2105279 (Refugee) - [2025] ARTA 1320

2105279 (REFUGEE) [2025] ARTA 1320 (4 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2105279
Tribunal:General Member J Wilson
Date:4 June 2025

Place:Canberra
Decision:The Tribunal affirms the decision under review.

CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnicity – born in third country – fear of harm from loan shark – forced labour, torture or sale of organs on black market – application prepared by another person with applicant unaware of contents and all written claims discontinued – fear of harm from gang – introduced to gang to protect from bullying at school – paid protection money and joined as junior member but no illegal activities – attempted to leave after becoming aware of scope of activities – threatened, and late claims of pressure to participate in illegal activities, attack and death threats – no right to enter birth country – no recent contact with gang and family now living in different area – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (4), 36(2)(a), (aa), (2A), 65, 367A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
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
BACKGROUND AND APPLICATION FOR REVIEW

The application for review concerns a [Age]-year-old male Malaysian national. According to the movement record, the applicant arrived in Australia in February of 2020 as the holder of a visitor visa. He lodged a protection visa application on 22 April 2020.
On 15 April 2021 a delegate of the Minister refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 24 April 2021 the applicant lodged an application for review with the (then) Administrative Appeals Tribunal (AAT). As the application for review was not determined by 14 October 2024, when the AAT was replaced by the Administrative Review Tribunal (Tribunal), the application is to be determined by the Tribunal in accordance with the provisions of the Administrative Review Tribunal Act 2024 (Cth).
The issue to be determined in this application for review is whether the applicant meets the eligibility criteria for the grant of a protection visa, which in turn requires that the applicant meets either the refugee criteria set out in s 36(2)(a) of the Act, or the complementary protection criteria in s 36(2)(aa) of the Act.
RELEVANT LAW: CRITERIA FOR A 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) of the Act 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) of the Act, 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 the applicant is found not to meet the refugee criterion in s 36(2)(a) of the Act, he may nevertheless meet the criteria for the grant of the visa if he 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 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 (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Evidence before the Department
According to the information contained in the protection visa application, the applicant:
a.was born in the Malaysian state of Sabah;
b.had a mother and father (both deceased) and has remaining family including a sister, a brother, two cousins and an aunt and uncle;
c.is of the Muslim Shia faith;
d.had travelled on one occasion to [Country] in late 2016 to visit his aunty and uncle; and
e.in summary, seeks protection claiming he would be tortured and forced into labour for reasons associated with owing money borrowed from a loan shark. The applicant’s claims also included fears of the possible sale of his body organs in the black market.
The applicant’s protection visa application was accompanied by the following supporting documents:
a.a certified copy of the bio page of his Malaysian passport issued in 2016 from the Sandakan Office, which relevantly states the applicant was born in [Country];
b.a certified copy of his MyKAD national identity card and drivers licence, which confirms the applicant was resident in Sabah.
There is no information to suggest the applicant was invited to attend an interview with the Department.
Summary of the delegate’s decision
The delegate refused to grant the visa on the basis that effective protection was available in Malaysia, and accordingly, that the applicant did not have a well-founded fear of persecution, which consequently meant that the delegate found the applicant neither met the refugee criteria or the complementary protection criteria. The Tribunal notes the delegate did not make any findings of fact with respect to the loan shark claims made in the protection visa application.
Claims and evidence before the Tribunal
Pre-hearing submissions
In response to the Tribunal’s invitation to attend a hearing, the applicant completed and returned a hearing response form on 21 February 2025 (confirming that he did not require an interpreter) and affixed ten photographs as evidence for the Tribunal’s consideration. No further context for the photographs was provided at that point in time.
Oral evidence provided at hearing
The applicant appeared before the Tribunal by video conference on 12 March 2025 to give evidence and present arguments. The Tribunal invited the applicant to appear remotely because the Tribunal recognised the applicant was resident in regional New South Wales.
The applicant was not represented and elected to give his evidence in English, declining the opportunity to use an interpreter. The Tribunal was satisfied that the applicant could engage effectively in the English language and the applicant confirmed at various points throughout the hearing that he was content communicating in English.
At the outset of the hearing, it became quickly apparent that much of the information contained in the protection visa application was not accurate. The applicant said he did not complete the form himself, but rather paid a man in Australia $AUD500 to complete a visa application for him, on the promise it would give him work rights. He said he has since lost contact with that man. The applicant confirmed the claims in the protection visa application were not accurate and that he did not wish the Tribunal to consider those written claims, owing to the fact that he did not complete the form. The Tribunal asked the applicant to confirm whether he intended to resile from his earlier protection claims in their entirety, to which he responded that he did.
Contrary to the information contained in his protection visa application, the applicant gave oral evidence that he was born in [Country] and migrated to Sabah, Malaysia with his immediate family in 2008 because it was not safe for them to remain in [Country]. He stated his immediate family consisted of his parents and [siblings], being [brothers and sisters]. He stated his parents are alive and retired and that his younger siblings are school age. He said his family are resident in Malaysia and relocated from Sabah to West Malaysia, near to Kuala Lumpur.
The applicant explained that when he arrived in Australia his elder brother was already resident in regional New South Wales, and that his brother helped him to establish himself.
The applicant gave evidence that he and his eldest brother financially support his parents and [siblings] in Malaysia. He said he misses his family and speaks to them everyday, and otherwise has no contact with any other person in Malaysia or in [Country].
The applicant explained that he had returned to [Country] on one occasion in December 2016 with his mother to visit his maternal grandmother. He said his mother is a [Country] citizen and his father is a Malaysian citizen. When asked whether he has a right of entry to [Country], the applicant explained he had previously held a [Country] passport however that it has since expired and that he last entered [Country] in 2016 on a Malaysian passport having been required to request a [Country] visitor visa (a fact the Tribunal accepts as true based on the passport and visa information available to it).
The applicant gave evidence that he is single and has no children. He also stated his family are all Sunni Muslims, and that he also observes that faith. He stated that references in the protection visa application to him being a Shia Muslim are not accurate.
The applicant gave evidence that he completed High School in Sabah in [Year].
When asked about his employment history, the applicant gave oral evidence that he never worked in Malaysia, except for assisting his father in the retail store he owned in Sabah. He said that since arriving in Australia he undertook some casual [workplace] work before finding ongoing work in a [company]. He confirmed that the claims made in his protection visa application that he was [an occupation] are not accurate. He said he helped a contractor [do a work task] on one occasion for two-three weeks, but that was the extent of his [work task] skills.
Oral evidence concerning fears and claims for protection
The applicant said he left Malaysia in February 2020 because he needed to run away from the gang that he had joined. He said he came to Australia for safety. On arrival in Australia, he said his preference was to continue his education, however he did not have the money so needed to work to support himself and his family in Malaysia.
The applicant described being bullied and threatened regularly at school in Sabah. He considers he was targeted because he was different, owing to his [Country] ethnicity. He said he reported the bullying to his teacher and was generally safe during school hours, however considered the teacher could not protect him outside of school hours. He recounted a memory of stepping onto the bus after school, being pulled off the bus by someone grabbing his school bag who preceded to punch him. His friends came to his aide on that occasion and the bus driver recommended he report it to the police however the applicant said that kind of fighting happened daily at the school, because the school students came from the villages nearby where violence was common.
The applicant recounted how he came to be associated with a gang named [Gang name 1] in Malaysia. He said that on a Friday afternoon his school friend (that the Tribunal will refer to as ‘[A]’) took him to town, some distance from school, and introduced him to an adult male gang member that could help with the school bullying he was suffering. He said he was aged [age] at the time. He said the man was referred to by his title ‘[Title]’ although the applicant also referred to him as ‘[B]’. The applicant gave evidence that [B] told him he could contact him if he encountered any further issues as school.
The applicant further said that when he was in Form 3 he was alerted by older boys that trouble was coming for him. He recalled a situation when after school other schoolboys threatened trouble and that the gang came to his aide and spoke to the school bully warning him not to trouble the applicant again. He said the gang collected him in a vehicle on that occasion and took him away from the school.
At hearing, the applicant provided oral evidence that he paid [B] 100 Ringgit per month as protection money. When asked how he paid his monthly protection fees, the applicant said he took the money from his father’s retail store, without his father knowing.
The applicant provided oral evidence that he attended a gang induction ceremony in a hotel in Sandakan. He described the ceremony and the taking of the oath in some detail.
The applicant described the gang as having two branches, the ‘main gang’ and a charitable non-governmental organisation that was registered with the Malaysian government. He provided the name of the registered charitable organisation as [Organisation]. He said that all gang members need to be members of the charitable organisation and are then issued with membership cards, stickers for their cars, and specific gang clothing items. He provided photographic evidence of his membership card to [Organisation]. He said they openly wear the clothing items in town, and that police do not bother them. The applicant spoke about the structure of the gang as being a transnational crime syndicate with origins from a Chinese triad, he also spoke about the race and composition of its membership and the relevance of the symbols and colours in insignia for the gang and for [Organisation].
The applicant explained that one of the photographs he had tendered in evidence was a photo of himself wearing the gang clothing when he visited [Country] in 2016, owing to a request by [B] for him to take a photo of himself in the clothing while he was visiting [Country].
He said he was given no title and was junior, and that he only followed orders. He said gang members were asked to fight people, to look after loan sharks and obtain protection money from casinos. When asked what job/s he was assigned to, the applicant said he was never assigned any, which he considered was owing to his age. When asked whether he had committed any illegal acts in Malaysia he said he had not. He said that as a junior gang member he was included in gang communications via WeChat and WhatsApp.
The applicant said he was a member of the gang for approximately three years while he was at school. He said that lots of other students at his school were members of other gangs.
He said that his relationship with the gang changed when he became aware of their broader operations and that he became scared. He said he told the gang he ‘wanted out’. He said that they were not impressed and verbally reminded him of the oath he had taken at his induction ceremony and that defecting from the gang would make him a traitor. He said they left threatening voice messages and kicked him out of the WeChat group, such that he could not connect with them anymore.
When asked how he escaped, the applicant said that his father noticed that something was not right with him, and that he had been evading his pressure to continue his schooling, and that eventually the applicant told his father about his involvement with the gang. The applicant gave evidence that his father told him to ‘act normal’ and apologise to the gang’ and that he then spent months trying to convince the gang that he regretted expressing his desire to leave them. The applicant said during that time he spent his time at home and helped his father in his store. He gave further evidence that some members of the gang came to his father’s store and that his father tried to speak with them. He said that his father ultimately made the decision to relocate his family to West Malaysia near Kuala Lumpur and that he then helped the applicant relocate to Australia.
The applicant said he fears returning to Malaysia because they would kill him or seriously hurt him for defecting from the group. He said he had heard of a single case of a gang member being killed in Sabah for defecting from the group. He provided no further detail.
He said he has erased himself from all forms of social media, in fear of the gang finding him. He said the last contact he had with the gang was June/July of 2019. He said he checks-in with his family daily in Malaysia, and that they are safe and have not received any threats since relocating to Kuala Lumpur.
The Tribunal asked the applicant whether he feared returning to Malaysia for any other reason, or had other information that he wanted to share with the Tribunal, to which he responded that he did not.
Post-hearing submissions
Following the hearing, on 14 March 2025, the Tribunal wrote to the applicant offering him a period of seven days to better detail the harm he had suffered, or will suffer in Malaysia, and to provide a description and further context of each of the photographs he had supplied to the Tribunal.
On 19 March 2025 the applicant responded to the Tribunal’s letter and provided an undated written letter (Post-Hearing Submission), a document describing the previous images he had supplied to the Tribunal in some level of detail including the importance of use of colours in gang insignia, and a further document titled ‘further evidence’ that contained new images of the Malaysian Prime Minister with a male who the applicant claims to be a gang leader, which the Tribunal infers from the context that the applicant claims there is a close connection between the Malaysian Government or authorities, and criminal figures. The document also contained links to various Malaysian news sources and TikTok content.
The Tribunal was unable to view the TikTok content, and was also not able to read the Malaysian news sources because some content had been removed, and other content was written in a language other than English and not accompanied by any English translation.[1] In the hearing notice sent to the applicant the Tribunal had explained that any evidence needed to be provided to the Tribunal in English, or accompanied by a certified NAATI translation.
[1] Administrative Review Tribunal (Common Procedures) Practice Direction 2024, cl 6.2 (c) requires that, in general, evidence before the Tribunal must be in English or accompanied by a NAATI certified translation.

Notably, in the letter received by the Tribunal on 19 March 2025 the applicant provided additional evidence. He wrote that:
The gang pressured me to sell drugs, monitor gambling operations, and join
fights. I refused but feared eventual coercion. When I expressed wanting to
leave, they threatened me. Unknown WeChat profiles sent death threats, videos of
executions, and warnings of fabricated charges. They attacked me at a
supermarket, breaking my right hand, and warned, “Next time, you’ll end up in a
coma.”
The Tribunal notes that the claimed attack in the supermarket was not mentioned by the applicant at the hearing, nor were the death threats, videos or warnings of fabricated charges.
CONSIDERATION OF CLAIMS AND EVIDENCE: REASONS AND FINDINGS
At the hearing, the applicant offered his evidence in a cooperative, forthcoming manner with spontaneity. When asked, the applicant was quick to adjust the record of factual differences between his oral evidence and the particulars and claims contained within his protection visa application. The Tribunal accepts his explanation that he did not write his protection visa application and therefore applies no inference unfavourable to the credibility of the new claims presented at the hearing.[2]
[2] Per s 367A of the Migration Act 1958 (Cth).
Based on the oral evidence he provided, the Tribunal considers the applicant a resourceful young person who appears to have adapted quickly to life in Australia. At the hearing he demonstrated a proficient command of the English language. Despite his many qualities, the Tribunal is required to apply the law relevant to the assessment of a protection visa, and in doing so, affirms the delegates decision for the reasons set out below.
Identity, Nationality and Receiving Country
The applicant’s identity is not in dispute. The applicant provided a copy of his Malaysian passport to the Department. According to the Department’s decision record, there was no evidence available to suggest that his passport was a bogus document and accordingly the Tribunal is prepared to accept the applicant’s identity based on the Department’s assessment and a copy of the passport provided to the Tribunal.
The Tribunal has considered the claim that the applicant previously held a [Country] passport, however considers the documentary evidence contained within his Malaysian passport that he was required to enter [Country] in 2016 on a Malaysian passport together with the grant of a [Country] visitor visa suggests that the [Country] Government does not recognise the applicant as a [Country] citizen. On the information available to the Tribunal, there is no evidence to suggest the applicant has a current right to enter or reside, whether temporarily or permanently, in any other country.
Based on the documents provided by the applicants and accepted by the Department, the Tribunal finds the applicant is a citizen of Malaysia and accordingly his protection will be assessed against Malaysia as the ‘receiving country’.
Was the applicant a member of a gang in Malaysia?
The Tribunal is mindful that evidence of persecution in the context of an application for protection is a matter of some complexity and that an applicant may have difficulties in substantiating their claims. In this application for review, the Tribunal is mindful that the claims relate to the conduct of criminals who are unlikely to offer documentary evidence to assist the applicant substantiate his claims.
In the applicant’s favour, a range of country information is available that suggests it is plausible that the applicant could be a member of a gang in Malaysia, and that he may have been recruited as an adolescent. The Tribunal is informed by the DFAT Country Information Report Malaysia dated 24 March 2025 (DFAT Report), which relevantly provides:
Gang Activity
[2.30] Gangs continue to operate in Malaysia. In 2022, local media reported that 72 underworld gangs were being monitored by police as potential threats to the country. In-country sources reported that many street-level gang members were Indian Malaysians, in part reflecting their relative economic vulnerability. In-country sources also reported high-level crime, including drug trafficking, was more typically associated with Chinese Malaysian gangs. Some gangs engage in extortion and loan sharking. Details of gang activities are difficult to obtain, as victims of gang-related crimes do not generally report them due to fear of retaliation.[3]
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia (24 March 2025), 12, [2.30].
The Tribunal has also considered scholarly literature, which reports that it is common for youths to be recruited into gangs in Malaysia during middle school.[4] Relevantly to the applicant’s claims of being given certain clothing to wear by the gang, the research article also notes that once youths join the gang they are ‘taught the gang’s history and rules, and encouraged to have the gang’s tattoos and adopt clothing styles unique to the gang’.[5] A further 2021 report about gangs in Malaysia includes comments from a former regional police chief that states, consistent with the applicant’s claims, that gangs offer protection, money, power and influence. [6]
[4] Nataraja Moorthy T, Aaron Inbaraj D, Mohammad Rahim K, ‘Exploring the Profile of Gangsterism in Malaysia from the Perspective of Experts’ (2019) Journal of Forensic and Crime Studies, Vol 3,Issue 1, 3.
[5] Ibid.
[6] Shah Alam, FMT, ‘550 triad members arrested in Selangor since 2019’, Bernama, 10 April 2021,
A 2024 report contains references to the use of colours within the gangs, and also supports the applicant’s claims with reference to the non-governmental organisation or charitable face of a gang’s structure, stating that ‘[t]he triads often register officially as social organizations with thousands of members to avoid recognition as illegal gangs’.[7]
[7] United States Institute of Peace, Transnational Crime in Southeast Asia: A Growing Threat to Global Peace and Security (May 2024) 42.
While the country information suggests that the applicant’s claims are plausible, the Tribunal has considered that some factors within the applicant’s evidence that do not support his claims. The Tribunal has identified some differences in the applicant’s evidence that might suggests that the claims are not credible. For example, in his Post-Hearing Submission the applicant refers to a gang by the name of [Gang 2] and also added detail concerning the presence of a samurai sword at one of the altercations he had with the school bullies, that was not previously mentioned in his oral evidence. On those matters, the Tribunal has given the applicant the benefit of the doubt because it considers the differences are not necessarily inconsistent with the applicant’s prior evidence, and might be explained by being a reference to a different gang, or may be the result of the context in which the questions were asked at hearing. Additionally, the Tribunal notes it has not been able to locate any independent research written in English that suggests [Gang 1] exists. However, country information contained within the DFAT Report states that over 72 underworld gangs were being monitored by police in Malaysia,[8] and the Tribunal considers it plausible that [Gang 1] is one such group.
[8] DFAT Report, n5, 12 [2.30].
The applicant provided the Tribunal with photographs of his membership card of [Organisation] (the claimed charitable face of the gang) and on the country information available the Tribunal notes that many gangs operate in Malaysia under a veil of legitimacy using charitable and commercial entities. It is not outside the realm of possibility that [Organisation] performs such a function.
Having regard to the totality of the evidence the applicant provided and noting that the applicant sought protection within approximately three months of arriving in Australia, the Tribunal is inclined to offer the applicant the benefit of the doubt with respect to some of his claims. Specifically, the Tribunal accepts the applicant’s claims that:
a.he was a victim of bullying at school;
b.he was inducted into, and became a junior member of [Organisation], and by extension, [Gang 1], for a period of approximately three years from 2016;
c.the gang offered him protection to allow him to complete his schooling without fear of school bullying;
d.he paid the gang protection money for the approximate three years that he was a member whilst resident in Malaysia;
e.he does not owe the gang any money;
f.he did not undertake jobs or assignments for the gang;
g.he sought to leave the gang once he learnt the broader nature of their illegal activities; and
h.he has a subjective fear of returning to Malaysia owing to his former gang involvement.
The Tribunal does not accept that the applicant remains a current member of the gang. On the applicant’s oral evidence, after indicating that he wanted to leave the gang he was expelled from the gang’s group communications whilst living in Malaysia and has had no contact with the gang since 2019. Whilst the Tribunal notes the applicant may have taken an oath for life, the fact that the gang removed him from communications indicates the gang no longer seeks to involve the applicant in its activities.
Did the applicant face harm in Malaysia?
The Tribunal is prepared to accept that the applicant faced instances of bullying and harassment from other school students when he was a school student. The Tribunal also accepts that on at least one occasion the bullying extended to physical harm including the applicant being punched.
The Tribunal accepts that the gang offered the applicant verbal warnings about wanting to leave the gang, however the Tribunal does not accept the applicant’s claims that he suffered harm when attempting to leave the gang. Specifically, the Tribunal does not accept the written claims contained in the Post-Hearing Submission that he received threats via WeChat, videos of executions, warnings of fabricated charges or that he was physically assaulted at a supermarket that resulted in him having a broken right hand. While the Tribunal has considered the claims with a liberal attitude, it is concerned that those specific claims were vague and not raised at the hearing. Additionally, no further documentary or medical evidence has been provided to support the claim that he was injured in a physical altercation. It is the responsibility of the applicant to make out his case,[9] and the Tribunal is not persuaded that he received threats or was physically harmed by the gang, that resulted in him having a broken hand, as claimed.
[9] Migration Act 1958 (Cth), s5AAA.
The Tribunal does not accept that the applicant’s father sold his business and relocated his family to safety from Sabah to near Kuala Lumpur for the sole purpose of seeking safety from the gang. There is no evidence provided to the Tribunal to support this claim. Neither the applicant’s father nor brother gave evidence at the hearing, nor was any information provided that demonstrated the family relocated as claimed. The protection visa application contained no details of prior addresses, and the applicant provided the Tribunal with no additional address details. The Tribunal considers this detail would have been reasonably available for the applicant to provide. Accordingly, the Tribunal does not accept that the applicant relocated from Sabah to Kuala Lumpur then to Australia to escape the gang.
Will the applicant face harm or mistreatment on return to Malaysia?
Having accepted that the applicant was a junior member of the gang the Tribunal must carefully consider whether the applicant faces a real chance of serious harm, or a real risk of significant harm, if he returns to Malaysia. The Tribunal accepts that at the time he lodged the protection visa application that he may have had a subjective fear of returning to Malaysia owing to his former involvement in the gang.
In the applicant’s favour, the Tribunal has considered his verbal and written claims that he will face death or serious injury if the gang were to find him on return to Malaysia.
The Tribunal has taken into consideration, and has placed weight on, the applicant’s evidence that he has not had any contact with the gang since 2019, that he was a junior member of the gang, that he paid his protection money and has no outstanding debts to the gang, and that the gang removed him from the group communications whilst he was resident in Malaysia.
The Tribunal considers the passage of time, now being over six years since the applicant last had any contact with the gang, the absence of any direct current threat, coupled with the fact that he was a low-level member who was effectively using the gang to seek protection from school bullying suggests that the applicant will no longer be of any interest to the gang. The Tribunal has also heard the applicant’s evidence that his family is currently safe and that there has been no suggestion that the gang have attempted to contact his family in Malaysia.
The Tribunal has given little weight to the applicant’s claim that he erased all social media to hide from the gang. No details were provided by the applicant of what accounts he has deleted or hidden, nor did he provide any information about any remaining online presence that may be attributed to him.
The applicant provided no evidence to suggest he would face harm for any other reason, and when asked the question in the hearing he stated that there were no other reasons he feared returning to Malaysia.
Accordingly, the Tribunal does not accept that the applicant will face any harm from the gang, or for any other reason, if he were to return to Malaysia.
Does the applicant satisfy the refugee criterion for protection?
The criterion in s 5J(1)(a) of the Act contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
While the Tribunal has accepted that the applicant was previously a junior member of a gang for a period of approximately three years, for reasons set out above the Tribunal does not accept that the applicant will, objectively, face any harm on return to Malaysia, and therefore does not face a real chance of serious harm per s 5J(4) of the Act. The refugee assessment also requires that the fear of persecution arises for one of the reasons stipulated in s 5J(1)(a) of the Act and that the reason is the essential and significant reason for the persecution. On the evidence supplied, the applicant does not fear persecution for one of the reasons listed in s 5J(1)(a) of the Act.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution per s 5(J) of the Act. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any reason it is not satisfied that the applicant is a refugee per s 5(H) of the Act. Because the applicant does not satisfy the definition of s 5H, the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[10]
[10] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
Following the Tribunal’s findings set out above (that the applicant will not face any harm now or in the reasonable foreseeable future if he is returned to Malaysia for reasons of his involvement in a gang, or for any other reason) for the same reasons, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to Malaysia, that there is a real risk he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
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 information to suggest 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: 12 March 2025
Representative for the Applicant: N/A
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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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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