1927477 (Refugee) [2024] ARTA 733 (18 December 2024)
Decision and			
Reasons for Decision

Respondent:	Minister for Immigration and Multicultural Affairs
Tribunal Number:	1927477
Tribunal:	Rosa Gagliardi
Date:	18 December 2024
Place:	Australian Capital Territory
Decision:	The Tribunal affirms the decision under review.

Statement made on 18 December 2024 at 11:33am

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – unpaid debts to bank – ex-smuggler – fears harm from  criminal associates – economic conditions and unemployment – delay in applying for protection – credibility concerns – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Administrative Review Tribunal Act 2024, ss 105, 106
Migration Act 1958, ss 5, 46, 65, 351, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

Statement of reasons
APPLICATION FOR REVIEW
1.  	This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.  	The applicant who claims to be a national of Malaysia (a matter the Tribunal accepts) applied for the visa on 29 July 2019. 
3.  	The delegate refused to grant the visa on the basis that the applicant’s claimed fear of harm in Malaysia was not for one of the 5J((1)(a) reasons, that is his race, religion, nationality, membership of a particular social group or political opinion as his claims centred on the high cost of living, the level of criminality and poor work opportunities in Malaysia.
4.  	The applicant appeared before the Tribunal on 28 November 2024 to give evidence and present arguments. 
5.  	The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
6.  	It is claimed the applicant has been blacklisted because he was unable to pay his debts on time, taxes are high and there are criminal issues to deal with in Malaysia.
Evidence before the Department
7.  	In his application the applicant wrote in terms of why he left his country:
Will hard to get a life with all living cost is terrible high and much criminal issues incurred.  I failed to settle the outstanding debts such as mortgage loans, car loans due to the financial problems by my own business I experienced this very critical.  My name blacklisted by the bankers for not paying all these debts on time.  So I want to find a way out to resolve all these issues.
8.  	The applicant advanced that he had experienced harm in his country. Asked to explain what type of harm he wrote:
It is an addition to more than 183,000 unemployed who are looking for an employee (sic) of which 31% are post graduate students.  And unfortunately my education is not up to graduation.
9.  	He claimed he did not seek help within his country after the harm, because “So many people is facing same problem as me.  There is no specialty for those people who are in jobless unless you are having any relationship with one of their family or friends in that particular company”.  He stated he did not try to move to another part of the country to seek safety because “I will think the same thing like those people out there.  Will be the same issue incurred”.  
10.  	Asked to explain what he thought would happen to him on return to Malaysia, the applicant stated:
No one want the hardship in their life unless the reason is came from their own problem and mistake.  People work very hard for family and future.  There is too much tax to pay even you drove a car for every 20km.  That is not including road tax.  Everything must include tax.  Its not possible if one day, we will have to pay tax when you breath (sic).  
11.  	He indicated “No” when asked if he thought he would be harmed or mistreated if he returned to his home country.  He did not think the authorities of his country would protect him because “Will be the same issue”.  He did not think he would be able to relocate within his country to an area where he would not be harmed as “Will be the same issue”.  
Evidence before the Tribunal
The hearing
12.  	The applicant stated he was born in a small town.  His father was a labourer, and his mother has never worked.  He has seven siblings all living in Malaysia.  The Tribunal asked whether their lives were going well, and he responded they were having difficulties because most of them were at school, so it was very tough on his father because he was not earning that much.  The applicant married in Australia and now had one child aged [age].  His wife is not an Australian citizen.  She is a Malaysian national.  
13.  	The applicant stated he came to Australia on [date] April 2019 on a Visitor visa.  He lodged his application on 29 July 2019.  The Tribunal noted the applicant had been unlawful in Australia for a couple of days and it was then that he lodged the Protection visa.  The Tribunal asked the applicant why he had not lodged his application as soon as he arrived in Australia because it appeared that when he became unlawful, he was searching for a way to remain in the country.  The Tribunal observed that consequently it could find that had he did not have a genuine and immediate fear of harm.  The applicant stated that initially he was in Adelaide, and he knew no one and that is why he did not lodge his application earlier.  He finally asked a Chinese national for assistance with his application.
14.  	The applicant stated he went to [a grade] in Malaysia.  
15.  	The Tribunal asked how the applicant supported his family in Australia and he responded he was working in a factory in [NSW].  When he first arrived, he worked on a farm.  Since his arrival in Australia, he had periods of unemployment and initially work was inconsistent.  In Malaysia he worked as a [occupation] for several years before “quitting”.  The applicant stated he took out a housing loan and there was an agent dealing with a new housing development, but he was “conned” by this agent.
16.  	The Tribunal asked the applicant why he feared returning to Malaysia.  He responded before coming to Australia he was involved in illegal smuggling activities involving various items at the Malaysia-[Country 1] border, smuggling [products] into Malaysia for example.  He was never charged, and he managed to evade the authorities, but the police confiscated all the stuff he was trying to smuggle.  The Tribunal referred to the principle of self-incrimination and advised the applicant he did not need to say anything that might prejudice any criminal proceedings that might ensue.  The Tribunal stated that it appeared, however, that the police were not pursuing him.  He stated that they did try to look for him, but he went into hiding.  Asked where, he stated in the town of [name] and then he called the person for whom he was smuggling, and he came to collect him to take him to his place and he was in hiding for a month or two.  The Tribunal asked the applicant to set out what happened afterwards, and he said that the person for whom he was working was angry with him and he was threatened by him.  He beat him and threatened to kill him and wanted him to replace all the stolen good and so the applicant ran away to another [place].  
17.  	The Tribunal noted that the applicant stated he had left his [job] because he had taken out a loan from an agent who defrauded him and asked whether this matter was related to the smuggling claim.  The applicant stated it had nothing to do with it.  He was dismissed from his [Occupation 1] work because he was depressed and was at a loss as to what to do, and he did not turn up for work and was dismissed.  The Tribunal asked the applicant whether he sought assistance from a doctor or a psychologist for his depression and he responded no.  He had to think of ways to earn money to repay whatever he owed.  
18.  	The Tribunal asked the applicant how much he had lost as a result of the housing estate matter.  He stated it was RM50,000. He took out a loan to build a house and the contractor stated it would be built in a year but then the contractor ran off and he was lumbered with a loan and no house.  He did not repay the bank.  By then he had no income.  The Tribunal asked whether he had attempted to negotiate with the bank to repay the money slowly due to his circumstances.  He stated the bank said they could not do anything.  The applicant confirmed the loan was sitting intact accruing interest, but he was not sure - he did not make any repayments.  He just left it.  After he lost his [job], he tried doing various things including selling things and had his own small business, but he failed.  
19.  	The Tribunal asked the applicant when he became involved in the smuggling operations, and he stated in 2019, prior to coming to Australia.
20.  	The Tribunal asked who he worked for and who had beaten him.  The applicant stated that he was working for a [Country 1] national so when he came to get him the applicant was in hiding and several men hit him in the head and on the body.  Asked if he had attended a hospital or a doctor to make sure he did not have an injury he stated no, he ran away and treated himself using village herbal medicine.  
21.  	The Tribunal again attempted to clarify who the applicant feared on return to Malaysia, and he stated his former [Country 1] boss who threatened him and as long he failed to repay the confiscated goods, he might beat him up and may even kill him.
22.  	The Tribunal noted that he had not mentioned in his application that a [Country 1] boss had threatened him.  The applicant stated a Chinese national filled in the form for him.  The applicant did not tell him his real story. Asked why not, the applicant stated he did not wish to share it with anyone.  Asked if he had shared it with his family in Malaysia, he stated that he did not.  The Tribunal asked whether he thought there might be an arrest warrant out to charge him.  The Tribunal stated that it was confused as to how the applicant was able to leave the country if he was a wanted person by the authorities.  He stated he did not think there was an arrest warrant as such. He fled and they gave chase, but he did not think there was a warrant out for his arrest. 
23.  	The Tribunal went through the claims in the application to make sure the applicant was aware of what it contained.  The Tribunal again noted there was no mention of the person he claims wanted to kill him on return to Malaysia because of the failed smuggling operation.  The applicant stated he did not tell the Chinese person who wrote up his application this aspect of his story.  He only told him what the Tribunal had read out to him.  Asked if he had thought of going to the police for help for protection against the [Country 1] boss the applicant claimed would kill him, the applicant stated he dare not do that because these people were very dangerous; they were gangsters and in fact he was threatened not to go to the police, or they would do something even worse to him.  The Tribunal asked how much the confiscated material was worth roughly.  The applicant responded he was not sure about the amount – it depended on the goods smuggled and where you were delivering the goods to.  It was around MR30,000-40,000.  In terms of the applicant’s actual role in the smuggling operation he stated that he was the person delivering the goods to a particular pick-up point.
24.  	The Tribunal referred to the DFAT country information which referred to Malaysia’s police force (even though it was beset by corruption) cracking down on gangsters., The Tribunal stated the police would have been pleased to find this [Country 1] boss and to arrest him to disrupt the smuggling operations.  He said if he filed a police report he could not expect the police to give him 24/7 protection.  In any event he could not be expected to go to the police because he was involved in the illegal activity.  The Tribunal noted that if the applicant were to have been open with the police about the smuggling operations and provided names, they might have taken into consideration his collaboration with them.  He said he did not think it would work that way.  Not all police officers worked properly otherwise there would be no smuggling in Malaysia.
25.  	The Tribunal asked whether the applicant knew where this [Country 1] boss was.  He said he was not sure.  It was a long time ago.  The Tribunal put to the applicant that if he and his young family were to move to a large city like Kuala Lumpur, they could start a new life as indeed the claimed events had occurred a long time ago.  He stated he would never return because he was afraid.  He feared they would continue to look for him.  They really wanted to find him.  The Tribunal noted that it had been five years since the events involving the confiscated goods had occurred and he was not even aware as to whether this boss was alive. He said that these people have people everywhere and smuggled goods everywhere even at the border of Kuala Lumpur.  The Tribunal stated that it found it difficult to accept that after all this time the [Country 1] boss and his gangs would be focussed on him.  They operated on a business model and would simply have moved on by now.
26.  	The applicant stated that they would ask him to replace the value of the goods confiscated by the authorities.  The Tribunal noted that the applicant was able to escape Malaysia before the gangsters got to him so how was this possible if they really wanted to find him.  The applicant stated they did not know he had come to Australia, and he had been in hiding.  If they had looked for him, it would have taken time.
27.  	The Tribunal asked the applicant to discuss further his fears relating to his written claims about owing a lot of money to banks and so forth in Malaysia.  The Tribunal noted that the applicant would have had written documentation referring to these loans.  He stated he left all those documents in his mother’s house, but he was not sure whether they were still there.  Asked if he would like to try to obtain those documents, the applicant stated that it was the monsoon season now, but he would try.
28.  	The Tribunal stated it would be happy to give the applicant some time to provide such evidence and asked the applicant to report back to the Tribunal about whether he could obtain those documents, and to particularly communicate if he was having difficulty obtaining the documents and to provide an explanation as to why.  The applicant stated that if they still existed, he would submit them.  The applicant stated that he would let the Tribunal know whether he could find the documents.
29.  	The Tribunal asked whether the gangsters had gone to see his parents in Malaysia at all.  The applicant replied no as they did not know he had gone to Australia but at the same time there had been strangers going past the house. That is what his mother said, but he did not know if it was related to these people.  The Tribunal asked whether his mother went to the police.  The applicant then stated that “they” now know that he is in Australia.  The Tribunal asked how.  He stated he was not sure maybe some of his associates and friends told them.
30.  	In relation to his debts to the bank, the Tribunal put to the applicant the World Bank country information which states that Malaysia is an upper middle-income economy and has undergone a profound economic transformation from an economy reliant mostly on agriculture to developing a robust manufacturing and services sector. 

31.  	The Tribunal also referred to the World Bank overview which stated that while income inequality remained a significant issue, targeted measures such as cash transfers to low-income households, were being implemented to alleviate poverty and support vulnerable populations.  The Tribunal asked why the applicant could not go to a large centre in Malaysia to start working to support his family.  The applicant stated he only had a high school certificate, and it would be difficult to get a job. He had nothing back home and it would be difficult to start anew.  The Tribunal noted that the applicant had gained skills skills in a factory and had done farming jobs in Australia, so it is not as though he had no skills at all.  The applicant responded that if he went to Kuala Lumpur, it would be difficult to find equivalent jobs.  This is because he was not sure the of the kind of jobs he would be able to get back home.
32.  	The Tribunal noted that in the applicant’s written application at time of primary decision, he was asked to give details about how he occupied his time in Malaysia and financially supported himself during times of unemployment.  The applicant stated he had run his own business together with his family.  The Tribunal noted he had not mentioned that he was involved in smuggling or that he was a [Occupation 1].  The Tribunal asked the applicant to explain.  The applicant stated he did he did not tell anyone his real story.  He only told the (Chinese man) some parts of his story.
33.  	The applicant stated that he worried that he would be threatened, and his child would be too on return to Malaysia.  If he were detained by the police, there would be no one to look after his family.  He feared that his child might be kidnapped and was concerned about the rate of murders taking place back home. It would be difficult for him to support his family in Malaysia.  He read the news from back home and murders had increased, and he was afraid he would be found on return.  He was worried the gangs he had dealings with previously might hurt his daughter.  The Tribunal asked the name of the gangs, and the applicant stated he was afraid to return to Malaysia because he was afraid of those things.  Over here he was stable, and he was able to feed his child. He did not know if he returned to Malaysia if he would be in the same position.  
34.  	The Tribunal gave the applicant until 6 December 2024 to provide any additional documentation to support his case.  At the time of writing the applicant has not provided any further information.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
35.  	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.
36.  	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.
37.  	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).
38.  	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.
39.  	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
40.  	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.
REASONS AND FINDINGS
41.  	The issue in this case is whether the applicant is owed protection as a refugee (s.36(2)(a)) or under the complementary protection provisions (s.36(2)(aa)) as set out above.
42.  	For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
43.  	In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70). 
44.  	In determining whether an applicant is entitled to protection in Australia the Tribunal must at first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims. 
45.  	On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (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). 
Timing of the applicant’s application
46.  	While not determinative of the review, the Tribunal does have some concerns that the applicant who claims to have a well-founded fear of persecution in Malaysia allowed his Visitor visa to expire on [date] July 2019 to become unlawful for four days before finally lodging his protection claims.  The applicant first arrived in Australia on [date] April 2019 and queries if the applicant had a genuine and abiding fear of returning to his home country, he did not lodge his application at an earlier stage to ensure his safety was secured.  The applicant stated he did not know what to do and finally found out about his options, but in light of the other concerns held by the Tribunal in this case, finds that the applicant was instead, in lodging the protection application when he did, attempting to regularise his status to be able to remain in the country when his options for doing so would have been narrow.  
Claims regarding having been defrauded by an agent and owing the banks significant funds and being “blacklisted”
47.  	The applicant has been provided with the opportunity to substantiate his claims that he has failed to settle outstanding debts such as mortgage and car loans due to his business experiencing financial difficulties such that he had to resort to borrowing RM50,000 from a bank.  At the least had the applicant been able to produce evidence of having entered such loans, the Tribunal could consider him a credible witness.  The Tribunal at hearing made it clear that if he was unable to provide the documentation, he ought to advise the Tribunal and to explain why he was not able to procure copies of material that goes to his claims.   The applicant gave the Tribunal reassurances that if he were not able to provide the documentation which he claims was at his mother’s house, he would provide the Tribunal with an explanation.  The due date came and went, however, and the applicant did not contact the Tribunal and did not provide any material to indicate he was heavily indebted in a legitimate or other way to the tune of 50,000 Ringgit (around AUD$17,582.00 in today’s currency) to a financial institution such as a bank, or any other body.  
48.  	The Tribunal has considered that the applicant claimed that it was currently the monsoon season in Malaysia, however, this does not explain why his mother or some other person in Malaysia could not have taken a screenshot of the paperwork related to his claimed debts to send them to the Tribunal.  If the applicant’s business had been ailing to such an extent he had to borrow RM50,000 the Tribunal would have expected that the applicant would have been able to provide information about his business and his financial position overall to support his claims that his business faltered and he was experiencing significant hardship that he could not service significant debts (for which the applicant has not provided any evidence).  
49.  	The Department in its decision wrote:
Bankruptcy in Malaysia is a process where a debtor is declared a bankrupt pursuant to an adjudication order made by the High Court if the debtor is unable to pay debts of at least RM30,000.  Bankruptcy does not prevent people from working although bankrupts are disqualified from practising in certain professions.  A bankrupt may open a bank account for the purpose of crediting a salary.  Bankrupts are prohibited from leaving Malaysia without permission.  The Star Online reported in March 2016 that the Immigration Department had more than 200,000 bankrupts on its blacklist. [All information by the Department has been cited].
50.  	Had the applicant been declared bankrupt as claimed, the Tribunal would have expected him to be able to provide the relevant documentation from the authorities as evidence.  The applicant has also not explained how it was that he was able to leave the country when he owed RM50,000 to a bank and the Tribunal rejects that the applicant was someone with a profile as a bankrupt or debtor.  
51.  	Furthermore, at hearing the applicant’s claims about his debts to the bank were not specific and the Tribunal had to prompt him to advise how much his debts were overall.  The applicant provided little context, for example, for why he had taken such significant loans and on what terms the loans had been taken out for, example interest rates etc.
52.  	Given the applicant has been unable to support his claims in a verifiable manner and given he was not able to establish his claims at hearing in other than general terms rather than providing specific information about his circumstances, the Tribunal rejects that the applicant was ever declared bankrupt by any financial institution or bank or that he would have been permitted to travel to Australia and leave his debts behind as he claimed at hearing without difficulty.  The applicant at hearing did not know how much he would be owing with any terms of interest at the current date, stating only that he was just able to walk away from the debts.  The Tribunal rejects that this would have been possible as otherwise, anyone with significant debts would be permitted to leave Malaysia, default without difficulty and without repercussions, which does not on any analysis make for good business sense for financial institutions.  
53.  	An additional claim is that at hearing the applicant stated he had specifically been defrauded by the contractor who was to build the home but ran away with his money (borrowed from the bank).  Little information was provided about who this contractor was and why the applicant did not seek remedy through the civil courts or by raising it with the authorities.  The applicant did not spontaneously discuss, for example, whether the relevant contractor had defrauded others and whether there was a case for a class action.  His description of the estate was general, and the Tribunal has limited information about where it was located precisely.  This is information that would be easily accessible particularly if there had been public advertisements for the sale of the relevant sites.  To substantiate his claims the applicant could have also pointed to some media coverage, if it existed, of the building contractor’s theft of unsuspecting purchasers’ money.
54.  	In addition, The Tribunal would also have expected that the applicant would have been able to provide a copy of the actual contract he had signed with the building contractor for example, to lend credibility that he had been involved in the purchase of land to build a house at a property.
55.  	The applicant claims that he was let go from his [employment] due to his depression which prevented him from attending work as required.  Even in the absence of evidence such as a termination letter or other supporting information, the Tribunal is prepared to accept that the applicant was sacked and that he experienced depressed.  Given the Tribunal does not have supporting information demonstrating the circumstances of the applicant’s termination of employment as a [Occupation 1], or that the applicant was affected by depression to the extent he could not work (the applicant stated he turned his hand to selling things and a business but these failed), the Tribunal does not accept that any ensuing grief at having lost his job was a direct result of him owing the bank or any other institutions RM50,000 or any other amount because the applicant has not established any clear link between his sacking and his claimed substantial loans, and significantly because the Tribunal has rejected that the applicant ever owed any amount to any financial institution at any time. 
56.  	The applicant’s addition to the claims he had initially advanced in his application (at hearing) that he was defrauded by a building contractor also leads the Tribunal to have serious concerns about the applicant’s credibility.  His claims at the time of application were general relating to the cost of living being terribly high and being blacklisted by the bank.  He also claimed that unemployment was widespread and that if you were not connected to someone you could not find work in a particular company. The applicant at hearing stated that he had not told his entire story to the Chinese national who had compiled his application form.  The Tribunal is unable to see how leaving out critical aspects of his claims would have been considered by the applicant to be of benefit to his case.  Rather, the Tribunal finds that on finding that the general claims about the economic situation and level of criminality in Malaysia advanced at the time of application had not been successful, the applicant sought to embellish his claims at the time of review.  For these reasons, the Tribunal does not accept that the applicant was ever a victim of a building contractor who took all his money, and he was left with no property and no funds.
Claims about being a smuggler who is being targeted by his “employer” because the police confiscated his goods 
57.  	The Tribunal accepts that there is a sophisticated and thriving smuggling trade in Malaysia:
Malaysia’s geographic location has favoured the smuggling of small arms and light weapons into the country in recent years. The Strait of Malacca, historically an important trade route, is now also used for criminal activities such as drug trafficking, human trafficking and cigarette smuggling, as well as arms trafficking. Small arms and light weapons are often smuggled across the Thai and Kalimantan borders or on boats from Indonesia and are used for illegal activities such as drug trafficking and armed robberies. Firearms remain easily accessible through purchasing or rental services, and illicit firearms have been seen at rallies throughout Malaysia. Corruption among law enforcement officers who claim to have lost their firearms has also contributed to the problem. Police suspect that firearms smuggling is being carried out at the Thailand–Malaysian border for the benefit of Islamic State cells, which are believed to be planning attacks in the country. Counterfeit goods are a significant problem in South East Asia, particularly in countries such as Malaysia and Thailand, which play a significant role in manufacturing and repackaging fake products for international markets. The region is vulnerable to counterfeiting due to its proximity to China, the world’s leading source of counterfeit products. 
The market for counterfeit goods includes a wide range of products, from luxury brands to pharmaceuticals, food products, automotive parts and cigarettes. Counterfeit medicines are also a significant issue. Illicit tobacco trade, particularly in ‘illicit whites’, is a rampant issue in Malaysia. This is due to a combination of law enforcement pressure in Singapore and uncoordinated policy decisions in Malaysia, which drive cigarette smuggling. In addition, high taxation on alcoholic beverages and cigarettes in Malaysia has led people to obtain both products from illicit sources. During the COVID-19 pandemic, the illicit tobacco trade saw a decrease, but it has risen again since the lifting of restrictions.
58.  	The applicant stated he did not tell the Chinese national about his account of resorting to smuggling activities when he lost his job as a [Occupation 1].  The Tribunal again queries if the applicant were being pursued by someone who wanted to kill him because the applicant owed him money for goods confiscated by the police, why he would not have included such a claim in his application.  While the Tribunal can understand that the applicant may have wished not to disclose that he was involved in criminal activity, however, if he had fled Malaysia to save his life then the Tribunal would have found that he would have at least alluded to it by stating he was being pursued by someone who wanted to kill him and who had beaten him.  
59.  	In any event the applicant’s claims about this matter were confused and implausible.  The applicant stated that the police gave chase after having confiscated his goods but that the applicant managed to evade them.  As the Tribunal put to the applicant at hearing, it seemed implausible that the applicant with the profile he had as someone involved in smuggling would have been permitted to leave the country and that the police would not have continued to pursue him to ensure that they obtained information about the other players in the operation to disrupt the illegal activity.  This is particularly as the applicant would have had a profile as a claimed bankrupt as well.  It is also unclear to the Tribunal how the applicant managed to evade the full force of the law by simply running away from the police when they gave chase.  The Tribunal does not accept that had the applicant been caught in the act of delivering smuggled goods and had them confiscated that he would not have been arrested on site instead of the police allowing him to flee and the Tribunal rejects that this event ever occurred.
60.  	The applicant claimed that he hid in a colleague’s home for a while, and then moved on to another area.  The Tribunal finds it difficult to accept that the applicant would have been able to evade the police for several months given his family, being his parents and siblings continued to live in his home area and could have been interrogated about his whereabouts at any time.  The Tribunal does not accept that the Malaysian police would not have had the resources to pursue the applicant when he was in Malaysia prior to coming to Australia had they wanted to prosecute the applicant. 
61.  	At hearing the applicant also stated that he came to Australia to evade the [Country 1] boss who oversaw the smuggling operation because the [Country 1] boss wanted to be repaid the cost of the goods the police had confiscated from him.  It was claimed that the [Country 1] boss was pursing him and wanted to kill him due to the financial loss, and the applicant feared serious harm from him on return to Malaysia.  
62.  	As put to the applicant at hearing, however, it is not credible that this [Country 1] boss would keep count of the goods lost and punish the couriers of the smuggled goods like the applicant when, even if the Tribunal accepts the applicant’s account (and it does not), the applicant had not deliberately lost the goods.  Furthermore, the linchpins of illegal activity accept that there will be losses and rather than draw attention to themselves by threatening the person who had the goods confiscated, move on and focus on their next operation.  The applicant stated that the value of the goods totalled up to MR40,000 which equates to AUD$14,114.00 roughly. The Tribunal acknowledges that this is a significant amount of money, but the Tribunal does not accept that the [Country 1] boss would after over five years continue to be in pursuit of the applicant for having the smuggled goods confiscated and would not instead focus on retrieving the funds via the business model so as not to attract attention from the authorities or anyone else.  In any event, the Tribunal does not accept that the applicant was ever involved in criminal activity such as smuggling or that he came to the attention of the police or that a [Country 1] boss wants to seriously harm the applicant because the applicant was the subject of a police confiscation of the goods he was couriering.
63.  	The applicant at hearing submitted that his family, being his parents and siblings had difficulty with poverty in Malaysia because his father had to support the family of students.  He then stated when asked that people were driving past his parents’ place but conceded that he could not be sure that such people were related to the gangs associated with the [Country 1] boss.  The Tribunal does not accept that had the [Country 1] boss and his thugs wanted to intimidate his parents or get them to cover the expenses of the lost goods, they would simply resort to going past their home, hoping that the applicant’s parents would intuit that this was intimidating behaviour.  
64.  	The Tribunal also does not accept that the applicant could not have to save his life entered into an arrangement where he furnished the police information about the entire smuggling operation he had been involved in to take down his claimed persecutor, the [Country 1] boss, the associated gangsters and anyone who might have wanted to kill and beat him on account of the confiscation of the goods he was delivering to a pick-up point.
65.  	Rather, the Tribunal finds that the applicant advanced these later claims to enhance his application to be able to remain in Australia given his general claims at the time of application had not led to him being granted protection and a means of remaining in Australia.
Economic conditions and unemployment in Malaysia
66.  	The applicant stated he would suffer serious harm in Malaysia because there was a high level of unemployment and even post graduate students were having significant difficulty finding employment.  The applicant stated that he was not a graduate, and it could be inferred that he would have even more difficulty in finding work to subsist.  The applicant also stated that to work in a company you had to have connections, familial or otherwise, to those running the particular company and the applicant claims he does not have such connections.  The applicant claims to have been a [Occupation 1] in Malaysia, had his own business and was involved in selling things.  In Australia he claims that he worked in a factory in NSW and had also worked on a farm, meaning the applicant has experience in the service sector as well as in labouring and factory work.  As put to the applicant at hearing, the Malaysian economy is diversified and expanding:
Since gaining independence in 1957, Malaysia has undergone a profound economic transformation, transitioning from a predominantly agricultural and commodity-based economy to a robust manufacturing and service sector. This evolution has positioned Malaysia as a leading exporter of electrical appliances, parts, and components, driving remarkable growth that elevated the nation from low- to upper-middle-income status within a single generation.
Key indicators, such as Gross National Income (GNI) per capita, have demonstrated impressive growth, averaging 7.3 % annually between 1961 and 2023. The workforce is increasingly educated, with the share of the workforce having a tertiary education growing from 23% in 2010 to 33% in 2021. Malaysia has also achieved notable success in poverty reduction, with less than 1% of its population living below the international extreme poverty line of US$1.90 a day and only 2.7% below the average poverty line among its upper-middle-income peers at US$5.50. Additionally, the country boasts extensive global trade connections, engaging with 90% of countries worldwide, surpassing many of its regional counterparts.
Healthcare improvements have led to a steady increase in life expectancy, rising from 59 years in the 1960s to 75.2 years in 2024. Malaysia's openness to trade and investment has driven employment creation and income growth, with approximately 40% of jobs linked to export activities. Despite facing challenges such as the Asian financial crisis of 1997-1998, Malaysia has maintained an upward economic trajectory, averaging a growth rate of 5.4% since 2010. 
These achievements can be attributed to strategic development policies focusing on outward-oriented, labor-intensive growth, investments in human capital, and credible economic governance to ensure macroeconomic stability. However, as Malaysia prepares for its high-income transition, it confronts new challenges.
The current economic landscape is marked by slower growth, heightened inequality, and a lower proportion of high-skilled employment compared to its peers. Indicators such as wage and productivity growth, tax collection, social spending, environmental management, and corruption control are areas that require attention. 
Domestically, there is a growing sense that the middle class's aspirations are not being adequately met, with concerns over job quality and equitable wealth distribution. Trends such as aging and the changing nature of work brought by the advent of new technologies pose challenges to the workforce and the population, particularly as tertiary educated youths struggle to find high-skilled jobs and older workers approach retirement without sufficient savings. 
A significant proportion of children in Malaysia are still in learning poverty. Based on OECD 2023 and PISA 2022 scores, 42 percent of those at late primary age are not able to understand an age-appropriate text. These challenges are crucial to understand as Malaysia prepares for its high-income transition.
67.  	In the context of Malaysia’s economy, which entails more labour-intensive jobs (such as the production of electronic goods), including a more sophisticated tertiary sector, the Tribunal is unable to see how the applicant could not find some form of work in such a diverse and expanding economy, albeit the Tribunal acknowledges that there are challenges to continuing growth.  The Tribunal does not have evidence before it to indicate that the applicant lost his job as a [Occupation 1] for any reason under s.5J of the Act and nor is there any evidence that the state or any other non-state actors would actively prevent the applicant from finding work for any reason.  
68.  	While the applicant might have a subjective fear of harm, in that he fears he will not be successful in finding work in Malaysia and that the general level of safety is not as safe as in Australia, the Tribunal does not accept that the objective evidence supports his fear. 
69.  	Having had regard to the applicant’s claims the Tribunal does not accept:
•	The applicant ever borrowed RM50,000 or any other amount from a bank or any other financial institution.
•	He was unable to keep working as a [Occupation 1] because he could not attend work because he could not repay the bank loan and was consequently sacked.
•	That the applicant was ever blacklisted by any institution and permitted to leave the country.
•	The applicant ever entered a contract with an agent/building contractor who ran away with his borrowed money and the applicant was left with no money and no property.
•	The applicant ever worked as part of a smuggling operation(s) as a courier of smuggled goods across the [Country 1] border or at any location.
•	That the police confiscated the smuggled goods from him, and the applicant fled evading the police.
•	That the police were looking for the applicant but that he went into hiding for any period.
•	That the loss of the goods angered his [Country 1] boss such that the [Country 1] boss set thugs upon him to threaten him, beat him and possibly kill him.
•	That the applicant was ever threatened by the [Country 1] boss and his gangsters not to go to the police or something worse would happen.
•	That such a [Country 1] boss ever existed.
•	That the applicant’s child might be kidnapped or murdered for any reason under s.5J of the Act because the Tribunal rejects that the applicant has any adverse profile in Malaysia with the state, criminals, or any other actors.
•	That unaccounted for people go past the applicant’s parents’ home who might be related to the [Country 1] boss’s thugs.
•	That the applicant will not be able to find work of any kind in Malaysia such that he is not able to support his young family due to his lack of education or because he has no connections.
Conclusion
70.  	As the Tribunal has rejected that the applicant would suffer serious harm on account of being pursued by banks or that he owes money to any [Country 1] boss for the loss of confiscation of smuggled goods by the police, the Tribunal does not accept that the applicant were he to return to Malaysia now or in the reasonably foreseeable future, face a threat to his life or liberty, that he will face significant physical harassment of his person, that he will face significant economic hardship that threatens his capacity to subsist, that he would be denied access to basic services, where the denial threatens the applicant’s capacity to subsist or that he would be denied the capacity to earn a livelihood of any kind, where the denial would threaten the applicant’s capacity to subsist.
71.  	Nor is there evidence to indicate that the payment of taxes is targeted towards the applicant for any reason under s.5J because taxation is a matter which affects the population generally.
72.  	The Tribunal accepts that the applicant’s circumstances have now changed in that he would be returning to Malaysia a married man with a young child and that there may be some economic challenges in setting himself up financially.  However, the applicant has proven resilient and flexible in finding work in a country (Australia) where he did not speak the language and was able to be resourceful in finding work in two different industries, being the farming and factory sectors.  The Tribunal finds that the applicant’s characteristics are such that he and his family will not experience economic hardship that threatens their capacity to subsist.  As the Tribunal has rejected the applicant’s claims in their entirety, it follows that the Tribunal does not accept that the applicant faces a real chance of serious harm on return to Malaysia now or in the reasonably foreseeable future.
73.  	For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
74.  	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).
75.  	The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.  The Tribunal has had regards to the applicant’s claims, as above, regarding complementary protection, but has the same concerns which it wished to explore with him at hearing.  The Tribunal is not satisfied that the applicant has established that he will suffer serious harm for any reasons under s.5(J)(1)(a) of the Act.
76.  	For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from banks, the Malaysian state, a [Country 1] boss or his thugs, the authorities or anyone else for any reason if he returns to Malaysia, now or in the reasonably foreseeable future.  In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the definition.  Having found above that the Tribunal is not satisfied that there is a real chance that the applicant will face persecution for any reason, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.  Accordingly, the Tribunal does not accept that the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subjected to torture; or that he will be subjected to cruel or inhuman treatment or punishment; or that the applicant will be subjected to degrading treatment or punishment for any reason.  
77.  	The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
78.  	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
79.  	The Tribunal affirms the decision not to grant the applicant a protection visa.

Date of hearing: 28 November 2024

Representative for the Applicant: 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.
…