1515380 (Refugee)

[2016] AATA 3883

1515380 (Refugee) [2016] AATA 3883 (27 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515380

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Filip Gelev

DATE:27 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 27 May 2016 at 3:51pm

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 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 Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Country of nationality

10. The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Tribunal. The Tribunal finds 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

11. 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

12. The applicant’s claims for protection are set out in a hand written statement lodged together with the visa application. The statement states that the applicant and his brother borrowed money to start a business or (in a different part of the statement) that the applicant was the guarantor for the money his brother borrowed. The business was not doing well. The interest on the loan was too high and the two brothers could not repay it. They asked for more time to pay the debt, but the lender refused. The lender is a gangster and in addition he has the support of a local politician.

13. The lender was “giving trouble” to the applicant like “breaking through the [applicant’s] house in the middle of the night”. They (the lender and others) “whacked” the applicant and his brother very badly. They also took all [specific items] and valuables from the house. They threatened to kill the two brothers. The applicant and his brother went to the police station to file a report. The police laughed at them and made fun of them. 

14. According to the statement after a few days another group came “to whack” the applicant and his brother. On this occasion the brothers were “whacked even more bad” than the first time. The assailants warned the brothers not to go to the police or try to relocate.

15. When they realised that they had no choice, the two brothers came to Australia with the help of their [relatives].

16. At the Tribunal hearing the applicant said that he arrived in Australia in October 2012, by himself, not with his brother.

17. He said that he has one brother and [other siblings] and all of them remain in Malaysia. His brother has never been to Australia. He said that his brother’s name is [name], he is now [age]. He works in a [products] shop for someone else. He has never had his own business.

18. The applicant said that before coming to Australia he was living alone in the sense that he was not living with a relative or a girlfriend/wife. He shared a flat with other people. He lived at that last place for some two and a half years.

19. The applicant said that he left Malaysia because he was a guarantor for his brother. When his brother could not repay the money and he disappeared, the lenders came after him. His brother borrowed [amount] MYR around June 2011.

20. The brother asked the applicant to be a guarantor, because he had a good job as [an occupation] in a [business]. The money lender saw the applicant’s pay slip first before agreeing that the applicant can be a guarantor.

21. He said that he did not know the name of the lenders or their company, because it’s an illegal business and the companies always change name.

22. The Tribunal asked the applicant what the money was to be used for. He said that his brother already had debts from gambling on [events] and he used the loan to repay old loans.

23. The applicant said that his brother earned [amount] MYR a month. The applicant was earning [larger amount] MYR a month and that is why he was the guarantor. He said that his brother was meant to repay about [amount] MYR a month to service the loan. The Tribunal expressed its surprise that the applicant would have agreed to be a guarantor given that his brother earned only [smaller amount] MYR a month. The applicant said that indeed they could not pay back the money.

24. On [a date in] August 2011 the lenders gave the applicant a warning and asked that some money be paid. The applicant’s brother disappeared before [that date], and the applicant had to start borrowing money from others.

25. The applicant was asked when it was that the gangsters came to his house. He said it was in mid-September 2011. He would not answer his phone so they came into his flat in the middle of the night. He was not sure how they opened the front door of his flat (there was no downstairs door of the building). He said his housemate may have left the front door open or may have opened the door when the lenders came knocking.

26. He said the “visitors” did not take anything from him because there was nothing to take. They came to his house twice and on one occasion they stopped him outside the house, in the carpark.

27. He said that he reported his problems to the police on two occasions.

28. The applicant was asked about the delay in lodging the application as he himself admitted that he first came to Australia in October 2012 and the application was not lodged until August 2015. He said that a friend told him about protection in or around June 2015. Before that he did not know about protection visas.

29. He said that he signed the application form, but he did not write the statement. [An ethnic background] gentleman whose name he could not recall had helped him. He conceded that he signed that everything in the application is true and correct, and that he had ticked the box on the application form indicating that he had not received assistance with the form.

30. When the Tribunal pointed out the differences between the written statement and his oral evidence, he said that the oral evidence was true and the statement incorrect. The Tribunal raised the following inconsistencies: in his written statement the applicant said that the money was borrowed for the applicant’s business whereas at the hearing he said it was to cover previous gambling debts. The statement claimed that the applicant and his brother were both assaulted (“whacked”) in the house – and on two occasions – whereas at the hearing the applicant said that he was not living with his brother. The statement claimed that valuables had been taken from the house, while at the hearing the applicant said that there was nothing to take. One final inconsistency between the written and oral evidence was that the applicant travelled to Australia with his brother.

31. The Tribunal said that at the start of the hearing that his brother was still working in a [products] shop, not that he had disappeared. The applicant said that he thought he was being asked about his brother’s usual occupation, not about his brother’s current work circumstances at the time of the hearing.

32. The Tribunal advised the applicant that it may find that he is not a credible witness and reject his claims for protection for the following reasons: the implausibility of the idea that the applicant would guarantee his brother’s loan in circumstances where his brother was meant to make monthly repayments which were more than twice what his brother earned in a month. Secondly, the inconsistency between the evidence at the start of the hearing that the applicant’s brother was working as [an occupation] compared to the later claim that he was in hiding. Thirdly, the delay in lodging the application. Fourthly, the inconsistencies between written and oral evidence as already mentioned by the Tribunal.

33. The Tribunal found that the applicant’s evidence was vague and contradictory when asked about the repayments he made, the sums he borrowed, how many times he was assaulted and how many times threatened For example, he said that as far as he could recall he last paid some money in 2011. When the Tribunal said it was surprising that the violence against him did not escalate between the end of 2011 and the time when he came to Australia in October 2012 if he did in fact stop paying money altogether, the applicant replied that he had continued to make repayments in 2012.

34. The Tribunal asked him twice if he had any other fears and he said he did not.

35. The Tribunal has carefully assessed the totality of the evidence before it and finds that the applicant is not credible.

36. The Tribunal considers that there were significant inconsistencies between the oral and written evidence provided by the applicant in relation to the reason why money was borrowed, and the harm he suffered in the past – as discussed with him at the hearing (see at paragraph 30 above). In addition, the evidence was contradictory or vague in other respects (for example, in relation to whether the brother is working at a [products] shop or he is not working and is actually in hiding) or vague (as discussed at paragraph 33 above).

37. One additional inconsistency to which the Tribunal did not specifically refer at the hearing was that the applicant claimed in his written statement that he and his brother went to the police once. At the hearing he said that he went by himself twice. Another inconsistency concerns the manner in which the lenders (gangsters) entered the applicant’s house. According to the statement they broke through the house in the middle of the night. At the hearing the applicant said that there was no force used to enter, possibly because a housemate left the front door unlocked.

38. The Tribunal also places weight on the significant delay of almost three years between the time when the applicant arrived in Australia and the time he lodged the application for protection. The Tribunal considers that if he was genuinely fearful for his safety he would have made inquiries earlier than June 2015 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.

39. The Tribunal has decided not to place any weight on the fact that the applicant’s brother could not have repaid the loan using his own income. The Tribunal notes that the brother may have convinced the applicant that he would somehow be able to service the loan or the applicant agreed to help without “due diligence”, without analysing the sums carefully.

40. 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 and nor did his brother at any time in the past. Therefore neither the applicant, nor his brother has ever harassed, threatened or harmed in any way by loan sharks or by gangsters associated with loan sharks. He was never beaten, “whacked”, burgled or robbed, visited or approached by people in relation to a loan.

41. He had no reason to approach the police and he did not do so.

42. The Tribunal does not accept that the applicant or his brother currently owes money to anyone in Malaysia.

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

44. 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.

45. 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).

46. 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).

47. 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 for any reason.

48. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

49. 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

50. 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.

    …