1729384 (Refugee)
[2025] ARTA 1261
•16 April 2025
1729384 (REFUGEE) [2025] ARTA 1261 (16 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1729384
Tribunal:Matthew Tubridy
Date:16 April 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 16 April 2025 at 12:38pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – traffic accident – attacks by criminal gang – forced drug trafficking – physical assault – fear of killing – attack on home – internal relocation – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367A, 499
Migration Regulations 1994, Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 31 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The application was lodged with the Administrative Appeals Tribunal (AAT) on 23 November 2017. On 14 October 2024, the AAT became the Administrative Review Tribunal (the ART). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the ART. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
On 23 November 2017 the applicant lodged his application with the AAT for review of the delegate’s decision to refuse him a protection visa. On 27 November 2017 the AAT emailed the applicant an acknowledgement of receipt of his application. This also advised the applicant that the Tribunal would ask the Department of Immigration and Border Protection (later the Department of Home Affairs, and hereafter the Department) to provide it with any documents or files that the Department had in relation to the delegate’s decision. The applicant was also advised that: if he wished to provide material or written arguments for the Tribunal to consider he should do so as soon as possible. The Tribunal received no response from the applicant with respect to this invitation.
The Department provided the Tribunal with: a copy of the delegate’s decision; various Departmental administrative documents and items of correspondence sent to the applicant; and most significantly: the applicant’s September 2017 protection visa application and its supporting documents (these being copies of the applicant’s [2015] issued Malaysian passport, his Malaysian national identity card, his July 2015 issued Malaysian driving licence, and his boarding pass for his [August] 2016 flight from Kuala Lumpur to Melbourne). In his 2017 protection visa application the applicant presented himself as a Malaysian citizen who had left his country for Australia to escape gangsters who had been threatening him. The applicant claimed that in 2015 he was involved in a traffic accident in which his car collided with another vehicle causing severe damage. The user of the other vehicle removed a gun and threatened the applicant with regard to the damage. The applicant tried to finish this in a good way, but the other road user continued to threaten him. Thereafter the applicant was often threatened by a group of gangsters, and he got information from an acquaintance that the car’s owners were involved with gangsters. The gangsters threatened to kill the applicant and he could not escape them by moving to another part of Malaysia because they often followed him. He could not seek help from the authorities because he was threatened not to do this, or to tell his family, and so he left for Australia to protect himself and his family from harm.
On 31 October 2017 the delegate refused to grant the visa. The delegate considered that the applicant had not claimed to fear harm for reason of his race, religion, nationality, membership of a particular social group or political opinion, since the applicant claimed to fear harm from gang members in Malaysia. The delegate was thus not satisfied that the applicant faced a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a). Neither was the delegate satisfied that the applicant would face a real risk of significant harm, as the delegate considered that country information indicated that the applicant would receive effective protection from the Royal Malaysia Police (RMP; hereafter Malaysia’s police) and judiciary in Malaysia against any threats he might face.
On 5 October 2023 the AAT emailed the applicant with advice that his file was being prepared to be given to a Tribunal Member. He was asked to complete a pre-hearing information form, and to return this to the AAT within seven days. Nothing was received from the applicant in response to this.
On 28 February 2024 the AAT emailed the applicant with advice that it had become apparent that on 23 November 2017 he had lodged two separate identical applications with the Tribunal for the review of the 31 October 2017 decision to refuse him a protection visa; with the first of these being lodged on 23 November 2017 at 18:46:52 AEDT (AAT file no 1729384), and the second an hour later at 19:55:07 AEDT (AAT file no 1729393). The applicant was provided with advice about how to withdraw the duplicated application. The applicant responded to this promptly, replying by email later that same day to withdraw his duplicated application (AAT file no 1729393).
On 5 March 2024 the AAT emailed the applicant and advised him (with respect to AAT file no 1729384) that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal by video conference on 3 May 2024 to give evidence and present arguments relating to the issues arising in his case. He was asked to complete and return a ‘Response to hearing invitation’ form within seven days, and that he should provide all documents he intended to rely on to support his case by 26 April 2024. On 8 March 2024 the applicant returned a completed ‘Response to hearing invitation’ form in which he indicated that he would attend the hearing, and that he did not intend to provide any documents or propose any witnesses.
On 3 May 2024 the applicant appeared before the Tribunal at a hearing conducted by video conference to give evidence and present arguments relating to the issues arising in his case. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. It was confirmed with the applicant that he understood the interpreter and that he was in good health and well enough to give evidence. It was apparent that in addition to the Malay language the applicant understood and spoke some English, and he also confirmed that he could read and write in both languages. Asked whether he had had any assistance in completing his September 2017 protection visa application, he said he had not and that he had completed it himself.
Asked if there was anything in his application that he needed to correct, the applicant said that it was all correct, but he wanted to tell his story from the beginning about how he was blackmailed. The Tribunal first discussed with the applicant some of the particulars of his personal history, and then invited the applicant to provide his evidence about his reasons for departing Malaysia from the beginning.
The applicant then submitted that during his high school years ([specified]) he had been bullied by five persons who were known to be part of a violent gang which had big connections with the police. Some years after finishing school, in either August or September 2015, he was driving his motorcycle when he encountered these five persons who were also on motorcycles. The gang members began to pursue and harass the applicant. One of the gang members, Mr A, got too close to the applicant and this caused the applicant to come off his motorcycle (and to land unhurt on the shoulder of the road) while Mr A crashed into a car and died. The other gang members, seeing this, alleged that the applicant was responsible for Mr A’s death. The applicant denied this. He called an ambulance for Mr A and left the scene. The next day the applicant was visited at his home by Mr A's brother (also a gang member, name unknown to the applicant) who told the applicant he was responsible for Mr A’s death and that because of this the applicant now had to either work for Mr A and his gang, or to pay them MRY[amount] (around AUD[amount]).[1]
[1] [amount] MYR to AUD - Convert Malaysian Ringgits to Australian Dollars, [Details deleted.]
Some months later the applicant got a job working in [Country 1]. Mr A’s brother found out about this and told the applicant that he had to smuggle cigarettes from Malaysia into [Country 1]. The applicant knew this would be dangerous, but he did not know what else to do and complied, and on his first and only attempt at this he successfully smuggled cigarette cartons into [Country 1]. The applicant felt that he may only have been successful because it had been raining and this may have enabled him to get past the dogs. He was then told to do this again the very next day but, before crossing into [Country 1], the applicant noticed that one of the cigarette cartons felt too heavy and, when he opened it, it he found ecstasy pills (ecstasy being the colloquial name for methylenedioxymethamphetamine; and which is illegal in Malaysia and [Country 1] which both impose lengthy prison sentences, or even the death penalty, for smuggling such drugs).[2] He was scared, and felt he had to either throw the cartons away or face jail in [Country 1], and so he threw the cartons away. Following this he faced harassment and threats from the gang who wanted to know about the whereabouts of their goods which he had not delivered. The applicant claims to fear that if he returns to Malaysia the gang will kill him because he will be unable to provide them with these goods, and also because the gang continue to hold him responsible for the death of Mr A.
[2] SAMA, ‘What is Ecstasy?’, ; Hassan, H. ‘How Much Drugs Can Land A Person The Death Penalty In Malaysia?’, TRP, 1 October 2020, ; Straits Times, ‘2 S’poreans could face death penalty for allegedly trafficking 58kg of Ecstasy in Johor’, 12 June 2024,
The Tribunal asked the applicant whether it was correct that his only reason for fearing return to Malaysia was that he feared harm from Mr A’s brother’s gang. The applicant confirmed this.
The Tribunal put it to the applicant that it had some potential concerns about his claims, and in particular how his current claims appeared to differ from the claims he had raised in his September 2017 protection visa application; and the Tribunal explained that such concerns might raise doubts about whether his claims were true. The applicant provided responses to the Tribunal’s questions and concerns, and the Tribunal informed the applicant that it would consider these. It was underlined to the applicant that if the Tribunal did not accept his claims (about the events which led him to fear harm from Mr A’s brother’s gang) his review would not succeed because he had indicated he had no other fears with respect to returning to Malaysia. It was underlined to the applicant that he should endeavour to email to the Tribunal any documentary or other evidence he could that would establish his claims about what had occurred in these regards. The applicant said he would like to provide the Tribunal with a photograph of his damaged motorcycle, adding that he might be unable to obtain this because it was stored on an old mobile telephone. I advised the applicant he could provide whatever evidence he wished but he should be aware that a photograph of a damaged motorcycle might establish only that the motorcycle in the photograph was damaged. The applicant said that he would also try to provide the Tribunal with evidence from his friend [Mr B] who had also been compelled to smuggle and was now in jail. The Tribunal undertook not to make a decision until after 17 May 2024, and informed the applicant even after 17 May 2024 it would consider any information he provided if a decision had not already been made. The Tribunal explained that after 17 May 2024 a decision could be made at any time if a further guarantee of delay had not been requested and agreed to.
On 17 May 2024 the applicant emailed the Tribunal as follows: Unfortunately, I have not been able to present any evidence or documents to prove that I need protection, I have tried to get any feedback from [Mr B’s] guardian who is currently serving a prison sentence for smuggling, because he was threatened and used like me. Until now I have not had any opportunity to get an answer from him and his guardian about his case, by any chance I humbly ask you to give me time to get some information about my case. The Tribunal emailed the applicant in reply and advised him that it would undertake not to make a decision until after 31 May 2024. The Tribunal also conveyed that even after 31 May 2024 it would consider any information the applicant provided if a decision had not already been made (though a decision might be made at any time after 31 May 2024). Nothing further was received from the applicant in terms of further evidence, or in terms of any further requests for the Tribunal to guarantee the delay of making a decision until a later date. On 2 October 2024 the applicant emailed the Tribunal with a query about his current visa status (that is, the status of his bridging visa), and the Tribunal referred the applicant to the Department for information about this. On the following day, 3 October 2024, the applicant emailed the Tribunal again and asked whether his case was still in progress. The Tribunal emailed the applicant the next day, 4 October 2024, with advice that his case was still active and that no decision had yet been made. Even so, nothing further was received from the applicant.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
Receiving country
The applicant claims to be a citizen of Malaysia. I note that Part 2, Article 14, of the Federal Constitution of Malaysia provides that a person is a citizen of the Federation of Malaysia by operation of law if they were born on or after 16 September 1963 within the Federation of Malaysia to parents of whom at least one was a citizen or a permanent resident at the time of birth.[3] I note that the applicant has indicated that he was born a citizen of Malaysia in Malaysia (in Johor) in [specified year] to parents who were both citizens of Malaysia. He has also provided the Department with a scanned image of the biodata page of his [2015] issued Malaysia passport which presents him as a national of Malaysia who was born Johor in [year]. I accept that the applicant is a citizen of Malaysia, and I find him to be a national of Malaysia, and I find Malaysia to be the applicant’s receiving country for the purpose of this review.
Protection claims
[3] 'Federal Constitution of Malaysia', Government of Malaysia, 1 November 2010, 20191128113408; Canada IRB, ‘Malaysia: Citizenship laws, including methods by which a person may obtain citizenship; whether dual citizenship is recognized and if so, how it is acquired; process for renouncing citizenship and related documentation; grounds for revoking citizenship, 16 November 2007, MYS102621.E.
The applicant claims to fear harm from a gang in Malaysia because: first, he is blamed by the gang for the death of one of their members, Mr A, in a traffic accident; and secondly: because the gang wants him to return the cigarette cartons and ecstasy pills which he was directed to smuggle into [Country 1], but which he threw away and so is unable to return.
It is apparent from country information that criminal gangs do operate in Malaysia and that some of these gangs are involved in high-level crime, including drug trafficking, and that victims of gang-related crimes do not generally report them due to fear of retaliation.[4] It is reported that smuggling operations run out of Malaysia often involve gangster syndicates known as ‘tontos’ who act as bodyguards to the smugglers, and who track the movements and tail vehicles used by enforcement personnel stationed at the border.[5] The term is employed to refer to thugs or gangs more broadly which operate protection racquets in Malaysia’s transport industry.[6] Reports appear regularly of Malaysia’s police and other authorities taking action against criminal gangs, including those suspected of cigarette smuggling;[7] It is also reported that, although multiple local and international sources consider Malaysia’s police to be a professional and effective police force, it is also the case that the quality of its members’ responses varies depending on levels of training, capacity, and engagement in corruption, and that Malaysians perceive their police as one of the most corrupt institutions in the country.[8]
[4] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 2.30.
[5] Abdullah, S.M. ‘'Tontos' a menace but enforcement agencies powering through’, Straits Times, 29 November 2020, ; Shahrudin, H.S. ‘Cops step up op against “tontos”’, 5 May 2016,
[6] FMT Reporters, ‘‘Tonto’ syndicates raking in big bucks’, 11 May 2016, 3 May 2016, ; FMT Reporters, ‘RTD has the tonto menace in check’, 12 October 2016,
[7] The Star, ‘JPJ and cops put the brakes on 'Tonto' groups’, MCA, Asyraf, F. ‘Suspected of 'tonto' links, youth claims cops beat him repeatedly’, 6 February 2021, ; Mohd, H. ‘Cops bust “Tonto” gangs in 'Hollywood' operation’, NST, 28 April 2016, ; Shahrudin, H.S. ‘Cops step up op against “tontos”’, 5 May 2016, ; FMT Reporters, ‘RTD has the tonto menace in check’, 12 October 2016, ; Bernama, ‘Police open fire after 'tonto' tries to ram them’, Awani International, 10 February 2022, ; Tan, B. ‘Johor Customs Dept foils bid to smuggle RM18m in contraband cigarettes hidden with toys’, Malay Mail, 20 March 2024,
[8] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 5.5-5.6.
This noted, given what is reported about the procedures for investigating accidental deaths in Malaysia, it is difficult to believe that there would not have been a police investigation into the death of Mr A if such a fatality had occurred as the applicant claims (notwithstanding the applicant’s assertions that Mr A was a gang member with police connections). I note, in this regard, that Malaysia’s Criminal Procedure Code requires that Malaysia’s police must investigate when they learn of a potential death by accident. The investigating police must then provide a report on the circumstances and the apparent cause of death to the local magistrate who, if not satisfied on the basis of the police report that the death was the result of natural causes, will order a post-mortem examination of the body by a medical officer. The medical officer will then provide a report on this to the magistrate. If the magistrate is satisfied on the basis of the post-mortem as to the cause of death without holding an inquiry, then the magistrate will report this to the public prosecutor along with the cause of death. If otherwise, the magistrate will hold an inquiry to determine whether anyone is criminally responsible (and the public prosecutor may also direct the magistrate to undertake such an enquiry).[9] It is apparent from broader reporting that concerns are sometimes expressed about some of the procedural aspects involved in this process, but it is also apparent the procedures themselves are generally followed[10] such that, whatever the outcome might be, it is doubtful that a fatality arising from a vehicle crash would not result in an investigation and the filing of at least a police report and possibly also a medical officer’s post-mortem report.
[9] See Part VII ‘Inquiries of Deaths’, in Malaysia’s: Criminal Procedure Code (583) 2006,
[10] Bohari, S.J. et al, ‘The Standard of Proof in Inquests: Lessons from Malaysia and Other Jurisdictions’, IIUM Law Journal, vol.31: no.S1, 2023, ; British High Commission (Kuala Lumpur, Malaysia), ‘Death in Malaysia: Guide for Bereaved Families’, May 2013, pp.3-4, ; Noordin, M.N. et al, ‘An Analysis of Injury Patterns for Drivers Based on Police Reported Frontal Crashes in Malaysia’, Journal of the Society of Automotive Engineers Malaysia, September 2021,
At the May 2024 hearing I put it to the applicant (with respect to his claims about the death of Mr A and the absence of any documentary evidence about this), that in such circumstances there must have been an investigation resulting in something like a coroner’s report about the cause of death and what had occurred, and whether any charges should be brought against anyone with respect to culpability. I asked whether he was able to provide any such evidence. The applicant submitted that only the victim’s family will have such evidence, and that at the time of the accident he (the applicant) was not that conscious (about what was occurring), and he had just gone home after calling the ambulance, and he was not sure if Mr A’s friends took any action because of the death. I accept that it may well be the case any resulting reports about such a death will (in circumstances where no party is alleged to be culpable for this) only be available to the victim’s next of kin[11] but, even so, it is difficult to believe that the applicant would not have been sought out by police and spoken to if he had been a witness to a traffic accident where a person had died, particularly given that he claims to have been the person who telephoned for an ambulance to come to the scene, and with the deceased person’s friends alleging that the applicant was responsible for what occurred.
[11] British High Commission (Kuala Lumpur, Malaysia), ‘Death in Malaysia: Guide for Bereaved Families’, May 2013, p.6,
In any event, and more significantly, the applicant’s own evidence about what did occur was not persuasive. The applicant claimed that while he was being pursued by Mr A and the four other gang members, he (the applicant) told them to cease what they were doing, or he would make a report to police; and following the crash and the death of Mr A, he: Tried to report to the authorities, but it was just a blank piece of paper; and this was the case: Because [Mr A’s] older brother has got connections. Thus, the applicant appeared to be asserting that when he went and reported the matter to police, they did not actually record anything he had to say (such that it was ‘just a blank piece of paper’) because of the influence of Mr A’s brother. But when I asked the applicant to explain this, he responded: So, the report that I made to the authorities it was useless, they did not take any action at all, because the older brother has a big connection, and I was not allowed to make the report. Thus, the applicant now appeared to claim that the police did take his report but did nothing, while also claiming that he was not allowed to make a report. I put this problem to the applicant, and I asked him to explain which was the case. The applicant responded: I was not allowed to have the opportunity to make a report, and if I do make a report then they would beat me up. I asked the applicant to explain what he meant. The applicant responded: I could not make a report because of their connection. I tried to enter the police station, but these people have friends and they watched me from afar and they will hurt me, I think. I asked the applicant which police station he had attempted to enter. He responded that the first police station was in [Town 1]. Asked if he remembered what day he went there, the applicant said he went there the day after Mr A had died. But then the applicant continued by asserting that he had been unable to go to the police station because he was too scared to leave his home after Mr A’s brother came told him he was responsible for Mr A’s death and so now he either had to work for Mr A and his gang or pay them MRY[amount].
Given the conflicting nature of the applicant’s evidence about whether he did, or did not, report the traffic incident to the police, I did not find any of this persuasive.
Further, and as has been noted above already, among the most significant concerns with respect to the applicant’s claims is how these have changed. For, and while at the 2024 hearing and also in his 2017 protection visa application the applicant did claim to fear harm from a gang after he was in a traffic accident in 2015 with a gang member, in the September 2017 protection visa application there was no mention of a death, and instead the emphasis was on the severe damage caused to the vehicle of the gang member.
At the May 2024 hearing I put it to the applicant that in his 2017 protection visa application he had claimed something very different to what he was claiming now. The applicant responded: At the time I could not express myself well, and therefore it was not stated clearly in the application. At that time, I did not feel safe at all. I was fearful, so I stayed at home, and I did not know what to do and I lost control. I put to the applicant that in fact he had made some very specific claims in his 2017 protection via application, and this had included that in 2015 he was involved in a vehicle accident. However, in his 2017 protection visa application he gave no indication that anyone was killed in this vehicle accident. Instead, what he had claimed in 2017 was that he had an accident with a person who had produced a gun and had who had demanded that he (the applicant) pay for the damage, and that it was because of this that he was thereafter harassed by gangsters. The applicant responded: It’s them (that is, that the gangsters referred to in the 2017 protection visa application were the same gangsters the applicant was claiming to fear harm from as per his current claims). I put it to the applicant that the problem was that (although in 2017 he had claimed to fear harm from gangsters) this claim had been expressed in an entirely different way in 2017. In response, the applicant submitted: They are gangsters and they have got weapons, and those are lethal weapons, and because of that I do not feel safe going back to my village.
I explained to the applicant that under the Migration Act the Tribunal is required to draw an inference unfavourable to the credibility of any new claims or any new evidence if the applicant does not have a reasonable explanation for why any such new claims or new evidence were not provided before the primary decision was made (that is, before the Department refused to grant the visa). I invited the applicant to provide the Tribunal with an explanation for why he did not raise his new claims before his protection visa application was refused. The applicant responded: At the time I did not know that I was able to tell this story and whether it would be accepted, and I was illegal at the time, and I suffered from anxiety, and I did not tell my family about this, and so this is the first time I have mentioned it. I note, however, that moments earlier when I first put it to the applicant that his current claims were different from his September 2017 claims, he gave no indication that in September 2017 he had been affected by anxiety (as a result of his being unlawfully in Australia) or that this had somehow resulted in his not knowing that he was able to tell the current version of his claims, or in his thinking that such claims would not be accepted. Instead, what the applicant had initially asserted was that: At the time I could not express myself well, and therefore it was not stated clearly in the application. Thus, the applicant’s initial reason for why he did not provide his current claims was not that he did not know he could make such claims, but that he did seek to make such claims and if this was not apparent then this was because he had not been able to express himself well enough in September 2017.
I note, in this latter regard, that in September 2017 the applicant expressed himself as follows: In 2015 I was involved in a small accident tht caused my car to collide with another vehicle, causing severe damage and caused the user to remove a gun and threaten my damages, in fear, I tried to finish in a good way but road users insists and threatens me, I’m afraid of his threats, I escape the threat, I am often treated by a group of gangsters. I get information from my acquaintance who car owners are involved in gangster. It is evident from this that in September 2017 the applicant did experience a level of difficulty in expressing himself in his second language of English rather than his preferred language being Malay. Given this, I have not been concerned by how in September 2017 the applicant referred to himself as having been in a car rather than on a motorcycle at the 2015 accident. But other differences cannot be put aside in the same way. For the applicant was able to express himself well enough in his September 2017 protection visa application for it to be plain that at that time he was seeking to claim that in 2015 his vehicle collided with, and caused severe damage to, the vehicle of a gang member; and that because of this he was threatened by this person and his group of gangsters. This is a very different account of events to that which the applicant submitted at the May 2024 Tribunal hearing; and I note again that in the applicant’s September 2017 written claims give no indication at all of anyone having died in the purported 2015 accident, let alone that the applicant was subsequently compelled to smuggle goods into [Country 1] because of this.
Given how all of this has unfolded, I have not been persuaded by the applicant’s assertion that the reason he did raise his current claims in September 2017 is because he did not know at that time that he was able to tell this story or whether it would be accepted. Neither am I persuaded that the reason for this was the result of any anxiety he may have been suffering because his presence in Australia had become unlawful as a result of the expiry of the visa he had arrived on. I accept that in September 2017 the applicant was struggling with the difficulty of expressing himself in a second language, but as discussed above the applicant did nonetheless express himself well enough in his September 2017 protection visa application for it to be plain that he was at that time making very different claims about what occurred with respect to the purported traffic accident of 2015, and I am not persuaded that the absence of the applicant’s current claims from his September 2017 protection visa application can be accounted for by the difficulties he was facing with respect to expressing himself either. Given all this, I am satisfied that the applicant does not have a reasonable explanation for why his new claims were not raised before the primary decision was made. I am required by s.367A of the Act to draw an inference unfavourable to the credibility of these new claims and I have done so. I would, even if this were not required of me, conclude (on the basis of the manner in which the applicant’s account of the purported 2015 traffic accident has altered over time) conclude that serious doubts are raised about the credibility of the applicant’s overarching claim to fear harm from a gang on the basis of a 2015 traffic accident in which he (the applicant) was involved.
The applicant’s broader evidence about all of this has not overcome my concerns in this regard. For instance, the applicant’s account of the purported timeline of events proved difficult to believe in itself and was at times contradictory. For the applicant claimed that it was in August or September 2015 that Mr A was killed in the vehicle crash incident for which Mr A’s friends and then Mr A’s brother held him responsible, and that he (the applicant) was thereafter too scared to leave his home because Mr A’s brother had come to his home and told him he had to either work for Mr A and his gang or pay them MRY[amount]. The applicant claimed that at the time he lost his employment but a few months later he took up a work opportunity in [Country 1] and, when Mr A’s brother found this out, he (Mr A’s brother) threatened him (the applicant) into taking cigarettes into [Country 1]. I note, with regard to all of this, that the stamps in the applicant’s passport (and also the entries in the applicant’s travel table in his protection visa application) indicate that his first visit to [Country 1] did not occur until 5 January 2016. This would mean that the Mr A’s brother, who according to the applicant was a violent and ruthless gangster (with police connections which enabled him to act with impunity), nonetheless did nothing to and demanded nothing from the applicant from September 2015 until January 2016 (a period of at least three months) even though Mr A’s brother purportedly held the applicant responsible for the death of Mr A and had demanded either payment of MRY[amount] or that the applicant begin working for him.
Then there is the problem of how much time would elapse between the applicant’s second transgression with the gang (the smuggling incident wherein he threw away the cigarette cartons and ecstasy pills) and his [August] 2016 departure for Australia, and what the applicant was doing with himself in Malaysia during this time. Asked when the smuggling incidents occurred the applicant first submitted that it must have been in February 2016, and he later asserted that it must have been in March 2016. I note, however, that it is evident from the applicant’s passport (and his travel table in his protection visa application) that the applicant only ever travelled to [Country 1] in January 2016 (10 times between [specified dates in] January 2016) and August 2016 (once on [a day in] August 2016, the day before his [August] 2016 departure for Australia). All of these stamps show that the applicant was admitted to [Country 1] for a social visit, rather than for work, but these are nonetheless the only times the applicant entered [Country 1] (and in his protection visa application travel table the applicant has listed all of these [Country 1] visits as having been undertaken for the purpose of work). Thus, if the purported smuggling incidents happened at all, they could only have occurred in January 2016. This would mean that some seven months elapsed before the applicant’s [August] 2016 departure for Australia; and during those seven months the applicant was almost entirely in Malaysia, with his only days outside Malaysia during this period being his [August] 2016 trip to [Country 1], and a trip to [Country 2] for just three days ([specified days in] June 2016).
It proved difficult, at the hearing, to obtain a clear answer from the applicant about what he did, and what occurred, over the months which followed his decision to throw away the away the cigarette cartons and ecstasy pills. Asked what he did next, the applicant said that he went to [Country 2] because Mr A’s brother tried to get back the goods and the money. This, however, meant jumping ahead several months since (as is apparent from the applicant’s passport, and also his travel table in his protection visa application, he went to [Country 2] only once, and only for three days, and not until [specified days in] June 2016). I asked the applicant to clarify what he had done after throwing away the ecstasy pills, and whether he had continued into [Country 1] with any remaining cigarette cartons. The applicant said that he did not, and he had only done this once, and that he was very scared because a friend of his was arrested because of the same problem and he was punished in jail for ten years. Thus, the applicant indicated that he did not make a second delivery of any cigarette cartons into [Country 1], but it remained unclear from this whether the applicant was claiming that he had not gone to [Country 1] at all. Moreover, the applicant seemed unwilling to engage with the opportunity to provide clear and direct answers in response to the Tribunal’s questions.
At this point in the hearing, I underlined to the applicant how important it was that he should endeavour to provide the Tribunal with a clear and detailed account of what he was claiming had occurred to him. I explained that this was particularly so because what he was claiming now differed so much from what he had claimed in his September 2017 protection visa application, and because in the seven years since he applied for review, he had provided the Tribunal with no further information about his case. I explained to the applicant that for his claims to be accepted it was important that he focus on answering the Tribunal’s questions directly because, if he did not, the Tribunal might begin to form the impression that his evidence amounted to fabrication.
I then again invited the applicant to explain what he did after he purportedly discovered the ecstasy pills, and whether he continued into [Country 1]. The applicant said he did not. Asked what he did next, he said: To be honest with you, it is not fabricated, and to be honest I find it very difficult to interact and tell you what happened. I asked the applicant to do his best and try to keep his responses to the point. I again invited him to explain what he did next. The applicant said: I went to work. I just worked every day because I was asked to pay that amount of money. Asked where he was going for work, the applicant indicated he had been going to work at [a business 1] in [Country 1].
Asked whether, following this, he had any problems, the applicant said that following this he run away because he was fearful for his life. In saying this, the applicant appeared to be implicitly claiming that he had had no further problems while in Malaysia because he had, at some point, run away. But he had not expressly stated that he had no further problems in Malaysia, and so I explained to the applicant that I was going to ask him the same question again, and he needed to focus on answering the question that was asked. I then asked the applicant again whether (after the smuggling incidents) he had had any problems. The applicant now said he had. Asked what these were, the applicant said he was threatened because he did not deliver the goods successfully.
I put it to the applicant that it was not clear what he was trying to say had occurred to him. I again invited the applicant to explain to me what had happened to him, and that he should do so as clearly as possible, and in doing so he should explain when and where events had occurred, and who was involved and what was said. The applicant said: I was told that if I did not return the goods I would be threatened, and my family would be threatened, and a few months later I tried to run away from this problem. I asked the applicant when it was that this threat had been made against him. The applicant said it was the third day after the unsuccessful delivery. I asked the applicant where he was when he was threatened. He said he was in his village (in [Town 1]). I asked who had made this threat against him. The applicant said it was Mr A’s brother.
Thus, the applicant claimed that following the smuggling incident he had continued to go to work in [Country 1] every day, and that three days after the smuggling incident Mr A’s brother had threatened him in [Town 1] that he must return to the goods (the cigarette cartons and ecstasy pills), and a few months later he (the applicant) tried to run away from this problem.
Asked what happened in this regard, the applicant said that he was at a restaurant in [Town 1] with friends when he was beaten and drugged by some gang members. Asked when this occurred, the applicant said he did not remember. Asked if he was badly injured, the applicant said his face and many parts of his body were wounded. Asked if he sought any medical treatment, the applicant said he did not because he had been given drugs. Asked to explain what he meant by this, the applicant said the gang members hit him, and he could not defend himself because of the side effect of the drugs they had given him. I again invited the applicant to explain how he was given drugs. The applicant said these were put in his drink because they (the gang members) were very angry with him. I asked the applicant to explain how the gang members had been able to have him consume a drink into which they had placed drugs. The applicant said that he was in shock after the gang members beat him, and one of them gave him a drink which he drank, and this must have had drugs in it. I note, however, that just moments earlier the applicant had said that it was because of the side effects of the drugs given to him that these persons had been able to beat him up (such that he initially claimed he was drugged and then beaten, whereas following this he claimed he was beaten and then drugged). I did not find this persuasive.
Asked if the gang members had said anything to him about why they were doing this to him, the applicant said the gang had told him they wanted their goods back. The applicant said he had been able to get them to stop hitting him by telling them he still had their goods, and this had worked because the gang very much wanted their goods back because they were of a very high value. I note, however, that it is difficult to believe that in such circumstances a violent criminal gang would have chosen to allow the applicant to remain at his liberty for the purpose of returning their missing goods rather than threatening him with further harm if he did not accompany and direct them immediately to the location of their missing goods.
I asked the applicant whether, following this, anything else of significance had happened to him before he came to Australia. He said it did not because two days after his being assaulted at restaurant he ran far away from his village (that is, away from [Town 1]). Asked where he went to, the applicant said he went to Malacca and remained there a week. Asked what he did next, the applicant said that he went to [Town 2] where he worked for a month. Asked for details about this, the applicant said that a friend asked him to work at a company named [Employer 1] which made [products 1]. Asked what he did next, the applicant said that after a few months, and completing his work contract, he returned home and one of his friends told him he should go away, and so he decided to travel with whatever savings he had, and he came here to Australia.
I note that from the timeline I have outlined above, this would mean that that the applicant was in [Town 1] from January 2016 until around March/April 2016, and that he was then in Malacca for a week, and that from March/April 2016 to May/June 2016 he was in [Town 2]. Yet, in accounting for his movements in this way the applicant’s [June] 2016 trip to [Country 2], and also his [August] 2016 trip to [Country 1], disappeared from his narrative (even though the applicant had initially commenced his account of what occurred after the smuggling incident by submitting that he went to [Country 2]).
I note also that notwithstanding all of this no harm ever came to any members of this applicant’s family. At the May 2024 hearing I confirmed with the applicant that his parents continued to reside at the same address in [Town 1], and that he remained in contact with them. He said he had spoken to them two weeks ago, and they were far away from any problems, but that things were not well with his youngest brother, [Brother A], because he had been threatened by the gangsters who had wanted to know the applicant’s whereabouts. Asked when this had happened, the applicant said this had occurred when he (the applicant) was in [Town 2]. Asked who told him about this, the applicant said he was told this by a friend of his who was now in prison having been sentenced for ten years. Asked who this person was, the applicant said: This person is a friend of mine who always gave me information when I was beaten up. Asked to please specify this person’s name, the applicant named his as a [Mr B]. Asked when [Mr B] had passed on this information to the applicant about his brother being threatened, the applicant said that this had been when he (the applicant) was in [Town 2]. Asked what had happened, the applicant said his brother was only threatened once because he (the applicant) had told the gang that they would not get their goods back if they touched any of his family members, and [Mr B] conveyed this to the gang on his behalf. The applicant said his brother was now studying in a place far from [Town 1].
Thus, and while the applicant claims that he was dealing with a criminal gang so violent and unchecked by Malaysia’s authorities that he was too frightened to report any of this to Malaysia’s police, he also claims that he was able to prevent this criminal gang from harming or even making any further threats against any of his family members (following the one threat made against his brother in 2016) by having it conveyed to the gang that if they harmed any members of his family they would not get their valuable goods back. Moreover, it is also the applicant’s claim that even though all his family remain in Malaysia, and even though his parents continue to reside at the same family home in [Town 1], and even though some eight years have now passed during which he has remained in Australia without his having returned the purportedly lost goods to this criminal gang, no harm or even any further threats have ever been visited upon his parents or other family members; and yet at the same time the applicant claims that were he to return to Malaysia this gang would kill him no matter where he might go in the country. I find all of this difficult to accept.
Moreover, there is also the question of why the applicant (if he really did fear harm from gangsters in Malaysia, such that he fled for Australia) did not seek to remain in either [Country 2] or [Country 1]. When asked about this this at the hearing (and it was also put to the applicant that is was apparent from the stamps in his passport that he had been entitled to remain in [Country 1] for as much as 30 days every time he visited), the applicant’s said that [Country 2] was even more dangerous than Malaysia (an assertion difficult to reconcile with the applicant’s claim that the reason he went to [Country 2] was for safety), and that [Country 1] was unsafe because the gang had connections there, and this was why they had asked him to deliver their goods there. Asked why the gang would have wanted to make use of him to make their deliveries if it was the case that they had good connections in [Country 1], the applicant submitted that the gang like to use other people and the same thing had happened to his friend [Mr B] who was now in jail.
It is well reported that criminal networks make use of people (who are themselves without any criminal connections) to smuggle goods like illegal drugs and black-market cigarettes. Such persons are referred to colloquially as drug mules, and over recent decades there have been regular reports of Malaysian drug mules being arrested after having attempted to smuggle illegal drugs or black-market cigarettes into another country; and in some instances it has been reported that after being arrested the drug mules in question have claimed to authorities that they were not aware of what they were smuggling.[12] There is, however, little evidence in reporting about such matters to indicate that Malaysian nationals are being coerced into acting as drug mules. Instead, it is generally reported that Malaysians who act as drug mules do so willingly because of the financial rewards offered to them. I note also that a crime network in need of a person to smuggle goods from Malaysia into [Country 1] would have a large number of possible candidates from which to recruit a prospective smuggler ([details deleted]).[13] This noted, the possibility that a criminal network might nonetheless seek to coerce an unwilling person to smuggle goods for them is not implausible; though it is difficult to believe that in such circumstances the criminal network would not tail their unwilling drug mule from a distance to ensure that they did not abscond with or discard the smuggled goods before reaching the border crossing. The applicant claims that the criminal gang he dealt with kept him under surveillance constantly such that he was unable to approach the police; and yet he also claims that he was able to throw away the goods he was directed to smuggle such that the gang was entirely unaware of what had become of these, and simply accepted his assertions that these goods remained in his possession. I have not found this persuasive.
[12] 'M'sian drug mules get 10 years in NZ', Star Online, The (Malaysia), 27 October 2011, CX301283; 'Former drug mule tells of exotic holiday-turned-hell in public sharing', Star Online, The (Malaysia), 07 March 2012, CX301277; 'Drug mules share their story', New Straits Times, 28 May 2012, CX301275; 'Drug mule grateful', Star Online, The (Malaysia), 11 July 2012, CX301279; '59 drug mules in jails abroad', New Straits Times, 08 August 2012, CX301294; Malays Mail, ‘425 Malaysian drug mules held abroad since 2013’, 23 December 2018, ; 'Rise in number of Malaysian drug mules caught abroad, says anti-narcotics chief', Straits Times, The, 03 February 2019, 20190204083820; R.AGE, ‘The Malaysian Drug Trade’, True Story Award, 24 June 2019, ; Zolkepli, F. ‘Malaysians caught for being drug mules overseas increased, says police’, The Star, 28 December 2023, ; Bernama, ‘77 Malaysians nabbed abroad for drug offences since 2021’, Malaysian Insight, 29 December 2023,
[13] [Source deleted.]
I note, moreover, that the reason criminal networks employ drug mules is because (whatever criminal connections they may have on the other side of the border) they lack the kind of connections with law enforcement that would enable them to transport illegal goods without running the risk of arrest. [Details deleted.][14] [Details deleted.][15] [It] is difficult to believe that the applicant would not have sought to remain in [Country 1] for at least some of the 30 days made available to him by way of his visitor pass if he felt that he was at risk from a Malaysian gang, rather than returning to Malaysia the very same day.
[14] [Sources deleted];
[15] [Sources deleted.]
Another problem is that it is difficult to reconcile the applicant’s timeline of events with other aspects of his personal history. I have already noted the problem of how the applicant’s travel to [Country 2] and his final visit to [Country 1] disappeared from his account of events when he was asked to provide a detailed step-by-step account of where he was, and what he was doing, over the period between from his January 2016 visits to [Country 1] and his [August] 2016 departure from Malaysia for Australia. The other problem is the applicant’s work history. At the May 2024 hearing the applicant claimed that he lost his job around the time of the death of Mr A (which he said occurred in August/September 2015) and that a few months later found a work opportunity in [Country 1] (which, if true, would mean that applicant’s [number] days of January 2016 entry and exit visit pass stamps for [Country 1] were the result of this employment). As has been discussed above, the applicant also claimed that some months later he worked for a month in [Town 2] for a [product 1] company named [Employer 1]. I note, however, that this does not align with what the applicant stated about his employment history in his September 2017 protection visa application. For, in September 2017, the applicant indicated that from June 2015 to March 2016 he was employed as [an occupation 1] with [Employer 2] in [Town 1]. He was then entirely unemployed until August 2016 when he began work at a [factory] in [Country 1] (and if so, this would mean that the applicant had just one day of employment in [Country 1]; since there is only one August 2016 entry stamp on in his passport).
At the May 2024 Tribunal hearing I put it to the applicant that in his 2017 protection visa application he had indicated that his work history began in June 2014 working as [an occupation 1] in [Location 1] until May 2015, and that from May 2015 until March 2016 he was working in [Town 1], and it was after this that his employment in [Country 1] occurred. The applicant agreed this had been his employment before coming to Australia, but that he could not quite remember when all of this occurred. I later put it to the applicant that his his 2017 protection visa application made no mention at all of his having ever worked in [Town 2] (the location where the applicant claimed he had been in hiding in what would been around April/May 2016). The applicant responded that he may not have mentioned this before, but he did remember it.
Thus, the applicant’s evidence about all of this has been often conflicting and/or inconsistent, and has proved generally unpersuasive, and it has not overcome the very serious doubts that arise from how in September 2017 the applicant claimed to fear harm from a gang as a result of causing severe damage to the vehicle of one of its members, but then in May 2024 claimed to fear harm because he had been blamed by the gang for a vehicle accident which caused the death of a gang member, following which he was compelled by the gang to smuggle goods which he threw away, and which the gang wants returned, such that the applicant fears harm from the gang on this basis also. I do not accept that any of this occurred. It may well be that the applicant has a friend named [Mr B] who, following the applicant’s arrival in Australia, has been arrested and sentenced to a period of imprisonment for attempting to smuggle goods into [Country 1]. But I do not accept that the applicant was ever involved in any such activities himself, or that there is any adverse interest in him on the part of a gang in Malaysia or any other actor. Given this, and given that the country information before me does not indicate that Malaysian citizens face a real chance or a real risk of harm from criminal gangs in Malaysia in general terms (and given that the applicant has raised no concerns about returning to Malaysia more broadly), I am not satisfied that the applicant would for the foreseeable future face a real chance or a real risk of harm of any kind for any reason if he were to return to Malaysia.
Does the applicant satisfy the refugee criterion for protection?
For the reasons given above, I am not satisfied that the applicant would, for the foreseeable future, face a real chance of serious harm in all areas of his receiving country were he to return to Malaysia. I am therefore not satisfied that the applicant has a well-founded fear of persecution.
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).
Does the applicant satisfy the complementary protection criterion for protection?
For the reasons given above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that the applicant will suffer significant harm.
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)(aa).
Other considerations
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision under review.
Date of Hearing
: 3 May 2024
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.
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