. I noted that I had some doubts that he would have gone a guarantor for [Family Member B] if the applicant knew he was a drug addict, the applicant could not tell me the name of the Ah Long, and it did not sound like very much had happened before he had decided to move house, and once he had moved, nothing had happened for a year before he left Malaysia. He said he was not sure whether the Ah Long had been arrested, maybe other people had reported him to the police and he had been arrested.
I have carefully considered the claims of the applicant. I have real concerns that his written claims differ in material respects from his claims at hearing. He claims that this is because [Mr A], his ‘agent’, put these things in his written claims. As I noted to him at the beginning of the hearing, this would mean I would have real doubts about what to believe, given he had signed that this was a true account of what had happened to him. I do not accept the argument that disparities between his written claims and at hearing can be attributed to [Mr A] – even if [Mr A] had assisted him in making his application, the applicant agreed that [Mr A] spoke Malay and that he had told him the reasons and [Mr A] had written them on the application.
I find that the discrepancies between his written claims and at hearing, as described above, are significant. I find that they cast very serious doubt on whether any of these things in fact occurred.
Further, I find that the claim he went guarantor for [Family Member B], whom he knew to be a drug addict, is implausible – the applicant was unable to plausibly describe why he would agree to be a guarantor and not know with specificity what [Family Member B] would use the money for, did not know the Ah Long’s name, and did not appear to have taken any notice of the very large amount he claims [Family Member B] borrowed from the Ah Long. The applicant was unable to provide clear or plausible reasons to address these concerns. Further, the applicant indicated that after having been threatened once, he relocated his family and opened a [business], and for a year nothing had happened before the applicant then left Malaysia. Taking these concerns into account, along with the significant differences between his written claims and his claims at hearing, I find that the applicant was not a guarantor for [Family Member B] (/[Family Member A]) or anyone else for a debt. I do not accept that [Family Member B] borrowed money from loan sharks. Therefore I do not accept that [Family Member B] failed to make repayments, and that the applicant or his family then started to receive threats from debt collectors. I do not accept that [Family Member B] disappeared because he could not make repayments or for any other reason. I do not accept that the applicant was forced to surrender the house, his hand and foot were tied up and his head hit by them, that they splashed [colour] paint on his car and house and wrote abusive words to him, that he was hit, that they threatened they would burn down his house or kill him, that his leg bones were cracking as they hit him with wood; and I note that the applicant resiled from these claims at hearing. I do not accept that the loan shark threatened the applicant or the applicant’s family, either because he was a guarantor or for any other reason at any time. I do not accept that the applicant moved with his family to avoid the loan shark. I do not accept that the applicant came to Australia to avoid the loan shark. I do not accept that the applicant is depressed and note that he did not sustain this claim at hearing. I do not accept that the applicant reported anything to the police, and it follows that I do not accept that the police then did not assist. I do not accept that the loan sharks still hunt him or that wherever he goes he will still be hunted by them and I note that the applicant clearly indicated that since moving in August 2014 he and his family had not been harmed, harassed or contacted by the loan sharks in any way.
I find that the applicant has invented this claim in total and I do not accept that the applicant has been threatened or harmed by loan sharks or debt collectors in the past. I reject these claims outright. I find that there is no real chance that the applicant will be harmed for reasons of his being a guarantor for a debt of [Family Member B]’s to loan shark or for any other reason by loan sharks, debt collectors or anyone else if he returns to Malaysia, now or in the reasonably foreseeable future.
The [drawings] and the applicant’s political opinion
The applicant said that he had distributed satirical images of the Malaysian Prime Minister, Najoib Razak, made to look like a [certain character]. The applicant provided a number of photographs as well as posts made to his Facebook account and a share of his Facebook post on another Facebook page. I asked him to tell me about this. He said that he had distributed [certain images] at the [location], and this had gone viral on the internet. He said he had done this in May or June 2016. He said suddenly Facebook was blocked by the government, there were comments made that he would be arrested should he come back, he was not sure they would arrest him, but he didn’t have information about this case. He said that a lot of the people distributed these stickers in Malaysia and they are all caught and arrested in Malaysia. He said that the head of police said whoever distributes these will be arrested. He said that he had had an interview with a Malaysian news site, [name] about his distribution of these [certain images] in Australia.[1]
[1] [Information deleted]
I asked the applicant about his motivation for doing these things. He said that he had joined Bersih in Malaysia and also in [city]. He provided photographs of him marching in a support Bersih rally in [city]. I noted that he had not said in his protection application that he had been a member of Bersih. He said this was because when he had distributed the [certain character] images it was in 2016, after he lodged his protection application in 2016. I noted that he had claimed he had joined Bersih in Malaysia. He said this was true but that he was not arrested because of this, distributing pictures of [certain images] will get him arrested. I noted that the difiuclty I had was that he had not mentioned he was a member of Bersih in his protection application, or anything about his claimed anti-government opinion and this might make me doubt that he genuinely held such an opinion. He said that when he filled in his protection application the main problem he had had was with the Ah Long more than Bersih at that stage. I asked if he had any evidence of political involvement or the expression of a political opinion prior to this recent distribution of the [certain character] images on the [location]. He said he joined Bersih in 2014, there was just a protest and he attended. He confirmed the protest was in 2014, he said in Kualu Lumpur. I noted that if it had been in KL then he would have needed to have travelled to get there and that it seemed strange he could not be more specific about when the rally was. He said he didn’t remember as it was some time ago and he just joined the movement. I noted that according to news reports Bersih had organised protests in 2007, 2011, 2012 and 2015.[2] (Another rally was held later in 2016),[3] but news articles did not indicate that there had been a Bersih organised rally in 2014. He said there was a rally in 2014, a small one, and he had gone. I noted that given his evidence seemed at odds with country information and his evidence on his political activities seemed somewhat scant, I may doubt that he had taken any political activities apart from distributing the [certain character] images. He said he had.
[2] Khoo Ying Hooi, “Malaysia’s Bersih 5 rally: protesters weigh the cost of action under a repressive regime” The Conversation, 18 November, 2016;
[3]
I then discussed with the applicant the effect of s.5J(6), and that I would be obliged to disregard any conduct engaged in by him in Australia unless he was able to satisfy me that he had engaged in the conduct otherwise than solely for the purpose of strengthening his claims to be a refugee. I noted that this provision did not apply when considering the complementary protection provisions, but that if I found he had engaged in the conduct solely for the purpose of strengthening his claims this may lead me to have doubts and concerns with his credibility. I noted that his explanations of his political opinions and political actions prior to this did not appear to me to explain why he had done this other than to strengthen his claims for protection. He said he was on the [location] and that was when he got a lot of complaints on Facebook and it became viral, there was no way of him knowing that it was going to become like this.
I have carefully considered this response, and his claims of his political opinions prior to distributing the [certain images] on the [location] and posing with them, then posting these to his Facebook page in April 2016. I do not find these convincing.
The applicant’s claimed political activities prior to April 2016 are utterly unconvincing. I do not accept that he attended a Bersih rally in 2014, news articles do not indicate that there was a rally organised by Bersih, in Kuala Lumpur or anywhere else, in 2014, and his evidence about why he would have joined such a rally was vague and undetailed. I accept, on the basis of the photographs, that he attended a rally in [city] in support of Bersih 5, which occurred [in] November 2016.[4] I do not accept that the applicant has engaged in any political activity or expressed any political views prior to April 2016, either in Malaysia or Australia. Given his lack of political activity prior to April 2016, and my credibility concerns in relation to the applicant expressed above, I have real doubts that the applicant distributed [certain images] on the [location], and posed with them, posted these to his Facebook page in April 2016, was interviewed by [media] in April 2016 whilst in Australia and attended the rally in support of Bersih 5 in [city] in November 2016 for any reason other than to strengthen his claim to be a refugee. Further, his explanations of this do not, I find, address these concerns. Even if I accept that the applicant was not aware that these images would go viral, and even if I accept that he did not know or solicit the interview with [media], this is not the focus of s.5J(6), which instead focuses on the motivation for the applicant in engaging in the conduct in Australia. I find that the applicant’s conduct is not an expression of his genuine political opinion. On the basis of my credibility findings and his evidence I do not accept that the applicant holds a political opinion of any kind. Here I have come to the view, given his evidence and my credibility findings, that his motivation in taking these actions in Australia was for the sole purpose of strengthening his claims to be a refugee. In accordance with s.5J(6) I therefore have disregarded this conduct.
[4] [Information deleted]

I find that there is no real chance that the applicant will be seriously harmed by the authorities or anyone else for reasons of his political opinion (which he does not hold) or his imputed anti-government political opinion on return to Malaysia, now or in the reasonably foreseeable future.
Bankruptcy
The applicant said that he was a bankrupt and that his account had been frozen so there was no way he could survive in Malaysia. As evidence of this he provided a bankruptcy document and a document which appeared to be a bank account statement.
He said he had only found out that he was a bankrupt when he got the letter from the bank only after he had arrived in Australia. I noted to him that the bankruptcy document appeared to indicate he had been declared a bankrupt [in] November 2014, before his departure for Australia in August 2015. He said he had moved house to Kedah in August 2014 so he did not get the letter until later. he said he could not check why he had been declared a bankrupt as he was in Australia and there was no way to find out, he had to go to [town] to check with the insolvency firm there. I asked how he got the letter and he said that his wife had sent it to him when he was in Australia. He said it had been sent to his mother’s house as that was his address on his ID card. I asked where his mother lived and he said Kedah. I asked why then his mother would not have given it to him around Novembers 2014 when she would have received it. He said he had only got it in Australia.
I noted also to him that the Court which issued the order also appeared to be in Kedah, so I had real doubts he had not gotten this earlier than he said.
I asked the applicant, regardless of when he had gotten the notice, how being an undischarged bankrupt would lead to him being harmed on return. He said he was not sure of the effect of bankruptcy, maybe he would not be able to open a bank account, and if he returned to Malaysia he would not be able to leave the country anymore, as he would be a bankrupt.
I noted that if he had been a bankrupt from November 2014, it did not appear to have affected him as he had said he had operated his business in Kedah until shortly before coming to Australia in August 2015. He said that the thing was he only got that letter when he was in Australia and they froze his account when he was in Australia.
I then discussed with the applicant country information that appeared to suggest that the Malaysian Parliament had recently approved changes to the Malaysian bankruptcy laws, including that bankrupts are automatically discharged after three years.[5]
[5] Yunus, a., “Parliament approves amendments to Bankruptcy Act” The Star, 29 March 2017,
Having carefully considered the applicant’s evidence on this, I have reached a state of disbelief that the applicant was or is a bankrupt. I do not accept his evidence that he was not aware he was a bankrupt until he came to Australia or that he is not aware how he became a bankrupt. I note that he was able to operate a business for almost a year in Malaysia after being declared a bankrupt. On the basis of these concerns and taking into account my general credibility findings, I find that the applicant is not nor ever was an undischarged bankrupt. I place no weight on the claimed court document or the bank statement, given my findings, and given that these have been produced late in the process. I do not accept that the applicant’s Malaysian account has been frozen. I do not accept he has no money. I do not accept that, if he returns, he would be unable to subsist, or support his family.
I find that there is no real chance that the applicant will be harmed for reasons of his claimed bankruptcy, the claimed freezing of his account or his claim to have no money or for any other reason on return to Malaysia, now and in the reasonably foreseeable future.
Health issues
The applicant has provided a large number of documents that establish that he has [Medical Condition 1], which was diagnosed some six years ago, and that he has received surgery in Australia for [Medical Condition 2]. There is no indication of any further conditions or complications from these conditions. When asked whether he would have any issues with his [Medical Condition 1] if he had to return to Malaysia he said he did not know if there would be issues or not. The documents do not demonstrate, and nor has the applicant claimed, that he will be harmed for any reason connected to these health issues. I do not accept that there is any real chance of the applicant being harmed for any reason connected to his [Medical Condition 1] or to him having had surgery for [Medical Condition 2] in Australia.
Cumulative assessment and other matters
The applicant also provided a large number of bills and documents relating to the rental of several properties in NSW and some mobile telephone bills and documents. I asked him what these demonstrated or what he wished to tell me about these documents. He said they showed he had rented a place here.
Late in the hearing the applicant also said that he had been arrested by the authorities, he said this was a long time ago and he was in jail for [number] days, as he took part in an [event] and overstepped the law of Malaysia. He said he was not charged but he was held and released. He said he was not charged and convicted, before the voting of the previous minister, he was pardoned, that was why he was released, he said there were [number] of them released. I asked again if he had been charged and convicted of an offence if he was pardoned. He said he was not convicted but he was arrested for [number] days. I have carefully considered this claim but I do not accept it – the applicant was vague and imprecise about whether he was charged and then pardoned, or just held, and I do not accept that he would be held for such a long period of time with no charge. Taking these concerns with my general credibility concerns, I do not accept that the applicant has been arrested, detained, jailed or pardoned for any reason at any time.
I have considered the applicant’s claims that I accept individually and cumulatively. As a Malay who has taken and then posted photographs to his Facebook account of him posing with characters with a [certain image], who has had an interview about this with [media], all in April 2016; as a person who took part in a Bersih 5 support rally in [city] in November 2016; as a person who I have found has [details deleted], as a person who has [Medical Condition 1], I have considered all of these factors individually and cumulatively and find that there is no real chance of him being harmed for reasons of his actual or imputed political opinion or any other reason if he returns to Malaysia, now or in the reasonably foreseeable future.
Complementary protection
In considering whether the applicant faces a real risk of significant harm for the purposes of the complementary protection criteria, I note that ‘significant harm’ is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee definition.[6]
[6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
For the reasons given above, I have not accepted that the applicant has not gone a gurantor for [Family Member B] to loan sharks, nor that they have threatened him and harmed him in an attempt to make him pay; I have not accepted that he is a bankrupt. I have accepted that he is a Malay; has [details deleted]; and has [Medical Condition 1]. Having considered these claims, I find that there is no real chance the applicant will suffer significant harm if he is returned to Malaysia for these reasons, either individually or cumulatively.
I have also accepted that he has taken and then posted photographs to his Facebook account of him posing with characters with a [certain image], and has then had an interview about this with [media], all in April 2016; that he has taken part in a Bersih 5 support rally in [city] in November 2016.
In SZRQR v MIAC Judge Nicholls held that because s.91R(3) (the precursor to s.5J(6), expressed in the same terms) is expressed to refer directly to the refugee definition, it does not apply when considering whether the applicant meets the complementary protection criteria.[7] I have therefore turned my mind to the conduct of the applicant in Australia.
[7] SZRQR v MIAC [2013] FMCA 21 (Nicholls FM, 30 January 2013) at [13].
Whilst I accept that the applicant has engaged in these activities in Australia, I do not accept that this will lead to a real chance of the applicant being harmed for reasons of his political opinion or imputed political opinion for the following reasons.
As above, I do not accept he genuinely holds a political opinion, of any kind. I therefore do not accept he would engage in any further activity or actions that were or would be perceived to be anti-government after this case is decided, either here or if he returns to Malaysia.
Further, the artist/activist who made the image, [name], was questioned, arrested and charged by the authorities in June 2016 under the multimedia laws, and faces up to a year in jail if convicted, but the evidence before me does not indicate that others who distributed or publicised the [certain character] image as the applicant did, have been questioned, arrested or charged.[8] I note that the applicant himself and the [media] article also noted that the image had been widely disseminated and publicised inside and outside Malaysia. Whilst I accept that the Malaysian government uses laws including the Communication and Multimedia Act 1998 which [name] has been charged under, as well as sedition laws, to silence political critics,[9] the evidence before me does not indicate that those who disseminated the images were arrested or charged. I note also that the applicant took these actions, and the article in [media] appeared, over a year ago.
[8] [Information deleted]
[9] [Information deleted]
The applicant claims that he has an article showing the police warning that those who distribute the article will be charged. This article is in Malay, as I pointed out to him, and he has not provided a translation, but I accept that the Malaysian police made these warnings at this time.[10] However, the evidence before me does not indicate that police have acted on these warnings. The applicant also pointed to the comments to the [media] article and his Facebook posts where users urged the Malaysian authorities to take action against the applicant. I give these comments, from unidentified people, no weight in discerning what the authorities may or may not do if the applicant returns to Malaysia. Nor do I accept that these online comments from unknown people would lead to these people seeking to harm the applicant in the future if he returns.
[10] [Information deleted]
I have carefully considered the applicant’s evidence as well as the available country information provided by the applicant and that I have been able to locate. This leads me to conclude that the applicant, as a person who has taken photos with the [character image] at the [location], who posted these to his Facebook account, who then had an interview with [media], all in April 2016, and who has attended one Bersih rally in [city] in November 2016, but whom I have found has done all of these things for the sole purpose of strengthening his protection claims, and who I do not accept holds a genuine political opinion nor will engage in any further political activity, will not face a real chance of harm if he returns to Malaysia. I have considered if he will be imputed with a political opinion but I find given that, as found above, I do not accept he engaged in any political activity when he was in Malaysia, given his limited activity here, and that I do not accept he will express or genuinely holds these views, I do not accept that he would be imputed with an anti-government political opinion on return. Given the time that has elapsed since these events, given that there are no reports of others who distributed or publicised these satirical images being questioned, arrested or detained, I find that there is only a remote, and far-fetched chance, less than a real risk, that the applicant will be questioned, arrested, detained or charged because of his actions in Australia, the Facebook posts or the [media] interview and article, or his imputed political opinion (as opposed to actual political opinion, which he does not hold) if he returns to Malaysia now or in the reasonably foreseeable future. I find that there is no real risk, equivalent to a real chance, that the applicant will be harmed for these reasons on return.
I have considered his claims that I have accepted cumulatively but I do not accept that they reach the level of a real risk of him suffering significant harm on return.
Having regard to my findings above and to the relevant PAM3 Guidelines, the Tribunal does not accept 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 that the applicant will suffer significant harm from the Malaysian authorities, loan sharks or any other person.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sean Baker
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…