2008469 (Refugee) - [2025] ARTA 811

2008469 (REFUGEE) [2025] ARTA 811 (21 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2008469
Tribunal:Clyde Cosentino
Date:21 February 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 21 February 2025 at 9:48am
CATCHWORDS
REFUGEE – protection visa – refused to sell land to developer – belongings destroyed and applicant attacked and threatened by gangsters – application completed by another person without applicant’s knowledge of contents – political opinion – participation in anti-government protest – warned and harassed by gangsters, and messages to family after departure – delay in applying for protection visa – application for student visa not completed then lengthy period as unlawful non-citizen – vague and inconsistent claims and evidence – house owned by family, and no harm to them – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
MIAC v SZQRB [2013] FCAFC 33
Subramaniam v MIMA (1998) VG310 of 1997
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 4 May 2020 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 24 February 2020. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant provided to the Tribunal, at time of review, a copy of the delegate’s decision.
CRITERIA FOR A PROTECTION VISA
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the 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.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the department), and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Receiving country
The applicant provided a copy of the biodata page of his Malaysian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Malaysia and there is no information before the Tribunal to the contrary. The Tribunal, therefore, finds that the applicant is a citizen of Malaysia, and that Malaysia is his receiving country for the purposes of assessing his claims for protection.
Protection visa application
According to his protection visa application, the applicant was born in [Year] in Selangor, Malaysia. He last resided in Malaysia in Petaling Jaya, Selangor, Malaysia from [Birth] to June 2016.
He claims to have completed high school in [Year] in Petaling Jaya, Selangor.
He claims to be Malaysian citizenship by birth and therefore a Malaysian national.
He last arrived in Australia [in] July 2016 on a Visitor visa.
He claims that he was a farmer and that he harvested to sell crops in local markets to finance his daily expenses.
He claims to be able to speak, read and write Malay and Mandarin.
In response to why he left Malaysia he wrote (the Tribunal has written exactly what the applicant has written in his application):
I was a farmer in my hometown. At year 2016, a local developer would like to purchase my land for development use. I not agree to sell my land, because the land is my source of income, and the compensation the developer offer also too low for me to continue my life after that. Unfortunately, the developer did not give up easily. Start from that day, my homestay always visited by local gangsters that I believed sent by the developer. They destroy my crops, tools and furniture in my house, and they also attack me when I try to stop them. I believe the purpose of the gangster is force me give up the land and hand it over to the developer. The condition turn worse, when I persistently refuse to their request to sign the unfair agreement to sell my land. The gangster even threat me and say they may kill me. Hence, I decide to leave my country for my personal safety purpose.
When asked if he experienced any harm, he claimed that he did. When asked what harm he experienced in Malaysia he claimed:
The gangster that I believe appointed by the developer, always came to my house. They will destroy my crops and everything around my house and injured me. They slap me on my face, punch my chest, and kick my abdomen. They also threat me they will not stop disturb my life until I agree to hand over my land. My personal safety in highly dangerous.
When asked whether he tried to seek help in Malaysia, he claimed that he did. He claimed:
I make report to local police after I injured by the gangster. The gangster disappear after they know I seek help from police. However, the gangster show up few weeks after I make report to police. Again, I was heavily hurt by them, and they warning me, if I seek help from police again, they will kill me.
When asked whether he moved to another part of Malaysia, he claimed that he did. He claimed:
I try to move and hide temporary in my relative house for short term. Unfortunately, the gangster still can locate me. I move away from my relative house to prevent my relative from getting into my trouble.
When asked what he thought would happen to him if he returned, he claimed:
I believe the gangster will come to me again. They will not give up until I agree to hand over my land. I think, the gangster will threat me and hurt me until I agree to sign the agreement to sell my land to the developer.
When asked whether the authorities of Malaysia can and will protect him, he claimed they cannot. He claimed:
The authorities cannot protect me for 24 hours and 365 days. The gangster will not show up when I under protection. They will only come to me when I stay alone.
When asked whether he could relocate to another part of Malaysia, he claimed he could not. He claimed:
As long as I stay in Malaysia, the gangster will locate me at the end, just matter of time no matter where I move or hide.
Pre-Hearing material and responses provided by the applicant to the Tribunal
On 20 May 2024, the Tribunal sent to the applicant a Pre-Constitution Outreach Response Form to complete relating to his application for review. On 24 May 2024 and 27 May 2024 respectively, the applicant emailed the Tribunal, providing his responses to the Pre-Constitution Outreach Response Form (both forms were the same completed forms with the same responses sent on 24 May 20204 and 27 May 2024 respectively). In response to the question, “Claims for protection - In your application for a protection visa you would have provided reasons or made claims as to why you need Australia to grant you protection. Do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country?” he claimed:
I have been coerced by local Malay gangsters who threatened my personal safety and freedom. We had a conflict in an anti-government protest in 2015. Since then, these people have continually contacted and harassed me, including going to my workplace. They intimidated my colleagues and caused me to lose my job. They threatened me not to show up at any protests again or they would harm my family. They also used illegal means to force me to sell and leave my house. I am seeking protection in Australia because I am afraid to return to my home country then they will find me and hurt me and my family.
Tribunal hearing – 27 November 2024
The applicant appeared before the Tribunal on 27 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant stated that he received assistance from a friend to complete the protection visa application.
When asked whether everything in the application was true and correct, he stated that he was not really clear what he put in the application. He told his friend about his experience and his friend put these experiences in his application. He stated that he was not aware of any mistakes that occurred in the writing of his claims.
The Tribunal then indicated to him that his protection visa application was an important document that he was submitting. The applicant agreed. The Tribunal indicated that the applicant took responsibility for what was written in that application. The applicant agreed.
The applicant lived in Petalang Jaya, Selangor, Malaysia for [Number] years prior to coming to Australia. He lived there with his mother, brother and [sister].
His mother works as [an occupation 1]. His brother is working also. His sister stays at home and looks after her children. Her husband is working in [Country]. The applicant has been living with his family at one time or another over the last [Number] years at this same address. He remains in regular contact with them. He calls them once every two or three weeks to check up on them.
In Malaysia, he last worked as [an occupation 2] [doing job task 1]. He undertook this work for about five years in Petalang Jaya. Before this, he helped his brother in a [business] for one year. He visited different areas when doing this work. Before this, he worked as [an occupation 3] [doing job task 2]. He worked as [an occupation 3] for eleven years in Petalang Jaya. Currently, in Australia, he is working as [an occupation 4] [doing job task 3].
He remembers the first time he came to Australia. He arrived in June 2016 on a visitor visa. The visa was for three months. He asked someone to help him to apply for a student visa. He prepared to lodge the student visa application. However, the person who was helping him disappeared. The applicant then became unlawful. The next visa the applicant applied for was a protection visa when a friend told him about this type of visa. He then lodged a protection visa application.
When asked his reason for applying for a student visa before his visitor visa expired, he stated that he did not want to return to his country. At that time, he did not know what to do so he thought to apply for a visa. The Tribunal then put to him that he subsequently waited three years and seven months before applying for a visa. He was asked why he waited this long. The applicant stated that during those years he was thinking how the threats could be overcome. He was planning to return. However, his family told him they were being harassed by people. That is why he then applied for a protection visa.
When asked what his reasons were for lodging a protection visa application in Australia, he stated that his life was in danger, so he needed to leave his country. When asked why his life was in danger, he stated that he participated in anti-government protests. He attended protests with other people. At one of the protests the government used water guns and tear gas. They then all ran away. They were then approached by a group of people who brought them back to a place. When asked what happened at this place, he stated that they were given verbal warnings and told to stop protesting. They then went back to live ordinary lives. However, this group of people came to his workplace and harassed him. They told him to stop doing this “nonsense and things like that”. When asked who these people were, he stated that he believed they were gangsters. When queried why gangsters would have an interest in him in attending anti-government protests, he stated he was not sure. He stated he was not clear about this. Other protesters encountered this problem too. He believed they were paid to do things like this.
When asked whether this was the reason why he lodged a protection visa application in Australia, he stated that this was part of the reason. The other part of the reason was because they used the safety of his family to threaten him. When asked how they did this, he stated that they often went to his house. They told the applicant to stop or otherwise leave the country. This is the second reason why he applied for protection. When asked whether these were the only two reasons for why he applied for a protection visa, he confirmed this to be the case. When asked whether these were the only two reasons why he did not want to return home, he confirmed this to be the case.
When asked why he thought he would be harmed if he returned home, he stated because they left a message with his family that he should stay out of the country and never return again.
When asked who he thought would harm him if he returned, he stated he believed that it was gangsters. When asked why he thought they had an interest in him, he stated he did not know.
When asked whether they had made threats directly to him while he was Australia, he stated not really. He only knew this through his family.
The Tribunal then put to the applicant his own evidence that his family had lived at their address for at least 20 years, that they had worked in his home area and studied there as well. Yet nothing had happened to his family from these gangsters. It put to him that the threats claimed by him might not be real. The applicant stated that this was the case because the threats were only directed to him. He stated that he was told that if he left his country they would not hurt his family.
When asked why the police could not protect him, he stated that the government in Malaysia is corrupt. He could not afford to find someone to give him assistance.
When asked why he thought he could not move to another place for safety, he stated that they could track him down anywhere and at anytime. He stated that they were not a small group of gangsters.
When asked whether there was anything else he wanted to say in support of his claims, he stated that when they were at the protests, he took photographs. When asked whether he had any examples of these photographs, he stated that he had them on his mobile phone and could show the Tribunal some of these photographs. The Tribunal asked why he did not provide photographs leading up to the hearing when he had a number of opportunities to do so. He stated that his phone was fixed now. The Tribunal again put to him that he had various opportunities at both the department stage and at the Tribunal stage to provide photographs as evidence but did not do so. The Tribunal indicated that this delay in providing photographs might go to what weight the Tribunal places on the photographs.
The Tribunal then noted for the record at the hearing that the applicant had shown the Tribunal photos on his mobile phone of a group of people walking together but there was no visible identification that the applicant was in this group or what this group was doing. The Tribunal, for the purposes of the tape at the hearing, noted that the applicant showed it a photograph of him appearing to be walking down an escalator with two other people in yellow shirts. It noted that this photograph had no description of who these people were. The Tribunal again stated that it would consider the photographs provided at the hearing and the weight it gives to it in light of all the other information before it.
When asked if there was anything else he wanted to say in support of his claims, he stated there was not.
The Tribunal then read to the applicant his claim made in his application for a protection visa. It read to him his claims in full as follows:
I was a farmer in my hometown. At year 2016, a local developer would like to purchase my land for development use. I not agree to sell my land, because the land is my source of income, and the compensation the developer offer also too low for me to continue my life after that. Unfortunately, the developer did not give up easily. Start from that day, my homestay always visited by local gangsters that I believed sent by the developer. They destroy my crops, tools and furniture in my house, and they also attack me when I try to stop them. I believe the purpose of the gangster is force me give up the land and hand it over to the developer. The condition turn worse, when I persistently refuse to their request to sign the unfair agreement to sell my land. The gangster even threat me and say they may kill me. Hence, I decide to leave my country for my personal safety purpose.

The Tribunal indicated to the applicant that his original claim might appear to be significantly different to the claims that he raised at the hearing. The applicant stated that he did not write this and that his friend made this up. He stated that he told his friend his experience and he made up another story. He stated that when he tried to contact the person who helped him, he could not get in touch with him. The Tribunal indicated that he knew what the claims were originally as the delegate had summarised his application in his decision which the applicant had provided the Tribunal. The applicant stated that he had no idea what was written in his application.
The Tribunal indicated that all of his claims in his application were based on a farming incident.
The Tribunal then indicated that his family have remained living at his home area for a long time and nobody has harassed them or threatened them. This might indicate that no threat had ever been made to the applicant. The applicant did not make any comments when invited to do so.
The Tribunal indicated that he made a new claim at the hearing in that his family received messages that he should not return, otherwise he would be harmed. This was never raised before in his application or elsewhere. The applicant stated that his English was limited and with an interpreter present at the hearing he could share with the Tribunal all his experiences.
When asked whether he owned a house back in Malaysia, he stated that the house belongs to his family and that he never owned a home. The Tribunal indicated that this might appear significantly inconsistent with his claim made in his prehearing form of 27 May 2024 where he stated that the gangsters used illegal means to force the applicant to “sell and leave [his] home”. The applicant stated that before May 2024, he was thinking his house was left to them by his father. He was then told by his sister-in-law that the house is under all their names. He was only aware that he was not the owner of the house in recent months. He thought he was the owner before. He was told recently by his sister that he was not the owner of the house.
The Tribunal indicated that his claims made in his application, including him being a farmer, might appear completely different to his claims made at the hearing. This might go to the credibility of his claims in part or in whole. The applicant stated that he was helped by another person during the application process. He was not clear or sure about what was in the application. He later trained himself. He later did the documents himself according to his own experience.
The Tribunal indicated that there might be significant inconsistencies between evidence in his prehearing form of 27 May 2024 where he stated that gangsters forced him to sell his house and to leave the house, and his oral evidence at the hearing. It indicated that this might go to the credibility of his claims. The applicant did not make any comments when invited to do so.
The Tribunal indicated he was not able to identify the gangsters or who they were. It indicated that it might have expected that he could identify gangsters who were wanting to harm him. It indicated that it might have concerns about this evidence. The applicant had nothing to add.
The Tribunal indicated that there was a lengthy delay of three years and seven months before applying for a protection visa after last arriving in Australia. It indicated that this might go to the lack of genuineness of his fear or go to the credibility of his claims. The applicant did not make any comments when invited to do so.
The Tribunal asked if there was anything else that he wanted to add in support of his claims. The applicant stated that there was not.
The Tribunal indicated that it would go away and consider all his claims and evidence presented to the Tribunal before making a decision on the matter.
Reasons and Findings
The issue in this case is whether the applicant engaged Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
s 36(2)(aa) of the Act. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has significant concerns with the credibility of the applicant’s claims. There are a number of inconsistencies between his written claims and oral evidence at the hearing, and significant delays in providing evidence when invited to do so during the review process which the Tribunal considers significant. There has also been a significant delay in the applicant’s lodgement of his protection visa since last arriving in Australia. The Tribunal has considered all these factors in totality and finds that they significantly undermine the credibility of his claims overall. For the reasons given below, the Tribunal does not accept any of his claims.
The Tribunal has significant concerns that the applicant’s main (and only) claims of harm as made in his protection visa application relating to his occupation as a farmer, is vastly different to his claims raised at the hearing. His original fear of harm in his protection visa application relates to a local developer sending gangsters to his home and threatening to harm and kill the applicant because he did not agree to sell his land to the developer. As a result, he decided to leave his country for his personal safety. However, his new claims at the hearing are significantly different. At the hearing he claimed that his life is in danger because of anti-government protests which he participated in and because a group of gangsters threatened him to stop protesting and to leave the country. The Tribunal finds that at no time from the beginning of his protection visa application process throughout the review process itself was this new claim ever raised.
The Tribunal has considered the applicant’s response whereby he stated that he did not know what his friend had written in his protection visa application and that his friend has made up this story in his application. It has considered his response that he did not know what was written in his application and that this person had since disappeared. The Tribunal, however, does not accept these responses for the following reasons.
Firstly, the applicant has had the opportunity throughout the entire review process to identify this discrepancy and the reasons for it, as well as having the opportunity at any time throughout the review process to notify the Tribunal that the claims in his original application were not true and correct.
Secondly, the original application not only identified his claims as stemming from him being a farmer who did not want to sell his land to a developer, in another part of his application he was again identified as a farmer who harvested his crops to sell at the markets to finance his daily expenses. At no time has he ever raised that the claims and information in his protection visa application were incorrectly written and that the person who helped him had absconded. The applicant also agreed with the Tribunal that his protection visa application was an important document in which he took responsibility for, and for what was written in it.
Finally, the applicant provided the Tribunal with the delegate’s decision when applying for review. The delegate’s decision clearly summarised his protection visa claims relating to him being a farmer and made findings pertaining to those claims. At no time after receiving that decision from the delegate, did the applicant claim that the original claims had been wrongly stated. The Tribunal finds it reasonable in the circumstances that the applicant would have read the delegate’s decision at the time of receiving it and would have made it known to the Tribunal of any error or mistake at the time of review, given that the applicant made an application for review of the delegate’s decision to refuse him a protection visa. Furthermore, the applicant provided the Tribunal with a copy of the delegate’s decision when applying for review. In the review application form, he specifically identified that the decision under review was the delegate’s decision attached, which is a clear indication that the applicant knew about what was written in the decision.
The evidence before the Tribunal is that the applicant was put on notice when applying for review and would have been put on notice of the claims that were made in his original application. However, the applicant did not raise at all any issues or concerns that he might have with the delegate’s summary of his claims as raised in his original application. Given all these factors together, the Tribunal finds that the inconsistency between the claims he raised in his original protection visa application (relating to him being targeted for not selling his land as a farmer eloper) and his claims at the hearing (of being targeted for being an anti-government protester) are significant and go to the credibility of his claims as a whole.
Further, the Tribunal has considered significant the inconsistency between new claims provided in his prehearing form of 27 May 2024 and oral claims made at the hearing. The applicant raised in his pre-hearing form that gangsters forced him to “sell and leave [his] house”. However, at the hearing he gave evidence that he never owned his house, that his family owns the house and that he had lived at his abode for more than 20 years and that this was the house he remained in until he left for Australia. Moreover, his family have lived at that house for many years and have not moved from there. When this was put to the applicant, he provided inconsistent evidence of why he thought he owned the house and that he eventually found out that he did not own the house. The Tribunal finds his response incoherent and not explaining the inconsistency in claims, namely that he was forced to sell his home and leave because of threats from gangsters which ran counter to his evidence at the hearing that he never owned his house, nor was ownership of his home ever raised in his original application. The Tribunal finds this inconsistency as significant and going to the credibility of his claims.
The Tribunal has significant concerns with the applicant’s evidence at the hearing whereby he was unable to identify the gangsters who were trying to harm him. At the hearing, when asked who it was who came to his workplace and told him to stop protesting, he stated that he believed they were gangsters but was not able to provide any further details about these people. When asked why gangsters would be interested in him specifically attending a protest the applicant made it clear in his oral evidence that he did not know why. When it was put to the applicant that the Tribunal might have concerns that he was unable to identify the very people he claimed were threatening to harm him, the applicant did not provide a response or give any comments. He also gave evidence that they have not directly threatened him while in Australia, but he only found this out through his family. On the evidence before it, the Tribunal does not accept that the applicant would not know who it was that was going to harm him, as he has raised the threats from gangsters as being the reason why he left his country. The applicant has been vague and lacking in detail about who it is that he fears and who is wanting to harm him. The threats have not been made to the applicant while he was in Australia and the applicant has only found out about such threats from his family members. The Tribunal finds this vague response and evidence lacking in detail as it relates to the people he claims to fear as going to the credibility of his claims.
The Tribunal has considered the applicant’s evidence that his family have remained and lived at the same address for many years and have not been threatened by gangsters. Given that the Tribunal does not accept his evidence that he has been threatened by gangsters in Malaysia, it does not accept that his family have not been threatened by gangsters because the applicant left the country when threatened by them. The Tribunal finds the applicant’s evidence that his family have not been threatened as consistent with the Tribunal’s findings that he has not been threatened by gangsters for any reason.
Further, the Tribunal has significant concerns that the applicant raised new claims at the hearing that his family received messages from gangsters threatening the applicant when this was never raised by the applicant at any stage leading up to the hearing. It does not accept his explanation that his English was limited and that he could share his experiences with an interpreter at the Tribunal, given that he was able to complete a protection visa application, was able to lodge his review application, was able to submit further information when requested by the Tribunal in his pre-hearing form on 27 May 2024, and completed his hearing invitation form as well. The Tribunal finds on this evidence that he has chosen not to raise these new claims until the hearing, and after he had ample opportunity throughout the review process to inform the Tribunal of any changes and would have been aware of what was written in his original claims prior to the hearing. The Tribunal finds this inconsistency as significant and going to the credibility of his claims.
Finally, the Tribunal has significant concerns that the applicant took three years and seven months to lodge a protection visa claim after last arriving in Australia.
The Tribunal notes that in Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in the lodgement of a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. The Tribunal finds that the applicant’s delay in applying for a protection visa is a relevant consideration in the assessment of credibility of his claims for a protection visa, strengthened by the other credibility findings the Tribunal has made relating to his claims. The Tribunal finds the three years and seven months that has elapsed between his arrival in Australia and the time when he lodged his protection visa application as being a relevant factor when assessing his genuineness, or at least the depth, of his subjective fear of persecution. It does not accept that he waited three years and seven months to lodge his application because he was thinking how the threats could be overcome, given that the Tribunal, from its other findings already made about the credibility of his claims, does not accept that he was ever threatened at all by gangsters back in Malaysia or threatened while he was in Australia for any reason claimed.
The Tribunal has considered the few photographs that he presented on his mobile device at the hearing but gives them no weight in its consideration of his claims for the following reasons. Firstly, the photos were never offered as evidence in any part of his written application or afterwards when invited to provide additional material in support of his claims. Secondly, the few photos shown to the Tribunal (and identified on tape at the time) were lacking in detail or and did not identify the applicant at any protest. Given these concerns, the Tribunal gives the photographs as shown to it at the hearing no weight at all.
Having considered the evidence and its assessment of the credibility of the evidence as it relates to his claims in totality, the Tribunal does not accept that the applicant was threatened with harm from gangsters because he did not want to sell his farm to developers or because he participated in anti-government demonstrations or that he left Malaysia because he had been threatened with harm if he did not leave or that his family were threatened in any way or that gangsters threatened to harm his family if the applicant returned to Malaysia. Given the evidence before it and its assessment of this evidence, the Tribunal finds the applicant’s claims to be overall lacking in credibility.
Given the Tribunal’s above, it finds that there is not a real chance that the applicant will be harmed by gangsters if he were to return to Malaysia. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason and is not a refugee as defined in s 5H(1) of the Act.
The Tribunal has therefore considered the complementary protection criterion in s 36(2)(aa) which requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The real risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.[2] For the same reasons discussed above, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm from gangsters as a necessary and foreseeable consequence of his being removed from Australia to Malaysia.
[2] MIAC v SZQRB [2013] FCAFC 33
The applicant has not claimed to fear harm for any other reason if he returns to Malaysia and the Tribunal finds no other protection claims arising on the facts.
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 criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing:  27 November 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.
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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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