1512051 (Refugee)

1512051 (Refugee) [2016] AATA 3210 (28 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512051
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:R. C. Titterton
DATE:28 January 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 January 2016 at 10:02am
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] August 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] February 2015. The delegate refused to grant the visa, principally on the basis that the applicant did not attend an interview and the delegate was therefore unable to test the applicant’s claims.
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 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.
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, 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).
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.
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
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
Applicant’s evidence
[In] February 2015 the applicant applied for a protection visa. The application sets out that the applicant was born on [date], and is almost [age] years of age. He speaks, reads and writes Chinese, and reads English. He provided a photocopy of a passport bearing his name and date of birth issued by the Government of Malaysia [in] 2012.
His application states, in answer to question 44 “why did you leave [Malayasia]?”:
I am [applicant name] from Malaysia. I’m [age] years old this year. Due to my father do not have a proper stable worklife, so from [age] years old I already have to work to support me and my family, I also have to take care of my brother since Mum have to work from morning to night. I found a full-time job when I was [age] years old but we still can’t change the status of our life because from I was a kids, to survive, Mum borrowed a lot of money from others, so I have to make the repayment. Mum getting old and always falls sick while brother was become so active and do not like to stay home. He always hangs around those computer shops to play outlying games but we did not stop him from that. There are always a lot of gangster who come to look for him and also he always disappear from house for few weeks. Some people claiming that he stole others people “stuff”. Me and mother do not understand what kind of stuff is that until one day brother came home acting so abnormal and threatened asked to give him money to buy drugs. There will always people calling and gathering to home to ask for money and drugs, Mum made a decision to send him to those stop drugs centre, but still a lot of gangster and drug addictor continued to disturb our life. So we decided to move our house and mum stop working. To continue making those repayments and change my life to serve Mum better, I decided to leave my own country and mother, and come in to Australia to seek for help
The applicant attended the hearing before me on 18 January 2016. Relevantly, he told me that:
a.His mother runs a shop (which he also described as a street stall), selling her own [products]. She works there 6 days a week. She still does now.
b.His father is [occupation], and works for a company. It is a fulltime job and he has been employed there as long as the applicant can remember.
c.He has one [brother], who is [age] years old.
d.He has one [sister], who is [age] years old.
e.Both still live with their parents, although the brother spends time at his girlfriend’s house.
f.The applicant completed secondary school in [year] when he was [age] years old. During his school years he also sold [products] as a part-time job in a shop.
g.After he finished school he did not undertake any further studies. He started working in a [business]. This was a fulltime job, which he had for three years. He stopped this job as the salary was low.
h.There was another year before he came to Australia. During this time he also helped his mother with her business.
i.While he was living with his parents, his sister was then at school, as she is now.
j.After his brother finished school, he did not have a job, and he did not go to University or College. He used to sell drugs. The applicant discovered this when a friend of his told him a year or two before he came to Australia.
k.He told his parents about this; they tried to persuade his brother not to do this. His brother would not listen and the situation became worse. The problem got worse and his brother entered a rehabilitation centre for addiction to the drug “K”, which was a powder, which his brother used to sniff. The applicant did not know what this drug was.
l.He thinks that his brother is still on drugs, but is not sure, as he has lost touch with him.
m.The applicant is currently working at [a] factory in [Australia]. He lives with some co-workers. It is a fulltime job, which he enjoys.
n.He came to Australia [in] January 2015, aged almost [age] years.
o.He travelled to [another country] in 2013 on [several] occasions. On two of those occasions he was looking for work, on the other occasions he went for a brief holiday.
p.He came to Australia “because of the family situation”. He said that “My family owed too much money”. He said that they were borrowing money to help his brother with his gambling problem. He had had a gambling problem for over a year. This was in addiction to the brother’s drug addiction. Because of both the gambling problem and the drug addiction the brother had to borrow money from others, as did the applicant and his mother to cover the brother’s gambling debts. The applicant borrowed [amount] ringgit, his mother about [larger amount] ringgit.
q.The applicant decided to leave Malaysia because he was annoyed with all the people coming to the house looking for his brother. He said that there were three different groups who did not threaten the applicant or his mother in any way, although they did, on one occasion, ask them to repay the debt. Otherwise they asked the applicant and his mother to pass on that they were looking for the brother.
r.The applicant said that there was no particular event that caused him to leave Malaysia and come to Australia. He came he said “because of the family situation”, his “family owed too much money”. He was also annoyed that all these people kept coming to the house looking for his brother.
s.The applicant chose to come to Australia because it had better economic opportunity than other countries. He had to borrow money from a friend to come to Australia, and still owes that friend that money and his other friend the [amount] ringgit.
t.His mother has repaid part of the [larger amount] ringgit she owes, she still works at her stall, although she works less as she has to look after the applicant’s sister. The father also continues to work.
u.When asked what would happen to him on his return to Malaysia, he said that “I can’t say that I will be harmed, I want to solve these problems and these people will still come”.
At the conclusion of the hearing I asked the applicant if he had anything further to add, he told me that he had hoped that he would be able to bring his parents to Australia if he were granted protection.
The applicant told me that he was only relying on the complementary protection criterion for his application. I explained to him that if it appeared from his evidence that he may have any other basis on which to claim protection (such as a fear of persecution), I would discuss this with him. As I explain below, I am satisfied having heard the applicant’s evidence that the applicant did not fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Is the applicant a citizen of Malaysia?
The Tribunal sighted the original passport bearing the applicant’s name and date of birth issued by the Government of Malaysia [in] 2012. In the circumstances, the Tribunal is satisfied that the applicant is a citizen of Malaysia, and that the receiving country for the assessment of his refugee claims and for the purpose of his complementary protection claims, is Malaysia.
Does the applicant have the right to enter and reside in any other country?
There is nothing in the evidence to suggest that the applicant has a right to enter or reside in any other country other than Malaysia. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by s.36(3) of the Act as I have found that he is a citizen of Malaysia.
Findings
Various decisions of the Federal Court of Australia[1] have held that when determining whether a particular applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims 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, the Tribunal 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.
[1] See for instance Randhawa v MILGEA (1994) 52 FCR 437; Selvadurai v MIEA & Anor (1994) 34 ALD 347 and Kopalapillai v MIMA (1998) 86 FCR 547.
Bearing those observations in mind, except where otherwise stated, I do not consider the applicant to be a witness of credit. There are two reasons for this conclusion. The first reason is that there were inconsistencies between his written statement and his oral evidence. These inconsistencies, in respect of which the applicant had no response, or no adequate or convincing response or explanation when asked, were as follows.
First, as appears from the summary of his evidence above, the applicant told me on a number of occasions about his brother’s gambling problem. However, there is no reference to gambling in the applicant’s application at all. I asked him if he could explain this difference, and he said it was correct that it was not included in the application. I asked him why he had left it out, but he had no response or explanation at all.
Secondly, as also appears from the summary of his evidence above, the applicant very clearly told me that his brother had never threatened him or their mother. However, in his application he describes an occasion when his brother came home and “threaten us to give him money to buy drugs”. I asked him to explain this discrepancy and his response, which I considered to be unconvincing, was that when he wrote the application it was shortly after he arrived and he had a better memory then.
Thirdly, as also appears from the summary of his evidence above, the applicant told me that nobody ever came to the house to buy drugs. However, in his application he states that “there were always people calling and gathering to home to asked for money and drugs”. I asked him to explain this discrepancy and his response, which was also unconvincing, was that those people came to look for his brother, they claimed he had taken their drugs and that he did not pay them.
Fourthly, as also appears from the summary of his evidence above, the applicant told me that his parents were still living in the same house where he grew up, and that they lived there with his [age]-year-old sister and occasionally the brother. However, in his statement, the applicant stated that “still a lot of gangster and drug addict continue to disturb our life, so we decided to move our house and mum stop work to move our house”. When the applicant was asked to explain the discrepancy, he stated that they had intended to move house, but could not find another one, and so did not move after all. I do not accept that explanation and I considered the language in the application is quite clear and, in giving the response that he did, the applicant was simply trying to cover the embarrassment at the inconsistency.
Fifthly, the applicant stated in his application that his mother had stopped working. However, he told me initially, that she worked six days a week at a stall. I put the difference to him and after some equivocation, the applicant said that his mother was still working but working less. This of course is different to what he states in his application. Once again, he had no persuasive reason for the discrepancy.
In addition to these inconsistencies, which were expressly discussed with the applicant, there were some other differences between what appeared in his application and what he told me. These include the following:
(a)He states his in application that “due to my father do not have a proper stable work life”, which the Tribunal understands meant that his father had difficulties with employment. However, the applicant told the tribunal that his father had worked full time as [occupation] for the same company for as long as he could remember.
(b)In his application the applicant infers that his mother had been borrowing money from the time he was a “kid”, in order “to survive”. However, this was not mentioned at all in the account that he gave to the Tribunal, only that the mother’s debts arose as a result of borrowing money in order to pay her other sons drug debts.
(c)Nor was there any claim to the Tribunal, unlike in his application, that his brother stole from others.
None of these inconsistencies were put to the applicant expressly. However, it was put to the applicant that the entirety of the statement which appeared in answer to question 44 of the application was not true. This was denied by the applicant. The Tribunal does not accept this denial and does not accept the applicant’s explanations for the discrepancies, and finds that entirety of the applicant’s answer to question 44, as stated in his application, not to be credible.
It was in these circumstances that the Tribunal suggested to the applicant that his entire story was made up. He denied this.
In addition to these issues, the second reason that I do not find the applicant credible is that his evidence was generalised, unpersuasive, and often vague and contradictory. The applicant’s manner of giving evidence was uncertain and unconvincing, and he failed to demonstrate an adequate knowledge of matters which, in my view, he should have known were he telling the truth.
For the foregoing reasons, the Tribunal does not accept the credibility of the applciant’s claims, and makes the following relevant findings:
(a)The applicant was born on [date], and is almost [age] years of age.
(b)The applicant is a Malaysian citizen.
(c)The sole reason that the applicant came to Australia was to help secure his family’s economic future. He hoped to be able to bring his family to Australia once he had been granted protection.
(d)I do not accept, or find, that any of the matters set out in the applicant’s answer to question 44 of his application are true, and I do not accept or find that as a result of any of those matters there stated the applicant applied for a visa to come to Australia.
(e)I do not accept, or find that, any of the matters related in the applicant’s oral evidence , summarised above, in relation his brother’s drug addiction or gambling, or his or his mother’s borrowing of money from friends or family in relation to those are true, and I do not accept, or find that, as a result of any of those matters there stated, the applicant applied for a visa to come to Australia.
(f)The applicant the person has made no claim of fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion were he to return to Malaysia. I find that the applicant will not be persecuted for any of those reasons, either individually or cumulatively, were he to return to Malaysia.
Section 5J of the Act provides that:
(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.

I am not satisfied and I do not find that the applicant fears being persecuted in Malaysia for reasons of race, religion, nationality, membership of a particular social group or political opinion. Therefore, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations; the applicant does not satisfy the criterion set out in s 36(2)(a).
The applicant has not claimed to fear harm other than in relation to facts the Tribunal has rejected for the reasons stated above. For the same reasons as detailed above I am not satisfied that there are 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 he will suffer significant harm: s 36(2)(aa). Accordingly I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa). As the applicant does not satisfy the criteria for a protection visa he cannot be granted the visa.
The applicant has no other claims.
CONCLUSIONS
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in s 36(a) or (aa) for a protection visa.
There is no suggestion that the applicant satisfies s 36(2)(b) or (c) of the Act 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)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
R. C. Titterton
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 3210

28 January 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice