2002947 (Refugee) - [2025] ARTA 1080

2002947 (REFUGEE) [2025] ARTA 1080 (2 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2002947
Tribunal:General Member B Gogarty
Date: 2April 2025

Place:Hobart
Decision:The Tribunal affirms the decisions under review.

Statement made on 02 April 2025 at 10:52am
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from creditor – induced to sign for business loan by partner, who later defrauded company and absconded – threats by creditor and attack in public place – limited response by police – located and contacted after relocating – inconsistent and contradictory evidence and no documentary evidence – amount of loan and pattern of harassment – differences amount to new claim – no reasonable explanation and adverse inference drawn – no attempt to repay debt – employee and not business partner – second applicant cousin left Australia – effective police force and debt relief services – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 367A
Migration Regulations 1994 (Cth), Schedule 2
CASES
EQU19 v MICMA [2023] FCA 1182
Mohamed v MIMA (1998) 83 FCR 234
ZUHJ v MIBP [2018] FCA 331
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 7 February 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who are Malaysian nationals, applied for the visas on 12 September 2019. The delegate refused to grant the visas on the basis that they did not meet the criteria for the grant of a protection visa (the “primary decision”).
The applicants applied for a review of the primary decision to the Administrative Appeals Tribunal (“AAT”) on 16 February 2020. That application was not finalised by 14 October 2024 when the AAT became the Administrative Review Tribunal (the Tribunal). By virtue of the operation of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the application for review to the AAT is taken to be an application to the Tribunal.
The applicants were invited to a hearing on 22 January 2025. [The first named applicant] (the “primary applicant”) appeared before the Tribunal on 22 January 2025 to give evidence and present arguments. A further hearing was conducted on 24 January 2025. [The second named applicant] (the “secondary applicant”) failed to attend either hearing and or contact the Tribunal about his non-appearance. The primary applicant informed the Tribunal that the secondary applicant had left Australia for Malaysia, and movement records before the Tribunal indicated that the secondary applicant has been offshore since 2021.
The Tribunal hearings were conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
The primary applicant told the Tribunal that he was born in Sarawak in [Year] where he grew up and went to school. He is not married and has no children and has no citizenships other than Malaysia. Although he wrote in his original application that he had no family, he said at the hearing that both of his parents are alive and he has two younger sisters, all of whom live in Malaysia. He said his father is a retired [occupation 1] and his mother works as [an occupation 2] in a [workplace] and that they live in government housing.
The primary applicant’s original application and oral testimony indicate that he is well educated. He went to middle and high school in Miri, Sarak, before going on to the [Institution] and completing a diploma in [Subject]. After he finished his diploma, the primary applicant claimed he was involved in a joint-venture startup. The evidence as to his role and status in the company was not always entirely clear to the Tribunal – although he said that he was variously responsible for operational management and [work task] work and was paid a salary. Ultimately, he said that the company failed, and the primary applicant went on to move to Kuala Lumpur where he worked in jobs as [an occupation 3] and separately [an occupation 4] before leaving for Australia on a tourist visa.
Movement records show the primary applicant arrived in Australia [in] July 2019. On 12 September 2019, he applied for a protection visa with secondary applicant as co-applicants (the “original application”). Around the same time (about three months after entry into the country) the primary applicant began working in manual or [work sector] work. His first steady job was in [a workplace 2] where he worked for around a year and a half before becoming [an occupation 5] in a [workplace 3] in Melbourne, Victoria, where he continued to work at the time of the hearings.
The secondary applicant did not attend either hearing and has ultimately been determined to be offshore and outside of the jurisdiction of the Tribunal (paragraph ‎40.). It is not necessary to provide a substantive review of that applicant other than to identify that the original application identified him as the cousin of the primary applicant. The original application indicated the secondary applicant was born in [Year] (around three years earlier than the primary applicant was born), and that he is also a Malaysian citizen. As with the primary applicant, the original application stated the secondary applicant has no family inside or outside Australia. The original application also identified the secondary applicant’s previous Malaysian address as being in Sarawak, Malaysia.
Movement records before the Tribunal indicate that the secondary review applicant arrived in Australia [in] July 2019, departed Australia [in] December 2021, and never returned. At the hearing, the primary applicant informed the Tribunal that the secondary applicant departed to, and is currently residing in, Malaysia. The primary applicant – who is the authorised recipient of communications for the secondary applicant – also confirmed that the secondary applicant had left the country in writing on 31 March 2025.
Evidence before the Department
In their application for a protection visa the applicants made the following claims:
“The reason I [the applicants] seeking protection and living in Australia is because we was threatened by a dangerous person in our hometown. We loaned a couple thousands from a person before, who was introduced by one of our business partner to open a business in Borneo Malaysia, and after that we've been scammed by our business partner and the person who loaned us the money threatened us and our families. We tried to run away to Kuala Lumpur and other state in Malaysia but they were still able to find our location and chase and threatened to kill us. We felt threatened, scared and unable to do anything. We unable to report to police because all the accounting history, bankin history and management history were kept by the business partner who scammed us and ran away and we unable to find him and search for him. The person we loaned with have alot of connection with gangster in throughout Malaysia, so I’m scared to go out even from my house. My family can't support me to pay the money and also I’m the oldest among my sibling, and then my family kicked me from my house because they were threatened too. Living in depression, we are seeking protection and to be able living in Australia to restart our life here as a new person. Hope that Australian Goverment can consider our request.
…
We felt threatened, scared and unable to do anything even when we look for jobs, we feel insecure because those people would send someone to look for us. We tried to pay our loans back but we don't have enough income to pay them immediately. They always come to our house and broke our stuff.
…
We did move to other part of Malaysian states but they still manage to find us by sending their middlemens. We moved to Kuala Lumpur and Sabah. They still able to find our stay locations and where is our whereabout.” [all caps removed, mistakes in original]
The Department did not interview the applicants. It did determine that the applicants had provided sufficient evidence of their identity and confirmed their identities were truly stated in the original application. Having reviewed the delegate’s decision and the documents provided by the applicants, the Tribunal also accepts that the applicants are who they say they are.
The delegate reviewed the application, claims, and evidence presented against the country information available and, on 7 February 2020, determined that neither applicant met the refugee definition in s5H(1) nor the complementary protection criteria in s 26(2)(aa).That was because the delegate considered neither applicant faced a well-founded fear of persecution or real risk of significant harm as a foreseeable consequence of being returned to Malaysia.
Evidence before the Tribunal
On 16 February 2020, the applicants lodged an application for the review of the delegate’s decision to the Administrative Appeals Tribunal (AAT). The application listed both applicants as having the same postal address and the primary applicant as being the authorised recipient of communications for both applicants.
On 6 May 2024, the applicants were notified that the matter was to be constituted to a member of the AAT for review and they were invited to complete a pre-hearing information form which allowed them to, amongst other things, update their personal details and, if necessary, claims. The pre-hearing information form was completed and returned on 12 May 2024 by the primary applicant. The secondary applicant was not mentioned in the form, and the AAT was not notified about their departure from Australia. The primary applicant did not seek to update or clarify the claims made in original application in the pre-hearing information form.
The matter was listed for hearing before the Tribunal on 22 January 2025.
Pre-hearing evidence
Pre-hearing evidence in the Department and Tribunal files before the Tribunal included:
·The original application and primary decision;
·The pre-hearing information form;
·Movement records relating to both applicants;
·Country Information Report for Malaysia, issued by the Department of Foreign Affairs & Trade (DFAT);[1] and
·DFAT ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.[2]
[1]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.
[2] Ibid.
The first substantive hearing was affected by technical and other issues which generated delays resulting in a further substantive hearing on 24 January 2025. Both hearings were conducted by video online by MS Teams. The evidence given in the hearings is dealt with together in this decision unless it is necessary to distinguish the specific hearing it was presented at. While the primary applicant was provided an interpreter, he predominantly conversed with the Tribunal in the English language.
The second applicant did not attend either hearing. The primary applicant explained that the secondary applicant had returned to Malaysia, and that he was not in contact with him, but “if there is a need” he would contact him to withdraw his application. No application to withdraw the application for protection was subsequently received by the secondary applicant and on 24 March 2025 the Tribunal wrote the secondary applicant notifying him of information before it which indicates that he was, at all material times, living outside of Australia meaning that he no longer satisfied the criteria for a protection visa. The primary applicant responded to that letter as the secondary applicant’s authorised recipient confirming that he was outside Australia.
Evidence given at hearing.
At the hearing, the primary applicant was asked if he had completed the original application himself and he agreed that he had, and confirmed what was in it was true. Asked what his claims were, he said that he feared returning to Malaysia because his creditors would find him and threaten or physically harm him. In support of that, the primary applicant claimed that:
·He (the primary applicant) became involved in a business venture in Malaysia when he was approached by his business partner, [Mr A], who—along with his wife [Ms B] (who are married and operate together as business partners)—sought financial support for a [work task] business.
·He (the primary applicant) entered a partnership with [Mr A] (and presumably [Ms B]) alone, that is, with no family support or involvement – including his cousin the second applicant.
·There were complex business arrangements – which the primary applicant was not always entirely clear about – but that [Mr A] acted as the ‘business developer’ and that with [Ms B] they were responsible for human resources, while the primary applicant’s role was “like an operation manager” although at other times he claimed he was directly involved in [work task] or staff management.
·That [Mr A] said he had secured finance and, at a coffee shop meeting, introduced him to a lender/investor named ‘[Mr C]’ who presented him (the primary applicant) with documents and requested that he sign documents as a guarantor for a loan to finance the venture.
·Due to the primary applicant’s youth and inexperience at the time, that he did not read the documents thoroughly – although he could not strictly say what documents there were other than a piece of paper he signed – and trusted [Mr A]’s explanation that the funds were to be invested in their joint venture.
·That [Mr A] told him that the amount was an investment, rather than a loan, for “70 grand” (ringgit).
·After receiving the loan, the primary applicant said variously that the business was his, or that it was part of another business, or that he was paid a monthly salary, and that there was a partner in a dividend and residual arrangement.
·That after a period which was not clear on the evidence, probably “about a year”, [Mr A and Ms B] stripped the business of its capital and property and fled. The primary applicant only discovered this when “I came to office, the documents were gone, the computers were missing, the data were gone and me and my staff came to office, and we were surprised”.
·While he did not know if [Mr A and Ms B] had fled the country, he was unable to locate them, and their house was empty, and car gone. He could not remember the date of this, but it was “probably” in late 2017.
·The primary applicant did not make or keep any contemporaneous documentary record of the claimed fraud or surrounding events relating to [Mr A and Ms B].
·That even though the business he created had been defrauded he initially did not report the event to police because “because after working for him for about a year, I had grown to trust him [Mr A”].
·Although the staff understood it was [Mr A and Ms B] who defrauded the business they directed their anger at him, and he was forced to terminate their employment and paid them for their final month out of his limited savings.
·His parents encouraged him to report to the police but the police told him to “come back with evidence and therefore I thought it was hopeless and useless because I didn't have any evidence”, and when asked by the Tribunal why he couldn’t just show the police photos and have staff give statements he said “I never think of that at that time because they were anxious and angsty about their salary and I didn't know what to do to do with them” and that “from the beginning I am the face of operations and therefore they only see me”, although he had explained that the others had stolen the money not him and that the staff forgave him of that.
·That after a month, creditors (initially the landlord) began to request payments from him, including for the rent for the premises which he was forced to vacate after around three weeks.
·Following the shut-down of the business he “stayed at home” with his parents and two sisters in the family home in Miri; and his parents encouraged him to find a new, secure job, but he remained unemployed.
·Around two to three months after being defrauded, the investors who had provided the 70,000 ringgit ‘investment’ knocked on his parent’s door while he was away and told his parents that he was responsible for the entire amount “plus”. Initially they explained “nicely” that the amount was in fact a loan and that the primary applicant owed that money back to the creditors.
·The creditors returned to his parents’ house every month, becoming more threatening as he failed to pay. Initially he agreed to pay 2,000 ringgit a month but as his wages were too low (he said he had started working in a hotel) he was unable to pay that the threats escalated further.
·His parents went to the police on his behalf, but he does not have a record of their report. After that the creditors ransacked the family home at some time in late 2018 but did not provide any contemporaneous evidence of this.
·That at another time he was attacked in a public place, and “a knife was put to my neck” and he was “punched,” and as a result he became “so scared”. He said he did not make a police report of this assault because he felt “there’s nothing they [the police] can do”.
·He subsequently fled to Kuala Lumpur to live at a friend’s condominium and, on arrival there, broke his Sim Card. The creditors did not find him but did, for reasons he does not understand, obtain his contact details, and telephoned him to tell him they knew he was in Kuala Lumpur and threated his family if he did not pay. However, his family had “moved to another flat”.
·He has never serviced any of the debt the creditors say he owes them. He did not return to his parent’s house in Miri after moving to Kuala Lumpur.
·After his departure from Miri (and inferentially after they moved to another flat there) his family have not been harassed or harmed by his creditors.
·Some time in early 2019 his mother encouraged him to move to Australia with his cousin (the secondary applicant)
While the primary applicant’s oral evidence largely mirrors what was claimed in the original application, there are several differences:
·     The original application claimed the events, including starting the relevant business, taking out loans, being defrauded, and being subject to threats and harm by creditors happened to both applicants, not just the primary applicant as was claimed at the hearing.
·     That the level of debt was orders of magnitude higher, increasing from “a couple thousands” in the original application to 70,000 “plus” ringgit in the hearings.
·     While the original application stated that they were “unable to go to police” the primary applicant stated at the hearings that at least two police reports had been made, but that he did not keep or have these and that he did not report other harms or risks because he considered the police could not do anything.
·     In the original application that the creditor’s came to the co-applicants’ house and that that house was broken into and their (the co-applicant’s) “stuff” broken, but at the hearing the primary applicant said it was his own family that was harassed at the family home while he was away.
·     The applicants originally claimed to have moved to other Malaysian states of Kuala Lumpur (the Federal Territory located in Selangor), and Sabah, and that middlemen had tracked them to their “stay locations”. In his oral evidence the primary applicant stated that he, alone, had moved briefly to Kuala Lumpur and had only been telephoned while residing there by the creditors.

While there were other differences between the sources of the evidence, the Tribunal considered these to be the most material and put each identified inconsistency to the primary applicant.
The Tribunal highlighted that the removal of the co-applicant from the narrative of evidence presented to the Tribunal at hearing was inconsistent with the written claims he had made in his original application which he had told the Tribunal were also true and correct. It was put to the primary applicant that the changes in the story might suggest that it was concocted to allow each respective person to stay in Australia at the relevant time. The primary applicant responded that:
“ [The second applicant] was accompanying me and intended to stay forward and then [the second applicant] returned. [The second applicant] needed that particular visa. But [the second applicant] just left, just like that.
…. What I say now is the truth Member. I need that visa and he [the co-applicant] was merely accompanying me. I worried that it would just be me alone here and therefore I needed him for a while with me.”
It was put to the primary applicant that his original application stated that creditors came to his and his cousin’s (the secondary applicant’s) house in Malaysia raised an inconsistency with his oral evidence that he did not live with his cousin, the co-applicant, at any time until they arrived in Australia. The review applicant acknowledged the inconsistency but did not address it.
It was put to the primary applicant that, given his evidence read with the movement records indicated that the secondary applicant had returned to Malaysia, he could not genuinely fear the creditors that the primary applicant had originally stated threatened them both, nor any other risk of significant harm that the two were claimed to share. The review applicant acknowledged the issue raised by this evidence but did not address it.
The primary applicant was asked to explain why he had only mentioned a debt of a “couple thousands” ringgit in his original application but had inflated that to over 70,000 in his oral evidence. It was put to the primary applicant that that might connote a change in his evidence to make the risk to him appear more serious. The primary applicant stated he understood the issue but that:
“My English isn't polished Member and therefore I thought that it shows large amount … I didn't explicitly say 70 grand, however I wanted to show and paid a large amount … I had the impression a couple of 1000 means a whole lot more.
The primary applicant was specifically asked during the hearing whether he had, after apparently fleeing from Miri to Kuala Lumpur, gone anywhere other to Australia. He had said that he had not. The Tribunal pointed out that this contradicted his original application in which he had claimed that he and his co-applicant had fled to both Kuala Lumpur and Sabah. The Tribunal informed the primary applicant that this could be taken to indicate that both what he had written in his original application was not true and further, and that he did not truly try to move away from any risk in Malaysia. The review applicant acknowledged the issues raised by the Tribunal but did not address them.
The Tribunal also raised inconsistencies and contradictions across the broader evidence presented by the primary applicant.
It was put to the primary applicant that he had stated in both his oral and written evidence that his creditors were able to find his, his cousin’s (as co-applicant), and his family’s location no matter where they were in Malaysia, but this conflicted with his other evidence indicating that both he and his family moved premises and were not subsequently harmed. The Tribunal indicated that this might suggest that the primary applicant and his family were able to successfully move away from any harm. The review applicant stated that:
“When they [the creditors] call and they share that they know my location, that was when I became worried and when I made the decision to leave. I don't wish to take further risk and I don't wish to move and therefore get such phone call again being told that they know where I'm located.”
The primary applicant’s ability to pay for his own flight to Australia and the correlative evidence of family and friendship network support were raised with the primary applicant as raising issues with his narrative that he would not be able to service his claimed debts if he was returned to Malaysia. The primary applicant responded:
“That is not possible because my mom and my dad, they both have their debt to the loan shark. My mom owes them [creditors] more than more than 200 grand and they [his parents] have to pay on their own. And after all this time when I send money, it's not to pay off my debt, but it's to service them and to help them.
… at first I maxed out my credit card line of credit [paying for airline flights to Australia] and then I had what little savings and then my mum also chip in the next.
Country information relating to Malaysia was put to the primary applicant. Namely, that “Multiple local and international sources consider the RMP to be a professional and effective police force” and more broadly that information indicates that Malaysian police do respond to threats of harassment, including from Money lenders. The Tribunal also highlighted country information which indicated that there are a range of public and non-profit sources of support and assistance by persons affected by loan shark debts. The primary applicant responded:
“Whatever you say most applicable to big towns, but to where I come from Miri it is something not quite like on paper.”
The primary applicant was further asked, based on the country information, why he did not report the emptying of his office by his fraudulent business partners. While the Tribunal acknowledged the varying approaches taken by authorities to loan sharks in Malaysia, the country information indicated that the authorities do take robbery seriously and that that any business owner who had started their own business and was robbed like that could be expected to report to a trustworthy police force. The primary applicant acknowledged the issues raised by the Tribunal but did not address them.
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.
REASONS AND FINDINGS
Jurisdiction in respect of secondary applicant
The first issue to be addressed is whether the second applicant is within the jurisdiction of the Tribunal. By the concurrent operation of s 65(1) and s 36(2) of the Act that jurisdiction only extends to a person who is “a non-citizen in Australia”, that is, onshore.
Based on the non-attendance of the secondary applicant at the hearings, the movement records related to him, and evidence of the primary applicant, the Tribunal invited the secondary applicant to comment on the evidence before it indicating he was not in Australia. He has not done so. However, on 31 March 2025, the primary applicant wrote the Tribunal as the secondary applicant’s authorised recipient and confirmed that the secondary applicant has departed Australia.
Having considered all the evidence, the Tribunal is satisfied the secondary applicant has been offshore, outside of Australia, since [December] 2021. The Tribunal finds that the secondary applicant is outside of its jurisdiction.
Credibility and reliability
The second issue is, in the Tribunal’s view is what, if any, of the primary applicant’s evidence can be accepted as credible and reliable. That issue arises in particular because of the major shift in narrative between the original application but also due to inconsistencies and contradictions across the evidence which the Tribunal does not consider the primary applicant adequately addressed.
In respect of the latter inconsistency (between documentary and oral evidence), there is a live question as to whether the oral claims and evidence are so separate and distinct to the those put in the original application that they can be said not to have been made or presented before the primary decision was made. Such late claims and evidence are to be treated with an unfavourable inference s 367A of the Act, unless the Tribunal is satisfied that the applicant has a reasonable explanation for raising or presenting them before the primary decision was made. The provision reflects a Parliamentary concern that permitting an applicant to simply change their claims and evidence without reasonable justification risks ‘unreliability and invention or manufacture’ in the evidence.[3] Whether a claim or evidence is strictly new is a question of fact for the Tribunal to determine.[4] That is not an easy task here given the ‘claim’ in the original application and many of its essential integers appear, at a distance at least, to correlate to and mirror what the primary applicant put to the Tribunal at the hearings. However, on closer consideration two major narrative changes serve to paint very different pictures of what is claimed to have happened in Malaysia and how that might bear on what would happen in the reasonably foreseeable future if the primary applicant is returned there. These are:
· the entire removal of the co-applicant from all the essential and material aspects of the narrative; and
· the significant magnification of the debts the primary applicant claims he owes.
[3] Specifically, its predecessor, s 423A, which was written in nearly identical terms with clearly similar objects, see EQU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1182 (5 October 2023) [51].
[4] ZUHJ v Minister for Immigration and Border Protection [2018] FCA 331 (16 March 2018) [24].
Each of these major changes to the narrative produces a correlative change to other parts of the claim and integers of it. So, for instance, in one version creditors harass the co-applicants who are apparently residing together, but in the other, where the secondary applicant is removed from the narrative, the creditors are harassing the primary applicant’s family at their home while he is away. The nature of the claimed risk changes significantly, in one respect it is broadened beyond the applicant(s), but in fact it also moves from being a direct to indirect experience for the primary applicant. Similarly, the new evidence as to the quantum of debt the primary applicant claims he owes presents a very different picture of the risks he faces if he returns to Malaysia, and his ability to avert those risks immediately or in the foreseeable future. Other examples might be raised, but the Tribunal considers these to be most relevant and material.
The Tribunal is not satisfied that the material changes the primary applicant’s narrative reflect a mere elaboration or clarification of the story he and his co-applicant put in their original application for protection. In the Tribunal’s view they are two stories that follow the same pattern, but are, in substance, materially different in relation to a sufficiently substantial and critical degree of claimed facts, events, and risks that they constitute different claims supported by different evidence. The Tribunal therefore finds that the claim that the primary applicant fears returning to Malaysia because his creditors would find him and threaten or physically harm and the evidence, he presented at the hearings in support of it is a new claim and the evidence presented in relation to it is new evidence. That is the case even though the primary applicant also claimed, along with his co-applicant, to fear harm from creditors in his original application.
The Tribunal does not consider that the primary applicant provided a reasonable explanation as to why he made the relevant and material changes to his claims and evidence that the Tribunal has found makes them new claims and evidence not raised or presented before the primary decision was made. The primary applicant told the Tribunal that his co-applicant had been included in the claims because he needed the protection visa at the time, but, having left Australia, only the primary applicant needs the visa. The Tribunal is not satisfied this reasonably explains why the new claim, if it were to be accepted as “the truth” as the primary applicant alleged, was not made before the primary decision was made. All it connotes is that the claim that was put before the original decision maker no longer suited the primary applicant’s interests. Indeed, he acknowledged that his co-applicant returning to Malaysia signalled that he did not fear returning there based on the apparent risks they shared, but chose not to respond to that issue. The Tribunal considers this to be the plausible reason the primary applicant made a new claim rather than maintaining the same claim and squarely addressing the implications that arose from his co-applicant returning to Malaysia after the primary decision was made.
The primary applicant also sought to explain his evidence about the “70,000 plus” ringgit sum he owed – which the Tribunal considers to be sufficiently different to the evidence of the “couple thousands” ringgit he and his co-applicant referred to as owing in common to amount to new evidence – to be explained by his English not being “polished” when he wrote his original application. The Tribunal does not accept this explanation. The primary applicant stated that it was he who had completed the original application on behalf of both applicants, and committed to what was in it being true and correct at hearing. At the hearing, he was asked directly if he had filled in or had assistance completing the form to which he answered, “I filled it in”, which the Tribunal takes to mean he had no assistance. In the application form, the primary applicant lists his languages as first English, which he says he speaks, reads, and writes, and then Malay, which he also says he speaks reads and writes. That is supported by his advanced level of education generally as well as his tendency to converse directly with the Tribunal in English. The claims which he wrote on behalf of both applicants in his original application are by no means written in flawless English, but the Tribunal does consider them to reflect a developed and comprehensive level of comprehension, vocabulary, and expression.
Looking at all the evidence about the primary applicant’s language comprehension, the Tribunal is not satisfied that he did not understand what he was referring to describing the debt owed in his original claim. Nor is it satisfied that his linguistic skills at the time he wrote that application, or at the time of the hearings plausibly explains his inflating the sum he respectively stated he owed by thousands of percent (accepting a “couple thousands” means 2,000 and the 70,000 is considered conservatively without the “plus” it would be a 3,400% increase between claims). These are entirely different sums, particularly when the smaller amount was, in the original application, owed by two parties, but the 70,000 plus was only owed by one. The Tribunal is not satisfied the primary applicant’s failure to present the evidence that the primary applicant apparently solely owed 70,000 plus ringgit to creditors before the primary decision was made has a reasonable explanation.
The above two changes being the relevant and material changes to render the claim made at oral hearing, and the evidence presented in support of it new, the Tribunal is satisfied that the primary applicant does not have a reasonable explanation why his primary oral claim was not raised, and the evidence was not presented, before the primary decision was made. The Tribunal therefore draws an inference unfavourable to the credibility of the new claim and evidence raised at the hearings. The Tribunal notes that, even if it is wrong about the claim made in the oral hearing being “new”, it is satisfied it would, independent of s367A consider the discordance between the separate narrative of claims to affect their credibility and reliability. That is, the Tribunal would have still given both sets of claims little weight and treated them with an adverse inference, as a consequence of its general fact finding and credibility assessment functions. It exercises those functions noting that, even if they may not strictly be exercised pursuant to s 367A, that provision indicates a legislative expectation that claims and evidence are properly scrutinised to avoid unreliability and invention or manufacture in determining whether the criteria of the Act have been genuinely met.
The Tribunal refers to its assessment of the primary applicant’s reasons for making late claims above as part of its assessment of the credibility and reliability primary applicant’s claims generally. It also considers that the applicant presented evidence that involved a pattern of narrative modifications. The presentation of two distinct narratives of claim, only one of which can be true, and indeed his statement that “what I say now is the truth”, indicates an acceptance that what he has put before the Tribunal has not always been entirely truthful. The Tribunal also considers that the removal of his co-applicant who previously needed a visa, but now doesn’t – and indeed whose existence within the claim he acknowledged would serve to weaken his own claim -- to be a relevant credibility factor. That is, it indicates that the claims the primary applicant makes have been either constructed and modified to ensure he obtain the visa the primary applicant says he (or at earlier times he and his co-applicant) needs.

The Tribunal considers the new evidence the primary applicant presented to the Tribunal about the sum he individually owed to be particularly implausible, especially when contrasted with the markedly smaller sum he originally claimed he jointly owed with his co-applicant. That change is considered by the Tribunal to be further evidence that he has reframed his narrative to improve his likelihood of obtaining a visa in response to the primary decision, rather than it being genuine account of facts as they happened or genuine basis for fearing returning to his country of origin. Indeed, had he had pressed his original claim to jointly owe a “couple of thousands” ringgit it seems likely the Tribunal would have been objectively satisfied that he could service that debt, both while in Malaysia and, based on his financial circumstances at the time of hearing. The change in the evidence served to make the debt appear objectively unserviceable and therefore a significant and foundational basis for fearing a real risk of harm as a reasonable consequence of being returned to Malaysia. That of itself raised doubts as to the reason the primary applicant changed his evidence, which for the reasons set out above the Tribunal does not consider the applicant satisfactorily addressed. Further, weighing against the credibility of his evidence about his debt is his admission at hearing that he has done nothing to service it in the five years he has been living in Australia – or indeed after leaving Miri – which the Tribunal considers weighs against accepting his evidence that debt was a reason he fled Malaysia or fears returning there. Perhaps most critical to the credibility of the debt claim is the question of why the primary applicant would have owed it at all. The primary applicant was, in the Tribunal’s view, unable to provide a clear or compelling explanation of what his actual role was in the company that he said collapsed. That was despite prolonged questioning by the Tribunal. What he did acknowledge in that questioning was that others ([Mr A and Ms B]) had absolute control of that company’s financial, HR, and business management, and that he had no access to accounts or other systems which indicated an ownership or business management role. It was also clear on the evidence that he was a recent graduate, new to the workforce. He further acknowledged, after some questioning, that he was paid a monthly salary. These factors indicate that he was, in fact, an employee and not someone who would plausibly be financially responsible for the company while it operated or after it collapsed. When all these things are considered together, the Tribunal is not satisfied that the primary applicant’s claims that he owes a debt in respect of that failed company are credible or reliable.
As the debt for the failed company is the only debt identified by the primary applicant as material to his claims, the Tribunal is not satisfied the primary applicant owes a debt in Malaysia. By consequence, the rest of his claims and evidence, which relate to threats and harmful conduct in relation to that debt, fall away. However, for completeness, and to support its findings of fact, the Tribunal also considers the remainder of his evidence.
The Tribunal notes the inconsistencies and shift in the narrative between the primary applicant’s documentary and oral evidence about the harassment he claimed he experienced in Malaysia. Initially, the primary applicant claimed that this was directed to him and his co-applicant at “our house”, but at hearing this became his parent’s house, from which the primary applicant was apparently absent when the threats occurred, and the secondary applicant was not affected at all. Similarly, the primary applicant and his co-applicant claimed in the original application never to have reported being defrauded and robbed by business partners to police. Conversely, at hearing the primary applicant said that he did report the fraud and robbery to police and said that his family reported the harassment and ransacking of their home to police. However, he was unable to present any documentary proof of the police reports, nor any documentary proof of his business being robbed, or his parents’ house being ransacked. While certainly there is no requirement for an applicant to corroborate their claims,[5] it is their responsibility to prove them, and the responsibility of the Tribunal to assess the veracity and credibility of the claims presented. Here the Tribunal considers that a reasonable person in the primary applicant would, had the alleged events occurred, made, and retained at least photographic evidence of their startup business being defrauded and stripped of tangible and intangible assets. Even if they hadn’t it can be reasonably expected they would have retained or been able to obtain (directly online or via family in Malaysia) police reports of such events.
[5] Mohamed v MIMA (1998) 83 FCR 234, 246 (Hill J)
The Tribunal also considers it objectively reasonable that the primary applicant’s family would be expected to have photographic evidence or hold, or be able to readily obtain, police reports about their family home being broken into and ransacked. While the Tribunal’s decision does not turn on this point, it does consider the primary applicant’s failure to produce reasonably obtainable documentary evidence as weighing against the credibility of his account. That is especially the case given he initially denied having reported to police the sorts of crimes that Tribunal considers on the country evidence they would have taken seriously and dealt with professionally.[6] On the other hand the Tribunal is not satisfied that, having shown (or more appropriately admitted after initially denying) a willingness to engage with police the primary applicant would not have reported a various serious assault in a public place. The Tribunal does not accept the primary applicant’s answer that, based on his ostensible previous report he considered that there was nothing they could do. That is because he earlier claimed that the reason that there was nothing police could do was because he couldn’t prove he’d been defrauded. If he was, as he claimed, threatened with a knife, and punched in front of strangers, there would have necessarily been witnesses, so the circumstances are entirely different. The Tribunal considers that a reasonable person in the circumstances the primary applicant describes would have reported to police and his assertion that he did not weighs against the credibility of that integer of the claim. When considered collectively and in the context of the inconsistencies between documentary and oral sources of evidence the Tribunal is not satisfied that the primary applicant, his cousin the co-applicant, or their families, were harassed or otherwise harmed by creditors in Malaysia.
[6] DFAT Country Information Report – Malaysia (24 June 2024), 5.5.
The Tribunal also considers the inconsistencies between the written and oral accounts about seeking protection in Malaysia to raise credibility issues. That is, in their original application the co-applicants claimed to have sought protection in “other part of Malaysian states” plural, and that, despite doing so, the creditors still managed to find them, but at hearing the primary applicant gave much narrower evidence. Specifically, he stated that he spent a brief period in Kuala Lumpur, without his co-applicant, and had minimal contact with creditors – and indeed, in the Tribunal’s view, no believable contact given at one stage of the proceeding he claimed he was called by the creditors, but at another that when he arrived in Kuala Lumpur, he “broke [his] SIM card”. The inconsistency and apparent omission of Sabah as a place that he sought refuge from his oral evidence (which the primary applicant acknowledged but did address) indicates that the primary applicant did not genuinely move from Miri to elsewhere in Malaysia to flee harm. The Tribunal also considers the primary applicant’s statement that country information about the professionalism of Malaysian police and the availability of debt relief services only applies to “big towns”, not Miri where he comes from, indicates that he never genuinely considered moving away from that town to elsewhere in Malaysia where he could seek protection and debt relief. The Tribunal is not satisfied that the primary applicant left Miri to escape harm, nor that he genuinely sought protection in other parts of Malaysia. For the reasons set out above the Tribunal is satisfied that is because the primary applicant did not need to seek protection elsewhere.
The Tribunal has also considered all the other evidence put before it by the primary applicant and does not consider that it supports his claim for protection nor satisfy the Tribunal that claim and the evidence presented to support is a credible or reliable basis to prove the primary applicant experienced real harm in Malaysia or has a well-founded fear of harm or real risk of being harmed if he is returned to Malaysia.
Findings of fact
For the sake of clarity, the Tribunal makes the following findings of fact about the primary applicant:
·He is a Malaysian citizen who arrived in Australia [in] July 2019;
·He may have been involved in a startup business in Malaysia that failed in or around 2018, potentially due to fraud or malfeasance;
·He may have worked low-skilled roles in Kuala Lumpur for a period around 2018 until he left Malaysia for Australia;
·He was able to secure funds to purchase a ticket to Australia and live for several weeks in the country without a source of income.
For the avoidance of doubt the Tribunal is not satisfied on the objective evidence before it that the primary applicant:
·     Experienced or risks harm on account of any debts in Malaysia;
·     Was threatened, or harmed in Malaysia for other reasons;
·     Moved within or left Malaysia because of threats or actual harms he or his family experienced in Malaysia;
·     Would be threatened, or harmed as a foreseeable consequence of returning to Malaysia;
·     Would risk any other harm (much less serious or significant harm) as a foreseeable consequence of being returned to Malaysia.
DECISION
The Tribunal is not satisfied that the primary applicant would face any threat or harm if he returned to Malaysia now or in the reasonably foreseeable future. That means, in respect of the criteria for protection provided for under the Act:
· The Tribunal finds there is no real chance of serious harm if the primary applicant were returned to Malaysia in the reasonably foreseeable future for the purposes of 5J(1) of the Act; and
· The tests for real chance and real risk being the same, the Tribunal also finds the primary applicant would not face a real risk of significant harm for the purposes of s 36(2)(aa) of the Act.
There is no suggestion that the primary 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 primary applicant does not satisfy the criterion in s 36(2).
The primary applicant does not satisfy essential criteria for any available ground for the grant of a protection visa under the s 36 of the Act.
The Tribunal has separately found that the secondary review applicant is outside of its jurisdiction and therefore does not satisfy the essential criteria for protection under the Act (paragraph ‎39.).
The Tribunal affirms the decisions under review.
Date(s) of hearings:   22 January 2025 and 24 January 2025
Representative for the applicant: N/A
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…