2110990 (Refugee)
[2025] ARTA 1125
•20 January 2025
2110990 (REFUGEE) [2025] ARTA 1125 (20 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2110990
Tribunal:Clyde Cosentino
Date:20 January 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 20 January 2025 at 3:52pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – feared loan sharks who wanted their money back – applicant changed his claims substantially to his original written claims – significant delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 July 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 3 March 2021. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 11 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
Protection visa application
In his protection visa application, the applicant provides the following information:
·He was born in Kuantan, Pahang, Malaysia.
·He was born in [year].
·He last lived in Kuantan, Pahang, Malaysia from [birth] to Mar 2021
·He claims to have completed High school in Kuantan, Pahang, Malaysia in 2011.
·He claims to be Malaysian citizenship by birth and therefore a Malaysian national.
·He last arrived in Australia on [date] April 2016 on a visitor visa.
When asked why he left Malaysia, he claims that he decided to leave his country because he had a serious problem. He claims he was betrayed by his business partner who had taken the profits himself and left the applicant single handedly to try and solve the business problems, but it did not work. He claims that his business was a [stated] business. He claims there were hundreds of investors who had invested in their company hoping for quick returns but almost all of them had their money stolen by his business partner. The investors lodged a report with the authorities and the applicant was the only one who was convicted. His company assets were impounded. The applicant thought he needed to go elsewhere.
When asked whether he experienced any harm in Malaysia he claims no.
When asked whether he tried to move to another part of the country he claims no. He claims that his movements are very limited back in Malaysia and the authorities can easily track him. He claims this is the reason why he moved.
When asked what he thought would happen to him if he returns to Malaysia, he claims he will “only jeopardize” himself if he goes back. He claims that there are people and the authorities who are looking for him.
When asked whether he will suffer harm or mistreatment if he returns, he claims yes. When asked why he would be mistreated or suffer harm if he returns, he claims that he will be harmed if he is arrested by the authorities. He claims that it will be worse if he is captured by the investors who lost their money even though it was not his fault.
When asked whether the authorities of Malaysia can and will protect him, he claims no. He claims that the authorities could not provide him with any protection because he is a wanted person.
When asked whether he could relocate to another part of Malaysia, he claims no. He claims that he is unable to relocate to any other parts of Malaysia because he was involved in a huge case involving hundreds of thousands of dollars (Malaysian Ringit) which has disappeared, and he will certainly get caught if he returns.
Evidence prior to hearing
On 28 August 2024, the applicant provided to the Tribunal a pre-hearing form. In that form, he was invited to answer the following question: “In your application for a protection visa you would have provided reasons or made claims as to why you need Australia to grant you protection. Do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country?”
The applicant’s response to the question above was that he could not go back to Malaysia due to reasons mentioned previously where he states he will be killed in Malaysia (no reason was provided in the form). He stated that he was afraid and asked for the Tribunal to reconsider his case. He stated that he would try and obtain more evidence if possible.
The applicant also provided a copy of the delegate’s decision to refuse to grant the applicant a protection visa based on the claims raised in his protection visa application.
Evidence before the Tribunal – 11 November 2024
At the hearing the applicant gave evidence that he recalled his protection visa application and the claims in that application which was lodged at the department on 3 March 2021.
When asked whether he put the application together himself or whether he received any help to put it together he stated he did it on his own.
When asked whether his claims he made in his protection visa application were true and correct he stated that they were all true and correct.
When asked where he lived prior to coming to Australia, he stated that he lived in Kuantan, Pahang, Malaysia. He lived there from [birth] to March 2021. He had lived there with his family.
He stated that he completed high school in Malaysia at Kuantan, Pahang.
When asked what his work history was in Malaysia before coming to Australia, he stated that he worked in a [workplace] or a [workplace]. He was working there for two years. He owned it and had another partner in business. He [did specified work] in that business. Only two people worked in the company. Before this business, he was a [occupation]. He did this work for one year. Prior to that he was still at school.
He remembered coming to Australia on [date] April 2016. He came on a visitor visa. The visa was for two months. He applied for a student visa while in Australia. He was not granted this visa. He then applied for another student visa. He was successful this time round. The student visa and his passport ran out in 2021.
When asked whether he applied for a protection visa at the end of his student visa he said yes. When asked why he applied for a protection visa at the end of his student visa he stated that it was because of the COVID outbreak, and he could not go back to Malaysia, and he could not change his passport in Australia. When asked if he applied for a protection visa because his student visa was coming to an end, he stated no. He stated that his passport was expiring. When asked was it because his passport was expiring that he applied for a protection visa he stated, “you can put it that way”. When asked why it was important for him to apply for a protection visa when his passport was expiring, he stated that his passport was about to expire, and he needed to apply for a protection visa.
When asked what his motivation was for applying for a protection visa at that time, he stated the first reason was that his passport was about to expire. He could not enrol in a new school in Australia and could not renew his passport either. When asked why he could not renew his passport in Australia he stated that the Malaysian embassy would not accept it because of Covid.
He confirmed that the reason why he applied for a protection visa at that time was because his passport was about to expire, and he could not enrol in a new school. He could not renew his passport either.
The Tribunal asked the applicant to give his reasons why he did not want to return to Malaysia. The applicant stated that in 2014 he, and another person called [Mr A], started up a business called “[name]”. Six months later, [Mr A] borrowed money from loan sharks. The applicant then signed a document. [Mr A] had borrowed 60,000 (Malaysian Ringit). [Mr A] left, and the loan sharks started to approach the applicant to pay the loan back. The applicant had to pay 2000 Ringit in interest every week. The applicant did not repay the interest to the loan sharks for three months. The interest snowballed from 60,000 Ringit to 160,000 Ringit. The applicant stated that it should not have to be him repaying the loan. He stated that later, the collectors went to his house to find him. They threatened his family. He was only [age] years old at that time. He later left home. They would still go to his house and harass his family. His family decided to leave. The applicant thought that was the right decision. Later he worked as a [occupation]. But the collectors still saw him and found him. He was scared. He tried to hide away for two years. He later came to Australia.
When asked who would harm him if he returned the applicant stated, “[Mr B]”. The applicant stated that this person was wanting to harm him because he had signed the document. When asked who signed the document the applicant stated his partner asked the applicant to sign it. When asked what document it was the applicant stated he did not know and could not remember. The applicant stated that his partner just told him that it was this document to sign. When asked whether he knew the consequence of signing this document the applicant stated no. When asked what he thought he was signing the applicant stated that he did not think about what he was signing. They were just telling him to sign it. When asked who was telling him to sign the document he stated, “[Mr B]”.
The Tribunal at this point raised concerns as to why he would sign a document he knew nothing about. The applicant stated that he was not sure that he had signed the document or not. He stated that “[Mr B]” and the people with him were telling him to sign the document. The Tribunal asked the applicant to confirm that he was now stating that he did not remember signing any document. The applicant confirmed this.
When asked whether he remembered his business partner asking him to sign a document the applicant stated that he cannot recall.
The Tribunal then asked why he was fearful if he had not signed a loan document and could recall signing a loan document. The applicant stated that he tried to resist them. He tried to get them to show him. They were just telling him that he had to sign a loan agreement and that he had to repay the loan back to them. The Tribunal asked when they told him that he had signed a loan agreement. The applicant stated after [Mr A] left. The Tribunal asked how long after [Mr A] left did they tell him that he had signed a loan agreement. The applicant stated on the same day that he left. He stated that they came round to the company on the same day that [Mr A] left. The Tribunal indicated that it might appear coincidental that they turned up at the company the same day [Mr A] left. The applicant believes that [Mr A] told them where the company was. He stated that the company was having a cash flow problem. They were planning to buy a car at the time.
The Tribunal again put back to the applicant his evidence that he did not recall signing a loan document, that he did not recall any document and that he was told by “[Mr B]” that he had signed one. The applicant confirmed this.
The Tribunal asked the applicant why he believed he would be harmed if he returned to Malaysia. The applicant stated because he was told. When asked who told him he stated a member of “[Mr B]”. He stated he was told this before he left Malaysia.
When asked how long he was paying the loan off he stated he only repaid the loan twice. He gave one loan repayment on the same day the collectors came to the company because their behaviour was affecting the customers. He gave them money to dismiss them. Next day they came again. He said to them to please leave as he had no money. One week later they brought a group of people and he gave them money again. They told him that the amount was not enough. They then left. Two weeks after this they came back again. He had no money to give them. They started to abuse him verbally. This went on for about one month. Eventually they started to damage things. He chose to report this to the police. But there were no effective measures taken by the police. The situation escalated. The collectors started harassing his family.
The Tribunal asked how long he continued to work at the company after [Mr A] left. The applicant stated the company was in [Mr A]'s name. The applicant ran the company for another two months after [Mr A] left. He stated that, because he did not have any money left, the landlord took the building back. This was the end of his business. After this he went to a different district and lived there. He worked as [an occupation] there before coming to Australia.
The Tribunal put to the applicant that his main claim at the hearing was that he feared loan sharks who wanted their money back. The applicant stated that he did not think they just wanted their money back. They are violent people. The Tribunal then asked him whether he feared that the loan sharks would harm him. He stated yes. The Tribunal asked him to confirm his evidence that he feared that he would be harmed because the loan had not been paid. The applicant confirmed this. The Tribunal asked him to confirm his evidence that he feared “[Mr B]” and the people that worked for him. The applicant confirmed this. The applicant was more concerned and scared that he would harm his family. The Tribunal asked whether there was anyone else he feared in Malaysia. He stated no.
The Tribunal asked him to confirm that his claims centred round a loan document and repayments on a loan document that he believed that he never signed. The applicant confirmed this.
When asked whether he spoke with the authorities the applicant said yes. When asked if they helped him at all he stated that they said that they would dispatch more police officers to patrol his neighbourhood. The applicant did not see any police officers helping him when the collectors came to his place.
When asked how many times he sought help from the police he stated three times. When asked whether they helped at all during those 3 occasions he stated that they did on the second occasion. He stated however that some of the suspects were later bailed out. When asked what happened when the suspects were released on bail, the applicant stated that his car was damaged.
When asked why he thought he could not relocate to another part of the country, he stated that he did not have any assistance. He did not want to hurt anyone. If he moved to another place, other people would be hurt as collateral damage.
When asked whether he had ever been charged or convicted by police he stated no.
When asked if there was anything else he wished to add in support of his claims he stated there was not.
The Tribunal then raised with the applicant certain matters for his comments. It reminded the applicant that the Tribunal had not made up its mind at all on any matters and that it would go away and consider everything that was before it.
It asked him why he did not provide more information and more supporting documents about his claims at the time he lodged his application. He stated that at the time, he wanted to tell his story face to face at the hearing. He stated that it had been ten years since he contacted his friends and family and it was hard for him to obtain supporting material. He stated none was provided.
It was raised with him that when the Tribunal contacted him in writing after he lodged his review application it asked him to provide any further material and information that might support his claims. The Tribunal then recently sent him a form and asked him to complete it which he did asking him for further information and supporting material. On that occasion, it appeared he sent back an email and responses that had very little detail about his claims. The Tribunal read to him his response in the form he completed and which he sent to the Tribunal on 28 August 2024. The Tribunal then raised with him that he was sent a Hearing Invitation inviting him to send any further supporting material and information in support of his claims, but nothing was provided. It indicated that it appeared that he had provided almost no information or supporting material even when given the opportunity to do so. The applicant responded that he left Malaysia ten years ago and was not able to find any material as such.
The Tribunal then put to the applicant that it might have significant concerns that his claims in his original application were completely different to the claims he was raising at the hearing. The Tribunal then went and read all the claims in his protection visa application for the applicant’s benefit. It indicated to the applicant that he had stated at the start of the hearing that everything in his application was true and correct. It indicated that at no time has he made any amendments or changes to the claims until the hearing itself. It indicated that the claims that were read to him from his protection visa application and the claims that he raised at the hearing were very different. The applicant stated that he did not write these claims. He stated that, at the time of the application, his friend assisted him in completing the application because his English was not good. He did not know anything about the claims relating to hundreds of failed investors.
The Tribunal indicated that at the start of the hearing it had asked him whether he had written the application on his own or whether he received any help and he said that he completed the application himself. The applicant stated that his friend helped him and the applicant thought he wrote the story as the applicant had told him to.
The Tribunal indicated that at the start of the hearing he was asked whether everything in the application was true and correct and the applicant confirmed that it was. The applicant stated that because his English was not good, he asked his friend to help write it up. This friend only needed to translate what the applicant told him to write.
The Tribunal indicated that the delegate’s decision which he received was made on the claims that he wrote in his protection visa application and that he would have read those facts when he read the delegate’s decision. The applicant stated that because the delegate did not hear what he wanted to tell them, they had refused his visa.
The Tribunal indicated that the applicant should have been alerted to the claims which the delegate based its decision on after he read the delegate’s decision. The applicant stated that he did not read the decision and only saw the refusal.
The Tribunal then queried this response and indicated that by applying for a review of the decision at the Tribunal he would have been aware of what was written in the delegate’s decision. This is supported by the fact that he knew how to apply for a review of the decision. The applicant stated that the review application was made by a friend. His friend told him to seek a review.
The Tribunal then indicated that he recently returned an email completing a form about his claims and that, even at this time, he did not seek any amendments or changes to his claims. The applicant stated that all he wanted to do was to come to the Tribunal and tell the truth verbally of what happened to him.
The Tribunal indicated that the significant difference between the original claims in his protection visa application and the claims he raised at the hearing (when given the opportunity along the way to make amendments or changes) might go to the credibility of his claims in part or in whole. The applicant stated that he just wanted to give evidence of what happened to him verbally before the Tribunal. When he was refused his visa, and had no interview with the department, there was no opportunity for him to say what happened to him. He just wanted to tell the truth of what happened.
The Tribunal indicated that he arrived in Australia on [date] April 2016 but did not apply for a protection visa until 3 March 2021 – some 4 years and 11 months. This significant delay in applying for a protection visa and not applying at the earliest possible opportunity for protection might go towards the genuineness or credibility of his claims. The applicant stated that he had his passport as his proof. It has been ten years. It expired in 2021. He obtained his passport in 2016. He did not go back to Malaysia. He stated that he did not apply during that time in Australia because his passport had expired and because it was Covid and because he wanted to go through the correct procedures in getting a visa.
The Tribunal indicated that it might appear strange that he did not sign the loan document, that he believed that he did not sign the loan document and that loan sharks would come to him and tell him that he had signed a loan document and would start to put pressure on him anyway to pay the money back. The applicant stated that he did not understand this either, but they kept on coming to harass him and his customers.
The Tribunal asked if there was anything else he wanted to add in support of his claims. The applicant stated that he was emotionally upset and that he could not think of anything more to say. He asked that he be trusted in what he had to say.
He asked what the Tribunal needed from him to support his claims. The Tribunal stated that it was up to the applicant to provide to the Tribunal anything that he thought would assist in supporting his claims. The Tribunal would go away and consider all the evidence given and everything that was provided to it.
The applicant stated that since 2016 he has not received a breach notice or fines while in Australia. The Tribunal indicated that it would go away and consider everything before it, indicating that it could only make a decision on his protection visa.
CONSIDERATION OF CLAIMS AND EVIDENCE
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the 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.
REASONS AND FINDINGS
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
The applicant provided a copy of the biodata page of his Malaysian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Malaysia and there is no information before the Tribunal to the contrary. The Tribunal finds that the applicant is a citizen of Malaysia, and that Malaysia is his receiving country for the purposes of assessing his claims for protection.
The Tribunal has considered the applicant’s protection visa application, the information provided by him to the Tribunal prior to hearing and his oral evidence provided at the hearing. Having considered all the evidence before it, the Tribunal does not find the applicant’s claims to be credible for the following reasons.
The applicant initially indicated at the start of the hearing that he had completed his application on his own and that all his claims were true and correct. When the Tribunal indicated that it might have concerns about the credibility of his claims due to significant inconsistencies and his raising of new claims at the hearing, he then provided conflicting evidence that someone helped him put together the claims in his application as he did not understand English all that well. When the inconsistencies and new claims were raised more than once to the applicant later in the hearing, the applicant indicated that he did not know what had been written in his application and that this had been done so by the person who assisted him write his application.
The Tribunal has significant concerns that the applicant did not raise any issues about the person who helped him put together the original protection visa application prior to the hearing (even after being notified of the decision by the delegate about his claims in his application). The Tribunal has significant concerns that the applicant only raised his concerns about inconsistencies as an issue when pressed about credibility concerns at the hearing. The Tribunal does not accept that the applicant wanted to wait until he spoke to the Tribunal to speak about his claims. The applicant was prompted on several occasions throughout the process to provide any further information and evidence in support of his claims which he did not.
The Tribunal has considered that the applicant has made claims in his original protection visa application that he was betrayed by his business partner who had taken the profits for himself and left the applicant to single handedly deal with the business. He originally claimed that his business was a multilevel company. He originally claimed that hundreds of investors had lost their money as a result of his business partner running off with their money. He originally claimed that the investors lodged a complaint to the police and that he was eventually convicted. He originally claimed that he will be harmed if arrested by the authorities and that it will be “worse” for him if he is captured by the investors who lost their money. He claims that the authorities are looking for him and will not give him “any kind of protection” because he is a “wanted person”.
The Tribunal has then considered that the applicant was notified of the delegate’s decision (which summarised his original claims) not to grant him a protection visa, but he did not provide any submission or update at any stage during his Tribunal review process. In fact, on 27 August 2024, a pre-hearing information form was sent to the applicant asking him to respond (among other things) as to whether he wanted to give any more information about his claims for protection. The applicant did not provide any further information to indicate at all that he had new claims or that the original claims that had been made in his protection visa application were not his claims and that he wanted to amend those claims.
The Tribunal has considered that it also provided the applicant an opportunity to provide any further information or evidence when it provided the applicant a hearing invitation to attend the hearing for 11 November 2024. The applicant did not provide any further information or evidence or bring to the Tribunal’s attention that he wished to raise new claims and evidence.
The Tribunal has considered that at the hearing the applicant changed his claims substantially to his original written claims. Thus, at the hearing, the business relevant to his claims was not a multilevel company as originally claimed but was instead a [company]. At the hearing, the main issue of concern was not, as originally claimed, that hundreds of investors were angry with him and wanting to harm him because they lost money due to his business partner absconding and stealing their money in the process (which is what he claimed originally). Instead, he made new claims at the hearing that he feared a “[Mr B]”, a money lender who had the applicant sign a loan document (a document the applicant did not know he was signing) and who wanted repayment of his loan otherwise the applicant and his family would be harmed. The issue of concern was not, as originally claimed, that the police would arrest him and harm him if he returned because he was a wanted man who had hundreds of investors seeking justice against the applicant for their loss of investment money. Instead, at the hearing, he made new claims that there were no issues or concerns with hundreds of investors at all and that he had sought help from the police on three occasions and that the police had helped on the second occasion only to have some of the suspects bailed out later, who then went and subsequently damaged the applicant’s car. At the hearing, the applicant was not a wanted person with the police and did not claim that he would be harmed by the police if he returned.
The Tribunal has considered how there has been a significant change of claims from his original application to the claims he has made at the hearing. Given that the applicant was given ample opportunity throughout the entire Tribunal review process to make any submissions and comments about whether his original claims were true or not, and given that he told the Tribunal at the start of the hearing that all his claims were true and correct when he was asked, and given that the new claims are significantly inconsistent with his original claims, the Tribunal finds the applicant’s claims both in his protection visa application and made at the hearing not to be credible at all.
The Tribunal finds that the applicant’s significant delay in applying for a protection visa after arriving in Australia (some 4 years and 11 months) to be significant and going to the genuineness and credibility of his claims. The Tribunal does not accept that the applicant waited to go through the correct visa process and that Covid prevented him from lodging earlier. The applicant provided no evidence that he was prevented from applying for a protection visa at any stage after arriving in Australia (and the Tribunal is not aware that there is any impediment on anyone applying for protection once arriving in Australia – not even through Covid) nor did he make it clear what he meant by the correct visa process. The Tribunal finds that his significant delay in applying for a protection visa supports its original finding of the lack of credibility of the applicant’s claims.
In further support of the Tribunal’s findings that the applicant’s claims are not credible at all, the Tribunal finds it relevant that the applicant at the hearing, after making new claims about fearing harm because of signing a loan document, then gave evidence that he did not know he had signed a loan document and that he was told by loan sharks that he had signed a loan document without him knowing that he had done so. The Tribunal finds it implausible that the applicant made a new claim at the hearing that he is now fearing harm from a loan shark over a loan document that he had signed only to then argue that he was not even aware that he was signing a loan document or that he was ever aware that he had signed a loan document until he had been told by the loan shark later. The applicant provided very vague details of how he signed this document at the hearing and was even more lacking in detail as to his certainty of what document he had signed or not. He was unable to explain how he came about to signing this document at all. Given the applicant’s vague account of the loan document and his signing of it and his lack of knowledge of how he came about to sign it, the Tribunal finds that there was no loan document that was ever signed by the applicant which follows that there was no loan shark or his gang members following up on this document with the applicant.
The Tribunal also finds it significant that, at the start of the hearing, when asked why he had applied for a protection visa, he immediately responded that his passport was about to expire and that he could not enrol into a new school and that this was the reason why he applied for a protection visa. The Tribunal finds from this response that the applicant’s motivation for applying for a protection visa was to ensure that he remain as a lawful non-citizen in Australia.
Given the credibility findings above where the Tribunal does not accept any of the original claims or new claims made by the applicant, the Tribunal finds that there is no real chance that the applicant will be harmed by investors or police because of a failed investment scheme which failed due to a business partner running off with investors’ money. The Tribunal finds that there is no real chance that the applicant will be harmed by loan sharks or their gang members because of a failure to repay instalments under a loan agreement. The Tribunal finds that the applicant does not have a well founded fear of persecution for any of these reasons or for any reason and is therefore not a refugee as defined in s 5H(1) of the Act.
The Tribunal has therefore considered the complimentary protection criterion in s 36(2)(aa) of the Act. Under this provision, the Tribunal needs to be satisfied that Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
The Tribunal notes that the risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.[2] The Tribunal has made an assessment and provided its reasons above and made its finds accordingly in relation to the evidence at hand and found that there is no real chance that the applicant will suffer serious harm for any refugee criterion, given that it has not found any of the applicant’s claims credible. Given its findings that it does not find any of the applicant’s claims as credible, the Tribunal finds that there is no real risk that the applicant will suffer significant harm from investors or police (because of a failed investment scheme which failed due to a business partner running off with investors’ money) or from loan sharks or their gang members (because of a failure to repay instalments under a loan agreement).
[2] MIAC V SZQRB [2013] FCAFC 33.
Accordingly, the Tribunal is not satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
The applicant has not claimed to fear harm for any other reason if he returns to Malaysia.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 11 November 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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