1506354 (Refugee)

[2015] AATA 3531

1506354 (Refugee) [2015] AATA 3531 (30 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506354

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Linda Symons

DATE:30 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 30 October 2015 at 10:34am

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, arrived in Australia [in] December 2013 as the holder of a [temporary] visa. This visa expired [in] March 2014. He thereafter remained in Australia as an unlawful non-citizen. He was granted a Bridging visa [in] October 2014 in association with his application for a Protection visa. [In] January 2015, he was granted a further Bridging visa.

3. The applicant applied to the Department of Immigration and Border Protection (the Department) for the Protection visa [in] October 2014 and the delegate refused to grant the visa [in] April 2015. On 10 May 2015, he applied to the Tribunal for review of that decision.

4. The applicant appeared before the Tribunal on 23 October 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 issues that arise on review are whether Australia has protection obligations to the applicant under the Refugees Convention or under the complementary protection criterion.

   RELEVANT LAW

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.

   Refugee criterion

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).

   Complementary protection criterion

8. 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’).

   Section 499 Ministerial Direction

9. 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 – 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 AND FINDINGS

10. The applicant’s claims in his visa application are summarised as follows:

    ·He is ethnic Chinese and was born in Malaysia. He suffered from unfair treatment in Malaysia so he lodged an application for a Protection visa.

    ·Ethnic Chinese in Malaysia are discriminated against and there are restrictions on them in the economic, educational and employment sectors. Because of the government’s discriminatory policies, the proportion of ethnic Chinese has declined.

    ·Many ethnic Chinese make a living doing small businesses. They work hard and this makes the Malaysians anxious and jealous. Most civil servants are Malays and they use various means to oppress the ethnic Chinese.

    ·His father ran a [product] business in Malaysia. Because his business was busy, his father asked him to return home in 2013. They were oppressed by the local Police and had to pay them [an amount] RM per month as “tea money” to do business safely. The Police colluded with “gangdom” and made trouble for them.

    ·In 2012, a Malay called [name] opened a shop nearby to do similar business but it closed in less than a year. In October 2013, he spoke to his father, said he was interested in participating in their business and said he was related to the Police Chief. His father refused to do so.

    ·In November 2013, two Policemen went to their shop. He gave them [the amount] RM but they asked for more. He argued with the Policemen. One of them hit him and he pushed him. They had a fight. The Policemen called for backup and he was accused of attacking the Police. He was taken to the Police Station and his father had to pay [a further amount] RM in bail to secure his release.

    ·Three days later, four hooligans went to their shop. They smashed things in the shop. The clients were frightened and left. He got into a dispute with them and they beat him. The staff called the Police who did not make any records and let the hooligans leave. He questioned the Police and was accused of slander. He was taken to the Police Station and detained for 48 hours.

    ·They became angry and realised it was useless to report incidents to the Police. The government is corrupt and ethnic Chinese are subjected to unfair treatment. His father decided to close their shop and he sold it to a Malay at a low price.

    ·He had the idea to come to Australia and start a new life. He requests the Australian government to lend him a hand because he cannot continue to live in Malaysia.

11. The applicant was invited to attend an interview with the delegate and failed to do so.

12. The applicant has filed with the Tribunal a copy of his passport.

    Does Australia have protection obligations to the applicant under the Refugees     Convention?

13. The Tribunal finds that the applicant is a citizen of Malaysia, based on his passport which is before the Tribunal, and will assess his claims on this basis. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than his country of nationality.

14. The applicant gave evidence to the Tribunal that a friend of his helped him to prepare his visa application. He stated that he provided his friend with the information to prepare his visa application and that the information he provided him was true and correct.

15. The Tribunal has considered the evidence given by the applicant and has serious concerns in relation to his credibility and the veracity of his claims. The Tribunal did not find the applicant’s evidence to be convincing or persuasive. His evidence was confused and confusing. There were significant inconsistencies between his written and oral evidence and internal inconsistencies within his oral evidence. The Tribunal found some of his claims to be implausible. The Tribunal formed the view that he was fabricating his evidence as he was giving it. The Tribunal’s concerns are noted below.

16. During the hearing, the Tribunal discussed his background with the applicant. He stated that he was born in Malaysia on [date]. He stated that he has [family composition]. He stated that his father and his father’s brother owned a business together but they had a falling out about 10 years ago. He stated that as a result of this the business had to be closed down. He stated that his father had to work for someone else for a while. He stated that, with the help of another relative, his father then set up a new business. He stated that his father now owns a factory that produces [food] products. He stated that his father is the boss and his mother also works in the business.

17. The applicant gave evidence that he only had 4 years of schooling in Malaysia. He stated that he started working for his father when he was about [age] years old and worked for his father for about 20 years. He stated that he used to deliver [specific food products]. He stated that when he was young he did not listen to his father. He stated that he saved money and went to [Country 1] for a holiday. He stated that in [Country 1] he gambled and had no money. He stated that he then worked for a [business] in [Country 1] doing odd jobs such as sweeping the floor. He stated that his father asked him to return to Malaysia. He stated that he did so and continued working for his father. He stated that he did not listen to his father and his father did not give him money so he worked for someone else for about a year collecting [products]. He stated that his father asked him to go back to him and he did. He stated that he continued working for his father. He stated that his father did not like him, was ill tempered and did not want to give him money.

18. The applicant gave evidence that he liked to travel. He stated that he travelled to [Country 1] many times as well as [Countries 2 and 3]. He stated that he particularly liked [City 4]. He stated that he has relatives in [Country 3] and a relative asked him to go to [Country 3] and work for him. He stated that he did not do so because he does not know English. His passport has numerous stamps which indicate that he has travelled to [Country 1] (and [City 4]) several times as well as to [Countries 2 and 3].

19. The applicant gave evidence that he has no family in Australia but has a girlfriend who is a student. He stated that since coming to Australia he has lived in [four suburbs]. He stated that in Australia he has worked as [two occupations]. When asked whether he has any friends in Australia, he responded that they did not want to know him anymore because he owes them money and they have asked him to return their money.

20. In his visa application, the applicant claimed that he had [number] years of education and that he worked in sales in [Country 1] from January 2011 to June 2013 and in sales at [a company] in Malaysia from July 2013 to December 2013. He claimed that his parents lived in Malaysia but did not disclose that he had any siblings. He claimed that he lived [a location] in [Country 1] from January 2011 to June 2013 and at the same address in Pulau Pinang in Malaysia from September 2004 to December 2013. This evidence in his visa application is not consistent with his oral evidence to the Tribunal.

21. During the hearing, the Tribunal discussed with the applicant his reasons for leaving Malaysia. The claims made by the applicant at the hearing were very different to the claims made by him in his visa application. At the beginning of the hearing, he stated that his mother told him to come to Australia and not return to Malaysia and if he goes back they will want to kill him. He repeated this several times during the hearing in response to different questions he was asked. The Tribunal formed the view that he had memorised this and was reciting it by rote.

22. The applicant gave evidence that his friend tricked him to borrow money at a high interest rate. He stated that after his father’s business closed down he “suffered” and had no choice. He stated that he borrowed [an amount] Malaysian ringgit 10 or 11 years ago from a money lender in Penang. He stated that his friend told him he would help him and he could invest the money. He stated that the money lender required his finger print. When asked who he borrowed the money from and what the arrangement was for repayment of the loan he was evasive and did not answer the questions. When asked what the interest rate was, he responded that his friend tricked him, he does not know, he had to put his finger print, his friend said the interest is not a problem and they want to come to Australia and catch him.

23. The Tribunal asked the applicant how his friend tricked him. He responded that when his friend found out that his father’s business had closed down he said he would help him out. He stated that he was his good friend. He stated that his friend took the money and ran away. He stated that someone wanted to kill him. He stated that he was assaulted. He stated that his mother reported this to the Police but they cannot protect him all the time. He stated that his mother gave him some money and told him to leave. He stated that they are now sending someone to Australia to catch him. He stated that they called his friend and told him they wanted to find him and take his life. He stated that they asked him to go back to Malaysia and he cannot go back.

24. The Tribunal asked the applicant when he was assaulted. He stated that this happened about 9 or 10 years ago. He stated that they went to his home. He stated that he told them that he had no money, he was tricked by his friend who ran away. He stated that they did not care as they had his fingerprint. He stated that they threatened him that if he did not pay the money back he would die and then hit him. He stated that his mother gave them some money but they kept going back. When asked when they last went to his house, he stated that his mother had no choice but to send him away and she then moved away. He then stated that his father reported this to the Police but they cannot be there all the time.

25. The Tribunal asked the applicant where his mother sent him. He responded that he came to Australia. When the Tribunal noted that this incident happened 9 or 10 years ago and he came to Australia in 2013, he responded that they wanted to look for him and his mother told him to come to Australia. He then stated that he hid for a while and they were looking for him. He stated that he hid in the mountains and did some work harvesting [fruit]. This is not consistent with his visa application in which he stated that he lived at the same address in Pulau Pinang in Malaysia from September 2004 to December 2013. He stated that they were unable to find him there and his mother then organized for him to come on an organized tour to Australia. He stated that they are sending someone to find him. When asked how he knew they were looking for him, he stated that his mother told him. He stated that they kept going to his home and his mother told them he is gone and she did not know where he was. He stated that they told his mother if he did not come back they would take his life. He stated that his mother then contacted him and asked him to leave.  

26. The Tribunal noted that the applicant was earlier asked a number of questions about his employment history and did not mention harvesting [fruit]. His answer was non responsive. When asked how they knew he was in Australia, he responded that they have someone in Australia. He then stated that he does not know who told them he is in Australia. He stated that his friend told him that they want to come after him in Australia and he should be careful. The Tribunal finds it implausible that he would be in contact with this friend in view of his evidence that this friend tricked him, stole the money and ran away. When asked whether he went to the Police in Australia and told them about his concerns, he responded that he did not.

27. The Tribunal noted the applicant’s earlier evidence that a relative had offered him a job in [Country 3] and asked him why he did not go to [that country] if he has had these problems in Malaysia for 9 or 10 year. He responded that he could not speak English. When the Tribunal noted that he came to Australia and he cannot speak English, he responded that his relatives told him that he borrowed money at a high rate of interest and cannot work and is now implicating others. The Tribunal finds it implausible that the applicant would have continued to reside in hiding in Malaysia where he claims his life was at risk when a relative offered him the opportunity to live and work in [Country 3].   

28. The Tribunal asked the applicant whether he had paid back any of the money he owes the money lender since coming to Australia. He responded that one of their friends found him in Australia and asked for the money back. He stated that he hit him. He stated that he happened to have [an amount] with him and this man took the money. He stated that the man threatened him that he was not off the hook so he went into hiding. When asked where he went into hiding, he responded “let me think”. He then stated that he went to [City 5]. When the Tribunal noted that he had previously been asked where he had lived in Australia and he never mentioned living in [City 5], he responded that he was hiding there. He stated that the man was hitting him and if he did not hide he would be dead.

29. When asked if he went to the Police in relation to this incident, the applicant responded that he went to a friend who did not want to know him. He stated that he went into hiding in [City 5]. When the Tribunal noted that he is living in Sydney now, he responded that the man was caught in [a location] a year ago and sent back. When asked his name, he responded that he has his photograph but not his name.

30. The Tribunal asked the applicant what he thought would happen if he returned to Malaysia. He responded that if he dies there is no problem. He stated that his mother told him not to return to Malaysia, she brought him into the world and does not want to see him die. He stated that his mother said it is alright if she dies but she does not want him to die. He stated that he is not afraid of them and is brave enough to go back but his mother does not want him to return to Malaysia. He stated that she told him to stay in Australia and pay the money back slowly. He stated that he wants to go back to Malaysia and is not afraid of being killed. He stated that his mother has reported them to the Police but the Police cannot watch over him 24 hours of the day. 

31. The Tribunal raised with the applicant its concerns in relation to his credibility and the veracity of his claims in view of the significantly different and inconsistent claims he made at the hearing in comparison to his claims in his visa application. He responded that he cannot read. He stated that his friend helped him and told him that he had to make those claims if he wanted to stay in Australia and make money. He stated that he told his friend that if he returns to Malaysia they would take his life and his friend helped him by to write his visa application. When the Tribunal noted his earlier evidence that he provided the information to his friend and his friend wrote it down, he responded that his friend told him to write this and this. He stated that his mother told him to come to Australia and hide here. He stated that if he goes back they will take his life and it is better for him not to return to Malaysia. 

32. The applicant’s current passport was issued [in] October 2010 and expires [in] April 2016. It indicates that [in] October 2010 he was granted a multiple entry [Country 1] visa which was valid until [October] 2012. It indicates that the duration of each stay could not exceed 30 days. There are two further [Country 1] visas issued in 2013. His passport indicates that between 2010 and 2013 he travelled overseas on over 20 occasions. The applicant did not indicate that he had to travel overseas for work. His evidence is that he travelled overseas for holidays. The Tribunal is of the view that this evidence indicates that it was unlikely that he was in regular employment if he was able to have so much time off work to travel overseas. The Tribunal is also of the view that this evidence indicates that he is a person of means or has access to considerable financial resources. The Tribunal is of the view that, in these circumstances, it is highly unlikely that he would have had the need to borrow [the amount of] Malaysian ringgit or not have the means or access to the means to pay it back.

1. Having considered all the applicant’s claims and the evidence, the Tribunal is of the view that the applicant is not a witness of truth and has fabricated his material claims for the purpose of obtaining a Protection visa. The Tribunal finds that the applicant is not a credible witness.

2. The Tribunal accepts that the applicant is ethnic Chinese and was born in Malaysia. The Tribunal accepts that he has [family composition]. The Tribunal accepts that he does not have a good relationship with his father. The Tribunal does not accept that his father ran a [product] business in Malaysia. It follows that the Tribunal does not accept any of his claims that flow from that.

3. The Tribunal accepts that the applicant’s father and his father’s brother owned a business together but had a falling out and the business closed down 10 years ago. The Tribunal accepts that, with the help of another relative, his father then set up a new business. The Tribunal accepts that his father is now a successful businessman and owns a factory that produces [food] products. The Tribunal accepts that his mother also works in the business.

4. The Tribunal accepts that the applicant has travelled to [Country 1] for holidays many times over the years as well as to [Countries 2 and 3]. The Tribunal does not accept that a friend of his tricked him into obtaining a high interest loan from money lenders. It follows that the Tribunal does not accept any of his claims that flow from that including his claims that he was assaulted and threatened in Australia and was in hiding in [City 5]. The Tribunal accepts that his mother gave him the money to travel to Australia. The Tribunal does not accept that she told him not to return to Malaysia because his life was at risk there.

5. The Tribunal does not accept that the applicant lodged his application for a Protection visa because he suffered from unfair treatment in Malaysia. The Tribunal does not accept that the applicant is of adverse interest to money lenders in Malaysia, the Malaysian authorities or anyone else or that his life is at risk if he returns to Malaysia. In view of the above findings, and in light of the Tribunal's finding that the applicant is not a credible witness, the Tribunal is not satisfied that he has a well-founded fear of Refugee Convention related persecution for any of the reasons put forward by him.

6. Having considered all of the applicant's claims, individually and cumulatively, the Tribunal finds that there is no real chance that the applicant would be at risk of persecution on the grounds of race, membership of a particular social group or any other Refugee Convention reason 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 for a Refugee Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a).  

   Are there substantial grounds for believing that, as a necessary and foreseeable   consequence of the applicant being removed from Australia, there is a real risk that he will        suffer significant harm

7. The Tribunal has considered the applicant's claims under complementary protection. 

8. In view of the above findings, and for the reasons given above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons put forward by him. 

9. Having considered all of the applicant's claims, individually and cumulatively, the Tribunal is not satisfied, for the reasons given above, that the applicant 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.    

10. 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). 

    CONCLUSION

11. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa).

12. 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 s.36(2)(aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

Linda Symons
         Member