1608839 (Refugee)

1608839 (Refugee) [2017] AATA 1445 (16 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608839
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Roslyn Smidt
DATE:16 June 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 June 2017 at 1:46pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Ethnicity – Chinese Malaysian – Fear of harm by loan sharks – Forced to pay protection money – Delay in protection application – Inconsistent evidence – Credibility concerns
LEGISLATION
Migration Act 1958, ss 5, 5H, 5J, 5K-LA, 36, 65, 438, 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 on 19 May 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Malaysia, applied for the visa on 3 March 2016.
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.
Section 438 certificate
As a preliminary matter I note that there is a certificate made by a delegate of the Minister under paragraph 438(1)(a) of the Migration Act at folio 57 of the Department's [file]. That section permits the Minister to certify that the disclosure of information would be contrary to the public interest. The certificate relates to folios 44, 46 and 56 of that file. It states that the disclosure of this information would be contrary to the public interest because the folios in question 'contain information relating to an internal working document and business affairs'.
I consider that this certificate is clearly invalid and of no effect because the fact that the folios contain information relating to an internal working document and business affairs is not a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed. The folios in question are the non-disclosure certificate and checklists relating to an identification test and processing of the applicant’s case by the delegate. None of them contain any information which is relevant to the applicant’s claims for protection in Australia.
At the hearing I advised the applicant of the existence of the certificate and advised him that they did not contain any information which was relevant to his claim for protection. He made no comment.
CLAIMS AND EVIDENCE
The applicant is [age] year old man of Chinese ethnicity and Buddhist religion from Malaysia. He is married but separated from his wife. He arrived in Australia on a [temporary] visa [in] February 2004. His visa expired [in] May 2004, but he remained in Australia unlawfully until he applied for protection on 3 March 2016 at which time he was granted a bridging visa.
In a written submission provided with his protection visa application the applicant that he had been a businessman in Malaysia and he had borrowed a large sum of money to upgrade his business. At some time after this a local gang began demanding protection money. He refused to pay and reported the problem to the police. However, he later learned that the police were colluding with the gang. His business suffered because of the gang’s demands and ongoing harassment. Because of this he was also unable to repay the money lender who began to harass and threaten him. He sold his house and tried unsuccessfully to sell his business. He left Malaysia because he feared the loan shark would seriously harm or kill him. He continues to fear that he will be killed if he returns to Malaysia.
The applicant was not interviewed at the primary stage. The delegate appears to have accepted his claims at face value. However, he noted that the applicant did not claim to fear harm for any of the reasons relating to the refugee criteria set out in the Migration Act and after taking account of information from a range of sources concluded that while there were some problems with the police and security apparatus in Malaysia the authorities had put in place real measures to combat violent criminal behaviour and had demonstrated that they are willing and able to provide effective protection to people facing problems such as those the applicant claimed to face. A copy of this decision was provided with his review application.
The applicant attended a hearing of the Tribunal on 16 June 2017.
I noted that applicant had first arrived in Australia in February 2004, but had remained in the country after his visa expired in May 2004 and had not applied for protection until 12 years later. The applicant said that he could not return to Malaysia because his passport was stolen a week after he arrived in Australia and he was unable to get replacement because of his Chinese ethnicity. When asked for further details he said that he had gone to the Consulate the day his passport was stolen, but he could not get a passport for political reasons and because he had debts in Malaysia. I advised him that it was not my understanding that the Malaysia government would refuse to issue him a passport for any of these reasons. He said that he had not been given any reason for the refusal to issue the passport, but he assumed that it was because of his race or debts or for political reasons. When asked if he had returned to the Consulate after the first visit he said that he had returned on many occasions but they always refused to help him and never gave him any reasons for this. When asked if he had contacted anyone at home in Malaysia to assist him he said that there was nobody he could contact in Malaysia.
I advised the applicant that I had considerable difficulty accepting that Malaysia officials had repeatedly refused to assist him or issue him with a new passport after his was stolen. He said that it was common for Chinese people to be treated in that way. I noted that despite being Chinese he had been given a passport prior to leaving Malaysia and advised him that advice from DFAT indicated that while Chinese Malaysia might face some low level discrimination I was unaware of any evidence that Chinese people would be denied a passport. The applicant maintained that his claims were true.
I asked the applicant what his intentions had been when he first arrived in Australia in 2004. He said that he had never intended to return to Malaysia because his life was a risk. I asked why he had waited 12 years before applying for protection. He said that he had not spoken English when he arrived, in addition he did not have any money and he needed time to explore the situation. I advised him that I found it difficult to accept that it had taken him 12 years to find someone to advise or assist him. He said that he had paid a number of people thousands of dollars on many occasions, but they were liars and they had not helped him. I advised him that I had difficulty accepting that none of the people he approached had been able to assist him to lodge a protection visa application. He maintained that his claims were true.
I asked the applicant what he feared would happen to him if he returned to Malaysia. When asked who would kill him he said he did not know. When asked why he would be killed he said that it would be for political and financial reasons. When asked for clarification he said that about a year before leaving Malaysia he had borrowed money from a politically powerful ethnic Malay group. He made some payments, but he could not afford to continue to pay the debt so he had travelled to Australia. He said that the group was called the Malaysia People’s Party. When asked he confirmed that the group was a political party. He said that they were an underground group and made money by making loans to Chinese people. He added that he also had problems with them because of his Chinese ethnicity. Later in the hearing he said that the group who loaned him the money obtained funds from the government. I observed that it seems unlikely that an underground political group would be funded by the government. The applicant responded that he did not know anything about the relationship between the group and the government.
The applicant said that apart from lack of funds and high interest there was no reason he could not repay the loan and he had not had any problems with anyone apart from the group which loaned him money in Malaysia.
I noted that he was now 13 years since he had left Malaysia and asked why he believed that he would still be of interest the people who had loaned him money in 2003. He said that the group feared that if they did not kill him he would reveal their secrets. When asked for more information he said that he was talking about political secret but he could not reveal them because his family would be harmed. I advised him that I had difficulty understanding his claim regarding these secrets. He responded that he had been part of a political movement supporting Chinese people in Malaysia. I noted that he had not mentioned any political involvement prior to the hearing which caused me to doubt that this was true. He said that the solicitor who assisted him the application had told him that he would write down his claims but did not tell him what to say.
I noted that the account of his reasons for leaving Malaysia and fearing to return given at the hearing differed from the information in the written statement provided with his initial application. I noted that he had said nothing about facing problems for reasons of politics or race in his initial statement and that he had claimed that a major reason for his inability to repay the loan he had taken out was that he was forced to pay protection money to a gang. The applicant maintained that his claims were all true.
I advised the applicant that, as noted in the delegate’s decision, illegal money lending is an offence in Malaysia and the police take action against loan sharks which indicated that he could seek assistance from the police in Malaysia if necessary. I also noted that the delegate’s decision indicated that there were groups such as the Malaysian Chinese Association which could provide some assistance to people like him. The applicant maintained that he would not be able to seek protection in Malaysia.
CONSIDERATION OF CLAIMS AND EVIDENCE
Findings of fact
For the following reasons I did not find the applicant to be a truthful or a credible witness.
I find the claim that the applicant was repeatedly refused assistance of any kind and told to leave the Malaysian Consulate when seeking assistance in relation to his passport far-fetched and implausible. His evidence regarding his failure to obtain a new passport was confused and contradictory. He claimed that he was refused a passport because of his ethnicity, his debts and for political reasons but also claimed that he was not given any reason for being denied a passport. He has provided no evidence which suggests that he was of adverse interest to the Malaysia authorities for any reasons or that suggests the Malaysian authorities refuse to issue passports to Malaysian citizens for reasons of race, debt or political opinion. I do not accept that the Malaysian authorities refused to issue him with a new passport after his passport was lost or stolen shortly after he arrived in Australia.
While I acknowledge that lack of language skills, money and knowledge of the law can result in some delays in lodging a protection application, I do not accept that the applicant was unable to obtain the advice and assistance required to lodge an application for protection in a reasonably timely manner. Furthermore, while it may be that the applicant encountered some unscrupulous individuals who took his money and failed to provide proper advice or assistance after arriving in Australia, it is not plausible that he was unable to find anyone who could provide him with appropriate advice or assistance until 2016. I find his failure to seek protection until some 12 years after he arrived in Australia a strong indication that he did not leave Malaysia because he feared serious or significant harm.
Finally, I found the applicant’s evidence regarding his reasons for seeking protection in Australia implausible, confused and generally unpersuasive.
According to the written statement provided with his primary application he was unable to repay a loan from an illegal money lender largely because his was also forced to pay protection money to a gang and he feared he would be harmed by the money lender or his agents if he remained in Malaysia. He made no mention of being harassed by a gang demanding protection money when asked about his problems at the hearing. On the contrary, he stated that he had not had problems with anyone apart from the people who loaned him money.
At the hearing the hearing claimed for the first time that he also faced problems for reasons of race and political opinion. However, he failed to provide a reasonable explanation for his failure to mention these problems prior to the hearing or to provide a coherent or convincing account of any problems he faced for these reasons prior to his departure from Malaysia or why he would be at risk of serious or significant harm for these reasons of race or political opinion if he returned to Malaysia now. As pointed out at the hearing, advice from DFAT indicates that people of Chinese ethnicity do not generally face serious discrimination or harm in Malaysia.[1]
[1] _{DFAT Country Information Report Malaysia 19 July 2016 p.9-10}
After considering all of the relevant evidence I do accept that the applicant left Malaysia because he feared that he would be harmed by money lenders because he had not repaid a debt he owed them or because he feared that he would be harmed because of his Chinese ethnicity or for political reasons or for any other reason. I find that these claims were concocted in order to support his claim for protection.
Does the applicant have a well-founded fear of persecution in Malaysia?
There is no credible evidence before me which suggests that there is a real chance the applicant will suffer serious harm amounting to persecution for any reason if he returns to Malaysia. I am not satisfied that he has a well-founded fear of persecution for any of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Malaysia.
Does the applicant meet the complementary protection criteria?
There is no credible evidence before me which suggests that there is a real risk the applicant will suffer significant harm for any reason if he returns to Malaysia. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm
There is nothing in the evidence before me which suggests that the applicant faces a real chance of experiencing serious or significant harm on return to Malaysia for any reason.
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). 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.
Roslyn Smidt
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 1445

16 June 2017

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