1515232 (Refugee)

[2016] AATA 3550

1515232 (Refugee) [2016] AATA 3550 (4 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515232

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Filip Gelev

DATE:4 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 04 March 2016 at 5:23pm

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 applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa [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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In this case, the Tribunal has considered the DFAT Malaysia Country Information Report issued on 3 December 2014.

   Credibility

9. The Tribunal accepts the difficulties of proof faced by applicants for refugee status and complementary protection. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’.

10. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196‑197 and 203‑204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.

11. However, a decision maker is not required to accept uncritically any or all allegations made by an applicant. Moreover, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. In addition, The Tribunal is not 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.

12. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

    Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282).

13. The Full Court noted that this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

    in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.

14. If the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this case is whether Australia has protection obligations in respect of the applicants. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

16. The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Tribunal. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s country of nationality for the purposes of s.36(2)(a) and receiving country for the purposes of the complementary protection assessment, s.36(2)(aa).

    Third country protection

17. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Claims

18. The applicant’s claims are set out in the application form. He said that “one day” (he did not state when this occurred) he borrowed money from a money lender to develop his business. After that he could not pay back the loan and the interest rate was too high.

19. The lender became very angry. “They” were cruel. One day they came, burned down his car and destroyed the valuable things in his house. They also hit him “very badly”, dragged him to the road, poured petrol on him and told him that if he did not pay the debt, they would burn him alive. The applicant also claimed that he had been “whacked” in the past.

20. If he goes back, he will be burned alive and tortured to death.

21. The applicant went to the police to lodge a report. However, the police had already taken a bribe from the loan shark so they did not help. The authorities only help rich people. The money lender is rich and he has already bribed the police. Hence, if the applicant returns to Malaysia, he will not be protected.

22. No matter where the applicant goes, the loan sharks will find him by using the country wide personal ID card system called MyCard. 

23. The applicant was not interviewed by the Department of Immigration.

24. At the Tribunal hearing, the applicant handed up his passport. It shows that he first entered Australia [in] January 2005. As noted above, he did not lodge the application for protection until [August] 2015. The applicant conceded that it had taken him more than 10 years to apply for protection in Australia, but he said it was because until a year ago he did not know about protection visas.

25. The applicant said that a friend helped him apply for protection, before he (the friend) returned to Malaysia. He said that he called this man [a name], even though that was not the name of the friend. He said his friend told him about protection visas in August 2015.

26. He said that his friend interpreted orally for him the contents of the application. He said that he understood the contents of the application.

27. The applicant said that in Malaysia he was in [a service] business. He borrowed money, at high interest, in 2004 at a time when the economy was not going well. He could not pay back the money and he decided to come to Australia. He said that he had not returned all the money and could not go back to Malaysia.

28. He had started in this business as an apprentice in [year] and as a contractor in [time range].

29. The Tribunal asked the applicant what he needed to borrow money for. He said that he could not collect money from customers and he needed cash to purchase materials and pay his workers, that is, to keep the business going.

30. He said that he borrowed [an amount] MYR in total, from multiple lenders. He said he needed to buy [material].

31. He could not borrow from banks as he did not have any collateral he could offer. He said at the time he came to Australia he still owed [the initial amount] MYR. He paid back [part of the amount] MYR from Australia, but the interest rate was “unbelievably high”. He did not know how much he owes at present.

32. The Tribunal asked the applicant if he had been threatened or harmed by the loan sharks before he came to Australia. He said that he would be harmed if he goes back. When asked if he had been harmed in the past, he said there had been verbal threats. The Tribunal confirmed with him that he was not beaten, but there were “many such cases in Malaysia” so he had to flee.

33. The Tribunal asked whether they made specific threats against him e.g. they will beat him to death, shoot him, drown him or burn him to death. The applicant said that there were many such cases in Malaysia. When asked again whether there were specific threats, he said he was told they would “deal” with him, but nothing specific.

34. The Tribunal asked the applicant whether the loan sharks had taken anything, any goods from him, he said they had not because he kept things in a factory space, a factory building that belonged to someone else.

35. The Tribunal asked the applicant whether he went to the police. He said that in Malaysia if there is no actual harm, the police would do nothing. Because he was not subject to actual harm, he made no report. If the loan sharks find out that he has made a report, things would be worse for him.

36. The applicant said that the loan sharks took his car from him. He had left it at his brother’s place and “they just took it”. When specifically asked, he confirmed that they had not damaged the car. He claimed that they took the keys to the car and the car itself.

37. The Tribunal advised the applicant that according to the written application, the loan sharks came to him, burned his car and took valuable things. He said that they did not burn his car. They did come to his house and took some things such as his TV set. When the Tribunal noted that the application says the car was burned, he said they threatened to do so. Later on the applicant said that they threatened to burn the car and all he knew was that the car disappeared. The Tribunal asked why they would burn the car instead of using it or pulling it apart and selling it for spare parts. He said he did not know what they did with the car. They could not sell or use the “whole” car, because it was registered in his name. He did accept that it could be used for spare parts.

38. The Tribunal advised the applicant that he also claimed in the written application to have been hit “very badly”. He said they had indeed threatened to do that to him.

39. In relation to the claim in the written application that they dragged him to the road and poured petrol on him, he changed his earlier evidence. He said that they had in fact dragged him to the “side road, downstairs” and poured petrol on him. When asked about the discrepancy with his earlier evidence, that is, when asked why earlier he had claimed that he had only been subject to verbal threats, he said they had not hit him, but they had dragged him and poured petrol on him.

40. The Tribunal read to the applicant his application that they threatened to burn him alive, whereas earlier he had said there had been no specific threats; his earlier evidence at the hearing was that they said they would “deal” with him. He said that yes, they threatened to burn him alive, but they had not hit him.

41. The Tribunal noted that according to the application he had tried to lodge a report with the police. The applicant replied that they, the police, didn’t care. In relation to the discrepancy with his earlier evidence that he did not think to go to the police, because they had only made verbal threats against him, he said when the loan sharks poured petrol on him, he did try to report it to police. He repeated again that he was never hit and he thought that earlier that was what the Tribunal was asking him.

42. When the Tribunal said that in fact he had claimed to have been “whacked”, he said that there was no physical harm. He said he had been pushed, not whacked or hit. He did not know what to do and he was fearful.

43. The Tribunal said it seemed to it that the written version of past events in his application was very different from the first version at the hearing, prior to the Tribunal raising a number of inconsistencies.

44. The Tribunal raised with the applicant the very long delay of more than 10 years after he arrived in Australia before he lodged an application for protection. The applicant conceded that in the last couple of years employers had become stricter in checking whether people have a valid visa to remain in the country. But he insisted that that was not the reason he applied for protection.

45. He said that the standard of living was lower in Malaysia. The government is not “efficient”. He is used to life in Australia and he prefers to be here if he can be allowed to work.

46. The Tribunal raised the applicant’s overall credibility with him. He said that he had been in Australia for 10 years and if he did not fear harm he would not have stayed. He said that he had an elderly mother in Malaysia and if he was not fearful, he would have gone back by now. 

47. The Tribunal has carefully assessed the totality of the evidence before it. The Tribunal notes that at the start of the hearing, the applicant confirmed that the contents of his application has been read to him and they were correct.

48. The Tribunal considers that there were significant inconsistencies between the oral and written evidence provided by the applicant in relation to the harm he suffered in the past – whether he was hit, whacked, dragged and had petrol poured on him and was told he’d burned alive or he was subject to general verbal threats; in relation to the damage done to his car; in relation to whether or not some of his valuables were taken; in relation to whether or not he went to the police.

49. The Tribunal also places weight on the significant delay of more than ten years between the time when the applicant arrived in Australia and the time he lodged the application for protection. The Tribunal considers that as the applicant knew he was in Australia unlawfully after the end of his three month visa, he would have made inquiries about what options he might have to seek protection in Australia in order to avoid refoulement or removal to a place where he would be harmed.

50. The Tribunal finds that the applicant is not a credible witness and rejects his claims in their entirety. The Tribunal finds that the applicant did not borrow money from loan sharks at any time in the past and therefore he was not harassed, threatened or harmed in any way by loan sharks or by gangsters associated with loan sharks. He was never beaten, whacked, he did not have petrol poured on him, he was not forcibly dragged, he was not threatened with harm, he did not have valuables taken from him.

51. He has never had any reason to approach the police, nor the police him.

52. The Tribunal does not accept that the applicant currently owes money to anyone in Malaysia.

53. The Tribunal finds that the applicant does not feat any type of harm in Malaysia for any reason.

54. He does not have a well-founded fear of persecution from anybody in Malaysia for any of the five reasons set out in s.5J(1) of the Act.

55. 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).

56. 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).

57. For the reasons set out above, the Tribunal has rejected the applicant’s claims. It is not satisfied that there are 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

58. For the reasons set out above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

59. 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. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

60. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Filip Gelev
    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.

    …