1708397 (Refugee)

1708397 (Refugee) [2023] AATA 1018 (10 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708397
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Peter Katsambanis
DATE:10 January 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 January 2023 at 2:37pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – loan shark – guarantor of loan for a friend – credibility concerns – inconsistent and contradictory evidence – fraudulent police reports – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 91W, 91WA, 364, 428
Migration Regulations 1994 (Cth), Schedule 2
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 and Border Protection on 21 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 5 September 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal at hearings on 2 February 2018, 14 January 2022 and 7 December 2022 to give evidence and present arguments. Each of these Tribunal hearings was conducted with the assistance of an interpreter in the Mandarin and English languages.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues in this case are whether there is a real chance that if the applicant returns to Malaysia he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes 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 the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Protection Visa Application
In his protection visa application form, lodged with the Department on 5 September 2016, the applicant stated that his name was [Name 1] and that he had been born in Malaysia on [date].
The applicant claimed that he was also been known as [the applicant].
The applicant stated that his parents were Malaysian citizens and he claimed to be of Han ethnicity. He could speak, read and write Chinese and English. He provided no details of any family members either in Australia or elsewhere and indicated that he was not in contact with relatives outside Australia.
The applicant claimed that he last arrived in Australia in September 2009 on a visitor visa but did not specify the date of arrival. The applicant clearly stated on the form that he used a fake travel document to depart his home country, being passport number [number]. The applicant claimed this travel document was not valid to return to Malaysia because it was fake. He added that he obtained this fake travel document ‘through corrupted government officers’.
In the applicant form, the applicant claimed that he had previously been to Australia but did not provide details. He indicated that he had been refused a student visa in Australia in 2016. The applicant did not list any previous addresses where he had lived in the past either in Malaysia or Australia. He stated that he was currently unemployed and did not list any previous employment either in Malaysia or Australia.
The applicant indicated on this form that he had never been found guilty or convicted of any criminal offence, he was not aware of being a suspect in any criminal investigation and he had never committed any serious crime for which he had not been charged.
In an unsigned and undated statement accompanying his application for protection, the applicant stated that he had borrowed money from a loan shark because of business problems in December 2008. In April 2009 he borrowed some more money and also incurred additional interest when he did not meet a repayment. In May 2009 his business did not improve so he sold his car to pay off some interest.
The applicant claimed that in mid-June 2009 he finally went out of business and the loan sharks demanded repayment of the loan. He claimed that in early July 2009 five people came to his house demanding that the applicant’s father transfer real estate to them. Upon refusal a person kicked and threatened the applicant. Over the next few days harassing phone calls and threats were made to the applicant and his family members. He claimed that he reported the matter and went into hiding at a friend’s home.
The applicant claimed that in mid-August 2009 the loan sharks circulated leaflets in the local area with the applicant’s portrait. He again reported this matter. In early September 2009 three people went to his house and again threatened his father. His father went to report the matter. Two days later the applicant rang the loan sharks seeking to resolve the problem, but they were only interested in immediate repayment of the debt or they would take his life.
The applicant left Malaysia to come to Australia in mid-September 2009 but in early October 2009 people returned to his father’s home and threatened him. The father again reported this matter to police.
In early 2010 the loan sharks threatened the applicant’s brother, but the brother refused to accept responsibility for the loan.
The applicant claimed that over 5 years the loan sharks would regularly send different people to the home to seek repayment of the loan. The applicant stayed in hiding in Australia for nearly 6 years. Around 2015 or 2016 the applicant’s father told the applicant that the debt collectors had not visited for a long time, so the applicant decided to return to Malaysia.
The applicant claimed that due to his fear, he did not stay at his family home but instead stayed at a friend’s house. Things were calm but when he visited a restaurant at the end of July 2015, he was confronted by the debt collectors, and he was lucky to escape. They then continued to visit his family home to look for him. Because the applicant had lived in Australia for six years, he wanted to return to Australia but was aware that he was unable to return here for three years. A friend proposed that the applicant create a new identity and after spending nearly two months to create this new identity, the applicant returned to Australia.
The applicant did not produce any passport or other document to the Department to verify his identity.
The delegate refused to grant the applicant a visa on 21 March 2017.
Application for Review
The applicant applied to the Tribunal for a review of the delegate’s decision on 18 April 2017. The applicant also provided the Tribunal with a copy of the delegate’s decision and a copy of the accompanying notification letter.
First Tribunal Hearing
The applicant appeared before the Tribunal, which was differently constituted at the time, at a hearing on 2 February 2018.
At this hearing, the applicant provided the Tribunal with translated copies of three police reports from Malaysia.
At this short hearing the applicant indicated that he had been in Australia for around 8 years but only found out about protection visas around the start of 2016 when he looked up details online.
The applicant stated that he had not completed his protection visa application form himself because his English was not good. He stated that the form was completed by a friend of his named [Mr A] who he had met at a snooker parlour in [Suburb 1]. This friend was now living in Melbourne.
The applicant stated that he had lived in Australia unlawfully for more than 7 years. He stated that he had last arrived in Australia on a false passport but when asked if he still had that passport, he stated that it had expired. When asked if he had considered applying for a passport in his real name, the applicant stated that when he had visited the Malaysian consulate in Perth the staff there had been rude to him, so he did not want to apply for a passport there.
The applicant stated that a lady called [Ms B] assisted him to prepare the personal statement that he had provided to the Department with his application form. The applicant had met this lady through a mutual friend when he was studying at [an education provider] in Perth.
The applicant clarified at this hearing that he had not actually borrowed any money from loan sharks but had been guarantor for a loan for a friend. This friend had not repaid the loan and had ‘left’ so the loan sharks sought out the applicant, as guarantor, to repay the loan.
The applicant stated that because of pressure from loan sharks he could not continue his own business. The loan sharks posted his photos all over town and also kept calling him to harass him daily. This put a lot of pressure on him and was not good for his mental health. The loan sharks tried to catch him, but the applicant was assisted by some neighbours, and they beat up the loan sharks. After this time, the word on the street was they no longer sought repayment but instead wanted physical retribution from the applicant.
The applicant agreed that he came to Australia in October 2009 and returned to Malaysia in July 2015. He stated that his parents believed he would be safe, which is why he returned in 2015. However, four days after he arrived in Malaysia the loan sharks found out he had returned and started to call his father. The applicant claimed that both he and his father had tried to seek police assistance but often in Malaysia the police were in cahoots with the loan sharks. The applicant claimed that he actually made a statement to report the case to police. He also stated that he asked ‘someone who is a bit like a member of parliament’ to help him, but this was not enough to help him.
The hearing was then adjourned to a different date.
Second Tribunal Hearing
The applicant was again invited to appear before the Tribunal at a hearing held on 14 January 2022. At this stage the applicant’s matter was constituted to a different Tribunal member. At this hearing, evidence was taken on behalf of that Tribunal member by a duly authorised Tribunal officer using the evidence taking power contained in ss 364 and 428 of the Act.
At this hearing, the authorised officer pointed out to the applicant that the evidence at the hearing, and any other relevant evidence already before the Tribunal, would be considered by a Tribunal member after this hearing and the applicant would subsequently be invited to appear before the Tribunal at a later date to give more evidence in relation to his matter. The applicant indicated that he understood this procedure.
Relevantly to the applicant’s claims, at this hearing the applicant stated that in May 2021 gang members had visited his family home in Malaysia and spoken to his father. His father kicked them out, so they looked for his younger sister and threatened her.
The applicant also stated that he had sold his house in Malaysia, given half to his parents and brought half of the proceeds with him to Australia because he cannot work here. He stated that all of his family members lived in Malaysia and the loan sharks were only after him.
The applicant claimed that he had nowhere to turn to in Malaysia. He had called the police, but they did not help him, and he feared they were colluding with corrupt businesses. He had asked his father to stop reporting matters to the police because the father has mobility issues and because it was a waste of time reporting things anyway.
Documents submitted to Tribunal
The applicant provided three documents written in Malay, together with translations. The translations indicate these documents are police reports made by [Mr C] at the police station in [suburb], Petaling Jaya, Selangor. The applicant has claimed that [Mr C] is his father.
The first report states that it was made [in] September 2009. The report written is Malay and presented to the Tribunal is one page in length. The accompanying translation indicates that there is another page to this report that was not presented either for translation or to the Tribunal. The translation indicates that on 27 August 2009, three Chinese men who were employees of a loan shark visited the home of the man making the report and asked that his son, [Name 1], pay back a loan to their boss. They threatened that if the loan was not repaid within a week, they would do damage to the house. Later, three men called [Mr C] on separate occasions. On each occasion, they asked that the loan be repaid. He also received calls on 28 and 29 August 2009 about this debt. Also on 29 August, a Chinese man arrived at his home and handed over two pieces of paper with his son’s photo printed on them, the home address, a telephone number and some Chinese writing. The man also scattered a few printed pictures of the son below the flat where they lived. On 1 September 2009, a Chinese man named [Mr D] arrived at the home, asked him to contact his boss named [Mr E] and when [Mr C] called [Mr E], ‘this man said that my son and I should settle the company’s debt within two’ (the translation ends at this point, which is the end of the first page of the report).
The second report states that it was made [in] October 2009. The translation indicates that in this report [Mr C] arrived at his home on 2 October 2009 to find the padlock of his home grill door had been damaged by an unknown person and something had been stuffed into the keylock or the padlock. [Mr C] had to cut the padlock to enter his home. He suspected that this had been done by some loan shark who had an issue with his son. [Mr C] claimed the loan shark had telephoned him many times, but [Mr C] did not answer the calls as they would speak rudely to him. He claimed that he made the report for the safety of his family as he feared something might happen to his family in the future.
The third report was made [in] July 2016. The translation indicates that on 23 July 2016, [Mr C] was approached by two Chinese men who were loan sharks and who were looking for his son. [Mr C] told them he did not know the whereabouts of his son since he left the house in 2009. These men sought repayment of the loan, but [Mr C] told them he could not pay them as he was not working and had health problems. The men indicated that they would return the following week. It was stated that the purpose of making the report was for self-protection because [Mr C] was living at home all by himself.
Third Tribunal Hearing
At this hearing held on 7 December 2022, the applicant stated that he was currently called [the applicant]. He claimed that his original surname was [Name 1] but because he had been persecuted, he ran away in fear of his life, and he then changed his surname. He stated that he had reported both surnames to the Department.
The applicant indicated that he did not bring his passport with him to the hearing, despite being specifically requested to do so in the hearing invitation letter. He showed the Tribunal a photograph of his passport which he had on his mobile telephone. He confirmed that this was the passport he had used to enter Australia in 2015, and which he had claimed to the department was a false passport. However, he stated that the passport itself was real but the surname on the passport was the new name that he had adopted.
The applicant claimed that in Malaysia the law allows you to make a legal promise to change your surname and you can then apply for a passport in that new name. He confirmed that it was his claim that he had legally changed his name in Malaysia, but when asked if he could provide any documentary evidence of this name change, he claimed that he had no such documents. He added that he had completed a form at the relevant government department in Malaysia and he had later collected a new passport with the new surname. He stated to the Tribunal that in order to collect the new passport, he was sent a message by the passport office. He then went to the passport office where he produced his Malaysian driver’s licence to verify his identity before he was given the new passport. However, he confirmed that his Malaysia driver’s licence was in the name of [Name 1] rather than [the applicant].
The applicant was asked why he needed to change his name. In response, the applicant stated that in Malaysia it was quite obvious that the government and businesspeople were corrupt. He claimed that if he hadn’t used a new name, even if he left the country, they could hunt him down. He added that as soon as he booked a flight to leave Malaysia, they would know he was there, and he wanted the Tribunal to understand that Malaysia was corrupt. When asked what interest the Malaysian authorities would have in the applicant, he responded that they wanted money. When asked if it was his evidence to the Tribunal that the authorities in Malaysia wish to extract money from him, the applicant stated that he did not have solid evidence but people in Malaysia knew that the leader of the whole thing was trying to be a good person but was instead advising people to sell their assets to pay back money.

The applicant confirmed that it was his evidence that he had officially changed his name with the Malaysian authorities and agreed with the Tribunal that the Malaysian authorities would be fully aware that although he had previously been [Name 1], he was now [the applicant]. On this basis, it was pointed out to the applicant that despite the name change, the Malaysia authorities and their various agencies would be fully aware of his new identity. The applicant responded that the Department that arrange passports was different to the Department and the Minister that looked after loan sharks. He claimed that the Minister who looked after loan sharks was really the leader of the loan sharks. The applicant added that he was in such fear of his life that he left Malaysia three days after he obtained his new passport.
The applicant confirmed that he had been born in Kuala Lumpur, was of Chinese Malaysian ethnicity and Buddhist religion. His parents were still alive and living in Kuala Lumpur with his younger brother in an apartment which was owned by this younger brother. He claimed that his parents were no longer working and added that his father was chronically ill, suffering a number of medical conditions including kidney problems, prostate problems and swelling. The applicant claimed he had two younger brothers and one younger sister who were all married and were all currently living in Malaysia.
The applicant claimed that he had grown up in Kuala Lumpur and had completed secondary school. He had studied in Chinese during primary school and in Malay during secondary school. He had never been married and had no children.
The applicant claimed that in Malaysia he owned a little store where he [sold goods]. He claimed that this was originally his mother’s business, but he had taken over from her because she had problems with her feet. He added that he had started to help his mother in this store when he was still in primary school, and it was the only work he had ever done in Malaysia.
The applicant stated that he first came to Australia in 1999 because his aunt, his mother’s sister, believed that he should broaden his vision and see the world. He confirmed that this aunt lived in Perth with her husband (who he referred to as his uncle) and claimed that he lived with his uncle and aunt for two years before returning to Malaysia. The applicant confirmed that his visitor visa in 1999 only allowed him to stay in Australia for three months. When asked if he had obtained another visa after three months in Australia that would allow him to remain lawfully in this country, the applicant stated that he could recall that he had changed to a student visa and had started a course at TAFE. When it was pointed out to the applicant that his movement records did not indicate that he had applied for or been granted a student visa during this particular visit to Australia, the applicant stated that his English was poor, and he did not know about the procedures required so he had relied on his uncle who had enrolled him in a TAFE course. He added that the TAFE school must have a record of his attendance. When it was again pointed out to the applicant that there was no evidence available to indicate that he had ever applied for a student visa during this visit to Australia, he responded that he could not assist the Tribunal because he thought that going to TAFE would get him a visa.
The applicant confirmed that he had remained unlawfully in Australia from 3 November 1999 to 22 April 2002. He claimed this was because he was ignorant of visa laws at the time and he had no idea, so he relied on his aunt and his uncle. He stated that he did not work during this visit to Australia and had spent most of his time studying or fishing.
The applicant claimed that when he returned to Malaysia in 2002, he did not do anything special, and he continued to help his mother at the little store because the business was growing very well. He claimed that he left Australia in 2002 because he was homesick, and he was also missing his girlfriend.
The applicant stated that he then returned to Australia in 2009 and stayed here until 2015. He indicated that he arrived in Australia on a tourist or visitor visa because it was the only visa he could apply for. When asked if this visa allowed him to remain in Australia for the six years that he had remained here, the applicant responded that he was trying not to be caught because he had nothing else he could do. He added that it had been a hassle to flee from Malaysia and the only foreign country he knew was Australia.
It was pointed out to the applicant that his answer did not appear to be responsive to the question that had been asked. When again asked if the visa he had used to arrive in Australia in 2009 enabled him to stay here lawfully until 2015, the applicant responded that it did not do so and was only valid for three months. When asked if he had chosen to remain unlawfully in Australia after this visa expired, the applicant stated that he had applied for a student visa but was not successful in this application. However, after further discussion, the applicant indicated that he had not applied for a student visa during this particular visit to Australia.
The applicant confirmed that he had remained unlawfully in Australia from around December 2009 until just prior to his departure in July 2015. He claimed that he did not work in Australia during this period of time and stated that he had been living with two Vietnamese students who were his friends.
When asked how he had managed to survive in Australia for almost 6 years without having to work, the applicant responded that he got lucky because he sold his property before he came to Australia. He claimed that he owned an apartment in Kuala Lumpur which he sold for almost 80,000 ringgit. He stated that this sale took place in either 2009 or 2010 and confirmed that the sale took place after he had come to Australia in 2009.
The applicant claimed that the only relatives he had in Australia were his aunt and his uncle. He believed that they were retired now but claimed it had been a long time since he had contact with them. They had previously owned and operated a [business] in [a] shopping centre.
The applicant claimed he returned to Malaysia in 2015 because he thought a lot of time had passed and things should have settled in Malaysia. However, on return, they chased him again.
When asked to outline the problems he had experienced in Malaysia in the past, the applicant stated that he was chased by loan sharks, but he didn’t even borrow the money. He claimed that the loan was actually a friend’s loan, but this friend ran away, so as a good friend the applicant wanted to repay the money for him. This didn’t stop the loan sharks from chasing him. He recalled that during a period where his father had been admitted to hospital and the applicant missed a payment, the loan sharks increased the interest rate by more than three times the value. The applicant asked them if he could pay back the money later that same day, but the loan sharks would not forgive the additional interest. At this point, the applicant claimed that he got upset so he decided not to continue repaying the loan. After two days, they asked him for another 20,000.
The applicant claimed that the money had originally been borrowed by his best friend who he stated was named [Mr F]. The applicant could not recall when the money was originally borrowed because he claimed to be busy with his own business at the time. He stated that he could not say for sure when the loan had been taken out, but he believed it was around 2008. He claimed that the initial amount of the loan was 200,000 ringgit. He claimed that his friend had borrowed this money for business purposes. He stated that his friend operated a [factory] and needed the money to purchase more commodities. He clarified that his friend’s [business] produced [parts] that were used in [specified mechanism].
The applicant stated that he went guarantor for this loan because this person had been his best friend for 30 years and the applicant knew his friend was having difficulties in his business, so he wanted to support him. The applicant claimed that he was fully aware of his obligations as guarantor and added that he helped his friend to repay the loan, but things got to the stage where they increased the interest too much.
The applicant claimed that he had signed a document offering to be guarantor for his friend’s loan but added that he was not given a copy of the document. He claimed that the lenders copied his ID card, obtained his telephone number and obtained his signature on some documentation. The applicant agreed that 200,000 ringgit was a large sum of money in Malaysia and pointed out that the average salary in the country was around 2000 per month. When asked why he would choose to guarantee a loan for a friend that was for an amount 100 times the average monthly salary in Malaysia, the applicant stated that the biggest reason was that he wanted to support his best friend. He added that his own business was doing better than average, and he would earn around 5000 or more each month. When asked how much the debt had currently amounted to, the applicant stated that he could not calculate it because the interest rate was growing.
The applicant claimed that his friend had disappeared, and the friend’s younger sister had told the applicant that the friend had run away to the United Kingdom. The applicant had never heard from this friend again and the sister had indicated that the friend does not contact his own family.
The applicant claimed that he had no documents to evidence that this loan was ever taken out. He claimed that the lenders asked him and his friend to sign an agreement and that they would bring the agreement with them every time they came to collect money.
When asked if he had obtained any receipts for the repayments that he had made over time, the applicant stated that it was not possible to obtain such receipts in Malaysia.
It was pointed out to the applicant that his claims for protection was based on the fact that he owed money to loan sharks that he considered to be unscrupulous gangsters yet he would make repayments to these gangsters without asking for a receipt. On this basis, the applicant was asked why he would trust such gangsters to make a proper record of the repayments if he did not keep a receipt or other record for himself. The applicant responded that in Malaysia if you owe money to a loan shark and you repay the loan that is the end of it. He claimed he had almost repaid the whole sum but, because of the incident where they added 20,000 in interest, he could not take it any longer, so he decided not to pay them back. He added that if he had repaid the entire loan amount, the loan sharks would have handed back the agreement document to him.
It was pointed out to the applicant that his answer did not appear to be responsive to the question that had been asked but seemed to be a rehearsed answer to an anticipated question. The applicant apologised to the Tribunal but did not provide any responsive answer as to why he would trust loan sharks and gangsters to make a proper record of the repayments he had made to them if he did not keep a receipt for himself.
The applicant confirmed that it was his own decision to stop making the repayments to the loan sharks. He also confirmed that he feared harm from these loan sharks and gangsters when he was living in Australia between 2009 and 2015 because these people continued to harass his family. On this basis, the applicant was asked why he did not apply for protection in Australia during the period of almost 6 years that he had lived here at the time. The applicant stated that he did not know there was such a thing as a protection visa. However, he confirmed that he was fully aware that he was unlawful in Australia for most of that period of time and indicated that he did not seek any advice on how to alter his unlawful status.
The applicant was asked why he did not use the money he obtained from the sale of his property in Malaysia in 2009 or 2010 to repay the debt he owed to the loan sharks. He responded that the amount he got for this property was way less than what he owed. When asked why he did not choose to make some repayment of the amount owing, the applicant responded that the loan sharks would not stop increasing the interest rates and they wanted one final payment rather than a series of repayments. He claimed that this was beyond what he could offer them.
The applicant confirmed that he returned to Australia in 2015 after a brief visit to Malaysia. He was uncertain about which month he returned to Australia but agreed with the Tribunal that movement records indicated that he returned in October 2015. When asked if he had applied for a protection visa on his return to Australia in 2015, the applicant stated that he had tried to apply for a student visa to study an English course at the [education provider], but his application had been refused. He claimed that he was assisted by an agent to apply for this visa. He could not recall the name of the agent but indicated he had saved some email correspondence with this agent.
The applicant claimed that he applied for protection after his student visa application had failed sometime in 2016 and added that he had no other choices at that time. He stated that he completed his protection visa application himself after somebody had told him about the existence of this visa. He claimed that this person was an acquaintance he had met whilst fishing. He added that this person’s name was [Mr A], and he was also of Chinese origin.
The applicant claimed that he completed the protection visa application form on his own but for things he was not sure about he asked some people for help. He also used Google translate for words he did not understand. He claimed that his friend [Mr A] helped him to write out the statement that he had lodged with his application form because his own English was poor. He confirmed that he told his story to [Mr A] who then wrote it down for the applicant.
The applicant claimed that he did not work in Australia because he was not permitted to work. He claimed he would survive through some money he had received from his younger siblings in Malaysia, and he had borrowed money from some friends for living expenses.
The applicant was asked to articulate his fears about returning to Malaysia now or in the reasonably foreseeable future. He responded that he was afraid of being caught by ‘them’. He claimed that they have said that if they didn’t get money from the applicant, they would torture him. When asked to outline who he feared would do this to him, the applicant stated that it was the group of people who were loan sharks, but different faces appeared every time to demand money. He believed some were loan sharks and others were just gangsters, but they were all working together.
The applicant was asked who he actually owed money to. He responded that in the beginning he repaid money to 2 groups of people but after he made the decision not to keep paying back the loan, the people who came to collect the money were different each time. When again asked who was the person that he owed money to and was demanding repayment of this money, the applicant stated that his friend got the money from a loan shark, but the applicant could not remember the name. He added that the name would be on the police reports he had provided to the Tribunal. However, he confirmed that the police reports he was referring to were reports made by his family members because he was in hiding at the time.
On the basis of the applicant’s claim that he was the guarantor of a 200,000-ringgit loan, the Tribunal asked the applicant how he was not aware of the name of the person or the company that this money was owed to. On this basis the Tribunal also asked the applicant why it should accept that he ever owed this money as claimed. The applicant responded that it was very simple in Malaysia and all the loan shark operations were illegal so they could easily change their names.
It was pointed out to the applicant that he had previously told the Tribunal that he had provided his identity card, his telephone number and had signed a document with these loan sharks to act as guarantor for the loan but it appeared that he could not tell the Tribunal with any clarity whom he had offered this guarantee to. The applicant responded that he could remember the name [Company 1]. He stated that this was a company name, but he did not believe they were an actual legal entity although this was the name they used on their card.
The applicant was asked that if he would have any other problems returning to Malaysia if he did not owe money to these loan sharks. The applicant responded that he had no other fears about returning to Malaysia. He added that if it was not for this problem, he would have a good life. He also claimed that he enjoyed life when he was living in Malaysia before this problem occurred and his business was doing very well.
The Tribunal asked the applicant why he could not seek the assistance of the police or other authorities in Malaysia to assist him in his dispute with the loan sharks. He claimed that this was no use because he had been told that unless something actually happened to him the authorities would not take any action. He added that the authorities in Malaysia were very corrupt.
When asked if he had ever sought the assistance of the police in Malaysia in the past, the applicant stated that he had consulted a friend who worked in the police force, but this friend told him that the applicant’s issues would not be something that the police would take action about.
It was pointed out to the applicant that in the written statement he had provided to the Department he had claimed that he owed money to loan sharks after borrowing this money himself on two occasions, initially in December 2008 and then in April 2009. He had made no mention in this statement that the debt was as a result of him having been the guarantor of the loan taken out by a friend, which was the claim he had made to the Tribunal. On the basis of this inconsistent evidence over time, the applicant was asked why the Tribunal should accept that he had been a witness of truth in relation to these claims and that he actually owed this money to the loan sharks as claimed. The applicant responded that at the time he started his application he didn’t understand what the visa was about. When he wrote his statement it was mentioned on the form that he could provide further evidence later and from his point of view the information about the guarantor and the repayment was further evidence that he had provided at a later stage.
It was pointed out to the applicant that whether he had borrowed the money or whether the money had been borrowed by a friend were two completely different claims rather than further evidence about the same claim. It was further pointed out to the applicant that the loan had been taken out sometime before he completed the statement that he had provided to the Department, so he ought to have been in a position to provide accurate and consistent evidence about who had initially taken out that loan at the time of this statement. The applicant agreed that this was true but stated that [Mr A] had helped him and added that this person might have picked some wrong words when completing the statement.
The Tribunal stated to the applicant that in his own evidence he had told his story to [Mr A] and [Mr A] had simply written it down in English. On this basis, the Tribunal asked the applicant why [Mr A] would change the story and write something different to what the applicant had told him. The applicant responded that he did not think that [Mr A] had a good proficiency in English either, but his English was better than the applicant’s. He added that he was not sure what [Mr A] had written.

The applicant confirmed his claim that he had returned to Australia in 2015 after a brief visit to Malaysia because of his fear of harm from the loan sharks he owed money to and added that this had created a lot of pressure for him.
It was pointed out to the applicant that in his evidence at the hearing he had clearly stated that he had sought migration advice upon return to Australia in 2015 but had chosen to apply for a student visa rather than a protection visa. On this basis, it was pointed out to the applicant that this may indicate that he did not have the genuine fears of harm about returning to Malaysia that he claimed to have. The applicant responded that he did have a genuine fear and he believed even the student visa would let him stay in Australia legally rather than remain here illegally like he had done in the past. When it was pointed out to the applicant that he had chosen to remain in Australia unlawfully twice in the past, he responded that he had made mistakes on two occasions, and he did not want to do it again. He added that age had taught him a lot.
The Tribunal asked the applicant to confirm the evidence he had provided earlier in the hearing that he had changed his name in Malaysia because he feared detection from the loan sharks, or their associates, and he wanted to avoid these people. The applicant responded that he could not hide any more, and he wanted to flee Malaysia. He knew that in order to go overseas he needed to change his name.
When asked why he would need to change his name to travel outside Malaysia, the applicant stated that it was because he was not convinced that he would be able to leave Malaysia using his original name. He claimed he had changed his phone number but within two days the loan sharks had managed to obtain his new telephone number and continued to harass him.
It was pointed out to the applicant that in his statement to the Department he had claimed that he had changed his identity because he was aware that he could not return to Australia for three years given that he had previously remained here unlawfully. This claim was inconsistent with the applicant’s claim that he changed his name in Malaysia to avoid detection from loan sharks, gangsters and the authorities in Malaysia. On this basis, the Tribunal asked the applicant why it should accept that he was telling the truth in relation to this claim. The applicant responded that this was true. He added that the only foreign country that he knew was Australia and he believed that logically his two sets of claims about why he changed his name were really the same thing. He added that he had to take the risk of changing his name.
When asked if he could have departed Malaysia and travelled to any other country apart from Australia in his original surname of [Name 1], the applicant agreed this was true however added that he only had connections in Australia because he had friends and relatives here.
It was pointed out to the applicant that it was open to him to provide this reason to the Tribunal earlier at the hearing when he was asked why he had changed his name in Malaysia, however he had chosen to provide a different explanation until the claim he had previously provided to the Department was outlined to him by the Tribunal. The applicant responded that he had been warned by the Tribunal for his non-responsive answers, so he did not have the courage to offer more explanations.
The Tribunal outlined to the applicant country information from the Department of Foreign Affairs and Trade which indicated that loan sharks operated in Malaysia but that Malaysian authorities took action against these loan sharks. The information indicated that there were laws in Malaysia prohibiting unlicensed money lending activities, including harassment or intimidation of borrowers. Although there was some information about significant corruption in the Malaysian police force, the country information indicated that police did respond to complaints of illegal money lending activities, including harassment and intimidation, and these responses resulted in the prosecution of people under both the money lending act and the penal code. This information would tend to indicate that if the applicant returned to Malaysia, he would be able to seek effective protection from the authorities against the harm he feared from loan sharks.
In response, the applicant responded that if the police took any action, it would only happen around the period of election time, but it would just be for show and there was no real protection in Malaysia. He stated that he hid in Malaysia for some months, but he would have had no need to hide if the police could protect him. He claimed that the authorities would not assist him and there was nothing the authorities could do to ‘them’. He claimed he had tried to use his connections in government, including official local leaders, but they did nothing to help the applicant. The applicant stated that in the Department file there was information about a person called Sang Chong, who claimed to be a minister, but people knew that he was really the person who was behind the loan sharks. This person would offer assistance to the public but would tell people to either pay money or sell their assets in order to obtain assistance. The applicant added that he knew this because he had asked this person for help, as this person played a role pretending to be opposed to loan sharks, but this was not really true.
The Tribunal outlined to the applicant country information from the Department of Foreign Affairs and Trade indicating that the Malaysian Chinese Association operated a Public Services and Complaints Department that acted as an intermediary between loan sharks and Chinese Malaysian victims who were unable to repay their debts and would negotiate loan repayments with lower rates for these borrowers. This information would indicate that if the applicant returned to Malaysia, he may be able to access the service to assist him in negotiating with the loan sharks he feared harm from. In response, the applicant stated that this was the body that was headed up by Sang Chong. The applicant had asked this person to help but he did not provide any assistance.
The applicant was asked when he had physically obtained the police reports that he had provided to the Tribunal. He responded that these reports were received when his family members reported incidents to police. He claimed that the police would give his family members these reports. He claimed that there were many cases reported to the police by his family members. His younger brother had been surrounded and kicked and people also went to his sister’s business looking for the applicant. He claimed that people associated with the loan sharks would ring his family telephone non-stop for 24-hour periods. He claimed that his family collected some of these reports when the applicant was already in Australia and other reports when the applicant was in hiding in Malaysia.
The applicant was again asked when he physically obtained these reports. He responded that he obtained the reports when he realised that he had a chance to provide further evidence in support of his claims. He claimed that his father sent him the reports and the applicant got them translated.

100. The Tribunal asked the applicant if he was in possession of these reports when he lodged his protection visa application with the Department. Initially, the applicant responded that he did have these reports with him when he applied to the Department and added that he would have asked his father to send them to him. It was pointed out to the applicant that he did not provide these reports to the Department either when he applied for protection or at any time before the delegate made a decision on his application. He claimed he did not provide these reports to the Department because it was evidence that he could provide later. He added that he collected all the evidence that he could and then he asked his father to assist him with more evidence.
101. The Tribunal asked the applicant to clarify whether he had asked his father to collect these reports for him before he applied for protection with the Department or after he had lodged his application with the Department. The applicant responded that he could not remember the exact time frame. He claimed that as soon as he was made aware that he could provide further evidence in support of his claims he asked his father to send the documents to him.
102. On the basis of these responses, the Tribunal pointed out to the applicant country information from the Department of Foreign Affairs and Trade indicating that there was significant corruption within the police force in Malaysia and also indicating that it is common to obtain genuine documents in Malaysia through bribery or by fraudulent means. Given this country information, the Tribunal asked the applicant why it should accept that the police reports he had provided were genuine evidence that he had a problem with loan sharks as claimed and were not obtained through bribery or by fraudulent means in order to enhance his claims for protection. The applicant responded that you could see that the police reports had different dates and different years on each report. He added that he believed that you could also tell from the texture of the paper because some were more aged than others.
103. When it was pointed out to the applicant that he had only provided scanned copies to the Tribunal and in any event the Tribunal was not expert in document examination, the applicant responded that you could see that the dates and the years on each report were different.
104. The applicant indicated to the Tribunal that he wished to obtain a medical certificate highlighting that his father had been hospitalised and had surgery in 2009 around the time when the applicant missed a payment to the loan sharks and the loan sharks subsequently charged him an exorbitant interest rate. The applicant claimed that this was the incident that led to his decision to stop repaying money to the loan sharks. Having previously indicated that he had this document in his possession, the applicant later stated to the Tribunal that he did not have such a document in his possession and that he had only thought about it ‘last night’ (being the night before the hearing). He now wanted to ask his father to see if the father could obtain a copy of the hospital report from that time in 2009 to evidence that the father had been hospitalised as claimed. The Tribunal pointed out to the applicant that it had been more than six years since he had lodged his application for protection which had given him enough time to obtain documents in support of his claims. The Tribunal also indicated to the applicant that it was prepared to accept that his father had been hospitalised in 2009 as claimed.
105. The applicant indicated that over time he had provided 4 police reports supporting his application. The Tribunal indicated that it only had 3 reports on file and provided the applicant with the dates of those 3 reports. The Tribunal indicated to the applicant that if he had any other report in his possession, he could provide it to the Tribunal after the hearing along with a copy of his passport (as there was no copy of this passport on file).
106. The applicant agreed with the Tribunal that he would provide any additional documents he wished to rely on by 9 December 2022.
Further Documents
107. On 9 December 2022, the applicant provided the Tribunal with a copy of his Malaysian passport number [number] in the name of [the applicant] which was issued in Kuala Lumpur [in] 2015.
FINDINGS AND REASONS
108. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and nationality of applicant
109. There are issues relating to the identity of the applicant. The applicant last arrived in Australia [in] October 2015 on a passport in the name of [the applicant] (the Tribunal accepts that [applicant’s surname] is a reference to the surname of the passport holder) and as the holder of an Australian visitor visa.
110. However, the applicant has consistently claimed since he lodged his application for protection that he is the person by the name of [Name 1], who had arrived in Australia on two previous occasions on a valid Malaysian passport in that name.
111. The applicant has provided inconsistent evidence over time as to the reasons why he changed his name and as to whether the passport he used in the name of [the applicant] was a fake or genuine document.
112. In his application to the Department, the applicant stated clearly that he changed his name in Malaysia because he knew he could not return to Australia for three years as he had overstayed unlawfully in Australia on his previous visits. However, at the third Tribunal hearing, the applicant initially claimed that he changed his name to avoid detection by Malaysian authorities and by his alleged adversaries in Malaysia. But he did agree with the Tribunal that a strong motivating factor was his desire to return to Australia and his knowledge that he was barred at the time from returning to Australia. On this basis, the Tribunal accepts that the applicant’s fear of detection by the Malaysian authorities is related to a fear that on any attempted departure from Malaysia in his original name, the authorities may have discovered he had no right to enter Australia and may therefore prohibit his exit from Malaysia. Also on this basis, the Tribunal finds that the main motivating factor for the applicant changing his name was to facilitate his entry into Australia at a time when he was aware that he was prohibited from entering Australia.
113. The inconsistent claims over time in relation to the status of the passport used to enter Australia [in] October 2015 are more difficult to resolve and enliven some concerns pursuant to s 91W about evidence of identity and bogus documents, and some further concerns pursuant to s 91WA about providing bogus documents and destroying identity documents. However, the applicant has now provided a copy of the Malaysian passport he used to last enter Australia and on the face of it, this document presents as a passport of the type that would ordinarily be issued by the authorities in Malaysia.
114. Given the applicant was able to clearly outline in some detail the travel history of [Name 1] in Australia at the third hearing, and in particular the periods of time this person spent unlawfully in Australia after arriving in 1999 and in 2009, the Tribunal accepts that the person who has lodged this application in the name of [the applicant] (or [the applicant]) is the same person as [Name 1]. As there is no doubt that [Name 1] had entered Australia on a valid Malaysian passport, the Tribunal accepts that the applicant is a national of Malaysia and has therefore assessed his claims accordingly.
115. There is no evidence before the Tribunal to indicate that the applicant has any right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations pursuant to s 36(3) of the Act.
Claims relating to fear of loan sharks
116. Since he lodged his application for protection, the applicant has claimed that he has been pursued in Malaysia by loan sharks for unpaid debts, that these loan sharks have threatened both him and other family members and that the loan sharks continue to pursue the applicant for these unpaid debts. The applicant has also claimed that he fears harm from these loan sharks who are pursuing him for unpaid debts if he returned to Malaysia now or in the reasonably foreseeable future.
117. However, over time, the applicant has provided inconsistent and directly contradictory evidence about the origin of the debt allegedly owned to these loan sharks. He has also provided vague and undetailed evidence about who these funds were originally borrowed from, and therefore who the debt is actually owed to.
118. In his statement that was lodged with the Department together with his application for protection, the applicant claimed that he had borrowed money himself from a loan shark because of business problems in December 2008. In April 2009 he had borrowed more money and incurred additional interest after missing repayments. In May 2009 he sold his car to pay off some interest and in mid-June 2009 he eventually went out of business.
119. However, after lodging his application for review, the applicant has stated at multiple Tribunal hearings that he did not borrow any money himself from a loan shark but that he instead had been guarantor for a loan taken out by a friend. This friend had gone missing after being unable to repay the funds borrowed, and the loan sharks then pursued the applicant for repayment as guarantor.
120. At the third hearing, the applicant specifically stated that his own business was going very well and that it was his friend’s business that had gone out of business, precipitating the demand from the loan sharks for the applicant to pay out the debt as guarantor.
121. As discussed with the applicant at the hearing, the Tribunal would expect the applicant to be able to provide consistent evidence over time as to whether he had borrowed this money from loan sharks or whether he had been guarantor for someone else’s debt. The Tribunal does not accept the applicant’s explanation at this hearing that the two claims were similar and that the explanation about being guarantor was simply additional or further evidence to clarify his original claim because the guarantor claim is not simply a clarification or ‘further evidence’ but is inconsistent with and directly contradictory to the earlier claim that the applicant had borrowed the money himself on two occasions because his own business was not doing well.
122. The Tribunal also does not accept the applicant’s explanation offered at the third hearing that his friend [Mr A] had made a mistake when writing out the statement on behalf of the applicant either because [Mr A] had used the wrong words or because [Mr A] himself did not have a good command of English and may have misunderstood or misinterpreted the applicant’s claim. The Tribunal accepts that the applicant does not have a good command of English and also accepts that although [Mr A] might have had some slightly better command of English than the applicant, that this knowledge may also not have been strong. However, the statement on the form is clear and detailed. It clearly states that the applicant was the borrower and provides some detail as to the nature and timing of the borrowings. The Tribunal considers it implausible that [Mr A] would provide such specificity and detail but would completely omit the applicant only being a guarantor, if [Mr A] had in fact been told by the applicant that he was only a guarantor of the loan rather than the actual borrower.
123. Given the inconsistent and contradictory evidence over time about who had actually borrowed money from these loan sharks, the Tribunal finds that the applicant has not been a witness of truth in this matter and that his evidence in this regard lacks credibility. The Tribunal has placed significant weight on this finding when making an assessment as to whether the applicant is of any interest to loan sharks in Malaysia for unpaid debts.
124. The applicant provided vague and undetailed evidence about who the claimed funds were originally borrowed from and therefore who the debt is actually owed to. At the Tribunal hearing the applicant stated that the sum borrowed was 200,000 ringgit, which he agreed was a lot of money in Malaysia. However, on two separate occasions when asked at the third hearing, the applicant was unable to state who this money had been borrowed from and therefore to who he had provided a guarantee of repayment. Eventually the applicant provided the name [Company 1], which he claimed to be an unregistered company name which was regularly changed by unscrupulous loan sharks to avoid detection by the authorities. The Tribunal does not accept the eventual provision of this unregistered company name as being evidence of who the money was borrowed from because it was not spontaneously provided by the applicant on the two previous occasions he had been asked at the same hearing to identify who the money had been borrowed from and therefore who this money was owed to. As discussed with the applicant at the third hearing, the Tribunal would expect that if the applicant had been guarantor for a substantial loan for 200,000 ringgit as claimed and had provided identity documents and a signature to secure this guarantee as claimed, that he would be able to spontaneously recall who this guarantee had been provided to.

125. The Tribunal has placed significant weight on the applicant’s vague and undetailed evidence about who these funds had been borrowed from and therefore who the debt was owed to when assessing whether the applicant is of any interest to loan sharks in Malaysia for unpaid debts as claimed.
126. In support of his claims, the applicant has provided the Tribunal with three police reports purportedly made by his father (in the surname of [Name 1]) about harassment the applicant’s family had endured from loan sharks and their associates who were allegedly pursuing the applicant for unpaid debts. Two of these reports bear dates in 2009 and one bears a date in July 2016. All three reports were purportedly made before the applicant made his application for protection.
127. However, as discussed with the applicant at the third hearing, the applicant did not provide these documents to the Department either when he lodged his application or at any time before the delegate refused to grant him a protection visa on 21 March 2017.
128. The applicant clearly stated at the third hearing that he only asked his father to provide him with these police reports after he realised that he could provide further documents in support of his claims for protection. On the basis of this statement by the applicant, the Tribunal discussed with him the country information from DFAT that highlighted significant corruption within the police force in Malaysia and the country information from DFAT that it was common to obtain what appear to be genuine documents in Malaysia through bribery or fraudulent means. The Tribunal does not accept the applicant’s response that the documents genuinely evidenced his problems with loan sharks because they had different years and dates on them because no matter when the documents were produced, they could be produced with different dates on the request of the person acquiring them. The Tribunal also does not accept the applicant’s alternative explanation that you can tell the age of the documents by the texture and age of the papers because, as pointed out at the third hearing, the Tribunal has not been provided with originals and even if the originals were provided the different textures or colours on the paper would not provide evidence of when these documents were actually produced.
129. Given the applicant’s statement that these police reports were only obtained by the applicant after he had lodged his application for protection, even though they are dated before the application was lodged, and given the country information referred to above relating to corruption in the Malaysian police force and that it is common to obtain what appeared to be genuine documents in Malaysia through bribery or fraudulent means, the Tribunal is not satisfied that these police reports are genuine and factual reports that genuinely evidence that loan sharks in Malaysia have any interest in the applicant. Accordingly, the Tribunal finds that these reports do not genuinely evidence that loan sharks in Malaysia have any interest in the applicant and were obtained for the purposes of assisting the applicant’s claims for protection. The Tribunal has therefore placed no weight on these police reports when making its decision in this matter.
130. The applicant has claimed that his father was hospitalised and had surgery in 2009. The applicant has not claimed that this incident was caused by any problems relating to loan sharks, but he has claimed that his father’s illness precipitated his decision to stop paying the loan sharks. The Tribunal is prepared to accept that the father’s hospitalisation and surgery happened in 2009 as claimed, but on the evidence before it, the Tribunal does not accept that this hospitalisation and surgery of itself provides any verification of the applicant’s claims about owing money to loan sharks or any of the claims arising from this alleged debt to loan sharks.
131. Given the inconsistent and contradictory evidence over time about who the actual borrower of the money was and given the vague and undetailed evidence about who the money was borrowed from, the Tribunal finds that the applicant never borrowed any money from any loan sharks in Malaysia as claimed, that the applicant never was a guarantor for any loan from loan sharks for a friend as claimed and that the applicant never attracted any adverse interest of any kind from loan sharks in Malaysia as claimed. Based on these findings, the Tribunal also finds that loan sharks never pursued or threatened the applicant or any members of his family in any way in Malaysia as claimed over time and that the applicant never went into hiding in fear of any loan sharks as claimed. This finding includes any claims relating to the periods when the applicant was living in Malaysia prior to coming to Australia in 2009 and any claims relating to the period when he returned to Malaysia in 2015 or during any periods when the applicant was not living in Malaysia.
132. The applicant has not made any other claims about past harm in Malaysia and no other claims arise on the facts before the Tribunal.
133. The applicant has claimed that if he returns to Malaysia now or in the reasonably foreseeable future, he fears harm from loan sharks who are pursuing him for unpaid debts. However, the Tribunal has already found that the applicant never borrowed any money from loan sharks in the past in Malaysia, that he never was a guarantor for any loan from loan sharks in the past in Malaysia and that he never attracted any adverse interest of any kind from loan sharks in the past in Malaysia. Based on these findings, the Tribunal is not satisfied that if the applicant returned to Malaysia now or in the reasonably foreseeable future there is a real chance that he would suffer harm for reasons of being pursued by loan sharks for any alleged unpaid debts.
134. Apart from these claims relating to fear from loan sharks, the applicant has not made any other claims that he fears harm in Malaysia for any other reason and no other claims arise on the facts before the Tribunal. In fact, the applicant claimed at the most recent Tribunal hearing that if he did not have a fear of loan sharks, he would have a good life in Malaysia.
135. Having considered all of the applicant’s claims individually and cumulatively, on the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
136. 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 has already found that the applicant would not suffer harm in Malaysia for reasons of being pursued by loan sharks for any alleged unpaid debts. Apart from this claim, the applicant has not made any other claims that he fears harm for any other reason in Malaysia and no other claims arise from the facts before the Tribunal.

138. Having considered all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if he were to return to Malaysia.
139. Accordingly, 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

141. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Katsambanis
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 1018

10 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction