1608382 (Refugee)

[2017] AATA 3090

1608382 (Refugee) [2017] AATA 3090 (9 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608382

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:          9 August 2017 at 1:38 pm (WA time)

DATE OF WRITTEN RECORD:                23 August 2017

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 23 August 2017 at 11:52am

CATCHWORDS

Refugee – Protection Visa – Malaysia – Particular social group – Persons in Malaysia indebted to Ah Longs (Loan Sharks) – Returnees – State protection available – Witness credibility – Significant delay in seeking protection

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5LA, 36

CASES
A v MIMA (1999) 53 ALD 545
Horvath v Secretary of State for the Home Department (SSHD) [2001] 1 AC 489
Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SAAD v MIMIA [2003] FCAFC 65
SDAQ v MIMA (2003) 129 FCR 137

Selliah v MIMIA [1999] FCA 615

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.

APPLICATION FOR REVIEW

1. 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 the Migration Act 1958 (the Act).

2. At the hearing on 9 August 2017 the Tribunal made an oral decision and gave an oral statement of decision and reasons.  The following is the written record of those reasons.

   APPLICANT IDENTITY

3. According to the applicant’s movement record he arrived in Australia [in] May 2008, travelling on his most recent Malaysian passport travelling into Australia on a [temporary] visa.  This visa expired [in] August 2008.  The applicant thereafter remained unlawfully in Australia until he applied for a protection visa [in] September 2015. 

4. In addition to departmental files relating to the applicant the tribunal has had regard to the applicant’s most recent passport which was issued in [a town in] Malaysia [in] 2008.  There is nothing before the tribunal to suggest that the applicant is not the person identified in the passport. 

5. On the basis of the foregoing evidence the tribunal finds that the [applicant] is a man, born [birth date], and is a national of Malaysia. The tribunal, therefore, finds that receiving country for the applicant is Malaysia for the purposes of section 36(2)(aa) of the Act.

6. The tribunal has no information to suggest that the applicant has a right to enter and reside in another country. The tribunal, therefore, finds that the applicant does not have a current right to enter or reside in another country other than Malaysia. Accordingly, section 36(3) of the Act does not apply to him.

   STATEMENT OF DECISION AND REASONS

7. The applicant appeared before the tribunal on 25 July 2017 and again on 9 August 2017, to give evidence, present arguments and answer questions.  The applicant was represented in this application by a registered migration agent and the agent attended both hearings with the applicant. 

8. At the second hearing the applicant’s agent made oral submissions.  The tribunal has referred to the delegate’s record of decision which was provided to the Tribunal by the applicant.  The tribunal has taken into account the oral submissions made by the applicant’s agent.  The applicant was assisted at both hearings by an interpreter fluent in both Mandarin and English. 

9. The issue raised in this case can be expressed in terms of refugee protection as being whether the applicant engages Australia’s protection obligations for the essential and significant reason of the applicant’s membership of a particular social group; namely, persons in Malaysia indebted to Ah Longs.  Although not specifically addressed in the application for protection the tribunal has considered a further particular social group that may be of relevance to the applicant; namely, the applicant’s potential membership of a particular social group; returnees.

10. As initially expressed, the primary issue in this matter for determination by the tribunal is whether or not there is a real risk that the applicant will suffer significant harm now or in the reasonably foreseeable future if he were removed from Australia to Malaysia for reasons relating to the claims raised in his application for protection. 

11. For reasons that will follow, the tribunal has concluded that the decision of the delegate for the Minister for Immigration should be affirmed.

    Relevant Law and Country Information

12. The law relevant to this application for review is that which applies to applications made at the date of the applicant’s original application, as understood to apply the date of this decision.  The applicant has discussed the criteria for a protection visa with his agent, and this was confirmed with the applicant at the hearing. 

13. The tribunal has had regard to the country information discussed in the delegate’s record of decision.  The tribunal has discussed this country information with the applicant at the hearing and also with the applicant’s agent. 

14. The tribunal acknowledges the submissions made by the applicant’s agent, particularly to the extent that the agent has raised concerns with the tribunal about the completeness and accuracy and consistency of available country information relating to Malaysia.  However, having considered the available country information and the applicant’s particular claims, the tribunal expressly agrees with and accepts the delegate’s discussion of country information which is contained in the delegate’s record of decision and adopts that discussion as the tribunal’s own to the extent that it is otherwise consistent with country information referred to in this decision.

15. The tribunal has, in addition, had regard to the DIBP publication “Malaysia: Common Claims”, COISS, dated 1 September 2016 and the DFAT publication “Country Information Report: Malaysia”, dated 19 July 2016.  In particular, those extracts of these documents relating to “State Protection and rule of law” (State Protection) and the discussions of “Gangs/Crime” (Groups of Interest) and “Loan Sharks”.  The tribunal further notes that the DFAT publication “Country Information Report: Malaysia”, dated 19 July 2016 provides, at [5.20] as follows:

    Many thousands of Malaysians enter and leave the country everyday.  People who return to Malaysia after several years absence are unlikely to face adverse attention when they return on account of their absence.  Malaysians who overstay their work or tourist visas or breach visa conditions in other countries are regularly returned to Malaysia with no attention paid to them by authorities.  Likewise failed asylum seekers would be unlikely to face adverse attention as the Malaysian government does not typically know the individual is a failed asylum seeker, although it is possible that some individuals might be questioned upon entry or have their entry delayed, particularly if their passport has expired while abroad.

16. The tribunal is entitled to consider whether the applicant objectively has a well-founded fear of persecution, as defined by ss.5H and 5J of the Act, before considering whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held. If the tribunal finds on the evidence that the applicant does not have a genuinely-held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.

17. The tribunal notes that in the case of Iyer[1] the Court confirmed that the tribunal had applied the correct principles concerning the applicant’s fear of persecution when it found that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.  The court stated that in such situations the tribunal does not need to go any further in its analysis of the basis of the claim.  This decision was affirmed on appeal.[2]

    [1]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].

    [2]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

18. The tribunal also notes that if it makes findings that an applicant’s claims are not credible, that may lead to the conclusion that the tribunal does not believe the applicant held a genuinely subjective fear of persecution.  Where this is the case the tribunal is not required to proceed to assess other aspects of the applicant’s claims.  On the other hand if the decision-makers finds there is no objective basis for a fear of persecution there is no obligation to consider whether there is a subjective fear.[3] 

    [3]SAAD v MIMIA [2003] FCAFC 65 (Cooper, Carr and Finkelstein JJ, 11 April 2003) at [38]; Selliah v MIMIA [1999] FCA 615 at [40].

19. The tribunal notes that it will not be sufficient that a person has a real chance of being persecuted only in a particular part of the receiving country. As discussed with the agent at the hearing, under s.5J(1)(c) of the Act, a real chance of persecution must relate to all areas of the receiving country. When considering whether the apprehended persecution can properly be regarded as localised it will often be relevant to have regard to whether the source of the persecution feared is the same or by contrast a non-state agent.

20. Where the persecutor is a non-state agent, internal relocation will not be an option if there is a risk the non-state actor will persecute the applicant in other areas of the country.  This will depend on a determination of whether the persecutor is likely to pursue the applicant elsewhere and, if so, whether protection from the harm feared is available there.[4]

    [4]UNHCR Guidelines on international protection: ‘Internal Flight or Relocation Alternative’ within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/03/04 23 July 2003, at [7].  

21. Importantly, a person will be taken not to have a well-founded fear of persecution if effective protection measures are available to the person in the receiving country. This qualification to well-founded fear of persecution is contained in s.5J(2) of the Act and the circumstances in which effective protection measures are available to a person are set out in section 5LA of the Act.

22. Further qualifying the concept of a well-founded fear of persecution s.5J(3) of the Act provides that a person will not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid a real chance of persecution other than particular types of modifications. The tribunal notes the comments of former High Court Chief Justice Gleeson, who approved the following statement of Lord Hope of Craighead in the case of Horvath where his Lordship said:[5]

    … in the context of an allegation of persecution by non-state agents the word persecution implies a failure by the state to make protection available against the ill-treatment or violence which the person suffers at the hands of his persecutors. 

    [5]MIMA v Khawar (2002) 210 CLR 1 at [19] per Gleeson CJ, citing Horvath v Secretary of State for the Home Department (SSHD) [2001] 1 AC 489 at 497-8 per Lord Hope of Craighead.

23. The Chief Justice held that persecution may result from the combined effect of the conduct of private individuals and the State or its agents and that a relevant form of State conduct may be tolerance or condemnation of the inflicting of serious harm in circumstances where the State has a duty to provide protection against such harm.[6]

    [6]MIMA v Khawar (2002) 210 CLR 1 at [30] per Gleeson CJ.

24. It is clear that the State concerned is not required to guarantee the safety of its citizens from harm caused by non-state persons.  In another case discussing the previous legislative framework, S152/2003, Gleeson CJ, Hayne and Hayden JJ observed that:[7]

    … no country can guarantee that its citizens will at all times and in all circumstances be safe from violence.

    [7](2004) 222 CLR 1 at [26].

25. In the same case, Kirby J stated that the Convention does not require or imply the elimination by the state all risks of harm; rather it “posits a reasonable level of protection, not a perfect one”.[8]

    [8]MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117].

26. What is a reasonable level of protection was discussed in that case by the majority judgment to include “an appropriate criminal law, the provision of a reasonably effective and impartial police force and justice system”.[9]

    [9]MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [28].

27. The tribunal also notes that the Full Court in A v MIMA explained that where the decision maker has a view based on available material that a particular country is one which has effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm of the sort feared, in the absence of evidence advanced by the claimant, the decision maker will be entitled to reject the contention that the applicant is unable or unwilling for a Convention reason to avail him or herself of the protection of that country.[10]

    [10](1999) 53 ALD 545 at [42]. Note that some aspects of the discussion of protection in that case may not be consistent with what was said about the second limb of Article 1A(2) in the joint judgment in MIMA v Respondents S152/2003 at [28].

28. The tribunal further notes that in MIMA v Khawar, Kirby J referred to the Canadian case of Ward in support of the broad proposition that as a practical matter in most cases, save those involving a complete breakdown of the agencies of the State, decision-makers are entitled to assume (unless the contrary is proved) that the State is capable within its jurisdiction of protecting an applicant.[11]

    [11](2002) 210 CLR 1 at [115]. In A v MIMA (1999) 53 ALD 545 the Full Federal Court characterised the presumption that ‘nations should be presumed capable of protecting their citizens’ as ‘a presumption without a basic fact’ and therefore as ‘a rule of law relating to the existence of a burden of proof [which] has no part to play in administrative proceedings which are inquisitorial in their nature’. Accordingly, the Court agreed with the trial judge that there was no foundation in authority or principle which should lead it to accept the existence of a presumption in terms of Ward.  The apparent conflict between these cases may be explained by the different ways in which Kirby J and the Full Federal Court in A characterised the reference in Ward to the presumption of protection.

    Decision under review

    Applicant Credibility

29. The applicant has provided inconsistent evidence in connection with his application for protection, relating to his residential addresses in Malaysia before coming to Australia.  He also stated that he never intended to repay whatever money he borrowed from Ah Longs. 

30. At the hearing the applicant stated he borrowed three amounts of [a particular amount of] MYR from different Ah Longs between January 2008 and May 2008.  The applicant states that he was grabbed and slapped on one occasion by thugs associated with Ah Longs.

31. The applicant has stated that the Ah Longs have done no more than enquire after his whereabouts on one occasion with his friends and family after he departed Malaysia in 2008. 

32. When asked why he came to Australia in 2008, the applicant’s first response was that he wanted to earn money.  The applicant’s secondary response was that he was fleeing Ah Longs. 

33. The applicant claimed that he did not report the harassment he experienced from the Ah Longs to police because police in Malaysia are corrupt; borrowing money from Ah Longs is illegal in Malaysia; and, he feared reprisals from the Ah Longs.

34. The tribunal has considered the applicant’s various claims individually and then cumulatively and finds that the applicant’s evidence of being indebted to Ah Longs in Malaysia generally lacks credibility. 

35. The tribunal, therefore, finds that the applicant is not indebted to Ah Longs in Malaysia. Accordingly, given the foregoing findings, the tribunal finds that there is less than a real chance of persecution to the applicant now or in the reasonably foreseeable future or the essential and significant reason of being a member of a particular social group persons in Malaysia indebted to Ah Longs, for the purposes of s.5J(1)(a) of the Act.

36. The tribunal also notes that the test for determining whether or not there is a real chance of persecution for the essential and significant reason of a s.5J(1)(a) ground, membership of a particular social group, persons in Malaysia indebted to Ah Longs (the refugee criteria) is substantially the same as the test under the complementary protection criteria of there being a real risk of the applicant suffering significant harm as a necessary and foreseeable consequence of the applicant being moved to Malaysia. Accordingly, the tribunal finds that there is less than a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of the applicant being removed to Malaysia on account of being a person in Malaysia indebted to Ah Longs now or in the reasonably foreseeable future.

37. In addition, the tribunal has had regard to the treatment of returnees in Malaysia. Accordingly, given the relevant country information discussed above in this decision, the tribunal finds that there is less than a real chance of persecution to the applicant now or in the reasonably foreseeable future for the essential and significant reason of the applicant being a member of the particular social group, returnees, for the purposes of section 5J(1)(a) of the Act. T

38. he tribunal also notes that the test for determining whether or not there is a real chance of persecution for the essential and significant reason for section 5J(1)(a) of the Act, membership of a particular social group returnees (the refugee criteria) is substantially the same as the test under the complementary protection criteria of there being a real risk of the applicant suffering significant harm as a necessary and foreseeable consequence of the applicant being removed to Malaysia. Accordingly, the tribunal finds there is less than a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of the applicant being removed to Malaysia on account of his status as a returnee, now or in the reasonably foreseeable future.

    Well-founded Fear of Persecution

39. Based on the foregoing factual findings and credible country information referred to in this decision the tribunal finds that the applicant does not genuinely hold a well-founded fear of persecution in Malaysia.  This finding has been based on two principal concerns on the part of the tribunal.

40. Firstly, the concerns the tribunal has referred to above, relating to the applicant’s credibility and the credibility of the applicant’s claims.  Taking each of the integers of the applicant’s claims individually and cumulatively the tribunal finds the applicant’s claims are not credible.  Further, adding to the tribunal’s concerns about the applicant’s credibility, are its concerns relating to the applicant’s delay in seeking protection.  The tribunal questioned the applicant about why it had taken the applicant so long to apply for protection in the first instance. 

41. The tribunal asked the applicant why he had chosen to remain unlawfully in Australia for at least seven years before applying for protection.  The applicant responded that he was afraid and indicated he did not understand what he should do. 

1. The tribunal asked the applicant why he remained in Australia unlawfully without seeking the assistance of an agent, a lawyer or speaking to the Department.  The applicant explained his failure to act by reference to his lack of understanding.  In the course of questioning the applicant appreciated that this created a credibility issue for the tribunal. 

2. In making the tribunal’s findings relating to the applicant’s credibility, the tribunal is mindful of the fact that the applicant has remained outside of Malaysia since 2008 and that all of his immediate family have remained within Malaysia since that time.  The applicant has indicated to the tribunal that he is in regular contact with his immediate family.  The applicant has provided no evidence to suggest that any of his immediate family have suffered harm for the essential and significant reason of the claims listed by the applicant in his application for protection.

3. In passing, despite the tribunal’s concerns relating to the credibility of the applicant’s claims the tribunal finds that the applicant would not otherwise have a well-founded fear of persecution due to the availability to him of state protection. 

   State Protection

4. The tribunal notes that the failure on the part of the tribunal to find that the applicant has a genuinely-held fear of persecution means that the tribunal is not required to consider the question of state protection.  For the avoidance of any doubt, the tribunal makes the following findings with respect to the availability of state protection for the applicant.  The tribunal finds that protection measures are available to the applicant in Malaysia.  The tribunal makes these findings on the basis of credible country information referred to above.

5. The tribunal further finds that effective protection measures available to the applicant in Malaysia are both accessible to the applicant and durable now and in the reasonably foreseeable future for the purposes of s.5(2) of the Act. The tribunal finds that, should the applicant return to his home in Malaysia now, or in the reasonably foreseeable future, on the basis of the availability of state protection, there is not a real chance that he will face persecution from loan sharks known as Ah Longs and their criminal associates for the purposes of s.5J(1)(b) of the Act.

6. In light of the foregoing findings, the tribunal has carefully considered whether the harm feared by the applicant relates to all areas of the country as per section 5J(1)(c) of the Act. The tribunal finds as above that the applicant will be able to obtain safe and lawful access to relevant areas within the country where there is less than a real chance of persecution on the same basis as discussed above; namely, the availability of state protection. The tribunal has considered each of the integers of the applicant’s claims for protection individually and cumulatively. The tribunal has found that the applicant’s evidence in connection with his claims lack credibility or are otherwise materially inconsistent with credible country information.

   Refugee Criteria

7. The tribunal finds that, considered cumulatively, there is no real chance of persecution being faced by the applicant now or in the reasonably foreseeable future for the essential and significant reason of the applicant’s membership of particular social groups, persons in Malaysia indebted to Ah Longs, or returnees, if he was returned to Malaysia for the purposes of s.36(2)(a) of the Act.

   Complementary Protection Criteria

8. The tribunal notes that if a person is found not to meet the refugee criteria at s.36(2)(a) of the Act, they may nevertheless meet the criteria for the grant of a protection visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations, because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk that they will suffer significant harm as per s.36(2)(aa) of the Act (the Complementary Protection criteria).

9. As discussed above in the assessment of the evidence, the tribunal has found there are no 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 now or in the reasonably foreseeable future. The tribunal notes that the threshold for the real risk element of the complementary protection criteria at s.36(2)(aa) of the Act is the same as that for the real chance test in the refugee criterion in s.36(2)(a) of the Act. The tribunal further notes that the necessary and foreseeable consequence element in s.36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of significant harm.

10. The tribunal has carefully considered each of the integers of the applicant’s claims to fear serious harm discussed above with respect to his claim for refugee protection in the context of the complementary protection criterion relating to the real risk of significant harm at s.36(2)(aa) of the Act. The tribunal, therefore, finds there are no 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 for the purposes of s.36(2)(aa) of the Act, now or in the reasonably foreseeable future.

    CONCLUSION

11. 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 the Act. 

12. Having concluded that the applicant does not meet the refugee criterion at s.36(2)(a) of the Act, the tribunal has considered the alternative criterion in s.36(2)(aa) of the Act.

13. 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.

14. The tribunal notes there is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2) of the Act.

    DECISION

15. The Tribunal affirms the decision under review.

    Dr Colin Huntly
    Member