1607470 (Refugee)
[2017] AATA 1982
•7 August 2017
1607470 (Refugee) [2017] AATA 1982 (7 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1607470
COUNTRY OF REFERENCE: Malaysia
MEMBER:Paul Windsor
DATE:7 August 2017
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 07 August 2017 at 10:11am
CATCHWORDS
Refugee – Protection visa – Malaysia – Applicant in debt – Fears creditors shall commence court action against him – No real chance of persecution – No ‘complementary protection’ grounds
LEGISLATION
Migration Act 1958, ss 5H(1)(a)-(b), 5J(1), 5J(1)(a), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A) and (2B), 36(3), 65, 91R(i) (b)-(c), 91R(2), 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] May 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 the delegate was not satisfied that there is a real chance of persecution for one or more of the reasons set out in s.5J(1)(a) of the Act. The delegate also was not satisfied that there was a real risk that the applicant would suffer significant harm were they to return to Malaysia.
The applicant applied to the Tribunal for review of this decision on 25 May 2016. The applicant provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 2 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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
In his Protection visa application[1] the applicant claims to be a citizen of Malaysia who was born in Seremban in Negeri Sembilan, Malaysia. His passport indicates he was born on[date of birth]. He has not indicated whether he belongs to a particular ethnic group but states that he is a Muslim, and that he speaks, reads and writes Malay and English. He indicated he had never married or been in a de facto relationship. He stated he departed Malaysia legally through Kuala Lumpur International Airport [in] November 2015 and arrived in Australia [in] November 2015, entering on a Visitor visa.
[1] See Departmental file [number].
Claims from the Protection visa application
The applicant’s claims from his Protection visa application[2] are summarised as follows:
·He left Malaysia because his cousin wanted to harm or maybe kill him.
·He and his cousin’s wife got drunk and he fell asleep and cannot remember what happened but when he woke up he was naked and his cousin’s wife was half naked. His cousin thinks they had sex together.
·His cousin caught him but his friend helped him and brought him to Kuala Lumpur.
·His cousin found him and brought a group to harm him but he ran out the back door. After that he came to Australia.
·His mother told him his cousin’s family will not let him free after what happened.
[2] See Departmental file [number].
Evidence from the hearing of 2 August 2017
At the hearing the applicant said that a Malaysian person prepared his application for him for $[amount] and made up the claims about his cousin and his cousin’s wife without consulting him. He indicated that he did not wish to continue with that claim and confirmed that he does not fear harm from his cousin should he return to Malaysia.
The applicant said he only intended to come to Australia to work for three months on a holiday visa. He indicated that he had a problem with some debts and saw on Facebook that there are jobs in Australia that pay RM[amount] per month. He said he intended to work in Australia for three months to pay his debts. The applicant commented that when he wanted to return to Malaysia the person who completed his Protection visa application said not to bother and that he could help the applicant to apply for a visa that would enable him to work and to return to Malaysia and come back to Australia. The applicant indicated that this did not happen as promised. He said he could not get a job easily in Australia and could not return to Malaysia as he couldn’t pay his debts, so he decided to stay in Australia.
The applicant indicated he was not working at the time he decided to come to Australia. He commented that he had done a [course] and had been working as a [occupation] but was made redundant in September [2015]. He said [his former place of work] no longer got [contracts]
The applicant said his debts are from his study fees and a loan he took out to buy a motorbike. He indicated that the student loan was for RM [amount] and he was required to start repaying the loan three months after commencing employment. He said he was able to repay the loan in instalments and was paying RM [amount] per month.
The applicant said he bought his motorbike in March 2015 and it was worth RM [amount]. He indicated that he bought it without any down-payment but had to pay instalments of RM[amount] per month for 48 months. The applicant said his motorbike has been repossessed because he had been unable to continue the repayments. The Tribunal asked the applicant why he didn’t sell his motorbike to pay off his debt when he came to Australia in November 2015. He said he was very fond of it. He indicated that he could not continue the repayments when he came to Australia as the money he earned was just enough to pay for his food and lodgings.
The applicant indicated that he fears that if he has to return to Malaysia court action will be taken against him, his creditors will have him blacklisted, and his belongings will be auctioned. The applicant showed the Tribunal a message on his mobile phone which he said had been forwarded by his [sibling], who had access to his Malaysian phone. The Interpreter indicated that the message indicated that the receiver of the message was a defaulter and action was to be taken to confiscate his property. The receiver of the message was asked to contact [Ms A].The applicant said the message was sent [in] July 2017 and was from the [‘company’], from which he had taken the loan for his motorbike. The Tribunal asked the applicant if he had contacted [Ms A]. He said he had and she had advised that he has to pay RM [amount]. The applicant indicated that this included costs for the repossession and storage of his motorcycle as well as accrued interest costs.
Findings and reasons
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
On the basis of the copy of the applicant’s Malaysian passport provided to the Department[3], the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is as he claims it to be. The Tribunal accepts that Malaysia is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Assessment of claims
[3] See Departmental file [number] (unfolioed).
The Tribunal accepts that the applicant has some debts in Malaysia. He indicated that had a study loan for RM[amount] on which he had commenced repayments of [figure] per month and had bought a motorbike in March 2015 valued at RM [amount] which he had to repay in 48 monthly instalments of RM[amount]. The Tribunal accepts the applicant’s claim that he lost his job [in] September 2015 after he was made redundant and was attracted to coming to Australia to work for three months because he had read a post on Facebook indicating that he could earn RM [amount] per month working in Australia, and thought this would help him repay his debts.
The Tribunal accepts that the reality was that the applicant could not earn this much in Australia. The Tribunal also accepts that the applicant was misled by a person who suggested that by applying for a Protection visa he could get a visa with work rights and a multiple exit and re-entry facility.
The Tribunal has doubts about the applicant’s claim that he could not maintain his total monthly repayments of RM[amount] per month (approximately AUD [amount] at the current exchange rate), given the applicant indicated that after flying to [City 1] from Malaysia and [working in a certain role] in the [region] of [State 1], he later flew to [City 2] to work there for four months, then flew back to [City 1] before moving to [a town] where he is currently [working] from the house he lives in. When queried regarding this at the hearing, the applicant indicated that he borrowed money from [a family member] to pay for his airfare from Malaysia. When the Tribunal asked the applicant why he was unable to meet his commitment to pay RM [amount] per month on his loan instalments (RM[amount] for his study loan and RM[amount] for his motorbike) but was able to afford to fly to [City 2] and back, the applicant said he thought it was better for him to repay his study loan and his [family member], rather than the loan instalments for his motorbike. When queried why he prioritised his [family member] over his motorbike loan repayments he replied that his [family member] has a ‘loud mouth’. The applicant also said that while he has not yet repaid his study loan he had been paying extra on that (RM [amount] per month).
The Tribunal also queried the applicant why, if his overall motorcycle repayments only totalled RM [amount], and the motorbike had been repossessed by the finance company, he now owed RM [amount]. He said that while the total expected repayments over 48 months amounted to RM [amount], the amount owing included six months accrued interest, repossession costs and storage fees. The Tribunal queried the applicant that if his motorbike has been repossessed, it would be expected that the finance company would sell it to recover part of the debt and therefore it was difficult to see that he would owe RM [amount]. He replied that the additional amount grew as he did not make repayments for eight months before his motorbike was repossessed. The Tribunal does not accept that this would account for his outstanding debt more than doubling, despite the applicant having made some repayments initially and his motorbike having been repossessed by the finance company. The applicant has not provided any documentary evidence to verify the amount of his debts. When queried about this he said there are no letters. While the Tribunal accepts that the applicant has some debts the Tribunal does not accept that he has an outstanding debt for RM [amount] in relation to his motorbike.
The Tribunal put to the applicant that it did not seem that that he would face serious harm if he returned to Malaysia or that he would face harm for any of the reasons set out in s5J(1)(a) of the Act. The applicant commented that initially he wanted to come to Australia for three months only but there was not much work available in Australia and he had got into debt in Australia as well. He commented that if he returned to Malaysia he would not be able to get a job there as his [qualifications] have expired. He asked whether he could remain in Australia for another month or two to repay the debts he had incurred in Australia.
The Tribunal accepts that the applicant may not be able to find work in Malaysia that pays as well as work he has been able to find in Australia but does not accept that he will be denied work or will be unable to find work at all in Malaysia. In this context, and as discussed with the applicant, he indicated that his father, mother, [and siblings] are all undertaking some form of work in Malaysia. The applicant indicated that prior to working [as] a [occupation] he worked as a [occupation], and that he was working in Australia [in a certain role]. The applicant has indicated that he has been paying extra instalments on his study loan debt and the Tribunal considers that the applicant can make arrangements with his debtors to meet his obligations to repay his other debts. The Tribunal accepts that if the applicant does not engage with his creditors and make acceptable arrangements to repay his debts, it is possible that court action will be taken against him, he will be ’blacklisted’ as someone who is a credit risk and therefore will have difficulty obtaining credit in the future, and legal action might be taken against him by his creditors to seize some or all of his property/assets. However, the Tribunal does not consider that such legally sanctioned action against him, as a debtor, would result in him suffering economic or other hardship amounting to serious harm (such as threatening his capacity to subsist or denying him the capacity to earn a livelihood of any kind, such that his capacity to subsist is threatened), or significant harm if he had to return to Malaysia.
Based on the applicant’s evidence at the hearing the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in Malaysia for any of the reasons set out at s.5J(1)(a) of the Act. The Tribunal also finds that there are not 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 the applicant will suffer significant harm, for economic or any other reasons. In this regard, the Tribunal does not consider that the possibility that court action will be taken against the applicant, he might be ’blacklisted’ as someone who is a credit risk and therefore will have difficulty obtaining credit in the future, and/or that legal action might be taken against him by his creditors to seize some or all of his property/assets because he has not agreed arrangements to repay his debts, amounts to cruel or inhuman treatment or punishment, or degrading treatment or punishment. The Tribunal considers there is nothing in the applicant’s evidence to suggest that he would be subjected to cruel or inhuman treatment or punishment; or to degrading treatment or punishment, for economic or any other reasons.
Conclusions
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). Having regard to the findings of fact set out above, 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.
Paul Windsor
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.
…
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Immigration
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Administrative Law
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Statutory Interpretation
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Judicial Review
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Procedural Fairness
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