1414324 (Refugee)

[2015] AATA 3957

1414324 (Refugee) [2015] AATA 3957 (23 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414324

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Paul Windsor

DATE:23 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 23 December 2015 at 5:19pm

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 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] April 2014 and the delegate refused to grant the visa [in] July 2014.

3. The applicant applied to the Tribunal for review of this decision on 21 August 2014.

4. The applicant appeared before the Tribunal on 3 December 2015 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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, the applicant 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.

7. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. 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 a protection 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 the applicant 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’).

   Mandatory Considerations

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal took 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 any country information assessment 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

11. The applicant claims to be a citizen of Malaysia who was born in Negeri Sembilan, Malaysia on [date].  According to her Protection visa application she speaks Mandarin Chinese, is of Chinese ethnicity and the Buddhist religion.  Her application indicates that she departed Malaysia legally [in] May 2008 and arrived in [Australia] [in] May 2008.

    Summary of Claims from the Protection visa application

12. The applicant’s claims from her Protection visa application lodged [in] April 2014 (at folios 27-28 of departmental file CLF[number]) can be summarised as follows:

    ·She had to leave Malaysia for Australia because she was persecuted by the Malaysian government and the Malaysian government had been implementing ‘the discrimination policies against Malaysian Chinese’.  The discrimination policies and privilege for local Malays has deprived Malaysian Chinese of their rights.  All the parties in power are Malays and it is impossible for Malaysian Chinese to have a relationship within government organisations and Malays take the side of Malays.

    ·In 2008 she was operating a [business] when she was robbed by a group of Malaysians with knives.  They also broke her [property].  They said they would come back for protection fees.  She went to the police station to report this but because she is Malaysian Chinese the policemen ignored her and did not even give her a record of complaint.

    ·She tried to continue her business one month later but was again approached by this group who wanted protection fees of 800 dollars.  She refused as this was more than her monthly income.  They were angry and burned up her [property].  They claimed they had a relationship in government and that if she reported the matter to the police her life would be in peril.

    ·She ran her business honestly but was treated unfairly because of her Chinese descent.  She was oppressed by gangs which had support from the government and therefore could not run her business.

    Evidence from the hearing on 4 December 2015

13. At the hearing on 3 December 2015, the applicant indicated that she lived in [village], a largely ethnic Chinese village in [Negeri Sembilan] state.  Her parents and [siblings] also lived there.

14. She ran a [business at a location], not far from her husband’s [house], which is located about 20 minutes from [village].  The applicant described the [location of the business] as an illegal building that her husband built, which consisted of a small room with a pull down lockable roller door.  She said she worked from 10 am until 8 pm and that while her husband worked with her at first she later worked at the [business] alone.  The applicant said the [business] was located in the countryside about five minutes’ walk from the nearest house.  The applicant indicated that she travelled to the [business] each day by motorbike.

15. The applicant said that [in] February 2008 a group of ethnic Malay people approached the [business] when she was about to finish up for the day.  They had knives and came to try to grab her money.  She gave them the days’ takings of about 100 Malaysian Ringgit (RM).  They said they would come back and that she would have to pay them fees for protection.

16. The applicant said she reported the incident to the police [the] same night.  She claimed that the police officer at the counter listened to her account of what happened but did not take a statement, he just asked her to sit and wait.  She waited for about an hour and no-one came to talk to her so she left.  She tried to speak to the officer at the counter again but he had papers in his hand and pretended to be busy and just ignored her.

17. She returned to her parents’ house in [the village] where she was living and told her parents what had happened.   Her father told her those people are dangerous and that it would be better if she did not run her [business] anymore.

18. She decided to restart the business after a month because she needed the money to raise her child and she thought the gang might think she had stopped completely.  On the first day when she re-opened, the group came back, at about 8 pm when she was about to pack up.  She can’t recall the exact day but it was between [dates in] March.  They wanted a protection fee of RM 800.  She told them she did not have so much money but they said they need RM 800 each month.  She told them she can’t earn that much by herself and they became agitated.  They wanted to set fire to her [business] and when she tried to stop them they pushed and hit her on her face.  In the struggle she cut her arm.  Her [property] was destroyed.  She was threatened that if she dare to report to police again, they would come back and hit her harder and would try to get her to work as a prostitute.  She did not report the incident to police as she was too scared, they told her they were connected to the police and in Malaysia the police are well known for corruption.

19. About a week after this incident the applicant went to a [workplace] in [the] city called ‘[name]’ to find a [job].  She thought this was around the end of March.  She worked there for about a week.  While working at the [workplace] a group of Malay people approached her saying that her husband had borrowed money and they had tried to contact him but could not get through and asked her how they could find him.  When she said that she didn’t know, that she had already divorced him, they said that as she was the guarantor, if they can’t find him she will have to repay the loan.

20. The Malay people waited for her for about an hour outside the [workplace].  She was very scared so she called a friend and asked the friend to pick her up from the rear of the [workplace].  She was too scared to go home so she stayed with her friend for two weeks.  Her friend lived about 10 minutes from her parents’ house. 

21. In mid-April, when she was still living with her friend, she called her father.  He said she couldn’t come home as those people come from time to time looking for her, and that it would be better if she went overseas.  The applicant indicated that the people came to her father’s house twice a day, three days a week.  She indicated that she did go back to her father’s house for a week before she left for Australia.  When asked why she did this, the applicant said she was hiding at home and didn’t come out.  When asked if the people came while she was there she indicated that they did not.

22. The applicant indicated that her husband had borrowed money before and had previously stolen her father’s certificate of ownership for his car, and had used that document to borrow RM 20,000 from a loan shark with the car as bond.  When her husband did not pay the money back the loan sharks came to her father’s house to take the car away.

23. The applicant indicated that the people stopped visiting her father’s house after two weeks but kept calling occasionally.  Then they stopped calling for quite a long time, however, at the beginning of October 2015 they called again asking to speak with her husband, and when told he does not live there anymore they asked about her.  They only called once but said her husband owes money.  She is very concerned as she does not know how much her husband borrowed using her name.

24. The applicant indicated that her father has not been threatened and has not gone to the police.  When asked why not if his car was used as bond, the applicant said that when they tried to take the car she had to talk to the biggest owner of the loan shark and it was agreed that if they paid RM 1,000 a month they would not take the car.  Her father reported the matter to the police but the police said it is a private matter they need to resolve themselves.  She indicated that she did not pay this money because she couldn’t.  When asked why her father had not experienced any problems, the applicant indicated that her husband’s [sibling] borrowed money from a bank to repay the loan shark.  The applicant indicated that her husband’s [sibling] now wants her to repay him RM 500 per month and her husband’s mother rang her begging her to do so.

25. The applicant commented that she is too scared to imagine what might happen if she returns to Malaysia now.  She fears the loan shark people will chase her for her husband’s debts and that if they can’t locate him they will come to her.

    Findings and Reasons

26. The issues in this review are whether there is a real chance that, if the applicant returns to Malaysia, she will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

27. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

28. On the basis of the copy of the applicant’s Malaysian passport provided to the Department, the Tribunal finds that the applicant is a citizen of Malaysia.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Malaysia.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Malaysia, the Tribunal also finds that Malaysia is the applicant’s ‘receiving country’ for the purposes of s.36(2)(aa).

29. The Tribunal has concluded that the applicant has concocted her story.  The Tribunal finds that ethnic-Malay gang members did not rob the applicant or destroy the applicant’s [business]. The Tribunal finds that the applicant has not been harassed or threatened by loan sharks and is not at risk from loan sharks should she return to Malaysia.  The Tribunal has reached these conclusions for the following reasons.

30. At the hearing on 3 December 2015, the applicant introduced entirely new and significant claims.  She had not previously claimed that her estranged husband had borrowed money from loan sharks with her as a guarantor and that she had been harassed as a consequence.  In her Protection visa application lodged [in] April 2014, she indicated that she left Malaysia because she was persecuted by the Malaysia government which has discriminatory policies against ethnic Chinese, and specifically because she claimed that she tried to run a [business] but was oppressed by gangs which had the support of the government.  However, at the hearing she claimed that she changed to new employment as [occupation] at a [workplace] but had to leave that employment and subsequently flee Malaysia because she was harassed by people who were working for loan sharks, seeking repayment of a debt or debts her husband had incurred.  She claimed that she was afraid to return to her parent’s house, where she had been living, and so stayed with a friend nearby, before returning to her parents’ house for a week and then fleeing for Australia.  She claimed that the people working for the loan sharks called at her parents’ house regularly for two weeks and then rang occasionally for a period.  She claimed that they stopped calling for a long time but was told by her parents that people had called again in October 2015.

31. The Tribunal asked the applicant why she had not raised these claimed previously.  The applicant indicated that she found it too private, too embarrassing.  The Tribunal does not accept this explanation.  The Tribunal considers that the applicant would have put the strongest case possible for protection when she had the opportunity to do so, particularly after waiting six years after arriving in Australia to lodge an application for a Protection visa.

32. The Tribunal also asked the applicant why she waited until [April] 2014, over six years after her arrival in Australia [in] May 2008, to apply for a Protection visa.  The applicant commented that she wasn’t aware she could apply until she heard through a friend.  The Tribunal does not accept this explanation.  The Tribunal considers that if the applicant held fears for her safety in Malaysia due to harassment from loan sharks, as she claimed at the hearing, she would have made inquiries and found out about the option to apply for a Protection visa well before six years after her arrival in Australia.

33. At the hearing, the Tribunal asked the applicant why she travelled from [city] to live in [town] (in regional [State]) when she came to Australia.  She indicated that she was referred there by a man in Malaysia because there is a place there that needs workers.  The Tribunal asked the applicant exactly when she first spoke to people about working in Australia.  She indicated it was in mid-December 2007.  The Tribunal asked her what visa she entered on and whether it allowed her to work.  She said it was an ordinary visa for 3 months which did not allow work.  The Tribunal subsequently asked the applicant whether, if she first started talking to people about coming to Australia in December 2007, which predated the incidents she claimed occurred with her [business] in February and March 2008, she was already thinking in 2007 of coming to Australia to work illegally.  She replied ‘yes’ and commented that she did have those thoughts but felt her child was too young.  Based on the applicant’s comments above, the delay in her applying for a Protection visa, and her failure to detail all her claims in her Protection visa application, the Tribunal concludes that her motive in coming to Australia was to work illegally.

34. The Tribunal also asked the applicant if she attended an interview with the department after she applied for a Protection visa.  She indicated that she did not because she did not know what to do. When asked if she got a letter from the department she indicated that she did not.  When asked if she had seen the department’s decision in her case and knew why she was refused a Protection visa, she said she had seen the decision but was not quite sure why her application was refused as a friend just told her in general about it, because her friend’s English, like hers, is not good.  While the Tribunal does not give significant weight to this matter in isolation, the Tribunal, noting that the departmental decision indicates that the applicant was invited via letter [in] May 2014 to contact the department to arrange an interview, considers that if the applicant had strong concerns regarding her safety in Malaysia, she would have ensured that she got advice regarding what correspondence from the department said, and would have taken an opportunity to discuss her claims at interview when that was offered to her.

35. The applicant claimed that she was robbed by an ethnic Malay gang in February 2008, her [business] was destroyed by the same ethnic-Malay gang on a date between [dates in] March 2008, and that about a week later (which would be [dates] March) she commenced working at [a workplace].  She claimed that she worked there for about a week (which would be [dates] March) before she was approached by 3 ethnic Malay men looking for her husband.  The applicant claims that she called a friend and fled in fear out the back entrance and stayed with the friend, who lived 10 minutes away, for 2 weeks.  She claimed she spoke with her father in mid-April who advised her not to come home because men were calling at the house looking for her.  She said she remained at her friend’s house until a week before she came to Australia, at which time she returned to her parent’s house before leaving for Australia.  The Tribunal carefully checked these details with the applicant, confirming her movements over this period.  She said she did not do anything but just stayed at home in the week after her [business] was burnt.  She confirmed that after the claimed incident at the [workplace] she did not stay anywhere other than with her friend who lived 10 minutes from her parent’s house.  The Tribunal then asked the applicant about the information in her Protection visa application, verified by the stamps in her passport, indicating that she travelled to [Country 1] from [dates] March 2008 and again from [date] March until [date] May 2008.  The applicant said that she did go to [Country 1] looking for a job but failed due to her age and qualifications.  When asked why she did not mention this at the hearing, the applicant commented that it seems it was such a long time ago and she forgot.  When the Tribunal asked whether she was really hiding with a friend she replied that she was.  The Tribunal finds that the applicant’s account of what happened to her from mid-March 2008 until she left for Australia [in] May 2008 is inconsistent with her travel to [Country 1] from [dates] March and from [date] March until [date] May 2008. 

1. The Tribunal also asked the applicant what the address was of the [workplace] that she claimed to work at.  She replied that she did not know.  The Tribunal asked what street it was on, she said she did not know.  The Tribunal does not accept that the applicant could work at a [workplace] for a week and not know what street it was on.  Based on this finding and the conflict between the applicant’s account of what happened from March through to May 2008, detailed in paragraph 35 above, and her being in [Country 1] for key periods over that time, the Tribunal finds that the applicant did not work at [the workplace], was not approached there by loan shark gang members, and did not flee to a friend’s place to hide.  The Tribunal finds that gang members did not go to her parents’ house looking for her.  In relation to this last point, the Tribunal also gives weight to the applicant’s comment that she returned to her parents’ house for a week before coming to Australia.  When asked by the Tribunal why she would do this if gang members had been calling there regularly, she commented that she was in hiding at home and wouldn’t come out.  The Tribunal does not accept that the applicant would have returned to her parent’s house in these circumstances if she genuinely feared that gang members might come calling looking for her.  The Tribunal finds such action to be inconsistent with her claim to have fled out the back entrance of the [workplace] to avoid the gang members and to have stayed at a friend’s house because she was too scared to go home.

2. Having found that the applicant has lied about key aspects of her claims, the Tribunal finds that she is not a reliable witness.  Drawing on this finding, the Tribunal also does not accept that the applicant was robbed by an ethnic Malay gang in February 2008 or that her [business] was destroyed by the same ethnic Malay gang members, seeking protection money, on a date between [dates] March.  In this regard, the Tribunal asked the applicant why she would return to work at the [business], against her father’s advice, after being robbed, when she was clearly vulnerable as a lone woman working in a location in the countryside with no other [businesses] nearby and five minutes’ walk from the nearest property.  The applicant indicated that she needed the money, other employment did not pay as well and she thought the gang members might think she had closed down for good after being closed for a month.  The Tribunal does not consider this a plausible explanation, given the clear risks she would have faced from a knife wielding gang of youths.

3. The Tribunal does not accept the applicant’s claim that her estranged husband’s [sibling] borrowed money from a bank to pay off her estranged husband’s loan shark debt and then the [sibling] and her estranged husband’s mother pressured the applicant to make repayments to her estranged husband’s [sibling], and that she made two repayments.  This is because, having found that the applicant has lied about key aspects of her claims, the Tribunal finds that she is not a reliable witness.  The Tribunal also does not accept that the applicant would take any responsibility for her estranged husband’s debts, regardless of pleadings by her estranged husband’s mother.

4. The Tribunal does not accept that people working for a loan shark have called the applicant’s parents in October 2015 seeking information on the whereabouts of the applicant’s estranged husband and the applicant regarding a loan shark debt.  This is because, having found that the applicant has lied about key aspects of her claims, the Tribunal finds that she is not a reliable witness.  The Tribunal concludes that she has fabricated this claim in an attempt to strengthen her case. 

5. Having determined that the particulars of the applicant’s account as detailed above are false, and that her motivation in coming to Australia was to work illegally, the Tribunal considered the applicant’s generalised claims that the Malaysian government discriminates against ethnic Chinese and Malaysian Chinese are deprived of their rights.  In this regard, the Tribunal gave weight to country advice from the Australian Department of Foreign Affairs and Trade (DFAT)[1] that indicates:

   [1] Australian Department of Foreign Affairs and Trade, DFAT Country Report, Malaysia, 3 December 2014.

   ·While the Malaysian Constitution accords a ‘special position’ for bumiputera, permitting affirmative action policies that favour ethnic Malays, it forbids discrimination against citizens on the basis of religion and race;

   • Ethnic Chinese comprise 24.6 per cent of the Malaysian population.  There are no laws or constitutional provisions that directly discriminate against ethnic Chinese in Malaysia;
   • While they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service, DFAT assesses that ethnic Chinese in Malaysia generally do not experience discrimination or violence on a day-to-day basis; 
   • Ethnic Chinese in Malaysia have traditionally dominated the private economy;

   ·Buddhists represent 19.8 per cent of the total population of Malaysia and there are many non-Muslim places of worship in Malaysia; and

   ·Overall, DFAT assesses that Buddhists are normally able to practice their religion without interference and do not face discrimination on a day-to-day basis in Malaysia.

   ·Overall, the Royal Malaysian Police (RMP) is considered by credible local and international sources to be a professional and effective police force with reasonable capacity levels.  However, the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption.

6. When this information was put to the applicant for comment, she responded citing a case where she claimed an ethnic Malay who stole a mobile phoned was cleared but then accused the Chinese shop owner of doing wrong.  The Tribunal accepts that there may be isolated instances of injustice, but considers that the DFAT advice cited above, drawn from credible local and international sources, indicates that this is not widespread.  The applicant also commented that in her case, she reported that she was robbed to the police, but was ignored.  As the Tribunal found that this incident did not occur, the Tribunal has given this comment no weight.   The Tribunal does accept, however, as indicated above, that the quality of police responses varies, including due to capacity levels, and that there is evidence that some Malaysian police are corrupt.  However, the information makes clear that the Malaysian police are not ‘all bad’ and that overall they are regarded as professional and effective.   On the basis of this country information, the Tribunal concludes that the applicant does not face a real chance of persecution amounting to serious harm due to her Chinese ethnicity. 

   Does the applicant have a well-founded fear of persecution if he returned to Malaysia?

7. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution amounting to serious harm, if she were to return to Malaysia, now or in the foreseeable future.

8. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   Complementary protection

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

10. Having regard to the findings of fact set out above, the Tribunal also does not accept 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, now or in the foreseeable future.  The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

11. 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

12. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Paul Windsor
    Member