2118601 (Refugee)
[2025] ARTA 1682
•26 June 2025
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 2CASES
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 1638Any 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 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.
The applicant said he regularly sends “[amount] a month” to his parents in Malaysia; it was not clear whether this amount was in Malaysian ringgit or Australian dollars. He also stated he has a personal loan in Australia of approximately AUD $[amount], which he took out to buy a car for commuting to work. He confirmed that he does not have a credit card.
Protection visa application
The protection visa application was lodged on 2 August 2021, approximately four years and two months after the applicant’s arrival in Australia in June 2017.
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
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
Asked to articulate his claim for protection, the applicant said: “I fear returning to Malaysia because I owe debt to money lenders who will physically harm me, threaten me or kill me”. Asked to explain the basis for that fear, the applicant initially stated: “because my friend borrowed money from the money lender, and my friend couldn't pay it back to them … [the debtors] came to me [and] asked me to pay the money back to them.” Initially the applicant used the word ‘guarantor’ to describe this relationship, but later said that was not the case when he was asked.
The Tribunal reminded the applicant that his original application made no mention of a guarantor arrangement, nor any friend, but rather that it was the applicant himself who had taken out a loan due to his mother’s critical illness. The relevant page of the original application was put on the screen and the applicant was again given time to review his written claims. After doing so, he said that in addition to being a guarantor for a friend, he had borrowed money “because my mum is ill” and “plus I borrowed the money to give to a friend because his money is still on my name.” The applicant did not explain why these extra details were not included in the written application.
The applicant gave evidence that he borrowed [amount] Malaysian ringgits giving [amount] ringgits to his friend and [amount] ringgits to his mother. He said he had obtained the loan from a “private money lender” after seeing pamphlets distributed in mailboxes. He said he went to their “private office” and signed a contract. He said that contract specified that he had “pay the money [in a] certain amount of time” and that the specified interest rate was 60%. Asked if he had a copy of the loan agreement, he said he did not, and that it would be difficult to obtain one. Asked why he agreed to the interest rate, the applicant said he accepted it because of the critical nature of his mother’s illness and his friend’s needs and that: “I was young [and made] a stupid decision”.
The applicant said the lender took a photo of him and a copy of his ID as security. He confirmed he received the full [amount] ringgit at the time of agreement, which he said occurred [in] January 2017. The Tribunal noted that at that time, the applicant would have been [age] years old and still at school. The applicant confirmed this.
The Tribunal asked the applicant how he thought could repay such a loan given his age and state of unemployment at the time. His initial response was that his mother was able to pay the loan at that time for him. The Tribunal noted that this contradicted the written application, which stated the money was borrowed because his mother was already critically ill. The applicant responded: “I borrowed the money to cure the illness, and she said, borrow the money… she will pay for it until I find a job.” Asked why his mother had not just taken the loan out directly, the applicant said that “she had [other] debt on her name.”
The Tribunal asked how it was creditors agreed to grant him such a large loan, when he was only [age] years old at the time, had no income or collateral. The applicant responded: “they stay private, they don’t care what kind of person are you, they will literally give you the money and ask you to pay it back.”
The Tribunal asked the applicant how he came to default on the loan. He said that, initially his father made one or two monthly payments on his behalf, because he was unemployed at the time. However, he stated that, by March 2017, his family could no longer make payments because the interest rate had increased; he could not remember just how much they had increased by when asked. He said the situation was compounded by his mother’s worsening health which spread the family finances even thinner. As a result, he said that the money lender began: “saying they were going to seize our house, take the house away from us, and started threatening me, saying they would kill me and bash me and stuff.”
The applicant was asked about the legal default notices and “sheriff’s letter” mentioned in his written application. He agreed that had occurred but said he did not have a copy of these things. He later stated that he might “possibly” be able to obtain copies of the legal notices from his parents. The Tribunal asked how a private lender could obtain a court order to repossess his parents’ home, given that the debt was in the applicant’s name. The applicant confirmed it was his parents’ home and not his own. Asked to explain how the lender could have targeted the property, he said: “they’re like private … when something happens, when you pay the loan, they [the private creditors] do whatever they want, the [Malaysian] government can’t do anything because they’re private.”
The applicant stated that in the months leading up to his departure from Malaysia in May 2017, the money lenders began to follow him and harass the family:
“Whenever I go to school and stuff, they started following me... started threatening calls to home… they talked to my dad and stuff, they started telling us they’re going to kill me and stuff.”
The applicant told the Tribunal that he fled Malaysia because of the threats at the end of May 2017. Asked how he afforded the travel, he said the airfare was paid by his aunt, who was already living in Australia. The applicant stated he did not inform the money lenders of his departure to Australia because: “they won’t let me come over here, so I just ran away.”
Soon after arriving in Australia, the applicant said he took up work [in Occupation 1] and sent the income home to service the debt. He claimed that he has continued to service the debt over his time Australia and that he has now managed to service [amount] ringgits of the original debt. Asked how much he still owed; he said the outstanding sum is [amount] ringgits. During the coronavirus pandemic, he said he missed some repayments. On those occasions, he stated that his parents received further threats, which makes him afraid to return to Malaysia given the ongoing threat, and: “if I go back to Malaysia by now, then I can’t find a job [to] pay the [amount] money I still owe.”
The applicant was asked why his friend, who owed him the exact amount he claimed he owed the loan sharks, could not pay that part of the loan back. He replied: “since I moved over, I didn’t have contact with him… he disappeared, so I couldn’t find him.”
The Tribunal asked the applicant to explain a statement in his written application: “I needed to take leave from work because I had to take care of my mother at the hospital.” The applicant had earlier stated he was not working in Malaysia. He responded: “all right, that should be school, I don’t know why I wrote work.”
The Tribunal also asked why the written application referred only to his mother’s illness and not to any friend or guarantor liability. The applicant said that, by the time of the original application his friend had “already disappeared” and the “money lenders come to me” for his friend’s debt.
The Tribunal informed the applicant that it had reviewed other protection visa applications from unrelated individuals which involved identical or near-identical wording to the claims in his written application. The Tribunal indicated its concern that this may indicate the claims in the application were not truly his own. The applicant responded: “that is my word,” referring to the claims in the original application, but did not otherwise address the concern.
The Tribunal put to the applicant that his delay in applying for protection—more than four years after his arrival—could be seen as inconsistent with a genuine fear of harm. The applicant responded: “I was like scared for my life… that’s why I came over here to find a job”.
Finally, the Tribunal referred to current country information indicating that Malaysian authorities, including police and NGOs, provide avenues of redress in relation to loan sharks. The Tribunal stated that serious threats are generally taken seriously by authorities. The applicant responded: “I really didn’t know… that’s why I came over to pay the debt.”
Post-hearing submissions
Following the hearing the applicant provided the Tribunal with the following documentary materials:
a)Personal Letter. A personal letter from the applicant (the “personal letter”), inside a PDF, stating that he:
· Is “taking steps to improve my professional qualifications and future career prospects”;
· Owes a debt to an “Unlicensed money lender in Malaysia, [Money lender 1]”;
· Has a car loan with [an Australian bank].
· Has a plan and approach to repaying his debts while living in Australia.
· Is studying a course at an institution referred to as “[Educational institute 1]”
· Is “seeking visa sponsorship opportunities to secure long-term employment in Australia”.
· Is ‘signed’ with an image-stamp with the applicant’s name which, according to macrodata, was inserted on 30 May 2025 at 17:15.
b)[Money lender 1] Letter. An ostensibly separate letter, dated 30 May 2025 and purporting to be from a “[Money lender 1]” (the “[Money lender 1] letter”), which:
· Is in the same PDF document as the personal letter above,
· Lacks: a logo or other insignia, letterhead (other than a written address header) or other marks which might otherwise be associated with a lending company,
· Sets out the applicant’s personal biometric details;
· States that he owes that company “RM[amount]”, at an interest rate of “60 per cent”, of which “RM[amount]” has been repaid to date, with an “Outstanding Balance (Including Interest)” of “RM[amount]”.
· Includes a telephone number to call – which does not match the telephone number of the office for the official registered Malaysian money lender ([Business name 1]) “[Moneylender 1]” (noting the lack of separation between the two words),[2] and does not produce any results when entered into a Google web search;
· Includes a physical address for the financial institution, which Google Maps links to an unoccupied lot, and for which no company is listed on any public website searchable via Google Web Search.
· Is ostensibly written by a “[Applicant surname shortened]” and signed with a floating image stamp which was created on 30 May 2025 at 16:49.
· Is contained in the same PDF document as the letter from the applicant above (a.), in the same style, font (listed by the document reader as “GdPictureBackupFont” in both), margins, with a page break between the two documents.
c)Cover Letter. A cover letter, in a different page format to the two above documents and using a different font (listed by the document reader as “Calibri”), explaining the content of those documents.
[2]See [Business name 1] website: [[Moneylender 1 website]
The macrodata for the combined PDF indicates that it was created on 30 May 2025 at 17:14 and last modified before being supplied to the Tribunal on the same day at 18:40. The macrodata also indicates the document was created by software running the GdPicture.NET Software Development Kit (SDK),[3] that is, not typical business software used by businesses for PDF creation (such as Microsoft Word or Adobe Acrobat. This macrodata may also indicate why the consistently formatted documents (the personal letter and [Money lender 1] letter) utilise non-standard font named "GdPictureBackupFont,", apparently for handling a font conversion from a source document whose original font was not recognised. The use of a single editor based on an atypical SDK would also appear to explain the use of identical image-stamp signing techniques across both of those documents but not the third.
Evidence from [Moneylender 1] parent company
[3] Orpalis. “Enterprise-grade intelligent PDF & document processing SDKs. GdPicture.NET Imaging SDKs.” (2025) >
The nature of the evidence provided in the post hearing bundle raised questions about whether it was genuine. The authenticity of the [Money lender 1] letter was a concern which the Tribunal sought to resolve given it was, ostensibly from an entity which is a Limited Liability Company (denoted by the acronyms Sdn Bhd in Malaysia[4] ), that corresponds to a legitimate Malaysian financial technology (“[Business name 1]”) service, “[Moneylender 1]” which is provided via the website [Moneylender 1 website].[5] Given that is the case the Tribunal wrote to the legitimate Malaysian company that operates [Moneylender 1] to seek information as to whether that company: has an office in Negeri Sembilan (which the [Money lender 1] letter purported to be issued from); or trade under the name “[Money lender 1]” (which was contained in the header to the [Money lender 1] letter). The relevant company replied to the Tribunal confirming that it does not have any offices in in Negeri Sembilan and does not trade or own any subsidiaries that trade under “[Money lender 1]”. The company indicated that “to the best of our knowledge, [Money lender 1] does not exist“ in Malaysia and affirmed its policy of pursuing scammers.
[4] MyGOV - the government of Malaysia’s official portal : 1] is operated by the registered Malaysian company: [Moneylender 1 details]
Having reviewed the legitimate [Moneylender 1] website, the policies of its managing corporation, the Tribunal accepts that Company’s statement as correct.[6] The Tribunal also considers that, based on its publicised policies, that registered financial institution act against any “private bank” – notably one that has the corporate status to take legal actions for and obtain enforcement orders in relation to debt recovery orders – which sought to pass itself off as the legitimate “[Moneylender 1]”.
[6]See: [Moneylender 1 webpages] (under tabs "Beware of money lending scammers”, “Ah Longs”, and “What is money lender” – providing contact numbers for assistance to identify and deal with scammers passing themselves off as [Moneylender 1] or its parent company).
Further hearing
The Tribunal invited the applicant to a further hearing on 19 June 2025 to address its concerns about the post-hearing materials he had provided. The Tribunal also had sought to clarify the applicant’s living arrangements following the post-hearing identification of records relating to other visa applicants who live at the same home address as the applicant. The Tribunal explained to the applicant that the purpose of the hearing was to provide him with opportunity to respond to the concerns and make any further submissions in relation to the issues raised. The Tribunal also explained to the applicant that producing bogus documents is an offence and or that he could request the withdrawal of any documents before the Tribunal made any decision in relation to them.
The Tribunal sought clarification on the names and relationships of all individuals living in the home. The applicant said six people, including himself, who live in his home who are: his maternal aunt and her husband (his uncle), their daughter, a maternal cousin (whom he sometimes refers to as a sister), and his maternal grandmother. The names provided by the applicant corresponded with the departmental and tribunal records before the Tribunal for five people (including the applicant) at that residence who have applied for protection visas. The Tribunal noted that two of the residents (who he had said were his maternal aunt and his uncle) had applied for protection visas prior to the applicant’s first date of arrival in Australia (but on the same day as each-other). The Tribunal put to the applicant that his previous explanation as to why he had made a late claim - because he apparently was unaware of the protection pathway - appeared implausible given he was living with these family members at all material times. The applicant responded that he was unaware of them applying for protection visas, stating they informed him they were applying for a "visa" without specifying the type.
Onshore family information
The Tribunal put to the applicant that records indicated he and two other individuals (who he had told the Tribunal were his maternal cousin (or sister) and his maternal grandmother), had applied for tourist visas while in Malaysia on the same day as him (29 March 2017), arrived in Australia on the same day as him ([in] June 2017), and applied for protection visas on the same day as him (2 August 2021). It was also noted that he had travelled to and from Malaysia on the same dates and vessels as these two individuals. The Tribunal stated that this pattern might suggest the purpose of their applications was to obtain working or residency rights as a group, rather than for the reasons stated in his application. The applicant explained he travelled with his relatives because he was [age] years old and not permitted to travel alone, stating he travelled with his "sister" and "grandma." The Tribunal noted that four other individuals discussed had listed a common country of origin home residence in Seremban that differed from his. The applicant acknowledged this address is a family residence, and while initially stating no one lived there, he later stated his mother’s older brother lives there. He said he himself had grown up at a different address in Seremban. The Tribunal reiterated its concerns about the correlation between multiple family members coming from the same place, arriving on the same dates, and making applications on the same dates. However, the applicant maintained his reason for coming to Australia was to help pay his parents' debt.
The Tribunal informed the applicant of concerns that the [Money lender 1] letter he provided in post-hearing materials might not be a legitimate letter as follows.
Metadata issues
The Tribunal informed the applicant that digital of the PDF containing his personal letter and the [Money lender 1] letter suggested these ostensibly separate documents were created together as a single document, potentially by the same person rather than separate people, and then these documents were then merged with a separate cover letter. The applicant responded that he "put all the files together … and uploaded them". The Tribunal reiterated its concern that the first two documents were not genuinely separate documents, and he might be the author of both. The applicant did not provide a further response.
Contact Details
The Tribunal stated that the company operating the legitimate "[Moneylender 1]" [Business name 1] service was contacted and provided evidence which may be taken to confirm it was not the author of the document. The applicant did not directly respond to this concern. The Tribunal noted that the address for the entity listed in the submitted [Money lender 1] letter did not appear to be a legitimate business address in Seremban and that the telephone number in the header field yielded no search results. The applicant responded that those details were “the address they gave it to me and that's the phone number they gave it to me", and later that the [Money lender 1] letter was the one a “guy” had “sent to me”. The Tribunal suggested that it did not seem plausible that an illegal money lender subject to criminal law would expose themselves to prosecution by providing such details in a letter that could be submitted to authorities. The applicant did not respond to this concern.
The Tribunal noted the [Money lender 1] letter's 60% interest rate was inconsistent with the legitimate [Moneylender 1’s] maximum interest rate of 18%. The Tribunal also noted the 60% interest-rate appeared inconsistent with the applicant's own prior evidence that the interest rate increased beyond 60% following his default. It was further noted that 60% exceeds the highest recorded interest rate for loan sharks in Malaysia (50%) set out in the country information before the Tribunal . The applicant acknowledged the discrepancy between the letter's stated 60% rate and his previous testimony that the rate had increased but did not otherwise address the concern.
Unrealistic Loan Figures
The Tribunal noted that the letter's figures (RM[amount] paid, RM[amount] outstanding) were round numbers that matched his hearing testimony but did not account for compounding interest or penalties for missed payments, which he had claimed occurred. The Tribunal stated that these round numbers were not plausible or consistent with lending practices. The applicant acknowledged the concern but did not address it.
Loan Amount Discrepancy
The Tribunal noted the letter's stated loan amount of RM[amount] was far beyond the legitimate [Moneylender 1’s] typical lending range of RM1,000 to RM10,000. The applicant acknowledged understanding this concern but did not address it. Based on the issues and concerns raised the Tribunal asked if the applicant still wished the Tribunal to accept the letter as evidence. The applicant said he did and said that he understood that knowingly providing a bogus document is an offence.
The applicant was asked if he had further submissions to make or whether he wished to amend his submissions. He requested a recess but on returning he said he had nothing to add or amend.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal’s fact-finding role
In assessing the credibility of an applicant's claims, the Tribunal must make findings of fact in relation to each claim and its integers. This process necessarily takes place within a statutory framework that places the responsibility on the applicant to establish that they are a person in respect of whom Australia has protection obligations.[7] At the same time, the Tribunal must remain alert to the inherent difficulties faced by applicants who may have fled their country of origin, or who are required to recount experiences of harm, including the effects of trauma, cultural differences, language barriers and the passage of time.[8] Given these factors may affect the applicant's ability to produce documentary or other evidence to substantiate their claims there is no legal requirement that those claims must be corroborated to be accepted by the Tribunal.[9] However, that does not mean that the Tribunal must uncritically accept claims or evidence that it considers implausible, manufactured or otherwise unreliable.[10] Rather it is the role of the Tribunal to assess the veracity of each claim in light of the material facts before it.[11] A reasonable approach to credibility must be adopted, taking into account the totality of the evidence, the particular circumstances of the applicant, and the country information available applicable to it.[12]
[7] Migration Act 1958 (Cth) s 5AAA; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 570 (Brennan CJ Dawson J Toohey J GauLlron J McHugh J Gummow J).
[8] MIMIA v SGLB (2004) 78 ALJR 99, 1007 [7] (Kirby J); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 413 (Gaudron J); UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 1992, [196].
[9] Mohamed v MIMA (1998) 83 FCR 234, 246 (Hill J).
[10] Randhawa v MILGEA (1994) 52 FCR 437,451 (Beaumont J).
[11] Mohamed v MIMA (1998) 83 FCR 234, 246 (Hill J).
[12] Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 46 [27] (French J); SZDGC v Minister for Immigration [2008] FCA 1638,[23] (Finkelstein J); Kaur v Minister for Immigration and Border Protection [2014] FCA 1046, [43] (Mansfield J).
REASONS AND FINDINGS
The principal issue in this case is whether the applicant has made genuine and credible claims. That issue arises because the applicant’s written statement of claims contains narrative passages that are identical in wording and structure to claims made in unrelated protection visa applications. These other claims, which pre-date the applicant’s own, replicate entire paragraphs verbatim except for substituted country names. The applicant was made aware of this during the hearing. He confirmed that the written form was completed by a relative, based on what he told her in English. He did not provide any adequate explanation for how such phrasing could arise independently. He stated only, “that is my word,” but was unable to identify which parts of the claim he had personally dictated or explain how they came to match other unrelated applications.
Post hearing submission
While the applicant could not meaningfully explain why his claims were substantively and textually identical to others’ he sought to provide proof that they were genuine in a post hearing submission. The primary source of purported evidence in that submission is a letter which is purportedly from a Malaysian financial institution (the “[Money lender 1] letter”). The Tribunal does not accept that document is a genuine one for the following reasons:
·Contradictory and Inconsistent Characterisation of Creditor: The applicant’s characterisation of the purported creditor, in a broad sense, internally inconsistent across his evidence. While the post-hearing submission describes [Money lender 1] as an “unlicensed” and, consequently, illegal money lender, his oral evidence stated it was a “private company”, and one which had legal status in Malaysia, insofar as it was able to bring legal actions in the courts and seek the enforcement of court orders. In the Tribunal’s view that is only possible if the entity is a lawful one. However, the applicant separately claimed the entity was a criminal organisation enforcing debts by illegal means. These mutually exclusive claims – a legitimate entity versus an illegal criminal enterprise – establish an inconsistent narrative regarding the creditor's nature and suggest that it is fictional and did not write the letter.
The applicant’s personal letter identifies the attached [Money lender 1] letter as being sent from an “unlicensed money lender”. DFAT indicates that unlicensed money lending is illegal and subject to serious criminal penalties, particularly where it involves interest rates above 18 percent.[13] The Tribunal considers it implausible that any entity would willingly expose themselves to the risk of prosecution by revealing their location or lending practices to a third party via debtors. This inherent contradiction in the letter's own claims significantly undermines its authenticity, even under the premise of an illegal lender.
·Improbable, Unconscionable and Contradictory Interest Rate: The [Money lender 1] letter specifies a 60% interest rate. This rate exceeds DFAT's reported highest interest charged by loan sharks (50%) and the legal maximum for licensed unsecured loans in Malaysia (18%) .[14] Furthermore, the 60% interest rate is inconsistent with the applicant’s evidence which is that, following his first default, the interest was increased to an unspecified amount above 60%. The Tribunal considers this inconsistency with the country information and with the internal testimony of the applicant to be further evidence that the [Money lender 1] letter is not genuinely from a creditor (legal or illegal) but is designed to mislead the Tribunal as to the legitimacy of the statements the applicant made at the hearing.
·Unrealistic Financial Ledger: The letter specifies whole figure sums for payments (RM[amount]) and outstanding balance (RM[amount]) that match general amounts stated at the hearing. These figures do not account for compounding interest or penalties for missed payments referred to by the applicant in his other evidence. The stated ledger is unrealistic in the circumstances. Considered with other evidence, it is not accepted as a true account of the applicant’s purported debt and suggests it was not written by an actual creditor.
·Non-Existent Entity Confirmation: The Tribunal undertook direct verification with the legitimate Malaysian [Business name 1] service "[Moneylender 1]" (operating via[Moneylender 1 website]) and accepts the evidence it provided (set out above). The Tribunal accepts that the financial company providing that evidence is a legitimate Malaysian [Business name 1] and the evidence it gave is true and correct. The Tribunal also considers that, based publicised policies, that registered financial institution would decisively act against any “private bank” passing itself off as the legitimate [Moneylender 1] service. In the Tribunal’s view, this makes it less likely that the letter is from a company or other entity operating in Malaysia under the [Moneylender 1] name and more likely that that name was used to mislead the Tribunal about the authenticity and legitimacy of the letter.
·Fabricated Contact Information and Address: The telephone number in the [Money lender 1] letter is unlisted on the legitimate [Moneylender 1] website and yields no internet search results. The physical address provided for the purported institution does not match the legitimate [Moneylender 1’s] corporate address and, upon verification, links to an unoccupied lot. This indicates the letter's contact details are fabricated, designed to create a false sense of legitimacy for a non-existent entity, rather than representing an obfuscation by an illegal or ‘private company’ entity.
·Contradiction with Legitimate Lender's Policies: The [Money lender 1] letter's purported loan conditions (RM[amount] with 60% interest) contradict the legitimate [Moneylender 1] service’s stated policies. Their website indicates typical lending sums between RM 1,000 and RM 10,000, with maximum interest rates of 12% to 18%. These discrepancies in loan amounts and interest rates from the legitimate company's advertised services align with the applicant's claims, indicating the terms were created to fit his narrative rather than reflecting a genuine lending operation.
·Document Production and Digital Characteristics: Both the applicant's personal letter and the "[Money lender 1] letter" are contained within the same PDF document, indicating they were assembled into a single file. The two letters share the same style, margins, and use a consistent font, "GdPictureBackupFont." This uniformity is improbable for independent documents from separate sources, especially a financial institution (whether a private company or otherwise). The use of an error handling font across the first two documents also indicates that they were made together and a non-standard font substituted on merge with the third. Identical image-stamp signing techniques across both letters, applied in close temporal proximity to each other, is further evidence that a single person was responsible for those graphical elements and subsequently the authorship of the letters they attest to.[15]
[13] DFAT Country Information – Malaysia (June 2024), [3.149].
[14] DFAT Country Information – Malaysia (June 2024), [3.149].
[15] The "[Applicant surname shortened]" signature stamp's macrodata modification timestamp of 30 May 2025 at 16:49 predates the PDF's creation timestamp (30 May 2025 at 17:14) by 25 minutes. This establishes that the stamp, or the document in which it was first positioned, existed and was modified prior to the PDF's generation. The entire PDF, encompassing both letters and stamps, was created at 17:14 and last modified at 18:40 on the same day. This tight timeframe (1 hour and 26 minutes from creation to final modification), coupled with the "[Applicant surname shortened]" stamp's earlier modification time and the applicant's own stamp being inserted one minute after PDF creation, points to a single, continuous, and rapid process of compilation for the combined document. This circumstance undermines any assertion that the "[Applicant surname shortened]" stamp represents an independent act of 'signing' by the purported '[Money lender 1]' entity occurring concurrently with the PDF's finalization. Instead, it is consistent with the stamp being a prepared element utilized by the person assembling the entire document within a concentrated period.
Based on the totality of the evidence, the Tribunal finds that the [Money lender 1] letter is a bogus document.[16] The document purports to have been issued by a person acting for “[Money lender 1]” but was not. It is, on its face and contents, a counterfeit communication that presents as a genuine statement from a third-party creditor, but the Tribunal is satisfied that it was in fact created and authored by the applicant himself. The Tribunal raised concerns with the applicant about the letter’s authenticity and did not receive a satisfactory explanation.
[16] Act, s 5.
In light of the Tribunal’s findings that the letter was authored by the applicant, that it contains false claims about the alleged loan, and that it was produced at the Tribunal’s invitation as supporting evidence of debt, the Tribunal considers that the applicant was aware the letter was not a genuine communication from a creditor. These findings are relevant to the weight the Tribunal gives to the applicant’s evidence overall, and to his credibility as a witness. The Tribunal does not accept the [Money lender 1] letter as genuine or reliable and gives it no weight. Nor does the Tribunal accept it as evidence capable of supporting the applicant’s claims in his application or at hearing. The Tribunal has considered the remaining materials provided post-hearing and identifies no other probative evidence capable of establishing the existence of the alleged debts or supporting the claims under s 36 of the Act.
Evidence given at the hearing
Noting that the applicant’s oral evidence at the hearings sought to advance and support his written claims, which were verbatim reproductions of claims made in other, unrelated matters, the Tribunal gives that oral evidence limited weight. However, it has considered whether that additional evidence might establish any credible and reliable independent claim. The Tribunal does not accept and considers that the applicant’s oral evidence is affected by internal inconsistencies, contradictions, and implausible evidence that limits its probative value and credibility.
At the hearing the applicant initially claimed that his fear arose debts incurred through a guarantor arrangement for a friend in Malaysia. This version of events was absent from his written application, which instead stated that the loan was incurred to fund his mother’s critical medical treatment. When confronted with this discrepancy, the applicant modified his account to include both explanations, stating that he borrowed RM[amount], giving RM[amount] to his mother and RM[amount] to his friend. The Tribunal does not accept this reflexive attempt to reconcile incompatible accounts and considers it to contribute to, rather than alleviate, concerns about the credibility of his narrative.
The Tribunal finds the circumstances of the alleged loan presented at the hearing to be inherently implausible. The applicant claimed that he, at [age], while unemployed and attending school, was lent RM[amount] (approximately AU$[amount]) by a private lender at 60% interest. He stated that the only form of security was a photograph and a copy of his identification. The Tribunal does not accept that any lender, licit or illicit, would extend such credit on these terms. That is reinforced by the country information which indicates that such a rate of interest would be egregiously atypical and far beyond the recorded highest interest rate charged by loan sharks (50%).[17] His explanation that private lenders “don’t care” and “do whatever they want” is not plausible or commercially rational in the context oof the amount loaned, the applicant’s age and financial capacity, and the apparent lack of any lawful enforcement avenue for the lenders. It is also inconsistent with the applicant's other claims that his mother could not secure a loan because “she had [other] debt on her name”. If the lenders genuinely didn't care and were so cavalier with their money to lend to unemployed teenagers, it is not plausible they would have refused a working adult simply on the basis that she had other debts. The applicant's own evidence was that he was able to secure the loan in these implausible circumstances because his parents were the ones who were to service it.
[17] DFAT Country Information – Malaysia (June 2024), [3.149].
The applicant’s evidence regarding his mother’s illness and their family’s financial circumstances was inconsistent. He gave conflicting accounts of whether his mother became ill before or after the loan was taken and altered his answers during the hearing. He also initially stated that he was not working in Malaysia, but his written application claimed he had to take leave from work to care for his mother. When this inconsistency was put to him, he claimed it should have referred to school. The applicant also separately stated that his mother had only ceased working six months before the hearing, whereas the written application said she had been critically ill and unable to work since 2017. The Tribunal does not accept that these contradictions can be attributed to translation errors, particularly given the applicant confirmed at hearing that the written application was reviewed, and the claims were true and correct.
Finally, the applicant delayed over four years before applying for protection. He arrived in Australia in June 2017 and applied in August 2021. He said he was unaware that such a visa existed until 2021 and specifically denied that he was made aware of the protection pathway by other family members. He asserted that none of his family members living in Australia were applying for protection. Only when departmental information identifying another person at his residence was raised did he admit that person, his maternal grandmother, had also applied for protection with him, at which time he altered his evidence to suggest that the two of them were both unaware of the protection pathway. At the further hearing, the applicant, presented with further departmental and Tribunal records, identified three further family members who lived with him who have active protection applications. Two of those family members applied for protection before the applicant came to Australia. He lived with those family members for the entire four-year period he was in Australia. The other person, who was sometimes referred to as his sister and at other times his cousin, has, like his maternal grandmother, applied for relevant tourist and protection visas on identical dates to the applicant and flown to and from the country at the same time as him. Again, the applicant was only forthcoming with these matters when the information was put to him, and he was unable to address the Tribunal’s concerns arising from that information. That is, the information indicates that he must have known about the protection pathway in these circumstances and therefore he does not have a reasonable explanation for the delay in applying for a protection visa himself.
Furthermore, the movement patterns, when considered against the unrelated nature of the claims of people who are related to each other, coming from the same place to Australia at the same time, and make applications at the same suggests that there has been a collective design in, and purpose for, the making of claims, rather than the applicant’s claims being genuinely individualised and his own. That is just reinforced by the boilerplate nature of his written claims. The Tribunal does not accept the applicant’s answer that his family accompanied him because he was so young, given those family members adopted an identical migration approach once onshore, making separate and distinct claims to him and not returning to Malaysia, even though he was in the care of his uncle and aunt in the same address he has lived in the whole time he has been in Australia and they could have left him there to return home. The Tribunal finds the applicant’s very significant delay in making his protection application, when considered against the broader credibility issues and group migration information, indicates the applicant is not a person who fled their country in fear of persecution or significant harm.[18] It follows that the Tribunal is not a person who genuinely fears returning to their country of origin based on the events that he says caused him to flee.
[18] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, 349 ( Heerey J).
In conclusion, the Tribunal finds that the applicant’s written protection visa claims were not authored by him and are not based on his own experiences. Considering the extent of the replication, the applicant’s failure to explain it, and the way the claim was compiled, the Tribunal finds that the claims in the written application were not the product of the applicant’s own words or experiences. The Tribunal finds that the written account was compiled from other sources and presented as the applicant’s own narrative when it was not. The Tribunal finds the narrative to be fabricated and not reliable evidence of harm or risk. The applicant’s oral evidence was further undermined by significant inconsistencies, implausibilities, and evasive responses under questioning. The Tribunal does not accept the applicant’s post hearing submissions as evidence of his claims and finds that the [Money lender 1] letter contained in that bundle was bogus. That finding further reduces the weight given to the credibility of the applicant’s evidence generally. The Tribunal does not consider that the applicant has provided any objectively credible evidence in support of his claims.
The Tribunal does not accept that the applicant incurred a debt to a money lender, that he was threatened or followed in Malaysia, or that he faces any real chance or real risk of harm on return.
Reasons for Decision
Having found that the applicant’s protection visa claims were not authored by him and do not reflect his personal experiences, the Tribunal finds that the claims are fabricated and cannot be relied upon as evidence of harm. The Tribunal has also found that the applicant’s oral evidence and post-hearing evidence, which seek to advance and prove his written claims are not credible or reliable and does not accept that evidence of proof of past harm or future risk of harm at any threshold. The Tribunal is not satisfied that there is any other objective evidence that the applicant will face harm as a foreseeable consequence of returning to Malaysia.
As satisfaction that there is a real chance or real risk of harm is a necessary element of both arms of protection provided for by s 36(2)(a) and s 36(2A), the applicant is not a refugee and is not a person entitled to complementary protection under the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Dates of Hearing – 19 May 2025 and 19 June 2025
Representative – N/a
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
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.
…
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