1705697 (Refugee)

[2021] AATA 4409

1705697 (Refugee) [2021] AATA 4409 (13 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705697

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Simone Burford

DATE:13 September 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 September 2021 at 2:59pm

CATCHWORDS

REFUGEE – protection visa – Malaysia –membership of a particular social group – victims of a loan shark – a financially vulnerable person – economic conditions in Malaysia – fear of harm from criminal gangs –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AA, 5J, 36, 65, 423A, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v Minister for Immigration and Border Protection [2018] FCFCA 2
Ex parte Applicant S154/2002 [2003] HCA 60
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZBEL v MIMIA (2006) 228 CLR 152
SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089
WAKK v MIMIA [2005] FCAFC 225

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 and Border Protection on 23 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

Background

2.    The applicant is a [age]-year-old Malaysian citizen. He is from Kuala Lumpur, Malaysia.  He is Muslim and identified himself as ethnically Indonesian.  He is married and has one child. He was previously married and was divorced in 2018. Prior to coming to Australia, he was living with his family in Kuala Lumpur. 

3.    He has a wife whom he met in Australia and married in September 2019.  They have one child who was born in Australia in [year].  The child is not an applicant for the visa.  He confirmed before the Tribunal that his wife was also an applicant for protection and her claims were currently before the Tribunal. His wife is a Malay citizen.  Her family lives in Malaysia.

4.    The applicant arrived in Australia [in] August 2016 on a UD-601 Electronic Travel Authority visa. He travelled to Australia with his then wife.

5.    He applied for the protection visa on 2 November 2016.

Issues

6.    The issues in this review are whether there is a real chance that, if he returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

7.    For the following reasons, the Tribunal has concluded that the decision not to grant the applicant a protection visa should be affirmed.

CLAIMS AND EVIDENCE

Protection claims

Protection visa application

8.    The applicant filed his application for a protection visa on 25 May 2017.

9.    The applicant initially presented his claims in his protection visa application which were summarised in the delegate’s decision as follows:

·He left Malaysia because he was facing financial issues.

·He fears returning because he will be facing financial issues due to unemployment.

·he did not move to another part of the country because he was unemployed and had financial problems.

·The authorities cannot protect him because his issues are financial and political issues.

·He cannot relocate because he is unemployed and faces financial problems.

1. The applicant submitted a copy of his Malaysian passport issued [in] 2015. No further evidence was submitted to the Department.

2. The applicant was not interviewed by the Department in relation to the application.

The delegate’s decision

1. On 22 March 2017 the delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in the Act and he was not a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations.

Review application

1. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 23 March 2017. He provided a copy of the delegate’s decision to the Tribunal.

2. The applicant attended an initial hearing before the Tribunal on 18 September 2020. The applicant attended a further hearing on 11 December 2020.

3. The hearings were held during the COVID-19 pandemic.  The first hearing was held by telephone.  The second hearing was held by video conference using the MS Teams platform.  The Tribunal determined it was reasonable to hold hearings by electronic communications, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by electronic communications. The applicant did not raise any concerns regarding the conduct of the hearing by telephone and video conference.

4. The hearings were conducted with the assistance of an experienced interpreter in the English and Malay languages. The applicant was represented in relation to the application to the Tribunal.  The applicant’s representative also attended the hearings before the Tribunal.

5. At the initial hearing the Tribunal outlined for the applicant the issues it was considering and confirmed the applicant’s claims for protection. The Tribunal also took evidence regarding the applicant’s background and whether there were any changes to his personal circumstances since the application was filed.

6. Prior to the first hearing the applicant’s representative provided the following documents to the Tribunal:

   ·Statutory Declaration of the applicant dated 11 September 2020 (2020 statutory declaration);

   ·Copy of a birth certificate for [Name 1] born [year];

   ·Copy of a Royal Malaysian Police, Police Report (Malay and English) dated 28 July 2016.

   ·Written submissions from the applicant’s representative including references to country information.

7. At the initial hearing the summary of the applicant’s claims, which is outlined above, was put to the applicant.  The applicant confirmed this was a fair and accurate summary of his claims for protection.  The Tribunal asked if the applicant had any additional claims and he stated that he had a conflict with his mum.  He claimed that his mother had dealings with a criminal syndicate and she has connections with loan sharks. He claimed that as a result he had been targeted and subject to harm. He said he did not include this additional claim when he made his ‘application for the bridging visa’ because the person who helped him, Mr [A], did not include the claim in his application form and did not provide to the Department the copy of the police report which he gave to him.

8. The Tribunal notes that in response to the question on the application for the visa concerning whether the applicant had assistance completing the form (Question 6), the applicant answered ‘no’. At the hearing, the applicant was asked if he had assistance preparing his application for protection and he told the Tribunal that Mr [A] helped him but didn’t include all this claims.  He said Mr [A] filled out the form and gave him pages to sign.

9. The Tribunal explained that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim (s 5AA). The Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[1]

   [1] Prasad v MIEA (1985) 6 FCR 155 at [169–70]; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, I November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

10. The Tribunal also explained that s 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.  If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

11. The applicant’s claims for protection and the evidence on which he was seeking to rely in support of his claims were discussed in more detail at the second hearing.  The Tribunal also confirmed that the applicant’s wife’s application was before the Tribunal.[2] 

    [2] Tribunal No 1720340

12. Written submissions from the applicant’s representative made the following claims:

    ·The applicant was the subject of migration fraud in this original application and only became aware his original claims had not been included in his application when he appointed his representative to assist with the review and a freedom of information (FOI) request was lodged.

    ·The applicant fears persecution due to his membership of a particular social group being ‘victims of a loan shark’ due to being listed as a guarantor on a loan taken by his mother who he claims was also involved in providing false identity documents including selling his brother’s birth certificate.

    ·The applicant claims he suffered harm in 2016 from the loan shark and that this was reported to and not acted upon by police.

    ·He fears he will be subjected to serious harm in Malaysia by the loan shark and an associated syndicate. He fears he will be exposed to and subjected to violence and forced or trafficked into working off his mother’s loan, given he is listed as a guarantor.

    ·He also fears being persecuted because he is a financially vulnerable person.

    ·The applicant maintains his ‘concern in relation to economic difficulties’ he would suffer on return to Malaysia.

    ·The applicant claims the authorities will not protect him because they are reluctant to investigate and punish loan sharks due to the illegality of seeking such loans in the first place. Ineffectiveness of the police means the applicant will not be afforded protection by the state.

    ·Given the ‘connections, power and status’ of loan sharks the persecution relates to all areas of Malaysia.

13. In evidence before the Tribunal at the second hearing when he was asked what he was seeking protection from he said he ‘joined a social group to do with politics and I had a fight’ and secondly he was a victim of a loan shark because of his mother’s actions, and thirdly because of the bad economic situation in Malaysia and ‘to get some stability’.  When the Tribunal asked what social group to do with politics he was referring to he said the opposition and the government. The Tribunal asked what social group it was and he said, ‘[Group 1].’ He said he had put a ‘post’ up (on a website) and ‘there were random people who were harassing me.’  The Tribunal asked when this was and he said it was when he was in Malaysia. He said the post was in relation to opposition to systems in Malaysia. He said he was at risk from ‘random people’ that commented on his post. This claim was not mentioned in written submissions or in his application or his 2020 statutory declaration.

14. The Tribunal notes that it discussed with the applicant at the hearing what was then the current Department of Foreign Affairs and Trade (DFAT) Country Information Report: Malaysia dated 13 December 2019 (the 2019 DFAT Report) in considering the claims raised in the application. On 29 June 2021, DFAT released an updated country information report for Malaysia – the Country Information Report: Malaysia dated 29 June 2021 (the 2021 DFAT Report).  The Tribunal considered the content of that report with respect to the applicant’s claims.  The Tribunal considers that the general content of the report as it relates to the applicant’s claims is consistent with the 2019 DFAT Report and with other country information discussed at the hearing.  Relevant country information is discussed further below.

Applicant’s identity and country of reference

1. The applicant claims to be a citizen of Malaysia. As noted earlier, the applicant provided a copy of his Malaysian passport to the Department. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.

2. The Tribunal finds that the applicant is a citizen of Malaysia, which is also his receiving country for the purposes of the refugee and complementary protection assessments.

DECISION-MAKING FRAMEWORK

Criteria for a protection visa

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

2. 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.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

4. 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.

5. 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.

Credibility assessments

1. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[3]

   [3] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]–[70] per Nicholls J.

2. The courts have made it clear for some time that it is important that the Tribunal be sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[4] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[5]

   [4] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

   [5] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

3. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[6] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[7]

   [6] MIMA v Rajalingam (1999) 93 FCR 220.

   [7] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

1. However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[8] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[9]

   [8] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].

   [9] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.

2. Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[10]

   [10] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

3. The Tribunal notes that where there is a finding that there is no subjective fear of persecution this may lead to a conclusion that the Tribunal finds the claims not to be credible. In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015 in particular [8], [13], [17]–[19] and [27]–[28].

Mandatory considerations

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

2. As noted earlier, the Tribunal discussed with the applicant at the hearing the 2019 DFAT Report, which was then the current DFAT Country Information Report: Malaysia, in considering the claims raised in the application. The Tribunal has also considered the most recent DFAT report the 2021 DFAT Report. The Tribunal considers that the information contained in the most recent report was materially the same as the country information put to the applicant at the hearings such that it raised no new issues with respect to the application for review.

3. The Tribunal has included references to both the 2019 DFAT Report and the 2021 DFAT Report where relevant. The Tribunal was satisfied that the issues arising from the 2021 DFAT Report had been raised with the applicant at the hearing.  Accordingly, the Tribunal determined that a further hearing was not required as no new dispositive issues were raised by the 2021 DFAT Report.

4. Country information is discussed further below.

CONSIDERATION

1. The Tribunal has carefully considered the claims of the applicant in his original application for protection and his subsequent application to this Tribunal, individually and then cumulatively.

2. In his application for protection, the applicant claimed he could not return to Malaysia because he would be unable to find a job due to economic conditions in Malaysia and would be unable to support himself financially.  At the first hearing he confirmed these claims.

3. However, as noted above, the applicant raised an additional claim that he feared harm on return to Malaysia from loan sharks and their associates due to being listed as a guarantor on loans taken out by his mother from whom he is estranged. He also claimed to fear harm from criminal gangs due to his mother’s activities.

4. In evidence before the Tribunal at the second hearing when he was asked what he was seeking protection from he said he ‘joined a social group (‘[Group 1]’) to do with politics and I had a fight’ and secondly he was a victim of a loan shark because of his mother’s actions, and thirdly because of the bad economic situation in Malaysia and ‘to get some stability’. 

5. The applicant did not raise any claim to fear harm with respect to any claims raised in his wife’s application for protection.  He did claim he would be unable to support his wife and child or return to Malaysia due to economic circumstances and that they would be at risk of harm more generally due to the harm he feared from loan sharks and criminal gangs and ‘the political and social media’. He claimed that he and his family would be hounded because of his mother’s loans and activities and his family would ‘embarrassed and ashamed’. He was worried they might kidnap or kill one of his family members.

Credibility issues

1. As noted earlier, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is well-founded or that it is for the reason claimed. The Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. 

2. The Tribunal had significant concerns regarding the credibility of the applicant’s claims for protection.  There are aspects of the applicant’s evidence regarding his claims which cause the Tribunal concern, including his failure to include key details at the visa application stage or to have provided consistent information regarding his claims at the review stage. There were marked inconsistencies in aspects of his claims including in relation to his reasons for seeking protection and events which occurred in Malaysia with respect to the claimed loans. On critical aspects of his claims he was unable to provide meaningful detail, context or corroborative evidence. 

3. Further, in the Tribunal’s view, the applicant was unable to provide a satisfactory explanation for the late claims regarding his fear of loan sharks and criminal gangs and the evidence on which he relied in support of those claims and with respect to his new claim at the second hearing regarding membership of ‘[Group 1]’.  In this regard the Tribunal notes that while the applicant claimed to have suffered ‘immigration fraud’ he did not offer any evidence to substantiate or corroborate those claims. The Tribunal notes that he signed two declarations in his application indicating that the information in that application was truthful (Question 1) and the information in the form is complete, correct and up to date in every detail (Question 12). He said he was just told by Mr [A] to say yes to everything and to go to the JP’s (Justice of the Peace’s) office and sign where they told him to sign. The Tribunal put to him that if he was prepared to sign a declaration where information was not full and correct it might give rise to a concern that he was prepared to provide inaccurate or untruthful evidence in support of a visa application.  He said that at that time he didn’t know too much about the visa and the consequences of his actions. The applicant claimed that Mr [A] half filled out the form for him and ‘put down what he wanted to put down’.

4. Further, there were several other instances of claims and incidents raised for the first time at the second hearing which were not included in his protection application or in his later statutory declaration.  For example, he did not raise the ‘[Group 1]’ claim in his statutory declaration which was prepared with the assistance of his current representative.  At the hearing when he was asked about this he mentioned it to Mr [A] but he didn’t think it was important. He was asked if he had mentioned it to his current representative and he said ‘yes’. The Tribunal pointed out that it was not included in his statutory declaration and he noted that it was not in his statutory declaration he said he had put a ‘post’ up (on a website) and ‘there were random people who were harassing me.’  The Tribunal asked why the claim was not raised until the second hearing, explaining again the provisions of s 423A, and the applicant said he was confused with what happened when he made the application.  The Tribunal noted that even if it accepted this that he now had a new representative and he didn’t mention the claim in his statutory declaration setting out his claims. He said, ‘so how do I say this? The main reason or main problem I have are the activities of my mum.’ The Tribunal explained that the late raising of the claims gave rise to a concern that the applicant was raising additional claims to strengthen his application for protection rather than from a genuine fear of harm. The applicant did not respond.

5. The applicant also failed to raise claimed instances of harm or threats of harm from criminal gangs and loan sharks until the second hearing.  He claimed to have told both Mr [A] and his current representative about these instances.  However, particularly with respect to the evidence and claims outlined in his 2020 statutory declaration there was no satisfactory explanation as to why the applicant had not raised those instances of harm or threats of harm earlier in the visa process.  Further, the Tribunal did not accept on the evidence that he had raised those incidents with Mr [A].  Further, the Tribunal does not regard it as credible that the applicant would have raised claims to have faced threats due to online political comments to his current representative which were not then raised in his 2020 statutory declaration or in comprehensive written submissions.

6. The applicant’s representative submitted that the applicant was unaware that his loan shark or criminal gang claims and evidence had not been included in the application form until the representative was appointed and the Tribunal file was obtained under FOI.  Even if the Tribunal were to accept it is a satisfactory explanation for incorrect claims being included in an application seeking a permanent visa to remain in Australia that the applicant did not read or understand the contents of the application prior to signing that it was truthful and complete, which the Tribunal does not accept, it was clear from the delegate’s decision that those claims were not considered or included. The Tribunal does not regard it as satisfactory in such circumstances that the applicant’s claims were not updated or corrected until just prior to the hearing.

7. Considering all the evidence, the Tribunal draws an adverse inference with respect to the late claims.  The Tribunal formed the view that these late claims and evidence were not credible and were embellishments the applicant provided in an attempt to bolster his application for protection.

8. In addition there were elements of the applicant’s evidence which appeared misleading and inconsistent causing the Tribunal to have concerns about the testimony he gave in support of his application.  For example, At the first hearing the Tribunal asked the applicant about his family in Malaysia. When asked what family he had living in Malaysia, the applicant said his father and ‘a younger brother and sister’.  He told the Tribunal they remain living in the same home he shared with them in Malaysia. His father works as a [labourer].  His brother works [for] a private company and his sister is [studying]. When the Tribunal asked about his family in Australia he told the Tribunal he had another brother who came here in 2019 on a student visa, and is studying [in] Sydney.   Only one sibling, a younger brother, was listed in his application for protection (Question 42). At the beginning of the second hearing the Tribunal asked the applicant again about his family members and he told the Tribunal about his wife, brother and son in Australia.  When asked what family he had in Malaysia he told the Tribunal he had his father and a younger brother and younger sister.  When asked if he had any other family he said ‘no’.  However, much later in the hearing, when the Tribunal was exploring with the applicant his claims to fear harm in Malaysia the applicant corrected himself and said there were six siblings including four remaining in Malaysia and living with his father.  He explained this significant inconsistency on the basis that he wasn’t focusing earlier. The Tribunal did not consider this explanation was reasonable given the circumstances of the evidence including repeated earlier assertions that the applicant only had two siblings in Malaysia.

9. Further, in the Tribunal’s view, the applicant’s conduct in Australia contributes to doubts regarding his credibility and claims for protection.  This includes the omission of significant details of his personal circumstances in Malaysia on his application for protection, including details regarding his siblings and the fact he was working in Australia from a week after he arrived on a visitor visa and while he was aware it was unlawful to do so. The applicant claimed that he told Mr [A] he had other siblings but he said, ‘just say yes to everything’.  As noted above, the Tribunal finds the applicant continued to provide inaccurate information about his family circumstances in evidence before the Tribunal.  This contributes to the Tribunal’s concerns regarding the accuracy and truthfulness of the information the applicant provided in support of his application for protection.

10. The Tribunal put to the applicant that the fact he was prepared to provide false or incomplete information in his application might give rise to a concern that he prepared to provide inaccurate information to secure a visa outcome.  He said that at time he arrived he didn’t know much about the visa. The Tribunal asked if he had sought information from the Department or the Department’s website and he said he didn’t.  He said the advice he had about the bridging visa from his friend was that she had been living here for a long period of time and was unlawful but she could still draw a reasonable salary. He said that at that point in time his ex-wife influenced him and he ended up applying for a protection visa because of this influence. He said he initially intended coming as a visitor but then he applied for protection.

11. Importantly, when the applicant was asked what the purpose of his travel to Australia was he said he came to meet a friend of his ex-wife’s.  The Tribunal asked what the plan was and he said that initially his ex-wife planned to work here and he came for a holiday but when she decided to work he decided to work. He said he was told he would be earning a lot of money [doing a specified job] but he was ‘scammed’ and wasn’t earning much. He said he then applied for the ‘bridging visa’ and started work [on farms].

12. The Tribunal did not regard this account to be consistent with his later claim to have left Malaysia due to actual and ongoing threats of harm from loan sharks, criminal gangs or any other person.

13. These concerns are detailed further in the assessment below.

Fear of harm from loan sharks and criminal gangs

1. Central to the applicant’s protection claims are that his mother incurred debts to a loan shark in Malaysia, for which he had been listed as a guarantor.  He is afraid he will not be able to repay his debts if he returns to Malaysia, and claims he fears harm from the loan sharks and their associates. He also made late additional claims at the hearing to fear harm from criminal gangs in Malaysia who had approached him in relation to his mother’s activities.

2. The applicant outlined before the Tribunal and in his statutory declaration of September 2020 that on [date] July 2016 two men came to his house and harassed him.  He said they were looking for his mother but he told them his mother did not live at the address because his parents had split up because his mother had an affair with another man.  He said the two men said his mother owed them money.  He said according to information from his brother, they came twice to the house to look for his mother and they were both very aggressive and harsh, and they made threats that he had to repay his mother’s loan or he would receive ‘a very bad consequence’.

3. The Tribunal asked when they had previously come to the house and he said before the 2016 police report was made. He couldn’t remember when but it was between 2015 and 2016. He said his mother had moved out in the middle of 2015 or 2016. He said his brother told him about the visits in July 2016. The Tribunal asked how much money they said his mother owed and he said 6,000 MYR. The Tribunal asked if they had visited since he had left and he said they were only looking for him because he was the guarantor. He said that at  this point he didn’t know too much information.  The Tribunal put to him that if people were coming to the house looking for him or seek repayment of money it would be reasonable to assume that the family might have mentioned it to him and he agreed.

4. As noted above, the applicant provided a copy of a police report dated 28 July 2016 and provided to the Tribunal on 11 September 2020. The Tribunal asked where the document came from and he said he had asked his brother to copy it and send it to him. The Tribunal queried who had translated the document as it had no notarisation regarding the translation and he said it was a translation person from an office.  The Tribunal asked when the document was sent to him by his brother and he said it was in 2018.  He said he provided a translation to his lawyer.  The Tribunal pointed out that he had said earlier he had provided a copy to Mr [A] in 2016 prior to the protection visa application being lodged and he said he couldn’t remember.  The Tribunal asked if he had any evidence of the email providing Mr [A] a copy of the report and he said it was sent on another email and he was not using a new one.  He said he forgot the password for the previous email he had.  He then said he had provided a copy to his lawyer in 2016 and his lawyer had told him to get a translation and he had given the translation to his lawyer in 2018. The Tribunal notes the applicant used the same email on his application for the visa, his application for review to the Tribunal in 2017 and his change of address form in 2020. 

5. The Tribunal notes the report does not identify the people who reportedly came to the house other than to state they were ‘Indonesian’. The report does not mention the claimed earlier visits although the applicant told the Tribunal his brother told him about those visits ‘before July’ which is when he claims to have made the report. The report says the men were looking for his mother and asked for the loan to be paid. The report does not mention anyone being harmed or threatened with harm.

6. The Tribunal asked what happened after he made the police report and he said he was still afraid because ‘the man’ had a lot of influence in many areas and was not afraid of the law. The Tribunal asked how he knew this and he said he didn’t know him but he had a connection with his mother. He said his mother had not only procured loans from illegal sources but she was selling birth certificates and identity cards in Malaysia.  He said he knew this through his brother. The Tribunal asked how his brother knew and he said he wanted to amend his statement and said he had one younger brother and one younger sister but he had five siblings altogether. He said he was the oldest, the second one is one studying in Australia, the fourth is the sister who is studying, and the sixth one is still at school. He said the fifth one has troubles because his mother sold his or her birth certificate and because his mother had sold the birth certificate he or she is not allowed to go to school at all. He said he hoped if he were to get a protection visa his brother could be helped because he had sought help from the authorities in Malaysia and NGOs but he had not received any feedback from them.  The Tribunal asked why he had left out these siblings when the Tribunal asked about his siblings earlier and the applicant said he didn’t understand. The Tribunal pointed out these were not complicated questions.  The applicant said he was focusing on his claim.

1. The Tribunal asked if he knew what the police did in relation to the report and he said that he was waiting for a response but there hadn’t been any action. The Tribunal queried how he knew nothing had been done in relation to the report.  He said he did check and they said it was still being investigated. The Tribunal queried when he made the inquiry and he said early August 2016. The Tribunal asked whether he had any further approaches from the loan sharks at that time and the applicant said that he was staying at the house and then he ran away to his ex-wife’s house.  The Tribunal pointed out this was not mentioned in his statutory declaration.  The Tribunal put to him that if the loan sharks had the connections he claimed they would have been able to locate him at his ex-wife’s house.  The applicant said that they came to the place he was working and then his ex-wife suggested they come to Australia. The Tribunal queried what he meant by the reference to his work and he said a different person came to his work.  He said this was in July or August 2016.  He said he did not report it to the police but he discussed it with his ex-wife and she decided they should come to Australia.  The Tribunal noted he did not mention any visit by loan sharks to his work in his statutory declaration and he said he didn’t write it down.

2. The Tribunal put to the applicant that it might be reasonable to assume if loan sharks were trying to enforce a loan against him as a guarantor when he was not in fact a guarantor that they may have tried to enforce that loan also against other members of the family such as his father.  He said that at that time he was the only one who owned a car and a motorcycle. He said the loan sharks were confident he could be guarantor.  The Tribunal queried if he thought about selling those assets if he felt he was at risk of harm because of the debts.  He said he was the only one responsible for looking after his siblings and his father at that time and if he sold the assets his family wouldn’t have anything.  The motorbike was his means to look for work outside the home. He said they wouldn’t be happy with money from the sales of those assets because when they were given the schedule for making repayments the loan shark had included interest.  The Tribunal asked what the repayment schedule was and the applicant said if he didn’t make repayments it would go up by 1000MYR a day.  The Tribunal asked again what the repayment schedule was and he said that he didn’t know how much he was meant to repay as it was all organised with his mother. He said he tried to locate his mother to seek clarification but he couldn’t find her and he has been told she left Malaysia.

3. Later in the hearing the Tribunal also discussed with the applicant the circumstances of his brother who was studying in Australia.  The applicant indicated he was funding his own study from money he earned working in Malaysia.  When the Tribunal queried this he said that his brother came here because he had debts as well.  The Tribunal queried how he saved money if he had debts and he said he wasn’t sure.  The Tribunal noted that if he obtained a student visa in Australia he would have had to show he could support himself while he was here and he said he had a deed for a property title for land. The Tribunal queried if that would be able to be used to settle debts and he said that was his choice and he didn’t want to. The Tribunal put to the applicant that if he was at risk of being kidnapped or other serious harm it seemed unlikely that a family asset like land would not be used to settle a debt and he said that even if they sold it it wouldn’t be sufficient to settle the debt.

4. Information regarding loan sharks outlined in the 2019 DFAT Report was outlined in the applicant’s written submissions.  In summary that information indicated that loan sharks, or ‘Ah Longs’, operate very publicly in Malaysia carrying on moneylending activities without a licence and charging high interest rates to do so. While such practices are illegal, moneylenders advertise their services publicly.[11] However, country information indicates it is an offence to illegally lend money in Malaysia and police have broad powers to investigate alleged loan sharks.[12] In this regard, police can visit, enter, inspect or search premises without a warrant and seize movable properties and business documents to assist with the investigations against alleged loan sharks. Penalties for illegal moneylending include a jail term of up to five years.[13]

   [11] DFAT, Country Information Report: Malaysia, 13 December 2019 par 3.108, page 39-40.

   [12] Illegal money lending or loan sharking is an offence under s 5(2) of the Moneylenders Act 1951, which carries a fine of between RM250,000 and RM1 million (AUD80,000 – AUD320,000) or, a jail term of up to five years, or both, see DFAT, Country Information Report: Malaysia, 13 December 2019.

   [13] DFAT, Country Information Report: Malaysia, 13 December 2019.

5. Country information indicates that police actively investigate and prosecute illegal money lenders. Police actions against individual loan sharks under the Moneylenders Act 1951 are reported on regularly in the Malaysian media.[14]  Country information also suggests the Government has been making efforts to reduce corruption within the political system and the police force, and to target illegal money lenders by charging them with criminal offences and/or fining them. The Tribunal indicated that the fact the applicant had not been the one who obtained the loan and was being pursued for a loan which was not his might suggest that the police would be more sympathetic and may take action if the applicant reported being harassed or threatened by an illegal money lender. The applicant agreed the police were taking action however he said the loan sharks were not afraid of the police and they continued to give out loans.

   [14] ‘14 held for illegal money lending in Pahang, items worth RM1million seized’ NST, November 2019 ‘Violent gang of loan shark members nabbed’ The Star, Jan 2020

6. The Tribunal noted that part of the 2019 DFAT Report indicated that some banks and credit agencies were willing to offer people loans to consolidate and pay off loan sharks and asked whether he felt that he could access such assistance.[15] According to DFAT, the Malaysian Muslim Consumers Association (PPIM), which provides services predominately for the Malay community, was involved in over 10,000 cases involving loan sharks between 2012 and 2016.[16] The PPIM maintains a Malay language website where people can report loan shark cases. According to the website, the PPIM has resolved “thousands of cases” and the website sets out the procedures that are adopted and available remedies, including an investigating officer negotiating to stop the threats and interest, reducing the claim and rescheduling payments.[17] The Tribunal queried whether the applicant was aware of such services or could approach such services and the applicant said his understanding was that priority was given to citizens.  The Tribunal indicated he was a citizen.  He said they would find out his parents were not citizens and they wouldn’t help.  He confirmed he had never approached them for help.

   [15] ‘Many still found borrowing from loan sharks’, MCA website May 2017

   [16] DFAT report [3.115].

   [17] Ahlong.ppim.org

7. As noted earlier, this information is broadly consistent with information contained in the 2021 DFAT Report.[18]

   [18] 2021 DFAT Report at pages 40-42.

8. The Tribunal asked who the criminals were and he said he didn’t know but they were looking for his mother. The Tribunal asked if they had approached his family since he left and he said he didn’t know.  The Tribunal suggested it might be reasonable to assume that if his family were being approached by criminal gangs that are threatening them they may have mentioned that to him and he said he didn’t know because his father can be very secretive and would not tell the children. The Tribunal pointed out that he had four siblings living at his home address and queried if any of his siblings had mentioned criminal gangs and he said they hadn’t but he didn’t contact them very often.

9. The Tribunal put to the applicant that the fact he came to Australia only intending to visit might be regarded as inconsistent with a claim he left Malaysia because of a fear of harm from loan sharks or criminal gangs. The applicant said that he wanted to have a holiday because he just got married to his ex-wife and after they got married they had planned to come to Australia and after they landed in Australia his ex-wife was influenced by her friend so that rather than having a holiday they worked. He said the main reason he came to Australia was to remove himself from the threats he was facing and that was why he needed a holiday. The Tribunal indicated it understood why he might want to have a holiday but that this would not suggest he would be unable to return to Malaysia and he replied that after he came to Australia and started working he thought it would be better if he just worked and stayed here to run away from the criminal gangs.

10. The Tribunal asked about the applicant’s concerns about the economic circumstances in Malaysia and he said that his mother also had dealings with criminal activities of selling identity cards so it was not just loan sharks but criminal groups who also came and harassed him at his work. The Tribunal asked why this wasn’t mentioned in his application form or in his statutory declaration. He said that he mentioned it to Mr [A] but he did what he wanted.  The Tribunal pointed out it was also not mentioned in his 2020 statutory declaration prepared with the assistance of his new representative and he said he did tell his representative that he had trouble with criminal gangs.  The Tribunal queried if he had reported it to the police and he said no he just reported the loan sharks. He said he lost faith in the police because they were unable to solve the case he had with the loan shark.  He said that if he made a report they may not be able to resolve it.  The Tribunal pointed out he had not been approached by the loan sharks since making a report which may suggest the opposite and that the issue had been resolved.  He said that he was not sure what happened after he came to Australia.

11. The Tribunal had serious concerns regarding the applicant’s evidence of the loans, the police report and new claims of threats from criminal gangs.  There were serious inconsistencies in the applicant’s account of having received the report and no satisfactory explanation was offered for the significant delay in providing it prior to the primary decision being made or to the Tribunal on review.  The Tribunal draws an adverse inference as to the veracity of the report and the applicant’s account of these events and considers the applicant’s account was unreliable. In any event, even if the Tribunal were to accept the document was genuine, the police report does not record any report of harm to the applicant or his family.  It does not support a claim of prior or subsequent visits to the property or of any attempt to enforce a debt owed by the applicant’s mother against the family members.  It does not support any claim to have faced harm from criminal gangs as a result of criminal activity from his mother or to be at ongoing risk of such harm on return to Malaysia.

12. The Tribunal indicated it was concerned about how late the applicant’s claims had been raised and the absence of an explanation other than the claim he had told his earlier agent.  The Tribunal noted the claims had not been raised in his 2020 statutory declaration either and that also raised a concern about the credibility of the applicant’s claim to have raised these issues with his original agent and to have been the subject of ‘immigration fraud’.  He said he put too much trust in Mr [A]. He said he could not read English very fluently and signed the form without checking it. 

13. The Tribunal put to the applicant that it was also concerned his claims to be at ongoing risk of serious or significant harm from loan sharks or criminal gangs were not consistent with the fact his family has continued to live in Malaysia in the same home without facing a similar risk.  He said that he didn’t normally contact his family often because he was busy with his affairs in Australia and his father wouldn’t tell him about threats. The Tribunal put to him that it is reasonable to assume the family would tell him about serious threats such as being kidnapped or killed and the applicant responded that his father doesn’t tell him what is going on there.

14. The Tribunal found the applicant’s account of events regarding the claimed loans to be both inconsistent and implausible.  The Tribunal was concerned that the applicant was unable to provide any corroborative or supporting evidence of any debts owed by his mother in Malaysia.  Further, taking the applicant’s claims at their highest, no threats have been made against the applicant in the 5 years since he left and his family have not reported any experiences of harm or threats of harm during that period despite remaining living in the same house where he claims to have been pursued by loan sharks seeking repayment of monies.  Having regard to the country information and the evidence, the fact that the loan sharks have not sought repayment from the family in such circumstances casts further doubt on the claims regarding the existence of the debts.

15. Further, other than one event in July 2016 when it is claimed loan sharks visited the home and demanded repayment of the mother’s loans, no claimed harassment by loan sharks or criminal gangs was reported to the police. The Tribunal does not accept that the applicant would not report an ongoing threat of serious harm to authorities in such circumstances. Given the applicant claims he is at risk of serious harm due to an inability to pay his mother’s loan, it is implausible and illogical that he would not seek the assistance of authorities to avoid that harm even in circumstances where he lacked confidence in the ability of the authorities to protect him at all times.  This is an easy assertion to make, particularly when the issue was not tested. Taken at its highest, the evidence is that the applicant reported one approach to police and other than one visit to his place of employment, which the Tribunal does not accept took place given the lack of satisfactory explanation for failing to have raised it until the second hearing and the vague nature of the applicant’s evidence, there have been no approaches since August 2016. This does not suggest the loan sharks are seeking to enforce any debt against the applicant or his family or that there is a real chance he or his family members, including his wife and child, would be seriously harmed on that basis.

16. When it was put to him that country information suggested there were organisations which assisted with resolving outstanding issues with loan sharks and he was asked if he had or would access such a service, he stated they would be unwilling to do anything because his parents were not Malay citizens.  Again, the Tribunal does not accept that if there was a real chance the applicant may be seriously harmed by loan sharks, he would not seek to protect himself from such a risk through engaging with such services merely on an assumption that they would be unwilling to assist him because of his parent’s status.  No country information or other evidence was offered in support of this contention and the Tribunal does not accept it.

17. Having regard to the applicant’s claim that the loan sharks would still be looking for him, the Tribunal does not accept that this is the case.  The Tribunal notes that in the absence of evidence of reports of any threats or attempts to enforce a loan since 2016 this suggests that, even if it is accepted a debt is owed to a loan shark by the applicant’s mother, the loan shark has limited interest in enforcing that loan against family members in her absence. Further, the applicant’s family circumstances indicate that if there were a real chance they would be seriously harmed because of debts owed by their mother they would avail themselves of means of settling those loans such as selling assets including vehicles and land.

18. With respect to the claims concerning criminal gangs the applicant’s claims and evidence were particularly vague.  He said that he had been visited by criminal gangs due to the fact his mother had been involved in organised crime in creating false birth documents.  He cited the example of his younger brother who he said had not been able to go to school because his mother had sold his birth certificate.   He provided a copy of a birth certificate in the name of ‘[Name 1]’.  Although he did not indicate how this certificate was relevant to his claims the Tribunal understood it to be evidence supporting his claim that his mother had been involved in creating fraudulent documents and in particular in selling his younger brother’s birth records.  While it is not clear how this document would evidence his mother’s involvement in a criminal enterprise, the Tribunal is prepared to accept that she sold one of the children’s birth records.  However, the applicant was unable to identify the persons he was at risk from due to that activity or why he would be at risk because of that activity, particularly given the lack of reports from any family members to have been approached or threatened by criminal gangs for this or any other reason. With respect to the claimed approach from criminal gangs he said they were looking for his mother but he did not articulate any threats made against him or his family on that basis or for that reason.

19. Having considered all the circumstances of the applicant’s claims regarding debts, including the credibility concerns detailed above, the Tribunal finds the applicant does not have a subjectively held well-founded fear of persecution from loan sharks, criminal gangs or any other person on his return to Malaysia.

20. The country information makes it clear that loan sharks operate publicly in Malaysia and despite their practices being illegal, advertisements listing their phone numbers and offers of cash loans appear on public property including lamp posts and utility boxes.[19] Local media has also reported that loan sharks have become more visible and corporate, increasing the promotion of their services on social media platforms such as Facebook and WeChat.[20] A recent article notes that the operations of loan sharks have become more prevalent during COVID-19.[21] The country information confirms that individuals who are unable to service the loan shark debt risk being physically harmed, having their home splashed with red paint or having their family safety threatened.[22] 

    [19] 2021 DFAT Report at p.39.

    [20]  2021 DFAT Report at p.39.

    [21] New Strait Times, ‘Loan Sharks getting nastier by the day’ by Azdee Amir, October 20, 2020 ww.nst.com.my/news/crime-courts/2020/10/633858/loan-sharks-getting-nastier-day

    [22] New Strait Times, ‘Loan Sharks getting nastier by the day’ by Azdee Amir, October 20, 2020 ww.nst.com.my/news/crime-courts/2020/10/633858/loan-sharks-getting-nastier-day

21. The Tribunal has considered relevant country information outlined above and accepts that it reflects that predatory lending practices in Malaysia can be associated with violence and crime, but also that the Malaysian police and government authorities have taken, and continue to take, prosecutorial action against such practices.  Further, the Tribunal finds there are organisations who offer assistance to individuals and businesspeople in circumstances such as the applicant has described and that such services may be available to assist the applicant on return to Malaysia. The fact the applicant has not attempted to avail himself of any support from non-government agencies operating in this space to assist debtors in a meaningful way or to complain to police tends to undermine his claim that he will face a real chance of serious harm on his return to Malaysia. 

1. The applicant’s representatives submissions also cited country information regarding the presence of criminal gangs in Malaysia[23] and the existence of human trafficking activities.[24] These sections, and a reference to Malays constituting a ‘relatively high percentage of individuals in poverty’ [in Malaysia] [25], were  made in the context of the applicant’s claimed economic vulnerability due to being responsible for the loans owed by his mother. It is submitted that he will be unable to subsist on this basis and that he will be discriminated against due to his economic status and deemed to bring shame on his family on return to Malaysia.

   [23] 2019 DFAT Report at [2.44].

   [24] 2019 DFAT Report at [2.45] – [2.46].

   [25] 2019 DFAT Report at [3.3].

2. The applicant’s claims to fear harm on the basis of his economic standing are considered further below.  The Tribunal does not accept that he owes monies to loans sharks on behalf of his mother, for the reasons outlined.  It follows that the Tribunal does not accept that the applicant’s economic profile is impacted on that basis. In any event, the Tribunal does not accept on the evidence that the applicant’s family circumstances as such that he would be at risk of human trafficking due to his economic circumstances or those of his family.  He gave evidence of having assets in Malaysia including a motor bike and car, and of his brother self-financing study in Australia through land ownership. This evidence, together with the lack of any reported harm or threats of har or attempts to enforce any loan against family members in Malaysia in the five years since the applicant left is not consistent with a claim to fear harm including a risk of being trafficked by criminal gangs on return to Malaysia.  The Tribunal does not accept there is a real chance the applicant or his family members would be seriously harmed on this basis.

3. Further, as discussed with the applicant, even if the applicant felt he would bring shame to his family by being forcibly returned to Malaysia, the Tribunal does not consider that such harm would rise to the level of serious or significant harm. 

4. Based on country information the Tribunal accepts that loan sharks and criminal gangs operate in Malaysia. However, given the inconsistent nature of the applicant’s evidence, his lack of specific detail and lack of supporting documentation or detail in relation to the loans and the threats he claims to have received and the late raising of his claims without satisfactory explanation, the Tribunal does not accept the applicant’s evidence in relation to his claim of ongoing debts due to his mother having borrowed money from a loan shark or being involved in criminal activity.  The Tribunal does not accept that he or his family have suffered harm as a result of failing to repay such debts or due to his mother’s criminal activities or that they have a subjectively held well-founded fear of such harm on that basis in the future.

Political claims

1. As noted earlier, at the second hearing the applicant stated that he had sought protection because he ‘joined a social group to do with politics and I had a fight’.  When the Tribunal asked what social group to do with politics he was referring to he said the opposition and the government. The Tribunal asked what social group it was and he said, ‘[Group 1].’ He said he had put a ‘post’ up (on a website) and ‘there were random people who were harassing me.’  The Tribunal asked when this was and he said it was when he was in Malaysia. He said the post was in relation to opposition to systems in Malaysia. He said he was at risk from ‘random people’ that commented on his post.

2. As noted earlier this claim was not mentioned in written submissions or in the applications or the 2020 statutory declaration and the Tribunal does not accept the applicant provided a satisfactory reason for the delay in articulating the claim.  Accordingly, the Tribunal draws an adverse inference with respect to the credibility of this claim.  In any event, the applicant offered no evidence to corroborate his claim to have been involved in any political activity or to have been at risk of harm because of his real or imputed political opinion.  He did not articulate any instances of past harm other than posts on a website in 2016 from unnamed persons who were critical of his claimed comments.

3. He claimed there was ‘a little bit of political element regarding problems from social media’.  He said random people used words which were threatening and he was worried about the affect this would have on his wife and son. He did not articulate what the threats of harm were in this context or why he thought there would be any ongoing risk of harm on this basis.

4. Based on the evidence before it and the credibility concerns detailed above the Tribunal does not accept the applicant did posted anti-government material on a website prior to his departure from Malaysia. The Tribunal does not accept that unidentified people made threats for negative comments about the applicant online due to such posts or post.  The Tribunal finds that the applicant does not subjectively hold a well-founded fear of serious harm on return to Malaysia due to political views posted on [Group 1] or any other site or due to his real or implied political opinions. The Tribunal finds there is no real chance the applicant will suffer serious harm on this basis.

Economic claims

1. The applicant’s representative submitted prior to and at the hearing that the applicant was at risk of discrimination due to his economic status in Malaysia.  When queried about this at the hearing she said that the applicant would be unable to subsist due to a lack of education, work experience and family circumstances in Malaysia and that he would be unable to support himself or his wife and child.  The Tribunal queried what evidence she relied on to support a contention that people were discriminated on due to economic status in Malaysia and she said that poverty was a problem there.

2. As discussed with the applicant at the hearing, seeking economic benefits in another country, in and of itself, does not give rise to an objectively well-founded fear of harm for the purposes of the refugee criterion, nor does it give rise to reasonable apprehension of harm under the complementary protection assessments, and given the evidence before the Tribunal, the Tribunal so finds.

3. The Tribunal had regard to the DFAT Reports in considering the claims raised in the application, in particular its discussion relating to the economic conditions in Malaysia and treatment of returnees.  The Tribunal raised this information contained in the 2019 DFAT Report at the hearing. 

4. As discussed with the applicant at the second hearing, country information suggests that the World Bank classifies Malaysia as an upper-middle income, export-oriented country.[26]  Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line falling from 50 per cent in the 1960s to less than 1 per cent today,[27] indicating economic growth has been inclusive. The UNDP’s human development in tech index ranked Malaysia 57 out of 189 countries in 2018 placing it in the high human development category.[28] The unemployment rate was 3.3% according to the Malaysian Department of Statistics’ February 2019 figures.[29] The Tribunal put to the applicant that this might suggest he would be able to find employment in Malaysia.  The applicant said that Malaysia have reduced their workforce and salaries up to 50. He said that if he goes back he will not be able to support his wife, son and family. He said also because of the crimes committed against his family he would find it hard to find a job. 

   [26] 2019 DFAT Report, at [2.9]; 2021 DFAT Report, at [2.9].

   [27] 2019 DFAT Report, at [2.10]; 2021 DFAT Report, at [2.9].

   [28] 2019 DFAT Report, at [2.10]; 2021 DFAT Report, at [2.9].

   [29] 2019 DFAT Report, at [2.12]; 2021 DFAT Report, at [2.9].

5. More recent country information acknowledges the impact of COVID-19 on the Malaysian economy. Country information indicates that in 2020, Malaysia’s economy was hit with the dual shock of COVID-19 and a decline in oil prices. According to the Malaysian government, the Malaysian economy contracted by 5.6 per cent in 2020 due to COVID-19. The economy is expected to rebound in 2021, with Malaysia’s central bank forecasting growth between 6 and 7.5 per cent. According to DFAT, the Malaysian government undertook robust measures to limit the impact of the pandemic on the economy, both through the 2021 Budget and through multiple economic stimulus packages including wage subsidies for lower-paid employees, a moratorium on loans by financial institutions, special grants and direct cash grants to the poorest Malaysians, as well as investment incentives and measures to protect Malaysia’s role in global supply chains.[30]

   [30] 2021 DFAT Report at [2.12].

6. At the hearing, the Tribunal noted that other members of the family were working and he said that their wages have been cut in half as well. He said that his father’s business was not going very well and his sister’s education was problematic because they are behind in payments. The Tribunal queried who was paying for his brother’s study in Australia and he said he was paying himself.  The Tribunal asked how he raised this money and he said that he was working [in] Malaysia.  The Tribunal noted that the fact his brother was able to save to study in Australia might suggest that there are work opportunities in Malaysia and he said that at that point he had a lot of savings.  The Tribunal suggested that the family circumstances are not such as would lead the Tribunal to find that there was a real chance he would be unable to subsist if returned to Malaysia.  He said that his brother came here because he had debts as well.  The Tribunal queried how he saved money if he had debts and he said he wasn’t sure.  The Tribunal noted that if he obtained a student visa in Australia he would have had to show he could support himself while he was here and he said he had a deed for a property title for land. As noted above, these circumstances contributed to concerns regarding the applicant’s claims to be at risk due to debts owed to his mother.

7. The Tribunal accepts the applicant’s evidence with respect to his economic circumstances in Malaysia may be poorer as compared with his experience or prospects in Australia; however, as the applicant has indicated he has previously worked in Malaysia and has experience working in a variety of jobs in Australia, the Tribunal finds that he would likely be able to find employment in Malaysia or be supported in a manner sufficient to meet his own needs and those of his immediate family.

8. The Tribunal finds based on credible country information that the economic circumstances in Malaysia and the applicant’s personal circumstances are generally not such as would meet the definition of serious harm contained in s 5J(5) of the Act. In any event, even were the applicant’s economic circumstances to amount to serious harm for the purposes of that section, the applicant has failed to identify, having regard to s 5J(1)(a), any basis on which the economic hardship he claims arises by reason of race, religion, nationality, membership of a particular social group or political opinion.

9. Poor economic circumstances in Malaysia do not, in the absence of other considerations, give rise to a well-founded fear of harm for the purposes of the refugee criterion.  In this respect, the Tribunal refers specifically to s 5J of the Act relating to a well-founded fear of persecution in a country, particularly the requirement at subsection 4(C) which requires that the persecution must involve systematic and discriminatory conduct.

10. Generalised economic circumstances in a country do not meet the requirements of systematic and discriminatory conduct in the absence of other considerations.  The Tribunal finds that the applicant has provided no evidence that the economic circumstances he has referred to in his claims amount to systematic and discriminatory conduct with respect to him.

11. The applicant also failed to provide any detail of activity or fears related to the prevailing political circumstances, or ‘political reasons’, in Malaysia.  Accordingly, the Tribunal finds that the applicant does not face persecution involving systematic and discriminatory conduct for the purposes of the refugee criterion in Malaysia, now or in the reasonably foreseeable future, arising from ‘economic or political’ circumstances in Malaysia.

12. The Tribunal also notes that in order to give rise to a real risk of significant harm under the complementary protection assessment, a similar motivation of harm towards the applicant from identifiable agents of harm is required.  On the basis that the applicant has not provided any evidence of an identifiable agent of harm motivated to cause him significant harm in that country, the Tribunal finds that he has not made out his case to the relevant standard.

13. The real risk test imposes the same standard as the real chance test.  Noting the findings the Tribunal has already detailed relating to the applicant’s economic claims, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm now or in the reasonably foreseeable future, on this basis.

PROTECTION ASSESSMENT

Does the applicant meet the refugee criterion?

1. Based on the evidence before it, the Tribunal finds that the applicant’s claims that there is a real chance that, if he is returned to Malaysia he would be persecuted either or both by loan sharks because of loans owed by his mother or from criminal gangs due to activities of his mother, lacked credibility. The Tribunal finds there is no real chance the applicant will be seriously harmed on the basis of these claims.

2. Further, based on the evidence before it, the Tribunal finds that the applicant’s claims that there is a real chance that, if he is returned to Malaysia, he would be persecuted by an unnamed person or persons for comments posted in 2016 on ‘[Group 1]’ lacked credibility. The Tribunal finds there is no real chance the applicant will be seriously harmed on the basis of this claim.

3. The Tribunal also finds that there is no real chance the applicant will suffer serious harm on the basis of the prevailing economic circumstances in Malaysia or due to discrimination on the basis of economic standing in Malaysia now or in the reasonably foreseeable future.

4. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in the Act.

Does the applicant meet the complementary protection criterion?

1. The Tribunal has also considered the application of s 36(2)(aa) to the applicant’s circumstances. If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for a grant of a protection visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are 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 will suffer significant harm.

2. As discussed above in the assessment of the evidence, the Tribunal has found that there is no real chance that the applicant will face serious harm on return to Malaysia now, or in the reasonably foreseeable future, for any of the reasons claimed.

3. The Tribunal notes the threshold for real risk element of the complementary protection criterion at 36(2)(aa) is the same as that for the real chance test in the refugee criterion at 36(2)(a) of the Act. The Tribunal further notes that the necessary and foreseeable consequence element at 36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of the significant harm.

4. The Tribunal has carefully considered each of the integers of the applicant’s claims of fear of serious harm discussed above with respect to his claims for protection in the context of the complementary protection criterion regarding the real risk of significant harm at s 36(2)(aa). The Tribunal finds that the applicant’s return to Malaysia does not give rise to a necessary and foreseeable risk of significant harm for the purposes of s 36(2)(aa) of the Act.

5. The Tribunal, therefore, finds that there are no grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act.

CONCLUSION

1. 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) of the Act.

2. 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) of the Act.

1. 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) of the Act.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Simone Burford
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

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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.

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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

1. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

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5J     Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

4. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

5. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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1. Protection visas – criteria provided for by this Act

…

1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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