1928436 (Refugee)
[2024] ARTA 635
•7 November 2024
1928436 (REFUGEE) [2024] ARTA 635 (7 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 1928436
Tribunal:General Member R Johnston
Date:7 November 2024
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 07 November 2024 at 12:18pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – religion – Muslim – threatened by loan shark – travel to international destinations after collapsed investment scheme – inconsistent evidence –credibility concerns – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a national of Malaysia, applied for the visa on 19 May 2019. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (Tribunal). 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 Tribunal.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT, in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for the purposes of the proceeding after 14 October 2024. Anything done in, or in relation to, the proceeding after 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The applicant was born in [year] in Pahang, Malaysia. He has never married.
His father has passed away and his mother, [brothers, and sisters] continue to reside in Malaysia. In his oral evidence to the Tribunal he explained his mother remains living with his youngest brother in the family home he grew up in.
He is a Muslim and speaks, reads and writes English and Malay. He attended primary school between [years], middle school between [years], and completed a diploma [in] Pahang between 2010 and 2013.
According to his protection visa application, he worked between January 2014 and December 2015 as an [Occupation 1] for [an Industry 1] company in Pahang and between December 2015 and October 2017 he worked as a [Occupation 2] for a [Industry 2] company in Pahang. Across October 2017 and March 2019 he worked in [Field 1]for a [Industry 3] service in Selangor.
According to the delegate’s decision, the applicant arrived in Australia on [date] March 2019 on a UD-601 Electronic Travel Authority (ETA).
Claims and evidence before the Department
Protection visa application
The applicant lodged a protection visa application on 19 May 2019. The applicant makes the following claims in his protection visa application form:
· He left Malaysia because he was threatened by a loan shark that was disguised as a scammer for a financial loan.
· At first he thought that the advertisement was a promising thing that will benefit him and based on the testimony he has believed that the agency was reliable and was recognised by the government.
· He started borrowing a small amount of money for his business purposes.
· After he started paying for the loan settlement, the loan shark suddenly increased the interest for the loan which made it hard to settle the payment on time.
· Feeling betrayed and deceived at the same time, he went to discuss with them about the matter. They threatened to disturb and injure him and his family if he failed to settle his debt immediately.
· They came to his house bringing weapons that he believed could kill him.
· The loan shark is owned by the Chinese people, and they are protected by the new government agency. They tried to abuse him mentally and physically by being racist.
· The loan agency kept blackmailing him by sending emails and reminded him about the learning loan that he borrowed from the government and all this unreasonable interest can cause him to go bankrupt in Malaysia (i.e. CCRIS).
· He is violently being warned by them and being harmed just because he was unable to settle the debt immediately. The loan shark is responsible for all the serious injury to him and his family. He is traumatised by the actions done by the loan shark, and he cannot stand it anymore with all the threats.
· He tried to seek help in Malaysia by lodging a police report, but the police officer was a bit reluctant to take his statement. To this day nobody from the police station has contacted him to follow up his complaints. There is no action taken by the police since there are too many reports lodged everyday. The only thing that will make them take things seriously is by bribing the police.
· He tried to move to another part of the country, but Malaysia is a small country, and they can find him easily since they have networking all around the country. The only way to keep himself alive is to move outside Malaysia so that they are unable to do any harm to him. He has chosen to come to Australia since Australia is a well-developed country that treats all races as human beings and no racist issues will occur. Other Asian countries are just the same as Malaysia that are too racist and not treating people the way they should be treated.
· He will be harmed if he returns to Malaysia since the loan shark was still there chasing him. If he returns, he will experience the threat and murder attempt once again. They will keep trying to reach him to get back all their money. There is no way that they will let him go freely in Malaysia without being harmed.
· He is not confident with the authorities in Malaysia since he tried to seek their help before, but no action was taken to help him survive. It would take ages for them to even go through his report. They are taking things for granted due to the slow process in the government system.
· He would not be able to relocate elsewhere because they know his family address and they have networking all over the country. They will easily track him down and threaten him and his family.
Interview with the delegate
The Department did not invite the applicant to attend an interview to discuss his claims for protection.
The delegate’s decision
On 8 October 2019, a delegate of the Minister refused the applicant’s protection visa application. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that he will suffer significant harm as defined in s 36(2)(aa) of the Act. The delegate therefore found the applicant is not a person in respect of whom Australia has protection obligations.
Claims and evidence before the Tribunal
Review application
On 8 October 2019, the applicant lodged an application for review of the delegate’s decision. He included with his application a copy of the delegate’s decision.
Pre-hearing submissions
The applicant completed a pre-hearing information form dated 12 April 2024. In that document he included the following information:
· He wants Australia to grant him protection because he feels it is still not safe to go home. Recently he contacted his family, and they informed him that the loan shark was still looking for him to get the payment. He also received an email that his personal data has been hacked and misused for illegal activities. He believes that the loan shark sold his personal information to other illegal organisations since they have all his documents including his identity card and bank statement. He feels unsafe because all his personal data involving his financial status, banking, employment, and family information were exposed and used as a threat. They have violated his human rights by using his personal information without permission.
· They even threatened to harm his family members because of his failure to pay the debt. This new information shows how serious the danger he will be in if he returns.
· He has additional evidence that was not available at the time of his initial application. This evidence includes police reports and documents to support his statement.
· He believes a full review of his case should be conducted, considering the latest information provided. He understands the importance of a fair evaluation process and believes that his case should be reconsidered.
On 11 October 2024 the applicant submitted the following materials to the Tribunal:
· Financial consumer alert list – [a named bank] – [a] Fund Global – added to the alert list in February 2016.
· ‘Malaysians Fall Prey to Scam’, [media], undated.
· Website screenshot of [Company 1].
· Screenshot of an outline when the [Fund] Family Malaysia was conducting unlicenced activities, including a date of 4 April 2014.
· Photograph labelled to be of the co-founder of the [Company 1] Investment scheme.
· [Social media] post from [a named] Hotel declaring they do not have a partnership for investment with the [specified] Hotel.
· General IP Information for [website].
· Untranslated [article] with a photograph alongside it of an untranslated ‘Agreement’.
· List of companies on a police radar, including [Company 1], noted to be from [media] and dated 7 October 2017.
On 17 October 2024 the Tribunal wrote to the applicant requesting a clear full page legible copy of the documentation he provided on page four of the supporting documentation he provided to the Tribunal on 11 October 2024, being the untranslated [article] and photograph of the Agreement. The Tribunal outlined in that correspondence that the document was not legible.
The applicant responded to the Tribunal on 17 October 2024 by providing it with a copy of the [article] with photographed Agreement. The document provided by the applicant on 17 October 2024 matched the one included in his documentation of 11 October 2024. In his response to the Tribunal the applicant stated the document was taken from a local newspaper.
The hearing
The applicant appeared before the Tribunal on 18 October 2024 to give evidence and present arguments and submissions. No witnesses were called to give evidence in support of the applicant’s claims. The applicant was not represented in relation to the review.
The hearing was conducted with the assistance of an interpreter in the Malay and English languages. The interpreter appeared by videoconference. The Tribunal confirmed with the applicant they were able to understand the interpreter. The applicant was able to answer questions without hesitation and his answers demonstrated an understanding of the questions being put to him.
The Tribunal is satisfied that the applicant had a reasonable and genuine opportunity to present their case, make submissions, and participate fully in the hearing. The Tribunal confirmed with the applicant at the end of the hearing that he had given it all his claims and evidence and told it everything he wished to say.
Where relevant, the applicant’s oral evidence to the Tribunal is referred to in the analysis below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality: Country of reference Malaysia
The applicant claims to be a citizen of Malaysia and provided a copy of the bio-data page of his Malaysian passport to the Department. The delegate was satisfied that the applicant is using his own identity and that he is a citizen of Malaysia. At hearing the applicant presented his Malaysian passport to the Tribunal. The applicant has consistently claimed to be a citizen of Malaysia. In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicant is a citizen of Malaysia and Malaysia is his receiving country for the purposes of assessing his claims for protection.
Analysis, reasons and findings
In the hearing, the Tribunal discussed the applicant’s protection claims, what he claims occurred in Malaysia, why he fears returning to Malaysia, and his work, family, education, and residential history.
At hearing the applicant claimed he was a victim of the [Company 1] Investment scheme and that he was threatened and harmed physically and mentally in Malaysia by investors and downlines who he promoted the scheme to and who suffered a financial loss through the scheme. He claimed the investors and downlines blamed him, thinking he had conspired with the scheme’s leader. As outlined in detail below, the Tribunal has considerable concerns with the applicant’s claims, including his inability to provide persuasive and detailed evidence about how he was involved with and promoted the investment scheme. The Tribunal also has concerns about the applicant’s inability to provide any persuasive documentary evidence to support that he personally invested in the scheme, had downlines or investors, or was in any way connected to the scheme. The Tribunal has found the applicant has fabricated his claims he was an investor in the [Company 1] Investment scheme and that he promoted the scheme to family, friends and other investors to enhance his claims for protection. The Tribunal’s concerns, analysis, and findings are detailed below.
The applicant’s initial claims about loan sharks, debts, and identity fraud
In his written protection visa application the applicant claimed he was threatened by a loan shark disguised as a scammer for a financial loan and that he borrowed money for business purposes. He claimed he was blackmailed, abused mentally and physically, including on a racial basis, violently warned by the loan shark, and unable to obtain police assistance. He claimed they brought weapons to his home and that he moved to another part of the country. In his 12 April 2024 pre-hearing form he stated the loan shark was still looking for him to get payment, that his family were threatened, that he received an email that his personal data had been hacked and misused for illegal activities, and that he believes the loan shark sold his personal information to other illegal organisations.
At hearing the applicant explained his protection visa application was made by another person in Australia whom he paid a service fee to. He stated two weeks prior to the expiration of his visitor visa he met that person, told him his story, then his application was completed. He explained it was not until he received the decision record that he found out the information in the form was different to what he had told the person. The applicant explained he was not aware of what was written in the application form as at that time it was rushed, and he had paid money for the document, and he signed in a rush. At hearing the applicant resiled from his written protection claims, confirming he wished to abandon them, did not wish to rely on them, and instead he sought to rely on his oral evidence at hearing. He indicated the other personal details in his protection visa application form about his study details and work history were correct.
The Tribunal accepts the claims in the applicant’s written protection visa application form are not true, do not reflect what the applicant told the person who assisted him to prepare his protection visa application, and so the Tribunal does not consider these claims further. The Tribunal does not accept the applicant ever had a loan with a loan shark or that he or his family were ever harmed or blackmailed for any reason by any loan shark or that he ever sought police assistance or relocated in Malaysia in relation to any loan sharks. Given this, the Tribunal does not accept the loan shark is still looking for the applicant for any payments, that the loan shark sold the applicant’s personal information to other illegal organisations, or that the applicant received an email that his personal data had been hacked and misused for illegal activities.
Claims the applicant invested in and promoted the [Company 1] Investment scheme
The applicant outlined in his oral evidence how he became involved in the [Company 1] Investment scheme and the harm he experienced in relation to that scheme. In discussing the [Company 1] Investment scheme with the applicant he provided the Tribunal with the following details:
· He was a victim of the [Company 1] Investment scheme. He was involved with the scheme between October 2016 and April 2017.
· He invested 15,000 USD. First time investors each invested 3,500 USD plus another 1,000 USD. To increase an investment or for subsequent investments, money needed to be sent to the leader who invested it in the scheme.
· He actively promoted the scheme. He had to recruit members and offer lucrative returns such as a 15-30% return and investors could also participate in lucky draw prizes and get free hotels and nice items. This increased the confidence of investors and managed to attract lots of customers.
· Sometime in April 2017 he and the investors were expecting the company to give them profits or rewards and returns on their investment. They were expecting a return of the capital and dividends. The local newspaper and social media posted about the scheme.
· He, along with a few other investors, and the leader of the scheme, [Mr A], promoted the scheme. He was a representative of the group of investors who made inquiries about the capital and dividends. He contacted [Mr A] to ask why they had not received any return of their money and of their investment. Some of the investors took out their phones to ring individuals responsible for the scheme. At the end of April 2017 he tried to follow up the matter again and [Mr A] told him he was on a business [trip].
· After this he had arguments with investors including his downlines and friends who he promoted the scheme to. They were not happy with his explanation, and they accused him of collecting money from them to channel it to the leader of the scheme. They accused him of conspiring with [Mr A] to cheat them of their money. He was actually a victim too.
· The newspaper articles and social media posts started to say the scheme was not genuine. After he read those news articles, he was surprised then started to have a fear that [Mr A] might have cheated him and lied to him telling him that he was on an overseas [trip]. He believed he may have wanted to flee himself.
· They were not able to get their money back. [Mr A] was not contactable, and his number was blocked. The local newspaper mentioned it was a ponzi scheme and involved 150,000 people, but he believes it was more than that. All his friends and downlines who he promoted the scheme to blamed him and thought he conspired with the leader. They said he was the last person who had been able to contact the leader.
· He was threatened physically and mentally across 2016 and 2017. The types of threats could have been originating summons initiated by the police or authorities and police statements. There were letters threatening him saying they were going to cut him or injure him. The letters were produced by sub-agents for the scheme he promoted. They hit him because they were not happy they didn’t get their money.
· These things made him afraid and worried. He was depressed and it affected his health. He left his state and went to Petaling Jaia to work so he could escape.
· Somehow some of the investors managed to come to him. They stopped him and threatened him and accused him of taking their money.
· He tried to use his salary to pay them or compensate them the best he could. He did his best to compensate some friends who were close to him but not all investors. The other investors were very unhappy because they said that he acted unfairly towards them because he chose to be responsible or pay back some close friends but not everyone. They came to his new workplace and hit him. He was terminated by his employer and was really stressed.
· He had a conversation with his mother in 2023. His investors disturbed his family and asked for money. He has not had any contact with her since then.
· He is afraid to return to Malaysia because he’s been suffering mental stress and psychological stress because of what they said to him and threatened him. They said they are going to bring him to court and face the law. He feels his safety has been jeopardised and with money they could do anything against him. His health and energy were low, and he had no knowledge about the law.
· The authorities cannot provide him with twenty-four hour protection as he is not an important figure. He will be sent to prison if he returns to Malaysia.
The Tribunal has a number of concerns about the applicant’s oral evidence, as raised with the applicant at hearing, including his claims he invested in the [Company 1] Investment scheme, promoted the scheme to investors, friends, and family, and was subsequently harmed by investors and downlines. The Tribunal’s concerns are set out below.
First, the Tribunal found the applicant’s account of his involvement in the [Company 1]Investment scheme and claimed connection with [Mr A] through [product] sales to be vague and unpersuasive. The Tribunal asked the applicant to explain how he promoted the scheme. In response he stated he was introduced by one of his friends to [Mr A], as he had been selling [products] as a side business. He stated [Mr A] got to know how he could do sales for [products] really well and invited him to join the scheme. The applicant explained [Mr A] was the supplier of the [products] he sold to friends as well as the leader of the investment scheme. The applicant provided no persuasive or personal details as to how he actively promoted the scheme and recruited investors.
When pushed to explain how the applicant promoted the scheme, he stated he and his friends had demonstrated potential in selling the [products] so the individual saw potential in them and introduced the scheme to them and said it would help them generate more income and returns and incentives. He stated once he heard that information from the leader, he became confident and showed interest in the scheme. The Tribunal asked the applicant again to explain how he specifically promoted the scheme to others. In response he stated he promoted it using the same methods as he did for the [products], by introducing it to close friends, colleagues, neighbours, and customers who had purchased the [products]. The applicant was unable, despite repeated questions from the Tribunal, to explain in any detail how he specifically introduced and promoted the scheme to friends, family, and other investors.
In discussing his attempts to pay investors after the collapse of the scheme, the applicant stated he compensated some friends who were close to him but not all investors, and the other investors were very unhappy as not everyone had been paid. When asked how those investors knew he had paid some people and not others, the applicant stated he was not sure, but he had the impression a person jealous about him informed the other investors. The Tribunal found his responses to be general and unpersuasive. The Tribunal struggled to gain any understanding of how the applicant actually engaged with potential investors, signed investors up to the scheme, and how communication occurred between investors and downlines.
The Tribunal raised with the applicant its concern that aspects of his oral evidence had been vague and lacking in the type of detail it would expect from someone speaking from personal experience, who was heavily involved in the [Company 1] Investment scheme and connected to investors. It outlined that for someone involved in the scheme to such a significant degree it would expect him to be able to explain what specifically was involved in promoting the scheme, how the downline arrangement specifically worked, how people signed up to the scheme and how the scheme operated. The Tribunal explained the vagueness and lack of personal detail overall in his evidence might lead it to believe that his oral evidence in support of his claims lacks credibility. In response the applicant stated the scheme involved a religious and faith issue and an element of Islam and that he had been told by leaders he could assist to help improve the economic situation for Muslims. He stated after he became a victim of the scheme, he realised the scheme used Islam as an element to promote the sales to Islamic investors and it piggybacked on Islam. The Tribunal considered the applicant’s response and did not find it addressed its concerns. Despite multiple questions and the Tribunal raising its concern about the lack of specific detail in the applicant’s evidence the applicant could not describe how he promoted the scheme and signed investors up to it.
Secondly, the Tribunal found the applicant’s oral evidence that he was connected to the scheme and [Mr A] through selling [products] to be unpersuasive, particularly in the context of his employment history in Malaysia and his personal profile. At hearing the Tribunal asked the applicant about his employment history in Malaysia. He confirmed the details of his employment history as stated in his protection visa application were true, including that he worked as an [Occupation 1] for an [Industry 1] company between January 2014 and December 2015, a [Occupation 2] for a [Industry 2] company between December 2015 and October 2017 in Pahang, and in [Field 1] for a [Industry 3] company in Selangor from October 2017 until March 2019. When asked if there was any other work he undertook in Malaysia other than the work detailed in his protection visa application, he stated he had a sideline job selling [products].
The Tribunal raised its concern with the applicant at hearing that he had not mentioned his claimed [sales] work in his protection visa application, despite providing details of his other employment in Malaysia. It explained it may find he has fabricated his claim he sold [products] in order to support his claims he was involved in the investment scheme and that his evidence is not credible. In response he stated he was stressed at the time he completed his protection visa application and only got to know what information was in it after he got the decision from the Department. The Tribunal considered the applicant’s response and did not find it persuasive where his protection visa application contains substantial details about his other employment in Malaysia, including his specific roles, the dates he was employed, and the location of his work.
The Tribunal also raised with the applicant its concern as to how someone of his profile would have direct contact with [Mr A] or be able to secure such significant downlines in the scheme to the extent he would be targeted. He stated in response that he was working in Pahang and apart from his ordinary job he had two friends selling [products] as a part-time business and one of the two friends knew [Mr A] and [Mr A] was considered a prominent businessman and VIP. The Tribunal considered the applicant’s response and did not find it overcame its concern. The applicant was unable to provide the Tribunal with any specific and persuasive personal detail as to how he developed a strong investment profile connected to the [Company 1] Investment scheme, how he was able to generate significant downlines, and how he developed a direct relationship with [Mr A] given his personal profile and background.
Thirdly, the absence of corroborative evidence to support the applicant’s claims he invested in the scheme, promoted the scheme, and was harmed in respect of the scheme causes significant concern for the Tribunal. The Tribunal discussed the supporting evidence the applicant provided in support of his claims with him at hearing, outlining it appeared to be publicly available material from internet sources and that nothing in the material he had provided to the Tribunal appeared to be specifically about him. The applicant stated everything about the scheme was well constructed and planned and done through a website, so he doesn’t have details and probably people in the top position do but his job was to promote it, so he has only managed to get newspaper cuttings and generally available information from local newspapers and social media postings. He stated after the scheme ended, the local authority abolished or removed the website.
During the hearing the applicant explained to the Tribunal that he had invested money in the scheme himself. He also stated he promoted the scheme to family, friends, and other investors, and had his own downlines. He stated in his oral evidence that he made payments to family and friends from his salary after the collapse of the scheme and that there were letters threatening him and other threats that could have been originating summons initiated by the police or authorities or police statements. Whilst the Tribunal appreciates the applicant may not have a number of supporting documents given the passage of time and his departure from Malaysia, the absence of any documentation connecting the applicant personally to the scheme in any way caused the Tribunal to doubt he had any personal involvement with it. The applicant did not provide the Tribunal with any evidence of his personal financial investment in the scheme, transfers from his investors into various accounts, his payments to his investors, or any threats that he received.
The Tribunal raised with the applicant its concern that there is an absence of corroborative evidence to support his claims, in circumstances where the Tribunal would expect him to have documentation such as materials related to the investment scheme, evidence of his initial investment, documentation regarding his promotion of the scheme, materials connecting him to investors, and emails or police records regarding his involvement in the scheme. It explained the lack of corroborative evidence, and that he had only provided general publicly available documents in relation to the scheme, may lead it to have difficulty believing aspects of his claims and to find they are not credible. In response the applicant stated the scheme was well planned and he only knew the information after he read the posts on the news. He reiterated everything was done through a website and they could at any point in time shut down the website and destroy all evidence. He stated the scheme was formed by a group of professional and prominent figures in Malaysia including businessmen. The Tribunal considered the applicant’s response and did not find it allayed its concerns.
Fourthly, the Tribunal had concerns about the applicant’s international travel after his claimed involvement in the [Company 1]Investment scheme and after he claims he was harmed by investors after the collapse of the scheme in April 2017. At hearing the Tribunal discussed with the applicant the stamps in his passport that he provided to the Tribunal. He confirmed in his oral evidence he travelled to [Country 1] on [date] August 2017 and [date] March 2019 and [Country 2] in September 2018. The Tribunal raised its concern with the applicant that it may find his claims are not credible where it appears he has travelled on multiple occasions after the issues he had claimed occurred involving the [Company 1] Investment scheme, including to [Country 1] in August 2017, [Country 2] in September 2018, and [Country 1] again in March 2019, and where he did not seek protection in any of those countries and returned to Malaysia on each occasion.
In response the applicant stated after the incidents with the scheme he went to [Country 2] and [Country 1] to do some research and find more about those countries so he could decide where to go to continue his life and work. He stated in both cases those countries are in South Asia and could easily be visited, whereas it would be difficult for investors to continue to threaten him in Australia and to come to Australia, and Australia could provide protection and a high level of security. The Tribunal considered the applicant’s responses and did not find they allayed its concerns, particularly where the applicant travelled to [Country 1] in August 2017 and returned there again in March 2019. The applicant’s lack of application for protection in either [Country 1] or [Country 2] and repeated return travel to Malaysia caused the Tribunal significant concern as to his claimed fear of harm on return to Malaysia.
Fifthly, the Tribunal had concerns about the circumstances within which the applicant submitted his protection visa application. It explained to him at hearing it was concerned about his evidence he had rushed his protection visa application and did not check the details before signing the document. It explained if his claimed fear of harm on return to Malaysia was as genuine and real as he has claimed, it would expect him to have checked the details in his application and to ensure his claims were correct. The Tribunal explained this concern may lead it to find his claims and feared harm on return to Malaysia are not credible. In response the applicant stated he was desperate at the time he submitted his protection visa application and only knew the one individual he told about his situation and that agent said what visa he could offer. He explained without thinking too much he agreed to the offer, and it was processed after he paid the money. He explained he was new to Australia, didn’t know much about Australia, had not been here before, was young and did not know what to do, and decided to go ahead. The Tribunal considered the applicant’s responses and whilst it appreciates the applicant had limited familiarity with the Australian visa system, it did not find his responses, particularly in the context of the Tribunal’s other concerns with the applicant’s claims and evidence as detailed above, alleviated its concern.
Considering the above concerns of the Tribunal, on an individual and cumulative basis, the Tribunal finds the applicant’s claims he invested in the [Company 1] Investment scheme, promoted the scheme to anyone, and was threatened or harmed by anyone in relation to the scheme are not credible and that he has fabricated these claims to enhance his claims for protection. In making this finding the Tribunal has been mindful of factors that may have impacted the applicant’s ability to provide oral evidence at hearing, including the use of an interpreter, nervousness, and unfamiliarity of the Tribunal setting. The Tribunal also acknowledges a person before the Tribunal may forget dates, locations, names, the chronological order of events, and personal experiences due to the passage of time and other reasons.
Given the number of concerns the Tribunal has with the applicant’s claims, including his inability to explain in any persuasive or detailed way how he promoted the scheme and was connected to investors and the scheme’s leader [Mr A], the lack of any supporting documentation connecting the applicant personally to the scheme or any investors, and the applicant’s travel to international destinations after the collapse of the investment scheme, the Tribunal has ultimately formed the view the applicant’s claims are not credible.
Findings
For the reasons outlined above and considering the evidence before it, the Tribunal is not satisfied of the applicant’s claims. The Tribunal does not accept the applicant invested any money in or was a victim of the [Company 1] Investment scheme at any time. The Tribunal does not accept the applicant promoted the [Company 1] Investment scheme to anyone at any time, that he had any investors or downlines, or that he had any contact with or connection to [Mr A], including in relation to the sale of [products] or the [Company 1] Investment scheme. Given the Tribunal does not accept the applicant invested in, promoted, or had any investors in relation to the [Company 1] scheme, the Tribunal does not accept the applicant was physically or mentally threatened, harmed, sent letters, or contacted at any time by any investors of the [Company 1] scheme, that anyone has made any police reports about him at any time or for any reason, or that he has been summonsed or wanted by the police at any time or for any reason. As the Tribunal does not accept the applicant invested in, promoted, or had investors in any scheme, the Tribunal does not accept he became depressed or worried or that his health was affected due to any threats or harm, that he went to Petaling Jaia to escape anyone or any threat or harm against him, that any investors in the [Company 1] Investment scheme followed him to Petaling Jaya and stopped him, threatened him, and came to his new workplace, that he was terminated by his employer, or that any investors have disturbed his family and asked for money at any time.
For the reasons outlined above, the Tribunal does not accept the applicant ever had a loan with a loan shark or that he or his family were ever harmed or blackmailed for any reason by any loan shark or that he ever sought police assistance or relocated in Malaysia in relation to any loan sharks. Given this, the Tribunal does not accept the loan shark is still looking for the applicant for any payments, that the loan shark sold the applicant’s personal information to other illegal organisations, or that the applicant received an email that his personal data had been hacked and misused for illegal activities.
Does the applicant satisfy the refugee criterion for protection?
The applicant claims he will be harmed on return to Malaysia by investors and downlines in the [Company 1] Investment scheme that he promoted the scheme to and that blame him for their failed investment and that consider him to have conspired with the scheme’s leader. He also claims he will be jailed on return to Malaysia in connection to his involvement in the [Company 1] Investment scheme. As outlined above, the Tribunal does not accept that the applicant invested in the [Company 1] Investment scheme, that he promoted the scheme, that he had any investors or downlines from the [Company 1] Investment scheme, or that he was threatened or harmed in any way in relation to the [Company 1] Investment scheme. The Tribunal does not accept therefore the applicant’s claim that he will be harmed by investors or downlines on return to Malaysia or that he will be jailed for any reason.
The applicant did not claim, and there is nothing in the material to suggest, that he fears persecution for any other reason in Malaysia. As set out above, the applicant abandoned his written claims during the hearing and confirmed he wished to rely on his oral evidence given at hearing. When the Tribunal asked that applicant at hearing if there was any other reason or basis on which he feared harm on return to Malaysia, he stated no and reiterated his concerns in relation to the [Company 1] Investment scheme. The Tribunal accepts other than his claims in respect of the [Company 1] Investment scheme the applicant has no other fears of returning to Malaysia.
Given the above, the Tribunal finds if the applicant returns to Malaysia in the reasonably foreseeable future, he will not face a real chance of serious harm for any reason.
For the reasons given above and having considered the applicant’s claims individually and cumulatively, and the Tribunal’s findings as set out above, the Tribunal is not satisfied that if the applicant returns to Malaysia now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, the applicant does not meet the definition of refugee in s 5H(1) and does not satisfy the criterion set out in s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
For the reasons set out above, the Tribunal has found that there is not a real chance that the applicant will experience harm for any reason if he returns to Malaysia. The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[1]. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows, and for the same reasons as those set out above, that the Tribunal finds that the applicant does not face a real risk of significant harm for any reason.
[1] MIAC v SZQRB [2013] FCAFC 33.
On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm. That is, the Tribunal is not satisfied that there is a real risk in being removed from Australia to Malaysia that he will be arbitrarily deprived of his life or suffer the death penalty; or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision under review.
Date of hearing: 18 October 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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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.
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5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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