1510721 (Refugee)

1510721 (Refugee) [2016] AATA 3815 (4 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1510721
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Bruce MacCarthy
DATE:4 May 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 May 2016 at 9:31am
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa [in] January 2015. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations and is not a member of the same family unit as such a who holds a protection visa of the same class.
The applicant appeared before the Tribunal on 26 April 2016, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
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 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.
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.
A person is a refugee if, in the case of a person who has a nationality, he is outside the country of his nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of that country: s.5H(1)(a).
Under s.5J(1), a person has a well-founded fear of persecution if he fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he 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.
If a person is found not to meet the refugee criterion in s.36(2)(a), he may nevertheless meet the criteria for the grant of the visa if he 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 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
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.
Credibility
When determining whether a particular applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he has made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims. However, it is not required to accept uncritically each and every assertion made by an applicant. Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
If the Tribunal were to make an adverse finding in relation to a material claim made by an applicant but were to find itself unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) 93 FCR 220).
CONSIDERATION OF CLAIMS AND EVIDENCE
In connection with the application, the applicant has submitted a photocopy of the page of his passport that sets out his biographical details. Those details are consistent with those given by the applicant in his application form. On the basis of the information before it, the Tribunal finds that the applicant is a citizen of Malaysia. Accordingly, the Tribunal will assess his claims as against that country. There is no evidence to suggest that the applicant has any right to reside in any country other than Malaysia.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applications for protection
[In] December 2014, the applicant lodged an invalid claim for protection. According to the Department’s file, it was found to be invalid because he did not make any claims under the refugees convention or the complementary protection criteria. The claims he made at that time are contained in a statement which appears at folio 30 of the Department’s file.
He subsequently lodged a second application, [in] January 2015, including further claims.
The applicant’s reasons for seeking protection.
In the statement of claims accompanying his second application, the applicant repeated claims made in the first statement regarding his family’s financial situation and his suspension from work. He also made new claims. He said that, in July 2014, he opened a [business] with another person who used his personal details to secure a loan with a “loan shark.” The loan was for [amount] Malaysian Ringgit [approximately $[amount]]. He said that the loan shark came to his house to harass him and his family and, although he asked police for assistance, the police did not help him. Later, the loan shark came to the family home and there was a physical confrontation. That night, their home was burnt down. He said that he could not live with his family because he was afraid they would be hurt because of him and that was why he came to Australia.
Invitations to interviews
The applicant was interviewed [in] February 2015 in relation to his travel arrangements to Australia, his living arrangements in Australia and the process of applying for a protection visa. [Two other applicants for protection visas residing at the same address as the applicant were also interviewed separately in relation to the same issues.] The record of interview states that applicant’s account of what he feared upon return to Malaysia was consistent in his written claims.
According to the decision under review (a copy of which the applicant provided to the Tribunal without comment), the applicant was invited to attend an interview [in] June 2015 in relation to the claims made in his application. The applicant did not attend the scheduled interview. The Department subsequently received an unsigned email (apparently sent by a different person) saying that the person had missed a train and was unable to attend an interview at 3 p.m. on the date of the applicant’s interview. Although there was nothing to suggest that the email question came from the applicant, the applicant’s interview was rescheduled and he was advised to attend [in] July 2015. The delegate’s decision states that the applicant did not attend the rescheduled interview and had made no further contact with the Department to explain his failure to attend.
Analysis of claims
Failure to attend interview with the Department
As noted in the decision under review [as provided to the Tribunal by the applicant without comment]. The applicant was invited on two occasions to attend interviews to discuss his claims in detail but failed to attend. The decision states that it was first invited to attend an interview [in] June 2015 but failed to attend. It states that, later that day, the Department received an email message from a person who did not identify himself but who said that he had missed his train to Sydney and wanted a further interview. In response to that request, a further interview was scheduled to [a date in] July 2015 but the applicant did not attend and failed to provide any explanation for his non-attendance..
At the hearing, the Tribunal asked the applicant why he had not attended the interviews. He said that he had first been invited to attend an interview in Melbourne at which his fingerprints were taken. The Tribunal acknowledged that the Department’s file showed that he had been interviewed, in February 2015, about the circumstances in which he came to Australia. However, he was subsequently invited to attend interviews in Sydney on 2 occasions, but failed to attend either. He said that on the first occasion in Sydney he was half an hour late and that was why he requested a further interview but never received an offer.
The Tribunal expressed surprise that, if he turned up late by only half an hour, he would not have been interviewed. He then said that he actually never attended the Department on the day in question. He said that because he realised he was late he assumed he would not be interviewed so he simply went to work. The Tribunal would have expected that, in circumstances where he was only half an hour late, the applicant if he was serious about his claims, would have at least attended the Department in the hope of being interviewed. Against this background, the Tribunal does not accept the applicant’s assertion that he did not receive the second invitation.
Lack of detail
The applicant’s claims as set out in his written statement lack detail. For example, the applicant did not name the [business] or disclose its location. At the hearing, the applicant said that the [business] was named “[name]” [which he said meant “[meaning]”] but he was unable to disclose its location in any degree of precision. When the Tribunal asked him when it was located his first answer was “in Malaysia.” In the Tribunal pointed out that it had understood that his claims but it was looking for an address. He said that he had only gone to the place on one occasion and did not pay much attention to its location. He said that all he did was fill in some paper work. He said the [business] had never opened.
Contradictions in claims
In his written statement of claims, the applicant said he had to start work to help’s family with expenses but, some time before July 2014 he “did something wrong” at work and was suspended by the company. This, however, is contradicted by an answer he gave in his application form. In response to question 85 in application form 866C, the applicant gave details of his past employment, saying that he had been employed as [an occupation] from 2013 to “current.” The Tribunal infers from this that he was meaning that he had been employed up until the time he applied for protection, in January 2015 or, at worst, up until the time he left Malaysia in December 2014. If he was employed up until December 2014 or possibly later, he could not have been dismissed or suspended prior to July 2014.
Further, in his written statement of claims he said that the family house was burnt down and the family no longer have a place to live. At the hearing, he told the Tribunal that the house was burnt down in the first week of August 2014. This is contradicted by the applicant’s answer to question 82 in application form 866C. He said in his answer to that question that he had resided at a particular address in Perak from October 1994 up until December 2014. Clearly, if he resided in the house up until December 2014, it could not have been so destroyed by fire at the family were unable to living at as he claimed.
When the Tribunal asked him for his comments on these two contradictions, the applicant attributed them to failings on the part of a lawyer who he said had assisted him. This matter is discussed further in paragraphs 27-32 below.
At the hearing, the applicant’s oral testimony regarding the circumstances in which his claims were prepared contained an internal inconsistency. At one stage, he said that his statement of claims in Chinese was drafted by his lawyer. However, later in the hearing, when the Tribunal drew his attention to the absence of any statement that anyone had assisted him, the applicant then said that he was referred to the lawyer to find out how he could apply for protection and to ask for a translation of a statement that he had personally written.
Claimed omissions from application
At the hearing, the Tribunal drew the applicant’s attention to the fact that, in the statement of claims accompanying the invalid claim for protection lodged in December 2014, he had failed to make any mention of borrowing money from a loan shark for the purposes of opening a [business]. It did so in accordance with the provisions of s.424AA of the Act. The Tribunal pointed out that the original statement of claims made no mention of him having borrowed money from a loan shark, it made no mention is of any confrontations with such a loan shark and no mention of his house having been burnt down. The Tribunal pointed out that if it were to accept the information in the original statement of claims, it may conclude that his claims about the loan shark and the burning of his house were a fabrication designed to provide a basis for his claims for protection.
When asked to respond to this information and reminded of his right to seek more time in which to do so, he elected to comment immediately. He said that, on the first time he was interviewed by the Department, and his fingerprints were taken, he was only asked simple questions and, therefore, he elected to make only a brief statement in his application for protection. The Tribunal pointed out that, he would not have been invited to give his fingerprints before he submitted an application and that the application itself would have been the initiating factor. Therefore, the content of his original statement would have been determined by him before any interview.
The applicant then said that he had a lawyer who drafted his statement for him in Chinese. He read that statement and found no problem with it. He said that the lawyer then translated his statement into English and he could not explain why all the details were not included in that statement.
The Tribunal then drew his attention to the fact that, in his second application for protection [the one which resulted in the decision under review], there was no indication that any migration agent or lawyer had assisted him or that any person had assisted him with translation. He asked to be given time to prove that his original statement contained all the necessary information, suggesting that the lawyer in question might give evidence to support him. The Tribunal allowed the applicant a period of a week [i.e. until close of business on 3 May 2016] to make further submissions but said that, even if it were to accept that a lawyer or migration agent had assisted him, that person had failed to indicate in the application form that assistance had been given or interpretation services had been provided. In such circumstances, the Tribunal may not accept that such a person was a person of integrity and may give little weight to anything said by that person.
The applicant also asserted that contradictions mentioned above between what he said in his application form and what he said any statement were the fault of the lawyer who allegedly assisted him.
The applicant did not provide any further evidence or submissions in the period allowed and, as at the date and time of this decision, he has not done so. He has not sought an extension of time to make post-hearing submissions.
Conclusion
The applicant’s initial statement of claims [submitted with the application in December 2015 that was deemed to be invalid] made no mention of him borrowing money from a loan shark, made no mention of any confrontation with such a loan shark and in particular made no mention of his house having burnt down in August 2014.
Given this, the contradiction in his oral evidence about the way his statement of claims was prepared and the contradictions mentioned above regarding the applicant’s place of residence before he left Malaysia and about his employment, the Tribunal finds that his claims about a [business], about money borrowed from a loan shark and about adverse attention from such a loan shark culminating in the burning down of the family home, the Tribunal finds that these claims were fabricated by the applicant after the rejection of the original application in attempt to bolster his claims for protection. It also finds that his claim that he was suspended by his then employer because he “did something wrong at work” was fabricated.
The only thing remaining in his written claims relates to his claim that he is father became ill and that he had to start work to deal with family expenses and that he had to borrow “a few thousand” RM [Malaysian Ringgit - the Malaysian unit of currency worth approximately 33 Australian cents]. He also claims that the family could not get any government assistance. The Tribunal sees no reason not to accept these particular claims. However, as they do not involve any of the reasons mentioned in s.5J(1) of the Act, it follows that these claims do not indicate that the applicant has a “well-founded fear of persecution” as defined in s.5J. As the applicant has Malaysian nationality and does not have a well-founded fear of persecution, he is not a refugee as defined in s.5H of the Act.
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). 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).
However, the Tribunal has rejected the majority of the applicant’s claims. The only claims the Tribunal does accept are those mentioned in paragraph 35 above, and there is nothing in those claims to suggest that the applicant faces significant harm (as defined in s.36(2A) of the Act) in Malaysia. He has not claimed, for example, that the relatively modest sum of money borrowed in order to pay to his father’s medical expenses was borrowed from a loan shark or from anyone else who might threaten him if the money were not repaid. Indeed, his written claims make it clear that the money borrowed for his parent’s medical expenses was borrowed before money was allegedly borrowed from the loan shark. Further, any harm which might arise from an inability to pay for further medical expenses would not be faced by the applicant, but by one or both of his parents.

It follows that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a Malaysia, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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. At the hearing, the applicant confirmed that there was no member of his family unit who held a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Bruce MacCarthy
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 ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2016] AATA 3815

4 May 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice