1512000 (Refugee)

[2016] AATA 4241

1512000 (Refugee) [2016] AATA 4241 (14 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512000

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:David Corrigan

DATE:14 July 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 14 July 2016 at 5:01pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] August 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Malaysia, applied for the visas [in] April 2015.

   Criteria for a protection visa

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicants’ claims in the protection visa application can be summarised as follows.  The first named applicant (the applicant) was born in [country] in [year] and became a Malaysian citizen in [year].  The second named applicant (the applicant wife) was born in [the same country as the applicant] and later became a Malaysian citizen.  The third named applicant (the applicant [child]) was born in Malaysia in [year].

10. The applicant borrowed RM [amount] from a loan shark in Malaysia in July 2012.  When he was unable to repay the interest on the loan, he asked the applicant wife to borrow[a lesser amount] from a different loan shark in order to repay the first loan.  As the interest on both loans continued to rise the applicant and applicant wife sank deeper into debt until in late September 2012, they decided to run away to Australia.  Their [children] remained in the family home.  In July 2014, loan sharks visited the applicants’ home.  They threw paint, burnt rubbish in front of the house and warned the [children] to repay the money.  The [children] went to the police station to report the incident, but they did not receive any help due to police corruption.  [In] August 2014, the applicant’s [daughter] and her husband fled to Australia.

11. The applicant daughter remained in Malaysia with her boyfriend but in December 2014, the loan sharks found her having dinner with her boyfriend’s family and tried to take her away.  They held a knife to the throat of her boyfriend’s parent while asking her to repay the money.  She begged for more time and they let her go.   In January 2015, she booked a ticket and travelled to Australia to find her parents.  The police in Malaysia are corrupt and protect loan sharks.  

    Country of reference

12. The applicants claim to be Malaysian nationals.  Based on the copies of their passports, I find that Malaysia is their country of nationality and also their receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

    Assessment of claims

13. At the hearing, the applicants expressly disavowed that any of the post September 2012 events contained in the protection visa application were true.  At the hearing they submitted a written statement that said that there was a false statement made by an agent (who was not registered with the Migration Agents Registration Authority or a legal migration agent).  The applicant daughter told the Tribunal that the claims in the application form that she and her [sibling] were threatened were not true and there has never been any threats made.  She said a friend had introduced her to an agent and that she gave this agent a briefing about their situation and he made the application.  She said her parents did not sign the application but they filled in some of the questions.  She said they had not met this agent in person and only had contact with him via email and she could not contact him now.   The applicant told the Tribunal that the agent had exaggerated the claims and the part that was true was that they had to Australia to escape a loan they owed and that he was not familiar with protection visas and his daughter engaged the services of the agent.  The applicant wife whilst originally telling the Tribunal that the claims in the protection visa application were true and correct and that she knew what was in it, later stated that she was illiterate and had no idea about what the agent wrote.  She also gave evidence to the Tribunal that nothing had happened to family members.

14. Given the evidence of the applicants at the hearing and in the written statement, I do not accept that in July 2014, loan sharks visited the applicants’ home.  I do not accept that they threw paint, burnt rubbish in front of the house and warned the [children] to repay the money.  I do not accept that the [children] went to the police station to report the incident, but they did not receive any help due to police corruption.  I do not accept that in December 2014, the loan sharks found the applicant daughter having dinner with her boyfriend’s family and tried to take her away.  I do not accept that they held a knife to the throat of her boyfriend’s parent while asking her to repay the money.  I do not accept that she begged for more time and they let her go.  

15. I have considered carefully the applicants’ other claims but I do not consider them to be credible witnesses.  I am of this opinion for the following reasons:

    ·The applicants’ claims were marked by a substantial and fundamental inconsistency.  The applicant told the Tribunal that the only loan that he and his wife took out was a RM [amount] loan.  However, in their written statement it was stated that he has asked his wife to borrow [a lesser amount] from a different source (a credit [organisation]) to repay the first loan.  Whilst his wife gave oral evidence that she had borrowed money from a non-bank association) and the applicant daughter gave oral evidence that her father said he borrowed RM [amount] and her mother said she had borrowed [a lesser amount] this does not explain why the applicant would not be able to recall asking his wife to borrow such a substantial sum of money.  The applicant said he thought I was asking about him only, but I had asked about him and his wife and I do not consider this to be a satisfactory explanation and I find this matter detracts from their credibility.  The applicant also told the Tribunal that he had taken out the loan in July/August 2011 however this was inconsistent with the written statement that stated that the loan was taken out in July 2012.  The applicant said he was forgetful and the applicant daughter said he had told her it was in 2012.  I have taken into account the passage of time and that applicants can have difficulties in recalling dates; however noting that the applicant also arrived in Australia in October 2012, I consider this is a further matter that detracts from their credibility.

    ·As set out in the delegate’s decision (a copy of which was submitted to the Tribunal) the applicant and his wife arrived in Australia in October 2012 on three month visas and they were without visas until they applied for protection visas in January 2015.  The applicant commented at the hearing that when he first came to Australia he did not know about immigration law and he just wanted to wait for the applicant daughter to finish study and come to Australia and that he did not contact the Department.  The applicant wife said she did not have any contact with the Department.  The applicant daughter said that her parents thought if they went to the Department they may be sent back to Malaysia and the best option was to run away.  In the written statement it was stated that the applicant and his wife did not know about protection visas and if they got any information about them they could not understand the complex migration laws and procedures because of their limitations in understanding English.  It was also stated that it was difficult for them to seek advice from migration agents or the Department due to a fear of being sent back to Malaysia.  It was stated the applicant daughter could not help them because she was in Malaysia and still studying and she did not know anything about Australian visas.   I have considered the applicants’ responses but I note that the applicant daughter whilst still in Malaysia was in her early [age] when her parents came to Australia and speaks very good English which would have assisted in finding out and applying for a protection from the Australian government.  I do not find the responses to be a satisfactory explanation for such a very long delay and very long period of unlawfulness and I find that this detracts from the credibility of the claims.

16. Given these highly significant concerns about their credibility, I do not accept that the applicant borrowed money off loan sharks which he was unable to repay and that he and his wife fled to Australia as a result.  I do not accept as he claimed at the hearing that they have looked for him in [country] or Malaysia or anything else.  I do not accept that the applicants were or are of adverse interest to loan sharks or anyone else.

17. Considering the applicants’ individual circumstances, I find there is not a real chance that in the reasonably foreseeable future they would be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group).  Their fear of persecution is not well-founded as required by s.5J of the Act and therefore they are not refugees within the meaning of s.5H.

18. Considering the applicants’ individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia that there is a real risk that they will suffer significant harm.

    Conclusions

19. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants protection visas.

    David Corrigan
    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.

    …