2214805 (Refugee)

2214805 (Refugee) [2024] AATA 1175 (8 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2214805

COUNTRY OF REFERENCE: Malaysia
MEMBER:Paul Windsor
DATE:8 January 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 January 2024 at 8:47 am
CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit and Family Court remittal – particular social group – victims of loan sharks – kidnapping – fear of killing – return visits to Malaysia – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 March 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 2 February 2016.
In his Protection visa application, the applicant stated he was born on [date] in [Town 1], Sabah state, Malaysia. He stated he is a Muslim. He did not indicate he belonged to any particular ethnic group. The applicant indicated he had never married or been in a de facto relationship. He indicated he departed Malaysia legally on [a day in] November 2015 and arrived in Australia [the next day], entering on a Visitor visa.[1]
[1] See the Departmental file.
In his Protection visa application, the applicant indicated he left Malaysia because he had a business debt that he could not repay. He said he incurred a debt to an ethnic Indian Malaysian supplier/creditor who had connections with Indian gangsters. He indicated he was kidnapped and held for two weeks, then released on the basis that he would pay the debt within 3-4 weeks. He stated that, when he could not pay, he was threatened that he would be killed.[2]
[2] Ibid.
After considering relevant country information, the delegate refused to grant the visa, finding that the applicant could access effective protection from the Malaysian authorities (the Royal Malaysia Police (RMP) and judiciary) in relation to any threats he faces from illegal money lenders, criminals and gangs. In relation to the complementary protection criterion, the delegate found the applicant could access protection from the RMP and other Malaysian authorities such that there would not be a real risk that he would suffer significant harm if he was returned to Malaysia.
The applicant sought review of this decision on 16 March 2016. He provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
On 11 April 2017, the Tribunal (differently constituted) affirmed the delegate’s decision, following a hearing held on 24 February 2017.[4]
[4] See Tribunal file 1603560.
That decision was set aside [in] September 2022 by the Federal Circuit and Family Court of Australia (FCFCA). In essence, the court found that the decision of the Tribunal was affected by jurisdictional error because the Tribunal made an adverse credibility finding based on an unwarranted assumption with no evidential basis. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the current Tribunal on 9 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims
The applicant’s claims from his Protection visa application are summarised as follows:[5]
[5] See the Departmental file.
·He left Malaysia because he was in debt there. He fears he will be abducted, mistreated, harmed or killed if he returns to Malaysia.
·He had a business and most of his business was conducted in credit.
·He would get [products 1] from his supplier, who is an Indian Malaysian, on credit and sell the [products 1] to his customers on credit, receiving payment from them on a monthly basis. He would then pay his supplier in instalments after he received money from his customers.
·In about mid-2015 he made a business deal with a Chinese businessman. The Chinese businessman bought ‘[products 1]’ worth RM [amount], paying with eight cheques worth RM[amount] each (they agreed that the Chinese businessman could put a future date on the cheques). The applicant got these [products 1] on credit from his supplier. The applicant handed over the cheques to his supplier, when it came time for him to pay his supplier. When the cheques were presented to a bank, however, they bounced.
·His Indian Malaysian supplier has close ties with other gangsters and the police. He asked the applicant many times to pay the money owed, but he could not, due to the loss his business had sustained.
·In about August 2015, the Indian Malaysian businessman threatened to kill the applicant if he did not pay the money owed by the end of the month.
·In about early September 2015, a group of people who are criminal associates of the Indian businessman came to his house and took him with them. He was held for about two weeks. They tortured him. He was released when he assured them he would make payment arrangements with them in about 3-4 weeks.
·He could not arrange the money, however, and was threatened that he would be killed. He went to a friend’s place and stayed with his friend. They tried to capture him. He was told that they visited his house frequently looking for him.
·He could not seek help or make a police report as the businessman is a very rich and powerful man who has close ties with criminals and the police. The authorities are corrupt. He feared that if he sought help from the authorities they might inform the businessman of his whereabouts and his criminal associates might capture and harm him.
·He could not move to another part of Malaysia as they can find him in any part of the country and mistreat him.
·He then made arrangements to come to Australia, He arrived [in] November 2015 to save his life.
Evidence from the first Tribunal hearing held on 24 February 2017[6]
[6] See Tribunal file 1603560.
Contrary to what was stated at question 101 of his Protection visa application form, the applicant indicated he received assistance in preparing his Protection visa application. He said he paid $500 to a person he was introduced to by a friend. He said the person was not a registered migration agent or a lawyer. When asked if he was sure that everything in the application was true and correct as far as he knew, the applicant said the person added some things and missed others, for example, his mother’s date of birth is [year] not [year] as stated in the application.
When asked if there were other mistakes, the applicant commented that the person who completed his application did not include information regarding racial discrimination he has suffered in Malaysia due to his appearance. He indicated that people in Malaysia do not see him as Malaysian because he is not ethnic Malay, Chinese or Indian (the three major ethnic groups present in Malaysia).
The applicant confirmed that his parents are both deceased. He indicated his mother was born in Sabah state in Malaysia while his father was born in [Country 1]. He said he has never been to [Country 1].
The applicant confirmed he has never married or been in de facto relationship and that he has no children. He said he had a girlfriend in Malaysia and they would go to restaurants together but did not live together, commenting that Malaysian religious authorities could jail unmarried people for living together. He indicated he wanted to marry but when he went out with ethnic Malay women people often would query the women why she was with an ‘English’ guy.
The applicant said he was also stopped many times by the police, for example if he was in a taxi with a Malay girl, and they would abuse him saying the equivalent of ‘how dare you’ to him in Malay. He said his was because he did not look like a Malay Muslim due to his facial appearance and they thought he was an English guy. He said he also was stopped when he was doing business and asked to show his identity card.
When queried about his education (he did not declare any in his application), the applicant said he did not attend any schools only a madrassa (religious school). He indicated he also had completed an English language course. He commented that he wanted to go to an English-medium school rather than a Malay language public school but his father said he could not afford the cost.
Contrary to what was stated in the application form (which did not indicate his ethnicity or that he spoke Pashtun), the applicant indicated he speaks Malay and Pashtun and a little English (which his mother taught him). When queried about this, the applicant said the person who filled out the form said that would be okay. He added that he learnt Pashtun from his [Country 1] clients. He commented that the man who helped him with the application said if he mentioned he spoke Pashtun it could cause him trouble as he would be asked what he is doing in Australia.
The applicant confirmed that he is a Muslim but indicated his practice of his faith is limited to Friday prayers.
The applicant indicated he left Sabah state in [year] and went to Melaka state (in Peninsular Malaysia) because a fellow [Country 1 person] told him Sabah is ‘backward’ and there were better business opportunities in Melaka.
The applicant indicated that he worked in a [products 2] shop, then worked as a door to door salesman selling [products 1] before he started his own business in 2000. He indicated he bought [products 1] on a wholesale basis and then on-sold the goods to retail shops run by [Country 1 people]. He indicated he had a van that he used to transport the goods. He said he obtained the goods from suppliers on credit and also provided the goods on credit to his customers, who paid him later.
When asked what his income was, the applicant said he made around RM 5-6,000 per month.
When asked about his overseas travel, the applicant confirmed the advice in his application that he visited [Country 2] in the 2000s but also indicated that he had visited [Country 3] regularly (more than 30 times). He indicated he would [travel] into [Country 3] from [City 1] in [State 1] for one night stays and would have a massage and food.
When asked why he came to Australia (in November 2015), the applicant said he had a debt and it became dangerous for him in Malaysia. He said he was on very good terms with suppliers from whom he bought goods on credit. He indicated a ‘broker’ told him there was a Chinese customer who wanted to buy goods and the broker said he would give a guarantee/give a warranty if he sold to this man, assuring the applicant that the man is a good customer. The applicant indicated the Chinese man bought RM [amount] worth of goods, paying with eight cheques for RM [amount] each. He commented that he had a good relationship with an ethnic Indian material supplier and advised him that payment for the goods would be by cheque. He indicated, however, that when the supplier took the first cheque to the bank it ‘bounced’.
When asked, the applicant said this happened in mid-2015, adding that it was in June. He indicated his supplier accused him of being dishonest with him and gave him one month to organise the outstanding funds, even if he had to go to an ‘Ah Long’ (loan shark). He said he was threatened that if he did not pay he would ‘not be surviving’. The applicant indicated the Chinese man had taken the goods ‘back’. The applicant also said he did not pay any of the money owed to his supplier.
The first Tribunal queried the applicant why he went to [Country 3] in October 2015 if he had this debt to pay. The applicant said he had ‘tension’ and it was cheap to go to [Country 3] for one night [detail deleted]. The applicant also indicated that he had customers in [State 1] so would go there to collect money owed from his customers/creditors.
The applicant said he was threatened by ethnic Indian gangsters. He added that he was aware of a [Country 1] customer who was killed by three Indian gangsters. When asked, he said the first threat occurred when the first cheque bounced.
The first Tribunal queried the applicant why an experienced businessperson like himself would have got himself into such a situation. The applicant indicated he was influenced by the middle-man broker, who advised him that he had done a lot of deals with the Chinese man and that he always paid in cheques. When asked why he accepted this recommendation, given all his experience, the applicant said it was because of the profit that he was to make, which was almost RM [amount].
The applicant said that, after he was threatened, he tried to hide. He said four ethnic Indian men came to his home one day in early September and said the ‘boss’ was at a hotel restaurant and wants to have a chat with him. He was sat in the back of their car between two of them. He indicated he soon realised that the car was heading away from the restaurant and when he asked where they were going the guys pulled out ‘parang’ (long knives or machetes) and told him to shut up. He said they took him almost [distance] to a [location] in Seremban (in neighbouring Negeri Sembilan state).
The applicant indicated there were two houses and he was taken inside one, pushed into a room and locked inside. He said he was held there for two weeks. When asked why he was held there for two weeks, given he had no family to seek ransom from, the applicant commented that the gangsters operate by their own rules and laws. He added that they can kill you and put little pieces of the body in bags. When queried that their objective would have been to get the money back, the applicant commented that their objective was to make him so fearful that he would organise the money any way he could. He said he told them that while he was sitting there he was not making any money.
The Tribunal asked if he was hurt or assaulted in any way. The applicant said they gave him a couple of slaps on the back of his head when they pushed him into the room but nothing else. The Tribunal queried why it was stated in his application that he had been tortured by them. The applicant indicated he was referring to the mental stress he suffered due to their threats that he would be killed.
The Tribunal asked the applicant why he did not stay in [Country 3] when he went there in October 2015 if he had been mentally tortured due to death threats in the previous month. The applicant replied that he was doing collections around Malaysia, including in [State 1] near [City 1] and just stayed in [Country 3] for a brief time. He added that he changed his mind and decided that he would not give them any money but would run away from them. When queried that he did not run away but instead returned to Malaysia, rather than remaining in [Country 3] or travelling to Australia from [Country 3]. The applicant said Malaysian citizens can only depart from Malaysia. When queried why this should be so, he commented that AirAsia fares (from Malaysia) were cheap and they fly three times a day. He indicated he did not investigate the cost of flights to Australia from [Country 3] so did not know if cheap flights were available from [Country 3] to Australia.
The applicant indicated that he stayed with a friend in Malaysia and his friend organised all his travel to Australia and got him to the airport safely. He said he did collections, including in [Country 3] where he had a customer who sold carpets, but did not have enough money to stay in [Country 3]. He also indicated that the visas he obtained only allowed him to stay in [Country 3] for a maximum of 15 days.
When asked, the applicant indicated he did not seek police protection in Malaysia because ethnic Indians have a lot of influence in the police department, including a lot of ‘their own people’ working undercover in the department, and therefore can do anything. When challenged that country information suggests the Malaysian government has targeted Indian gangs and that gang members have been shot by the police, the applicant commented that the media is controlled and that to be successful in business a person needs to be connected to a gang. He said the Indian gangs have connections in the police, immigration department and in government.

In relation to his not having sought police protection, the applicant commented that he was once the victim of theft when an ethnic Malay guy entered his home and stole his mobile phone. He said when he reported the incident to police, the police officer got angry with him, saying how dare he report a Malay guy.
When asked to elaborate on his claims to have suffered racial discrimination in Malaysia, the applicant indicated he was harassed by immigration authorities and police because of his appearance. He said after he moved to Melaka from Sabah his home was raided three times by immigration officials. He said they took him away, investigated, and once they checked out all the documentation about him they let him go. When asked if he was harmed, the applicant commented that when he told them he was a Malaysian they would raise their hand and tell him not to lie. He said they did not hit him but they abused him, commenting that he had come from Sabah and was not a good person. He indicated this was because of his fair facial appearance as he looked like a foreigner. He said he was advised that if he moved around Malaysia he should tell the authorities where he is going and also should report to the head of the new kampung (village) when he arrives. He also indicated that he was stopped at a police roadblock when travelling late at night. He indicated that when he showed them his driver’s license they asked to see his passport. When he showed his identity card they still asked to see his passport to prove he is Malaysian. He said he was taken to their office and when they were satisfied he was a Malaysian he was told that next time he should get out of the car to show his identity card.
The applicant said he was once held for 24 hours while they checked whether he was a Malaysian. He said could not remember when this occurred as it was a long time ago.
The applicant also said that when he goes to a hospital he is told they need to investigate his identity before they will treat him, unlike ethnic Malays who come in for treatment.
When asked why these matters were not mentioned in his application, the applicant said the person who assisted him told him he could mention these matters verbally at a later time.
When asked why he did not go to the police regarding the Chinese businessman who deceived/defrauded him, the applicant indicated that if such a matter went to court the defendant would be asked what they can pay and they would say only a very small amount, such as RM 5 per month, which would be accepted, meaning he would never get the money back. He added this is why the ethnic Indian businessman did not take him to court. He also commented that the police would not support him but would ask him for money.
The applicant commented that while he does not have much in Australia, he is safe here. He added that he can work until he is 65 but in Malaysia it is difficult to get a job once a person is past 40 years of age. He indicated he is now at retirement age and is not eligible for a pension in Malaysia. He indicated he has no family in Malaysia, including any siblings or friends to look after and support him.
Evidence from the hearing held on 9 November 2023 with the current Tribunal
The applicant indicated that he met the man who assisted him with his application by chance when he was [Working] in [Town 2] after he arrived in Australia. He said the man was as Pashtun speaker. He said he paid the man $500 for his assistance.
When asked why his application made no mention of him being of Pashtun ethnicity, a Pashtun speaker or the discrimination he claims to have experienced in Malaysia due to his ethnicity and appearance, the applicant said the man told him if there was information missing he could raise these matters later.
The applicant indicated his father, who was born in [Country 1], had been a soldier in the [Country 2] army and served in Sabah before independence and before Sabah joined the Malaysian Federation. He said his mother was a native of Sabah.
The applicant indicated that his parents passed away when he was a child of [age range] years and he was brought up by members of the [Country 1]-Malaysian community in Semporna, Sabah. He confirmed he has no siblings. When asked, he indicated the [Country 1]-Malaysian community in Sabah numbers in the thousands.
The applicant confirmed that he did not go to school, commenting that they lived in a remote area and he was not so interested in going to school. He said his mother wanted him to attend an English-language school but they could not afford it and he was not interested in going to a Malay-language school. When asked, he indicated he can speak Malay but is not very fluent.
The applicant said he went to Melaka state in 1992 because he was told there were opportunities to open a small business there. He indicated he lived in rented share accommodation in a kampung (village) just outside the capital (Melaka City) where it was cheaper. He said business was good there as there were [Country 1]-Malaysians involved. He indicated he mainly dealt with [Malaysian Pashtun speakers] but also had dealings with [people of another ethnicity].
The Tribunal queried the applicant why he was in [State 1] state so frequently that he was able to [travel] into [Country 3] at [City 1]. The applicant said he expanded his business across [Malaysia] and would travel to places such as Kuala Lumpur, Seremban in Negeri Sembilan state, Ipoh in Perak state and [City 1] in [State 1] state.
The applicant indicated that when he first came to Australia he [worked] in [Town 2] then obtained work in Melbourne [specified]. He indicated he is not working now due to medical conditions and receives support from [Agency 1]. He said the community assists him with accommodation and utilities.
The Tribunal asked the applicant how he came to have a close relationship with an ethnic Indian businessman, including given his lack of fluency in Bahasa Malay. He said he had sufficient Malay language to communicate with this man, whose name was [Mr A]. He indicated that [Mr A] was the main supplier in the market for [products 1] imported from overseas. He indicated [Mr A] supplied [specified range of products].
When asked, the applicant indicated he had known [Mr A variant] for around 2-3 years before his claimed problems in mid-2015. He indicated that his business practice of receiving goods from [Mr A] on credit and not paying until a month later was the normal practice in the market there.
When asked, the applicant said his normal profit per month was between RM 6-8,000. He indicated his profit margin was 10-15%. The Tribunal observed that this means he was selling between RM 40,000 to RM 80,000 worth of goods each month.
The applicant indicated that he would buy from several different suppliers depending on who had good quality and reasonably priced goods on offer.
The Tribunal suggested that his purchasing RM [larger amount] worth of goods from a single supplier was atypical given RM 80,000 worth of goods would generate RM 8,000 in profit if he could on-sell the goods at a profit margin of 10 per cent. The applicant indicated that his usual range was up to RM 100,000 but said he decided to do something completely different. He said the goods were not for him but he was a middle person and was to get some commission for his role as a middleman.
The Tribunal observed that by taking RM [amount] worth of goods on credit, he was taking on around [multiple] times the risk he would normally carry and questioned why he would do this. The applicant said it was a matter of trust. He said he had worked with [Mr A] for a long time and [Mr A] knew he was very honest and was keen to get more business. The Tribunal asked how he built that level of trust with [Mr A] to the point where [Mr A] would now give him [multiple] times the value of goods on credit than he had previously. The applicant said the usual RM 50-80,000 threshold did not mean that [Mr A] would not give him more credit than that, but rather reflected what he (the applicant) could afford and do business with. He suggested [Mr A] would have given him much more if he had wanted it because [Mr A] trusted him and was interested in increasing his profits. The Tribunal commented that it is not sure it accepts that, as a businessman also has to consider the person’s capacity to pay and the risk of losing money. The applicant reiterated that this was all very normal because business in Malaysia is all run on trust and credibility built up over days and years.
The Tribunal asked the applicant why he had trust in and thought the Chinese man was credible. The applicant said there was a broker in the market who told him there was an ethnic Chinese Malaysian based in Ipoh, the capital of Perak state, Malaysia.
When asked, the applicant said the broker was an ethnic [Country 1]-Malaysian. He said he had known him for a long time. He indicated he went ahead with the deal based on the broker’s word that the ethnic Chinese Malaysian man was trustworthy. He indicated the broker told him he would get a big chunk of commission from the deal. The Tribunal asked the applicant if the broker was also taking a cut. He said he was. When asked, he said the broker’s name was ‘[Mr B]’.
The Tribunal asked the applicant if he had made any other deals with the Chinese Malaysian man. He said he had not. When asked if [Mr B] had, the applicant said he came with [Mr B’s] recommendation. The Tribunal asked whether he checked with [Mr B] about his dealings with this man. The applicant indicated he did and that [Mr B] said he could trust this man. The applicant added that [Mr B] said he would be responsible if anything went wrong. When asked if [Mr B] told him about any deals he had done with this man, the applicant said it is word of mouth that counts most, adding that [Mr B], who is a [Country 1] Pashtun, gave him a reference and said he was very credible.
The Tribunal asked what went wrong. The applicant said the ethnic Chinese man gave him eight cheques for RM [amount] each which he gave to [Mr A]. He said the cheques were dated and normally they can be cashed-out within one month after they are issued but when they were taken to the bank [Mr A] was not able to cash out any of them.
When asked, the applicant said he did not get any of his profit, which was to have come from the broker once the deal had been completed. The Tribunal queried the applicant whether the goods would have to have been sold for RM [amount] to generate the RM [amount] profit. The applicant said his profit was to come from the broker. He said he also got a cheque from the broker for RM [amount]. When queried that earlier he had indicated he did not get any profit from the deal, the applicant said he was unable to cash-out the cheque he got from the broker.
The Tribunal asked what [Mr B] did in response, given he had assured the applicant that he would be responsible if anything went wrong. The applicant said [Mr B] did not answer his calls. The Tribunal observed that he had indicated previously that he trusted [Mr B] because he was a Pashtun and an honourable man and asked the applicant what happened to [Mr B’s] vow to be responsible, in accordance with the Pashtunwali code of honour, which appeared to be the basis for his trust in [Mr B]. The applicant commented that in a business like his, word of mouth is what counts most. He added that he knew [Mr B] from his contact with him in the market, but did not know where he lived so could not seek to find him at his home. The Tribunal queried whether he asked other people at the market if they knew where [Mr B] lived. The applicant responded that [Mr B] was always moving around and said he went to many places looking for him.
The Tribunal asked the applicant if he went to Ipoh in Perak state to try to find the Chinese Malaysian man. The applicant said that [Mr B] was the middleman and he had no reason to have direct contact with the Chinese man. He added that he was under immense pressure from [Mr A] and tried to use his energy to locate [Mr B].
The Tribunal asked the applicant why he did not go to the police about [Mr B] and the Chinese man. He said he had no credible evidence because it was all done through word of mouth and they did not keep any paper records (such as invoices and receipts). The Tribunal asked about the cheques he said he had been given. The applicant said they were all with [Mr A].
The Tribunal queried why [Mr A] didn’t ask him to go to the police and say the Chinese Malaysian man committed fraud and get them to investigate. The applicant said [Mr A] didn’t care and just told him he had to pay.
The Tribunal asked the applicant whether [Mr A] was at the house he claims he was taken to in Seremban by ethnic Indian gangsters. He indicated he was and that he said to the applicant that he wants his money, he does not care where the applicant gets it from and that the applicant can’t leave until he gets the money. When queried how [Mr A] expected him to get such a sum of money, the applicant said [Mr A] expected him to get in touch with family and friends. He commented that [Mr A] did not know he has no family.
The Tribunal observed that, if he was earning RM 6-8,000 per month, it would seem to be impossible for him to raise RM [amount]. The Tribunal asked if he sought to explain to [Mr A] that it was impossible for him to raise that amount of money. The applicant reiterated that [Mr A variant] just thought he had relatives and family who could assist him. The Tribunal asked the applicant why he didn’t explain his circumstances to [Mr A] and seek his assistance to locate [Mr B] and the ethnic Chinese businessman. The applicant said he did explain this to [Mr A] but [Mr A] said he would keep him there while they investigated whether he had relatives or not. The Tribunal observed they would have found out that he had no relatives and therefore would be unlikely to be able to pay. The applicant said he was held for 15 days and then they realised he had no family and no friends who would come so he told them to let him go so he could get some loans and they agreed to release him and gave him one month to get the money.
When asked if he was mistreated while he was held, the applicant said they did not beat him but showed him they had knives and weapons to scare him. He said he was kept locked-in a room but could see the gangsters were around. When asked, he said [Mr A] was there on the first day and then came back on the last day he was held. [Mr A] told him to see if he could raise the money from a loan shark. He said he told [Mr A] if he released him he would see if he could raise some money and also would do his collections.
Observing that the applicant had indicated in his written statement of claims that [Mr A] was a very rich and powerful man who had close ties with gangsters, the police and corrupt authorities, the Tribunal suggested that the best way for [Mr A] to get his money back would seem to be finding [Mr B] and the ethnic Chinese businessman, using his contacts in the police and gangsters to find them. The applicant commented that he had never said that [Mr A] has connections with corrupt police. He commented that there must have been some misunderstanding and what he was saying is business people need some gangster support. He suggested that [Mr A] must have chased [Mr B] and the Chinese man in his personal capacity after the applicant left Malaysia.
The Tribunal expressed the view that a loan shark would not loan him RM [amount] because there was no way he could possibly meet the interest repayment, let alone repay the principal, given his monthly earnings and lack of any assets. The applicant suggested it was expected he would try to get money from multiple loan sharks as well as use any cash he had and any money he could raise from friends. He said that is why he ran away.
The Tribunal asked the applicant if he tried to negotiate with [Mr A] to pay him instalments. He indicated [Mr A] made it clear this was not an option and gave him a month to repay all the money.
The applicant also indicated that he had RM [amount] in cash.
The Tribunal asked the applicant what happened when the one month period was up. He said he knew he couldn’t raise the money so he had to leave the country.
The Tribunal queried the applicant that he indicated in his application that he could not stay at his home address and so stayed with a friend but was told they visited his house frequently looking for him. The Tribunal asked why he needed to do this if they gave him one month to raise the money. He said they wanted to make sure he was still there and had not disappeared. The Tribunal queried the applicant that wouldn’t he have agitated them by staying with a friend. He said he was under pressure and stressed. He said he stayed with a friend named [Friend A] who lived in [Town 3], about [distance] km from his home.
The Tribunal asked the applicant why he decided to go to [Country 3] from [in] October 2015. He said he had customers there and was doing collections. The Tribunal asked why he returned to Malaysia rather than depart for Australia from [Country 3]. He said the cheapest and most accessible/convenient option was to leave through Malaysia. He said it would take him [time] to get to [the departure point in Country 3]. He added that his month also wasn’t over yet so he was in no danger in Malaysia. The Tribunal queried the applicant it understood that when he went to [Country 3] the one month deadline had already expired and these people had threatened to kill him. The applicant said that was when he was in Australia and friends had let him know people were looking for him. The Tribunal observed that it had constructed a time-line of events based on his claims which indicated that by the time he went to [Country 3] [in] October 2015 the deadline he had been given to repay the money had already expired. The applicant said he was under mental pressure and confused the dates.
The Tribunal asked the applicant if the Electronic Travel Authority (ETA) Visitor visa he obtained to come to Australia had been granted before he went to [Country 3]. He said he can’t remember. The Tribunal asked why he would not have travelled as soon as he got the ETA. He said he can’t remember. The Tribunal asked the applicant if he had ever considered travelling to Australia before this time. He said he had not. The Tribunal asked him if he had ever obtained an ETA for Australia before. He indicated he once obtained an ETA but did not use it to travel. When asked why he obtained an ETA to come to Australia previously if he was not thinking about travelling to Australia, the applicant said he obtained it because there was a season for work and he thought he would come to Australia for 5-6 days to visit. When asked, he said he could not remember when this was.
The Tribunal put to the applicant for comment or response, in accordance with the provisions of s 424AA of the Act, that Departmental records indicate he first obtained an ETA for travel to Australia [in] December 2013 but did not use it to travel; and Departmental records indicate he obtained his second ETA [a day in] October 2015 but did not arrive in Australia until [a day in] November 2015, [number] days after the ETA was granted. The Tribunal commented that it considers the information is relevant to the review firstly because it indicates he was considering travelling to Australia in December 2013 and secondly because it indicates he had a visa and could have travelled to Australia from [a day in] October 2015 but instead he went to [Country 3] [later in] October 2015, returned to Malaysia and did not depart for Australia until [November] 2015. The Tribunal commented that it appears there wasn’t any urgency around his claimed need to flee Malaysia for his safety from a man threatening to kill him. The Tribunal commented that, depending on his comments or response, this may cause the Tribunal to doubt that his life was at risk and, if so, would be the reason or part of the reason for affirming the decision under review.

The applicant indicated that he understood why the information was relevant to the review and said he wished to respond immediately. He commented that he purchased a ticket to travel [in] November 2015. The Tribunal asked the applicant why he did that if his life was at risk and he had been granted an ETA [on the day in] October 2015, querying him that wouldn’t he have wanted to travel as soon as possible. He said he was safe at his friend’s place and his friend made all his travel arrangements.
The Tribunal also queried the applicant why he delayed making a protection visa application for nearly three months after he arrived in Australia. He said he did not know the rules and was told he could not apply before 3 months.
In relation to his claims to have suffered discrimination due to his Pashtun ethnicity, the applicant indicated he suffered discrimination from police and government authorities because they always doubted he was a Malaysian and asked for two levels of identity documentation to verify his Malaysian citizenship, unlike other Malaysians. He indicated that, due to the prevalence of illegal immigrants in Malaysia he had been detained for one day during a police ‘swoop’. He said he was released when he was able to provide proof of his identity and Malaysian citizenship.
The Tribunal observed that the applicant had spoken to the previous Tribunal about concerns he had in relation to suffering discrimination when seeking to access healthcare in Malaysia. In this context the Tribunal shared with him country information from the DFAT Country Information Report about Malaysia’s public healthcare system.[7] This indicates that Malaysia has a well-established universal health care system, modelled on the United Kingdom’s system, which is accessible and low cost. The applicant commented that this must have been a misunderstanding because, as he is a senior-citizen, health care is completely free for him in Malaysia and is accessible. He added there is a special counter for senior citizens and medications are also free of charge.
[7] DFAT Country Information Report, Malaysia, 29 June 2021, sections 2.21-2.22.
When asked if there were any other matters he wished to raise, the applicant commented that he did not come to Australia for economic reasons. He indicated he had a good life in Malaysia, had run a business and earned a reasonable income which was well above the minimum wage. He said he had travelled to [Country 2 and other specified countries] in the past. He commented that he is now broke and ‘disappointed’, adding that he is not in Australia to seek luxury but is here just to hide out. He said he has mental and physical health issues, commenting that he suffers from back and neck pain and is ‘psychologically broken’.
Findings and reasons
Identity
On the basis of the copy of his passport submitted to the Department,[8] the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is as claimed. The Tribunal accepts that Malaysia is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[8] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Assessment of claims
Background
The Tribunal accepts the applicant is [an age] year old ethnic Pashtun Malaysian citizen who has never married.
The Tribunal accepts that the applicant ran a business in Malaysia where he bought [products 1] from wholesale suppliers and on-sold those goods at a profit to retailers. The Tribunal accepts this was run on a credit basis as outlined by the applicant.
Risk of harm due to having a business debt that he could not repay
The applicant claims that will be seriously harmed or killed by an ethnic Indian businessman named [Mr A] and/or his gangster associates if he returns to Malaysia because he owes a debt to this man which he cannot repay.
Overall, the Tribunal found significant elements of the applicant’s evidence in relation to this matter to be vague, inconsistent, improbable and generally unconvincing. This is for the following reasons, considered cumulatively.
Firstly, the Tribunal considers it unlikely that [Mr A] would have agreed to the business deal described by the applicant. As outlined above, the applicant indicated he knew [Mr A] well and they had a good relationship based on trust built up over 2-3 years. He indicated however, that he typically bought goods valued at RM [amount range] (and sometimes up to RM [higher amount]) from a range of wholesale suppliers, from which he generated income (through profit) of RM 6-8000 per month. Consequently, it would have been unprecedented for [Mr A] to have extended the applicant RM [much larger amount] worth of goods. The applicant suggested [Mr A] had no hesitation in doing this (and accepting payment visa cheques from an unknown third party) because he trusted the applicant. The applicant indicated [Mr A] was entirely motivated by profit. The Tribunal considers, however, that the trust between the applicant and [Mr A] would have been built on the basis that [Mr A] knew the applicant had a reliable network of retailers he was servicing and could get payment for the goods while generating a profit of RM 6-8,000 per month for himself. The Tribunal does not accept the premise that [Mr A] was only motivated by the thought of a big profit for himself, but considers that, as an experienced and successful businessman, he would have been attuned to the risk of losing RM [amount] worth of goods to an unknown third party and would have taken steps to ensure this risk was minimised, such as meeting the buyer in person, making inquiries as to his reliability and perhaps seeking part or full payment in advance.
Second, the applicant claimed he had a good relationship with [Mr A], but indicated that, when cheques provided by the ethnic Chinese buyer proved worthless, [Mr A] refused to contemplate any other course of action than the applicant repaying him in full, within a month, even though it seems unlikely the applicant could possibly have done this. He also indicated that [Mr A] was unaware the applicant did not have any family who might be able to help him raise such a sum of money (and held [Mr A] for two weeks while he confirmed this), which seems unlikely if they had a good relationship built on trust over 2-3 years as claimed. The Tribunal considers that, in such a scenario, there were other options available to [Mr A], such as making arrangements for the applicant to repay him in instalments, or using his resources and working with the applicant to locate the ethnic Chinese businessman and/or [Mr B] and getting them to pay up.

100. Third, and related to the above, the applicant clearly stated in his application that [Mr A] is a very rich and powerful man who has close ties with criminals/gangsters, the police and corrupt authorities. If this is the case, it would be expected that [Mr A] would have used these resources to locate the ethnic Chinese businessman (based in Ipoh, the capital of Perak state) and [Mr B]. When this was put to the applicant at the second Tribunal hearing, he suggested this (written claim) must have been a misunderstanding. He later contradicted this, however, when he suggested that [Mr A] must have sought to find [Mr B] and the Chinese man after he (the applicant) left Malaysia. The applicant also contradicted this at the first Tribunal hearing where he commented that ethnic Indians have a lot of influence in the police department, including because a lot of ‘their own people’ work undercover there who can do anything, and the Indian gangs also have connections in the immigration department and in government. Further inconsistencies in his evidence can be found in his written statements that he did not seek help from the authorities or try to relocate to another part of Malaysia because the authorities might inform [Mr A] of his whereabouts and [Mr A] and his associates could easily find him in another part of Malaysia. If [Mr A] and his Indian gangster associates could easily find the applicant in another part of Malaysia, it would seem to be the case that they could equally easily find the ethnic Chinese businessman and [Mr B] in Malaysia.
101. Fourth, The Tribunal found the applicant’s evidence regarding the ethnic Chinese business man and [Mr B] to be vague, inconsistent and unconvincing. The applicant indicated that he trusted the ethnic Chinese businessman solely on the basis of the word of [Mr B]. He indicated he had not undertaken any deals with this man before, did not undertake any independent checks into this man and did not seek to find him in Ipoh, where he indicated the ethnic Chinese businessman was from, when this man cheated him. Although the applicant indicated to the first Tribunal that he was influenced by [Mr B], who told him he done a lot of deals with the ethnic Chinese businessman and that he always paid with cheques, the applicant was evasive when asked by the current Tribunal if [Mr B] had done any previous deals with this man. He did not provide a direct answer to the question but commented that it is word of mouth that counts and that [Mr B] said the ethnic Chinese businessman was very credible, without indicating what this assessment was based on.
102. The applicant indicated he had absolute trust in [Mr B] because [Mr B] was also a Pashtun and he had known him for a long time. Despite this, the applicant indicated that, when the cheques bounced, he could not contact [Mr B]. Despite claiming to have known him for a long time and to have complete faith in him, the applicant indicated that he only knew [Mr B] from the market and did not know where he lived. He altered his account when asked if he queried other people at the market regarding where [Mr B] lived, commenting that he went many places looking for him but [Mr B] kept moving around.
103. The applicant said he did not go to Ipoh to try to locate the ethnic Chinese businessman because he was under immense pressure from [Mr A] so was using all his energy trying to locate [Mr B]. This was the first time in his evidence that the applicant had indicated that he spent all his energy trying to locate [Mr B].
104. Fifth, the applicant’s evidence was vague and inconsistent regarding when he had to get [Mr A] the money and where he was living before he came to Australia. In his written statement he indicated he was first threatened in about August 2015 that he would be killed if he did not pay [Mr A] by the end of the month. He indicated he was then abducted in early September 2015 and held for about two weeks (that is, until around mid-September). He indicated that he was released when he assured [Mr A] he could make payment arrangements in about 3-4 weeks (that is, in around mid-October). He indicated he could not make payment arrangements and was threatened he would be killed so went to a friend’s place (at the second hearing he said he stayed with his friend [Friend A] in [Town 3], about [distance] km from his home) and stayed with him while his friend made arrangements for him to come to Australia. He commented that, in the meantime, they tried to capture him and he was told they visited his house frequently looking for him.
105. At the first Tribunal hearing, the applicant provided a similar timeline, indicating he was abducted in early September and held for two weeks. When asked why he returned to Malaysia after going to [Country 3] [in] October 2015, if he had been mentally tortured the previous month, the applicant initially told the first Tribunal that Malaysian citizens can only depart from Malaysia. When queried why that would be the case, he altered his evidence, commenting that AirAsia flights were cheaper and they fly to Australia three times a day. When asked if he had investigated the cost of flying to Australia from [Country 3], however, the applicant indicated he had not.
106. At the second Tribunal hearing, when asked what he did when the one month period was up, the applicant said he had to leave the country. When queried that he didn’t leave, however, until [November] 2015, and had travelled to [Country 3] [in] October 2015, the applicant altered his account and said his month was not yet up so he was not at risk of harm at that time. The Tribunal queried this, commenting that it had constructed a time-line of events, based on his claims, which indicates that by the time he went to [Country 3] [in] October 2015 the deadline he had been given to repay the money would have already expired. The Tribunal noted that he had indicated that these people had threatened to kill him. The applicant said he was under mental pressure and confused the dates. In relation to him moving to [Town 3] to stay with a friend and hearing from others that people were looking for him, the applicant said that it was when he was in Australia that friends had let him know people were looking for him.
107. Sixth, the applicant was issued an ETA on [a day in] October 2015 valid for entry to Australia but did not depart Malaysia until [November] 2015. If he feared for his life as claimed and had moved to live with his friend [Friend A] in [Town 3] as claimed, it is very difficult to understand why he would not have departed Malaysia as soon as possible after the visa was granted (noting the high frequency of flights from Kuala Lumpur to Australia). Instead he went to [Country 3] for a few days and then returned to Malaysia for [number] days when he could have departed from [a place in Country 3] (if he wished to go to [Country 3] to do collections) or from Malaysia any time after [the day in] October 2015. The applicant’s assertions that it was more convenient for him to depart from Malaysia, and that his friend made all his travel arrangements do not explain this significant delay, if his life was at risk as claimed, and if the deadline for him providing the money had expired as his earlier evidence indicated was the case. If the deadline had not expired, it is difficult to understand why he would have been hiding out with his friend in [Town 3] which, as the Tribunal put to him at the second hearing, might have served to agitate the Indian businessman and his associates. In response, the applicant indicated he was under pressure and stressed. If this was the case, however, it would be all the more reason for the applicant to have fled to safety in Australia as soon as he could.
108. Given the above, the Tribunal does not accept that the applicant owed a debt of RM [amount] to [Mr A] that he could not repay as claimed. Accordingly, the Tribunal does not accept that the applicant was threatened that he would be killed if he did not repay RM [amount]. The Tribunal does not accept that the applicant was abducted, held for two weeks, mentally tortured and released on the basis that he would repay the money in a month. The Tribunal does not accept that, subsequently, the applicant was again threatened he would be killed if he did not repay the money. The Tribunal finds, therefore, that there is not a real chance that the applicant would suffer persecution involving serious harm from [Mr A], his gangster associates, and/or corrupt police, immigration officers or other government officials should he return to Malaysia now or in the reasonably foreseeable future.
Risk of harm due to his Pashtun ethnicity
109. The Tribunal accepts that the applicant may have suffered some discrimination including derogatory remarks from some ethic Malay Malaysians (who constitute approximately 60 per cent of the population of Malaysia) and Malaysian officials because of his Pashtun ethnicity. The Tribunal accepts that his physical appearance (fair complexion and stature) might cause some to see him as a foreigner or suspect he is an illegal immigrant or to otherwise suspect his motives.
110. The Tribunal does not accept, however, that the discrimination and/or mistreatment that the applicant suffered amounts to persecution involving serious harm. The applicant provided examples of occasions where he was stopped at a late-night police roadblock or his home in Melaka (after he move there from Sabah) was ‘raided’ and he was asked to show his Malaysian passport as well as his Malaysian identity card (MyKad) or Malaysian driver’s licence to prove that he was a Malaysian citizen. He indicated that this caused him some inconvenience and irritation. He indicated on one occasion he was advised that he should report to the village head when coming to reside in a new village.
111. The applicant indicated at the first Tribunal hearing that he had been asked to provide additional proof of his citizenship status to access health services, although at the second Tribunal hearing he indicated this must have been a misunderstanding and was complimentary regarding the provision of public health services to him as a senior citizen.
112. The worst treatment the applicant appears to have experienced was being held for one day while his citizenship status was verified. This appears to have been an isolated incident. The applicant himself indicated that he had a reasonably good life in Malaysia, where he had lived all his life before coming to Australia. He indicated he had his own business where he earned a reasonably good income, that was well above the minimum wage.

113. Considering the above, the Tribunal does not accept that there is a real chance the applicant will suffer persecution involving serious harm from ethnic Malay Malaysians, the Malaysian authorities or anyone else due to his Pashtun ethnicity (race) or perceptions that he is a foreigner or illegal immigrant should he return to Malaysia now or in the reasonably foreseeable future.
Risk of harm due to his age and state of physical and mental health
114. The applicant is now [age] years old. At the first Tribunal hearing he commented that he can work in Australia whereas in Malaysia it is difficult for someone to get work once they are over 40. He indicated that he is not eligible for a pension in Malaysia and commented that he has no family in Malaysia or friends to look after and support him.
115. At the second Tribunal hearing, the applicant indicated that, while he had been working in Australia, he is no longer doing so. He commented that he is not working now due to medical conditions. He said he receives support in the form of food stamps from [Agency 1] and ‘the community’ assists him with accommodation and utilities. At the end of the hearing, he commented that he suffers from back and neck pain and is ‘psychologically broken’.
116. The applicant has not provided any evidence, such as medical reports or psychological assessments, in support of his claims to be suffering physical and mental health issues. Notwithstanding this, given his age and unresolved immigration status in Australia, the Tribunal accepts that he may be suffering from neck and back pain as claimed and that he may be anxious regarding what the future holds.
117. In considering these matters, the Tribunal notes that the applicant’s evidence indicates that he was brought up within the [Country 1]-Malaysian community in Sabah, Malaysia after his parents passed away when he was a child. He indicated the [Country 1]-Malaysian community in Sabah numbered in the thousands. He also indicated he built a business network across [Malaysia] by dealing with [ethnic Pashtun] Malaysians. He indicated that he lived in shared accommodation in Melaka and stayed with a friend, [Friend A], before he came to Australia. Just as the applicant has indicated that he has obtained support from the ‘community’ in Australia, the Tribunal considers that his past history indicates that he could also obtain support from the [Country 1] Malaysian community in Malaysia.
118. The applicant acknowledged at the second hearing that, as a Malaysian senior citizen he can obtain free healthcare and medications in Malaysia.
119. The DFAT Country Information Report indicates that, while Malaysian culture places significant emphasis on family support, the Department of Social Welfare, Ministry of Women, Family and Community Development, provides financial support to the elderly (aged 60 years and above), the economically disadvantaged, children, people living with a disability, those affected by natural disasters, victims of domestic violence, victims of trafficking, and the otherwise vulnerable. DFAT comments that businesses and NGOs also have various programs to support the poor; and the ‘Mykasih program,’ a private sector program which is assisted by the government, also provides a platform to give food aid to the poor through a centralised system (the platform allows people to use their MyKad for payment at selected supermarkets). DFAT notes that food kitchens are available within large cities to alleviate urban poverty and homelessness and government-provided shelters are also available.[9]
[9] DFAT Country Information Report, Malaysia, sections 3.156-3.157.
120. Considering the applicant’s personal circumstances and available services, while the Tribunal accepts that the applicant may suffer some hardship and stress on return to Malaysia, the Tribunal does not accept that this would be as a consequence of persecution involving serious harm. The Tribunal finds there is not a real chance the applicant would suffer serious harm in the form of significant economic hardship that threatens his capacity to subsist; and/or would be denied access to basic services, where the denial threatens his capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist (as per the non-exclusive examples of serious harm mentioned at s.5J(5)(d)-(f) of the Act), for one or more of the reasons mentioned at s.5J(1)(a) of the Act (that is, for one or more of the reasons of their race, religion, nationality, membership of a particular social group or political opinion), should he return to Malaysia.
Does the applicant have a well-founded fear of persecution if he returned to Malaysia?
121. Having carefully considered the applicant’s claims, individually and cumulatively, the Tribunal does not accept that there is a real chance the applicant will suffer persecution involving serious harm from [Mr A], and/or gangsters, corrupt police, immigration officers or other Malaysian government officials, ethnic Malay Malaysians or any other person, group, organisation or authority, for one or more of the five reasons mentioned at s.5J(1)(a), if he was to return to Malaysia, now or in the foreseeable future.
122. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
123. 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).
124. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[10]
125. Significant harm is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
126. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
127. Considering the available evidence and the relevant country information, and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from [Mr A], and/or gangsters, corrupt police, immigration officers or other Malaysian government officials, ethnic Malay Malaysians or any other person, group, organisation or authority.
128. In reaching this conclusion, the Tribunal finds that any economic hardship or emotional distress the applicant might experience if removed to Malaysia, including feelings of humiliation due to reduced economic circumstances, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing him to suffer significant harm.
129. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
[10] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Member of the same family unit

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

131. The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
Member

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 1175

8 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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