2116513 (Refugee)

2116513 (Refugee) [2024] AATA 2251 (5 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2116513

COUNTRY OF REFERENCE: Malaysia
MEMBER:Christine Cody
DATE:5 April 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 5 April 2024 at 7:57am

CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit and Family Court remittal – particular social group – homosexual – fear of criminal gangs – fear of killing – detention – relationship with an Australian resident – delay in applying for protection – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423-425, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
Summary

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 December 2016 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 citizen of Malaysia, applied for the visa on 25 October 2016. He made a single claim in his protection visa application about criminal gangs wanting him because of his friend having committed a break and enter. He was not invited for an interview before the delegate, who refused to grant the visa.
The applicant lodged an application for review to the Tribunal. He provided a copy of his Curriculum Vitae, a statement to the Tribunal, and a copy of the delegate’s decision record.
The applicant stated in his application for review form that he did not seek the services of an interpreter. He also stated in his Response to the Hearing Invitation, he stated that he did not need the services of an interpreter.
The Tribunal (differently constituted, referred to as the “first Tribunal”) held a hearing, during which the applicant raised a new claim that he feared harm in Malaysia because of his homosexuality. The first Tribunal did not accept this claim. The first Tribunal also considered the initial claim made to the Department to be not credible, but found in any event that the applicant could relocate. The first Tribunal affirmed the delegate’s decision on 23 May 2017.
That decision of the first Tribunal was set aside by the Federal Circuit Court of Australia (FCCA) [in] October 2021; the judgment was issued [in] February 2022. The applicant had argued that his hearing was not fair as he could not express himself proficiently in the English language and his evidence was made up of incoherent representations. The court found that the first Tribunal did not hold a real and meaningful hearing as required under s.425 of the Act, for reasons including that the hearing proceeded without the services of an interpreter. Further, the court noted that the first Tribunal had failed to exercise its jurisdiction in respect of its consideration of the criminal gang issue under complementary protection, in circumstances where it did not identify the risk of harm in the home region and/or an area where the applicant could safely relocate. The matter is now before the (current) Tribunal (referred to as “the Tribunal”) pursuant to an order of the Court.
Prior to the hearing the Tribunal contacted the applicant to ascertain the gender and language of the interpreter sought. He said that he sought to use the services of a female interpreter in the Bahasa Melayu of Malaysia language. On 20 September 2023 the applicant was invited to attend a hearing and was asked to provide any documents he sought to rely upon to the Tribunal by 28 September 2023.
On 25 September 2023 he provided a Response to Hearing Invitation stating that [Spouse A] was his spouse, who would be giving evidence at the hearing. Also provided was a document being an invoice paid to Service NSW by [Spouse A] dated [in] September 2023 for the registration of a relationship (the names of the partners were not specified, however the Tribunal will accept for the purposes of these proceedings that the partners applied to be registered were [Spouse A] and the applicant).
The applicant appeared before the Tribunal on 5 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Spouse A], also known as [another name] (referred to hereafter as [Spouse A]). The Tribunal hearing was conducted with the assistance of a female interpreter in the Bahasa Melayu and English languages.
At the commencement of the hearing the Tribunal explained to the applicant that it was considering the case afresh, it was not bound to follow the Department’s findings and the findings of the first Tribunal have been quashed. The Tribunal said that it will make up its own mind as to what to accept or reject. The Tribunal noted that there were difficulties at the first hearing with his evidence because there was no interpreter. The Tribunal said it was not sure what if any weight could be placed on the evidence he gave to the first Tribunal and this could be discussed if it arose during the hearing.
The Tribunal checked that he understood the interpreter and said that it is very important that he say immediately if he does not understand what is being said, as the Tribunal can rephrase it. He agreed. The applicant often sought to speak in English, with the Tribunal reminding him to use the interpreter. On a number of occasions the applicant would not give clear responses and the interpreter informed the Tribunal that she was unable to interpret. The Tribunal reminded the applicant on numerous occasions that he should answer in complete sentences, pause and then if he wanted to continue, let the Tribunal know. It said that if he does not give clear evidence the interpreter will not be able to understand and interpret and thus the Tribunal will not be able to understand his evidence.
At the end of the hearing the Tribunal informed the applicant that it would be sending a s424A letter. This was sent to the applicant on 16 October 2023 and his comments, response or request for an extension of time were due on 30 October 2023. The Tribunal did not receive a response.
The applicant, having been made aware of the significant inconsistencies and credibility concerns at hearing, made brief comments on some concerns at the end of the hearing. Having been provided with information in writing with the opportunity to provide his comments and/or responses to, did not contact the Tribunal further. The Tribunal considers that the applicant has had plenty of time to comment and/or respond, but he has not done so. In the circumstances the Tribunal has decided to proceed to a decision on the information before it.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a refugee or entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s migration history
According to his application form/ delegate’s decision record provided to the Tribunal:
·     The applicant was granted an Electronic Travel Authority (subclass 601) visa on 23 April 2014.
·     The applicant was granted an Electronic Travel Authority (subclass 601) visa on 25 April 2015.
·     The applicant travelled to Australia leaving [a day in] June 2015, arriving [the next day].
·     Applicant lodged an application for a Protection (subclass 866) visa on 22 September 2016 (deemed invalid on 12 October 2016).
·     Applicant lodged an application for a Protection (subclass 866) visa on 25 October 2016. This applicant was considered valid. Thus was refused on 23 December 2016.
Evidence before the Department
The applicant stated that he received no assistance with completing his forms. The forms provided information including:
·     The applicant was born in [specified year] in [Village 1], [District 1], Malaysia. His parents’ citizenship is Malaysian. He speaks, reads and writes in English, Chinese, and Bahasa Malaysia. His ethnicity is Chinese. His religion is Buddhist.
·     He provided no details of where he lived in Malaysia.
·     His educational history:
o[Year]: Applicant attended High School in Malaysia
o[Year]: Applicant attended [a named] College and enrolled in [an occupation 1] course
·     His employment history:
o[Specified year] to July 2016: Applicant was employed as a junior at [Employer 1] in Kuala Lumpur, Malaysia
oOctober 2008 to September 2016: Applicant was employed as a junior executive at [Employer 2] in Kuala Lumpur, Malaysia
oSeptember 2009 to 5 June 2015: Applicant was employed as a senior executive at [Employer 3] in Kuala Lumpur, Malaysia.
·   His family members all reside in Malaysia, namely his parents [and specified family members].
·   He arrived legally [in] June 2015. He has not travelled to any other country other than Australia in the last 30 years.
·   He declared two addresses in Sydney since his arrival.
·   He declared no work in Australia.
·   His relationship status is not provided.
His claims are handwritten in the form as follows:
Question 88: ‘I am seeking protection in Australia so that I do not have to return to’ Malaysia.
Question 89: ‘Why did you leave that country?’
I leave my country is because I seek a Protection from Australia. Because of my case which is my friend put me as a victim for his mistake as breaking people house and robbery people house. Because I’m the one who became his best friend. They are a couple of gangsters are looking for him. But I cannot contact him and because of Him I haunted by all this people. Even my case was affected and with my daily life.
Question 90: ‘What do you think will happen if you return to that country?’
They keep haunting me and I could not live in clam even when I’m in my own home. I feel so paranoid since they had blackmail me and giving me a times to contact him and bring him to them. If I impossible to make it, I have to beg for his all the debts. I had been attacked and disturbing many times. I feel so ashamed to go to public. Because they will disturb me at the public and at the same time is no other people at the public can be help.
Question 91: ‘Did you experience harm in that country?
I have been harmed such as been punished, blackmail and threaten by the gang. My family never have idea try to help me to settled the problem they need me to settle it b myself and don’t have the problem are effected to other family member too. I have try to report the rest of my problems but because I don’t have any of evidence can proof of I’m in harassment and this to be an unaccepted case.
Question 92: ‘ Did you seek help within the country after harm?’
I can’t prove myself because I don’t have a proof and the police also will blame on me for this. If I lodge the police report, I will be investigate and because the received many report about this, they will never believe on me and they just take the report without any action.
Question 93: ‘Did you move, or try to move, to another part of that country to seek safety?’
I tried to move to my hometown but still receive the same situation and worst more. I could not explained myself for escaping from them and I have been forced to follow them back to their place. They only claimed until I didn’t get or gave any information they will stopped with peacefully.
Question 94: ‘Do you think you will be harmed or mistreated if you return to that country?’
They will never stop harassing me, I will be in danger and my life will be in trouble and might be have life problem. They will attack me like an animal and I will never get escape. They have blackmail me before and they will do the more than before.
Question 95: ‘Do you think the authorities of that country can and will protect you if you go back?’
None of authorities will help me, instead they will make me as an offender because I have no proof that I am not innocent. I could be caught and get prison and my report will not be accepted because they are not in my side and will just ignored my cases.
Question 96: ‘Do you think you will be able to relocate within that country?’
Wherever I go. I still can be tracked like before. I already find the safety place before but still in danger. I hope my application can be approved for the sake of my life.
He stated in his application form that he could not provide any evidence of his problems.
The Department’s decision
The applicant provided to the Tribunal a copy of the delegate’s decision record which states:
· Concerning the claim to be a refugee: It can be reasonably concluded from the written claims that the applicant’s fear of harm is on account of his friend’s connection with a criminal gang. On the basis of the written claims I am unable to conclude that the applicant’s fear of harm is for any of the reasons provided in subsection 5J(1)(a) of the Act.
· Concerning complementary protection: reference was made to the then DFAT report and other country information and the delegate considered that country information indicates that the applicant would be able to avail himself, if needed, of effective state protection if returned to Malaysia.
Evidence before the first Tribunal
In addition to a copy of the notification and delegate’s decision record and application for review form, the applicant provided a typed statement as follows:
.. I come to Australia since [a day in] June 2015.
because I face some problem in my country then I make the decision to come over Australia. My issue problem I face is because of my one best friend, he do a wrong big problem mistake. He do breaking & robbery people house and because we two are best friend. once the people are house breaking by my friend and he know me are the best friend of him, so they are start find my friend from me.
They are not are manners to me, they disturbing me everyday even thought in my daily life & with my work too. because of the problem I have report police in my country & because of the case is not the reason-able they can't do open file case to me. Because that in the police file case are not received, the gangster are non stop to disturbing me & affected my daily life.
Sometimes when I back home will have the happen in my house & affected my family member too, because of that I try move out from my house & I thought it will be safe & no more issue. But whatever I move to a new place the gangster still can find me, they need me to tell them where is my friend located. But I really that don't know where my friend at.
From the day my friend are happen he disappear suddenly & I can't contact him anymore.
In this the case is not my problem issue & it be the happen for me & affected my hold life, and I know if one day I'm still in Malaysia the gangster still can find me. I can't stay in the trouble & harsh environment daily life I make a decision move out of my country and I will have a good life start.
And I understand that over stay in Australia is the unlawful, but I don't have anywhere that i can go. because that my case my Australia friend told to try apply with the protection visa in Australia, it can help me in my future life and I try apply with it. But unfortunately I get the result from the department are rejected me to apply with the visa. And it the bad news Christmas day for me.
And the department are sending me information to try apply the Administrative Appeals Tribunal (AAT), it may can be help for my case.
And now I just need a peace of the place can leave me they and giving me a good future life. it this all is my real & sincere writing statement.
The applicant’s CV stated that he was [an occupation 1] with experience of 6 years and 9 months in Malaysia, seeking work in Australia, and provided information about his work in Malaysia up until June 2015[1].
[1] It stated until June 2016 however the applicant left Malaysia in June 2015
The applicant’s evidence at the first hearing was given without the assistance of an interpreter at all and the court found that there was not a real and meaningful hearing. The Tribunal considered what had been said but did not consider it to be reliable evidence.
Evidence to the current Tribunal
The applicant was advised that the case was remitted for reconsideration, he was reminded to keep his contact details updated or he may not receive important information and his case may be decided without further notice.
On 9 August 2023 he was provided with the opportunity to provide documents however he did not do so, although in his response he indicated that he would attend a hearing with a witness. As noted above, he provided a relationship registration document before the hearing.
The applicant’s evidence
Some of the applicant’s evidence is set out below:
·     The applicant said that he is [age] years old and he has been in Australia for 8 years.
·     He completed the application form and the statement to the Tribunal himself. He did not have any assistance. The information is all true and correct and nothing is missing.
·     The reason he came to Australia was because his friend made a mistake, however the criminal gang is after him. He reported them to the police but the police said they couldn’t do anything as he had no evidence.
·     He lived in the city of Kuala Lumpur with his family at an address in [Town 1]. This is the family home that they had moved into 18 years earlier. His parents [and specified family members] still reside there. He lived at that address for the 10 years before he came to Australia. The Tribunal asked him whether he had moved out for 2 weeks and he agreed that he moved out for 2 weeks as he tried to escape the people looking for him (he lived with his friend in rented premises), then he moved back home to pack, he stayed home for about 1 week, packing and then he came to Australia.
·     The Tribunal sought clarification of the applicant’s work in Malaysia. He said that before he came here he was working as [an occupation 1] in a [an occupation 1] shop for more than 5 years. He said he gave 1 months’ notice because of the criminal gang issue; he worked 1 week there and then went home to pack and then he left.
·     His parents agreed with him leaving due to this issue, and they said once the issue is resolved he can go back again to live with them.
·     His parents are retired. His father was [an occupation 2] and his mother was a housewife. [Occupations of family members deleted.]
·     The applicant said that when he arrived in Australia he went straight to a farm in Melbourne. He had been advised to do so by a friend from Malaysia was already in Australia at the farm. The applicant said that there was no work for the first three months but then he did [farm work] for 1 month. Four months after his arrival he moved to Sydney and did various jobs including [occupation 3] about 3 days/ week. He has also worked as [two other roles]. He has lived at various addresses.
·     When asked what had happened in Malaysia he said that he had a good friend, a Muslim man, [Friend A]. He was his boyfriend (but they did not have any physical relationship as it is not allowed in Malaysia). They had a relationship for about 1 year from 2013-2014. The gang people are looking for him. The gang is aware that he is the applicant’s boyfriend and they can’t find him so the gang chased the applicant.
·     Nothing else bad happened in Malaysia except for his encounter with the criminal gang and also Malaysia is a Muslim country and one cannot have a gay relationship.
·     The applicant said he was aware he was gay in [grade] in school. He liked men more than ladies. He did not ever receive any adverse attention in Malaysia because of his actual or imputed sexuality or appearance. The Tribunal asked him whether people had been rude or horrible to him for any reason. He said no, but he had to keep his sexuality a secret. No one knows he is gay. He was more colourful in Malaysia but no one looked at him and thought he was gay. The Tribunal asked the applicant whether anyone would now believe he was gay if he went back and he said no. He said perhaps his mother suspects but she doesn’t know. He said that from his appearance or talking to him no one would know he is gay; they cannot tell. He said that if he went back and told people he was gay, they would distance themselves from him.
·     The Tribunal asked the applicant the reasons why he does not want to return to Malaysia. In response he did not mention the criminal gangs. He said the reason is because he has been here in Australia for 8 years and he has a relationship and they will apply for a spousal visa.
·     The Tribunal asked whether there was any other reason why he didn’t want to return and he said that he is now accustomed with Australia lifestyle and he doesn’t think he can fit in with the lifestyle in Malaysia. When the Tribunal asked what he meant, he said that in Australia you can work until 5pm and you can get paid every 2 weeks, and it is more relaxed, but in Malaysia he sometimes had to work until 9pm and it was stressful. The Tribunal asked how he was treated at work, and he said that they wanted him to work long hours. The Tribunal asked whether there was a reason why, and he said there was no special reason for this, they just wanted him to work.
·     The Tribunal asked what problems he would encounter if he went back. He said that he would have to find work, something like before.
·     The Tribunal asked the applicant if he could explain how he knew he was gay and he said if he is with a girl and a boy he focuses on the boy. The Tribunal asked if he could explain in more detail how he knew he was gay and he said he is attracted to a fit body.
·     When asked if he had any relationships in Malaysia with a female or male apart from the boyfriend referred to above, he said no.
·     When asked if he had any relationships in Australia he said the only one is with the witness.

At the hearing he provided a driver’s licence with a sticker indicating that he had updated his address to [Address 1 in Suburb 1]. The witness gave evidence which is discussed below, and provided his driver’s licence which stated that he resided at [Address 1].
The Tribunal put to the applicant at the end of the hearing, after he had heard the evidence of the witness, that there were significant inconsistencies in their evidence on many matters relating to the claimed relationship and details that they didn’t know, and he could discuss these matters now, noting also that the Tribunal would be writing to him about these concerns. The applicant said that he has heard and understand the inconsistencies. He said that he will now provide a comment about the different evidence as to the addresses; when the Tribunal raised other inconsistencies at the end of the hearing he did not seek to provide further comment. He had also given some explanations during the hearing when inconsistencies or concerns were put to him, which have been taken into account.
Other relevant evidence and information is set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant produced his passport to the Department, who accepted that he was a citizen and national of Malaysia, and assessed his claims against Malaysia. He did not provide his passport to the first or current Tribunal (he said that he had not renewed his passport) however the Tribunal is prepared to accept for the purposes of this decision that he is a national of Malaysia, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Malaysia.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded”, or that it is for the reason claimed. Similarly, the fact that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal had a number of concerns with the applicant’s credibility concerning his claims and his background, as discussed below.
Concerns relating to criminal gangs
Firstly, the Tribunal considered the applicant’s claims and evidence about the criminal gang issue to be vague, evasive and not credible. Although he was able to explain the details of his work, addresses, and family back in Malaysia, and his work details in Australia, when he was asked questions about the criminal gang issue his manner of giving evidence was often evasive. For example:
·     The applicant was asked the first time that he had contact with the gang and he did not respond except to say the gang is trying to look for my boyfriend by contacting me. The Tribunal repeated its question but he said he did not know, he could not give any idea of when he first had contact with the gang. This was difficult to accept given he was able to be fairly precise about when he moved out of the home, for how long, and how long he spent back home packing before leaving for Australia, as well as the details of how he gave his notice to his employer. In contradiction to his claim that he didn’t know when he first spoke to a gang member, he later told the Tribunal that this occurred in March 2015, one week after he last saw his boyfriend.
·     However, he also contradicted his evidence about when he last saw his boyfriend. When the Tribunal asked the applicant the last time he saw his boyfriend, he said it was in March 2015, and it was just a normal conversation. He then contradicted himself, saying that he then saw his boyfriend later when they had an argument. The Tribunal put to him that he had just changed his evidence; he did not explain.
·     When the Tribunal asked for the circumstances and the conversation when he first spoke to the gang member in March 2015, his evidence included: there were 2 gang members, they waited for him when he came out of work, the gang member said that the applicant’s boyfriend broke into his house and asked how to find the boyfriend. The applicant told the gang member that he could not contact him and if he could contact his boyfriend he would tell the gang member. The gang member responded that he didn’t believe the applicant and then the applicant left. The Tribunal asked about the next contact and he said that they would follow him (sometimes to home) and call him and intercept him at work; they are “always” in his workplace. The Tribunal asked what else was said and he said they told him that he has to pay 10,000 Malaysian ringgit (about 3-4000 AUD), being the cost of the damage. There was nothing else said in any of the conversations. Nothing else happened.
The Tribunal put to him that there was no indication that he faced harm in Malaysia, noting that he had never experienced harm in Malaysia, the criminal gang knew where he lived and worked yet they did not harm him, they just asked where his boyfriend was and sometimes followed him. The Tribunal put to him that they had the opportunity to cause him harm (including to pressure him for money) but they did not. He agreed. The Tribunal put to him that these claims are difficult to accept, and it may not accept the claims he has made relating to his friend and a criminal gang. The applicant did not offer any further explanation.
The Tribunal notes the applicant maintained these claims at hearing but also that he omitted to mention that he had a fear of criminal gangs upon return. When this is considered in light of the above concerns with his evidence, the Tribunal considers that his evidence undermines that his claims in this regard are true. The Tribunal’s concerns are heightened by the applicant’s delay in leaving Malaysia once his visa was granted: as set out in the delegate’s decision record that he provided to the Tribunal, he was granted his visa on 25 April 2015, but he did not leave Malaysia for Australia until [a day in] June 2015 (during which time he stayed living in the same house, except as he claims when he moved out for 2 weeks, and maintained his work until he gave notice to come to Australia). The Tribunal does not consider the applicant’s evidence about his claims to be persuasive, especially when also considered with his delay in seeking protection as set out below.
Secondly, the Tribunal also had concerns with his delay in lodging a protection visa application once he had arrived in Australia and his preparedness to remain unlawfully present instead of seeking to regularise his migration status.
The applicant told the Tribunal that he was unlawfully present for 1 year after his visitor visa expired. The delegate’s decision record confirmed that he was granted his visa on 25 April 2015, he left Malaysia for Australia on [a day in] June 2015, but he didn’t lodge his protection visa application until more than one year later on 25 October 2016 (the Tribunal accepts he attempted to lodge an application one month earlier). The Tribunal asked why he delayed in lodging his protection visa application and he said he didn’t know about it. He said he didn’t have a choice. The Tribunal put to him that he did have a choice, he could have gone home before the expiry of his visitor visa (or applied for protection) as it did not appear that he faced harm in Malaysia (concerning the criminal gang issue). The applicant did not explain further in response.
The Tribunal notes that the applicant uses the internet (he claimed that this is how he maintains contact with his family), he claims to be [an occupation 1] who had received tertiary education and who sought to work as [an occupation 1] in Australia, he claims in his protection visa application form and in his CV produced to the Tribunal, that he knows the English language. The Tribunal does not accept that he would not have made enquiries or conducted his own research as to whether he could claim protection if he had a genuine fear of harm from criminal gangs in Malaysia.
The Tribunal considers that his delay in claiming protection undermines that he genuinely feared harm from criminal gangs, and undermines that these claims are true. The Tribunal also considers that the applicant’s preparedness to remain unlawful in Australia without taking steps to regularise his status undermines his credibility and his claims that he faced harm in Malaysia.
Concerns relating to claim to be homosexual and in a relationship with the witness
Thirdly, the Tribunal had concerns with the late claim that the applicant was a homosexual. The applicant told the Tribunal the reason he came to Australia was because of the criminal gang issue; he did not suggest that he came to Australia because he was homosexual and could not express himself. The Tribunal put to him that he only made his claim to be a homosexual in his oral evidence to the first Tribunal; he did not make the claim when his case was before the Department, nor even after his claims were refused by the Department and when he lodged his application for review to the Tribunal. The Tribunal noted that his statement that he provided to the first Tribunal reiterated the criminal gangs claim but made no mention of fearing harm on the basis of his sexuality.
The Tribunal put to the applicant the provisions of s 423A of the Act, noting this claim was not previously raised by him before his case was refused by the delegate. The applicant said that he didn’t raise it before the Department because he didn’t know there was a protection visa for gay people. The Tribunal has carefully considered this claim. The applicant had been in Australia for more than one year by the time he lodged a protection visa application. He was surviving in a foreign country, had managed to find work and accommodation and support himself and move states. As noted above he uses the internet and he understands English. The Tribunal does not accept that he would not have made enquiries or conducted his own research as to whether he could claim protection on the basis of his sexuality if he genuinely feared harm upon return to Malaysia on that basis. The Tribunal is therefore satisfied that the applicant does not have a reasonable explanation as to why the current claim was not raised before the primary decision was made. Therefore, the Tribunal draws an adverse inference about this new claim that he is a homosexual. Even if it did not draw an adverse inference by operation of s 423A of the Act, the Tribunal would, however, have drawn an adverse inference as to the credibility of this new claim because the applicant had an opportunity to raise this claim in his statement to the first Tribunal, but he still did not do so. His explanation for failing to do so was that he didn’t want to give two reasons for protection to the Tribunal. The Tribunal does not find this persuasive.
The Tribunal also notes that when it asked him, he gave evidence that the statement he had provided to the first Tribunal with his application for review was true and correct and nothing was missing. However, the statement made no mention of his sexuality nor any concerns in this regard if he returns to Malaysia. The Tribunal notes that after he provided that statement, the first Tribunal acknowledged his application for review on 29 December 2016 and stated that he should tell the Tribunal immediately if his personal circumstances change as relevant to the review of the decision and if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. The Tribunal does not accept that there was any reason for the applicant to claim that he could not raise two reasons for seeking protection. The Tribunal considers that his delay in claiming protection, his statement to the Tribunal and his explanations undermine his claim that he was homosexual, and fears harm or an inability to express himself upon return on that basis.
Fourthly, the Tribunal had concerns with the applicant’s claim that he was gay, and that he was in a relationship with [Spouse A], noting that the evidence about their relationship was inconsistent in a number of respects:
Length of time of the relationship: The Tribunal asked the applicant if he has had any relationships in Australia and he said only with this current boyfriend ([Spouse A]). The relationship started in 2018 and has continued since then. [Spouse A], however, told the Tribunal that he met the applicant in around March 2018 but they didn’t really start a relationship until a few months after COVID started [thus a few months after about March 2020, about mid-2020].
The applicant, having heard the witness’s evidence, did not provide any explanation at the end of the hearing for this inconsistency, nor did he provide any comment and/or response to this when it was put pursuant to s424A of the Act.
The Tribunal would expect that if the applicant and [Spouse A] were in a relationship, they would have given broadly consistent evidence as to when the relationship started.
When they started living together, and the address where they lived together as a couple in a homosexual relationship: [Spouse A] told the Tribunal that he used to live at [Address 1 in Suburb 1]. That was his address when the applicant and he started living together (which was in March 2021).
He said that he and his family (sister and parents) then moved to a new place in March 2022: [Address 2, in Suburb 1]. When asked why he presented a licence to the Tribunal with the address of [Address 1], he said that his sister still owns the property and there is an office there, and he goes to visit there often (but his actual place of residence is at [Address 2]). When asked where the applicant lives, [Spouse A] said that the applicant used to live with him at [Address 1], but they moved together to [Address 2].
The applicant told the Tribunal at hearing in October 2023 that he moved in to live with the applicant 2 years ago [thus in 2021] to [Address 1]. However, he then said that [Spouse A] still resides at [Address 1] and has never lived anywhere else in the 2 years that they have lived together. This was inconsistent with [Spouse A’s] evidence as to where they had been residing together for the last 1 year and 7 months of the claimed de facto relationship.
The Tribunal was concerned that there was such inconsistent evidence as to where they claimed to live together.
There was a further source of information that [Spouse A] was living at [Address 2]. [Spouse A] lodged a sponsorship application to support his father’s application which showed that on 4 May 2023 [Spouse A] informed the Department that he had moved from [Address 1] to [Address 2]. This was also inconsistent with the applicant’s evidence that [Spouse A] has never lived anywhere else in the 2 years that they have lived together other than at [Address 1]. Thus there were two separate sources of information stating that [Spouse A] had been living at an address different to the address where the applicant claims they live together.
When the Tribunal put to the applicant that the address his partner gave to the Department is different to the address where the applicant claims they live together, in response he said that he doesn’t know what the Tribunal is talking about. He said he didn’t know why [Spouse A] would be giving an address to the Department, which is not the address where they live, but they both live together at the address ([Address 1]). The Tribunal asked him whether he had discussed the application his partner is making for sponsorship of his parents; the applicant said he doesn’t know what form his partner filled in, but he lives with him at the [Address 1]. The Tribunal considers that his explanation is undermined by [Spouse A’s] own evidence that he lives at a completely different address to the address given by the applicant.
The only response the applicant provided at hearing to explain the significant inconsistencies as to where he and [Spouse A] lived was when he said that he had given false evidence about the addresses because [Spouse A’s] parents are rich. The Tribunal put to him that this indicates that he is prepared to tell untruths to the Tribunal. The Tribunal has taken into account this explanation when other concerns about the addresses are raised below, however it is not satisfied that this can explain the very different evidence as to addresses presented. The Tribunal considers that the applicant’s explanation that he was prepared to willingly tell untruths to the Tribunal undermines his credibility and his claims.
The applicant did not provide a response or comment to the inconsistent information about the addresses when put post hearing pursuant to s424A of the Act.
The Tribunal would expect that if the applicant and [Spouse A] had been living together, they would give broadly consistent evidence as to where he has been living during the last 19 months, and that if as claimed by the applicant they had been living for the last 2 years at [Address 1], [Spouse A] would not have told the Department that he lived elsewhere. [Spouse A’s] consistent evidence that he lives at a different location undermines the claim that the applicant and he have been living together in a genuine relationship.
Inconsistent evidence as to [Spouse A’s] occupation: When the Tribunal asked [Spouse A] about his work, he said that he is [an occupation 4]. He owns his own company [Business 1]. The company has no shares in any other company and is not affiliated with any other company. He does not go to work in an office; he has his own office which is at home.
The applicant, however, told the Tribunal that [Spouse A] is [an occupation 5] with [Business 2], and he works in [Suburb 1] (not at home). This inconsistent evidence caused doubt that the applicant and [Spouse A] were in a relationship and had been living together, because if that was the case, it is reasonable to expect that the applicant would have known these basic details about his claimed partner’s work. The applicant, having heard the witness’s evidence, did not provide any explanation at the end of the hearing for this inconsistency, nor did he provide any comment and/or response to this when it was put pursuant to s424A of the Act.
The Tribunal considers that this lack of knowledge undermines the claim that the applicant and [Spouse A] were and are in a relationship as claimed.

Inconsistent evidence about how often the applicant sees [Spouse A’s] parents and sister and dines with them: The applicant told the Tribunal that [Spouse A’s] family knows about the relationship and the applicant has met [Spouse A’s] family. The Tribunal asked when he met the parents and his response was vague; he said that he can’t remember exactly but one time I eat together with them. The Tribunal sought confirmation that he only ate once with them and he corrected and said a few times they had dinner together. When asked their names he said he doesn’t know. When asked why he would not know their names he said because it is not polite. He said he has also occasionally seen [Spouse A's] sister (when they have had dinner with the parents, and before the parents arrived he saw the sister “a few times”). He said that the parents live in a new house.
This evidence and the fact that the applicant did not claim to live in the same house as [Spouse A’s] parents, nor did he claim that they eat dinner together every night, was inconsistent with [Spouse A’s] evidence. [Spouse A] told the Tribunal that he lives with his parents and sister and that the applicant also lives with them. He said that his parents are okay with the relationship and they know the applicant really well. He said that the whole family, including himself, the parents, sister, and nephew, have dinner with the applicant every day. They all reside at [Address 2].
Departmental records show that in 2023, [Spouse A’s] mother has been in Australia since 1 February 2023 (thus more than 8 months by the time of the hearing) and that [Spouse A’s] father has been in Australia for over 5 months in 2023 (by the time of the hearing).
Further, when the applicant was asked where [Spouse A’s] parents live, the applicant said “in the [Suburb 1] area”. If he was living with [Spouse A] in a genuine relationship, with his parents, at [Address 2], it would be expected that he would have known this address and told the address to the Tribunal.
The applicant, having heard the witness’s evidence, did not provide any explanation at the end of the hearing for this inconsistency (except as noted above that he claimed he gave false evidence to the Tribunal because the parents are rich). He did not take the opportunity to provide any comment and/or response to this when it was put pursuant to s424A of the Act. The Tribunal does consider his explanation persuasive.
The Tribunal considers that the above evidence undermines the claim that the applicant and [Spouse A] were and are in a homosexual relationship and live together.
Fifthly, the applicant’s failure to notify the Department of his claimed residence at [Address 1] indicates that he has not been residing there (with [Spouse A]). In this regard, while it may be understandable if an applicant fails or forgets to notify changes of address, this applicant has a history of regularly notifying his change of address to the Department according to Departmental records, including that he notified a change of address in February 2018, August 2019 and most recently in January 2021. His address with the Department remains as that notified in January 2021, namely [Address 3 in Suburb 2]. He also notified to the Department another email address in January 2021.The applicant’s claimed current address of [Address 1] has not, however, been provided to the Department, and despite [Spouse A] stating that the applicant and he moved to [Address 2] in March 2022, this address was also not provided by the applicant to the Department.
When the Tribunal asked him whether he had updated the Department with his claimed address at [Address 1] at any time during the last 2 years, he said “not yet”.
Thus, the applicant has not updated the Department with a different address from his address of [Address 3] in 2021 or thereafter.
Further, the applicant’s correspondence with the Tribunal also shows that he resides at [Address 3]. The Tribunal notes it sent him an acknowledgement letter dated 29 December 2016 which stated: It is important that you:
o tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;
o tell us immediately if your personal circumstances change and this is relevant to the review of the decision;
When he lodged his application for review with the Tribunal on 23 December 2016 the address he provided matched the address he had provided to the Department for that time. The applicant had experience in contacting Tribunal staff; for example he telephoned the Tribunal on 15 February 2017 to enquire about the status of his case and to discuss bridging visa issues, and on 9 August 2021 he telephoned the Tribunal to ask for a copy of the audio recording of the (first Tribunal) hearing in his case.
On 12 November 2021 after the case was remitted to the Tribunal, a staff member contacted him and confirmed that his address was [Address 3]. The staff member then sent him a letter by email, noting that his address was [Address 3]. The applicant did not update the Tribunal with a new address in 2021 or thereafter, until he attended at the hearing. This undermines the claim that the applicant moved into [Spouse A’s] home at [Address 1] in 2021 and [Spouse A’s] claim that together they moved to [Address 2] after the applicant had moved into [Address 1].
The Tribunal asked him whether he had ever updated his addresses with the Department and he said yes and he confirmed that he had updated the [Address 3] with the Department. The Tribunal put to him that he has a history of updating the Department. He said that he had a person helping him at the time when he had a case. The Tribunal put to him that he has had a case with the Tribunal for years. He then said yes but he previously had someone to help him to update the address but now I don’t have anyone. The Tribunal put to him that he claims to have a partner, why couldn’t he help him to update his address with the Tribunal. His response was that at that time he didn’t think he would ask his partner because at that time he had always had a worker helping him. The Tribunal does not accept that explanation, given he claims that the reason he didn’t update his address was because he didn’t have a helper.
Later when the Tribunal put to the applicant that (for 2 years) he did not update his address to [Address 1] with the Tribunal, he said he didn’t know how to update the address, so he forgot. However, he had received the acknowledgement letter from the Tribunal, and had had a telephone call with Tribunal staff in November 2021 where his address was checked and he confirmed that [Address 3] was his address. Although the applicant told the Tribunal that he could not recall which month in 2021 he moved into [Address 1] to live with [Spouse A]:
·The Tribunal would expect that if he had changed his address to [Address 1] before 12 November 2021, he would have told the Tribunal staff member this when he was confirming his contact details with staff.
·The Tribunal would expect that if he changed his address to [Address 1] in 2021 between 12 November – 31 December 2021, then he would recall that he had recently updated the Tribunal with his address and he would have known that he could have contacted the Tribunal to provide his new address.
Given his experience in contacting the Tribunal, this undermines his explanation to the Tribunal that he did not know how to change his address so he forgot to do so.
As noted above, the applicant did not provide any comment and/or response to the above when it was put pursuant to s424A of the Act. The Tribunal considers that the above evidence undermines the claim that the applicant and [Spouse A] were and are in a homosexual relationship and living together[2].
[2] The Tribunal notes that on the licence that the applicant provided at hearing, the address before the update was an earlier (different) address provided.
Further, the Tribunal’s concerns about the applicant’s address are heightened because he also failed to notify this new address which appeared to be in breach of his visa condition 8506, for 2 years. Given the applicant’s previous diligence in notifying his changes of address as set out above, the Tribunal considers it reasonable to expect that the applicant would have notified the Department of his address changes to [Address 1] (or [Address 2]) if he had actually moved to these locations, so that he would not have been in breach of a condition of his bridging visa for 2 years.
Departmental Movement records show that on 6 December 2021 he was granted a bridging visa WE-050 with conditions including condition 8506. Condition 8506 states that: The holder must notify Immigration at least 2 working days in advance of any change in the holder's address.
This was put to the applicant in the s424A letter however he did not provide a comment or response. The Tribunal considers that this indicates that he did not live at the above address for the last 2 years and he did not live in a de facto relationship with [Spouse A] for the last 2 years.
Sixthly, the Tribunal was concerned that the applicant and [Spouse A] gave inconsistent evidence as to why they decided to register the relationship 5 days after the hearing invitation was sent to the applicant. In this regard, [Spouse A] told the Tribunal that they decided to register the relationship because they had received advice from a migration agent to do so[3].
[3] The Tribunal notes that there is no migration agent on the record for the applicant in these proceedings.
The applicant however provided different reasons as to why they decided to register the relationship 5 days after the hearing invitation was sent to the applicant. When the Tribunal put to the applicant that the timing of the application to register the relationship may indicate that this was not being done for genuine reasons, the applicant claimed that he had earlier intended to register the relationship but because of COVID and [Spouse A] was busy working, he didn’t do this. Then he claimed that he and [Spouse A] had intended to register the relationship earlier in 2023 when the relationship got serious. [Spouse A’s] evidence, however, was that they had just recently received migration advice to register the relationship; [Spouse A] did not say that they had intended to do it years ago, nor that they had decided to do it because the relationship was getting more serious.
The Tribunal was concerned that this inconsistent evidence and the timing of the decision to register the relationship undermined that the relationship was being registered because it was genuine.
The Tribunal was further concerned because the applicant did not know what it meant to register a relationship. When asked, he firstly did not answer the question, and when it was repeated, he said that it means that he and [Spouse A] are going to live together. This response undermined his claim that they had already been living together for the past 2 years. The Tribunal put to him that he was a party to registering a relationship but he doesn’t even know the purpose of this registration[4], which caused concern. This was also put to the applicant in the s424A letter however he did not provide a comment or response.
[4] The Tribunal noted that the NSW government website states that registration of a relationship: ..provides legal recognition for a couple; Registered relationships are recognised as 'de facto' in NSW. Couples in registered relationships are subject to certain obligations and/or restrictions under NSW law; Registered relationship certificates are used to access entitlements, services and records under legislation; In situations outside of legislation, service providers may choose to accept registration of a relationship as proof of legitimacy of that relationship; A couple does not have to live together to be eligible to register their relationship: >
The Tribunal’s concerns in this regard were heightened because although the applicant told the Tribunal that he and [Spouse A] had intended to register the relationship earlier in 2023 when the relationship got more serious, this was inconsistent with [Spouse A’s] evidence: he said the relationship got more serious in March 2021 (when they decided to live together).
The Tribunal would expect that they would give consistent evidence about when the relationship became more serious, instead there is 2 years difference in the evidence as to when the relationship became more serious. This was put to the applicant in the s424A letter however he did not provide a comment or response.
The Tribunal considers that this indicates that this undermines the applicant’s credibility and his claims to have been in a genuine relationship with [Spouse A].
Seventhly, the Tribunal considered that [Spouse A’s] declared relationship status in a number of aspects undermined the claim that they were in a relationship.
Departmental records show that [Spouse A] sponsored his father in an Aged Parent (subclass 804) visa application on 2 May 2023, and [Spouse A’s] relationship status is recorded as never married or in a de facto relationship as at 4 May 2023. [Spouse A] told the Tribunal that he is openly gay and that half of Sydney knows this and all of the [Community 1] knows he is gay and his family know it too, and they know about the relationship. [Spouse A] said to the Tribunal that he had been living together with the applicant and in a relationship with the applicant since March 2021 which is when they moved in together. The Tribunal noted that [Spouse A’s] evidence indicated that he does not have a reason to hide a de facto relationship when making an application to the Department, if such a relationship genuinely existed.
The Tribunal would expect that [Spouse A] would have stated in his sponsorship application for his father that he was in a de facto relationship. His assertion that he has never been in a de facto relationship undermines the claim that he had been living with the applicant in a de facto relationship for 2 years.
The Tribunal has taken into account [Spouse A’s] explanation noting his claims in the current proceedings that he had been living in a de facto relationship with the applicant for 2 years (since March 2021). In response he said that he thought it had to be registered. While the Tribunal accepts that this explanation is possible, when having regard to the rest of the inconsistencies, the Tribunal is not satisfied that this can explain why [Spouse A] represented to the Department that he was not in a de facto relationship.
Further concerns about [Spouse A’s] status arose from his social media and his changing evidence when this was put to him. As put to the applicant, [Spouse A’s] publicly available [social media 1] page shows his status as “single”. The Tribunal put to [Spouse A] that his [social media 1] page says that he is single. He said that it has been like that for a long time. Then he changed his evidence and said it doesn’t matter as his family knows.
Further, during the time it is claimed that they have been in a relationship, [Spouse A] has posted on a number of occasions, on his publicly available [social media 1] page, that he is single, he would like a partner, someone to love, and he is lonely including the following (a selection of posts from the last 12 months or so):
·     [Jan] 2023: ‘[…] waiting for the prince to appear. [Details deleted.]’
·     [December] 2022: ‘[Details deleted.] (series of emoticons)’
·     [December] 2022: ‘[Details deleted]’
·     [November] 2022: ‘[Details deleted]’
·     [September] 2022: ‘[Details deleted.] I am still single. Generally, if you can get me out of this loneliness, I’ll be grateful.’
·     [September] 2022: ‘[Details deleted.] waiting for love. Waiting for so long but why can’t I see it!’
·     [August] 2022: ‘[Details deleted.] You must love yourself [details deleted.] Because no one does it for me.’
The Tribunal then put to [Spouse A] that he posted on [social media 1] that he was lonely and doesn’t have a partner and he would like a partner. His explanation was that this must have been a long time ago. The Tribunal put to him that this was not the case, noting for example his post in December 2022. He said that he can’t remember that. Then he gave his second explanation: said maybe it was a joke. Later he gave a third explanation: he said that it is the trend to say that you are lonely and don’t have a partner, or you want a prince, even if you have a partner or are married.
The applicant told the Tribunal that his [social media 1] name is [Name 1] and that he follows [Spouse A] on [social media 1]. As put to the applicant, there is no indication from the accounts that the applicant is following [Spouse A]. Further, when the Tribunal asked the applicant if there was anything that concerned him about his partner’s [social media 1], he said no. The Tribunal put to him that his partner states that he is single on [social media 1]. In response the applicant said At the moment it is not fixed yet and once it is fixed we can show to everyone.
This explanation, however, undermined other evidence the applicant had given: when the Tribunal had asked why he and his partner do not show on social media that they are in a relationship, the applicant had said this was because he is fearful of Malaysians. The Tribunal put to him that given that evidence, it did not then make sense for him to say that they will fix [social media 1] to show everyone they are in a relationship. In response he said he is still worried and he will have to wait until he is “100% sure”.
The Tribunal has also considered the applicant’s explanation to the Tribunal, in response to the assertions on [Spouse A’s] [social media 1] that he doesn’t have a partner, namely that he thinks he didn’t mean this, it was probably just a slogan.
The Tribunal did not consider the explanations of the applicant or [Spouse A] to be persuasive. The applicant had a further chance to comment or respond to these matters in the s424A letter but he did not.
Further, when discussing with [Spouse A] at hearing that his [social media 1] page does not refer to the applicant, [Spouse A] then asserted that his [social media 2] account (which is public) contrasts his [social media 1] account, as his [social media 2] account does show the applicant publicly with him. If this was true, then depending on the content it may have supported the applicant’s claim to be in a relationship with [Spouse A], however it may have also undermined the applicant’s claim that he does not want to appear publicly on social media.
When the Tribunal put to [Spouse A] that his evidence that they are together on [social media 2] was inconsistent with the applicant’s evidence that he does not want to appear on social media because of fear of reactions in Malaysia, [Spouse A] then changed his evidence. He said that his [social media 2] account only shows a part of the applicant such as his hands. [Spouse A] showed the Tribunal some of his [social media 2] account however he agreed that there was nothing that showed himself and the applicant, and then he agreed there was no way of knowing that the applicant was present on his [social media 2]. He then said most of the time the applicant is the cameraman so he would not be in the picture. [Spouse A] then said the applicant doesn’t show himself in any picture. The Tribunal was concerned with the changing evidence.

100. [Spouse A] showed the Tribunal his phone and said there was a picture of the applicant with his family. The Tribunal noted that the person he said was the applicant could be barely seen in the photo. [Spouse A] said that the applicant is shy. The Tribunal put to [Spouse A] that even if it was a picture of the applicant with his family, this does not appear to be evidence of a relationship.
101. The Tribunal put to the applicant that the above indicates that [Spouse A] is prepared to change his evidence and that the applicant is not visible on his social media as claimed by him. The applicant did not provide any comment or response to these matters in the s424A letter.
102. The Tribunal does not consider that there is any requirement that persons display their sexual orientation or relationships on social media. The Tribunal is concerned in this case with the changing and inconsistent evidence about [Spouse A’s] social media, and it is this which undermines the credibility of the applicant and the witness.
103. Having regard to the above, the Tribunal is not satisfied that the applicant is a credible witness in relation to the claims that he is a homosexual in a relationship with [Spouse A].
Other matters
104. The Tribunal raised a number of other concerns with the applicant including with inconsistent evidence as to the sponsorship of [Spouse A’s] parents and the applicant’s lack of knowledge that [Spouse A’s] parents had been in Australia during the claimed 5 year relationship (the applicant only knew that they had been in Australia in 2023), as well as [Spouse A’s] lack of knowledge of many aspects about the applicant. The applicant also was not able to say a great deal about [Spouse A] (he likes to eat and go to the gym and if they have time they will go out to dinner together, and [Spouse A] works), and although he knew that [Spouse A] went on an international holiday, he was only able to give vague evidence about that holiday. The Tribunal was prepared to give the applicant the benefit of the doubt in relation to these matters, and not consider this in an adverse manner, noting that relationships are unique and the Tribunal understands that people may not be interested in some aspects of the lives of people with whom they have relationships. This does not however explain the concerns referred to above.
105. As noted above, the applicant attended the hearing with his licence which had a new address sticker on the back marked with [Address 1]. He told the Tribunal that when he moved in he went to Service NSW to change the address. The Tribunal asked the applicant if there was a record of the date of change in his account; he said he did not know. The Tribunal said that he could look in the break to see if there was evidence in his account of when the change of address was registered. The applicant did not mention this further, nor when the concern about his address was put to him in the s424A letter, did he provide any response or comment. The Tribunal does not consider that the driver’s licence provided at hearing overcomes the difficulties in the evidence concerning where he resided. The Tribunal noted that the applicant did not know the owner of this address: he told the Tribunal that [Spouse A] was the owner of [Address 1]; [Spouse A] however said that his sister owns the property, and even though they moved out of the property, she still owns it, there is still an office there and the applicant visits the property very often to undertake handyman/ maintenance tasks there. The Tribunal is prepared to accept that the applicant undertakes jobs at the address but that he does not know who owns the address (the applicant did not respond to these concerns put pursuant to s424A of the Act). The Tribunal is prepared to accept that the applicant may have updated his licence to this address and that this could have been done for any number of reasons, including perhaps that the applicant may have even arranged to rent that address in the future. The Tribunal does not accept that this is evidence that the applicant and [Spouse A] are in a relationship (not least because [Spouse A] himself has said that he lives at a different address).
106. The Tribunal asked if the applicant had [social media 1] and he responded that he hardly uses it. The Tribunal asked if he would open up his [social media 1]. The Tribunal asked if he uses any other form of social media. He does not. The Tribunal asked if there was anything on his [social media 1] that would show that he is gay. He said his name is [Name 1] on [social media 1], but there is nothing on [social media 1] that shows he is gay, because of his fears about Malaysia. He will not post on [social media 1] but he will view things on [social media 1]. He said that he follows a male [specified background] model/ artist on [social media 1] stories who the applicant claimed was gay. He showed the Tribunal and while the Tribunal accepts that the model/ artist he follows appears gay, the Tribunal does not consider that this is evidence that the applicant is gay. The Tribunal also noted that the applicant could not show the Tribunal that he followed [Spouse A] on [social media 1] and instead he looked up [Spouse A] on [social media 1]. The Tribunal, as noted above, does not consider it adverse if a person does not present their sexuality on social media. The concerns arose because of the evidence.
107. The Tribunal has also taken into account that the applicant and [Spouse A] did have some knowledge of each other, and it is prepared to accept their evidence that they travelled to Melbourne with [Spouse A’s] niece in Christmas 2022.
108. When asked if [Spouse A] supports him financially, he said “a little bit”. The Tribunal has accepted that the applicant does some maintenance work at [Address 1]; there is no evidence provided of any financial contributions, however the Tribunal is prepared to accept that the applicant receives some form of payment for his maintenance work.
109. As put to the applicant at hearing, the Tribunal had concerns that it may be that he and [Spouse A] are just friends or have an arrangement to support his protection visa application. The Tribunal is not satisfied that any of the evidence provided overcomes the concerns raised above. It does not consider that [Spouse A] is a credible witness when claiming that he and the applicant are in a homosexual relationship, live together and dine together.
Findings on the applicant’s claims
110. On the basis of the adverse credibility finding the Tribunal does not accept the applicant’s claims in relation to criminal gangs including it does not accept that he had a boyfriend in Malaysia. The Tribunal does not accept any claims flowing from those claims including it does not accept that the applicant was attacked, harassed, punished, followed, threatened, taken, blackmailed or otherwise adversely affected by criminal gangs. It does not accept that he made a report to the police about a criminal gang nor that he believes that if he reported the gang in future he would face prosecution, nor that gang members consider that he owes any money. The Tribunal does not accept that the claims about adverse incidents or concerns in Malaysia are true.
111. At hearing the Tribunal referred to the provision of s5J(6) of the Act concerning the registration of the relationship. It noted that this can be disregarded unless the applicant satisfies the Tribunal that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee, and the Tribunal said that although it had not made up its mind, it has concerns about whether the relationship is genuine and the reason that it was registered, especially considering the timing. The applicant did not say disagree. The Tribunal finds that the registration of the relationship occurred for the sole purpose of strengthening the claims and it disregards this evidence when considering the refugee claims.
112. The Tribunal put to the applicant at hearing that it may not accept he is homosexual when considering the concerns with the evidence. As stated in the s424A letter, the Tribunal does accept that [Spouse A] is homosexual; this does not however support that the applicant is homosexual. On the basis of the adverse credibility finding the Tribunal does not accept that the applicant is a homosexual, and it does not accept that the applicant is in a homosexual relationship with [Spouse A]. The Tribunal considered that the applicant has made up these claims and has given false evidence to the Tribunal, and that his witness has also given false evidence to the Tribunal in attempting to support the applicant’s claims.
113. As put to the applicant at the end of the hearing, it may be that the applicant and [Spouse A] are friends and that they have spent time together. Their evidence is so unsatisfactory that it is difficult to know what kind of friendship or arrangement they have in terms of [Spouse A] supporting the applicant’s protection visa application. The Tribunal is prepared to accept that the applicant updated his licence to [Spouse A’s] sister’s address, which could have been done for a multitude of reasons, including perhaps that the applicant may have even arranged to rent that address in the future (albeit that he does not know who owns the property). It does not accept that this is because of the claimed relationship.
114. The Tribunal put to the applicant that he may appear effeminate, but it noted that it had asked him if there was any reason for people to impute that he is gay and he had said no. The applicant said that he didn’t want to say anything further in this regard. The Tribunal finds that the applicant does not consider that he faces any harm on the basis of his appearance/ manner.
115. The Tribunal does not accept that even if the applicant sometimes had to work long hours in Malaysia that this occurred for any reason of race, religion, nationality, political opinion or membership of a particular social group; it considers that this was probably a function of the job he chose to remain in for years. The Tribunal does not accept that this amounts to persecution or significant harm. In any event, the applicant’s claims concerning work in the future were different. He said that there have been changes in the industry in 8 years and he is not sure that he will be able to find work. The Tribunal noted that he was involved in [a different industry] and other work in Australia, and it noted that with his skills and experience he should be able to work in Malaysia. In response he said that he is currently working with a contractor with a [specified project]. He said he doesn’t have connections and there is not a lot of [that type of] work in Malaysia. The Tribunal put to him that he has connections, he has family; and it is difficult to accept that he will not be able to find work. The Tribunal put to him that it did not appear that he would face a real chance of serious harm or real risk of significant harm for this or financial reasons. He said that his siblings are not in his industry and he doesn’t have their skills. The Tribunal put to the applicant at hearing that he said that he likes the lifestyle in Australia and the work hours were better; however this did not mean he faces a real chance of serious harm or a real risk of significant harm in Malaysia. He did not comment. The Tribunal is not satisfied that the applicant faces a real chance of serious harm for these reasons.
116. The Tribunal raised that he is of Chinse ethnicity and Buddhist, but he had made no claims in this regard; the applicant did not comment or suggest that he faced harm for these reasons. The Tribunal finds that he did not make such claims.
117. The Tribunal also put to the applicant that he claimed that he did not like corruption, and that although he suggested he did not like crime on the street, there was no suggestion that he would be adversely affected for such reasons nor as a failed asylum seeker on return, noting he proposes to renew his passport. The applicant did not seek to comment. The Tribunal is not satisfied that the applicant faces a real chance of serious harm for reasons of corruption, crime on the street, or as a failed asylum seeker.
118. The Tribunal has considered the applicant’s claims individually and on a cumulative basis, in the context of its findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, and, apart from those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.
Complementary protection

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Attachment A, which provides a summary of the relevant terms). The Tribunal does not disregard the registration of the relationship for the purposes of considering complementary protection however it does not accept this was done for genuine reasons and it does not consider that this will have any effect upon the applicant upon return to Malaysia. The Tribunal considers that the applicant will return to Malaysia and seek work; it does not accept that he will not be able to obtain work again and it does not accept that he faces a real risk of harm amounting to significant harm for any reason (including working long hours) in Malaysia. It accepts that he likes the lifestyle in Australia however it does not accept that there is a reason for him to face a real risk of significant harm due to the lifestyle upon return. The Tribunal is also not satisfied that he faces a real risk of significant harm for any matter mentioned above including corruption, crime on the street, failed asylum seeker (nor ethnicity or religion in relation to which he makes no claims). The applicant himself said that he did not face any harm in relation to his appearance/manner. The Tribunal does not accept that the applicant faces harm in relation to sexuality and it does not accept that he is a homosexual.

120. The Tribunal has found that the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.
121. The Tribunal is not satisfied that he faces a real risk of experiencing significant harm for any reason.

On the evidence presently before it, 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 a receiving country, in this case Malaysia, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion

123. 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

126. The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A - CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2251

5 April 2024

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