1515074 (Refugee)

[2016] AATA 3680

1515074 (Refugee) [2016] AATA 3680 (4 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515074

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Rea Hearn Mackinnon

DATE:4 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 04 April 2016 at 4:34pm

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] October 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] August 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 issue in this case is whether the applicants face harm from money lenders (loan sharks) in Malaysia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Nationality and background

10. The applicants have provided copies of their passports. The Tribunal is satisfied that they are nationals of Malaysia. There is no evidence before the Tribunal that they have a right to enter or reside in another country.

11. The applicants are husband and wife, married in [year]. The first named applicant (the husband) was born on [date] in [Town 1]. He is of Chinese ethnicity and Christian religion. In [Town 1], he worked in his brother’s [product] business. He lived in [District 1] from 2009 until 2014 where he worked as a [supervisor] for [company name], which is [detail] business owned by his wife’s family.  He entered Australia 6 August 2014 on an electronic tourist visa and became an unlawful non-citizen in November 2014. The second named applicant (the wife) was born in [Town 1] on [date]. She is of Chinese ethnicity and Buddhist religion. She worked as [an] assistant in her family’s [detail] business which the wife stated employed about 10 people, mostly [occupation]. She entered Australia [in] May 2015 on a tourist visa.

    Claims

    Harm from loan sharks

12. The applicants claim that the husband owes money to loan sharks who have threatened and harmed the applicants because they are unable to repay the debt.

13. The husband claims that he was laid off from his position by the wife’s family in May 2014. He claims that he was unable to find other employment because the economy was bad and he was not able to pay for his car, house or food although his wife still had her job. His family would not help him and his brother would not give him a position in the [product] business because his brother feared he would try to take over the business. After firing him, his wife’s family verbally assaulted and embarrassed him because he had to rely on his wife’s income.

14. The husband claims that he was very upset about his situation and, in order to make some money, he gambled all his savings of [amount] ringgits on the World Cup (which commenced on 12 June 2014). He started by gambling a few tens of thousands of ringgits. He had some wins initially then lost all his savings. His wife found out about his gambling at the end of June, after he had lost his savings.

15. The husband claims that he borrowed different amounts totalling about 30,000 ringgits from several different loan sharks. He first borrowed about [smaller] ringgits in mid-June 2014 then borrowed various amounts each under [amount] ringgits from various other loan sharks. The husband claims that, by the end of the World Cup (on 13 July 2014), he owed 70,000 or 80,000 ringgits, he was not sure of the exact amount but it was less than 100,000 ringgits.

16. When asked to provide details of his debts at the end of the World Cup, the husband stated that he owed:

    ·30,000 ringgits to a loan shark called [Mr A] based somewhere in [City 1];

    ·10,000 ringgits to a person called [Mr B]; he does not know the name of [Mr B’s] business or the address;

    ·10,000 to a person in [City 1]; he does not know the person’s name or address; and

    ·Various small amounts totalling between 20,000 and 40,000 to several other loan sharks; he does not know their names or locations.

17. When asked if he has any written documents in relation to these loans, the husband said that the first loan shark has a written document at his company and took his photo and a copy of his electricity bill.

18. When asked how he could repay these loans if he does not know the names or addresses of the money lenders he borrowed from, the husband said that they came to him to collect the money and that he dealt with different people each time. He claims that he made one or two repayments before he ran out of money and the interest rates doubled each week. He claims that, with interest, he owed about [total amount] ringgits when he left Malaysia.

19. The husband claims that, because he could not pay, different loan sharks came to his home many times and beat him with a stick and a helmet. He claims that [Mr A] (or [Mr A’s] people) kidnapped him at the end of July, held him in a room for over 20 hours, beat him on the head with a metal rod and told his wife to gather money to pay his debt or they would take the husband’s kidney or force him to smuggle drugs. He claims that he climbed out of the window during the night and escaped before his wife obtained any money.

20. The husband claims that he reported this incident to the local police who told him that he could file a complaint but, as he was not hurt, there was no case to investigate; and also asked for money. The husband claims that he returned home for a week before coming to Australia and that both [Mr A] and [Mr B] (and their men) came to his home during this week but he locked the door and hid. His wife was staying with her parents.

21. The husband claims that the loan sharks then went looking for his wife at her family home and workplace so he borrowed money from his father-in-law to come to Australia.  He stated that his father-in-law knew of his gambling problems and scolded his wife but did not say anything to him. When asked why he left his wife in Malaysia if the moneylenders were also looking for her, the husband said that his wife was working and had her father to protect her and if they had both come to Australia and could not get jobs they would have had no income.

22. The wife told the Tribunal that she found out about her husband’s gambling at the end of June when a loan shark came to the house demanding payment of [total amount] ringgits within a week. She claims that she did not tell the loan shark of her husband’s whereabouts and that different people came to the house every day during the World Cup demanding money. They threatened to kidnap her and her husband or blow up the house. Sometimes she did not open the door. They came for the first time in mid-June and then every day for three or four weeks. He husband was in hiding during this period; she does not know where. After she stopped opening the door, they came every two or three days and then started coming at night and throwing things at the house. She does not remember how long this went on for.

23. The wife told the Tribunal that the loan sharks then kidnapped her husband but she does not know exactly when this occurred. She found out her husband had been kidnapped when someone came to her house demanding payment of [larger total] ringgits. She stated that she did not tell anyone about this demand, including her father. When asked what she had intended doing about it, she said she was going to wait but her husband escaped.

24. The wife told the Tribunal that, after her husband left Malaysia, people blocked her on her way to work and demanded money and told her that, if she did not pay, they would sell her organs or sell her to a brothel. She can’t remember when this occurred. She did not tell anyone about this incident because it was a family problem. She did report it to the police but they refused to act because she had no evidence and did not know the identity of the people involved. When asked if she told her father, she said, “not exactly”. When asked if anyone threatened her or approached her at any other time, she stated that different groups would talk to her on her way to work and say things like, “young lady, where are going tonight”.

    Findings

25. The Tribunal accepts that the applicant may have stopped working for the wife’s family’s business in May 2014 whether because of an economic downturn in the business or for some other reason including that he had decided to come to Australia. The husband told the Tribunal that he came to Australia in 2014 because the economy in Malaysia was bad and overseas jobs were being advertised in the newspapers. He had heard that jobs in Australia paid triple what was being paid in Malaysia, it was very trendy to work in Australia and the fares were cheap. The Tribunal does not accept that the wife’s family abused him for not having a job especially if, as the husband claims, they terminated his employment because of their own financial problems.

26. The Tribunal notes that the husband was only unemployed for a matter of weeks between when he ceased working for his wife’s family and the commencement of the World Cup and does not accept that the husband could not afford to pay for his car, his house or food after he stopped working given that his wife was still working and he had savings of [amount] ringgits which he could have used to support himself during this period.

27. The Tribunal accepts that the husband gambled during the World Cup and that he may have lost money during this period. The Tribunal does not accept that the husband borrowed money from loan sharks to pay gambling debts incurred during this period or that the applicants were threatened or harmed by loan sharks demanding repayment for the reasons set out below.

28. The husband’s evidence in relation to how much he borrowed and the identities of the loan sharks he borrowed from is extremely vague.  Unlicensed money lenders (also known as loan sharks or Ah Long) are common in Malaysia. They spread word of their business through advertisements including posters, flyers and business cards.[1] The Tribunal does not accept as plausible that the husband borrowed large sums of money from different such money lenders yet could not give clear evidence of the amounts he borrowed, the names of the money lenders he borrowed from or their locations, even having regard to the husband’s evidence that the loan sharks came to him for re-payment.

    [1] ‘Police co-operate with Council to wipe out loan sharks’, Daily Express, 28 December 2013

29. The applicants gave inconsistent evidence about the amount of money the husband owed. The husband told the Tribunal that he owed less than [large amount] ringgits at the end of the World Cup and that this had increased to [total amount] ringgits with interest by the time he left Malaysia. The wife told the Tribunal that loan sharks demanded payment of [total amount] ringgits (including interest) at the end of June, [during] the World Cup.

30. The applicants provided inconsistent evidence in relation to the alleged kidnapping of the husband. The husband claimed that he was kidnapped at the end of July by [Mr A] (or his men) from whom he had borrowed [larger amount] ringgits. The wife’s evidence that the kidnappers demanded payment of [larger total] ringgits is not consistent with the husband’s evidence regarding how much he had borrowed from [Mr A] or his evidence that he owed under [large amount] ringgits at the end of the World Cup. This inconsistency was put in a post hearing letter pursuant to s.424A of the Act. In response, the wife stated that she does not know how the kidnappers calculated the demand.

31. The applicants gave inconsistent evidence about the claimed demands and assaults on the husband. The husband told the Tribunal that loan sharks went to his home many times and assaulted him before [Mr A’s] people kidnapped him at the end of July. The wife told the Tribunal that loan sharks came to their home every day for three for four weeks commencing in mid-June demanding money then every two or three days for an unspecified time and that her husband was in hiding during this time. This inconsistency was put to the applicants in a post hearing 424A letter. In his response, the husband stated that his wife was at work when he was assaulted and that, on one occasion when [Mr A] and his men assaulted him at home, she had to come home from work and take him to the [district] medical clinic. In her response, the wife stated that she was at work when the loan sharks came to their home and that she found out about the husband’s debts when she had to take him to the clinic. This evidence is different to her previous evidence that she found out about her husband’s debts when loan sharks came to her home at the end of June and demanded payment of [total amount] ringgits. Further, the Tribunal notes that the applicants did not previously mention that the husband required medical treatment following an assault.

32. The husband also stated in his response that he went to stay with his family in [Town 1] for a week in July and was kidnapped two days after his return. The Tribunal notes that the husband did not previously mention this visit. Further, it is not a satisfactory explanation for the inconsistency identified above as the wife’s evidence is that the loan sharks came to the house every day for three or four weeks commencing in mid-June and that the husband was in hiding during this period. 

33. The applicants gave inconsistent evidence about whether the wife’s father knew about the debts and problems with the loan sharks. The husband said that his wife went to stay with her family after he was kidnapped but that money lenders then went to look for her at her family home and workplace (her family’s business) so he borrowed money from his father in-law to come to Australia; and that his father-in-law knew of his debts and scolded his wife. The wife told the Tribunal that she did not tell her father about the demands made by the loan sharks and that her father “did not exactly” know about the threats to her. This inconsistency was put to the applicants in a post hearing letter pursuant to s.424A of the Act. In her response, the wife stated she returned to her parents’ home when her husband decided to come to Australia and that her father told her a loan shark had been to the house and she then told him about her husband’s gambling debts. The Tribunal notes that this evidence is different to her previous evidence.

34. The Tribunal has other concerns with the evidence. The Tribunal does not accept as plausible that the wife would not know, at least approximately, the date her husband was allegedly kidnapped and she was threatened; or that she would not have told anyone that her husband had been kidnapped and money demanded for his release or done nothing to secure his release if he had been kidnapped by loan sharks and they had both been threatened as claimed; or that she would not remember, at least approximately, the date she was stopped and threatened on her way to work; or that she would not have told her family if she had been stopped and threatened on her way to work as claimed. Further, the Tribunal does not accept as plausible that the wife would have remained in Malaysia and not travelled with her husband had she been threatened as claimed and loan sharks visited her family’s home as claimed.

35. In view of the inconsistencies and other concerns with the applicants’ evidence set out above and discussed at the hearing, the Tribunal does not accept that the husband borrowed money from loan sharks; or that different loan sharks went to their home and threatened or assaulted the husband; or that loan sharks kidnapped and beat the husband; or that loan sharks threatened the applicants if they did not repay their debt with interest; or that loan sharks went to the wife’s family home or her workplace or stopped her on her way to work and threatened her; or that loan sharks threatened the wife at any other time after that. As the Tribunal does not accept that the claimed events occurred, the Tribunal does not accept that the applicants made reports to the police or that the police refused to act.

36. As the Tribunal does not accept that the husband owes money to loan sharks, it does not accept that he faces a real chance of serious harm or a real risk of significant harm from loan sharks on return to Malaysia.

    Ability to subsist

1. The husband claims that he cannot obtain work in Malaysia because the economy is so bad and that it is harder for him to obtain work because he is a Christian.

2. The Tribunal does not accept that the husband will not be able to secure employment on return to Malaysia. As discussed with the husband, the Malaysian economy is an upper middle income economy with male participation in the labour force at 77%. Chinese Malays are the second largest ethnic group in Malaysia and dominate the business and commerce sectors. About 11% of Chinese Malays are Christian and religious freedom is guaranteed under the Constitution.[2]

   [2] DFAT, 2014, DFAT Country Report Malaysia, 3 December

3. The evidence before the Tribunal does not indicate that Chinese Malaysians or Christian Chinese Malaysians are unable to secure employment in Malaysia because of their race or religion or race and religion combined. The Tribunal does not accept that the husband will be denied employment threatening his capacity to subsist resulting in serious or significant harm.
   
   CONCLUSION

4. Having regard to the evidence and findings above, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for reasons of their race or religion or membership of a particular social group of persons who owe money to loan sharks or family members of persons who owe money to loan sharks pursuant to s.5J(1) of the Act.

5. Having regard to the evidence and findings above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia and returned to Malaysia, there is a real risk they will suffer significant harm from loan sharks or because of a denial of employment to the husband.

6. 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

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

   Rea Hearn Mackinnon
   Member