1829402 (Refugee)

[2025] ARTA 1573

1829402 (REFUGEE) [2025] ARTA 1573 (14 MAY 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  1829402

Tribunal:General Member M. Tubridy

Date:14 May 2025

Place:Sydney

Decision:The Tribunal affirms the decisions under review.

Statement made on 14 May 2025 at 1:04pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – fear of kidnapping – economic conditions – employment – state protection – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 424, 499
Migration Regulations 1994 (Cth), Schedule 2

Any 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 October 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The application for review was lodged with the Administrative Appeals Tribunal (AAT) on 8 October 2018. 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 ART 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.[1]

   [1] References in this decision to ‘the Tribunal’ are intended to include both the AAT and the ART.

   BACKGROUND

2. On 8 October 2018 the first named applicant ([Applicant 1]) and the second named applicant ([Applicant 2]) lodged an application with the AAT for review of a decision to refuse them a bridging visa. In doing so they provided the AAT with attached copies of the biodata pages of their [Malaysian] passports, and a Departmental file number for the case they were seeking to have reviewed, though they did not attach a copy of the decision they were seeking to have reviewed. Checks carried out by the Tribunal with the records of the Department of Home Affairs (the Department) found no record of a decision to refuse the applicants a bridging visa. All that could be located was a decision to refuse the applicants a protection visa (with the Department having granted the applicants each a bridging visa in association with their protection visa application to enable them to remain in Australia lawfully while their protection visa application was assessed). The Departmental file number which the applicants had provided to the AAT (as the matter they were seeking to have reviewed) matched with the Departmental file number for their protection visa application which had been refused on 4 October 2018. It was thus evident that the matter to be reviewed was the decision to refuse the applicants a protection visa.

3. On 11 October 2018 the AAT emailed the applicants (via the email address they had provided for communication, and which was in the name of [Applicant 2]) and acknowledged receipt of their application for review of the 8 October 2018 decision to refuse them a protection visa. An attached information sheet explained in multiple languages, including in the Malay language, that the Tribunal’s letter required the applicants’ urgent attention and that, if they did not understand this letter, they should call the Translating & Interpreting Service (TIS) so that TIS could help them contact the Tribunal. The AAT advised the applicants that it had requested that the Department provide the Tribunal with all documents and files which they considered to be relevant. The AAT also advised the applicants that they must tell the Tribunal immediately if there were any changes to their contact details or their personal circumstances. An attached information sheet also instructed the applicants that: they should provide the Tribunal with a copy of the Department’s decision if they had not already done this; and: that they should send as soon as they could any material not yet provided which they believed supported their application (including a statement setting out why they disagreed with the delegate’s decision). Nothing was received from the applicants in response.

4. The Department provided the Tribunal with: the March 2018 protection visa application which was lodged by the applicants (and which included the supporting evidence in the form of: the biodata pages of the applicants’ respective passports, and also [Applicant 1’s] Malaysian driving licence, and also documents said to be a marriage certificate in the form of two largely illegible documents); and: the Department’s 9 April 2018 email to the applicants (acknowledging a valid application); and: the delegate’s decision of 4 October 2018, and the Department’s refusal notification of the same day; along with some associated administrative documents. In their March 2018 protection visa application, the applicants presented as a husband and wife who were both nationals of Malaysia, and who feared harm from an unregistered money lender company which had thrown paint on their house, and that [Applicant 1] was at home when he was visited by an unwanted person in the middle of the night who started shouting vulgar words, and who threatened to kidnap his family members, and asked them to make payment. The applicants claimed that they had not sought safety elsewhere in Malaysia and that they were unable to do so because they were constantly being watched and were not allowed to leave the area. They claimed that they did not think the authorities in Malaysia could protect them because most government agencies in their area were in the pockets of the unregistered money lenders.

5. The applicants’ protection visa application presents as having been completed by them in English without any assistance; even though both applicants had indicated in this that they were literate only in the Malay language. At the May 2024 Tribunal hearing [Applicant 2] would clarify that she was literate in English and that she had filled out the application in English and without assistance, including on behalf of [Applicant 1] (under whose name the protection claims were put forward, while [Applicant 2] submitted that her claims were the same as those made by her husband). The protection visa application form advised the applicants that a decision might be made on the basis of the information provided and it was therefore important that all details relevant should be provided at the lodging of the protection visa application. Even so, the applicants provided no express indication in their March 2018 protection visa application as to when the key purported events occurred (other than at some point prior to their departing Malaysia for Australia [in] December 2017), or where they had been residing at the time, or why the money was borrowed, or the amount involved and/or which remained outstanding, or any supporting documentary evidence about their financial dealings or that would support their protection claims more broadly, or (even though both applicants indicated that they were both in regular contact with family members in Malaysia; with both listing their only family members as their respective parents) whether anything significant had occurred after they left their area in Malaysia for Australia.

6. On 9 April 2018 the Department emailed the applicants (via [Applicant 2’s] email address, which had been provided by the applicants for communication with the Department) an acknowledgement that they had lodged a valid application for a protection visa. This also advised the applicants that they had each been granted a bridging visa to allow them to remain in Australia lawfully while their protection visa application was assessed. They were advised that they were required to present in person at the Department’s Melbourne office on 27 June 2018 to have their personal identifiers collected (that is, so that they could be photographed and fingerprinted), and that if they did not do this their protection application would be found to be invalid, and their associate bridging visas would cease in 35 calendar days (an associated Departmental document confirms that the applicants presented at the Department’s Melbourne office on 27 June 2018). The Department’s 9 April 2018 correspondence also advised the applicants that they should have already provided all their claims and supporting information, but that they could provide the Department with any further information they wanted considered. It was underlined to the applicants that a decision on their application could be made at any time on the basis of the information already provided, and without their having the opportunity to provide anything further at an interview. No further information or supporting evidence was provided by the applicants.

7. On 4 October 2018 the delegate refused to grant the applicants protection visas. The delegate considered that it was apparent from country information that while instances of corruption may occur in the police force in Malaysia it was nonetheless also the case that the Malaysian authorities were largely willing and reasonably effective in combating illegal money lending. The delegate considered that effective protection measures were therefore available to the applicants in Malaysia as per s.5LA of the Act and, this being the case, the delegate was not satisfied that the applicants had a well-founded fear of persecution. The delegate also considered that the applicants could obtain sufficient protection from an authority of the country such that there would not be a real risk that the applicants would suffer significant harm. The Department emailed a refusal notification to the applicants (via [Applicant 2’s] email address; and which attached a copy of the delegate’s 4 October 2018 decision to refuse the applicants a protection visa) and advised them that their associated bridging visa would cease in 35 calendar days if they did not apply to the AAT for review. On 8 October 2018 the applicants applied to the AAT for review.

8. Over the course of subsequent years (beginning with a telephone call on 11 January 2019), the applicants would occasionally telephone or email the Tribunal (from [Applicant 2’s] email address) to advise the Tribunal of changes in their residential address, or to request a letter from the Tribunal which would enable their continued access to Australia’s Medicare universal healthcare insurance scheme (that is, a letter which confirmed that the applicants had a matter before the Tribunal), and which the Tribunal would promptly issue to the applicants. But the applicants provided no further information or evidence in support of their application for review of the decision to refuse them a protection visa.

9. On 31 January 2024 the AAT emailed the applicants (at [Applicant 2’s] email address) and advised that their file was now being prepared to be given to a Tribunal Member, and they were requested to complete a pre-hearing information form and return this to the Tribunal within seven days (that is, by 7 February 2024). On 1 March 2024 several emails were received from [Applicant 2’s] email address which requested a further Medicare letter from the Tribunal (which the Tribunal facilitated that same day). A further 1 March 2024 email was then received from [Applicant 2’s] email address (in response to the Tribunal’s request of 31 January 2024) in which the applicants stated that they had only just noticed the Tribunal’s email of 31 January 2024, and asking whether anything would happen because of their late reply. Shortly after this, a further 1 March 2024 email was received from the applicants which attached a completed pre-hearing information form. In this the applicants confirmed they would require an interpreter of the Malay language if they were invited to a hearing. Asked if they wanted to give any more information about their existing claims to protection, or any other reasons why they were afraid to return to their country, the applicants provided no additional information.

10. On 5 April 2024 the AAT emailed the applicants (at [Applicant 2’s] email address) and advised them that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. The applicants were invited to appear before the Tribunal at a hearing scheduled for 24 May 2024 to give evidence and present arguments relating to the issues arising in their case. The applicants were instructed to complete an enclosed ‘Response to hearing invitation’ form and to return this to the Tribunal within seven days, and that if they had documents which they intended to rely on in support of their case that these should be provided to the Tribunal at least 7 days before the hearing, and that any documents not in English should be accompanied by an English translation.

11. On 8 April 2024 the applicants’ emailed the AAT and attached a completed ‘Response to hearing invitation’ form. In this, they indicated that they would be attending the Tribunal hearing scheduled for 24 May 2024, and that they had no health issues that might affect their ability to take part, and that they were not proposing any witnesses for the Tribunal to take evidence from, and that they did not intend to rely on any documents at the hearing, (such as written witness statements, written submissions, country information, or other evidence).

12. On 24 May 2024 the applicants appeared before the Tribunal to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Malay and English languages, and the applicants confirmed that they understood the interpreter. The applicants confirmed they were in good health and well enough to undertake the hearing, and that it was the decision to refuse them a protection visa which they were seeking to have reviewed by the Tribunal. The Tribunal received from the applicants a legible version of their marriage certificate (of which a copy was taken), and further copies of the biodata pages of their respective Malaysian passports, and it took oral evidence from the applicants about their protection claims and relevant background. The Tribunal considered this and put to the applicants for comment some potential concerns about the credibility of their evidence and whether they have ever borrowed money and been threatened as they claimed, and about whether they would be at risk of any harm if they returned to Malaysia. The Tribunal underlined to the applicants that it was particularly concerned by how they had never provided any documentary evidence to establish their claims about their purported dealings with an unregistered money lender (a loan shark, or Ah-Long). The applicants were advised that they should endeavour to provide evidence of this kind and any other evidence or written information they considered would address the Tribunal’s concerns. The applicants were advised that the Tribunal would undertake not to make a decision until after 7 June 2024, and that even after this date the Tribunal would consider any evidence which the applicants provided prior to a decision being made.

13. On 2 June 2024 the applicants emailed a submission to the Tribunal, and this presented several further documents for the Tribunal to consider. But following this the applicants have provided nothing further of relevance to their review, nor have they indicated that they wish for the Tribunal to delay its decision still further to enable them to provide any further evidence (the only subsequent correspondence sent by the applicants have been requests for Medicare letters from the Tribunal, with the most recent of these being received on 4 May 2025). A consideration of the claims and evidence before the Tribunal follows below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for protection visa

14. 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.

15. 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.

16. 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).

17. 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.

18. 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

19. 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

20. Both applicants claim to be nationals of Malaysia, and to have been born citizens of Malaysia to parents who were themselves citizens 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.[2] [Applicant 1] claims he was born [in specified year] in the Malaysian state of Sabah. [Applicant 2] claims she was born in [year] in Kuala Lumpur. They have both provided copies of their Malaysian passports which confirm this and that they are nationals of Malaysia. I am satisfied, and I accept, that the applicants are both citizens of Malaysia, and I find them to be nationals of Malaysia, and I find that Malaysia is the receiving country for both applicants for the purpose of this review.

    [2] 'Federal Constitution of Malaysia', Government of Malaysia, 01 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.

    Fear of unregistered money lender (loan shark, or Ah-Long)

1. The applicants claim to have left Malaysia for Australia in December 2017 out of fear that they or their family members would be kidnapped or otherwise harmed by an unregistered money lender (a loan shark, or Ah-Long) who threw paint on their house, and then made threats to [Applicant 1] that he or his family members would be kidnapped if he did not pay the money owed.

   Country information background

2. In April 2018 DFAT reported of Malaysia and the period in question that unlicenced illegal money lenders known as loan sharks (Ah-Long) were operating very publicly in Malaysia, and it was commonplace for such lenders to post advertisements (on lamp posts and utility boxes) which listed phone numbers and offers of cash loans for MYR10,000 to MYR20,000 (AUD3,100 to AUD6,200). DFAT reported that such loans typically carried a high interest rate of about 30 to 40 percent per month, and an individual who was unable to service a debt from a loan shark might risk physical threats.[3] In December 2019 DFAT added to this that sources reported that an individual who is unable to service a debt from a loan shark risks having their home splashed with red paint (culturally understood as a symbol that an individual has defaulted on a loan shark and brought shame to their family), and/or having their families’ physical safety threatened, and that borrowers and their family members have been shot at gunpoint and had fingers cut off. DFAT was also aware that those in debt to loan sharks have been counselled by intermediaries to place their family in a safe location and travel overseas to earn a foreign income to repay their debt faster, and to reduce risks and shame to their family.[4]

   [3] DFAT, ‘DFAT Country Information Report: Malaysia’, Version 2, 19 April 2018, CIS7B839419347, 3.97.

   [4] DFAT, ‘DFAT Country Information Report: Malaysia’, 13 December 2019, 20191213141745, 3.111.

3. During the years prior to the applicants’ December 2017 departure from Malaysia for Australia there appeared regular reports in the Malaysia media about the arrest of suspected loan sharks by Malaysia’s police; and about the ongoing activities of a police taskforce specifically dedicated to the task combatting loan shark syndicates as part of a crackdown titled ‘Operation Vulture’ (or ‘op Vulture’).[5] In January 2017 a senior police officer overseeing this operation announced that police had launched 2,212 operations against such syndicates in 2016 and had arrested 475 people as a result. The officer expressed the view that those who borrowed from loan sharks should also be blamed because they were creating the demand for such services. But he also said that he hoped the public would give the police information on loan-shark syndicates so action could be taken, and that the number of reports lodged against Ah-Long had seen a steady rise: from 735 cases in 2014, to 951 in 2015, and 1,343 in 2016.[6]

   [5] Borneo Post, ‘Home Ministry to spearhead fight against loan sharks’, 30 March 2016, ; Malay Mail, ‘Police rescue man abducted by “Ah Long”’, 6 May 2016, ; The Sun, ‘Police bust largest money-lending syndicate’, 23 May 2016, ; Arif, Z.M. ‘Biggest Ah Long syndicate made RM8 million a month’, 23 May 2016, ; Malay Mail, ‘Two women among 23 suspected loan sharks detained by police since January’, Malay Mail 15 August 2016, ; NST, 'Six arrested in loan shark syndicate crackdown', 16 August 2016, CX6A26A6E8048; Martha, ‘11 suspects arrested in police raid against loan sharking’, Online Citizen, 22 December 2016, ; Bernama, ‘2 ‘Ah Long’ arrested for intimidating borrowers’, FMT, 29 December 2016, ; FMT, ‘Four men fined RM8K for causing mischief, intimidation’, 4 November 2016, ; Bernama, ‘Cops bust illegal moneylending syndicate in Kuantan’, FMT, 18 February 2017, ; Kim, B.K. ‘Two loan sharks arrested in a Tampoi supermarket’, NST, 12 March 2017, ; The Sun, ‘Almost 2,000 illegal Ah Long posters pulled down in Ipoh’, 17 March 2017, ; NST, ‘Need for greater deterrence’, 27 May 2017, ; Bernama, ‘Teenager among detained in Melaka “Ah Long” syndicate suspects’, Awani Interntional, 21 June 2017, ; NST, ‘“Datuk” leader of Double Seven gang arrested in special operation’, 6 July 2017, ; Bernama, ‘Police bust “ah long” syndicate in Pahang’, Awani International 14 July 2017, ; Malay Mail, ‘Datuk among 35 nabbed in bust targeting illegal money-lending syndicates’, 25 August 2017, Shahrudin, H.S. ‘Menace on the rise’, NST, 24 January 2017,

4. In April 2018 DFAT was unable to verify the likelihood of borrowers seeking police protection, or the level protection offered by police at that time; though it was noted that amendments in 2003 and 2011 to Malaysia’s Moneylenders Act 1951 had increased police investigative powers against alleged loan sharks, and that individuals involved in illegal moneylending activities in Malaysia could face a large fine and/or a jail term of up to five years, and that Malaysia’s police had made several high-profile arrests and investigations of syndicates in 2017.[7] In December 2019 DFAT noted that authorities tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice.[8] In its most recent assessment of the situation (published in June 2024) DFAT reported that those who do not repay loans face serious harassment (notably the public shaming of debtors by splashing their house with red paint, and posting pictures of their identity documents on telegraph poles), and that on rare occasions victims of loan sharks have faced violence or have been sold into slavery. DFAT currently assesses that state protection is available to victims of loan sharks, but it is often ineffective as being the victim of a loan shark is often perceived as a moral failing, such that some police will not act to protect them.[9]

   [7] DFAT, ‘DFAT Country Information Report: Malaysia’, Version 2, 19 April 2018, CIS7B839419347, 3.99-3.101.

   [8] DFAT, ‘DFAT Country Information Report: Malaysia’, 13 December 2019, 20191213141745, 3.112.

   [9] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.152-3.153.

5. Even so, and even though some police officers may be unwilling to deploy police resources for the specific purpose of guarding debtors against the possibility of loan shark retribution, it is also the case that Operation Vulture continues to see Malaysia’s police arrest and prosecute hundred of loan sharks each year, and that thousands of persons lodge complaints about loan sharks with Malaysia’s police (43,824 such complaints were received between January 2014 to August 2023).[10] This noted, and 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.[11]

   The March 2018 protection visa application

   [10] Bernama, ‘801 loan sharks arrested this year, over RM2.92mil in loans’, FMT, 9 September 2021, ; Ignatius, C. ‘Operation Vulture: 898 Ah Longs Arrested, 196 Charged in Court’, Business Today, 11 October 2023, ; Zalani, Z. ‘Police say already booked 777 loan shark cases this year’, 26 November 2024, ; Rani, A.A. ‘Ah Long henchman jailed 11 years for torching house and vehicle’, NST, 30 December 2024,

   [11] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 5.5-5.6.

6. As has been noted above, in their March 2018 protection visa application, the applicants presented as a husband and wife who were both nationals of Malaysia, and who feared harm from an unregistered money lender company which had thrown paint on their house. It was submitted that [Applicant 1] was at home when he was visited by an unwanted person in the middle of the night who started shouting vulgar words, and who threatened to kidnap [Applicant 1’s] family members if payment was not made. The applicants indicated that they had not sought safety elsewhere in Malaysia, and that they were unable to do so because they were constantly being watched and were not allowed to leave the area. They claimed that they did not think the authorities in Malaysia could protect them because most government agencies in their area were in the pockets of the unregistered money lenders.

7. In their March 2018 protection visa application the applicants provided no express indication of when the key purported events in their protection claims had occurred (other than at some point prior to their departing Malaysia for Australia [in] December 2017), or where they had been residing at the time, or why the money was borrowed, or the amount involved and/or which remained outstanding, or any supporting documentary evidence about their financial dealings or that would support their protection claims more broadly. The applicants indicated that they were both in regular contact with family members in Malaysia (with both listing their only family members in Malaysia as their respective parents) but they gave no indication that these people had come to any harm, nor did they explain why they (the applicants) had felt able to leave their family members behind in Malaysia given the threats which had been purportedly made to kidnap their family members. The assertion that they had been unable to leave their area (because they were being constantly watched) was at the very least an exaggeration, since the applicants had plainly been able to leave their area when they left not only this but Malaysia entirely when they departed for Australia.

8. The applicants also provided little information in response to many of the application form’s requests for information about their respective personal histories. Asked to list all residential addresses for the last 30 years, and the dates for these, the applicants listed only their then current address in Australia. This noted, some indication of their residential history in Malaysia could be made out from the applicants’ responses about where they had been born, and where they had attended high school. [Applicant 2] indicated that she was born in Kuala Lumpur and that she had attended [School 1] in Klang, Banting (which is located on the coastal fringe of Malaysia’s Selangor State and a short distance from Kuala Lumpur).[12] [Applicant 1] indicated that he was born in Keningau in Malaysia’s Sabah State, and that he also attended high school there at [School 2].[13] It was thus apparent that the applicants originated from opposite sides of Malaysia (as Kuala Lumpur and the surrounding state of Selangor are part of peninsular Malaysia at the country’s eastern extremity, while Sabah is located on the island of Borneo at Malaysia’s western extremity).[14]

   [12] For a map of locations in the State of Selangor which surrounds the Federal Territory of Kuala Lumpur [details deleted], see: ‘Selagor’,

   [13] For a map (and find Keningau located inland south of Kota Kinabalu), see: Sabah State Government, ‘Introduction’,

   [14] For a map of Malaysia, see: DFAT, ‘DFAT: Country Information Report: Malaysia’, 29 June 2021, 20210629092134, p.2.

9. The applicants indicted that they were married [in] November 2016 (that is, around a year prior to their [December] 2017 departure for Australia) in Selangor, and their attached marriage certificate (although largely illegible) appeared to confirm this date, and to list not only [Applicant 2] but also [Applicant 1] as residing in Selangor at that time, with [Applicant 2] residing at an address in [Town 1], while [Applicant 1] was residing at an address in [Town 2] (this information was confirmed when a clear copy of this document was obtained from the applicants at the March 2024 hearing). If so, this would mean that at some point [Applicant 1] had moved from Sabah to Selangor, and that he came to reside in the town of [Town 2] which I note neighbours the town of [Town 1].[15] The same [Town 2] residential address was listed on [Applicant 1’s] attached January 2017 issued Malaysian driving licence, and this suggested that following their November 2016 marriage the applicants may have resided together in Selangor for at least several months.

   [15] [Source deleted.]

10. However, in response to the application form’s request for a complete history of their employment (including dates for this, and any periods of unemployment, and the full address of their employer) the applicants made only one entry each (under current employment) and without any starting date, and with [Applicant 2] being listed as currently employed as [an occupation 1] at a [supermarket] located in Kuala Lumpur (neighbouring Selangor in peninsular Malaysia), and with [Applicant 1] being listed as currently employed as [an occupation 2] with a company located in Keningau in Sabah (that is, in his original hometown on the opposite side of Malaysia on the island of Borneo). Further, the applicants indicated that when they obtained their passports (on [a day in] 2017 for [Applicant 2], and then two months [later] for [Applicant 1]) these were issued to them in UTC Keningau (which is the Malaysian government’s service provision Urban Transformation Center in Keningau in Sabah).[16] They also indicated that when they departed Malaysia for Australia [in] December 2017 they did so from Kuala Lumpur International Airport (KLIA; which is located just to the south of Kuala Lumpur in Selangor State).[17]

    [16] My Government, ‘What is UTC?’, UTC, ‘UTC Keningau’,

    [17] See: ‘Selagor’,

11. It was thus not entirely clear where the applicants had been residing in the lead up period to their [December] 2017 departure from Malaysia; though it appeared that during 2017 they were initially in Selangor in [Town 2], and then later in Keningau in Sabah for at least the period [from] September 2017 to [November] 2017, before returning to Selangor at some point to depart Malaysia via KLIA [in] December 2017.

    The March 2024 hearing & the submission of June 2024

12. At the May 2024 Tribunal hearing I first spoke with [Applicant 2] about her personal history and any reasons she might have to fear returning to Malaysia, and such details as she could provide about what had purportedly occurred. Once this line of questioning was completed and I was satisfied that [Applicant 2] had had the opportunity to independently give an account of her personal history and any reasons she might have to fear return to Malaysia, I spoke with [Applicant 1] about what his personal history had been, and any reasons he might have to fear returning to Malaysia. I then invited [Applicant 2] back into the hearing room so that she was present when I invited [Applicant 1] to provide a detailed account of what had occurred with respect to their claim to fear harm from a money lender (who [Applicant 1] referred to as an Ah Long, but whose name he said he did not know), and such matters as how the borrowed money had been spent, and why [Applicant 1] had made no repayments while in Australia, and why no documentary evidence of their financial dealings had been provided. I raised various concerns with [Applicant 1], and at the conclusion of this I asked both applicants if they had anything to add to what they had said. I then gave the applicants an overview of what I considered were the key concerns with respect to the question of whether their claims about what had occurred could be accepted, and I invited them to provide any further written or documentary evidence they wished which they considered could establish their claims and resolve the concerns discussed.

13. When I spoke with [Applicant 2], she confirmed that she originated from Selangor. She said that from her childhood she had resided in [Town 1], and that her education began with kindergarten and ended with [grade] in high school in around [specified year]. When she was around five years of age her father divorced from her mother, and she had no further contact with him and did not know his whereabouts. [Applicant 2] said she began paid employment at the age of [age] as [an occupation 1] in a supermarket, and she did work of this kind at different places until November 2016 when she married [Applicant 1]. She then resided with him in [Town 2]. She was unsuccessful in finding further employment while in Malaysia though she applied for a job in [specified businesses]. In Australia she had first worked in a [business 1], and she was currently working as a general hand in a [business 2]. She had two children from a previous marriage and when she and [Applicant 1] left for Australia her children remained in Malaysia with her mother in [Town 1]. [Applicant 1] would later add to this that his stepchildren (that is, [Applicant 2’s] children) also stayed with [Applicant 2’s] grandmother in Johor State, and that they sometimes also staying with their biological father’s mother in Terengganu State. With respect to other family members, [Applicant 2] said that she also had [specified siblings who] continued to reside in [Town 1], but in their own homes.

14. When I spoke with [Applicant 1], he confirmed that he originated from Keningau in Sabah. He received a total of [number] years of education, and this ended when he was [age]-years-of-age after he completed [grade] (that is, [in] high school).[18] When he was around [age]-years-of-age he and his family moved from Sabah to [Town 2] in Selangor. At [age]-years-of-age he began paid employment at a workshop and he did this until he was [age]-years-of-age. After obtaining his driving licence he began to work as [an occupation 2], and before coming to Australia he had earned around MYR1,800 to MYR2,000 per month doing this work (and which I note would have meant [Applicant 1] was earning more than Malaysia’s then minimum wage of MYR1,000 per month, but reportedly only enough for a household to scrape by on at that time with respect to the cost of living for a family of four persons).[19]

    [18] WENR, ‘Education in Malaysia’, 6 January 2023, ; ‘International Grade Comparison Chart’, ;

    [19] UNHRC, ‘Report of the Special Rapporteur on extreme poverty and human rights on his mission to Malaysia’, A/HRC/44/40/Add.1, 6 April 2020, pp.2-3, 7-8, ; OECD, ‘OECD Economic Surveys: Malaysia’, November 2016, p.118, ; Demery, D. ‘Changing perspectives on Malaysia’s Poverty Line Income’, 2 May 2024, ; Bernama, ‘Median monthly household income of Malaysians increases to RM5,228 in 2016’, 10 October 2017,

1. [Applicant 1] said that his employment as [an occupation 2] in Malaysia ended because of a drop in demand, and that he had been unsuccessful in finding further employment of this kind. Asked whether, during this time in Malaysia, he attempted to find employment of some other kind, [Applicant 1] said he had not. [Applicant 1] said that, after he arrived in Australia, he initially found work picking [fruit] for six months, and he had then come to Sydney where he began working in construction and had now been doing this for around six years. He had previously earned around AUD180 per day doing this work, and over the recent year had been earning AUD300 per day (respectively around MYR500 and then later MYR800 per day).[20] Asked about his family members, [Applicant 1] said that his parents and his [siblings] all remained in [Town 2] in Malaysia, and all in their own homes. He said that when he was most recently residing in [Town 2] he had been renting a home along with his brother for which they each paid MYR250 per month (a total of MYR500 per month), though his brother now resided elsewhere in [Town 2].

   [20] 180 AUD to MYR - Convert Australian Dollars to Malaysian Ringgits, ; 300 AUD to MYR - Convert Australian Dollars to Malaysian Ringgits,

2. Both applicants submitted that after their marriage they had been residing together in [Town 2] in Selangor when [Applicant 1] was retrenched from his employment. Both applicants submitted that [Applicant 1’s] earnings were their only income at the time, and that they were also responsible for providing for [Applicant 2’s] two children. Both applicants submitted that, after [Applicant 1] was retrenched, he had borrowed MYR20,000 from an Ah-Long to pay for the rent for their house (which [Applicant 1] said was shared with his then cohabiting brother at MYR250 each per month) and other household expenses, and that repayment was due three months after when the loan was taken out (with [Applicant 1] explaining that the terms of the loan were such that he was required to pay the Ah-Long MYR25,000 inclusive of interest). Both applicants submitted that three months later [Applicant 1] had been unable to repay the loan, and so the Ah-Long had thrown paint on their home and had threatened [Applicant 1] by telephone that, if he did not pay what was owed, then either he or one of his family members would be kidnapped. Both applicants submitted that they were then given MYR10,000 by [Applicant 1’s] sister which they gave to the Ah-Long by bank transfer, and that the Ah-Long then gave [Applicant 1] a further three months by which to pay their debt.

3. Both applicants submitted that following this they left Selangor for [Applicant 1’s] original hometown of Keningau in Sabah. [Applicant 1’s] sister then suggested that the applicants go to Australia. The applicants then departed Malaysia via KLIA accompanied by [Applicant 1’s] sister who paid for all of their flights (with [Applicant 1] submitting that his sister was able to fund their travel to Australia, but that his sister had not had sufficient money to assist them in repaying the remainder of their debt). [Applicant 1] and [Applicant 2] remained in Australia, while [Applicant 1’s] sister returned to Malaysia. Both applicants submitted that no further repayments had been made to the Ah-Long, such that they remained in debt and at risk from the Ah-Long. Both applicants claim to fear returning to Malaysia because the Ah-Long knows who [Applicant 1] is ([Applicant 1] said that he had to provide proof of his identity when he met the Ah-Long at the Ah-Long’s office in [Town 1] to take out the loan in cash), such that the Ah-Long would be able to find him if they returned, and in so doing might also find [Applicant 2] and their family members (the applicants asserted that the reason no harm had come to their family members in Malaysia was because the Ah-Long did not know who or where their family members were). Both applicants claimed to fear that they or their family members would be kidnapped or physically harmed in some other way by the Ah-Long. [Applicant 2] said that she also feared being further shamed.

4. But when asked for information about when the key incidents in their protection claims had occurred, both applicants said they were unsure or at least not entirely sure of when some of the key events had occurred. When I spoke with [Applicant 2], and when I asked if she had ever resided anywhere other than Selangor, she initially said that before travelling to Australia she had stayed in her husband’s village (that is, her husband’s original hometown of Keningau) in Sabah for a month. But she when asked about why her passport was issued to her in Sabah, she said that this was because she had gone there after [Applicant 1] was threatened. The problem with all of this is that [Applicant 2’s] passport was issued to her on [a day in] 2017 and thus [months] prior to the [December] 2017 departure for Australia. If she had been in Sabah for only a month this would mean that she was back in Selangor [several] months before she and [Applicant 1] departed Malaysia, or two months before this if she and [Applicant 1] returned to Selangor after he was issued his passport from Sabah [later in] 2017. But what [Applicant 2] appeared to be implying was that she and [Applicant 1] were together in Sabah for just a month immediately prior to their [December] 2017 departure, which would mean they were in Sabah no earlier than late November 2016.

5. I asked [Applicant 2] to estimate when [Applicant 1] had borrowed money from the Ah-Long. She said this occurred after [Applicant 1] was retrenched and around six months after their marriage. I confirmed with [Applicant 2] that she and [Applicant 1] had been married [in] November 2016, and that this would mean [Applicant 1] borrowed the money in around May 2017. [Applicant 2] said this was correct if she was not mistaken. Asked when the Ah-Long had made the threats and demanded repayment, [Applicant 2] said this occurred three months after the money was borrowed (if so, in around August 2017). I put it to the [Applicant 2] that from what she had said, this would mean that some three months elapsed before she and [Applicant 1] went to Sabah (that is, between August 2017 and December 2017), and during which time no harm had come to them. [Applicant 2] initially responded that this was not correct but, after I recounted and mapped out her claimed timeline to her, she agreed this was correct. She then submitted that the reason no harm had come to them during these three months (that is, after the threats were made, and prior to their going to Sabah) was because they had paid the MYR10,000 to the Ah-Long, and because of this the Ah-Long had given them another three months to repay the debt.

6. Thus, [Applicant 2] presented a timeline which would mean that [Applicant 1] was retrenched and then borrowed money from an Ah-Long in around May 2017. Three months later, in around August 2017, the Ah-Long threatened [Applicant 1] and they paid MYR10,000 and [Applicant 1] was given and additional three months to pay, and before this additional three months elapsed the applicants went to Sabah (in around late November 2017) and spent a month there before returning to Selangor to depart Malaysia from KLIA [in] December 2017. This, however, does not align with how [Applicant 2] also claimed that her passport was issued to her from Sabah because she was there are the time (since her Sabah issued passport was issued on [a specified day in] 2017, and [Applicant 1’s] Sabah issued passport was issued [later in] 2017).

7. When I spoke with [Applicant 1], he said that before he travelled to Australia he went to Sabah for a period of time and then flew back to Selangor and then he left for Australia, but he could not remember when. Asked to estimate how long he was residing in Sabah before leaving Malaysia for Australia, he estimated about two to three months, but he reiterated that he could not remember. I note, nevertheless, that this period of time would align with how [Applicant 2’s] passport was issued in Sabah on [the day in] 2017, and with how his own passport was issued in Sabah two months later [in] 2017. Asked if he could estimate the date when he did his last day of work as [an occupation 2] in Malaysia, [Applicant 1] said this had been 2017 but he could not remember the month. Asked to estimate this in term of how long it was that he worked his last day as [an occupation 2] before coming to Australia, [Applicant 1] estimated this was four to five months before coming to Australia (if so, then [Applicant 1] was retrenched in around August or July 2017). Asked to estimate when it was that he had borrowed the money (in terms of how many months elapsed between that time and when he departed for Australia), [Applicant 1] estimated three to four months (if so, in around September or August 2017).

8. Asked what occurred after he had taken out the loan, [Applicant 1] submitted (as per [Applicant 2’s] evidence also) that the terms of the loan required that he repay the money three months later, and that he had been unable to pay and so the Ah-Long had thrown paint on their home, and the next day had called him and threatened that either he or one of his family members would be kidnapped if they did not pay their debt. [Applicant 1] said that it was after this that his sister gave him the MYR10,000 to pay to the Ah-Long, and after this they went to Sabah. If so, and if the money was borrowed in August or September 2017, then the threats would have occurred no earlier than three months later in October or November 2017, leaving only a month or two for the applicants to spend in Sabah. This somewhat better aligned with [Applicant 2’s] estimate that they were in Sabah for only a month, but there then remains the problem that [Applicant 2’s] passport was issued in Sabah on [the day in] 2017 (which according to [Applicant 1’s] timeline would have been around the time the purported loan was taken out, while [Applicant 2’s] timeline would have the loan taken out in around May 2017).

9. Moreover, later in the hearing (and at which time [Applicant 2] was also present) [Applicant 1] would assert that they spent the MYR20,000 within two months, with MYR5,000 being given to his brother to repay him for covering [Applicant 1’s] cost of living for the six months he had previously been out of work and without income. If so, this would mean that at around the time the loan was taken out (which was at least three months to four months or more before the applicants departed Australia), [Applicant 1] had already been unemployed for six months. For this to be the case, [Applicant 1] would have had to have been retrenched more than six months before leaving Malaysia for Australia, and something like nine months or more before departing the country. I put it to [Applicant 1] that earlier he had indicated that he worked his last day as [an occupation 2] around four to five months before coming to Australia (this would allow for only a maximum of five months of unemployment in Malaysia, even putting aside the matter of the claims that loan was taken out from an Ah-Long and the months which followed this before departure), and I asked [Applicant 1] to explain how he could have been unemployed for six months. [Applicant 1] did not alter his estimation of what had occurred, and he responded with no more than to submit that it had been difficult to find work. When [Applicant 2] was later asked if she wished to add anything about what had been discussed, she said she did not.

10. Thus, and although the applicants did provide consistent information about what had occurred in various respects, they also both provided timelines of events which were very muddled, and they both at different points indicated that they felt they could not remember when or over what period of time some events had occurred, or that they were not absolutely sure. Given the potential difficulties involved in remembering when events occurred, particularly after the passage of more than six years, I have not drawn any adverse conclusions because of the muddled nature of some of aspects of the applicants’ evidence about these matters. But, at the same time, I consider that (if only because of the applicants’ own indications as to being unsure of exactly where they were, and for how long, during 2017) that greater weight is to be given to such objective evidence as is available. Given this, and putting aside for the moment the question of exactly when the applicants changed location and why, I consider that during the period prior to their November 2016 marriage the applicants were residing in Selangor with [Applicant 2] in [Town 1] and [Applicant 1] in [Town 2] (as per their November 2016 marriage certificate), and that following their marriage they were residing together in [Town 2] until at least January 2017 (as per [Applicant 1’s] January 2017 issued Malaysian driving licence), and that at some point after this they went to Keningau in Sabah before [date] (the date upon which [Applicant 2’s] passport was issued from UTC Keningau) where they remained until at least [date] (the date upon which [Applicant 1’s] passport was issued from UTC Keningau) before returning to Selangor to depart Malaysia for Australia via KLIA.

11. I note also, that at the May 2024 hearing the applicants provided evidence consistent with each other about what occurred with respect to how the Ah-Long made threats against [Applicant 1] when [Applicant 1] was unable to repay the loan after three months, though their account was different to what was stated in their March 2018 protection visa application. For, in March 2018, it was submitted that [Applicant 1] was at home when he was visited by an unwanted person in the middle of the night who started shouting vulgar words, and who threatened to kidnap his family members, and asked them to make payment. But at the May 2024 hearing neither applicant made claims of this kind (even though [Applicant 1] was asked to provide an exhaustive account of everything that had occurred to him with respect to his having taken out a loan). Instead, both applicants claimed that the threats which were made to [Applicant 1] were made by telephone; with [Applicant 1] stating that he received threating calls and ultimately, after he ceased answering these, a threatening SMS text message; while [Applicant 2] also submitted that the Ah-Long had called [Applicant 1], and that she might also be able to provide evidence of what had occurred in the form of a message sent by the Ah-Long. The difference with respect to the March 2018 version (that the threats were made by an unwanted person who visited [Applicant 1] in the middle of the night) can thus potentially be put aside as exaggeration.

12. There are, however, other matters which I have concluded do raise serious doubts about the applicants key claims, and to such an extent that I am not satisfied, and I do not accept, that [Applicant 1] ever did take out a loan from an Ah-Long, or that threats ever were made by the Ah-Long against him and his family members (including [Applicant 2]) because he had been unable to repay the loan.

13. First and foremost, there is the matter of the applicants having never provided any documentary evidence to establish what their financial circumstances have been, let alone that they became indebted to a loan shark and were threatened in this regard because they were unable to repay a loan. I note, in this regard, that when I spoke with [Applicant 2] at the hearing, I put it to her that if her sister-in-law had purchased the air tickets for her and [Applicant 1] then there would have to be some proof of purchase which would establish this. [Applicant 2] said this would be with her sister-in-law. I put it to [Applicant 2] that she should provide this evidence. [Applicant 2] said she would try to do this. I then asked [Applicant 2] if she was able to provide any evidence of the loan which was made by the loan shark. [Applicant 2] said she did not know, and she did not think so, but then said she thought she might be able to do this, and she would search in her phone (her mobile telephone) in his regard. I asked [Applicant 2] what the method was by which her husband had made the repayment on this loan. [Applicant 2] said this was done by bank transfer. Asked if she was able to provide evidence of this, [Applicant 2] said she did not have the receipts for these transfers, but she did have messages about this. Asked why she did not have bank receipts for these transfers, [Applicant 2] said this was because she did not know where she had placed them. [Applicant 2] said she would try to ask the bank. Asked which bank they had used, [Applicant 2] said this had been [Bank 1].[21] Later in the hearing I asked [Applicant 1] about this (and at which time [Applicant 2] was also present in the hearing room), and he said that the bank transfer had been made using [Bank 2].[22] I put it to [Applicant 1] that [Applicant 2] had indicated earlier during the hearing that the transfer was made via [Bank 1]. [Applicant 1] said he did not quite remember.

    [21] [Source deleted.]

    [22] [Source deleted.]  

14. I note, with regard to all of this, that Malaysia has long had sophisticated banking payment and settlement systems in place (regulated by the Central Bank of Malaysia; the Bank Negara Malaysia) which require that banks make available transaction history and account balance records to their account holders.[23] Regardless of whether the applicants were making transfers in 2017 via [Bank 1] or via [Bank 2], it is difficult to believe that that they would be unable obtain and provide documentary evidence from one or the other institution about what had occurred if, in fact, an account belonging to [Applicant 1] (and/or [Applicant 2]) had been credited with MYR10,000 (either as a cash deposit or by way of transfer from [Applicant 1’s] sister) in the latter part of 2017, and then had seen the same amount debited by way of a transfer to the account of another party (the purported loan shark).

    [23] Bank Negara Malaysia, ‘Financial Stability and Payment Systems Report 2011’, 2012, p.97, ; Bank Negara Malaysia, ‘Overview of Financial Inclusion in Malaysia’, July 2021, p.12,

15. At the conclusion of the May 2024 hearing, I underlined to the applicants that their having provided no documentary evidence in support of their protection claims was a real concern. The applicants subsequently made a single submission to the Tribunal in this regard (on 2 June 2024) and in this regard they attached was what said to be evidence that [Applicant 1’s] sister had purchased his flight ticket for him. Attached in this regard was what presented as a message from [Airline 1] which confirmed that a seat for [Applicant 1] had been booked on a flight departing Melbourne for Kuala Lumpur on [a day in] January 2018. The document is thus evidence that a seat was purchased on a flight that would have enabled [Applicant 1] to return to Malaysia from Australia. But the attached document provides no details as to the identity of the party who paid for this, or of who paid for the applicants’ flights from Malaysia to Australia, and no documentary evidence has been provided to establish that that the applicants received and then transferred MYR10,000 to another party via a bank account in the latter part of 2017, nor an explanation of why this has not been provided, nor have the applicants provided any evidence that they made any enquiries in this respect with either [Bank 1] and/or [Bank 2]. I consider that this raises serious doubts about whether [Applicant 1] ever took out a loan from an Ah-Long as the applicants claim.

1. Next, there is the matter of the reasons the applicants gave with respect to their submitting that they have made no further repayments of their purported debt to an Ah-Long since the purported payment of the MYR10,000 and their arrival in Australia [in] December 2017. When I asked [Applicant 2] why she had not done this, she said this was because she did not want to have any contact with them (the money lenders). I did not find this persuasive. For, and while plainly in such circumstances a debtor would not want to have any further contact with a loan shark, it is nonetheless difficult to believe that a person in [Applicant 2’s] situation would not undertake the opportunity (notwithstanding the unpleasantness of this) to attempt to repay at least some if not all of their remaining debt (and as noted above Malaysian nationals who go abroad because of loan shark debts are known to be counselled to do this so as to be able to earn a foreign income to repay their debt faster, in addition to reducing risks and shame to their family),[24] particularly given that she and [Applicant 1] have not yet been successful in obtaining a permanent visa for Australia that would guarantee their not having to return to Malaysia, and given that their initial application for such a visa was refused by the Department in October 2018.

   [24] DFAT, ‘DFAT Country Information Report: Malaysia’, 13 December 2019, 20191213141745, 3.111.

2. When I asked [Applicant 1] about why, since arriving in Australia, he had not repaid any further money to the Ah-Long in Malaysia (and I subsequently confirmed with [Applicant 1] that he and [Applicant 2] had an active account with an Australian bank, and that he had occasionally transferred money to Malaysia), [Applicant 1] said that this was because he had lost contact with the Ah-Long. I put it to [Applicant 1] that he would have had to have had the bank details of the money lender (we had prior to this been discussing his claim to have repaid the MYR10,000 by bank transfer), and I asked [Applicant 1] why he would not have used these bank details to complete his payments to the Ah-Long. [Applicant 1] said that the phone he had used for this had broken. I put it to the [Applicant 1] that he would have had account records with the bank which he used to make his money transfers to the Ah-Long. I put it to the [Applicant 1] that, this being the case and regardless of whether a mobile phone had broken, he would have been able to access those details from his bank. [Applicant 1] said he did not know how to do this. I did not find this persuasive. I find it implausible that, in such circumstances and if all of this had actually occurred, it would not have occurred to [Applicant 1] to contact the bank or banks he had used in Malaysia to ask them for assistance in locating the details of an account to which he had previously made such a transfer of MYR10,000 in 2017.

3. Next, there is the matter of the applicants’ claim that [Applicant 1] borrowed MYR20,000 from an Ah-Long, and that when repayment was due three months later they had already expended the MYR20,000 in its entirety, such that they were not only unable to repay the loan, but reliant upon [Applicant 1’s] sister for the MYR10,000 which they purportedly paid to the Ah-Long to placate him. I note, in this regard, that when I asked [Applicant 1] to estimate exactly how long the MYR20,000 had lasted, he estimated that it was gone in two months. I then asked [Applicant 1], and with [Applicant 2] present in the hearing room also, to explain how the MYR20,000 could have been exhausted so quickly on their rent and daily needs (as noted above, [Applicant 1] indicated that his share of the rent was MYR250 per month). [Applicant 1] responded that he had had a gambling problem. Asked why he had said nothing about this earlier, [Applicant 1] said he had not known how to tell the Tribunal about this. I asked [Applicant 1] to explain in detail what he had done with the MYR20,000. [Applicant 1] said he kept about MYR2,000 to MYR3,000 for himself for his needs and for gambling, and that he also had small debts to friends of around MYR100 each and totalling MYR500. I put it to [Applicant 1] that this nevertheless left MYR17,000. [Applicant 1] said he had given around MYR10,000 to his wife for daily needs, and that he had also given MYR5,000 to his brother because he ([Applicant 1]) been out of work for six months since he was married, and so had been unable to pay for rent or food or the utility bills. As has been discussed already, I put it to the applicant that earlier in the hearing he had said that his last day of employment as [an occupation 2] had been about four to five months before he came to Australia, and I asked the applicant to explain how it was that he could have been unemployed six months before coming to Australia. [Applicant 1] did not alter his estimation, and he responded by submitting that it had been difficult to obtain work.

4. At the conclusion of the hearing, I underlined to the applicants that among the concerns that might make it difficult for me to accept their claims was that they had provided no evidence of any of the occurrences they claimed had taken place, and that it was difficult to believe that the amount of money that had borrowed could have been expended in the manner they claims, and that it was difficult to believe that if their claims were true, and they really feared harm in Malaysia, they would not have repaid at least some of the money they owed while they had been here in Australia. I asked both [Applicant 1] and [Applicant 2] if either of them wanted to say anything further about these matters before the hearing was concluded. Both said that they did not. I explained to the applicants that if any inconsistencies in their evidence proved material I would write to them about this and/or invite them to another hearing to comment, but that at present the difficulty with their case was that when they lodged their application they had provided very little information and no evidence, and over the subsequent six years they provided nothing further, and it remained the case that they had still provide no evidence of their claims. I explained that I had not yet decided whether their claims could or could not be accepted, but there were several matters to be concerned about in this respect, and they should endeavour to provide any evidence they could of such matters as money transfers, and any written information which might resolve the concerns discussed at the hearing. The applicants were advised that the Tribunal would undertake not to make a decision until after 7 June 2024, and that even after this date the Tribunal would consider any evidence which the applicants provided prior to a decision being made. [Applicant 2] asked if this could be done by email, and I explained that she could using the same email address that she used to confirm that she and [Applicant 1] would be attending the hearing.

5. On 2 June 2024 the applicants made their only written submission to the Tribunal which provided evidence of relevance to the review of their protection claims. This attached three documents. Two of these were birth certificates, and the other was the air ticket which I have already discussed. The birth certificates confirmed that [Applicant 2] had two children in a previous marriage [genders and birth years deleted], with both being born in Klang, and when [Applicant 2] was residing with her then husband in Selangor in [Town 1] at the same address where she was residing in November 2016 when she married [Applicant 1] (this being [Applicant 2’s] mother’s residential address).

6. I accept that in 2017 [Applicant 2] and [Applicant 1] were financially responsible for [Applicant 2’s] two children but even with this accepted (and this was, in any event, never a matter about which the Tribunal expressed any doubt) it is difficult to accept that the applicants would have spent MYR20,000 in a few months as outlined by [Applicant 1] at the hearing. For, and even if it were to be accepted that [Applicant 1] had a gambling habit at that time, and even if it were accepted that he had debts to friends totalling MYR500, such that he could (in a matter of two to three months) have spent the total of the amount which he kept for himself (as much as MYR3,000) on his needs, and also gambling, and repaying his MYR500 in accumulated debts to friends, and even if it were accepted that [Applicant 1] gave his brother MYR5,000 (because he owed him his share of six months of rent, which in itself would have totally MYR1,500, plus his share of six months of utility bills, and six months of buying food), then this would still have left the MYR10,000 which [Applicant 1] said he gave to [Applicant 2] for daily needs; and I note in this regard that [Applicant 1] had asserted that it was because he had been unemployed for six months (and thus unable to pay for food, or his share of the rent or the utility bills) that he had had to give his brother MYR5,000. This being the case, MYR10,000 (that is, the MYR10,000 money which was given to [Applicant 2], and which remained available apart from the MYR3,000 which [Applicant 1] spent on himself and gambling) should have been enough to last the applicants perhaps as much as 12 months, and certainly more than two or three months.

7. I acknowledge that there would have been families of four (two adults and two children) in Selangor State at the time in question who did spend MYR5,000 or more per month on household consumption. But it is also the case that other households of four spent considerably less, and a study of household expenditure in Selangor State in 2019 (where the average household consists of around four people) found that households with an income of MYR2,000 per month or less typically had a monthly consumption expenditure of between MYR1,500 and MYR2,000;[25] and it was also reported of this period that it was not unusual for households in Malaysia to scrape by on MYR2,000 per month.[26] Given this, and given that [Applicant 1] had indicated earlier in the hearing that he had been earning MYR1800 to MYR 2000 per month when he was in employment, it is difficult to believe that the applicants would have expended MYR10,000 in a few months in circumstances where they claim they did not know when [Applicant 1] would next be in employment, and when they were indebted to an Ah-Long such that they would be required to repay MYR25,000 within a few months.

   Findings

   [25] See ‘Table 1.3 and other information in: Malaysia Department of Statistics, ‘Household Expenditure Survey Report by State and Administrative District: Selangor’, July 2020, pp.22, 34-36,

   [26] UNHRC, ‘Report of the Special Rapporteur on extreme poverty and human rights on his mission to Malaysia’, A/HRC/44/40/Add.1, 6 April 2020, pp.7-8,

8. I am not satisfied that [Applicant 1’s] sister actually purchased the air tickets that enabled the applicants to travel to Australia, but I am willing to accept that [Applicant 1’s] sister gifted the applicants with the financial assistance which made this possible. I am willing to accept that [Applicant 1] was retrenched from his job as [an occupation 2] in Selangor in 2017 due to a drop in demand (since, and notwithstanding Malaysia’s low unemployment rate of 3.4% during 2017, the country did see a rise in the number of retrenchments over the first eight months of that year due to changes taking place in manufacturing sector which resulted in a decrease in production),[27] and I am willing to accept that there may have been a period of some six months during which [Applicant 1] was unemployed, and during which time he became indebted to his brother for MYR5,000 (a debt which [Applicant 1] has since repaid) for covering the cost of living for himself and wife and stepchildren.

   [27] Ho, S. & T.X. Ying, ‘The State of the Nation: Economic Report 2017/18 - Unemployment stable at 3.4% but retrenchment on the rise’, The Edge, 6 November 2017, ; Aziz, I. ‘84% Of M’sian Employers Are Hiring In 2017, But Not In The Industries You’d Expect’, Vulcan Post, 25 April 2017, ; Kaur, M. ‘Almost 35,000 Malaysians lost their jobs in 2017, says ministry’, FMT, 2 April 2018,

9. However, given the applicants’ unpersuasive evidence with respect to their claim to have expended MYR20,000 in a few months (such that they had to obtain MYR10,000 from [Applicant 1’s] sister to pay and thus placate the Ah-Long), and given their unpersuasive reasons for why they have made no attempts to repay the remainder of their debt (even though they claim to fear they or their family members will be kidnapped or otherwise harmed by an Ah-Long if they return to Malaysia because of this unpaid debt), and given that the applicants have not provided any documentary evidence to establish that they received and then transferred MYR10,000 to the purported Ah-Long via a bank account in the latter part of 2017 (nor an explanation for why this evidence has not been provided, or evidence that any enquiries or requests were made to any banks in this regard) I am not satisfied and I do not accept that [Applicant 1] ever borrowed money from an Ah-Long as claimed, or that the applicants have an unpaid debt in this regard, or that an Ah-Long ever threatened them with harm.

10. I accept that the applicants left Selangor for Sabah at some point after January 2017, and that they arrived in Sabah at some point before [the date she obtained her passport] and that they remained there and did not depart to return to Selangor until some point after [the date he obtained his passport]. But I do not accept that the applicants went to Sabah to avoid harm from an Ah-Long. Indeed, given that [Applicant 1’s] protection visa application lists him as having a former employer which was located in Sabah I consider that the most likely reason for his presence there over [this period in] 2017 was work related and that, although he was retrenched from his employment in Selangor (and although he may have been having difficulty finding further employment in [occupation 2] in Selangor in the six months which followed), he most likely did find work of this kind in Sabah but then nonetheless (for reasons about which the applicants are yet to be forthcoming, but most likely for the opportunity to earn a higher income) decided to leave Malaysia for Australia.

11. Whatever the reasons may have been for the applicants spending a period of months in [Applicant 1’s] original hometown in Sabah during the latter part of 2017 and prior to their departure for Australia, I am not satisfied that [Applicant 1] ever borrowed money from, or that the applicants ever became indebted to and felt threatened by, an unregistered money lender (loan shark, or Ah-Long). I am therefore not satisfied that the applicants would face a real chance of harm of any kind on this basis were they to return to Malaysia.

12. Employment concerns

13. At the May 2024 hearing [Applicant 1] confirmed that he feared return to Malaysia for only one reason, and this was his fear of harm from an Ah-Long from whom he had borrowed money. He submitted, in the course of discussing this claim, that the reason he had had to take out this loan was that he had found himself retrenched from his work as [an occupation 2] in Malaysia, and he had not been able to find any more work of this kind, and it was difficult to find work in Malaysia. He also asserted (when asked if he could reside somewhere other than [Town 2]), that it would be even more difficult to find employment elsewhere. He did not, however, claim to fear that he would be unable to find employment were he to return to Malaysia. This was, nevertheless, a claim which [Applicant 2] made at the May 2024 hearing when I asked whether she feared returning to Malaysia for any other reason beyond her claim to fear harm from an Ah-Long. Her initial response to this question was to submit that she feared that it would be very hard for her to earn money for her children. Asked what she meant, [Applicant 2] said that she and her husband had both been finding it very difficult to get a job in Malaysia. Asked why this was, [Applicant 2] said she did not really know why but her life there had been very difficult and miserable. I asked [Applicant 2] what job she had most recently applied for while in Malaysia, [Applicant 2] said that after she married [Applicant 1] she had applied for a job in [specified businesses].

14. Asked whether she had had any employment since arriving in Australia, [Applicant 2] said she had, and that she was currently working as a general hand in a [business 2], and that before that she worked at a [business 1]. Asked why she would not be able to find work of this kind upon return to Malaysia, [Applicant 2] said this would probably be because she had not had much education. I asked [Applicant 2] to explain why she would be unable to obtain employment for this reason in Malaysia given that she had found such employment in Australia. [Applicant 2] now said that it would probably be difficult to find work in Malaysia because of her age, so that unlike in Australia she would not be accepted for employment in Malaysia. I confirmed with [Applicant 2] that she was born in [year] and that she was thus in her [age range]. I put it to [Applicant 2] that from the reporting made available by DFAT and other commentators it was not apparent that she would have any difficulties in obtaining work in any of these respects. I put it to [Applicant 2] that on the evidence before me it was difficult to accept that there was a real chance or a real risk that she would be denied employment if she returned to Malaysia. I also put it to [Applicant 2] that, if she was aware of any evidence that supported her claims in these respects, she should provide this to the Tribunal. [Applicant 2] now responded that it would be difficult for her to get a job if she returned to Malaysia because she was married, and the family of her husband would not like it if she worked.

15. I put it to [Applicant 2] that under the Migration Act the Tribunal was required to draw an inference unfavourable to any claims which an applicant raised which were not raised before the primary decision was made (that is, before the decision of 4 October 2018 to refuse to grant her a protection visa) if I was satisfied that the applicant did not have a reasonable explanation why the claim was not raised. I put it to [Applicant 2] that when she made her protection visa application to the Department she gave no indication that she had any concerns of the kind she was now raising (that she and [Applicant 1] would be unable to find employment adequate to support them and their children, or that she would be unable to earn a livelihood), nor did she do so at any time up to the point when her protection visa application was refused. I put it to [Applicant 2] that this might lead the Tribunal to have doubts about whether she really did have concerns about being unable to find employment if she were to return to Malaysia. I invited [Applicant 2] to explain why, if she really did have concerns of this kind, she did not say so to the Department before her protection application was refused in 2018. [Applicant 2] responded that this was because her first concern was her fear of harm from the Ah-Long. I asked [Applicant 2] to explain why she would not also have mentioned these other issues (regarding employment). [Applicant 2] then said that, after she arrived in Australia, she no longer had this fear about work opportunities.

1. I have not found this persuasive. I note, first of all that [Applicant 2’] latter assertion (that in 2018 her fear of not finding employment Malaysia was not on her mind because of her now being in Australia) is at odds with her initial assertion (that in 2018 she did fear being unable to find employment upon return to Malaysia but did not say so in her protection visa application because she was focussed on her fear of the Ah-Long). Moreover, neither of these assertions are persuasive in themselves. For, and while [Applicant 2] may have been content with her employment situation in Australia in 2018 when she and [Applicant 1] lodged their protection visa application, it was nonetheless the case that she was not assured of being allowed to remain in Australia, and that she and [Applicant 1] might face the prospect of having to return to Malaysia, and the protection visa application form asked [Applicant 2] to explain what kind of harm or mistreatment she feared might affect her if she returned to her country, and that a decision might be made on the information she provided in the written application and without there being another opportunity to present these claims. [Applicant 2] has indicated that she is literate in English and that it was her who filled out the protection visa application for herself and [Applicant 1]. Given this, I am satisfied that [Applicant 2] does not have a reasonable explanation for why her new claims were not raised before the primary decision was made. I am required to draw an inference unfavourable to the credibility of these claims and I have done so.

2. I would, in any event, have concerns with the credibility of these claims given the manner in which they unfolded at the May 2024 hearing. For, [Applicant 2] initially stated that she did not really know why it had been hard to find employment. She then stated that this would be a problem because of a lack of education. But when asked to explain this, she did not do so, and instead submitted that her age would be a problem. When asked to explain this, she again did not do so, and instead submitted that finding work would be difficult because she was married, and the family of her husband would not like it if she worked. The latter assertions are particularly difficult to credit given that they were submitted in the manner of an afterthought, and after several other possible reasons had been submitted, but without further explanation when this was requested. I do not accept that [Applicant 1’s] family are opposed to [Applicant 2] finding work, and I do not accept that [Applicant 2] genuinely fears that she will be unable to find employment in Malaysia for any of the reasons she has given, or that she fears that she and [Applicant 1] will be unable to find work in Malaysia sufficient to support themselves and her two children.

3. Nor am I satisfied that there is a real chance or a real risk of this. With respect to the matter of [Applicant 2] being married and in her [age range], it is not apparent from the country information before me that either of these factors in themselves or combined would negatively impact upon the likelihood of her obtaining employment were she to return to Malaysia. There are issues which can affect women in Malaysia with respect to employment, and I note that child bearing and care remain the main reasons for the relatively low participation rate of women in the workforce in Malaysia; with Malaysia having a lack of resources to assist women with re-entering the workforce after having children, and also with the cultural barrier which results from how women are often seen as primary caregivers (and it is also reported in this respect that women can face discrimination in the employment market when they are pregnant).[28] But given that [Applicant 2’s] mother has been willing to act as the primary carer for [Applicant 2’s] children while [Applicant 2] and [Applicant 1] have been living and working in Australia for some six years, and given that in any event [Applicant 2’s] children are now [respective ages] such that they will not require the kind of supervision and care as is the case with a young child, and given that [Applicant 2] has given no indication that she and [Applicant 1] plan to have any further children together in the future, I consider it a very remote possibility that factors of this kind would have an impact on [Applicant 2] in the future were she to return to Malaysia.

   [28] DFAT, ‘DFAT Country Information Report: Malaysia’, 29 June 2021, 20210629092134, 3.121; DFAT, ‘DFAT Country Information Report: Malaysia’, 29 June 2021, 20210629092134, 3.119; Azuar, A. ‘The struggle for gender equality in the workplace’, Malaysian Reserve, 27 March 2025,

4. I accept that [Applicant 2] and [Applicant 1] have only completed up to [grades] of high school respectively, but I note that in 2018 a labour force survey found that only 28.6 percent of the Malaysian labour force had tertiary level education, and that most (55.6 percent had) had only secondary level education, while 13.1 percent had primary level education and 2.7 per cent had no formal education.[29] Moreover it was found that only 27.2 percent of the country’s workers were engaged in high-skilled employment in managerial, professional or technical roles, while the large majority (60.4 percent) were semi-skill workers, with low-skilled workers making up the remaining 12.4 percent.[30] Over subsequent years the proportion of jobs for skilled employees has been growing only moderately in Malaysia, such that the proportion of semi-skilled and low-skilled jobs in Malaysia has remained broadly constant, with little indication that this will change significantly for the foreseeable future.[31] Moreover, there have been continued reports that Malaysia has a shortage of low-skilled workers, and this has been so even though half of Malaysia’s [grade] high school students are choosing not to progress to further education, with many choosing instead to enter Malaysia’s low skilled job market (and in particular the ‘gig economy’ of food delivery and ride-hailing), and with many saying that further education does not guarantee a better job.[32] 

   [29] DFAT, ‘DFAT Country Information Report: Malaysia’, 29 June 2021, 20210629092134, 2.13.

   [30] Thomas, J. ‘Malaysia: Between education and skills’, Asean Post, 28 November 2019,

   [31] HR Asia, ‘Malaysia maintains trend of more people in employment across Q2 2023’, 29 August 2023,

   [32] HR Asia, ‘Malaysia maintains trend of more people in employment across Q2 2023’, 29 August 2023, ; Malaysia Now, ‘Only half of SPM candidates plan to continue studying, survey shows’, 29 March 2023, ; Kalimuthu, K.V. & F.C. Choo, ‘Gig Economy Participation: Is Higher Education Remain Relevant?’, News UTAR, 30 January 2024, ; Raja, N. ‘Lack of low-skilled labour may hinder foreign investment, says economist’, FMT, 31 January 2025,

5. I note also that Malaysia’s economy has been on a largely upward path since the Asian financial crisis of 1997-98 excepting the years of the COVID-19 pandemic in 2020/2021. The COVID-19 pandemic years, and the associated disruption to the local and global economy, did see a fall in Malaysia’s economic growth, and a rise in unemployment and poverty levels, and the latter problem continued into 2022 (which saw 6.2% of households in absolute poverty – that is, being unable to meet their basic needs – compared to 5.6% in 2019).[33] But Malaysia’s economy has now recovered, and Malaysia’s unemployment rate has returned to pre COVID-19 pandemic levels, and has stabilised at around 3%, and the poverty rate is now expected to decline for the foreseeable future.[34]

   [33] DFAT, ‘DFAT Country Information Report: Malaysia’, 29 June 2021, 20210629092134, 2.10; DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 2.8-2.9; Usamah, W.A.W. ‘Deepening Malaysia’s Understanding of Poverty’, Khazanah Research Institute, 17 October 2024, p.1,

   [34] DFAT, ‘DFAT Country Information Report: Malaysia’, 29 June 2021, 20210629092134, 2.10; Business Today, ‘Unemployment Rate Should Hold Steady At 3.1%: Kenanga’, 14 April 2025, ; World Bank, ‘Malaysia’, April 2024, p.2,

6. There are, moreover, labour shortages in many sectors (such that small, medium and large enterprises have had to rely on migrant labour).[35] With respect to [Applicant 1’s] employment prospects there have been ongoing reports of a shortage of and high demand for [his occupation] (and that this will continue into the future because much of Malaysia’s existing [occupation 2] workforce is about to reach retirement age) and that there is also a shortage of construction workers;[36] and with many contractors paying general construction workers above the minimum wage,[37] and with the starting salary for [an occupation 2] now at around MYR3,000 per month.[38] With respect to [Applicant 2’s] employment prospects there have been ongoing reports of a shortage of and high demand for retail workers (such as [an occupation 1]);[39] and although women are underrepresented in many of Malaysia’s employment sectors, this is not the case with respect to sales and services jobs in the retail and wholesale industries.[40] With respect to earning prospects these are not as favourable as in some other lower skilled job sectors, and it is also the case that men who work in the retail sector typically earn more than women (as women remain significantly underrepresented at the management level across all sectors),[41] but it is also the case that if [Applicant 2] enters such work and is able to earn only the minimum age she will benefit from how Malaysia’s minimum wage will rise from MYR1,500 to MYR1,700 in 2025.[42]

   [35] DFAT, ‘DFAT Country Information Report: Malaysia’, 29 June 2021, 20210629092134, 2.10.

   [36] [Sources deleted.]

   [37] Business Today, ‘Construction Sector Remains Strong Despite Budget 2025 Foreign Workers Initiatives’, 21 October 2024,

   [38] [Source deleted.]

   [39] [Sources deleted.]

   [40] Lim, I. ‘Report: More women joining workforce, but have low wages’, Malay Mail, 9 October 2016, ; Today Online, ‘Most Malaysian women still cleaners, clerks, teachers, while men rule top management: Study’, 16 October 2018,

   [41] DFAT, ‘DFAT Country Information Report: Malaysia’, 29 June 2021, 20210629092134, 3.120; Muzafar, P.M.M. & H.A. Hamid, ‘Gender Gap in the World of Work: Status and Progress’, Khazanah Research Institute, 4 October 2024, p.2, ; Lim, I. ‘Report: More women joining workforce, but have low wages’, Malay Mail, 9 October 2016,

   [42] Azhar, D. & A. Tang, ‘Malaysia to widen tax net, raise minimum wages in 2025 as budget spending hits record’, Reuters, 18 October 2024, ; Khai, A. ‘Raising wages and curbing inflation – a balancing act’, FMT, 15 January 2025, ; People Matters, ‘Malaysia: Wages on the rise as labour market gains ground’, 30 January 2025,

7. I am mindful that it is reported that Malaysia’s official poverty line income (PLI; Malaysia’s Department of Statistics estimate of the minimum income necessary to enjoy the basic necessities of life for the average sized household of 3.8 persons) is greater than Malaysia’s minimum wage; with the current national PLI average being MYR2,589 per month, and with the average in Selangor State being estimated at MYR2,830 per month[43] (and at the May 2024 hearing both applicants indicated that it was their preference to return to [Town 2] in Selangor, and I accept that they would). This noted, it is also the case that [Applicant 2] has indicated that she, in addition to [Applicant 1], wishes to be employed were they to return to Malaysia and given this, and given that the evidence indicates that there is not a real chance that the applicants would for the foreseeable future be unable to find employment in Malaysia, and even if this involved the applicants only finding employment at the level of Malaysia’s minimum income, this would nonetheless mean that their combined income would exceed the current estimate for what is required to afford the basic necessities of life in Selangor for a household of around four persons (themselves and their two children; and as noted above [Applicant 2’s] children are now [respective ages], and are thus nearing the beginning of their own working lives). I consider, moreover, that it is a very remote possibility that [Applicant 1] would earn only the minimum income in Malaysia given what is reported about the starting wage currently available to [occupation 2s] in Malaysia and given what is reported about the high level of demand for [occupation 2s] in Malaysia for the foreseeable future.

   Findings

   [43] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 2.8; Malaysia Department of Statistics, ‘Poverty In Malaysia’, 2022, pp.26, 36, 39,

8. Given all this, and while I accept that after returning to Malaysia [Applicant 2] or [Applicant 1] may for the foreseeable future experience some challenges and difficulties in terms of finding employment, and managing their finances to meet their needs and those of [Applicant 2’s] children, I am not satisfied that either [Applicant 2] or [Applicant 1] will face a real chance of being denied the capacity to earn a livelihood of any kind, or of experiencing significant economic hardship that would threaten their capacity to subsist, or that such challenges and difficulties as they might face in these regards will in some other way amount to serious harm (whether physical or mental). I consider that there is a real chance that [Applicant 2] may suffer some discrimination in the workplace for reason of being a woman in terms of being passed over for promotion (with respect to obtaining a managerial or more senior position with greater pay) but I am not satisfied that this would amount to serious harm either (whether physical or mental) in terms of such disappointment or loss of greater income or other problems as this may cause. Beyond such matters I am not satisfied that the applicants would, for the foreseeable future, face a real chance of harm of any kind if they were to return to Malaysia, and to [Town 2] in Selangor.

9. Likewise, both with respect to such discrimination as [Applicant 2] may face in terms of obtaining promotion, and with respect to such challenges and difficulties as the applicants may face in terms of finding employment, and managing their finances to meet their needs and those of [Applicant 2’s] children, I am not satisfied that either [Applicant 2] or [Applicant 1] will face a real risk of suffering significant harm. For, I am not satisfied that there is a real risk that any such experiences would involve an act or omission intended to cause the applicants the kind of extreme humiliation which would amount to degrading treatment or punishment, or the kind of pain or suffering or severe pain or suffering (whether physical or mental) that would amount to cruel or inhuman treatment or punishment, or the kind of severe pain or suffering (whether physical or mental) that would amount to torture; nor am I satisfied that there is a real risk that the applicants would be arbitrarily deprived of their lives, or subjected to the death penalty. Beyond such discrimination as [Applicant 2] may face in terms of obtaining promotion, and beyond such challenges and difficulties as the applicants may face in terms of finding employment, and managing their finances to meet their needs and those of [Applicant 2’s] children, I am not satisfied that the applicants would face a real risk of harm of any kind if they were to return to Malaysia, and to [Town 2] in Selangor.

   Do the applicants satisfy the refugee criterion for protection?

10. For the reasons given above, I am not satisfied that either of the applicants would, for the foreseeable future, face a real chance of serious harm in all areas of their receiving country were they to return to Malaysia. I am therefore not satisfied that either of the applicants has a well-founded fear of persecution.

11. For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Do the applicants satisfy the complementary protection criterion for protection?

12. 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 applicants being removed from Australia to their receiving country, there is a real risk that either of the applicants will suffer significant harm.

13. For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    Other considerations

14. There is no suggestion that either 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, neither applicant satisfies the criterion in s 36(2).

    DECISION

15. The Tribunal affirms the decisions under review.

    Date of Hearing:  24 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.

    …