2118601 (Refugee) - [2025] ARTA 1682

2118601 (Refugee) [2025] ARTA 1682 (26 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2118601
Tribunal:General Member B Gogarty
Date:26 June 2025

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

Statement made on 26 June 2025 at 3:04pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – financial debt – fears harm from money lender – claims almost identical to other applicants – bogus document – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 413
Kaur v Minister for Immigration and Border Protection [2014] FCA 1046
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 46
MIMIA v SGLB (2004) 78 ALJR 99, 1007
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 570
Mohamed v MIMA (1998) 83 FCR 234, 246
Randhawa v MILGEA (1994) 52 FCR 437,451
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, 349
SZDGC v Minister for Immigration [2008] FCA 1638
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 December 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a Malaysian citizen who applied for the visa on 2 August 2021. The delegate determined that the applicant’s claims did not satisfy the criteria for either refugee or complementary protection under s 36 of the Act and refused to grant the visa.
The applicant appeared before the Tribunal on 19 May 2025 to give evidence and present arguments.
BACKGROUND
The accepted details of the applicant’s background are as follows. He is, at the time of this decision, [an age]-year-old man who was born and raised in the state of Seremban. The Tribunal accepts that, other than his Malaysian citizenship, he has no citizenship or residency rights in any other country. The applicant said he has no spouse or children.
Both the applicant’s parents are alive and live in the house he grew up in and lived until he left the country in 2017. The applicant said both his parents are unwell: he described his mother as having "[an ailment]"; and his father as "getting old" and said that both have been on medical leave for the last six months and are unable to work. The applicant has one [sibling], who at the time of the hearing was at university in Malaysia and lived apart from their…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2118601 (Refugee)

Details

AGLC: 2118601 (Refugee) [2025] ARTA 1682
Case: [2025] ARTA 1682
Decision Date: 26 June 2025

CaseChat Overview and Summary

In the case of 2118601 (Refugee), the applicant, a Malaysian citizen, sought a protection visa from Australia, citing fears of harm due to financial debt and harassment by a money lender. The Tribunal was tasked with reviewing the delegate's decision to deny the applicant a protection visa. The central issues for the court were whether the applicant had a well-founded fear of persecution and whether there was a real risk of significant harm if returned to Malaysia.

The Tribunal found that the applicant's claims were almost identical to those of other applicants, raising suspicions of fraudulent intent. Additionally, the Tribunal noted that the applicant had used a bogus document in his application. The Tribunal reviewed the evidence and concluded that the applicant had access to effective protection measures in Malaysia, including potential assistance from authorities and the ability to relocate within the country. Consequently, the Tribunal affirmed the delegate's decision, finding that the applicant did not have a well-founded fear of persecution and that there was no real risk of significant harm if returned to Malaysia.

Given the Tribunal's decision, the applicant's application for a protection visa was dismissed. The Tribunal found the applicant's claims unconvincing and based on evidence that suggested fraudulent intent and the use of false documentation. The Tribunal affirmed the delegate's conclusion that the applicant did not face a real risk of significant harm if returned to Malaysia, and thus, the protection visa was denied.

Orders

Orders of the court

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Background

Background to the litigation

The applicant appeared before the Tribunal on 19 May 2025 to give evidence and present arguments. BACKGROUND The accepted details of the applicant’s background are as follows. He is, at the time of this decision, [an age]-year-old man who was born and raised in the state of Seremban. The Tribunal accepts that, other than his Malaysian citizenship, he has no citizenship or residency rights in any other country. The applicant said he has no spouse or children. Both the applicant’s parents are alive and live in the house he grew up in and lived until he left the country in 2017. The applicant said both his parents are unwell: he described his mother as having "[an ailment]"; and his father as "getting old" and said that both have been on medical leave for the last six months and are unable to work. The applicant has one [sibling], who at the time of the hearing was at university in Malaysia and lived apart from their parents. The applicant told the Tribunal that he completed Year [level number] in [year], at around [age]. He told the Tribunal he was studying and not working while at school or at any time prior to departing Malaysia in May 2017. He said he tried to find a job to assist with financial pressures but was not in formal employment. Movement records indicate the applicant applied for a subclass 601 tourist visa on 29 March 2017 and arrived in Australia [in] June 2017. Departmental records also indicate that at least two other individuals (who at a hearing the applicant identified as his maternal grandmother and his sister or cousin), currently live with the applicant. The applicant’s grandmother and his sister or cousin have lived with the applicant at all material times over the course of this matter, and:·Applied for tourist visas on the same day as the applicant did (29 March 2017); and·Arrived in Australia on the same day ([in] June 2017) aboard the same Malaysia-flagged vessel; and·Applied for protection visas on the same day (2 August 2021), with lodgement recorded the following day; and·Travelled to and from Malaysia after their first arrival in Australia on the same dates as the applicant ([in] August 2018 and [in] December 2018) aboard the same outbound and inbound vessels. However, there are no common claims made by the group and they are all listed under different surnames. Upon arrival in Australia, the applicant stated that he lived with his maternal aunt and uncle in [Town 1], Victoria, and confirmed he was still living with them at the time of the hearing. In relation to employment in Australia, the applicant stated that his first job was [Occupation 1], which he did for approximately one year, until December 2019. He agreed that this was low-paid, subsistence-level work and that he relied on his Australian relatives for financial support and accommodation. In 2020, the applicant began working in [Industry 1], including [job tasks], which he said continued for around two and a half years. At the time of the hearing, the applicant stated his current job was as [Occupation 2] at [Workplace 1] in [Town 1], which he said he had held since around 2023.

Evidence

Evidence Before The Court

The delegate reviewed the applicant’s claims and relevant country information and concluded that the applicant had available to him effective protection measures for the risks he claimed. As such the delegate determined that the applicant did not have a well-founded fear of persecution, and that there was not a real risk that the applicant would suffer significant harm as a foreseeable consequence of being returned to Malaysia. Evidence before the Tribunal Prior to the hearing the Tribunal reviewed the entire department and tribunal file. In doing so the Tribunal searched for similar claims to the applicant’s and identified other apparently unrelated matters which recorded substantially or verbatim identical claims to those of made by the applicant.[1]Substantive hearing[1]AAT Case number 1717827; ART Case number 2013146. At the hearing the applicant was asked about his history and background in Malaysia and Australia. The evidence which it accepts about his background is set out above (see “Background”). Completion of original application for protection The applicant was asked if he had completed his application and he said he had, but with assistance from a person he initially described as his "sister". He then sought to clarify that he was using the term broadly to refer to a relative who lives in Australia. The applicant appeared to refer to this person as his sister, cousin or aunt at different times during the hearing. He explained that when he first arrived, his English was not strong, so he gave the information to this relative and she wrote it down in English as she was fluent in the language. The applicant said that he then checked and reviewed the form before sending it. The Tribunal provided the applicant a recess to read and familiarise himself with the claims contained in the original application. On his return, the applicant confirmed that the claims recorded in the form were what he had told his relative and that they were true and correct. When asked why he had not applied for protection until 2021, the applicant stated he did not know that such a visa existed until that time. He said he learned about he could apply for protection after speaking with a lawyer around that time. However, the applicant said he chose to make the application himself, without the help of a lawyer. The applicant was asked whether he might have learnt about protection visas from other family members in Australia who had sought protection in Australia. The applicant responded that none of his family who reside in Australia had applied for a protection visa. The Tribunal put to him that records before it indicated that another person who lived at his listed address was also recorded as a protection visa applicant. The applicant confirmed this person was his maternal grandmother and that he lives with her. When asked whether she was also applying for protection because of debts to loan sharks, the applicant said she was applying “for another reason”. When asked again about the timing of his application, the applicant said: “we didn’t know how to apply for the visa, so that’s why we didn’t apply until 2021 … [which was when] we found out how to apply”.The applicant’s claims for protection

Decision

Reasons for decision

In his original protection application, the applicant made the following written claims:“I had to leave my country because I have a big amount of debt. The debt came from four years ago. My mother has a critical illness and needs a large sum of money for the cost of treatment. Due to high medical expenses that I need to pay for my mother, I decided to borrow some money from a money lender because I could not afford the high medical cost. In my country, bank applications require a lot of paperwork and third party intervention which makes the process lengthy.At first, I was able to repay my debt together with the interest to the money lender, but after that I always needed to take leave from work because I had to take care of my mother at the hospital and it caused me to not afford to pay them back well. Due to that, I did not work and did not have enough money to pay my debt, the money lender had been looking for me and forcing me to pay their money.A money lender always contacts me at first when I miss a repayment, after that I received default notice from a lender but I have not taken any action after receiving a default notice because I do not have enough money to repay them. The lender already applied for a court order to enable them to take possession of my home. If the lender has obtained a court order to take possession of my home, they will send me a letter telling me to move out. A Sheriff will come and change the locks on the property. This letter is also known as a Sheriff's letter, a Notice to Vacate or a Warrant for possession. I am really worried and scared regarding this matter and before this thing happens, finally I decided to run away from my country to seek protection here.I'm not trying to move to another part of my country because I'm afraid the money lender can still find me and that will cause me in danger because I got behind on my repayment. I do not have other family members that can help me to repay my debt.If I return to Malaysia, I would be in danger and harassed because I get behind on my repayments.Authorities in my country could not help me because they do not interfere in economic problems and borrowing money from money lenders was considered a personal matter.I am unable to relocate within my country because I do not have any family members that can help me to repay my debt to the money lender. I am really scared and worried if the money lender can easily find me because my country is a small country.” [mistakes in original]Delegate’s decision The record indicates that the Department did not interview the applicant and accepted the claims as his personal claims. The delegate reviewed the applicant’s claims and relevant country information and concluded that the applicant had available to him effective protection measures for the risks he claimed. As such the delegate determined that the applicant did not have a well-founded fear of persecution, and that there was not a real risk that the applicant would suffer significant harm as a foreseeable consequence of being returned to Malaysia. Evidence before the Tribunal

Ratio Decidendi

Legal Principle Established

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