1601729 (Refugee)

[2016] AATA 4169

1601729 (Refugee) [2016] AATA 4169 (12 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601729

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Glen Cranwell

DATE:12 July 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 12 July 2016 at 10:14am

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] January 2016 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] July 2015. The delegate refused to grant the visa [in] January 2016.

3. The applicant appeared before the Tribunal on 8 July 2016 to give evidence and present arguments.  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 Tribunal has before it the Department's file relating to the applicant.  The Tribunal has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.  This material includes:

    ·application for protection visa;

    ·copy of the identification page of the applicant’s passport.

11. The applicant’s claims, as set out in his protection visa, were summarised by the delegate as follows:

    ·The applicant claims he left Malaysia to protect him from being harmed.

    ·The applicant claims he was a [product seller] and some of his competitors had gang connections. The applicant claims he was asked for protection money but he refused to pay.

    ·The applicant claims that gangs then caused trouble for his business, The applicant claims a few [sellers] came together to fight the gangsters and some were injured.

    ·The applicant claims following the incident the gangsters came to his residence and threatened the applicant and his family.

    ·The applicant claims he was extorted, 'bodily harm', harassed and threatened in Malaysia.

    ·The applicant claims the police are corrupt and take money from the gangs.

12. At the hearing, the applicant told the Tribunal that he arrived in Australia in mid-March 2008.  He arrived as the holder of a [temporary] visa which was valid for 3 months, and commenced looking for a job.

13. The Tribunal asked the applicant whether he made inquiries as to whether he might have other visa options which would have enabled him to stay in Australia legally at or before the time his [temporary] visa expired.  The applicant stated that he did not.

14. The Tribunal asked the applicant whether he found a job.  The applicant stated that he worked for 7 years in a [factory].  He only stopped working last year when the Department of Immigration searched the factory and located him.

15. The applicant stated that he transferred the money he earned back to his wife and [children] in Malaysia.  His family have had to borrow money from friends and relatives since he lost his job.

16. The Tribunal asked the applicant what he feared if he returned to Malaysia.  The applicant stated that he had a business selling [products].  There was a gang which required him to pay protection fees.  Initially he refused to pay, but they used tricks to force him to pay the fees.  He irritated some members of the gang and now he fears the gang if he returns.

17. The Tribunal asked the applicant whether the gang had harmed his family members in his absence.  The applicant stated that the gang initially came looking for him at his place.  After that, they came back now and then to see whether he had returned.  Their visits recently have not been frequent.

18. The Tribunal asked the applicant what sort of tricks the gang used to force him to pay the fees.  The applicant stated that they would say things like “the [product] is not [quality]” in front of clients.

19. The Tribunal asked the applicant how he irritated the gang members.  The applicant stated that the gang members came to his business to collect fees.  He initially gave them the fees.  Then they requested an increase.  Several people joined together and hurt or irritated them.

20. The Tribunal again asked the applicant how he irritated the gang members.  The applicant stated that he was not sure how to put this.

21. The Tribunal explained to the applicant that he claimed that he had irritated the gang members, and it was asking how he did this.  The applicant stated that he refused to pay protection fees.  Maybe there was conflict physically.

22. The Tribunal asked the applicant whether there was a physical conflict.  The applicant stated maybe there was a fight.  You push me, I push you.  They fought verbally.

23. The Tribunal noted that the applicant had twice stated that “maybe” there was a fight.  It asked whether or not there was a physical conflict.  The applicant stated there was a fight.  When he uttered maybe, he did not express himself clearly.

24. The Tribunal asked when the fight occurred.  The applicant stated that it took place before he came to Australia.

25. The Tribunal asked how long before he came to Australia.  The applicant stated that it occurred in approximately 2007.  They started harassing him in 2006.

26. The Tribunal asked whether there was a single fight or a number of fights.  The applicant stated that there were several fights, but they got worse later.

27. The Tribunal asked whether he was injured.  The applicant stated that he was injured but not severely.

28. The Tribunal asked when the last fight took place.  The applicant stated that it was in late 2007, around the time of lunar new year.

29. The Tribunal asked how severely he was injured.  The applicant stated that he had a skin injury, which was not severe.

30. The Tribunal asked the applicant how many people were involved in the fight.  The applicant stated that there were several business owners.

31. The Tribunal asked the applicant how many business owners were involved in the fight.  The applicant stated 5 or 6.

32. The Tribunal asked the applicant how many gang members were involved in the fight.  The applicant stated more than 10 or 20.

33. The Tribunal asked the applicant where the fight took place.  The applicant stated in his hometown.

34. The Tribunal asked where in his hometown the fight took place.  The applicant stated that it took place at the site of his business.

35. The Tribunal asked why 5 or 6 business owners would take on more than 10 or 20 gang members.  The applicant stated that they collected the protection fees.  The business owners wanted to fight back.

36. The Tribunal asked how the applicant avoided serious injury in circumstances where the business owners were heavily outnumbered by the gang members.  The applicant stated that they had no notice in advance.  It began with a verbal disagreement, and it was really chaotic.

37. The Tribunal asked whether the police were called.  The applicant stated that someone tried to contact the police.  The police were bribed.  It is useless to contact the police in Malaysia.

38. The Tribunal put to the applicant that it had concerns over his account.  Initially he was unable to state how he irritated the gang members.  Then he stated that “maybe” there was a fight.  Eventually he stated that 5 or 6 business owners fought against more than 10 or 20 gang members.  The Tribunal might have difficulty accepting that the business owners would engage in a fight against a significantly larger number of gang members, and that he would escape from the fight without serious injury.  The Tribunal put to the applicant that it might consider his account to be vague and unconvincing.

39. The applicant stated that there were more than his business selling [products].  Several other business owners may have been willing to help.  He does not know how to describe how they irritated the gang.

40. The Tribunal asked the applicant why the gang would still be interested in him after 8 years.  The applicant stated that he irritated them.  They had a conflict verbally.  They asked him to pay protection fees.  He did not want to pay, and this irritated them.

41. The Tribunal put to the applicant that 8 years was a long time, and it might have difficulty accepting that the gang would still be interested in him after all this time.  The applicant stated that protection fees are not currently the matter anymore.  The gang wants revenge.

42. The Tribunal put to the applicant that the gang had from the time of the fight in late 2007 until his departure in March 2008 – at least 3 months – to take revenge but did not.  The applicant stated that they approached him in 2007 around the time of the lunar new year when business was good.  They were out looking for trouble.  He discreetly avoided them before he left Malaysia.

43. The Tribunal put to the applicant that if he returned to Malaysia and obtained other employment, such as in a [factory] like he was doing in Australia and not selling [the same products], the gang was unlikely to be interested in him after all this time.  The applicant stated that they do not just want protection fees.  They want to take revenge.

44. The Tribunal again asked the applicant why the gang did not take revenge in the months before he left Malaysia.  The applicant stated that he did not know the reasons.

45. The Tribunal asked the applicant why he delayed 7 years before lodging a protection visa application.  The applicant stated that his job was stable.  Nothing happened until the Department of Immigration search.

46. The Tribunal put to the applicant that if he was afraid of returning to Malaysia, it would have expected him to make inquiries about whether he could remain in Australia legally around the time of the expiry of his [temporary] visa.  The applicant stated that his first purpose in coming to Australia was to escape from the gang.  His second purpose was to earn money to send to his family.  His job was stable and he did not have a plan for a visa.

47. The Tribunal asked the applicant whether there was anything else he wished to raise.  The applicant stated that his family needs the money.  He is the only money earner in the family.  He would like to stay in Australia and find a stable job so that he can send money back to his family.  His family are his priority, and he wants to stay and work.

    Assessment of claims

48. The applicant claims to be a Malaysian national.  In the absence of evidence to the contrary, the Tribunal finds that Malaysia is his receiving country for the purposes of the refugee and complementary protection assessment.

49. The Tribunal accepts that the applicant operated a business selling [products] in Malaysia.

50. The Tribunal does not accept that the applicant had to pay protection money to members of a gang, or that he suffered harm as a result of this.  The Tribunal bases this finding on the following factors:

    ·The Tribunal considers that the applicant’s evidence was vague and unconvincing at the hearing.  Despite claiming to have “irritated” the gang, the applicant was initially unable to explain how he irritated them.  The applicant subsequently stated on 2 occasions that “maybe” there was a fight or physical confrontation.  He subsequently clarified there was a physical confrontation.  The Tribunal considers that this presentation is consistent with a person making up his evidence as he went along.

    ·The Tribunal considers that the substance of the applicant’s account of the physical confrontation to be implausible.  The Tribunal considers it implausible that 5 or 6 business owners would take on more than 10 or 20 gang members in a fight.  The owners were heavily outnumbered, and the Tribunal also considers it implausible that the applicant would have emerged from such a confrontation without serious injury.

    ·Further, the Tribunal considers it implausible that, if the gang wanted to take revenge on the applicant, they did not do so between the fight in late 2007 and the applicant’s departure from Malaysia in mid-March 2008.  This was a period of some months, which would have provided the gang with ample opportunity to harm him.  Although the applicant stated that he discreetly avoided the gang, it is apparent from other parts of his evidence that they knew where he lived.  The gang had ample opportunity to take revenge, but did not do so.

    ·The Tribunal considers it implausible that the police would not have been called to a public fight involving more than 15 to 26 people (comprising 5 or 6 business owners and 10 or 20 gang members).  Even if the police were corrupt, and even if they did not charge the gang members, the Tribunal would still have expected them to maintain order in a public shopping precinct.

    ·The Tribunal considers it implausible that the applicant would not have made inquiries about whether there were other visa options which would enable him to stay in Australia legally at or before the time his [temporary] visa expired.  If the applicant had fled Malaysia to escape harm from the gang, it would have expected him to make inquiries soon after arriving in Australia as to the availability of protection.  It would not have expected the applicant to wait 7 years and apply for a protection visa only after he was located by the Department and identified as an unlawful non-citizen.  The Tribunal finds that the applicant came to Australia to obtain higher paid work to support his family, and only applied for a protection visa once it became clear that this was his only option for remaining in Australia.

51. It follows that the Tribunal does not accept that the applicant’s family have been visited by gang members.  In any event, the Tribunal considers it implausible that the gang would continue to attempt to locate the applicant several years after his departure from Malaysia.  The Tribunal considers that any interest in the applicant would have long since dissipated over the course of the previous 8 years.

52. As the Tribunal has not accepted that the applicant has had to pay protection money to or otherwise been harmed by a gang in the past, it finds that the chance or risk of the applicant being required to pay protection money or otherwise being harmed by a gang in the reasonably foreseeable future is remote.

53. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that , as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.

54. 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).

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

56. 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

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

    Glen Cranwell
    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.

    …