1916435 (Refugee)
[2025] ARTA 1485
•30 May 2025
1916435 (REFUGEE) [2025] ARTA 1485 (30 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Numbers: 1916435
2004720
1926254
1916493
Tribunal:General Member Genevieve Hamilton
Date:30 May 2025
Place:Melbourne
Decision:The Tribunal affirms the decisions under review.
General Member G Hamilton
Statement made on 30 May 2025 at 1:43 pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – targets of a criminal gang – person with a disability – robbery from business and home – threats from money lenders – fear of killing – return visits to Malaysia – credibility issues – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 359, 367, 499
Migration Regulations 1994, Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33Any 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
BACKGROUND
This is a review of decisions refusing to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant ([Applicant 1]) applied for the visa on 4 December 2018. The delegate refused to grant the visa on 20 June 2019.
The second-named applicant ([Applicant 2]) is [Applicant 1’s] son. He had already applied for and been refused a protection visa (date of application 2 August 2016, decision 11 October 2016). He did not apply for review until 5 April 2018, which ordinarily would have been well out of time. And so the Tribunal (differently constituted) shortly found. However its decision was remitted by the Federal Court back to the Tribunal, because the Department’s notification of their decision was defective and therefore time had not started to run.
The third-named applicant ([Applicant 3]) is [Applicant 2’s] wife, and [Applicant 4] and [Applicant 5] are their children. They applied together on 28 February 2019, and the delegate refused them protection visas on 4 September 2019.
The sixth-named applicant ([Applicant 6]) is [Applicant 1’s] daughter. She applied for protection on 2 November 2018 and the delegate refused her a protection visa on 21 June 2019.
The primary applicants attended a hearing of the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. All the primary applicants were in the hearing room throughout each other’s evidence.
The applicants were represented in relation to the review. The representative attended the hearing.
CRITERIA FOR A PROTECTION VISA
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).
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.
One or more of the above-listed reasons must be the essential and significant reason or reasons for the persecution: s 5J(4)(a). Further, the persecution must involve systematic and discriminatory conduct: ss 5J(4)(b), (c).
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Arbitrary deprivation of life and the death penalty carry their ordinary meanings. Torture and cruel or inhuman treatment or punishment both involve intentionally causing severe pain or suffering, whether physical or mental. Degrading treatment or punishment is defined as intentionally causing extreme humiliation.
Under s 36(2B) Australia does not have complementary protection obligations where:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;
·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or
·the risk is one faced by the population of the country generally and not by the applicant personally.
CLAIMS AND EVIDENCE
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal notes that the applicant’s son [Son A] also made a protection application, the refusal of which has been reviewed by a different member of the Tribunal. [Son A] claimed to be in trouble with a gang because it was alleged he had got a gang member’s sister pregnant. [Applicant 1] gave evidence at his Tribunal hearing. Nothing in [Son A’s] case is inconsistent with the claims made by the primary applicants in this case.
In her protection visa application [Applicant 1] said she was born in Kedah in [specified year] and is a Malaysian citizen, she is ethnically Malay, and travels on a Malaysian passport. One daughter (her eldest child [Daughter A]) is in Malaysia, two sons ([Applicant 2] and [Son A]), and her daughter [Applicant 6]). She last arrived in Australia [in] October 2018. In December 2015, June 2016, December 2016, and April 2017 she came to Australia for holidays. From September 2018 to October 2018, she was back in Malaysia. Since [year] she has lived at a single address in [Village 1], [Town 1], Kedah. From [year] to May 2017, she operated a [business 1] in [Village 1]. She is widowed (she married in [year], and her husband passed away in 2011).
Asked why she left Malaysia, [Applicant 1] referred to an attachment, and said that if she went back to Malaysia, the bank has issued some summons. She was informed that every day there were people coming to her house to demand debts. If she could not pay she might be hurt and it would affect her health. In September 2018 when she returned to Malaysia three unidentified men came to her house claiming money and threatening to harm her and her family.
From [Applicant 1’s] own email address an answer was a more detailed answer to question 76 (the attachment). In it she states that since the death of her husband she has been targeted by criminals several times on her way to put money in the bank. Her business was also targeted by thieves. In June 2016 the [business 1] was robbed, with a loss of almost 100K ringgit. In April 2017 (sic – May) it was robbed again of almost 200 thousand dollars, and the insurance company would not pay compensation, so she closed the business and was unable to pay her child’s tuition. She has a lot of debt to banks and individuals. She has a house but it was not easy to sell because of the economy in Malaysia. She is hunted by creditors including banks, they threaten herself and her children. She prevented her children from returning to Malaysia, for their safety. Her blood pressure has worsened.
With the application was a news report with translation dated [in] July 2014 about [men] robbing a [business 1] in [Village 1]. They crashed their car and a [suspect] died at the scene. Also submitted was a complaint by [Son A] that on [a day in] December 2014 he had a fight with one [Mr A] at the [business 1] and he was injured on his right hand. The fight occurred after he recovered his car from [Mr A], and discovered that items were stolen from it including identity and bank documents and “police operation clothes”.
[Applicant 1] submitted her police report of a robbery at the [business 1] on [a day in] June 2016 in which a large amount of [stock] was stolen, and a police complaint by her employee about a robbery that took place on [a day in] May 2017, in which he was bound and beaten unconscious, and again large amounts of [stock], and other items including cash have been stolen.
[Applicant 1] also submitted her medical information.
[Applicant 1] made a series of bridging visa applications from 2019 to 2024 in order to travel back to Malaysia.
In response to Tribunal outreach, on 20 April 2024 [Applicant 1] wrote that all her children are here (which is not true) and that her business had been robbed 9 times. She did not mention any concerns connected with [Son A]. She attached her checklist of closing down the [business 1] in May 2017. She submitted CCTV stills of a robbery in May 2005, an untranslated [May] 2015 police complaint made by herself, a number of photographs of the [business 1] after being robbed, a letter dated [in] August 2022 from the [Police Station 1] in Kedah stating that her house in [Village 1] has been robbed, and related photographs, and a further bundle of medical information relating to herself, her late husband and [Applicant 6]. She sent the same material again in response to a hearing invitation, in December 2024. She also sent CCTV film and stills taken on [a day in] September 2024. Later she sent video footage from the break in and robbery of the [business 1] on [a day in] July 2014.
In March 2025 [Applicant 1] submitted a folder called “harm from gang members”: it contains the [July] 2014 news report, [Son A’s] police report [in] December 2014, a photo claimed to have been taken on [the day in] December 2014, of [Applicant 3], and one of [Applicant 4] claimed to have been taken in 2016, and photos of a damaged [car brand] and a bandaged arm.
In a statutory declaration dated 12 March 2025 the applicant said:
·Early 2014 three men and a woman came to the house looking for [Son A], because a woman was pregnant and he was allegedly the father.
·She spoke to [Son A] and later told them that they could go to the police and the police would sort it out.
·She contacted an old friend of her husband who was a police officer who agreed making a police report was the right thing for them to do, and he also did a background check on the woman for her, finding out she was married and a drug user, and that her brothers were dealers.
·About two weeks later they came to the [business 1] and made a scene.
·About a week later they came to the house demanding to be let in. She called the police, who came and told them to go away.
·On [the day in] July there was a break in at the [business 1], then [Applicant 2 variant] heard about the car accident nearby, in which someone died. He told her there were items from the [business 1] in the car ([documents]) and that the deceased was one of the people who had come to the house.
·One of the perpetrators was detained but must have been released because he started showing up at the house and the [business 1] again with the others.
·In October 2014 they came to the [business 1] and harassed her and her staff, and she collapsed due to the stress. [Son A] lost a car that was in her name and she was worried it would be used in committing crimes.
·In November they came and shouted again, and she fainted and had to be taken to hospital.
·On [the day in] December the car was found, her sons came to the [business 1] and there was a big fight with the gang, she and her daughter in law tried to stop it but were pushed to the ground.
·She sent her sons to [Town 2], but they were found there and fights occurred at her brother’s place and at [Son A’s] workplace. Her sons had to come home.
·As they were all still being harassed, her sons went to Australia
·A gang member came and vandalised her car.
·They went to her grandsons’ school and chased them home on their bicycles, one fell off and was hurt.
·In September 2016 they did the same to [Applicant 6], causing her to fall off her scooter, and she had to go to hospital and was then afraid to go out. After she finished her exams [Applicant 1] sent her to Australia.
·In 2017 she gave up the [business 1], but the gang kept coming to her house.
·In 2018 she was driving and a motorbike with one of the gang members pulled up next to her and shouted. She hit a truck and broke her arm.
·[Applicant 1] went with [Applicant 3] and her grandsons to live with [Applicant 3’s] parents in Perak. But they were found there as well.
·The applicant left for Australia, and after two further incidents in Perak, [Applicant 3] and the grandsons came out.
·She has found out that not everything she told the person who did her application had been included.
·She has been back to Malaysia three times, the first two times she did not stay at her house and wore a niqab so as not to be recognised.
·The house was robbed in August 2022, and her sons’ friends told them it was [Mr A].
·In 2024 she stayed two nights at the house and one of the gang members walked around outside and tried to look in one of the bedroom windows.
[Applicant 1’s] movement record indicates that she came to Australia in December 2015, June 2016, December 2016, July and November 2017, March and June 2018, and on each occasion left again. After lodging her protection visa application she has left Australia in 2020, 2022 and 2024.
As is noted in the delegate’s decision in his matter, [Applicant 2] overstayed his visitor visa which ceased [in] March 2016, and remained in Australia as an unlawful non-citizen In his protection application he said he was born in Malaysia and is a Malaysian citizen, he is ethnically Malay, and travels on a Malaysian passport. He married in May 2006 but he did not declare any family members. He arrived in Australia in December 2015. His address from 2011 to 2015 was in [Town 3] (i.e. not [Village 1]), where he was a [business 2] manager. He came to Australia for a holiday but he ran out of money so he stayed and worked as a fruit picker, but then his friend was detained for not having a visa so that is the main reason why he applied for protection. He wanted to stay and work until July 2017 when he would return to Malaysia. He had not been harmed in Malaysia and he did not think he would be harmed on return to Malaysia.
[Applicant 2’s] application was refused in October 2016 but he did not apply for review until April 2018. In responding to the Tribunal on the question of jurisdiction, he did not explain the delay very well but said he wanted to stay in Australia because people are friendly and helpful.
In support of the second review, in January 2025 [Applicant 2] submitted [Applicant 6’s] surgical photographs, the news report of the July 2014 robbery, and the 2005, 2015, 2016 and 2017 police reports and photographic evidence of robbery. He later submitted the September 2024 CCTV taken at the house.
In his March 2025 statutory declaration [Applicant 2] said he joined a martial arts class in 2001 that he later learned was associated with the [Gang 1], he was invited to join the gang and for protection of the business and family he decided to do so. He introduced [Son A] to gang leader [Mr A]. [Mr A] thought they were a rich family and wanted his sister to marry [Son A], hence the pregnancy allegation. The person that died in the car crash in July 2014 was [Mr A’s] [brother]. Because of [Applicant 2’s] proximity to the scene he was blamed for the death. He tried more than once to apologise to [name] the big boss of the gang, and request that his family be left alone, but was threatened and told that he could not quit the gang. In [Town 2] (where he stayed with his uncle) he ran into friends from home, and the next day his windshield was broken. The next day people came to the uncle’s house and there was an argument, and after that his uncle did not want him and [Son A] there anymore. They went back home. In June or July 2015 there was a fight between him and [Mr A], and he was cut and bruised. The fight ended because the police were called. He did not tell his mother, but they discussed him and his brother going to Australia. From the footage of the house robbery in 2022 he can tell it is one of the gang members. [Daughter A] went to check on the house and one of the gang members showed up and said they would kill the brothers if he saw them again. His friend has also told him that the gang members are still asking where his is. [Applicant 2] said he had not been aware that the reasons in his protection visa application were not accurate.
[Applicant 6’s] movement records are listed in the Delegates’ decision in her case. She arrived in Australia in December 2015, came again in June and December 2016, applied for a student visa onshore in 2017, her student visa was granted, it ceased in July 2018 and she became unlawful. She returned to Malaysia 4 times (including April 2018) before lodging a protection visa application. Her first protection visa application lodged in September 2018 was invalid and she lodged it again in November 2018. She named only her mother and [Daughter A] as family members. Her claims related to her mother’s robberies and debts, including to illegal money lenders. She was sent to Australia by her mother to study, then in June 2016 her mother’s business was robbed, and again in May 2017 with staff injured, her mother gave up the business and cannot pay student expenses, as she has many bank and illegal loans. The creditors were looking for her mother and were demanding [Applicant 6] and her sister to pay the debt. She does not know all the mistreatment that happened to her sister and family but the family is scared for her safety. She submitted the police reports of the June 2016 and May 2017 robberies at the [business 1].
In her March 2025 statutory declaration in support of her review application [Applicant 6] added that people were watching outside the school in 2015, she recognised them as one of the people who had been coming to the house. In 2016 someone pulled her up when she was on her bike and asked her about her brothers and took her key. She screamed and they sped off. In September the same person followed her, she sped up to get away, lost control of the scooter and fell over and cut her head. She was patched up at hospital and after this refused to leave the house except to go to school, and had some counselling sessions. She did not know if all the information in her application was correct. She claimed she has only been back once in 2017 to get her school certificate, stayed with her uncle and wore a niqab.
[Applicant 3] and her and [Applicant 2’s] two sons arrived in December 2018 and lodged protection applications in February 2019. But they also came to Australia at the end of 2016 and 2017. Her protection application referred to debt collectors pursuing [Applicant 1], also fights between Malays and Indians. Her mother-in-law borrowed money, and after she was robbed she surrendered her business, but could not settle the debt. They came to her house many times, threatening her and her sons. When they come to the house she keeps her sons from school. In October 2018 they were shouting and she and her sons were scared to go out. Neighbours came to calm the situation down but there was a quarrel. [Applicant 3] also submitted the robbery police reports referred to above.
In an 8 December 2024 statement [Applicant 3] attributes the attacks on herself and her children, and the fights and robberies to revenge against [Son A]. She says that the children were traumatised. She submitted the July 2014 news article.
In her 12 March 2025 statutory declaration [Applicant 3] said that around the middle of 2016 her sons told her someone had been waiting for them around the corner from the school. One day they had to ride home on their bikes and that person followed them. They started to ride faster and [Applicant 4] lost control of his bike, fell off and injured himself, and she kept them out of school for about two months. About a month after they moved to Perak a couple of the gang members that they recognised came to the house and argued with her mother in law. Shortly after [Applicant 1] left for Australia they came to the house again twice, yelling and damaging things. Her parents decided to let her go to Australia. She has now become aware that her story was not correctly told in her protection application.
Prior to the hearing, the Tribunal received the following documents:
·The representative’s submission stating that all the applications for protection visas do not contain accurate information about their claims for protections as they were completed by third parties. They fear being harassed and harmed by the [Gang 1]. The representative outlines the claimed events from 2014, and states that they incidents were reported to the police many times and although investigated, none of the perpetrators were property prosecuted even though there was CCTV that could identify them. They have tried to relocate but the gang has a wide network and was able to find them. The representative also made submissions about anticipated harm due to health conditions, which will be exacerbated by gang harassment. [Applicant 1] has a history of breast cancer, high blood pressure and diabetes, while [Applicant 6] has had [specified medical conditions]. She is waiting for further [surgery] which causes her constant pain and she cannot stand for long, and remains under regular monitoring. She fears she will not get the follow-up she needs in Malaysia, and that it will be hard for her to hide from the gang members. The representative submitted that the applicants were at risk of serious harm as members of a particular social group namely people who are the targets of a gang. It was submitted that country information corroborated their claims, and the representative cited relevant sources about the prevalence of gangs in Malaysia, and issues relevant to state protection. The representative submitted that in relation to credibility the applicants should be given the benefit of any doubt.
·[Daughter A’s] statement that she went to the house after being told it had been robbed, and while she was in the house a car stopped in front of it. A man came out shouting and shaking the fence, demanding she come out. He asked where the family was and she said she did not know. He said he was planning to kill them, because life must be paid for with life. She called [Applicant 2] and told him but he was not to tell [Applicant 1] because it would upset her.
·Statement by [Mr B] that he returned to Malysia from Australia in September 2019. Since then friends in [Gang 1] are asking about [Applicant 2] and his family and where they live in Australia. He called [Applicant 2] to find out why. [Applicant 2] told him not to tell anyone where they were. He advised [Applicant 2] not to come back to Malaysia as it is dangerous.
·Statement of [Neighbour A], [Applicant 1’s] neighbour in Malaysia. In 2014 or 2015 she began noticing unknown men frequently visiting and causing disturbances. She even called the police but was never able to ascertain the reasons behind the incidents. In 2016 she heard loud noises in the middle of the night and saw several men vandalising [Applicant 1’s] car, and to this day there are sightings of men loitering in front of her house. In February 2015 she told [Applicant 1] she saw men trying to break into the house. She reported it to the police.
The hearing
At the outset of the hearing the Tribunal advised the applicants that it had read their recent statements and would be asking questions about their claims.
The Tribunal asked [Applicant 1] when she first came to Australia. She said she came in 2018. The Tribunal asked her when she first came to Australia. She said she had been here many times. The Tribunal asked the question again. [Applicant 1] said she first came to Australia in 2015. Asked why she did not apply for protection until 2018, she said she first came to send her sons here, because of the threats. The Tribunal observed that her sons were old enough to come to Australia by themselves. [Applicant 1] replied that she arranges everything for her children. Asked again why she did not apply for protection until 2018, she said she was still managing her business. Asked whether this meant she was not afraid of harm at the time, she replied that she was, but her children were more under threat. When they couldn’t find her children they would come looking for her at the [business 1]. Now she has handed her business back to [the parent business].
Asked if anyone was living in the house, she said no one lives there, they are all afraid to live there. Asked if she intended to keep the house, she said she was trying to sell it but was afraid to go back to Malaysia and it would take some time to complete the transaction. Asked what happened to the content of the house she said some were recovered, some are gone. Asked if anyone was charged in relation to the house robbery, she said members of the [Gang 2] were detained then bailed. They robbed other houses in the area as well and were arrested again. There was a trial in 2023 and they were sentenced to six months imprisonment. She did not have any records of the trial. She went home to identify and retrieve some of her stolen goods in 2024. They have now been returned to the house. [Applicant 1] claimed that [Mr A] and his female friend, and two other of his associates, were among the perpetrators. The Tribunal asked how she knew this. [Applicant 1] said the police told her. The Tribunal observed that if [Mr A] had been tried and convicted, [Applicant 1] should be able to produce some official record to support this.
The Tribunal put to [Applicant 1] that it appeared she was planning to return to the house. [Applicant 1] said she did not know where to put her belongings. She has tried many times to sell the house but she had to be in Malaysia to sell the house. The Tribunal said this was not the case; she could use an agent. [Applicant 1] said the house owner needs to be in Malaysia for the discussions. The Tribunal said it did not accept this.
There followed a discussion of the incidents at the [business 1] in July and December 2014. [Applicant 1] recounted her claims as per her statement and said it was always the same people who came to cause commotion while looking for [Son A]. Regarding the robberies in 2016 and 2017 she said these were NOT related to her claims, they were just robberies carried out by Chinese people. The Tribunal asked why the applicants had submitted the police reports concerning the robberies in 2016 and 2017. [Applicant 1] said she did not understand the process and just submitted everything that had happened to her. Asked who helped her with her protection application she said it was a friend of a friend called [Friend A].
[Applicant 1] said she and the other applicants did not use the same “agent”. She told [Friend A] that her [business 1] head been robbed and about the incidents where people were looking for her children and harassing her at the [business 1]. [Friend A] said her story was too long, and to say it all when she was asked. [Applicant 1] did not know about protection visas. The Tribunal noted that her protection application did not mention anything to do with [Son A]. [Applicant 1] said she thought she should only talk about her own case. She tried to tell [Friend A] about [Son A] but it was not included in the application. The Tribunal questioned why an agent would put down claims that were completely different from what she was now putting forward. [Applicant 1] said she also was dissatisfied that only the robberies were put forward. The Tribunal noted that the claims regarding financial problems and being pursued by creditors had been put in an email that came from [Applicant 1’s] own email address. [Applicant 1] said she did not recall such an email. The Tribunal put to [Applicant 1] that it appeared that she was constructing late claims concerning [Son A]. [Applicant 1] said she was telling the truth.
[Applicant 1] said the same agent also prepared her bridging visa applications and review application. The Tribunal asked whether [Applicant 1] read the delegate’s decision. She said she did, and the agent told her not to worry, that when she was called for a hearing she could tell her story then, because it was too long to write down. She then said it was only much later that she realised the claims were not as she was putting forward now. The Tribunal noted that it was now 2025 and [Applicant 1] had only just come forward with completely different claims from what was in her protection application. The Tribunal noted that the Act required the Tribunal to draw an adverse credibility inference if these new claims could not be explained. [Applicant 1] reiterated that she had been advised that she could clarify everything when she was asked. The Tribunal expressed doubt that [Applicant 1] was given this advice. [Applicant 1] said after [Son A] had his hearing, she realised they had made a mistake and needed to seek legal advice.
The Tribunal observed that [Applicant 1] had been back to Malaysia several times, which could indicate she did not have any fear of being harmed. She said she wore a niqab when she was in Malaysia, and was in hiding. She stayed with a friend. But in 2024 they must have known she was there because they came to the house. “They” referring to the gang. Asked which gang she meant, she said [Gang 1], the same people who came to the house causing a commotion several times. Asked who exactly came to the house, she said it was [Mr A] and his friends, because [Son A] would not admit to being responsible for the pregnancy of the sister. The Tribunal asked why they would still be angry about that in 2024. [Applicant 1] said it had been going on since 2015, they had chased her grandson and her daughter off their bikes and both were injured. They were always the same faces.
The Tribunal asked whether any of the incidents of being harmed or harassed by the gang were reported to the police. [Applicant 1] replied, some were, some not. Once the neighbour called the police, but they just dispersed the gang. She knew the incidents were connected because it was always the same faces, 3 men and the pregnant woman ([Ms A]). They were angry with [Son A]. [Applicant 1] told them that if they were not happy they could go to the police. The Tribunal asked why she would advise that, it was not a police matter. She said that is what one does if a person will not admit paternity. [Details deleted.] She asked one of [her husband’s] friends in the police force, and they said that was what should be done. The Tribunal asked what was the crime that made it a police matter? [Applicant 1] said denying paternity is a crime in Malaysia. The Tribunal asked if [Ms A] was actually pregnant and she replied that there was never a baby. The Tribunal questioned that the feud would go on for 10 years when there was in fact no pregnancy.
The Tribunal asked why the police would do a background check on [Ms A], at [Applicant 1’s] request. She said she was told that there are three siblings involved in drugs, and that [Ms A] was married. She said the police officer knew such things about people in the neighbourhood. The Tribunal observed that this would mean that these things were already known and not the subject of a “background check”. [Applicant 1] said she herself had not been aware of the family’s background.
The Tribunal advised [Applicant 6] that her statement had been read and invited her to draw the Tribunal’s particular attention to anything in it. This was understood. The Tribunal summarised that [Applicant 6] recently claimed to have been harmed, threatened and followed by people who were after her brother. The Tribunal noted that in her original application she had referred only to robberies and illegal money lenders but nothing to do with [Son A]. [Applicant 6] said she paid the friend of a friend of a friend to prepare the application, and told them what happened. It was not the same agent that her mother used. She said the first time she came to Australia with her mother was when they were “sending” her brothers here. She returned with her mother in 2016. Asked why she did not apply for protection straight away she said she was still studying at the time. She intended to keep studying in Australia. She took [specified] courses but stopped at the end of 2017 because her mother could no longer afford the fees. The Tribunal questioned this, as her mother on her own claims had valuables. [Applicant 6] said all she knew was that her mother had used up her savings and that she was reliant on them.
The Tribunal noted that [Applicant 6] allowed her student visa to cease and became unlawful before applying for protection. She replied that she did attempt to remain lawful, as her real wish was to study and she did not know anything about protection visas, but her application was refused. Then a friend advised her to apply for protection. The Tribunal observed that in March 2017 she applied for a further student visa but she could have applied for protection then. [Applicant 6] reiterated that she wanted to study and she did not know anything about protection visas. The Tribunal observed that it might be inferred from this, and her returns to Malysia, that she did not fear harm. Indeed, her application for protection did not mention that she had been harmed. [Applicant 6] said she did tell the person who wrote the application the same things that are in her recent statement, but they wrote something else.
Asked if she read the decision on the protection application, [Applicant 6] said she did not. Asked why not, she said she did not care to find out. Asked why this was the case, she said she did not understand its importance. The agent just said to have faith and they would do their best for her. Asked if she had read it now, she said only after the lawyer was engaged and they realised they had made a mistake. The Tribunal observed that it found this hard to reconcile with being at risk of harm. Asked how she identified that the people who followed and chased her were the same people who were after her brother, [Applicant 6] said she recognised their faces because they had been to the house causing a commotion. She did not think of reporting it to the police because it was her mother that dealt with them. She claimed to be traumatised by what had happened.
The Tribunal observed in relation to [Applicant 6’s] health concerns, that these would not normally be grounds for protection, because any difficulties accessing medical treatment in Malaysia would not be a situation deliberately inflicted on her individually.
[Applicant 2] and [Applicant 3] were invited to comment on the preceding evidence. They made no comment initially. [Applicant 2] was asked what his role was in [Gang 1]. He said he had no formal position. He joined because his mother had a [business 1] and the gang could protect them. In July 2014 there was an accident near the [business 1] after it had been robbed, there was a dead person in the car and items from the [business 1] were in the car. The dead person was a member of [Gang 1] and was [Mr A’s] brother. He was killed by the same axe used in the robbery, due to the impact of the crash. The Tribunal noted that the name of the deceased was not mentioned in the news report.
[Applicant 2] said that in October 2014 there was a fight and [Applicant 3] was injured. There were also fights in December 2014, and June 2015. He asked his mother to send him to [Town 2] but there was another argument there. He pointed to scars. The Tribunal observed that it may not accept that the injuries were caused in a fight. The Tribunal asked why [Applicant 2] was blamed for the death of [Mr A’s] brother. He replied that it was because they were angry with his family already, because [Son A] failed to take responsibility for the pregnancy. After [Mr A] and his associates went to [Applicant 1] to complain of the pregnancy, [Applicant 2] went to [Mr A’s] house to discuss it, and told them that his sister should take a test, or report it to the police.
The Tribunal asked [Applicant 2] why his recent claims were not included in his protection application, and why he delayed applying for protection. He said he did not know his visa needed to be extended. When he realised he had overstayed, he was quoted $4500 to make an application. So he let it go because he had no money. In 2016 he met [name] who completed the form. He told him about the situation with the gang. He was told it could not be claimed, because only claims relating to loan sharks, homosexuality or politicians would be accepted. An email address was created for the purposes of the application. The Tribunal put to [Applicant 2] that his application said he was applying to get work rights, that he intended to return to Malaysia, that he had not been harmed and does not expect to be harmed in Malaysia, and that in April 2018 he added no substantive claims. [Applicant 2] said he did not know what was put into his protection application. Asked when he found out, he said the night before the hearing. Asked why he only just found out, he said he was just happy to get a bridging visa to stay here, but he did not get work rights. The Tribunal observed that this was very hard to reconcile with a genuine fear of being harmed. [Applicant 2] maintained that he was afraid, and had submitted evidence of the [Gang 1] still searching for him. He referred to the 2024 CCTV footage, and the statement from his friend in Johor. His wife and children have also been threatened and one son has had a cut on his face after being chased off his bike. Asked if this was reported to the police he said he refused to do this because he knew they were capable of worse.
Asked which gang member was caught after the July 2014 car crash, [Applicant 2] said he did not know. He only knew that [Mr A’s] brother was killed and that he has been told that a life must be paid for a life. He maintained also that the 2022 robbery of the house was the work of the same gang. The Tribunal noted that it had not been supplied with any evidence of who was charged and convicted in the 2022 robbery.
To [Applicant 3], the Tribunal put that she came to Australia in 2016 and 2017 with her sons but did not then apply for protection. [Applicant 3] said that was because she went back to Malaysia. The Tribunal observed that this could indicate that she had no fear of harm there. [Applicant 3] said she only came to visit her husband. She was not living here. The Tribunal observed that her husband had applied for protection, so if he was afraid of something, that may also have been of concern to her? The Tribunal observed that [Applicant 2] had claimed to have told his “agent” the whole story of the gangsters, but [Applicant 3] did not apply until February 2019. And in her application she said only that she was afraid of debt collectors. [Applicant 3] said she does not know anything about that, she paid someone to do it. She wants to stay here because she fears for the safety of her children. The Tribunal observed that it was unsure there was any risk to the children. [Applicant 3] said because of what happened to her and the children she is afraid. The Tribunal asked whether [Applicant 3] was saying the agent wrote down things that were wrong. [Applicant 3] reiterated that she does not know about the claims. Asked if she had read the decision, she said she did not think so, as her English is not very good. Asked if anyone had explained it to her, she said no, she just paid someone $500 and left it up to them. And when she lodged the review application she still did not know, she just paid them again. The Tribunal expressed the view that this was not the approach of someone who genuinely fears harm. [Applicant 3] said she does not want to go home.
The Tribunal put to the applicants that it was unlikely that all four related applications prepared by third parties would omit their actual claims, meaning the cases faced a challenging credibility hurdle. It invited the applicants to make any further comments, noting that there would also be an opportunity for their representative to make further submissions in replying to subsequent correspondence (see below).
[Applicant 1] said she only had the help of a police officer in his personal capacity, not officially. She said this was common in Malaysia. She said as a widow she makes all the decisions for her children and she sent her sons here for their safety. She thought the gang would leave her alone but they started harassing her, [Applicant 3] and [Applicant 6]. She was called an irresponsible mother who could not look after her children. Asked who said this, she said it was the gang, when they came to the [business 1] shouting. Customers complained and she got a warning from [the parent business]. [Applicant 1] said she has a house, three cars and plenty of valuables in Malaysia. If her life was not threatened why would she leave there? She said that [Applicant 3] was initially not permitted by her family to migrate, but then the same people came and yelled at them in Perak, again calling [Applicant 1] a mother who can’t take care of her children. This continued even after [Applicant 1] left. So they “hatched a plan” to get her to the airport and onto a plane. It was the same three men and woman, minus the brother who died of the axe.
[Applicant 2] made further comments, essentially reiterating his claims. He said the gang regarded them as a family of murderers. He recounted the claims made by [Daughter A variant] in her letter. They had called her family a family of murderers who caused the death of the brother. He said his mother may not be aware that all the people who came to harass and rob them are members of the same gang. The Tribunal observed that there were no police reports by the family, concerning the claimed sustained campaign of harassment and injury against them, from the alleged gang.
After the hearing
n 16 April 2025 the Tribunal wrote to the applicants inviting them to comment on information in accordance with s 359A of the Act. The letter read in part as follows:
The particulars of the information are that each primary applicant, in their protection
visa application or other evidence, made claims which contradict each of the other
primary applicants’ recent claims. Also, three applicants visited Australia a number of
times before making protection applications, and [Applicant 1] has been back to Malaysia several times since then.· [Applicant 2] did not have any protection claims, but indicated that he was making
the application because he had overstayed his visa and wanted work rights.
He also said he was living in [Town 3] working as the manager of a [business 2] from 2011 to 2015, which contradicts all the primary applicants’ later claims
that he was living in [Village 1] and working at the [business 1]. He said
he had not been harmed in Malaysia and did not expect to be harmed on
return. He did not apply for a review of the visa refusal until 2018. At that
stage he said he wanted to stay in Australia because people are friendly and
helpful.· [Applicant 1] visited Australia a number of times before and after lodging a
protection application. She said the bank had issued some summons against
her, and she had been informed that every day people were coming to her
house to demand payment. In September 2018 three unidentified men came
to her house wanting money and threatening to harm her and her family.
[Applicant 1] emailed further detailed claims in answer to question 76. She said
she and her business had been robbed a number of times and that she is
hunted by creditors including banks, who threaten herself and her children. On 20 April 2024 [Applicant 1] told the Tribunal in writing that all her children are in Australia (which is not true) and again referred to robberies. She submitted evidence related to robberies. She submitted the same material again in response to a hearing invitation, in December 2024.· [Applicant 3] and her children visited Australia in 2016 and in 2017 before lodging a
protection application, in which she said [Applicant 1] had borrowed money and
that debt collectors kept coming to the house shouting and threatening.· [Applicant 6] came to Australia three times, applied for a student visa, returned to
Malaysia again, and did not apply for protection until after her student visa ceased. Again, her claims refer only to robberies and debts, and creditors demanding money.
None of the applicants made claims about [Applicant 2] having been in a gang, resulting in a dispute with [Mr A] centred on [Son A] and [Mr A’s] sister, and subsequent harassment and violence from the gang to all family members.
This information is relevant to the reviews because it indicates that the primary
applicants do not tell the truth and that their claims are not true. The delayed
applications and multiple returns to Malaysia suggests that they did not fear harm.
If we rely on this information in making our decisions, we may find that you do not
have a well-founded fear of persecution or require complementary protection, which would be a reason for affirming the Delegate’s decisions.The representative replied as follows:
·In addition to their previous evidence, [Applicant 2] instructs that his English was not god and he was unable to check the protection application or verify what he had been told about protection visas; [Applicant 6] instructs that she had only just finished high school and it was her first time living out of home, she was overwhelmed by her circumstances and therefore relied on another person; and [Applicant 1] instructs that she was told that her claim could only relate to herself, and that if she mentioned the family it could affect their applications.
·These were reasonable explanations and therefore s367A does not apply. In this context the representative cited other Tribunal cases were s367A had not been applied.
·If the applicants’ accounts appear credible they should be given the benefit of the doubt.
·When given the opportunity to present their claims with representation, their evidence was consistent with each other and with supporting evidence.
·[Applicant 1] first came to Australia to help them settle in a new country, thinking that once they left Malaysia the remainder of the family would be safe. By December 2016 this was not the case but she needed to keep working to support her children. She did not want to leave Malaysia. She returned to Malaysia during the processing of her application because she wanted to see her mother who might soon pass away, and then because of the house being robbed; these were reasonable explanations and she did fear harm when she returned.
·[Applicant 6] stayed in Australia after the time she was chased off her bike; up to then she was considered safe until finishing high school. She returned to Malaysia only to get her school certificate. She applied for a student visa in Australia because she thought it was not possible to study on a protection visa.
·[Applicant 3] returned to Malaysia to look after [Applicant 1] and because her parents did not give her permission to leave Malaysia.
·The representative introduced submissions that [Applicant 6] has a disability. She has restricted [mobility] and is unable to stand or walk for long periods without significant pain. She would be identified as a person with a disability because of he way she walks. She feared stigma and discrimination, that should be unable to find employment and as a result would not be able to support herself. The representative cited DFAT’s Country information report that people living with disabilities are often hidden, portrayed negatively or excluded from society, faced daily stigma and that there were gaps in legislation that limited their rights. The representative also cited other reports on accessibility and discrimination and the absence of protective legislation.
·The representative referred to a letter from [Applicant 6’s] doctor dated 6 March 2025 regarding her ongoing plastic surgery and reviews, it states that she should be considered for alternative duties at work which do not trigger her symptoms of leg pain due to the [medical treatment], as she has trouble being on her feet for prolonged periods and her [condition] is affected by the cold. She is working as [an occupation 1].
FINDINGS AND REASONS
Based on the information in their applications, the Tribunal finds that the applicants’ country of nationality is Malaysia.
Other than [Applicant 3’s] very brief mention of animosity between Malays and Indians, unsubstantiated by any personal experiences or country information, the applicants have not claimed that they will be harmed on account of their race, religion, nationality or political opinion. No country information has been submitted indicating that ethnic Malays are at risk of serious harm from ethnic Indians in Malaysia. The current DFAT Country information Report contains no such information. The Tribunal does not accept that the applicants are at risk of serious harm due to their ethnicity.
It was claimed that people targeted by gangs are a particular social group in Malaysia. S 5L provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. The characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society. The Tribunal does not accept that victims of gangs are a particular social group in Malaysia as there is no information that they share such an innate, immutable or fundamental characteristic, nor one that distinguishes them from society.
It has been submitted that [Applicant 6] is a person with a disability. The Tribunal does not accept this. She has had surgery on her leg [specified] and consequently experiences pain if standing or walking for long. This may be visibly apparent to others in the way she walks when in pain, but it does not mean that she would be regarded as having a disability. She has not been assessed as having a disability, as that expression is understood and applied by the medical profession. She is in fact working. The Tribunal does not accept that [Applicant 6] is at risk of harm from others due to the aftereffects of her leg surgery.
It follows from the above, that the Tribunal does not accept that the applicants face a real chance of serious harm for any of the reasons specified in s 5J(1). The applicants therefore do not have a well-founded fear of persecution as required by s.5J(1). The Tribunal finds that the applicants are not refugees as defined in s.5H(1).
Turning to the complementary protection provisions, section 367A of the Migration Act requires the Tribunal to draw an unfavourable inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence presented before the primary decision.
In this case the primary applicants claimed that they were at risk of significant harm from a person called [Mr A] and his associates (“the gang”). They did not make this claim at the primary stage. The primary applicants have not provided reasonable explanations for this. All four claimed that a third party wrote their applications and omitted the claims. This was not plausible. There was no logical reason why their “agents” would include omit such claims. It was contended that one agent said their story was too long; this is not a reason, as the claims could have been put in a summary form. It was contended that one agent advised [Applicant 1] that she could only talk about her own case, and not claims secondary to another person. There was no rationale for this and the Tribunal does not accept that she was so advised. It was even less plausible that the same omission of the same claims would happen to four people in the same family when, according to their own evidence, they all used a different agent. Language issues and lack of understanding of the application process are not a reasonable explanation, as the primary applicants all were apparently able to communicate their situation to their agents. Further, [Applicant 1’s] initial claims about creditors were relied on by [Applicant 6] and [Applicant 3], and all the primary applicants submitted reports of robberies at the [business 1]. Only at the hearing did it become apparent that the 2016 and 1017 robberies were not part of their claims. [Applicant 1] also reinforced her claims about being pursued by creditors in an email to the Department. It is apparent that the primary applicants have considered their claims and evidence jointly and deliberately and the Tribunal does not accept they have been misled by third parties.
The Tribunal therefore draws an adverse inference as to the credibility of the new claims.
There are further credibility issues with the claims. Not only were they not put forward at the primary stage, but they were also not put forward until March 2025 (with the exception of a brief reference in [Applicant 3’s] outreach response in December 2024). It was argued that this was because the primary applicants decided to seek legal assistance when they realised they had made a mistake (as [Applicant 1] said, after [Son A] had his hearing). But the review applications had been on foot for several years. It appeared that none of the primary applicants paid attention to the decisions made on their protection applications before submitting a review application, which should have given them the opportunity to correct their claims early in the review. No persuasive explanation was given for this. To rely on third parties when their applications had been refused, and not seek to understand, even through a person speaking their own language from the community, why they have been refused and how they might succeed, was a casual approach which suggested that they did not fear harm but were pursuing the applications in order to stay in Australia longer. In April 2024 [Applicant 1] reiterated her initial claims. The strong impression conveyed is that the primary applicants decided to adopt and embellish [Son A's] claims shortly before the hearing.
Then there is the question of delay, and three applicants returning to Malaysia before lodging protection applications. [Applicant 3] returned twice, so did [Applicant 6], and [Applicant 1] several more times. [Applicant 1] argued that she thought the family would be left alone once the boys left, and that she had to tend to business. [Applicant 3] said she had to look after [Applicant 1] and that her parents would not let her migrate. [Applicant 6] said she was still studying. These were not persuasive explanations for delaying to lodge a protection application if they were at risk of harm. [Applicant 3] said at the hearing that she did not apply straight away because she was not living in Australia yet, as though applying for protection was optional once she had decided to migrate, rather than a necessity out of fear of returning to Malaysia. [Applicant 1] indicated that she had to come to Australia the first few times because her sons needed help settling, seemingly warranting the inference that she did not want to stay in Australia. Now, the sons may have been accustomed to being taken care of by their mother but there was certainly no need for her to bring them or send them here or help them settle. [Applicant 1] also argued that she was giving up a good life in Malaysia, and reluctant to migrate. She stressed that she would only have done so if she was genuinely afraid. However, [Applicant 1’s] quality of life in Malaysia is of little evidentiary value in supporting that her fear is genuine.
Then there is [Applicant 2’s] situation. He did not initially claim to be at risk of any harm, indeed he said he had not been harmed and did not expect to be harmed. He wanted to work. He did not make any different claims until March 2025. He overstayed his visa, and delayed lodging a review application. These are not the actions of a person facing significant harm. Moreover his application indicated that he had been living away from home from 2011 to 2015, contrary to his later claims which put him in [Village 1 variant].
Then, there are implausible elements in the claims, and elements that are unsupported by the evidence. It was not explained why [Applicant 1] thought and was advised that the police should become involved in a paternity dispute. The Tribunal notes that the claim persistently expressed was that [Son A] denied paternity. It was not contended that there was any prospect of [Son A] being prosecuted for having sex outside of marriage. It was also not apparent why the police would do a background check for [Applicant 1] as a private citizen. At hearing she said this was because the officer was a friend and that they just drew on their knowledge. But she had claimed something more official than this, which reinforced the impression that her claims were exaggerated.
It was said that [Mr A’s] brother was the deceased in the car after the July 2014 robbery of the [business 1]. There is no evidence supporting this. As the accident was connected with a robbery at the [business 1], and if it was the cause of [Applicant 2] being blamed for the death of [Mr A’s] brother, it ought to be possible for the applicants to provide official information about the identity of the deceased in the car and which gang member was detained and/or which ran away.
It was said that CCTV identified the gang as being involved in the 2022 robbery of the house, whereas the 2022 pictures do not identify any perpetrators but only the dishevelment of the house and the attendance of the police. [Applicant 1] said the robbery was part of a spate of [Gang 2] robberies and that the perpetrators were arrested. ([details deleted.]). If they included [Mr A] and his gang, again it ought to be possible for the applicants to provide official records of the identity of the convicts.
Then, there was differing and deficient testimony about whether any of the incidents of harm by the gang (threats, assaults, pursuits leading to injury, property damage) were reported to the police. It may be summed up by [Applicant 1’s] claim at hearing that some were, some weren’t. But if that were the case, police reports could be provided, as in the case of the [business 1] robberies. Contrary to the agent’s submission, the Tribunal does not accept that any of these were events reported to the police. That so many incidents of harm and harassment would be experienced as have been claimed, without any report to the police about the gang, tends to indicate that they did not occur.
It was said that the September 2024 CCTV footage shows a member of the gang at the house. The footage shows a shirtless man walking up a side garden, and looking over a courtyard wall. This is in daylight and he appears quite relaxed. The Tribunal is not satisfied that there is anything sinister or suspicious about this footage or even that the person is a trespasser on [Applicant 1’s] property.
It was claimed that [Applicant 6] and [Applicant 1] had to go to hospital, ([Applicant 6] when knocked off her bikes, and [Applicant 1] when she fainted), but no records of this have been submitted. If people have been treated in hospital it ought to be easy to obtain such records.
The Tribunal now turns to the potentially corroborating evidence. [Son A’s] claims in his protection application and at his hearing were put in fairly general terms, and may be considered weakly supportive of the applicants in this case. The Tribunal gives little weight to the witness letters. Like the new claims, they are not contemporaneous with the events they report. The Tribunal also gives little weight to the photos purporting to be of blood on [Applicant 3] and [Applicant 4]. It is not satisfied that the substance is blood or that even if it is, the injuries occurred as claimed.
Having weighed all the evidence, the Tribunal does not accept that most of the claimed events occurred.
As these claims were in effect abandoned, the Tribunal does not accept that [Applicant 1] was issued with summons by a bank or that anyone came to her home to demand payment or her daughters, or that men came to her house in September 2018 to demand money and threaten her and her family, or that she has debts to banks or individuals, or that any creditors including banks are threatening her safety.
The Tribunal does not accept that the gang exists. It does not accept that the gang accused [Son A] of impregnating a woman, or that they came to [Applicant 1’s] house or the [business 1] to harass the family on any occasion except when a fight occurred between [Son A] and [Mr A] over a stolen car in December 2014. It does not accept that the gang was involved in the July 2014 [business 1] robbery, or that that [Applicant 1] and [Applicant 3] were knocked to the ground during a fight in October or December 2014. It does not accept that the gang went to [Town 2] or Perak to pursue the applicants. It does not accept that the gang vandalised [Applicant 1’s] car or caused her to break her arm in a car accident.
The Tribunal does not accept that [Applicant 2] joined [Gang 1] or introduced [Son A] to the gang. It does not accept that [Mr A’s] brother died and therefore does not accept that [Applicant 2] was blamed for his death. It does not accept that [Applicant 2] had any fights with [Mr A]. It does not accept that [Applicant 3] or her sons, or [Applicant 6], experienced any confrontation with the gang or were watched by them, or that [Applicant 6] or [Applicant 4] were injured because of pursuit by the gang. It does not accept that the gang robbed the house in 2022 or that they confronted [Daughter A variant] at the house. It also does not accept that [Applicant 1] is being called an inadequate mother. It does not accept that any of the applicants are traumatised.
Only one robbery can be connected to [Son A], that of his car, and the related 2014 fight with [Mr A]. These did not involve the rest of the family, and occurred more than a decade ago. The prospect of the applicants being significantly harmed in the commission of any future crime against them is no more than speculative.
The Tribunal is not satisfied that the applicants are at any real risk of harm from anyone.
The Tribunal is there not satisfied there are substantial grounds to believe that on return to Malaysia there is real risk that the applicants will suffer significant harm as defined in s 36(2A), warranting complementary protection.
The Tribunal acknowledges that [Applicant 1] and [Applicant 6] have complex health problems and that [Applicant 6] requires further corrective surgery, important for her medical well-being and quality of life. However, these are not matters that meet the criteria for a protection visa.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
There is no suggestion that any of the applicants satisfies s 36(2) on the basis of being a member of the same family unit as any other person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicants do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decisions not to grant the applicants protection visas.
Representative: Ms Catherine Luong
Date of hearing: 19 March 2025
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