1603997 (Refugee)

Case [2017] AATA 1927

1603997 (Refugee) [2017] AATA 1927 (13 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603997

CASE NUMBER:  1604824

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sophia Panagiotidis

DATE:13 September 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that:

(i)Applicant 1 satisfies s.36(2)(a) of the Migration Act; and

(ii)Applicant 2 satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as Applicant 1.

Statement made on 13 September 2017 at 4:31pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Social group – Persecution by loan sharks – State protection available – Interfaith marriage – Application of Sharia Laws – Not a law of general application

LEGISLATION

Migration Act 1958, ss 5J, 5H, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MZQAP v MIMIA (2005) 85 ALD 41
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Weheliye v MIMA [2001] FCA 1222

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. The two applications are related and the Tribunal has combined the relevant facts and matters into one decision statement.

    Applicant 1:

  2. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

  3. The applicant who claims to be a citizen of Malaysia, applied for the visa [in] November 2015.

  4. The applicant first arrived in Australia [in] January 2009 and departed [in] January 2009. He arrived in Australia [in] August 2015 and has not departed since.

    The applicant's claims:

  5. The applicant's claims are as follows:

    ·     The applicant’s brother in law borrowed money from money lenders and he was a guarantor.

    ·     When the debts accrued he and his wife husband[1] received threats and intimidation after his brother in law failed to pay the loan instalments. He had borrowed RM[amount] from a licenced money lender in 2013. Repayments were to be RM [amount] every week. When they failed to make the repayments, their life became horrible – the balance of the loan is RM [amount].

    ·     The applicant was threatened and they tried to force him to surrender the mortgaged home. When he insisted he did not want to do so, he was hit and tied her[2] up and hit on…

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AGLC
1603997 (Refugee) [2017] AATA 1927
Case
[2017] AATA 1927
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Malaysian national, Applicant 1, and his partner, Applicant 2. The dispute centred on whether the applicants faced a real risk of significant harm if returned to Malaysia, specifically due to debts incurred by a cousin's husband for whom Applicant 1 had acted as a guarantor. The applicants claimed harassment and threats from an unlicensed money lender. The case was heard by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether Applicant 1 met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Additionally, the Tribunal considered whether Applicant 2, as the partner of Applicant 1, met the criteria under section 36(2)(b)(i) by being a member of the same family unit. The Tribunal also had regard to the complementary protection criterion under section 36(2)(aa), which applies if there are substantial grounds for believing that removal would result in a real risk of significant harm.

The Tribunal noted that both applicants had received assistance with their visa applications from the same acquaintance, leading to identical claims being made. Applicant 1 explained this by stating their situations were similar, involving harassment from a money lender after he agreed to be a guarantor for his absconded cousin. Applicant 2 corroborated this, stating they had similar issues with a money lender and that the acquaintance had attempted to summarise their claims. The Tribunal found that Malaysia was the receiving country for both applicants and that there was no evidence of a safe third country. The Tribunal concluded that Applicant 1 satisfied section 36(2)(a) and that Applicant 2 satisfied section 36(2)(b)(i) as a member of the same family unit as Applicant 1.

Consequently, the Tribunal remitted the matter for reconsideration with directions that Applicant 1 satisfies section 36(2)(a) and Applicant 2 satisfies section 36(2)(b)(i) on the basis of membership of the same family unit as Applicant 1. This outcome means Applicant 2 would be entitled to a protection visa if the remaining criteria were met, contingent on Applicant 1 being granted a protection visa of the same class.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the first hearing, the applicant confirmed he is in a relationship with another Malaysian national and they met in Australia. He told the Tribunal that someone assisted him with the application for the protection visa and the same person assisted his partner with hers. He did not realise that the person included the same claims for him and his partner. He does not speak or read English very well and did not look at the application closely. Evidence of applicant 1 The applicant confirmed he was born in Sabah in [year] and his ethnicity is Malay and he is a Muslim. He went to university where he studied [subjects]. He has [siblings] and they are all in Malaysia. His father was [an occupation] but has been ill since 1989 and does not work. Both parents live in Malaysia. He originally worked in a [company] for a [business] from 2011 to 2014 and then he established his own [company]. He is not married and has no children. He confirmed that he had previously travelled to Australia for a holiday while he was at university in 2009.Debt to unlicensed money lender The applicant told the Tribunal he cannot return to Malaysia because he has a debt problem. It relates to his cousin’s husband who took out a loan using the applicant's company as a guarantor. The name of his company was [name deleted]. He has had this company for four years and it was based in Kota Kinabala. With the help of a friend he set up his [business]. His business [details deleted]. After a while he started to make a profit and set up his own business independently and registered his business. He did not have a [workplace] but used a student space at the [location] and had a small office which he rented. He promoted his business [with other businesses] and the agreement was that after three months the rate of his fees would increase to the normal rate instead of the half rate. He had people who worked for him, such as university [students]. [Details of work deleted]. The applicant said that in 2015 his cousin’s husband wanted to borrow money from his company but he did not have much and so could not lend him the money, so he refused. His cousin’s husband then asked if the company could act as a guarantor for a loan. His cousin’s husband wanted to set up his own company and his wife was to work with him. At first his cousin’s husband wanted RM [amount] to [amount] from the applicant but he did not have this. He told the applicant he knew someone who could lend him the money but he needed someone to be his guarantor. The applicant met with the lender and signed documents that he would be a guarantor. The lender also took the applicant's photo when they met. They did not meet in an office, but in a coffee shop. Both he and his cousin’s husband signed the documents. The applicant was asked about the nature of the business proposed by his cousin’s husband. He said that his cousin and her husband lived [in] Sabah and were planning to sell [products]. They were already in [the industry] and wanted to expand [this].

Decision

Reasons for decision

The Tribunal is however satisfied that Applicant 2 as the partner of Applicant 1 is a member of the same family unit for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the application of Applicant 1. It follows that Applicant 2 will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met as Applicant 1 holds a protection visa of the same class as applied for by Applicant 2.DECISION The Tribunal remits the matter for reconsideration with the directions that: (i)Applicant 1 satisfies s.36(2)(a) of the Migration Act; and (ii)Applicant 2 satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as Applicant 1. Sophia PanagiotidisMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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 issue in this case is whether the applicant meets the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Country of reference The applicants claim to be citizens of Malaysia and have provided the Department certified copies of passport and identity documents. The Tribunal was also provided with the applicants’ passports and identity documents at the hearing. On the basis of the available evidence, the Tribunal finds that the applicants are citizens of Malaysia and that Malaysia is the applicants’ receiving country for the purposes of the refugee and complementary protection assessment. There is no available evidence before the Tribunal to suggest that the applicants have a current right to enter and reside in any safe third country for the purposes of s.36(3) of the Act. Assessment of claims and findings The Tribunal asked both applicants if they had completed the application for the protection visa themselves. They both indicated that they had help from an acquaintance who had completed the application after they had outlined each of their circumstances. The Tribunal expressed concern that the claims in both applications were exactly the same and asked each applicant for an explanation. Applicant 1 told the Tribunal that perhaps the form was the same because their situations were similar. He confirmed he left Malaysia because of harassment and threats by a money lender after he agreed to be a guarantor for a cousin who has since absconded and he had no capacity to pay the loan. Applicant 2 told the Tribunal that she left Malaysia because of problems with a money lender as did her partner. Although they did not know each other in Malaysia they discovered they had similar issues and reasons for leaving Malaysia. She believes that the acquaintance completed the form in a way that tried to summarise her claims as well as those of her partner. The applicant confirmed that she left Malaysia because of harassment and threats made by a money lender after she agreed to be a guarantor for her former brother in law. Fear of harm from money lenders