1602488 (Refugee)

1602488 (Refugee) [2016] AATA 4017 (16 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602488
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Gabrielle Cullen
DATE:16 June 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 16 June 2016 at 11:17am

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 February 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, was born in [suburb], Kuala Lumpa and departed Malaysia for Australia [in] November 2012 on a subclass 976 visa which expired three months later. He applied for a protection visa [in] August 2015 and claims to fear return as he could not pay his loan and as a result the loan sharks threatened that they would kill him if he did not pay the loan. He also claims a fear of return on the basis of his Chinese ethnicity.
The applicant was not invited to attend an interview at the Department. However [in] August 2015 the Department advised him in writing that it may decide his case without requesting further information. He was given 7 days to arrange an interview if he wished to have one. The applicant did not respond.
The delegate refused to grant the visa [in] February 2016 on the basis that the delegate was satisfied that the Malaysian authorities are reasonably effective in combating crimes and illegal money laundering. The delegate also had doubts as to the genuine nature of the applicant’s fear as he did not provide further detail when asked together with his delay in applying for a protection visa.
The applicant appeared before the Tribunal on 14 June 2016 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. The applicant was assisted with an interpreter in the Cantonese and English languages.
The issues to be considered in this case are as follows.
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Migration Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Migration Act?
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also 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 includes, but is not limited to, the following.
·The protection visa application of the applicant dated [in] August 2015 and identity documents.
·Oral evidence of the applicant provided at the Tribunal hearing on 14 June 2016.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
·DFAT DFAT Country Report Malaysia dated 2 December 2014.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The Applicant’s Claims
The applicant claims in a statement attached to his protection visa application that he ran a business [description deleted]. He claims in December 2011 he got to know a Malay man, named [Mr A], who wanted him to renovate his [number] apartments. He claims to do so he applied for a business loan but was rejected. He claims he therefore made a usurious loan. He claims it was agreed [Mr A] would make a payment of [amount]Rm after the completion of the project; however he found fault and refused to make payment. He claims he redid the job but still received nothing from him. He claims he remembers going [in] March 2012 to [Mr A]’s company for repayment and there was a dispute in his office and his security guard pressed his head against the table and held a knife towards his neck and threatened him telling him to give up asking for the money. He claims he reported the matter to the police and they said they could do nothing and then he learnt that [Mr A] was the local official’s [relative]. He claims he was even framed saying he had stolen his wife’s necklace. He claims as a result he was arrested and cross examined by the police. He claims he was detained for one week and he tried to protect himself through legal action and consulted his lawyer but his lawyer was perfunctory and asked him to keep quiet about the case.
He claims he did not submit to the unjust treatment and tried to get his money back by any means he could but all his attempts were in vain. He claims in August 2012 the government officer revoked his licence for the reason of bad quality of the project and without a license he could not work. He claims without income he could not pay his usurious loan. He claims when the loan company learnt that he did not have a licence and could not support himself or repay the loan, they often stopped him and threatened him to repay the debt. He claims they searched him and took valuable items, even his cigarettes. He claims he was very frightened to go out of his house and stayed at home day and night. He claims they even came to his home and broke in, searching every corner for anything of value and smashing anything cheap. He claims they threatened him, hit him and claimed that they would kill him if he did not repay the debt. He claims every day he lived in anxiety and fear. He claims he reported it to the police many times.
He claims he also feels as a Malaysian Chinese that they are meat for others and their rights cannot be guaranteed. He claims in order to stay away from the horror he decided to leave.
At the hearing held on 14 June 2016 the applicant reiterated he feared return in Malaysia as a result of the money owed to the loan sharks. He added that since he has departed his [sibling] has told him the loan sharks are watching the home. When questioned whether he feared return from [Mr A] he said it was from the loan sharks. He said as he was not seeking the money owed to him by [Mr A] he would not be harmed. When he raised that a threat had been made against him and it seemed he was referring to [Mr A] he later clarified he was talking about the loan sharks. Concerns as to the credibility of his claims were raised and where relevant these have been outlined below, together with the applicant’s evidence and responses.
The Tribunal raised with him that it had concerns as to the credibility of his claims in their entirety, and on the basis of the DFAT Malaysia Report questioned whether as he is of Chinese ethnicity he meets the refugee definition and complementary protection provisions in the Migration Act.
Assessment of Claims
On the basis of the applicant’s passport and evidence provided at hearing the Tribunal accepts that the applicant is a national of Malaysia. Therefore for the purposes of s.36(2)(a) the Tribunal accepts that Malaysia is the country of nationality and for the purposes of s.36(2)(aa) the Tribunal accepts that Malaysia is the receiving country.
As to the applicant fearing return for the reasons he claims and having faced the difficulties he claims in Malaysia, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness. It finds the applicant never faced the difficulties he claims at the hands of the loan sharks for the reasons he claims and did not face the difficulties he claims from [Mr A] for the reason he claims. It finds the applicant’s testimony inconsistent, and lacking in detail. This leads the Tribunal to find that the applicant is not a witness of truth.
It is the applicant’s claim that that he departed Malaysia as he could not repay the loan sharks and they threatened him with harm. However he has provided the following inconsistent evidence as to central aspects of this claim which leads the Tribunal to find he is not credible as to ever having faced the difficulties he claims at the hands of the loan sharks and adds to the finding he is not a credible witness.
Firstly, he has provided inconsistent evidence as to when the threats with the loan sharks began and the actual encounters. As to the timing, in his statement he indicates that after his license was revoked in August 2012 he could not work and therefore could not repay the loan. He indicates that when the loan company learnt that he did not have a license and could not payback the debt they began to threaten him. However, in contrast, at the hearing before me the applicant indicated that he was first threatened by the loan sharks in March 2012 as this was when he had to repay the loan. He confirmed that the loan was [amount] Malay with interest and it had to be repaid by March 2012 and that when he did not repay it as he had no money this is when they came outside his home and threatened him. When the inconsistent evidence as to when he was first threatened and what was the preceding event was raised with him, he responded that it was in Augusts 2012 when they discovered that he did not have a licence and that he did not have the ability to pay that they came into his house on two occasions, beat him and rummaged through the house destroying things and threatened him. He said they harassed him outside his home before that in March 2012. The Tribunal does not accept this response as it repeats the evidence provided at the hearing before me and does not clarify the inconsistency. The Tribunal views the inconsistency as significant and expects that the applicant would be consistent between his statement and evidence provided at the hearing before me as to what triggered the interest and threats by the loan sharks and when it happened. This is particularly so as it is his claim that these threats are the reason he went into hiding and why he departed Malaysia. This adds to the finding the applicant is not credible as to his claim of being harassed and threatened by the loan sharks and adds to the finding that he is not a credible witness.
The applicant has also providing inconsistent evidence as to the difficulties he faced at the hands of the loan sharks between his statement and at the hearing. In his statement, attached to his protection visa application, he claims that after they learnt he could not repay the loan, they often stopped him on his way home, hit him and threatened him to repay the debt. He said they even came to his home and broke into it and threatened him. Initially at the hearing before me he also said when he could not pay that every time he went home the loan sharks were waiting and would threaten and beat him. However when asked for further detail as to the encounters with the loan sharks, he said there were three actual encounters. He said the first encounter was in March 2012 which was outside his home and he was beaten and threatened and they took his personal belongings, even his cigarettes. He confirmed he personally only had one encounter outside the home with the loan sharks. He said the second time was in August 2012 and they came into his home and took valuable things and the third encounter was later in August 2012 and they came into his home, rummaged his things, broke things and threatened him with serious harm if he did not repay the loan. When the Tribunal questioned him as to the inconsistency that he had both said before at the hearing and in his statement that he was stopped on many occasions outside his home and later said on only one occasion; he said they were outside on many occasions, about ten about but he was not there and his [sibling] saw them and that is what she told him. The Tribunal does not accept this response and is of the view if the applicant was stopped and threatened by the loan sharks outside his home he would be consistent as to how often it happened, being once or on numerous occasions. It views his inconsistent evidence as adding to the finding that he is not credible as to his claim of being harassed and threatened by the loan sharks and it adds to its finding he is not a credible witness.
Further as raised with him, when asking him to recount in detail what happened on each of the three encounters his evidence was generalised and non-specific, even after the Tribunal specifically asked him to describe the incidents in detail referring to when, where, why and what happened. For example he stated that on the first occasion it was outside his home and they beat and kicked him and went through his clothes and even took his cigarettes. He said on the second occasion they came into his home, rummaged around and took all the valuable things and that happened in August, and on third occasion later in August they came in and messed up his home and threatened him saying he had to pay the money otherwise they will break limbs. When the Tribunal raised with him its concern as to his lack of detail and particulars in his evidence as to these encounters he again made general statements similar to that made above. The Tribunal is of the view that if he was threatened to the extent that he fled Malaysia that he would be asked to provide a detailed narrative as to these incidents, richer in detail and more descriptive that that provided. This adds to the finding he was not threatened, harassed or faced the difficulties he claims from the loan sharks. It adds to the finding he is not a credible witness.
Further, the applicant has also provided inconsistent evidence as to whether he fled his home and went into hiding or lived at his home up until the time he departed in November 2012. At the hearing before me the applicant indicated and stated on a second occasion later in the hearing that after the last threat from the loan sharks in August 2012, he faced no more difficulties as he moved out of home and was in hiding. However, as raised with him, in his statement he did not indicate he went into hiding but rather stated that he was too frightened to go out of his house and stayed at home day and night. Further at the beginning of the hearing before me he stated that he lived at his home up until the time he departed Malaysia in November 2012 and confirmed that he travelled from his home to the airport to travel to Australia. When the inconsistency was raised with him and that it questioned whether he was ever in hiding and his credibility, he responded that he went away in August 2012 as he had no choice but to leave after they came into his home, messed it up and threatened him. The Tribunal does not accept this response as a reason for explaining the inconsistency; as he merely restates his evidence at the hearing before me. The Tribunal views the inconsistency as significant and expects if the applicant went into hiding in August 2012 until his departure in November 2012 that he would be consistent in his evidence as to this. This leads the Tribunal to find he did not go into hiding at all. It adds to the finding he is not a credible witness.
The applicant has also provided inconsistent evidence as to whether he approached the police regarding the threats of the loan sharks. At the hearing before me he indicated that he did not go to the police as a result of the loan sharks only after [Mr A] failed to pay him and harassed and threatened him when he went to his office seeking payment. However, as I raised with him, in his statement he indicates that after discussing the threats and his fear of the loan sharks that he wrote that he reported it to the police many times but it did no use. When this inconsistency was raised with him he said he was talking about the issue with [Mr A]. The Tribunal does not accept this response as in his statement; he refers to going to the police for both matters. The Tribunal views this inconsistency to be significant and expects if the applicant went to the police or did not because of the threats of the loan sharks he would be consistent as to this matter. This adds to the finding the applicant is not a credible witness.
The credibility of the applicant’s claim that he departed Malaysia to seek protection because of a fear of loan sharks or faced the difficulties from [Mr A] and his associates is undermined by the applicant’s delay in applying for a protection visa. As indicated by the by applicant’s evidence at the hearing before me and by his application the applicant arrived in Australia [in] November 2012 on a three months visa which expired in February 2013 and applied for protection [in] August 2015, being a delay of approximately two years and nine months. Of particular relevance is that his visa expired in February 2013 and he was unlawful from that date until he applied for a protection visa, being a period of approximately 2 years and 6 months.

The applicant’s oral evidence as to the reason for this delay was that he did not know he could apply for a protection visa in Australia.
An applicant’s delay in applying for refugee status is a relevant consideration in the assessment of credibility of an applicant’s claims for refugee status. The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims refugee status, may be considered when assessing the genuineness, or at least the depth, of an applicant’s subjective fear of persecution. As was suggested to the applicant by the Tribunal at hearing such a delay may lead the Tribunal to conclude that the applicant is not genuine in his fear of persecution, in that if he genuinely feared persecution and left Malaysia seeking protection he would have applied sooner. In particular, the Tribunal raised with him that this is particularly so as he was unlawful in Australia for two years and six months.
The Tribunal does not accept the reason for his delay in applying for protection as it expects that if he truly feared persecution and he departed Malaysia for the reasons he claims he would have applied sooner than 2 years and 9 months after his arrival. It expects he would have sought advice as he is educated and it is his evidence he had sought the assistance of a lawyer before. This is particularly so as he was in Australia without a visa for two years and six months.
His delay therefore adds to the finding he is not credible as to his fear of return and it adds to the finding that he is not credible that he was threatened with harm by the loan sharks or [Mr A] or the police or that he departed Malaysia in fear for the reasons he claims.
This adds to the finding the applicant is not a credible witness.
Credibility Summary
For all the above reasons, considered cumulatively the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
In making this finding the Tribunal accepts that some information has been consistent over time, that he fled because he feared loan sharks who harassed him outside his home and came into his home and threatened him, he was owed money by [Mr A], that [Mr A] did not pay him because of claimed faulty work, he tried to seek the money but was attacked with a knife by the security guard, he was detained by the police as [Mr A] is well connected and detained for a week on false charges but released.. However the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.
As the Tribunal has found on the basis of the cumulative evidence before it that the applicant is not a witness of truth, it follows it does not accept that the applicant has been targeted by loan sharks, [Mr A], his associates or the police on behalf of [Mr A] or anyone else. It follows based on the applicant’s lack of credibility that it does not accept that the applicant made a usurious loan or a loan with loan sharks for any amount as he needed money to renovate [number] apartments for [Mr A], in or around December 2011 or at any time. It follows it does not accept that [Mr A] refused a payment of [amount]Rm even after he did and redid the job and when he went to obtain the money the security guard pressed his head against the table and held a knife towards his neck and threatened him telling him to give up asking for the money. It follows it does not accept as true that he reported the matter to the police and they said they could do nothing and then he learnt that [Mr A] was the local official’s [relative]. It follows it does not accept as true that he was then framed for stealing his wife’s necklace or ring, as he said at the hearing before me, he was arrested and cross examined by the police, detained for one week, released as there was insufficient evidence. It follows it does not accept as true that he tried to protect himself through legal action and consulted his lawyer but his lawyer was perfunctory and asked him to keep quiet about the case. It follows it does not accept as true that for the reasons he claims his license was revoked in August 2012. It follows it does not accept as true that he was ever threatened, harmed or harassed by [Mr A], his associates, his security guard, the police or anyone else, that there is an outstanding amount owed to him.
As the Tribunal has found on the basis of the cumulative evidence before it that the applicant is not a witness of truth, it follows it does not accept that he was harmed, harassed or threatened in any way by the loan sharks or loan company in March 2012 until he departed Malaysia in November 2012 or at any time as he could not pay the loan for the reasons he claims. It follows it does not accept as true that he was stopped by the loan sharks in March 2012 outside his home or in August 2012 on many occasions or at all, he was threatened to repay the debt, beaten, and searched for valuable items which were taken off him, even his cigarettes. It follows it does not accept as true that the loan sharks on other occasions when he was not there were seen by his [sibling] waiting outside the home. It follows it does not accepts as true that they ever came into his home on one, two or on any occasion and rummaged, stole valuables, beat, hit and threatened him with death or broken limbs or anything else if he did not pay the loan. It follows it does not accept he went into hiding in August 2012 or stayed at home day and night in fear and anxiety until his departure in November 2012. It follows it does not accept as true that he went to he police on many occasions or did not go at all, and that since his departure the loan sharks continue to watch his home.
It follows it does not accept as true he was treated in the manner claimed and rejected above by the loan sharks or [Mr A], in the manner outlined above which has been rejected for any of the reasons he claims , including because he is Chinese Malay.
Based on the above the Tribunal therefore rejects the applicant’s claims in their entirety and does not accept that he departed Malaysia in November 2012 in fear for the reasons he claims.
Does the applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Migration Act?
Based on the findings above and the applicant’s lack of credibility, it follows the Tribunal does not accept he will be physically assaulted, killed, threatened, suffer injury, be beaten, abused, harmed or mistreated, unable to earn a livelihood or face any difficulties he claims as he owes money to the loan sharks, his license was revoked and he is owed money by [Mr A] and will pursue it on return.
As a result the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm if he returns to Malaysia in the reasonably foreseeable future at the hands of the loan sharks, police, [Mr A] and his associates and [relative] who is well connected as he has an unpaid loan, as his license has been revoked, as he will seek money owed to him by [Mr A], as [Mr A] is politically connected and he will be perceived as opposed to him or for any of the reason he claims.
Notwithstanding the Tribunal’s finding as to the applicant’s lack of credibility, the Tribunal accepts that the applicant is of Chinese ethnicity. It has rejected above he faced any of the specific difficulties he claims in Malaysia as a result of his ethnicity. As to the treatment of Malaysian Chinese DFAT’s Country Report Malaysia indicates the following.
3.5 Malaysian Chinese constitute one of the largest overseas Chinese communities in the world and are the second largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against ethnic Chinese in Malaysia.
3.6 Malaysian Chinese make up a high percentage of the professional and educated class and dominate business and commerce sectors. The majority of ethnic Chinese are concentrated in the west coast states of Peninsula Malaysia with significant percentages (30 per cent and above) living in the large urban centres, including Kuala Lumpur, Penang, Johor, Perak and Selangor.
3.7 Malaysian Chinese freely participate in political life and are represented by ministers in the current cabinet and in opposition parties. The largest Chinese party was traditionally the Malaysian Chinese Association (MCA), a component of the Barisan Nasional (BN) coalition. The MCA won seven seats at the 2013 election, down from 15 in 2008. An increasing number of Chinese support the Democratic Action Party (DAP), one of three key opposition parties of the Pakatan Rakyat (People’s Alliance) coalition. The DAP won 38 seats at the 2013 election, a significant increase from the 28 seats in 2008. There are comparatively fewer ethnic Chinese in the Malaysian civil service. The exclusive use of the Malay language may be a restriction in this regard.
3.8 Malaysian Chinese generally have no problems in accessing public primary or high school education. However, despite the removal of government-sanctioned ethnic quotas for public universities in 2002, admission decisions remain heavily biased towards ethnic Malays. Malaysia’s matriculation programs favour bumiputera students applying for entrance to state universities. Some ethnic Chinese are not awarded a place in public universities despite having perfect high school matriculation scores. Since the formation of private universities in Malaysia, ethnic Chinese have consistently formed the bulk of the students within Malaysia’s non-government universities.
3.9 DFAT assesses that ethnic Chinese generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.
On the basis that the Australian Department of Foreign Affairs and Trade assesses that ethnic Chinese in Malaysia generally do not experience discrimination or violence on a day to day basis,[1] and on the basis of the evidence before me the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm if he returns to Malaysia in the reasonably foreseeable future as he is of Chinese ethnicity at the hands of the police, natives, government, authorities, loan sharks, [Mr A] and his associates, his [relative] or anyone else.
[1] DFAT Country Report - Malaysia, 3 December 2014, paragraph 3.9.
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Malaysia in the reasonably foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future.
The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Does the applicant meet the protection obligations under the complementary protection provisions of the Migration Act?
The Tribunal has also considered whether the applicant is eligible for complementary protection.
Based on my findings above as to the applicant’s lack of credibility, I am therefore not satisfied on the basis of the evidence before me that there is a real risk that he will suffer significant harm on his return to Malaysia at the hands of the loan sharks, police, [Mr A] and his associates and [relative] who is well connected, as he has an unpaid loan, as his license has been revoked, as he will seek money owed to him by [Mr A], as [Mr A] is politically connected and he will be perceived as opposed to him or for any of the reasons he claims.
As to his Chinese ethnicity, based on the independent evidence and on the information before me I am therefore not satisfied that there is a real risk that the applicant will suffer significant harm on his return to Malaysia as he is of Chinese ethnicity at the hands of the police, natives, government, authorities, loan sharks, [Mr A] and his associates, his [relative] or anyone else.
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of him being subjected to significant harm on return to Malaysia. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept 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 as defined in subsection 36(2A).
CONCLUSION
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen
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.
…

[2016] AATA 4017

16 June 2016

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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