1609010 (Refugee)

[2017] AATA 3088

1609010 (Refugee) [2017] AATA 3088 (28 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1609010

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:          28 September 2017 at 4:45 pm (WA time)

DATE OF WRITTEN RECORD:                13 November 2017

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions under review.

Statement made on 13 November 2017 at 11:25am

CATCHWORDS
Refugee – Protection Visa – Malaysia – Loan Sharks – Country information does not support claims - Witness credibility – Vague and inconsistent evidence

LEGISLATION
Migration Act 1958, s65
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.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration [in] June 2016 to refuse to grant the applicants protection visas under the Migration Act 1958 (the Act).

   STATEMENT OF DECISION AND REASONS

2. At the hearing on 28 September 2017, the Tribunal made an oral decision and gave an oral statement of decision and reasons.  Attached is the corrected transcript of those reasons, given at the hearing.

   DECISION

3. The Tribunal affirms the decisions under review.

   Dr Colin Huntly
   Member

   
   

   ORAL DECISION OF DR COLIN HUNTLY  [4.00 pm]

   MEMBER:  As I mentioned, the two decisions that can be made in these cases is to affirm which is to agree with the delegate’s decision not to grant a protection visa, or remit, which is to disagree with the decision and to instruct the Department that you comply with the requirements of a protection visa.

   The criteria for a protection visa are set out in s.36 of the Migration Act and sch.2 to the Migration Regulations. Applicants must either be a person in respect of whom Australia has protection obligations under the refugee criterion as spelled out in the Article 1 of the convention, discussed with you at the hearing, or, on complimentary protection grounds. Where relevant, the Tribunal has taken into account policy guidelines which are prepared by the Department of Immigration on refugee law and complimentary protection and any country information assessment prepared by the Department of Foreign Affairs and Trade, in accordance with Ministerial Direction 56.

   Before turning to my findings, I note that in questions of credibility I need to give the benefit of the doubt, but that this should not lead to an uncritical acceptance of any and all allegations made.  It is for the applicants to make their case in as much detail as possible.  Greater weight may be given to one piece of evidence against another and there is no rule that there has to be a positive state of disbelief before adverse assessments are made.

   The applicants claim to be citizens of Malaysia.  They provided a copy of their passports to the Department with the applications and also to the Tribunal.  The Tribunal finds that the applicants are both citizens of Malaysia which is also their receiving country for the purposes of the refugee and complimentary protection assessments.

   There is nothing before the Tribunal to suggest the applicants have the right to enter and reside in a third country for the purposes of section 36(3) of the Act.

   The principal applicant has made claims, and the secondary applicant applies for protection relying on those claims, as a member of the same family unit as the principal applicant.  The Tribunal notes that the application for protection for both applicants was lodged on 29 October 2014.  Accordingly, the relevant law is that applicable before 16 December 2014.

   The principal applicant claims to owe money to loan sharks (known colloquially in Malaysia as Ah Long’s), and fears that they will harm him if he returns to Malaysia.  The applicant has lodged written claims and the Tribunal read these back to both applicants at the first hearing with the Tribunal.  The applicants both accepted that these claims were correctly recorded at that time.  Those written claims are brief and lack detail. 

   At the second hearing with the Tribunal, the principal applicant and the secondary applicant provided considerably more detail.

   The principal applicant claims to have been beaten by, and received death threats from, loan sharks to whom he owed money.  The principal applicant claims that by June or July 2011, he owed a sum of money to between five and six loan sharks.  According to the applicant’s evidence, he borrowed from loan sharks to pay other loan sharks because of a failed business venture.  The Tribunal asked several questions about these loans on a number of occasions and these were the only details the applicant provided by way of additional detail.

   The applicant said that he took out a loan in February 2011 and was unable to repay this amount went it fell due.  He said he had not made any payments other than by means of further the borrowings.  Within a few months they came looking for him at his mother’s house.  They told him if he failed to pay they would beat him up.  According to the principal applicant, threats were also made to his mother.  Chains were locked to his mother’s gate on one occasion.  The applicant told the criminal associates of the loan sharks that he was not able to repay the money.  On one occasion, he said that they beat him with their fists and he received repeated threats.

   The principal applicant claims that he went into hiding in Kuala Lumpur in around July 2011.  He claims that he moved from place to place between that point in time and when he left for Australia in 2013.  He said that he made occasional late night visits to Batu Pahat to visit his mother and his wife there, and that his mother continued to receive threats also.

   The applicant initially stated that he had hidden in Kuala Lumpur for two to three months. I told the applicant that I found it difficult to accept he remained in hiding for the entire period of approximately 15 months before he came to Australia. I noted that his application for protection provided a single address in Malaysia for his entire adult life and this address was in Batu Pahat. In addition, the applicant’s written claims were very vague on this point. I also pointed out to the applicant that this evidence was inconsistent and illogical and that it was not consistent with his claim to have been married in his home town in February 2012, or the fact that he obtained his current passport in the same town in [2012].

   The applicant stated that it was his understanding that a person had to apply for a passport in their home town in Malaysia.  The Tribunal drew the attention of the applicant to country information stating that passports can be obtained in Malaysia anywhere in that country.  The applicant stated he did not know about this.

   The Tribunal noted that, while the applicant’s spouse (the secondary applicant), travelled to Australia in August 2012, the principal applicant did not move to Australia on the same type of visa until March 2013.  I noted that this was inconsistent and illogical.  The applicant responded at first that he did not know about Australia as an option to travel.  I pointed out that this was an illogical response given that his wife was already in Australia after August 2012.  The applicant then responded that he was worried about his mother and about her exposure to the money lenders.  I pointed out that his mother was still alive when he left Malaysia in March 2013 and asked what had changed.  The principal applicant provided no response to this question.

   The principal applicant then stated he was scared about coming to Australia because he had no English and that he was still thinking about whether he should come and that it was better for his wife to come first to find out if they could work and if it was possible to live here.  The applicant said that his friend in Malaysia encouraged him to come to Australia because the life was good.

   I asked the principal applicant why he had never made a police report about his harassment and beatings, or about having had to hide while he was in Malaysia from the illegal money lenders.  The applicant stated that even if he made a report to the police, they would give his address to the money lenders.  The principal applicant also commented about corruption between money lenders and the police and that the police would not act to protect him.

   I asked both applicants why they had chosen to stay unlawfully in Australia once their [temporary] visas had expired.  In response, both applicants said they were escaping a threat of harm from the money lenders and they were too frightened to return to Malaysia.  I pointed out that both of them had chosen to live unlawfully in Australia after their [temporary] visa had expired.  I asked them why they did not apply for a different kind of visa or seek to extend their [temporary] visa.  In response, the secondary applicant indicated that she did not know about other visa alternatives.

   I pointed out to the secondary applicant that she had considerable experience of using visas, including while she was living in New Zealand.  Given that she had resided in New Zealand for approximately nine months in 2011 on a [temporary] visa, which she had extended while she was in that country.  This was before she arrived in Australia.

   During the hearing, the secondary applicant also discussed her knowledge of different kinds of visas that were available in Australia, but that neither she, nor the principal applicant would be eligible for visas such as student visas and working holiday visas in Australia.  Both applicants conceded that they remained unlawfully in Australia once their [temporary] visas expired, knowing that this was contrary to Australian law.  I asked them why they did not speak to a travel agent, a migration agent, a lawyer or the Department about their visa status.  In response, both applicants stated they would rather stay in Australia than return to Malaysia and face harm there from money lenders.

   I noted that country information indicates that loan sharking is illegal in Malaysia and that there are many reports of loan sharks harming, harassing and threatening the family of debtors.  I further note that neither applicant has suggested that any of their family still living in Malaysia has been harmed by any of the money lenders, besides the harassment the principal applicant claims that his late mother experienced before the principal applicant came to Australia.  I also note that, if it was accepted the principal applicant had been hiding for a period in Kuala Lumpur before he came to Australia between July 2011 and March 2013, his claims to be vulnerable to harm from illegal money lenders anywhere in Malaysia is inconsistent with that.

   The Tribunal has carefully considered the claims made by the principal applicant.  The Tribunal has considerable doubts with much of his evidence and the evidence of the secondary applicant, which the Tribunal finds vague, undetailed and illogical.  The Tribunal has concerns that the applicant has not been truthful about his financial situation.  The Tribunal has doubts and concerns about the applicant’s claims to owe money to loan sharks.

   The Tribunal finds for the forgoing reasons that the evidence provided at the hearings is vague, undetailed and illogical.  On that basis, the Tribunal does not accept the principal applicant’s claims to be indebted to illegal money lenders in Malaysia for a business debt that he was unable to service, or subsequent borrowings to pay off the original debt.  Neither does the Tribunal accept the principal applicant’s claims that he was harmed by loan sharks; that he or his family were harassed by the loan sharks; that the applicant’s mother had to hide; that the police are corrupted by the loan sharks; or that he would be harmed by loan sharks or their associates if he returns anywhere in Malaysia.

   The principal applicant is unable to explain why the loan sharks would threaten him and then fail to pursue him for the 15 months that he remained in Malaysia, except to go repeatedly to his mother’s house to ask for money and harass himself and his family by telephone–apparently then doing nothing further for the 15 months before he left Malaysia for Australia.

   The Tribunal has genuine doubts that loan sharks–having taken the effort to demand money from an applicant–would then do nothing further to secure repayment for such a long period of time.  The evidence the applicant has given, relating to the activities of loan sharks in Malaysia, also appears to be inconsistent with the actions of loan sharks reported in country information.  The Tribunal notes that this same country information was discussed in the delegate’s record of decision.

   Despite the Tribunal explaining its concerns to the principal applicant, the principal applicant has been unable to explain why he was able to remain in Malaysia safely for nearly 15 months with nothing happening to him.  He has been unable to explain why they would not have threatened, harassed or harmed his family since his arrival in Australia in March 2013.

   The Tribunal finds that the applicants have not provided sufficient evidence to demonstrate that the principal applicant has taken out any loans from a loan shark that he was subsequently unable to repay, or that he was threatened by them.  On the basis of the concerns raised above, the Tribunal does not accept the applicant has taken a loan from loan sharks in Malaysia.  The Tribunal does not accept the applicant was unable to pay any such loan.  The Tribunal does not accept that he received threats, either in his home town, or in Kuala Lumpur, by any loan sharks or people working for loan sharks.

   It follows that the Tribunal does not accept that the applicant failed to report this to police because of perceptions of police corruption.  The Tribunal does not accept that loan sharks or their associates have come to his family home at any time.  Therefore, the Tribunal does not accept that if the principal applicant or the secondary applicant returns to Malaysia they would face any chance of being seriously harmed for reasons of a debt or any other reason by loan sharks, associates of loan sharks or anyone else.

   On the evidence, including country information in the delegate’s decision, the Tribunal finds that if the applicants return to Malaysia, there is only a remote or far-fetched chance that they would be harmed by loan sharks, by their associates or anyone else for reason of being a debtor to a loan shark or for any other reason related to this.  The Tribunal finds there is no real chance the applicants will be seriously harmed because of the principal applicant’s claimed debts to loan sharks, or for any other reason, if he returns to Malaysia now or in the reasonably foreseeable future.

   For the reasons given above, the Tribunal has not accepted any of the claims made by the applicant.  Nor does the Tribunal accept any of the claims of past activities or harm.  The Tribunal has not accepted that there would be a real chance of the applicant facing serious harm from a loan shark, or from any of the loan sharks’ criminal associates, or anyone else upon return to Malaysia now, or in the reasonably foreseeable future.

   The real risk test imposes the same standard as the real chance test.  Noting the findings I have detailed above and my earlier reasons, it follows that I am not satisfied there are substantial grounds to believe that as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Malaysia that there is a real risk that the applicants would suffer significant harm.  Taking the applicants’ claims at their highest, they have not provided enough evidence to establish their claims.

   For the reasons given above the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a) of the Act. Having concluded the applicants do not meet the refugee criteria, the Tribunal has considered the alternative criteria. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

   There is no suggestion the applicants are members of the same family unit as a person who meets either of these criteria. Accordingly, the applicants do not satisfy the criterion in s.36(2) of the Act.

   DECISION

   The decision of the Tribunal is that the Tribunal affirms the decision not to grant the applicants a protection visa.

   The time is 4.45 pm on 28 September 2017.

   END OF ORAL DECISION  [4.45 pm]