1706124 (Refugee) [2017] AATA 2078 (18 July 2017)

Last Updated: 7 November 2017

1706124 (Refugee) [2017] AATA 2078 (18 July 2017)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1706124

COUNTRY OF REFERENCE: Malaysia

MEMBER: Linda Holub

DATE: 18 July 2017

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 July 2017 at 11:33am

CATCHWORDS
Refugee – Protection visa – Malaysia – Debts – Loan Shark – Credibility Issues – Unreasonable delay in lodgement of protection visa applications – Inconsistent evidence – No well-founded fear of persecution – No complementary protection available

LEGISLATION
Migration Act 1958, ss 5H, .5H(1)(a)-(b), 5J(1)(a), 5J(2)-(6) , 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), s36(3), 36(2A), 36(2B), 65, 499
Migration Regulations 1994, Schedule 2

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 dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] October 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the application is a person in respect of whom Australia has protection obligations.

CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
4. 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.
5. 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 themself 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).
6. 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.
7. 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

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issues in this case is whether the applicant has a well-founded fear of persecution in Malaysia for one or more of the reasons set out in the Migration Act and, if not, whether there are 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 he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
10. The applicant’s written claims for protection are contained in the application forms received by the Department of Immigration and Border Protection [in] October 2016 The Tribunal has before it the Department’s file relating to the applicant’s application and the Tribunal’s file relation to the review application. The Tribunal has also given consideration to the delegate’s decision record.
11. The following is a summary of claims and information provided by the applicant in his Protection visa application:
    1. He borrowed money illegally through a moneylender and he cannot pay them back because they charge ridiculous interest. They could harm and possibly kill him. He owes them MYR [amount] but it has risen to MYR [amount] and the interest is raising that amount every week due to the late payment.
    2. They have said they will kill him and don’t care about the money as long as they satisfied.
    100. He moved to a different state after he was blackmailed but they can track him anywhere as long as he is in Malaysia.
    4. Although he has made a police report the police don’t take any action and the authorities are involved in corruption.
12. Following the delegate’s decision, [in] March 2017 the applicant applied to the Tribunal for a review of that decision. The Tribunal wrote to the applicant on 21 June 2017 inviting him to a hearing on 13 July 2017. The Tribunal took evidence from the applicant on that date. The Tribunal hearing was conducted in the English language.

FINDINGS AND REASONS

Nationality

13. The Tribunal has sighted a photocopy of the applicant’s passport and accepts he is a national of Malaysia as claimed.
14. The Tribunal finds that the claims should be assessed against Malaysia for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). Similarly, the Tribunal is satisfied that the applicant does not have a right to enter and reside in another country for the purposes of s.36(3).

Material under a public interest non-disclosure certificate

15. There are no non-disclosure certificates on the applicant’s file.

CONSIDERATION OF CLAIMS AND EVIDENCE

Does Australia have protection obligations to the applicant under the refugee criterion?

16. In considering the above issues the Tribunal has had regard to the Department of Foreign Affairs and Trade’s Country Report on Malaysia, dated 19 July 2016. The Tribunal has also had regard to the applicant’s written application to the Department and his oral and written the Tribunal.
17. At hearing the Tribunal asked the applicant about the preparation of his Protection visa application. He explained that he wrote it himself. The Tribunal confirmed that he knew what was written and he had no changes to make.
18. The Tribunal asked the applicant about the delay in the lodgement of his application noting from the stamp in his passport that he arrived in Australia in March 2016 but did not lodge an application until October 2016. The applicant stated that he originally came to Australia for a holiday but about a month after he arrived, his father told him that people to whom he owed money, started to ask about him and he decided that it was dangerous for him to return. The Tribunal noted that he had remained in Australia illegally for a period. The applicant stated that he did not know how to legalise his status. The applicant stated that after he was involved in a car accident he saw a lawyer and told the lawyer about his situation and was advised him that he should apply for protection.
19. In discussing the applicant’s background with him, the applicant stated that after he finished school he attended [college]. Prior to coming to Australia he worked as [occupation] in [Workplace 1].
20. The Tribunal asked the applicant if had been harmed in any way before he left Malaysia. He said he had not been harmed.
21. The Tribunal asked him what he fears if he were to return to Malaysia. The applicant stated that he fears the loan shark because he has not re-paid a debt. He stated that he borrowed money for a sideline [business]. He stated that he borrowed the equivalent of $A [amount]. He said he initially paid every month but the interest rate kept increasing.
22. The Tribunal asked the applicant what actual harm he fears. He stated that usually loan sharks when the find the person owing money will kill them or they are prepared to cut off a person’s hand. He stated that he has seen this on TV.
23. The Tribunal asked the applicant how many times the loan shark had come looking for him. He stated that they start coming in about April 2016 and had come about five or six times. He stated the first time they came they spoke with the applicant’s father but after that the applicant advised his father to stay at his [other child]’s place. His father’s neighbours have told him that the loan sharks keep looking for the applicant.
24. The Tribunal put it to the applicant that his claim to have borrowed the equivalent of $[amount] appears to be highly excessive in Malaysian terms and was inconsistent with the figures he had provided in his written application. In his application, he claimed that he had borrowed MYR [amount] (or approximately $A [amount]) rising to MRY [amount]. The applicant responded that there may have been some confusion about the amounts. He stated that in earlier evidence he claimed that he said that he had now owed $ [amount], not that he initially borrowed that amount. The Tribunal reiterated the oral evidence he had provided when he described he opened his business and had borrowed $ [amount]. The Tribunal asked him if he wished to comment. He repeated that there may have been confusion regarding his evidence,
25. The Tribunal asked the applicant about is claims that “they would kill him” and whether he had received death threats. He responded that he had not received any death threats yet.
26. The Tribunal asked the applicant about his claim that he had been blackmailed explaining the term to him. The applicant stated that he had not been blackmailed.
27. The Tribunal asked the applicant about his claim that he had made a police report and asked what he had reported given he had not been harmed or threatened and had not been in Malaysia since the loan shark started looking for him. He said that in Malaysia, the issue of loan sharks is a big concern and therefore it is possible to lodge a report with the police if you fear them.
28. The Tribunal indicated that it was aware of the concerns within Malaysia regarding the practices of loan sharks. It outlined independent information available regarding the prevalence of borrowing from loan sharks and that for some years now the government and police have targeted loan shark activities through a number of major operations and campaigns^[1]. The applicant responded that because the police are ineffective NGO’s are playing such a role.
29. The Tribunal asked the applicant about the option for him to relocate to another part of Malaysia if he is concerned about the loan shark. In response he referred to the size of Malaysia and the easy ability to drive to other areas. When asked how the loan shark would know his whereabouts, he said through social media.
30. The Tribunal put to the applicant that it had a number of concerns regarding his claims and evidence. The Tribunal referred to the lengthy delay between his arrival in Australia and his claim for protection. The Tribunal also noted the applicant’s willingness to remain illegal in Australia. He responded that he had no one to guide him on how to apply. The Tribunal noted that he chose not to use an interpreter and he wrote his application in English himself, indicating that he had good English language skills and could have sought out the information. He responded that he spent some time in [Town 1]. The Tribunal asked him why that would prevent him from researching visa options. He did not respond. The Tribunal asked him what he was doing in [Town 1], noting his earlier evidence that he had not worked since he arrived in Australia. He responded that he worked for a period [of time]. The Tribunal indicated that it was concerned he had changed his evidence. The applicant did not respond.
31. The Tribunal also indicated that it had concerns regarding his credibility referring to information he had provided about the amount of money he had borrowed. He again referred to the possibility that his evidence had been misunderstood. The Tribunal also referred to the fact that when first asked what he was doing in Malaysia before he came to Australia he did not refer to the fact that he ran a business on the side. He only referred to his position at [Workplace 1]. The applicant responded that he thought he had been asked about his job.
32. The Tribunal was prepared to accept that the applicant may have answered the question in that way because of a misunderstanding. However, overall, the Tribunal did not find the applicant’s evidence convincing and therefore was not satisfied as to the veracity of his claims.
33. As noted, the Tribunal has concerns about the almost six months between the applicant’s arrival in Australia and the lodgement of his application, the fact that he was prepared to be illegal and the inconsistent evidence he provided. The Tribunal does not consider the applicant’s explanation to be satisfactory. Overall, taken into account the applicant’s claims and evidence, the Tribunal does not find the applicant to be a credible witness.

Findings

34. Having considered the applicant's oral evidence:
    1. the Tribunal accepts that the applicant was born in Malaysia on [date], in the state of Negeri Sembilan and that he arrived in Australia on [date] October 2016.
    2. the Tribunal accepts that the applicant was not harmed in anyway before he left Malaysia.
    100. the Tribunal does not accept the applicant borrowed money from a loan shark to set-up a [business] or that the loan shark has come searching for him.
35. In view of the above findings the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm if he returns to Malaysia now or in the reasonably foreseeable future.
36. Having considered the applicant's claims and his evidence, the Tribunal finds that there is no real chance that he will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

Does Australia have protection obligations to the applicant under the complementary
protection criterion?

37. The Tribunal has considered the applicant's claims under complementary protection. In view of the above findings, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm if he returns to Malaysia now or in the reasonably foreseeable future.
38. Having considered the applicant's claims and his evidence, the Tribunal is not satisfied that there is a real risk that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Malaysia now or in the reasonably foreseeable future.
39. Accordingly, the Tribunal is not satisfied that 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 he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

CONCLUSIONS

40. 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).
41. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
42. 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

43. The Tribunal affirms the decision not to grant the applicant a protection visa.

Linda Holub
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.
...

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 them 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 illtreatment 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 wellfounded 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 wellfounded 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

...

(2A) A noncitizen will suffer significant harm if:

(a) the noncitizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the noncitizen; or

(c) the noncitizen will be subjected to torture; or

(d) the noncitizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the noncitizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a noncitizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the noncitizen to relocate to an area of the country where there would not be a real risk that the noncitizen will suffer significant harm; or

(b) the noncitizen could obtain, from an authority of the country, protection such that there would not be a real risk that the noncitizen 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 noncitizen personally.

...

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^[1] DIBP, Country Information on Common Claims in the Malaysian Onshore Protection Caseload, 30 September 2015 and DFAT, Country Information Report, Malaysia, 19 July 2016.