2112643 (Refugee) - [2024] ARTA 882

2112643 (REFUGEE) [2024] ARTA 882 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2112643
Tribunal:General Member M Wysocka
Date:19 December 2024

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

Statement made on 19 December 2024 at 4:03pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – an ethnic Malay – Religion – Muslim – sexual orientation – homosexual – borrowed money from a moneylender – fears due to his atheist beliefs – evidence to be generalised and unpersuasive – not satisfied that the applicant is gay – not satisfied that the applicant faces a real risk of serious or significant harm – 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 15 September 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 22 June 2018. The delegate refused to grant the visa on the basis that he did not meet the criteria for the grant of a protection visa.
On 19 September 2021, the applicant made an application for review of the delegate’s decision to refuse to grant him a protection visa with the Administrative Appeals Tribunal (AAT).
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.
The applicant appeared before the Tribunal on 21 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister and the applicant’s claimed former partner by telephone. An interpreter in the Malay and English languages was present at the hearing however the applicant chose to give his evidence mostly in English and the Tribunal was satisfied that he was able to effectively participate in the hearing.
BACKGROUND
The applicant claims to be a Malaysian national born in [year] in [Kedah] state, Malaysia. In his application form, he claims to be an ethnic Malay and Muslim. The form also states that he worked for approximately five years in [an industry]. He arrived in Australia on [date] April 2018 on a Visitor visa.
Evidence before the Department
The following is a summary of claims provided by the applicant in his application form.
·As a son in a Muslim family, it is hard to practice free thinking and ways of life. The applicant is gay and did not have the freedom to choose his own life partner and always lived in fear and shame from society and his own family.
·His circumstances led the applicant to find his ‘own ways of life’ and led him to borrow money from a moneylender that was part of the ‘mafia’ in Malaysia. The interest became too high and he could no longer afford to pay. He was threatened to be hit and with violence by the moneylender.
·If he returns to Malaysia, the applicant fears that he will be living in shame and fear and will never be happy and free to practice his lifestyle as a gay man. He will face humiliation and insults from society and discrimination from his own family.
·The applicant also fears that he will also be exposed to danger from the moneylender who is looking for him everywhere in the country. There is no safe place for him to go in Malaysia because the moneylender’s people could be anywhere. He moved to the east and west of the country but the result was always ‘disappointing’.
·He cannot seek help from the Malaysian authorities because they will believe that borrowing from an unlicensed moneylender is his own fault and not the authorities’ responsibility. Furthermore, the authorities will not do anything to support lesbian, gay, bisexual and transgender (LGBT) people.
The applicant was invited to attend an interview via videolink with the delegate on 2 September 2021. Information from the departmental file before the Tribunal indicates that the applicant requested a face-to-face interview due to concerns about his internet connection but was advised that the department was not conducting in-person interviews due to Covid restrictions and advised of further options to enable his participation. The applicant did not attend the scheduled interview and the delegate refused his application on 15 September 2021. The delegate did not find the applicant’s claims to be credible and did not find that he was owed protection obligations.
Evidence before the Tribunal
The applicant provided additional information in relation to his claims to the Tribunal on 4 August 2024 and 12 November 2024, summarised below.
·He was born into a strict Muslim family and did not have any choice to practice anything other than Islam. There was no way he could voice or practice his free-thinking beliefs (atheism). He had to keep his beliefs a secret from his family because they would be against it and Malaysia practices strict sharia law alongside the civil law, which Muslims must obey.
·The applicant had been living in denial and in the shadows for many years until he could not stand it anymore. He lived a double life and had to pretend to be someone else in public and to his family.
·He told his family that he wanted to become gay and practice atheism. In July 2016, his brother hit him badly because of his revelations. He could not file a police report because local authorities tend to ignore family matters. His parents told him that being gay was completely wrong and against Islam and chased him out of the home. The only person that still accepted him was his sister who witnessed everything that had happened to him and always gave him advice and support.
·After leaving the family home the applicant lived by himself. He was traumatised but could not change who he was. He continued looking for partners via gay dating apps such as ‘[App 1]’. He met someone through the app that he connected with and started a relationship.
·In December 2017, the applicant’s brother beat him up again. Someone told the brother that they saw the applicant going into [a] gay club in Kuala Lumpur. After this, the applicant could not take it any longer and decided to come to Australia, which he had read welcomed LGBT people.
·In Australia the applicant can be himself without fear. He met his ex-partner in July 2020 via [App 1] and they eventually moved in together. They broke up in November 2023, after which the applicant moved to Victoria for work but they remain in contact as friends. The applicant hopes to marry someone he loves someday and practice the life he wants to live without being treated like a criminal.
Fears as a gay man
·As a Muslim, the applicant will be obligated to obey both civil law and sharia law in Malaysia and sodomy attracts a 20 year prison sentence and caning. This will affect his mental state if he returns. In Malaysia he was often discriminated at work and harassed in society and this will continue if he returns. He did not have any friends, people distanced themselves from him and, out of his family, only his sister cared about him.
Fears from the moneylender
·He did not know that the moneylender he borrowed from was involved in gangsterism. The moneylender charged an unreasonable amount of interest and still asked for more money and threatened the applicant with violence. The applicant paid on schedule as per their agreement but after a few months, the situation got out of control. The moneylender has his ATM card and login details for online banking and they transferred money amounts without the applicant’s knowledge but kept saying that he did not pay them according to the agreement, which made no sense.
Fears due to his atheist beliefs
·As someone who practices atheism, it will be hard for him to remove his religion from his Malaysian identity card without consequences. There are strict sharia laws for Muslims who want to convert or leave Islam including the death penalty and other heavy penalties.
The applicant also provided a written statement to the Tribunal from his sister, [Ms A], which states that:
·She witnessed the applicant get beaten up by their older brother in July 2016 because the applicant told their parents he wanted to be gay and practice atheism.
·She recalls that their older brother beat up the applicant again in December 2017 after receiving information that the applicant went to a gay club. The applicant told her he tried to file a police report but the police refused to take any action once they found out the reason he had been beaten.
·The applicant felt depressed and hopeless and thought of suicide. As his older sister, she always supported him including his decision to come to Australia.
The applicant provided supporting information to the Tribunal including news articles about apostates, the LGBT community and loan sharks in Malaysia a copy of a personal loan agreement and a Malaysian bank transaction statement.
As noted above, the applicant attended a hearing before the Tribunal during which he answered questions and gave evidence, as did his two witnesses. Where relevant, that evidence is set out and discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (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 is owed protection obligations under the ‘refugee’ criterion or under complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicant provided a copy of his Malaysian passport and his Malaysian identity card. The delegate did not raise any concerns about the applicant’s identity and the Tribunal accepts that it is as claimed. The Tribunal finds on the evidence before it that the applicant is a citizen of Malaysia and that Malaysia is his receiving country, for the purposes of the refugee and complementary protection tests.
The applicant’s claim to be gay
The Tribunal has considered the evidence provided by the applicant in relation to his sexual orientation both in writing and at the hearing. In doing so, it has taken into account the difficulties that applicants may face in articulating their internal thought processes, self-realisations and personal experiences particularly in relation to sexual orientation and especially in the context of a hearing. It has also taken into account that the applicant chose to recount his experiences in English, which is not his first language. The Tribunal is also conscious that sexuality is expressed in various ways across individuals, societies and cultures. Bearing these matters in mind, the Tribunal nevertheless has concerns about the generalised and limited nature of much of the applicant’s evidence about his personal experiences. It also holds significant concerns about the applicant’s claims to have been in a relationship in Australia. The Tribunal’s main concerns are set out below.
At the hearing, the applicant provided the following evidence in relation to his sexual orientation claims. He realised that he was gay after he finished high school. He went to an all boys’ school and only spent time with other boys. He thought that he could get along with men but not women. He did not have any close female friends and the only women he really interacted with were his mother and sister. He referred to an incident in 2010 (when he was [age] or [age] years old) where he and a schoolmate were at home alone. They did ‘something’ together, which the applicant confirmed was of a sexual nature, but they were too young to understand it. This happened a couple of times but then he stopped going to the schoolmate’s home after the father came home and asked what they were doing. The applicant said that it felt wrong but also right at the same time.
The applicant said that he started using gay apps, mostly [App 1], after high school when he started working at [a workplace]. He did some Google searches and the apps ‘popped up’. He got to know people from different places and backgrounds and went for meetups. He used to meet between 8-15 people in an area called [Area 1], where he said they would exchange information, gather to discuss things and hang out. Asked if he frequented any other LGBT-friendly places, the applicant referred to going to [a] gay club. After he moved out of his family home, the applicant lived with a housemate who was gay and who had a partner. He continued to meet friends from the gay community at [Area 1] whenever he had free time. The applicant said that he had a short relationship with a man while in Malaysia but that it did not last long because it happened around the time his brother assaulted him in 2017.
While sensitive to the difficulties in recounting details of personal experiences and the factors noted above, the Tribunal found the applicant’s evidence regarding his experience as a gay man in Malaysia and his realisation of this to be generalised, limited and unpersuasive. The Tribunal asked the applicant several questions to try to elucidate how he felt internally grappling with the realisation that he was gay and how this evolved but the applicant did not make references to the complexities and challenges that he faced, apart from generalised statements such as describing his alleged encounters with a schoolmate as feeling wrong but right.
The Tribunal also found the applicant’s evidence regarding his activities in the LGBT community in Kuala Lumpur to be generalised and unpersuasive. The Tribunal found the applicant’s description of meeting people at [Area 1] to discuss and exchange information particularly vague. The applicant has referred to having gone to [a gay nightclub],[1] however as he said himself, everyone knows of the [club], even people outside of the LGBT community. While the applicant stated that it was hard to live freely as a gay man in Malaysia, the Tribunal was not persuaded that he was speaking from personal experience.
The applicant’s circumstances and claimed relationship in Australia
[1] [Source deleted] (last accessed 2 December 2024).
The Tribunal has considered the applicant’s evidence regarding his life since arriving in Australia, however this has only added to the Tribunal’s concerns about the reliability and credibility of his evidence.
Central to the applicant’s claims regarding his life in Australia is his claimed relationship with a male partner, Mr [B], who also gave evidence at the hearing. Both the applicant and [Mr B] gave the following evidence about their claimed relationship. They met through [App 1] in July 2020 while both were living in Sydney and moved in together a few months later. They were in an exclusive and committed relationship and lived together for about three years. No one else lived with them during that period. They broke up in November/December 2023 and the applicant moved out and moved to Victoria for work in December 2023. The applicant said that the relationship ended due to a few misunderstandings and realisation that they were better as friends. He said that he thought [Mr B] had entered into a new relationship but he was not sure.
[Mr B] provide some more context to the couple’s alleged breakup, stating that the applicant broke up with him because they were fighting over a third person. The Tribunal found the witness’s evidence on this issue somewhat confusing but understood that the applicant suspected the witness was having a relationship with another person, who was only a friend, and this led to arguments. [Mr B] said that he tried to get back together with the applicant but ultimately the applicant got a job in Victoria and left.
The Tribunal has significant concerns about the applicant and his witness’s evidence given that it contradicts the evidence provided in [Mr B]’s hearing before the AAT earlier this year in relation to his own claims for protection.[2] In his hearing, [Mr B] claimed that his first relationship in Australia was with a man who appeared as a witness at that hearing and who was not the applicant. The evidence provided by both [Mr B] and his witness, was that they met and started a relationship in about December 2022 and moved in together in August 2023 and were in an ongoing relationship at the time of [Mr B]’s hearing.
[2] AAT decision record 1813145 (19 March 2024), Member R Johnston.

When the Tribunal asked [Mr B] to comment on these inconsistencies, he said that he came to know that his current partner was interested in him since January 2023 and they were close friends but they were not in a relationship at the time. They only started a relationship after he and the applicant broke up. He did not want to complicate things at his hearing or confuse the Member with bringing in too many relationships.
At the hearing, the Tribunal put [Mr B]’s evidence as set out in his decision record and paragraph 27 above to the applicant pursuant to s359A of the Act. The applicant said that he did not know why [Mr B] said that in his own hearing and that perhaps it was because they had argued. He claimed to have proof that they had lived at the same address in the form of letters being sent to that address and his photo ID listing the address.
The Tribunal does not find either the applicant’s or [Mr B]’s explanations for the inconsistencies in the evidence satisfactory. It also notes that, aside from stating that he had letters and identity documents showing that he and [Mr B] resided at the same address (which he did not submit), the applicant has not provided any other evidence supporting his claim to have been in a three-year relationship w [Mr B]. In any event, the Tribunal does not consider that evidence showing that the applicant and [Mr B] simply resided at the same address necessarily leads to the conclusion that they were in a same-sex relationship. At the end of the hearing, the applicant indicated that he had some photographs of himself and [Mr B]. The Tribunal advised that it would consider any further evidence he provided, however no further evidence has been submitted.
The Tribunal finds [Mr B]’s evidence at best unreliable. It has considered whether the other evidence provided by the applicant about his life in Australia supports his claim to be homosexual but finds that evidence to be lacking. The applicant has said that in Australia, unlike Malaysia, he does not need to hide anything about his sexual orientation and does not face harassment or bullying for being gay. However, aside from his claimed relationship with [Mr B], the applicant has provided very limited and unpersuasive evidence to support his claim to be living as a gay man in Australia. He told the Tribunal that he had not had any other relationships in Australia. He provided vague evidence regarding going to bars on Oxford Street in Sydney and while claiming to have connections to the LGBT community in Melbourne, said that he is too busy working to attend weekend events. He claimed to attend LGBT-friendly events to meet people and connect when he had free time but did not provide further information about those events, other than stating that someone had suggested he go to a place called ‘[name]’.
Claimed harm in Malaysia
The applicant has claimed to have faced various forms of harm as a gay man in Malaysia, from his family and from society in general. The applicant has claimed that after being assaulted by his elder brother and leaving the family home in 2016, he had to be in hiding because his brother and brother’s friends, including a police officer friend, were searching for him throughout Kuala Lumpur. The Tribunal is not persuaded by this claim and finds it difficult to accept on the applicant’s limited evidence that his brother’s friends would be motivated to search for the applicant everywhere. The Tribunal also found the applicant’s evidence of having to be in hiding and not being able to openly go into any areas unpersuasive.
The applicant claimed to have reported the second assault by his brother in 2017 to police but that they advised him not to file a report because he would be putting his brother in jail. The Tribunal finds it of interest that despite his claims of discrimination from society at large, the applicant did not initially indicate that he feared any repercussions from police as a result of his sexual orientation. It was only after the Tribunal specifically raised the issue that he asserted that he faced some stigma from police.
The applicant has also claimed that he faced discrimination and harassment from society in general and at work but was only able to provide very limited and generalised evidence regarding this. For example, he was unable to recall any particular instances of being harassed apart from people giving him looks and loudly saying there was a gay man here when he was in a restaurant with a man. He made vague reference to being bullied in school and to childhood friends and people from his old neighbourhood asking ‘are you gay’ if a person got close to someone else. However, the applicant provided no further details and it appeared to the Tribunal that he was making generalised statements rather than referring to specific experiences he faced. He further claimed that he had to pretend to live a double life for fear of facing discrimination but did not elaborate further on this apart from not being able to hold a man’s hand in public. Accordingly, the Tribunal gives very limited weight to the applicant’s evidence about harassment and discrimination he claims to have faced.
Evidence from the applicant’ sister
The applicant also provided a statement from his sister. The Tribunal contacted Ms [A] at the hearing however the phone line disconnected and had to be reconnected multiple times as the Tribunal took evidence from her. These ongoing difficulties led the Tribunal to ultimately abandon further attempts to contact the sister.
The evidence of the applicant’s sister, both in her statement and hearing evidence was consistent with the applicant’s broad claims regarding his family and assaults by their brother. She said that the applicant had depression and had tried to commit suicide and that if he returned to Malaysia everyone would be angry with him.
While Ms [A]’s evidence was consistent with the main points of the applicant’s claims, it was also limited, did not provide any further nuance or detail and is not able to overcome concerns with the applicant’s and [Mr B]’s evidence. Accordingly, the Tribunal has given the sister’s evidence limited weight.
Findings about the applicant’s claims to be homosexual
The Tribunal has carefully considered the applicant’s evidence and has made allowances for the various difficulties the applicant may have had in expressing himself as discussed above. However, even after doing so, the Tribunal is left unsatisfied by the applicant and his witnesses’ evidence due to their generalised, limited and unreliable nature.
For the reasons set out above, the Tribunal is not satisfied that the applicant is gay or that he has ever identified as such. It does not accept on the limited and unpersuasive evidence before it that he had relationships with men in Malaysia or in Australia. Specifically, given the concerns identified in this decision, the Tribunal does not accept that the applicant had a homosexual relationship with [Mr B] as claimed.
Given its above findings, it follows that the Tribunal does not accept that the applicant faced any harm due to his sexual orientation in Malaysia. Specifically, it does not accept that he faced humiliation and shame from his family, that they treated him as an outsider or forced him to leave home. The Tribunal does not accept that the applicant’s brother ever beat him up including specifically in July 2016 or December 2017. The Tribunal does not accept that the brother’s friends searched for the applicant or that the applicant was forced to move around in secret or be in hiding as a result. The Tribunal further does not accept on the vague evidence before it that the applicant faced bullying at school discrimination or harassment in his workplace or in society in general due to his sexual orientation. The Tribunal does not accept that the applicant had to live a double life in Malaysia or did not have any friends due to his sexual orientation or that this negatively impacted on his mental health, caused him depression or to attempt self-harm.
Given its findings of fact, the Tribunal does not accept that there is a real chance that the applicant would face serious harm from family members, society in general or the Malaysian authorities due to his sexual orientation.
Claims to have borrowed money from an unlicenced moneylender
The applicant provided evidence at the hearing that in early 2018, he borrowed 8000 MYR from a company, [Company 2], to fund his travel to Australia. In support of his claims, on 12 November 2024, the applicant provided a copy of a personal loan agreement between the applicant and [Company 2] dated 19 February 2018. The applicant’s evidence regarding how he went about finding [Company 2] was plausible and his evidence about the terms of that loan was consistent with the documentation provided.
The applicant has claimed, however, that despite the documentation he provided showing that [Company 2] is a licenced moneylender (with licence number included), it was in fact unlicenced and involved in the mafia or gangsters. When it was put to the applicant that the documentation he provided did not support this, he said that most moneylenders claim they are licenced, even if they are not.
The Tribunal also put to the applicant that, according to the loan agreement submitted, the interest he was charged was six percent, which was relatively low and well below the interest that illegal moneylenders typically charge.[3] The applicant claimed that the moneylender took out more money out of his account than he was supposed to pay according to the agreement, which did not make sense to him. He asked the moneylender about the extra money being taken out of his account but was told that it was for interest or for various charges. He claims to have stopped transferring money into his bank account so that the moneylender no longer had funds to withdraw.
[3] Malaysian law stipulates that the maximum interest that can be charged on a secured loan is 12 percent per annum and 18 percent per annum on unsecured loans: Free Malaysia Today ‘‘Unlicensed moneylender’ cannot recover RM1.6mil in loan and interest, court rules’ (19 June 2023) available at ‘Unlicensed moneylender’ cannot recover RM1.6mil in loan and interest, court rules | FMT. Unlicensed moneylenders or loan sharks typically charge higher rates: The Sun ‘Loan sharks prey on Malaysians struggling with pandemic financial problems’ (28 March 2023) available at Loan sharks prey on Malaysians struggling with pandemic financial problems.
The applicant provided a copy of his bank statement for the period 1 October 2019 to 1 December 2019 as evidence. However, as discussed with the applicant, on the face of it nothing in the transactions set out in that statement indicates that an unlicenced moneylender was taking money out of the applicant’s account. The statement shows various amounts transferred to and from the account including by three individuals. The applicant said that he was not sure who these people were and suggested that the moneylender was potentially using his bank account as a ‘dummy account’, presumably to move funds. He thought that one of the names listed in the transactions was the person in charge of withdrawing money from his account. The Tribunal has considered the applicant’s response but is not persuaded by his assertions. The transactions listed include descriptions such as ‘maid’, ‘house’ and ‘netflix’. The applicant has suggested that his account is being used by the moneylender to move funds but this appears to be speculation and the Tribunal gives his assertions little weight.
The Tribunal also found the applicant’s evidence regarding his fear of the moneylender limited and vague. He said that he faced no difficulties from the moneylender prior to leaving Malaysia but that after he left, he stopped transferring money into his bank account because the moneylender was taking too much out. He claims that the moneylender sent him a message that he would get in trouble if he stopped making repayments when he asked why they were taking too much money but stopped using that phone number afterwards. He does not know if the moneylender has been looking for him; he is not aware of any contact with his family members and he does not know who lives at his former address. The applicant did not indicate how much money he believes he still owes the moneylender.
The Tribunal has considered the applicant’s claims to have borrowed from an unlicenced moneylender who withdrew more money than the applicant claims to have owed and who continues to be using the applicant’s bank account but finds those claims to be on the whole vague and lacking in detail and not substantiated by the documentation provided. Accordingly, while the Tribunal accepts that the applicant entered into a loan agreement with [Company 2] in February 2018, it does not accept on the evidence before it that [Company 2] is in fact an unlicenced or illegal moneylender involved with the mafia or gangsters or that it is acting as such. The Tribunal is not satisfied on the evidence before it that [Company 2] charged the applicant with a higher level of interest or made withdrawals over and above the loan agreement and is further not satisfied that [Company 2] is using the applicant’s bank account as a ‘dummy account’. The Tribunal notes that the applicant’s protection visa application form states that he was actually threatened with violence and that he moved to ‘the east and west’ of Malaysia to avoid the moneylender. His evidence at hearing did not indicate this. Given the vague nature of these claims and the Tribunal’s findings above, it does not accept that the applicant was ever threatened or that the moneylender is looking for him.
The applicant has claimed to have stopped making repayments on his loan sometime after he left Malaysia. However, he did not provide further detail on when that occurred and, in light of the overall lack of detail in relation to this and his claimed fear of harm from the moneylender, the Tribunal does not accept that he still owes any money to [Company 2].
The Tribunal has accepted that the applicant took out a loan from [Company 2] but has not accepted that he has any outstanding debt or has faced any past harm or threats from the moneylender. It therefore does not accept that the applicant faces a real chance of serious harm from [Company 2] if he returns to Malaysia now or in the reasonably foreseeable future.
The applicant’s claims to be ‘free thinking’/atheist
The applicant has claimed that he could not express his self-described ‘free-thinking’ beliefs or atheism, which he appears to use interchangeably, in Malaysia including to his family, that it will be hard for him to remove his religion from his Malaysian identity card without consequences and that there are strict penalties for Muslims who want to leave Islam or convert.
The applicant has claimed that he was born into a strict Muslim family and had no choice but to practice Islam. However, at the hearing, he told the Tribunal that he had not engaged in any religious practice since he was a child. He never attended mosque in Malaysia and only engaged in activities at home to pretend. He did not pray or read the Quran. When asked to explain the apparent contradiction between coming from a strict religious family and never having attended mosque, the applicant said that in some families, it was up to you whether you pray or not but at home he was forced to do prayers. He told the Tribunal that after he moved out of his family’s home, he did not engage in any religious activities.
The Tribunal explored the applicant’s claims to be ‘free thinking’ or an atheist at the hearing and what that meant to him. He said that he did not have a religion but believed that ‘if we do good, we get good in return’. The applicant explained that ‘free thinking’ meant not being bound by a religion. Asked why this was particularly important to him, the applicant said that he did not have a religion. He said that he wanted to leave Islam but had not taken any steps to do so although he would if he could. When the Tribunal tried to explore why it was important for him to formally leave Islam as opposed to simply not practice it, the applicant said that he wanted to be free in his thinking. He explained that if he was a Muslim, he had to do what the Quran said but if he was not, then he was not committing a sin, which he clarified to mean homosexuality. In response to why the applicant had listed his religion as Islam in his protection visa application, he stated that he did not have time to fill the application properly before his visa expired and he was stressed and depressed at the time. The applicant was asked to explain other ways he expressed his ‘free thinking’/atheist views and he said that he wanted to but did not have much information at the time. Asked about whether he has done anything in Australia to express his views that he would be unable to do in Malaysia, the applicant stated that he was not sure. He had not been to any meetup or gathering of ‘free thinkers’ yet.
The Tribunal is prepared to accept that the applicant’s family was what he has described as strict, in that he may have been required to pray at home. However, according to his own evidence, his family’s expectations of religious observance did not appear to extend to forcing or requiring the applicant to attend mosque or read the Quran during his childhood. Furthermore, the applicant has stated that he did not engage in any religious activities after leaving his family home.
The Tribunal found the applicant’s evidence regarding his ‘free thinking’/atheism limited, even taking into account the difficulties that he may have faced explaining his beliefs or abstract concepts at the hearing. From the Tribunal’s questioning of the applicant at hearing, it appears that he wants to leave Islam or be ‘free’ in his thinking because he does not want to be subjected to syariah law in relation to his claim to be gay, a claim that the Tribunal has rejected. Accordingly, the Tribunal gives this aspect of the applicant’s evidence little weight.
The applicant was unable to articulate his views about why he sees himself as an atheist or ‘free thinker’ other than what is described above. While the Tribunal is prepared to accept that the applicant does not practice Islam and may even refer to himself as an atheist, it does not accept on the evidence before it that he would be generally regarded as an atheist by others in Malaysia. The Tribunal does not accept on the limited and undetailed evidence given by the applicant about his beliefs that he would or wants to take any formal steps to renounce Islam if he returns to Malaysia.
The applicant claims to have told his family that he was an atheist in mid-2016 (at the same time he told them that he was gay) and that his brother assaulted him. For the reasons set out earlier, the Tribunal has rejected that the applicant told his family that he was gay or that his brother assaulted him as a result. Given the Tribunal’s concerns about the applicant’s undeveloped views regarding atheism as well as his evidence to have not engaged in much religious practice since childhood, the Tribunal is not persuaded and does not accept that he told his family he was an atheist/free thinker, was assaulted or forced to leave the family home in 2016 as a result. To be clear, the Tribunal also does not accept that the applicant was assaulted in 2017 by his brother due to his religious beliefs or lack thereof.
In coming to the above findings, the Tribunal has considered the evidence of the applicant’s sister, who at the hearing gave evidence that their family was angry that the applicant chose to live without religion. However, as noted earlier, the sister’s evidence did not provide any further detail or otherwise overcome the Tribunal’s concerns with the applicant’s evidence. Accordingly, the Tribunal has given it little weight.

The Tribunal accepts that the applicant would not engage in religious activities such as attending mosque if he returns to Malaysia and has considered whether the applicant faces a future risk of harm as a result.
The current DFAT Country Information Report on Malaysia (DFAT report) states that ethnic Malays as defined under the Malaysian constitution as Muslims from birth and identified as such on their identity cards.[4] Formally leaving or converting from Islam is very difficult, with individuals facing protracted and often unsuccessful legal battles. However, DFAT states that many urban Muslims are non-observant such as eating during the day in Ramadan, drinking alcohol and not attending mosque.[5] DFAT is of the view that atheists face a low risk of discrimination or harassment for their beliefs although Muslims who attempt to renounce their faith or who are perceived to be promoting atheism face a high risk of both official and societal discrimination.[6]
[4] DFAT DFAT Country Information Report: Malaysia (24 June 2024) p21.
[5] DFAT DFAT Country Information Report: Malaysia (24 June 2024) p21-22.
[6] DFAT DFAT Country Information Report: Malaysia (24 June 2024) p26.
The applicant’s evidence is that he has not been religious observant from a young age, apart from having to join in prayers while living at home. Apart from the two incidents in 2016 and 2017 which the Tribunal has not accepted, the applicant did not indicate that he faced any harm from his family as a result. Nor has the applicant claimed to have faced harm from anyone else such as society in general or the Malaysian government for these reasons. The applicant has not suggested, nor does the Tribunal accept on the evidence before it, that he has ever or would promote atheism if he returns to Malaysia. At the hearing, the applicant suggested he would be required to participate in religious ceremonies at family events in Malaysia. The Tribunal accepts that this may be the case but is not satisfied that, taking into account the applicant’s circumstances, participating in a religious ceremony at family events constitutes serious harm.
In light of the Tribunal’s findings of fact, the lack of any harm faced by the applicant in the past and the country information above, the Tribunal does not accept that the applicant would face a real chance of serious harm as an atheist or someone who does not practice Islam.
The applicant’s claims regarding cost of living
At the hearing, the applicant raised further claims about the high cost of living in Malaysia. He stated that he only has high school qualifications and basic income and that it would be hard for him to return. He provided no further details in relation to this claim despite being given further opportunities to do so at the hearing. The Tribunal accepts on the basis of the applicant’s evidence that he has a high school education, that he worked in [an industry] in Malaysia and that he is currently working [in] Australia.
The Tribunal accepts that the applicant’s high school qualifications mean that certain professions or roles requiring higher qualifications would not be open to him. However, nothing in his evidence suggests that he would be suffer significant economic hardship, be denied access to basic services or not have the capacity to earn a livelihood of any kind, such that these factors would threaten his capacity to subsist. Accordingly, the Tribunal does not accept that the applicant would face a real chance of serious harm as contemplated by s5J(5) of the Act due to economic factors or the cost of living in Malaysia.
Future risk of harm – refugee criterion
Having considered the applicant’s claims and evidence as a whole, the Tribunal does not accept that he faces a real chance of serious harm if he were returned to Malaysia now or in the reasonably foreseeable future. Accordingly, the Tribunal finds that the applicant does not satisfy the refugee criterion set out in s36(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).
For the reasons set out above, the Tribunal has found that there is not a real chance that the applicant will experience serious harm from his family, a moneylender, general society or the authorities based on his sexual orientation, debt to a moneylender, free thinking/atheism or due to the cost of living if he returns to Malaysia, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J of the Act.
Noting the above and having regard to the meaning of ‘significant harm’ as set out in s 36(2A), the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Malaysia for any of the reasons he has claimed.
For the reasons set out above, the Tribunal is not satisfied that there are 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 he will face significant harm. The Tribunal is therefore not satisfied that the applicant is owed protection obligations under s 36(2)(aa) of the Act.
CONCLUDING PARAGRAPHS
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.
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.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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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.
…