1606406 (Refugee)

1606406 (Refugee) [2017] AATA 2075 (10 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606406
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Peter Vlahos
DATE:10 August 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 August 2017 at 2:48pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Moneylenders – Debt owed – Debt nearly repaid – Economic reasons to remain in Australia
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 65, 499
Migration Regulations 1994, Schedule 2
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 [in] April 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, applied for the visa [in] March 2016.
The delegate refused to grant the visa on the basis that [in] April 2017 and [in] May 2017 the applicant requested the Tribunal to consider his application for review.
[In] May 2017 the applicant submitted an application for review
The applicant appeared before the Tribunal on 24 July to give evidence, and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was not represented by legal representative or registered migration agent.
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 issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality
The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Department of Immigration and Border Protection (the ‘Department’).[1] The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s country of nationality for the purposes of s.36(2)(a) of the Migration Act (as amended) (the ‘Act’) and receiving country for the purposes of complementary protection assessment, s.36(2)(aa) of the Act. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
[1] AAT File no. 1606406 folio 30.
The applicant’s claims before the Tribunal
The applicant made the following claims for protection in his original protection visa application:
·     The applicant travelled to Australia after being promised employment. On arriving in Australia, the applicant claims that the person who was supposed to pick him up was not present to meet him.
·     The applicant claims that in Malaysia he was also introduced to a friend of the person who told him about this opportunity in Australia. This friend allowed him to borrow money for the expenses involved.
·     The applicant fears returning to Malaysia because the money lender has gone to his family’s home asking his wife to repay the debt. The applicant claims his wife was warned that if they find him they would harm or kill him because he has not repaid the debt.
The Tribunal put the above claims [in paragraph 16] to the applicant to have him confirm that they were his claims and to determine if the applicant had any further claims he would wish the Tribunal to consider. The Tribunal read each claim that was in the original application to the applicant and he confirmed to the Tribunal that he had no further claims to make.
Background
The applicant’s Migration history
[In] December 2015 the applicant arrived in Australia on a [temporary] visa and [in] March 2016 the applicant applied for a Protection (Class XA) visa and was granted the associated bridging visa.
Applicant’s background
The applicant, [name] was born in [year], in the city of Kuala Lumpur, Malaysia. He is ethnic Malay and a Muslim. He is married for twenty years and has [number] children of varying ages. [Number] of his children are still attending school – [number] of them are still living at home and the other [number] are living with relatives. Before the applicant left Malaysia he was employed as an ‘[occupation]’.
Why did the applicant decide to come to Australia?
The Tribunal was told that while in Malaysia the applicant had a “stable job” and in a discussion with a friend – that friend told him of good work opportunities in Australia. This news at first did not interest the applicant but after taking some time to think about it, the applicant felt that it was a possible opportunity he should explore. The idea became that much more attractive to him when his friend told him that he could earn by working RM[amount] per week. This information, according to the applicant made the idea of working in Australia “…very attractive.”
At the time, the applicant did not have the money to allow him to travel to Australia and asked his “friend” to lend him the money to enable him to come to Australia for work.
Thus, the applicant told the Tribunal that his friend agreed to lend him RM[amount]. The terms of the agreement for the loan was that he (the applicant) would pay each week while working and earning an income in Australia RM[amount].
This agreement would be triggered into operation once the applicant was in Australia and was earning money.
What happened when the applicant arrived in Australia?
The Tribunal was told that the applicant arrived in Australia [in] December 2015 at [city] but no one was there at the airport to meet him as had been promised. The applicant tried to contact the person(s) he had been told to contact but there was no answer to the mobile number he had been given. Hence, the applicant found himself in a foreign city with nowhere to go. After a while, (the applicant was not specific and provided no definite time-line) the applicant found a fellow Malaysian who provided him with shelter and agreed to help him find his own accommodation and employment.
Subsequently, the applicant found employment as a “[occupation]” in [location] and was earning a wage of AUD$[amount] per week.
What has happened with the debt to the money lender incurred in Malaysia?
The applicant told the Tribunal that the debt that he had incurred in Malaysia had been periodically repaid and that the applicant owed only RM[amount].
The Tribunal asked the applicant to clarify if he repaid the still outstanding amount of RM[amount] would that repayment ends his problem debt. The Tribunal was told by the applicant that – “I can settle the debt within a month…” However, the applicant emphasised that he also had “other commitments” to take care of and that was the need of his wife and children.
Nevertheless, the applicant made it clear to the Tribunal that he had “no problems with the moneylender in Malaysia” as long as he “repaid the money still outstanding…”
What does the applicant wish to do in the immediate future?
The applicant made it clear to the Tribunal that if could manage it he would prefer to remain and work in Australia. He believed that “things” are much more “different” here. In Australia there was a sense of “discipline” and stronger human rights than in Malaysia. After all, people in Australia, according to the applicant, “follow the rules” whereas in Malaysia the situation is very different.
However, the applicant told the Tribunal that most of the debt he owed to the moneylender in Malaysia had been paid and a small amount was still outstanding. The applicant went on to tell the Tribunal that he only owed approximately AUD$[amount]. He emphasised that he believed this outstanding amount would be paid without any problems.
FINDINGS
The Tribunal accepts that the applicant in the interests of providing for a better means of living for his family contemplated offers to explore employment opportunities in Australia as put to him by third persons in Malaysia. Indeed, this led him to borrow money from unlicensed moneylenders in Malaysia to fund his trip to Australia in December 2015 in order to explore these opportunities. Indeed, the Tribunal was assisted by the display of truthfulness and sincerity which attached to the applicant’s responses to the Tribunal’s rigorous questioning concerning his claims. It is noted that the applicant told the Tribunal that he had almost repaid all amounts owing to the moneylenders in Malaysia and only a small amount of AUD$[amount] was still outstanding which he expected to repay in full within a month. Hence, extinguishing any and all concerns the applicant might have had about not being able to settle his debts with the moneylenders in Malaysia as he had originally claimed. Therefore the Tribunal finds and accepts that based on the admissions of the applicant as having settled or in the process of settling his obligations to the moneylenders there is no chance of his being threatened or otherwise persecuted for reasons of his choosing to deal with and to procure a loan from unlicensed moneylenders.
For the reasons given in paragraph [31] above, the Tribunal does not accept that the applicant was forced to flee Malaysia because of his choosing to deal and procure a loan from unlicensed moneylenders, as he claimed, nor that there is a real chance that he will face persecution involving serious harm because he chose to seek a loan from unlicensed moneylenders if he returns to Malaysia. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect to whom Australia has protection obligations under s.36(2)(a) of the Act.
The Tribunal 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). For the reasons given in paragraph [31] above, the Tribunal does not accept that the applicant has substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm because he chose to deal with and procure a loan from unlicensed moneylenders in Malaysia. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
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.
Peter Vlahos
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.
…

[2017] AATA 2075

10 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice