2017395 (Refugee)
[2025] ARTA 1443
•9 April 2025
2017395 (REFUGEE) [2025] ARTA 1443 (9 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2017395
Tribunal:General Member G Deal
Date:9 April 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 09 April 2025 at 7:21pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – death threats – criminal gang – invalid second marriage – state protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089
CHB16 v Minister for Immigration and Border Protection [2019] HCASL 377Any 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 18 November 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 arrived in Australia in September 2015. He applied for the protection visa on 9 February 2020 (PVA). At the primary stage the applicant also provided a copy of his Malaysian passport and identity card.
On 18 November 2020 the delegate refused to grant the protection visa. While the delegate appeared to accept the applicant had been threatened by a former employer in connection with one of his colleagues who stole some money from the employer, the delegate did not find that this was for a s 5J(1)(a) reason and found that the applicant could obtain protection from the authorities such that there would not be a real risk he would suffer significant harm. Overall, the delegate found the applicant did not meet the relevant definition of refugee, did not face a real risk of significant harm, and was not a person in respect of whom Australia had protection obligations.
On 3 December 2020 the applicant lodged an ‘Application for review’ in respect of the delegate’s decision noted above and provided a copy of the delegate’s decision.
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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal. In addition, under the Transitional Act, anything validly done in, or in relation to, a proceeding before transition continues to have effect and is taken to have been validly done under the new law for the purposes of the proceeding after transition.
The applicant appeared before the Tribunal on 24 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
By email on 30 November 2024, the applicant emailed the Tribunal stating “I am seeking for the Tribunal to allow me to have a rehearing to provide information…that [was] missed and left without the full explanation and detail…After hearing my audio hearing I acknowledge… some very important questions that were asked [that] my answers were not detailed giving further support to my claim. Such as the details about my wife leaving me [and] the date and circumstances, my claims that were written by the person [who] assisted me were the cause of my application to … not [be] formal and [there are a] few more that I will provide if the rehearing is granted”. While I had no further questions to ask the applicant, given the applicant is self-represented, it was decided to schedule a second hearing to give him an opportunity to provide his further evidence orally. Due to hearing room availability it was decided to schedule it via video rather than an in person hearing which the applicant consented to.
The applicant appeared before the Tribunal on 13 December 2024 via video conference to give further evidence and present further arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. Initially at this hearing while I could hear the interpreter and applicant clearly, and the interpreter said they could hear us both clearly, the applicant claimed he could not hear the interpreter clearly. In an effort to address this the interpreter switched off his camera, so that we could only hear his voice (which sometimes works to improve the sound quality) and also left and re-joined the video hearing. The applicant confirmed this rectified the issues. However, the applicant then said he wanted the interpreter from his last hearing who he said was more accurate. I noted we used many qualified interpreters and that we could not guarantee the same interpreter, especially at such short notice. I asked a number of questions in an effort to understand what the applicant’s issues were with the interpretation although they were not very clear. The applicant essentially said, through the interpreter, that he understood the interpreter but felt the interpreter was not interpreting his words accurately or exactly. The applicant said that because he spoke some English, he could tell the interpreter had not accurately interpreted the word “rectify” which was different to “correction”. I noted the interpreter had just accurately interpreted this concern and so I was now aware of this concern. The applicant continued to ask for another interpreter stating there would be more mistakes like this. I noted that we would try to find one but that one might not be available at such short notice, in which case we would reschedule the hearing with a new interpreter but that I would do this the following week so as not to further delay the matter. To ensure the new interpreter was suitable the Tribunal Officer confirmed the language and dialect were correct which the applicant confirmed. The applicant then said in English “I’m sorry that is my fault, never mind…ok I will try with this interpreter, I respect my members…I think we can continue with this interpreter”. However the interpreter said earlier he had been interpreting for the Tribunal for 8 or 9 years, had never had this happen before, and when the applicant eventually decided he would proceed with the interpreter, the interpreter declined to proceed stating that it may be that the applicant was not comfortable with his interpreting, and that he would rather not proceed. The Tribunal therefore found another interpreter and we reconvened later that same day to continue the hearing with a new interpreter which the applicant did not voice any concerns about.
On the day of the hearing, 13 December 2024, the applicant also emailed the Tribunal with an undated statement by him (2024 Statement), marriage certificate dated in 2019, his daughter’s birth certificate (born in [specified year]), and documents in a language other than English with no English translation[1].
CONSIDERATION OF CLAIMS AND EVIDENCE
[1] While I am able to make out some limited dates and words written in English in this document, most of it is not written in English and I cannot make out what it states in this regard, and it is not clear what this document is. I note that I clearly advised the applicant at the first hearing that we required English translations where a document was written in a language other than English and that I would otherwise be unable to determine what the document said. Moreover, the Tribunal requires all evidence relevant to a matter before the Tribunal to be in English, or accompanied by a NAATI certified translation into English, and states that the Tribunal may not accept any evidence that is not in English without a certified translation: Administrative Review Tribunal, Administrative Review Tribunal (Common Procedures) Practice Direction, 14 October 2024, para 6.2(c).
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.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant has consistently claimed to be a citizen of Malaysia, not to be a citizen of any other country, and to not have a right to reside elsewhere, and based on this and his Malaysian identity documents including passport I accept this. I consider Malaysia the receiving country. Based on the passport the applicant is in his [age range].
The applicant has consistently claimed to be a Malay Muslim originally from Negeri Sembilan, provided an address where he said he lived most of the time while in Malaysia, which he said at hearing was where his brother now lived. At hearing I noted that in his PVA, which form asks him to provide names and other details of family, that the applicant had indicated he had no family and had not provided any detail in relation family. The applicant briefly said he thought it would be better to tell me about these details in person, although I do not find this explanation persuasive as he provided other details requested in the form. At hearing in light of this I asked him to provide all the details in relation to this family. He then provided the full names and approximate ages for his father and mother, who are in their [age range] and separated. He said his father was in Perak in his own house and works in a planation. His mother lives with his siblings and is supported by them. His brother is in Negeri Sembilan living in the old family home where he used to live. His sister is divorced with custody of her children and [an occupation 1] in Putra Jaya. His other sister is in Johor Bahru, married with children and is a [specified occupation]. As I noted at hearing no details were included in his PVA in relation to his education or work history in Malaysia despite the question asking for these details, which the applicant acknowledged. At hearing the applicant advised that he finished [grade] schooling in Negeri Sembilan when he was about [age] (which would have been in about 2007), then worked part-time in a [business 1]. At hearing I noted he had said he had always lived in the family home in Negeri Sembilan while in Malaysia. The applicant said for the first time that at about [age] years of age he left, moved around for work, and had lived in Johor, Melaka, and Kuala Lumpur, but was mostly in Kuala Lumpur. While these details were not included in the PVA, it is plausible that after having finished school as a young man the applicant lived and worked in other cities and may not have thought to include this in the PVA preferring to just list his family’s home where he grew up as his base. When I asked the applicant if he had anything else to say in relation to his faith or ethnicity, he said that he did not. DFAT[2] reports the majority of the population in Malaysia are Malay Muslim, the applicant’s passport records him as having been born in Perak, and his Malaysian identity document list his address in Negeri Sembilan and his faith as “Islam”. On the broadly consistent, and spontaneous plausible oral evidence that is at times quite detailed, and the supporting documents, I accept the applicant’s background claims in relation to his faith, ethnicity, family and address, education and work history noted above. While the applicant has lived in other cities for shorter periods in Malaysia, he grew up in Negeri Sembilan, where the family home is located and his brother still lives, and where he lived most of his life, and I consider that if he were to return, he would very likely return to there.
[2] DFAT 'DFAT Country Information Report Malaysia', 24 June 2024, 20240624113833.
In the PVA the applicant said he married in 2019 in Australia. He provided additional details in relation to this at the first hearing such as his wife’s name, where they married, and he explained she was originally from Malaysia. At the first hearing he also said for the first time that he and his wife had children together. I noted he had not disclosed this in his PVA, and I asked him why. He said it was because they were not here. I noted that the PVA asks him to provide details in relation to his family and I asked why he had not done that. He acknowledged he had not included those details, and then said he did not know what to say. He then said that his wife had also lodged her own separate protection visa application, which had been refused, and that this had made her depressed. He said he went out fishing one day to return home to find his wife had gone with their children and returned to Malaysia (which he reiterated in the 2024 Statement and at the second hearing stating that when she returned to Malaysia she asked him to return but that he refused and that he believed she was not fighting to stay in Australia which she should have done and that no matter what he would not leave Australia). At hearing he then became emotional, and I asked if he wanted a break, although he declined the offer and continued. When I asked when his wife left, he vaguely said earlier in the year. I note that on the day of the second hearing the applicant provided a copy of his marriage certificate and the birth certificate for a daughter born in [specified year], and I accept he was married in 2019 in Australia including under Islamic rites (as claimed in the 2024 Statement) and that they had a daughter together [later] as evidenced in the birth certificate. The 2024 Statement also claims he has a son who is about [age], and while no identity documentation has been provided in respect of this child, in the circumstances I am willing to accept this as plausible. Based on the applicant’s spontaneous and plausible oral evidence at hearing I am also willing to accept his wife and children returned to Malaysia in early 2024 after his wife’s protection visa application was refused. I do not accept this explains the absence of details in relation to his daughter born prior to his lodging the PVA, particularly as he mentioned his wife in the PVA and that they did not return to Malaysia until years after he lodged the PVA. While in the 2024 Statement he claims his wife is living at her parents’ house and his children are living with his father in Negeri Sembilan, this is at odds with his evidence at hearing that his father has a house and lives in Perak. While I am willing to accept as plausible that his family is in contact with his wife and children, as he is not in Malaysia himself I do not accept his evidence in relation to his children’s location and care in Malaysia as reliable. I also note his wife and children are not applicants before me in relation to this review which I also noted at hearing. At hearing the applicant said he had never studied in Australia or worked as he did not have work rights. He said he tried to get work rights but that this was refused. When I asked how he was able to survive financially in Australia for all these years he variously said his wife (he claims that when in Australia his wife worked in [a specified job], and he would support her) and friends supported him and I am willing to accept his background claims regarding his work in Australia based on this spontaneous oral evidence at hearing.
The applicant’s evidence regarding how his PVA was filled in has varied significantly.
In the applicant’s PVA he states he reads, speaks, and writes English and Malay. I note at hearing that while we utilised the interpreter he often spoke in English. At the second hearing he said he spoke some English and corrected some of the interpreter’s interpretation. He also communicated in writing in English with the Tribunal. The applicant also lodged the PVA after having lived in Australia for some 5 years. The PVA states that he did not have any assistance in completing it. At commencement of the hearing after explaining how the hearing would be conducted, and the relevant law, I asked the applicant if he recalled filling out and lodging his PVA in February 2020. He indicated that he did noting it was in 2020. I noted that in the form it asks if he has received any assistance in completing the form and in response to that question in the form he had answered “no”. I noted that given this, I understood he had filled out the form himself. He said that was correct. When I stated that this meant he had not had any assistance in filling out the form, he confirmed this was correct. I asked him if everything in the form was true and correct as far as he knew and believed and he confirmed this was correct. When I asked if there were any mistakes or anything he wished to add he said he did not.
Later at hearing after raising issues with the form in relation to him not having mentioned anything about having children and not listing any education or work history, despite the form asking for these details, the applicant claimed for the first time that he had submitted 4 protection visa applications to date. When I sought to clarify what he meant, he said that when he first came to Australia, he asked someone to help because he did not have any knowledge about it at that time and his English was limited. He claimed he paid them and then they stopped communicating with him. He said the same thing happened a second time. He hired someone but they actually gave him a fake form and did not submit it to the Department. Then somewhat at odds with his earlier statement that he had 4 applications and that he completed the PVA himself without assistance, he said that the third time his friend helped him but that he was not sure if this friend had submitted it or not. Although somewhat at odds with this he then said he received some form of email which he did not attend to (suggesting it was from the Department). I noted I only had one PVA. The applicant said that might be the fourth PVA. I noted that this was at odds with his earlier evidence that he had filled in his own PVA himself and not had any assistance. He said that he thought I was talking about the form for the hearing, although I do not accept this explanation as he clearly acknowledged he knew what I was talking about when we spoke earlier at hearing about the PVA lodged in 2020 and also, despite requests by the Tribunal, the applicant has never provided the Tribunal with a completed ‘Prehearing information form’ or ‘Response to hearing invitation’, so it is not clear what he is referring to when he claims he thought I was talking about the form for the hearing. He then claimed his friend helped him with a fourth form and that the answer about not having help was not correct and he said he apologised for this. When I asked him what his friend’s name was, the applicant consulted his mobile phone, and then provided a single name, and provided more vague evidence when pressed for more detail in relation to this friend. For example, when I asked him how he knew him he said he belonged to the “Community” and when I asked what community, he seemed unable to tell me. I also note that at hearing the applicant had a bundle of documents he was riffling through. When I asked him what they were he claimed one of them was his third PVA. He said it was written in Malaysian. I said that I would not therefore be able to understand it, because we required things to be translated into English, which he acknowledged. I asked a series of further questions and in response he claimed he wrote out his claims, that his friend translated what he had written into English and inputted it into the PVA, and that was the PVA that had been lodged with the Department. Later at hearing he also claimed that a friend helped him with a third visa application which he said he lodged but that maybe the Department did not receive that one because it was in Malay.
Based on the spontaneous and plausible detail, and that his English was more limited in 2020, I am willing to accept the applicant may have had a friend provide some minor assistance (which may be why he thought to make no mention of it) in translating his claims and imputing these into the PVA, although I do not accept the vague, belated and unsupported claims he tried to lodge 3 applications unsuccessfully including that on 2 separate occasions people took his money but did not lodge them, or that they provided him with a fake form, or that he lodged one that the Department might not have received and that this might be because it was in Malay.
The applicant arrived in Australia in 2015 but did not apply for the PVA until some 5 years later in [2020]. I raised this as an issue at hearing noting it raised significant concerns for me regarding the veracity of his claims. The applicant claimed he travelled to Australia because he would like protection but that he did not know about the protection visa and had limited English, so he hired someone, they lied to him, he was scammed, he paid them, but they did not fulfil their end. In this regard, as detailed above he claims to have unsuccessfully tried to lodge a protection visa application 3 times and that it was only on the fourth occasion with the help of his friend that his PVA was successfully lodged and that this is his reason for the odd 5-year delay. I noted he arrived in Australia on a tourist visa but did not lodge the PVA until some 5 years later. He acknowledged he overstayed his tourist visa. As detailed above I do not accept the vague, belated, and unsupported claims he tried to lodge 3 separate applications unsuccessfully. I also consider the delay of some 5 years significant, particularly as he was in Australia without a valid visa for an extended period and so it cannot be said there was no impetus for him to apply for a visa. As was noted at hearing, this significant delay raises concerns for me regarding the veracity of his claims to have fled Malaysia in fear of his safety for the reasons claimed (he claims he was running from an Ah Long) and his claim to fear harm from the Ah Long and those working for them.
The applicant claims he is wanted by an Ah Long and those working for them because one of his colleagues stole money from the Ah Long while they were working together collecting debts for the Ah Long.
At the primary stage in the PVA the applicant’s claims were brief. He briefly claimed he was invited by a friend to help collect money for an Ah Long (he used to word “licenced loans” although it became apparent at hearing that he meant a Chinese unlicensed money lender often referred to as an Ah Long[3]). He claims he was paid about 3,000 to 10,000 Malaysian ringette weekly for this work. He claims he was mistreated when his friend spent a hefty sum of 30,000 Malaysian ringette and so he ran away from the Ah Long who was looking for him. His mother and family faced many “pressures and threats”. He tried his best to seek help. He did not dare report it to the police because the Ah Long and/or those working for them threatened his mother and family. He would be unable to relocate because he was threatened with death and his family, especially his mother, were threatened. At hearing when the applicant was asked why he left Malaysia he said that while working for the [business 1] (after finishing up at school) he was out with a friend, “S”. who introduced him to an Ah Long who offered him a job collecting money given he has a big build. He was told to collect 30,000 Malaysian ringette with his friend S, they went to the location and collected it. Then S and another guy told the applicant they would take the money to the Ah Long and so he went to lunch. Coincidentally he saw the Ah Long when eating his lunch and he told him S and the other man had the money and would give it to him, which the Ah Long accepted. The Ah Long called him later that day asking if he knew where S was, and he said he did not know. He went looking for S but could not find him and the Ah Long was calling him and when he answered the Ah Long said S had not given him the money. He was sacred and so he gathered his things and went to find a safer place. He later found out S had run away with the money. He said the Ah Long went to his [specified] brother’s house trying to find the applicant, they went to his siblings’ houses, threatened his mother, did “a lot of things” to his family, he claimed they splashed red paint on his siblings’ house, and threatened his siblings and his mother and that he really felt he was not safe. At hearing when asked he said that his siblings had made a police report about these events. He claims he fled Malaysia in September 2015 for Australia in fear of his safety at the hands of the Ah Long and those working for them. He claims that if he returns, they will find him, and he would be responsible and that he believes they will ask him to repay it and he will be harmed.
[3] DFAT 'DFAT Country Information Report Malaysia', 24 June 2024, 20240624113833.
At hearing I noted the applicant’s claims were sometimes brief, did not always make much sense, and varied. At one point in the applicant’s brief claims in the PVA he referred to a “Muddy village”. When I asked the interpreter to read the applicant’s claims in his PVA to him in Malay to illustrate my concerns (after he had provided his claims at hearing) the interpreter indicated they were unable to translate that part, essentially because it did not make sense. The applicant briefly claimed this was a result of it being a direct translation, and while I acknowledge someone translated his claims from Malay into English and this may explain odd words in the claims, I do not consider this would explain a lack of detail or significant variations in his evidence. As I noted at hearing, the applicant said in his PVA that he did not dare report events to police, although in contrast, at hearing he claimed his family had reported it to police. The applicant said that was his siblings not him, and I acknowledge the distinction, although, there was no mention of anyone reporting events to police in the PVA despite the vague claim his family has been subjected to ongoing harassment/threats for over 10 years in connection with these events. At hearing the applicant made a seemingly significant claim never mentioned before. Initially he seemed to state there was a related incident in Australia. I sought to clarify what he was stating as his evidence was vague. He then claimed that somehow, he coincidentally met up with a “Chinese person” in [Suburb 1], and he said he did not know how this Chinese person knew this, but the Chinese person knew the nickname he had used when he worked for the Ah Long. When I sought to clarify if he meant an incident occurred in Australia in relation to this he indicated not, and I do not accept this vague and belatedly raised claim which is also difficult to believe. At hearing the applicant also claimed for the first time he owed some 300,000 (in contrast to 30,000 in the PVA) Malaysian ringette to the Ah Long. I asked him how he arrived at this figure. He did not answer the question posed, instead stating it was approximate. When I repeated the question, he variously said that the amount was 30,000, it had been about 10 years, he did not know exactly, he estimated the interest, he believed he would have to pay interest because when they collect debts the Ah Long would impose interest. I noted that this sounded like a guess, which he acknowledged. I do not find this evidence reliable.
When I asked the applicant at hearing to detail what his role with the Ah Long involved, he briefly said to “collect money”. He repeated this when in an effort to elicit more detail, I asked what his main tasks were. When I asked more pressing questions an in effort to elicit more detail, he said he did not work office hours, they would call him when they needed hm, he would move from case to case, and initially he was only to collect less than 5,000 (presumably Malaysian ringette). Despite my more probing questions the applicant did not elaborate, and I found his evidence about what he did in the role vague. While he never sought to invoke the privilege against self-incrimination, despite my alerting him to it, it is plausible he might not have wanted to speak in detail about what it was he did in this claimed, seemingly illegal, work, and I am willing to draw no adverse inference from his vague claims regarding what he did in the role. However when I asked for other details about this job, he did not always initially answer the question and his evidence was also sometimes vague. When asked what year he started he did not answer the question, instead stating he only had the job for under 1 year. When I repeated the question, he eventually said he started in around 2013. When I clarified he confirmed it was in 2013. When I clarified that he had earlier said he held it for under a year he confirmed that this was also correct. When I asked where S was now, the applicant briefly said he did not know, and did not otherwise elaborate on S, despite opportunity.
As was noted at hearing aspects of the applicant’s claims have also been difficult to believe. At hearing I noted that I found it difficult to believe he would be blamed for stealing the money, given that as he had acknowledged earlier at hearing his boss knew it was S and the other man, not the applicant, and that also it had now been over 10 years since these claimed events. The applicant said his boss did not specifically say he had taken the money but that he would be seen as responsible because he was working with S on the day it went missing. At hearing I noted that I found it difficult to believe that his family, who remained in Malaysia, would be harassed/threatened and their property damaged by the Ah Long for the last 10 years and mostly recently in 2023 (discussed below) in connection with money the applicant had not even stolen himself. The applicant essentially said that his decision not to return to Malaysia was evidence of his fear and that he did not want to implicate his wife and children by returning. I noted that there was no evidence of his wife and children having been harmed in his absence, despite having returned. He briefly claimed the Ah Long did not know about them. In circumstances where he claims his wife and children returned some time ago and are in contact with his family who he claims are subject to ongoing harassment and threats by the Ah Long, who he claims is well connected throughout the country and could find any person they needed (2024 Statement), I find this difficult to believe.
When I asked the applicant at hearing how he knew about the red paint on his siblings’ house he briefly said his young sibling informed him and that they were really angry with him. I asked when this was, and he said the last time was in 2023. I asked when the first time was, and he did not answer the question, only vaguely stating they had still not stopped looking for him and asking his family to pay. When I asked the applicant if his family reported their property damage and harassment by the Ah Long to police, he said that they had made a police report. I asked him to provide a copy. He said he did not have it. I noted that he could ask his siblings for a copy and that I could provide him with additional time in which to do so. He said he could ask but he was not sure whether the report was still there or not. He then vaguely claimed his siblings only made a report during the first incident, not the last, because it would be futile as they would still be after him.
I acknowledge DFAT reports that borrowers who are unable to repay Ah Long debts may reportedly have their house splashed with red paint, may face serious harassment, that families are sometimes harassed, that while state protection is available DFAT reports it is often ineffective, and that overall, DFAT reports victims and their families face a pattern of discrimination and harassment and low risk of violence from loan sharks and/or gangsters. However as was noted at hearing the country information also[4] reports that illegal money lending and harassment of victims is illegal under the Moneylenders Act and Penal Code. While I acknowledge there is some corruption within the police force, as was noted at hearing, overall the country information also indicates that both local and international sources consider the Malaysian police force to be an effective and professional force. I also noted at hearing that more up to date online reports[5] (than those by DFAT) indicate the authorities are working against illegal money lending and the harassment of victims, have conducted many investigations and arrested many illegal moneylenders, and that as a result they were reportedly abandoning premises and increasingly conducting their activities online and using overseas-registered mule bank accounts. The applicant essentially said he did not believe these articles, that Ah Longs could do whatever they wanted, and that he had bribed the police himself in the past, so he knew it was possible.
[4] DFAT 'DFAT Country Information Report Malaysia', 24 June 2024, 20240624113833.
[5] MS New, ‘Loan sharks burn store in ‘S’pore after businessman’s son clicked on Facebook ad in S’pore’, 13 August 2024; The Star, ‘Online loan sharks at tough catch’, 19 July 2024; FMT, ‘Cops find ‘debt slaves’ working for Ah Long Rings’, 31 July 2022.
At the end of the hearing I gave the applicant an additional 7 days to obtain and provide any supporting documents in relation to these events, explaining that if he needed more time to write to the Tribunal and we would consider this request. He asked whether if he could not obtain the police report he could provide a statement by one of his siblings. I said that he could provide whatever evidence he wanted to, and I would consider it in making my decision. I highlighted that he had claimed his family had been subjected to ongoing harassment/threats, property damage, and demands for the money, by the Ah Long and those working for them in connection with him for over 10 years, and urged him to provide anything in relation to this to support these claims, even perhaps any emails between him and his siblings about these events. The applicant briefly said they only ever called him on the phone. After the hearing the applicant did not seek additional time to provide any of these supporting documents and to date no documents have been provided to the Tribunal in support of these claims, including the claimed police report.
The applicant has vaguely referred to having mental issues or stress, and later after the first hearing in the 2024 Statement vaguely said a return to Malaysia might trigger this. I acknowledge he may plausibly at times feel stressed, overwhelmed, or upset, particularly by his wife and his children’s return to Malaysia. In the 2024 Statement provided on the day of the second hearing, the applicant also claimed for the first time that he could not understand the questions at the first hearing as he had a difficulty remembering specific times and dates, especially in relation to important events, and had not been able to concentrate or follow the calendar from a young age. I do not accept this brief, unsupported and belated explanation for the significant variations in his claims, especially as he did not raise these concerns during the first hearing when he claims he experienced these issues and has only raised this after numerous concerns were raised at the first hearing in relation to his claims regarding the Ah Long, which was his main claim at that time.
On the often vague, sometimes varied, difficult to believe, unsupported evidence, and significant delay in lodging the PVA, I do not accept the applicant worked as a debt collector for an Ah Long when a friend, S, ran away with 30,000 as claimed. It follows that I do not accept he was pursued by the Ah Long or those working for them, or that his family has been subjected to more than 10 years of harassment/threats and other harm in connection with this in his absence, or that the Ah Long and those working for them are still looking for him. I do not accept the applicant fled Malaysia in fear of his safety at the hands of an Ah Long or those working with them as claimed.
As noted above, after the first hearing the applicant requested a second hearing claiming it was to clarify his response to some important questions where he did not give much of a detailed response at the first hearing, and for the reasons noted above in relation to his claimed inability to remember important times and dates, poor concentration, and inability to follow a calendar. Given the applicant was unrepresented it was decided to hold a second hearing so that he would have an opportunity to provide his evidence orally with the assistance of an interpreter. I note that at the first hearing when I asked the applicant about his wife and family, he asked me not to ask questions about her. He only spoke about how they had married in Australia and how she had left and returned to Malaysia with their 2 children in early 2024. However after the first hearing, in the 2024 Statement (lodged on the day of the second hearing) and at the second hearing, the applicant claimed for the first time that he had been married previously in Malaysia, that he would be imprisoned or otherwise harmed by the Shariah court and his life would be made more difficult if he returned because his marriage in Australia would not be valid as a consequence of his first marriage (because of the claimed unusual way in which he claims his first wife divorced him), and that therefore his children were stateless and illegitimate and would not be able to take his surname.
As noted above, I accept the applicant was married in 2019, in Australia, to a Malaysian woman who was in Australia at that time, and they had a daughter [later] and then a son [after that]. I accept his wife also lodged a protection visa application at some point. His wife’s protection visa application was refused and in early 2024 she returned to Malaysia with their children and that she has asked for him to return although he has refused to do so and states that he will not return. After the first hearing in the 2024 Statement and then at the second hearing the applicant claimed he had been married before in Malaysia. He claimed he married his high school sweetheart, that her family did not like him as he was considered well-off or wealthy, and when issues arose with the Ah Long this wife ran away to her parents’ house and she did not want to speak with him, and her parents would not let her. After he had been in Australia for about a year his family in Malaysia received documentation from the Sharia courts showing his first wife had sought a divorce and that this was eventually granted as he was not in Malaysia to respond. He claims that under Islamic tradition an individual who wants to divorce has rules and practices to follow and that this divorce application was based on the woman’s rule called “Fasakh” which means when the woman’s husband is no longer contactable and does not appear at the Sharia court for more than a year, she can have a divorce accepted. He claimed however that in these circumstances he would not be able to remarry until he attended the Sharia court to provide an explanation and sought the court’s waiver to the condition which did not allow him to remarry. He claims that as he remarried without doing so, he has committed an offence liable to imprisonment, may be sent to “Islamic rehab”, his second marriage is not valid, and his children are illegitimate and stateless, having returned on emergency travel documents and would not be able to take his surname.
At hearing I noted that his claims had varied significantly which raised serious concerns for me regarding the veracity of these claims and also that his wife and children were not applicants before me. In this regard the applicant had never previously mentioned having been married before and had not previously raised any claims related to the invalidity of his marriage in Australia, or the claimed illegitimacy and statelessness of his children, despite claims these events occurred some time ago, many before he lodged the PVA. I also note that these claims were only first raised after numerous issues were raised at the first hearing with his then main claim in relation to the Ah Long. Moreover, at the first hearing I raised concerns about the lack of detail in his PVA about his family, when he provided a lot more detail about his childhood family and his wife, and when I sought to ask him more about his wife, he asked me to not ask him questions about her.
Additionally at variance with the applicant’s claims at the second hearing that he married his high school sweetheart after finishing up at high school (he claims he finished high school in [grade], when he was about [age], which would have been in about 2007) in contrast, in the 2024 Statement he said he married his first wife in Malaysia [in] January 2014 and that some 3 months later they split after she was fearful because of the issues with the Ah Long. As I noted at the second hearing the applicant has provided no supporting evidence in relation to these belated claims. In this regard he has not provided any evidence of his marriage to his claimed first wife, which I consider it would be reasonable to expect him to be able to provide, as he has done in relation to his current wife. Also in the 2024 Statement he said his parents had received documentation from the Shariah court in relation to the divorce, which he reiterated at the second hearing indicating they had received documentation on more than one occasion, although to date none of these documents have been provided in support of these claims, and I consider it would be reasonable to expect him to be able to provide such documentation, particularly given the significance of these claimed events and that they occurred more recently.
The applicant’s wife and children returned to Malaysia earlier last year. At the second hearing I noted his claims were not supported by the country information[6]. I noted under the Constitution his children would automatically be Malaysian citizens. In this regard the Constitution provides that children are automatically Malaysian citizens by operation of law if born outside Malaysia to a father who is a citizen at birth and was born in Malaysia (the applicant is a citizen and was born in Malaysia). I also noted that a book on Islamic Family Law in Malaysia stated that while children of an invalid marriage may be illegitimate, there were exceptions to this such as where the parties believed the marriage was valid and that there were also ways in which such a child could be legitimised. The Islamic law provides several methods of ascribing paternity to a child so that their welfare is protected. In this regard I noted that if his children were illegitimate for whatever reason they could be legitimated through his acknowledgment of them as his children and he as their father (al-iqrar) in accordance with the Islamic Family Law (Federal Territories) Act 1984, and that I found it difficult to believe he would not do this if it were an issue and he were to return. I also noted that I could not find any mention in the book of men who are divorced by their wives under Fasakh (for being absent for 1 year) being unable to remarry or being imprisoned if they remarried. The applicant said that what I had said was true under Malaysian law, but seemed to suggest the situation was different under these laws if the man married in a different country and sought protection, although this vague assertion is unsupported and unpersuasive, and I do not accept it. At odds with his claims he then seemed to say that if he returned to Malaysia his children would definitely carry his name.
[6] Government of Malaysia, 'Federal Constitution of Malaysia', 1 November 2010, 20191128113408; Najibah Mod Zin et al, Islamic Family law in Malaysia, (Thomson Reuters, 2nd ed, 2021); DFAT 'DFAT Country Information Report Malaysia', 24 June 2024, 20240624113833; The Straights Times, ‘Malaysia to allow automatic citizenship for children born overseas to Malaysian mums’, 19 February 2023.
The applicant has intertwined his claimed first marriage with claimed events in relation to the Ah Long, stating that after the events with the Ah Long his first wife ran away from him to her family, although as noted above I do not accept his claims regarding the Ah Long.
On the significantly varied and unsupported evidence including the belatedly raised claims, that appear to have been raised for the first time after the first hearing in response to the numerous issues raised with Ah Long claims at the first hearing, and the country information noted above, I do not accept the applicant was married previously in Malaysia as claimed, that his current marriage is invalid, or that his children are stateless or illegitimate. It follows that I do not accept the applicant will be imprisoned or otherwise harmed by the Sharia court or anyone else in connection with a claimed first and second marriage or his children’s status as claimed. On the evidence I consider it more plausible that after having arrived in Australia in 2015 and his visa expiring shortly afterwards, and then marrying and having his first child with his [wife], that the applicant lodged the PVA in 2020 in an effort to regularise his migration status in Australia.
While as noted above I accept the applicant may plausibly feel stressed or overwhelmed or upset if he were to return to Malaysia and he does not want to return to Malaysia this is not persecution or significant harm.[7]
[7] CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089; CHB16 v Minister for Immigration and Border Protection [2019] HCASL 377.
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(s) of hearing: 24 October 2024, 13 December 2024.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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