1516935 (Refugee)

[2016] AATA 3694

1516935 (Refugee) [2016] AATA 3694 (18 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516935

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Nicole Burns

DATE:18 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 18 April 2016 at 3:25pm

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] November 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] May 2015.  The delegate refused to grant the visa [in] November 2015.

3. The applicant appeared before the Tribunal on 15 April 2016 to give evidence and present arguments in relation to the issues in his case. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.  

8. 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

9. 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

10. The applicant presented his claims in his protection visa application [in] May 2015 as follows:

    Why did you leave that country?

    Life in danger because I love a rich girl. She was a rich and came from a very well known family. My girlfriend doesn’t like me because I was poor and not highly educated.  Her father locked her in a room and whacked her everyday.  Her father also whacked me several times and threaten to kill me if I still love his daughter.  When we try to escape from that place, he manage to find me and whacked me throw me in jungle and bring my girlfriend back home.  After a few month, we manage to run away from the country.

    What do you think will happen to you if you return to that country?

    My girlfriend’s will kill us and torture us till death.

    Did you experience harm in that country?

    Yes. My girlfriend’s father have whacked me many times in front of her and always torture my girlfriend.

    Did you seek help within the country after the harm?

    No. Because her father is a rich man, so he will give bribe and the authorities will help him only.

    Did you move, or try to move to another party of the country to seek safety?

    No. I can’t move because somehow my father will find us and kill us.

    Do you think you will be harmed or mistreated if you return to that country?

    Yes. Me and my girlfriend will be tortured mentally and physically till death and they will separate us.

    Do you think the authorities of that country can and will protection you if you go back?

    No. Because they will take bribe from my father and will not take action against them to protect us.

    Do you think you would be able to relocate within that country?        

    No. I can’t because her father will use his power and influence to find through the Mykad and EPF System.

11. The issues in this review in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk that he will suffer significant harm.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

13. The applicant travelled to Australia on a valid Malaysian passport and states that he is a national of Malaysia. The delegate had no concerns about the applicant’s identity.  Therefore the Tribunal has assessed the applicant’s claims against Malaysia as his country of nationality.

14. At hearing the applicant told the Tribunal that he left Malaysia in May 2012 because he feared money lenders whom a former business partner had borrowed money from  before disappearing. Specifically the applicant said he and his business partner called ‘[Mr A]’ established a [business] in 1994 in Kuala Lumpur.  [Mr A] borrowed  RM 2 million in total from 10 different lenders.  He was to pay each lender RM500 every week, with 30 per cent interest monthly.  The applicant said that he was not sure why [Mr A] borrowed so much money at the time and he allegedly spent it on stock, but the applicant said he did not see any stock.  [Mr A] used their company registration to borrow the money which contained the applicant’s name.  At the beginning he made some repayments then stopped and disappeared. The applicant said representatives from the different money lenders then came to him and asked for the money.  They put paint on the door of his workshop and used a chain to lock the door. Then they followed him home and did the same to the front door of his house. 

15. The applicant said he then closed the business – in 1996 – and was in hiding until he came to Australia.  That is he said from 1996 to 2000 he hid in a remote village; from 2000 to 2002  Ipoh, where he worked at a [business] workshop, and in Johor from 2002 until 2011, where he also worked in a [business] workshop. The applicant then moved back to Kuala Lumpur sometime in 2011 before he left for Australia.  He said he did nothing during those months, and hid in the remote country side.

16. The applicant said the money lenders found him in Ipoh and beat him when he could not repay any of the monies owed by his former business partner.  They were able to locate him again in Johor and beat him there too. 

17. The applicant said one of the money lenders – also called [Mr A] – visited his mother’s house  in Kuala Lumpur five or six times in the period 1996 to 1998 in a bid to find him. 

18. The Tribunal accepts that the applicant established a [business] in Kuala Lumpur from 1996 to 1998. However for the reasons that follow the Tribunal does not accept his claims that his business partner borrowed RM2 million from numerous money lenders and received threats and was beaten by representatives of the money lenders when his business partner disappeared and the applicant was unable to repay them.

19. First, the applicant’s claims to fear money lenders was not raised at all at the Departmental stage.  He makes no mention of these claims in his protection visa application, instead claiming to fear his rich girlfriend’s father, as set out above (at paragraph 10).  The applicant said at hearing that he told a friend about this fears who then wrote them down in the application form.  He was unable to explain how his written claims to the Department were so fundamentally different to what he told the Tribunal at hearing.

20. Second, the Tribunal found the applicant’s oral evidence about the identity of the money lenders and the harm and threats he allegedly received from them because his business partner disappeared and he was unable to pay back the money was vague and lacking in details. For instance, when asked who the money lenders were specifically, the applicant mentioned a few names – [Mr A], two men called [name] and two men called [name] – but was unable to remember all of them.   Even though some time has passed, the Tribunal would expect the applicant to remember each money lender given his claims to have been threatened and harmed by them, to have been in hiding from them for around 12 years whilst in Malaysia, and to be the primary reason he fears returning there now.  Also, the applicant said that they came to his workplace and beat him up in both Ipoh and Johor but did not provide any details such as when these incidences actually occurred, who specifically came to his workplace – apart from answering ‘loan sharks’ and when pressed saying first [Mr A] and then the others – or provide any particular context or further details. 

21. Third, the Tribunal finds the applicant’s oral evidence about hiding form the money lenders for around 12 years in Malaysia before coming to Australia to be vague and at times internally inconsistent.  For instance he said he hid in a remote village from 1996 to 2000 but did not elaborate or describe where the village was, what he did there or provide any further details.  As well, the Tribunal notes that whilst on the one hand the applicant claims that he was in hiding when living in Ipoh and Johor, on the other hand he said that he worked in a [business] in both places, which does not indicate that he was in hiding.  Also, whilst the applicant claimed that he was threatened and beaten by money lenders at his workshop around a week after arriving in Johor, he continued to work there for the next nine years without any further problems.

22. For these reasons the Tribunal has serious credibility concerns about the applicant’s core claims to fear harm at the hands of money lenders on return to Malaysia.  The Tribunal does not accept that his former business partner borrowed RM2 million from ten different money lenders around 1994 and it follows that the Tribunal does not accept that he was threatened or beaten up by representatives of these money lenders when his partner disappeared and the applicant failed to pay back the money.  Nor does the Tribunal accept that the money lenders visited the applicant’s mother to try and locate him in relation to these loans as claimed. The Tribunal finds the applicant does not face a real chance of serious harm from money lenders for any reason on return to Malaysia now or in the reasonably foreseeable future.  His fears of persecution on this basis are not well founded.

23. In reaching this conclusion the Tribunal has also taken into consideration the fact that the applicant arrived in Australia on [date] May 2012 yet did not seek protection until May 2015, despite the fact that he claimed he left Malaysia because of these alleged problems he had with money lenders, originating back to around 1994-1996.   It is well established that delay in applying for refugee status is a relevant consideration. In Anandaraj Subramaniam v MIMA (unreported, Federal Court of Australia, Carr J, 10 March 1998) Justice Carr agreed with Heerey J in Selvadurai v MIEA & Anor (1994) 34 ALD 346 as a matter of principle that the period of time which elapses between an applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least depth of an applicant’s fear of persecution. His Honour went further and found that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant. The Tribunal does not find the applicant’s explanation at hearing that he was afraid the money lenders would find him in Australia plausible. Given the delay in the applicant seeking asylum, the Tribunal does not accept that the applicant’s claims are credible or that he has a genuine fear of persecution if he is returned to Malaysia.

24. At hearing the applicant resiled from his written claims in his protection visa application and the Tribunal is satisfied that he does not face a real chance of persecution on the basis of having a girlfriend whose father disapproves of their relationship. 

25. Based on the above the Tribunal does not accept that the applicant was ever threatened or harmed by money lenders in Malaysia and therefore it does not accept that if he returns to Malaysia he faces a real chance of persecution from money lenders or anyone else.  The Tribunal also finds the applicant does not face a real chance of persecution from his girlfriend’s father.  The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).  The applicant does not meet the refugee criterion in s.36(2)(a).

26. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from  money lenders or his girlfriend’s father or anyone else for any reason. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

27. 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

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

    Nicole Burns
    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.

    …