1506060 (Refugee)

[2015] AATA 3532

1506060 (Refugee) [2015] AATA 3532 (29 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506060

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Rodger Shanahan

DATE:29 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 29 October 2015 at 11:28am

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] August 2014 and the delegate refused to grant the visa [in] April 2015.

   CLAIMS AND EVIDENCE

3. Protection Visa Application

4. The applicant claimed that he had borrowed from a money lender to run a small business, however the business got into difficulty and he could not repay the loan.  He claimed that the money lender or his friends would harm him to recover their money.

   RRT hearing dated 29 October 2015

5. The applicant failed to appear before the Tribunal on the day and at the time and place at which he was scheduled.  His ‘response to hearing invitation’ was returned to the Tribunal, indicating that neither the applicant nor his representative would be attending the hearing.   Pursuant to section 426A of the Act, I have decided to make my decision on the review without taking any further action to enable the applicant to appear before me.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is a [age] year old single Tamil Malaysian small business owner.  The Tribunal accepts that he is a citizen of Malaysia based on the copy of the applicant’s passport on the departmental file.

7. The mere claim to fear persecution for a particular reason is not sufficient to establish that such a fear is either genuine or ‘well-founded’. The applicant is required to satisfy the Tribunal that all of the statutory elements necessary to establish that such a fear exists, are met. As Kirby J stated (MIEA v Guo (1997) 191 CLR 559) at 596:

   ‘the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for reasons of political opinion.  It remains for the Minister in the first place to be satisfied and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.’

8. In this case the applicant’s written claims are very brief and lack detail. His claim that he fled Malaysia to escape a personal financial debt, and that he would be discriminated against because of his ethnicity.  I do not accept that the incident regarding a debt to a money lender occurred given the delay in applying for a protection visa.  The applicant arrived in Australia in November 2011 and yet did not apply for protection until June 2014. 

9. I also note that the applicant never attended his DIBP interview.  It is reasonable to believe that someone who feared serious harm and had to flee Malaysia would seek protection in Australia earlier than two and a half years after arriving here, and would be willing and able to provide information about those claims when invited to do so.

10. While I accept that there is institutionalised discrimination in Malaysia through affirmative action programs for indigenous Malays, the applicant provided no details as to the type or level of discrimination he claimed that he faced and I am not satisfied that any discrimination he faced reached anywhere near the threshold of serious harm for Convention purposes. 

11. As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.  

    Complementary Protection

12. Because I do not accept that the applicant owes a money lender an unpaid debt given the lack of evidence to support such a claim, or that any discrimination the applicant faces constitutes significant harm.

13. I also do not accept 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 on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

    CONCLUDING PARAGRAPHS

14. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

15. 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).

16. 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

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

    Rodger Shanahan

    Member

    ATTACHMENT A – RELEVANT LAW

    1. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of 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.

    2.        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).

    3.        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’).

    4.        In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 – to the extent that they are relevant to the decision under consideration.