1609589 (Refugee)

1609589 (Refugee) [2017] AATA 2872 (28 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1609589
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Rachel Westaway
DATE:28 September 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 28 September 2017 at 4:52pm

CATCHWORDS
Refugee – Protection visa – Malaysia –– Federal Circuit Court remittal – Ethnicity – Chinese Malays –– Fear of loan sharks – Threatened and arrested by police – Fear of forced prostitution – Credibility Issues

LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 420KK, 499
Migration Regulations 1994, Schedule 2

CASES

Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v MIMA (1998) 86 FCR 547

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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] July 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Malaysia, applied for the visas [in] May 2015. The delegate refused to grant the visas on the basis that he found the applicants’ claims were not credible. He stated that they were vague and lacked supporting evidence.
The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.

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.

Credibility

The Tribunal accepts the difficulties of proof faced by applicants for refugee status and complementary protection. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, 'in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for'.
The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196-197 and 203-204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.
However, a decision maker is not required to accept uncritically any or all allegations made by an applicant. Moreover, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
In addition, The Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)

The Full Court noted that this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.

If the Tribunal has 'no real doubt' that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O'Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a 'positive state of disbelief' before making an adverse credibility assessment in a refugee case.

Country of Nationality

The applicants claim to be citizens of Malaysia and provided a copy of their passports to the Tribunal. The Tribunal finds that the applicants are citizens of Malaysia, that Malaysia is the applicants' country of nationality for the purposes of s.36(2)(a) and receiving country for the purposes of the complementary protection assessment of s.36(2)(aa).

Third Country Protection

There is no evidence before me to suggest that the applicants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is the credibility of the applicant’s claims. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants applied for a protection visa [in] May 2015 and arrived in Australia [in] February 2010.
Both applicants lodged Part Cs of the application form for a Protection visa. This is specifically for applicants with their own separate claims.
The first named applicant submitted written claims. They are set out in a “Statement” provided together with his application.

STATEMENT

…I came to Australia [in] February, 2010. In Malaysia, different races are treated differently. Chinese are treated as second class citizens who are not entitled to many welfare benefits. Many Chinese people have their own small businesses but they are not fairly treated and also bullied by Malays. I was engaged in [a type of] business before I came to Australia. It was quite hard to carry out business as government officials were very corrupted and they asked for bribery. They would cause me trouble if I did not bribe them with money. In addition, underworld gangs also requested for protection fees. I reported to police once; however, the thugs were not arrested. On the contrary, I was beaten by them out of revenge.

In July, 2009, a Malay person purchased [an item] and he asked for [work to be done]. This person should pay me Rm [amount] upon job completion. However, he tried to be picky and claimed my work had quality issues so he would not pay me. I made rectifications according to his requests, but he still refused to make the payment. I requested him several times for the payment but he still refused to do so. In the end, I had an argument with him. He got very angry and he said he would sue me.

[In] September, the police turned up at my home and took me to the police station. The police said they received a complaint that I used poor quality materials [and] was suspected of fraud. But I did not agree with that. The police said they received poor quality materials from my client. I tried to explain but they did not listen. I knew I was wronged. Then the police asked me for a solution. They told me if I gave them Rm [amount] and they would pretend nothing had ever happened. Otherwise, they would put me in jail. Due to lack of cash flow, I borrowed Rm [amount] [Mr A] [sic] from a financial company in Feb, 2009 with monthly interest of [percentage]. Since I could not take out that amount of money immediately, my father tried to get the money from different sources and gave the money to the police after one week. I was then released. This matter had a severe influence on my business. My clients thought I used poor quality materials and they dared not to do businesses with me.

Therefore, I could not make the debt repayment on time. The financial company often threatened me and said they would kill my whole family if I did not make the repayment.

However, I really did not have the capacity to make the repayment and I was also worried about the safety of my family. Without any choice, my wife and I escaped to Australia. In March, 2010, I posted a thread online accusing police station of corruption and power abuse. After a few days, there were lots of follow-up and asked if he had any relatives in Australia. My father told them I was there. The police threatened him that if they saw that kind of thread any more they would arrest me for framing the government. I was worried that I would be put in jail by the government if I went back. So I dared not go back.

I have been in Australia for over five years till today. For these years, I have lived in fear and been worried about my family's safety. I dare not go back due to safety concerns. I would like to beg the Australian government to protect me.

The former Tribunal summarized the applicant’s evidence in the decision record for case number 1510432 as follows.

At the start of the hearing, the applicant said that the police abuse ethnic Chinese people. Even if he were to move to another area of the country, he cannot feel safe. Ethnic Chinese people are discriminated against and often abused by the police. Chinese people are also subjected to discriminatory policies.

At the start of the Tribunal hearing the applicant said that the second named applicant had gone shopping. The Tribunal said that she had not put in her claims for protection on the
application form and neither of them were interviewed by the Department of Immigration, and thus it was up to her if she came to give evidence. The Tribunal asked the applicant if he
wanted to call his wife to come and give evidence. He said that only he wanted to give
evidence today.

The Tribunal observes that the second named applicant never indicated that she wants to attend the hearing; only the box next to the primary applicant is ticked on the Response to
Hearing invitation returned to the Tribunal.

However, he claimed that it was his wife, who had prepared the written visa application. He blamed his wife for typographical errors in the application. He said that both references to
2009 (July and February) should be changed to 2008. The Tribunal suggested that maybe
only July 2009 should be changed to 2008, but February should remain as 2009, but it would
hear his story and then discuss how it compares to the statement.
The Tribunal asked the applicant why he came to Australia the first time. He said he came in [December] 2008, [it] was in order to stay away from the people he feared. He said he returned to Malaysia in April 2009, because he thought the matter had settled.

He said that he entered Australia a second time [in] February 2010.

The Tribunal asked him what made him think in 2009 that the matter may have settled. He said he thought that the loan sharks would not pursue him.

He said he borrowed about [amount] MYR in February 2008. Initially he was paying interest only. He was repaying until August or September 2008 which is when his business started to fail. He had no work then and stayed home all the time. He also had no money. Then he came to Australia in December 2008.

The Tribunal asked the applicant why he thought the loan sharks would not be interested in him in April 2009 if he was not repaying the loan. He said that [loan] sharks would attend his parents’ residence to make trouble. While the applicant was in Australia, his father
negotiated a deal that the applicant only has to pay off the principal, without interest, over a
period of [a number of] years. However, when he went back to Malaysia in April 2009, they reneged on
their promise and he had to pay back interest.

The Tribunal asked the applicant whether he had been harmed after returning from Australia to Malaysia in April 2009. He said that the loan shark took him to “that place”, assaulted him and forced him to pay back money. They recalculated the interest and told him that he owed more than [amount] MYR. He said that they beat him up about a week after he returned to Malaysia in April 2009.

When asked why he did not travel back to Australia immediately. He said that he had no
more money and that was why he could not afford to come to Australia. Later on he found a
job earning [amount] MYR a month. The loan sharks would come and take all his wages on pay
day. That was why it took him a long time to save for flights for him and his wife.

He said that since he came to Australia, the loan sharks have come to the house [a few] times. The last time was about a year ago and his father had told them he had severed relations with the applicant. The father had warned the applicant not to come back to Malaysia to be seen by the loan sharks or they would hurt him.

The Tribunal said it found it strange that the loan sharks would not harass his parents more if they were so intimately involved with the applicant while he was still in Malaysia e.g. they would come to him and take his monthly pay. He said that his father was elderly and the loan sharks were interested in locating the applicant himself, not his father.

In relation to the dispute with a customer, the applicant said that the industry [he worked in] in Malaysia is corrupt and he had to pay a proportion of money, protection money, in order to
operate his business. This customer was picking faults with the applicant’s work that were
made up. He said the dispute occurred in July 2008. By that time the applicant had already
borrowed [amount] MYR. When this customer refused to pay, the business was about to
collapse.

The applicant said that the police became involved in July 2008. He was arrested in July
2008. When asked what the date was, he said it was [a date in] July if his memory serves him
correctly. The Tribunal pointed out that the statement says that the [contract]
commenced in July 2008. The applicant then changed his evidence and said the police had
taken him to the station and then detained him for a week in September 2008.

The Tribunal asked the applicant why the police threatened to charge him with “fraud” if it
was a civil dispute about the quality of the applicant’s work. The applicant said that it was
because he provided services to] a Malay person’s residence which is within the turf of the Malay
gangsters. The customer himself was a gangster. Looking in retrospect, he realises that it
was a set up.

The Tribunal asked why the police would ask for an additional [amount] MYR if the customer had paid nothing for the [work]. In other words, the customer was not asking the applicant to pay him back, the customer was asking to get away with paying nothing. The police could scare the applicant into letting the customer pay nothing for the work and that would be the end of the matter. He said it was because the police are very corrupt. The applicant said that his father borrowed [amount] MYR to pay the police and get the applicant released. The applicant told the Tribunal he thought his father had borrowed from relatives and the money had not been repaid.

He said that he was physically harmed by the loan sharks a week after he returned from
Australia in April 2009. The Tribunal asked if he had been harmed at any other time. He said
he had not been, but he had been threatened in the past, by gangs. The Tribunal noted that
according to his statement, he was beaten after he complained to the police about gangs.
The applicant said at that time he was only threatened, not beaten.

The Tribunal asked the applicant to confirm that there was no source of enough funds to

purchase airfares to return to Australia for the applicants when they returned to Malaysia and
the first named applicant was beaten and feared for his life. The Tribunal noted that it took
his father a week to raise MYR [amount] in 2008 to release the applicant from custody,
whereas it took the applicants from April 2009 to February 2010 to raise enough money to fly
to Australia. He said that after he returned to Malaysia, he was forced to work and repay the
loan sharks gradually. He had no intention to come to Australia. But later on, when he was
unable to make repayments, he decided to come to Australia.

The applicant said that he was earning about [amount] MYR a month and out of that he would pay the loan sharks about MYR [amount] a month. The Tribunal said it found it hard to believe that the loan sharks would agree to such generous terms given that if the loan was interest free and they calculated in April 2009 that he owed MYR [amount], it would still have taken the applicant [a number of] months to repay the principal, if the loan was interest free. The applicant replied that that was why he had to come to Australia.

When asked about the delay in lodging the application for protection, the applicant said that about two years ago he heard about protection visas, but he was told that you have to pay $[a certain amount ] to lawyers to lodge. After that his wife searched on the internet and they found out about protection visas. They realised it was not that expensive and that they can apply by themselves. He insisted that when he saw asylum seekers from other countries apply for protection, he and his wife thought that it only concerned people from war torn countries.

The Tribunal invited the applicant to elaborate on his claim that in March 2010 he accused the police of corruption. The applicant said that in March 2010 he wrote about corruption, about the dispute with the customer and about the police extorting money from him. He said that some Malay police came to see his father and threatened him. As a result, he closed this account.

The applicant said that he has a letter from the police which pertains to his detention for one week. The letter explained why he was arrested and detained at the police station for one week. It said that they have investigated the matter and he was cleared of the charges. He said he did not have it now, because he was not aware that it could serve as useful
evidence. He provided a copy of a police report in Malay and an English translation [in]
February 2016. The report states that the applicant was held for [a number of] days [in] September 2008 for the purpose of “investigative interview”. The report refers to s.420KK,
but it is not clear s.420KK of what piece of legislation.

The Tribunal asked the applicant whether he had any other fears if he went back to
Malaysia. He said he also feared his wife’s safety, because of his problems.

At the end of the hearing, the Tribunal observed that it may or may not accept that the applicant is a witness of truth. The Tribunal raised a number of credibility concerns, including the changes to the statement that the applicant wanted to make at the Tribunal hearing and the fact that he was blaming his wife for the mistakes and that she had chosen not to appear before the Tribunal to give evidence. The Tribunal referred to the delay in leaving the country between April 2009 (when the applicant was allegedly assaulted by loan sharks) and February 2010 and the delay of [a number of] years between the time the applicant arrived in Australia and the time he lodged the application for protection. In response he only replied that as the loan sharks were asking for more and more money, he had to flee the country.

Evidence taken at recent hearing

On 14 November 2016 the applicant appeared before the current Tribunal to provide evidence to support his claims.
The applicant’s wife told the Tribunal that she does not know much about her husband’s situation or anything to do with him being detained.
The Tribunal asked if she wished to give evidence and she confirmed that she did.

[Applicant 1’s] evidence at hearing

The Tribunal proceeded to interview [Applicant 1] and he confirmed he was born in Malaysia in Seremban and that he is from Chinese ethnicity. He said both of his parents are Chinese. The applicant’s father was born in Malaysia but his parents were Chinese. He has [siblings]. They are married to Chinese Malays. [One of the] siblings in an [occupation] and his [other] sibling does not work. She is [age] years of age.
His father worked in [a type of industry]. His mother did [other work]. His father stopped working [a number of] years ago. They have lived in the same house for at least [a number of] years. The applicant lived with his parent before he moved to Australia. He and his wife moved out and lived together. He lived separately for [a few] years.
The applicant’s wife worked in [an occupation]. He worked in [a different occupation] for about [a number of] years. They were married in 2007. He worked for someone else until he was married and then he worked for himself.
He came to Australia because his business went bad and he had debts. He claimed that he was accused of using substandard material in [his work]. He said that because he is of Chinese ethnicity he is treated more harshly. He said the police arrested him. He claims even his landlord would threaten to report him to police and he tried to make things hard for the applicant. In July 2008 the police and the applicant’s client colluded and demanded MYR[amount] before they would release him. He stated that he could not afford to pay that amount of money. He said that his father borrowed money from a loan shark and he was released. He said that his reputation was then smeared and it was impossible to find clients. He confirmed that he was married at the time.
His father borrowed part of the amount from the loan sharks and the other from relatives. After he was released the applicant stated he borrowed more money to repay his relatives but because the interest rate was too high it was impossible to stay on top of what he owed and he fled to Australia.
He said his client who reported him to the police refused to pay the last instalment of MYR[amount]. He stated that Malays often take advantage of Chinese. The Tribunal asked the applicant to provide details about what he was doing for this client and the value of the project. He said he was [doing certain work] and the project was worth around MYR[amount]. MYR[amount] was the last instalment. He was asked to explain his business practice around instalments. He said it varied from case to case and depends on the deal. The deal in this instance was three instalments of 33% each.
The Tribunal put to the applicant that the last instalment was MYR[amount] not MYR[amount] and that the business practice he claims to use for payments does not correlate. The applicant explained that his client defaulted on the second instalment but promised to pay it later. The Tribunal put to the applicant that given he already claims that Chinese are treated poorly by Malays and taken advantage of that it would be odd to trust his client. He said he was already in hot water and had commenced the job and thought it was ok.[Details deleted]. He said it never occurred to him that that man would report him to police.
The applicant was asked what the faulty [item] was that he was accused of supplying. He stated that it was the [certain item] and he said that the owner wanted a certain type of [item] and he [supplied] a different type. The Tribunal asked the applicant if he did in fact [supply] the wrong [item] and he said no. The applicant had a contract. It was not specified. He saw it in another [place] and asked it to be the same. The Tribunal asked the applicant to explain the [items] and he said he [supplied Item 1]. He said that it is a [particular item]. The Tribunal asked for further details about the [item]. The applicant claimed he could not remember the colour of the [item]. It is a [good] made out of some kind of material. He then pointed to [a part] in the hearing [room] and said it was like the [item the owner wanted]. He wanted it solid inside. The Tribunal clarified that the applicant meant [certain items]and not [Item 1] which is [a different type of material]. The applicant stated that [Item 1] [is] not solid.
The applicant said he continued to chase the client for the outstanding money. [He] said that the client refused to pay because he continued to allege he [supplied] the wrong [item] and subsequently reported him to the police.
The Tribunal put to the applicant independent country information from DFAT Country Report for Malaysia, 19 July 2016 that the Royal Malaysian Police as of 2011 employed approximately 102,000 officers and operated 837 police stations across Malaysia. Credible local and international sources consider the RMP to be a professional and effective police force. Whilst the report acknowledges police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern, the Government publicly acknowledged corruption within the RMP and implemented reforms, including establishing compliance units. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers, including suspension, dismissal or demotion.
In regards to the applicants claims that ethnic Chinese are discriminated against in Malaysia and the police treat them differently the DFAT report states that the RMP is 80–85 per cent ethnic Malay. In 2014, the Government commenced a campaign to increase the number of women, ethnic Chinese and Indians in the RMP. This initiative indicates that the RMP is committed to eradicating any type of discrimination.
The applicant was given the opportunity to respond to the country information presented to him. He said that he was threatened and arrested and told he had to pay MYR[amount] to police as a bribe. The Tribunal said that based on the country information before it pertaining to the RMP this does not seem credible. The applicant was offered an opportunity to respond. He stated that in the eyes of foreigners the police are reputable but locals know they are corrupt. They will demand money for anything and bribery is rife. He said that for example the [client] defaulted on his payment and yet he was the one who reported the incident to the police. He said that the [client] had police connections. The applicant was asked what police station and officer he owed money too. He said it was [a district] Police station. He cannot remember the police officer. His father took the money to the police station. The police station was near to where he and his wife live. It is [a] drive from their house. His client’s house was [a number of] minutes’ drive from the police station.
The applicant explained that he called his wife from the police station who then called his father. His father attended the police station to bail the applicant out. He claims to have been locked up in the station for almost one week. He was arrested by the police when he had [finished work]. He was working on another [job]. The police found him at his house. He said he went willingly and he had no choice. He said his wife was at work. He could not remember the day of the week but it was around [a date in] September.
The applicant claims he borrowed money from a loan [shark]. He cannot recall the company name. He said he found out about him as there are plenty of loan sharks in Malaysia. They advertise everywhere. The applicant stated that they saw the outside advertising and they also distribute fliers.
The Tribunal asked the applicant how he found him. He said he called and the loan shark came to see him met at a [location]. He was by himself. The applicant could not recall the [venue] they met at. He said he was given the money straight away. The Tribunal asked the process of obtaining the loan and he said he was asked for details. His company’s name and his residential address and then he was assessed and given a cheque. The cheque was for MYR [amount] and he was charged [a percentage] interest per month. He said there was no specified amount but must repay principle of [percentage] for the month. He managed to pay a little bit but could not manage later on. This occurred in 2008. He then stated it was early 2009 that he borrowed the money or the end of the year but he cannot remember. He said that it was only for [a few] months.
He said that when he failed to make repayments they forced him to pay by threatening him and hitting him. He said it wasn’t serious assault they punched or slapped him once or twice. They found the applicant at his house and his wife was there. Then he said they would seek him out and sometimes she was there and other times not. He said it occurred approximately [a number of] times. They would threaten the applicant or slap him if he did not have money. He decided to moved back to live with his father. It was rented accommodation. His wife also moved back. She stopped working at the same place because it was too far away. He said that he lived at his father’s place for a short while such as [several] months and then came to Australia because they managed to find them after [several] months. The Tribunal asked how they found him and he said that he did not update the address on his identity card and it was his father’s address. He stated that it was too troublesome to update the address as they were temporary residences.
The applicant said even when he was married and moved out he did not update his address as it is problematic to do and because it is his ancestral home it is ok to keep it on the card particularly as he would return often.
The Tribunal asked the applicant who showed up to demand money. He said that there were a few of them. He said he paid around MYR [amount] because that is all he could afford.
The Tribunal asked the applicant if he has returned back to Malaysia since he has been in Australia and he said once with his wife for [a few] months. He returned because he was not use to living in Australia and he wanted to face up to the matter. He claims he did attempt to but he could not pay them and the interest kept accruing beyond his capability to repay. He paid them less than MYR [amount] including interest during this visit. He said he attempted to find a job in Malaysia but failed and the loan sharks kept chasing him. He borrowed money again from loan sharks to buy an air ticket to fly to Australia. He said that tickets cost MYR[amount] for two people. He said that he borrowed MYR[amount] from relatives as well but paid it back. He said that the first time he came to Australia his wife paid for the tickets.
She knew about the issues with the loan shark but he stated he did not tell her the details like how he was hit. He said he was hit on one or two occasions.
The Tribunal asked the applicant if the loan sharks targeted his father. He said they only asked about his whereabouts. They did not do anything to him because he is quite old.
The Tribunal put further information to the applicant stating that Ah Longs or illegal money lending is unlawful in Malaysia so it does not seem credible that the Ah Long would advertise everywhere. The applicant reiterated that is how he found [the loan shark]. The Tribunal again put to the applicant that it does not seem a credible explanation that the Ah Long would not target the applicant’s father because they are respectful of an elderly man. The Tribunal put to the applicant that it would seem more likely that they would try and obtain their money back by any means. The applicant responded by saying the Ah Long are supported by political parties. He said the so called crackdown is play acting and in realty there is no such thing happening. He said that the loan sharks tried to seek him out but it was not serious violence. He said that they are still trying to find out where he is and visit his father’s place. He said that he loan sharks saw him on his return because they operate as a syndicate. They have eyes and ears everywhere.
He said that whenever he was spotted they would ask the applicant to get into a car and threaten him. He stated he got in because there was a group of them. He asked if he reported to the police. He said he tried in the past. The date of these incidences was in June or July 2009. He said they drove around when he was in the car but he was never taken anywhere. It was just a threat and warning and he was released.
The Tribunal asked the applicant what he afraid of if as he states “it was nothing serious”. He said that they would certainly ask him to repay the money. The Tribunal put to the applicant that he returned to Malaysia once and was prepared to pay and he said that he was seen by them and he did pay them some money and they never hurt him. He said the time line is different and the interest would have accrued. It will be beyond what he can afford to repay. He said he is not saying he will never return to Malaysia. He said that he needs protection for a few years pending in an improvement in the environment from the politics and gangs. The applicant then said that he hopes the situation in Malaysia will improve in a few years’ time.
The Tribunal asked the applicant to clarify exactly who he is afraid of in Malaysia. He confirmed that that he is afraid of the loan sharks and he is afraid that he cannot obtain police protection from the loan sharks. He said he is afraid for his wife who could be harmed by the loan sharks. The Tribunal asked the applicant why his wife could be harmed but not his father. He stated that there is a big difference as his father is quite old but his wife is young. The Tribunal asked the applicant why his wife would be targeted given she has nothing to do with the loan sharks and he said that she may be forced into prostitution. He Tribunal explained that this subjective and there is nothing to suggest that this would happen.
The Tribunal asked the applicant to explain his experience with discrimination by police. He said police do not protect Chinese or follow up on reports. He said that his client is a Muslim and that is why he was able to collude with the police to arrange for this. Country Information was again referred to about the RMP and their campaigns to recruit a cross section of the community. The applicant disagreed. He said the Malays can verbally abuse us or hit us. They can kick us and insult us and yell at us to go back to China but we cannot do that to them.
The Tribunal asked the applicant why it too five years in Australia before he lodged his protection visa application and he said that he was not aware of a protection visa. He said that after he came to know about the visa he faced another problem of financial hardship as his agent quoted him $[amount] and he could not afford it. It took time for his wife to search the internet so she could complete it herself. The Tribunal expressed its concern that five years is a long time to research. The applicant did not respond.
The Tribunal summarised the credibility concerns to [Applicant 1] which were detailed through the course of the hearing and which encompassed inconsistencies in what the applicant claimed and what independent country information states about Malaysia. The applicant provided conflicting dates pertaining to his employment in July 2009 but at hearing stated July 2008. He said this was his wife’s error and it should be July 2008.
In his protection visa application it stated he owed MYR [amount] in loans yet in oral evidence he states MYR [amount]. He said his father borrowed MYR [amount]. He then became confused and said “let me think … this is a total”. He said he cannot recall.
The Tribunal stated that these discrepancies in particular about the amount of money the applicant claims he owes cast a doubt over the credibility of the applicant’s claims in general. He stated that he cannot recall what the MYR[amount] principle plus interest was or the total amount he borrowed.
[Applicant 2’s] evidence at hearing

The applicant confirmed she was married [in February] 2007. They moved to KL because someone harassed her husband for loan repayments. She confirmed that she knew this as her husband had told her and also because some people also came to their home at her father in law’s house. This occurred after they were married. Tribunal stated that she said that she moved to KL straight after they were married so when was this. She stated that after [a number of] weeks after the wedding they came to her father-in-law’s home asking about her husband and threatening him because they owed debts.
The Tribunal asked [Applicant 2] if she knows what debts they were and she said he had cash flow problems at work. She said that someone owed him outstanding payments and so he did not have money to pay for the purchase of supplies. The debtors were after him. She said it was not a big company chasing him. The debtors were personal lenders. These were not large scale loan sharks. Just individuals. [Mr A] is his name. the Tribunal asked the applicant if she is certain that this is the name of the loan shark or whether he is known by another name and she said that she has sworn earlier that she has given an oath she has told the truth.
She said that if he returns to Malaysia he will definitely face harm and she will lose him. She became distressed. She claims she has tried too hard to research information. It is very hard. She used to do [certain work]. She said that she moved out of KL because wherever they were driving someone was following them.
She stated that the police would not help them because they are Chinese.
She confirmed that the police station they went to was [in] KL and close to their home.
She said her husband struggled to get more clients after the incident because he then had a reputation that he deceived people. She confirmed that her husband borrowed MYR [amount] from [Mr A] and then MYR [amount] –MYR [amount] from a smaller lender but increased the amount to [another amount]. She confirmed the interest rate was 8% per month. She was unable to confirm the name of the smaller loan shark. She stated that she never used them. It is possible that her husband knew them personally. He borrowed the smaller loan before they were married and in 2008 he borrowed the larger amount when he was running [his] business.
The applicant confirmed that she lived with her husband in his house. They moved out together for a period of time, however her husband was concerned about her safety so they moved back and stayed for 6-7 years.
The Tribunal said that this would then take them until 2014 and this does not correlate.
The applicant was provided with an opportunity to respond and she said that she didn’t hear the question clearly. She said she was married in 2007 but before they were married they lived with his parents for 6-7 years. She said that she was [in] school and this was from [year to year]. She said that she stayed at her mother’s house after 2007 and at one point in time they rented a place to live in solely because of his problems. She said they moved to KL for 7-8 months. Then they planned to come to Australia because they had serious problems. She said that they were her husband’s problems. She confirmed that he was detained by the police and she also said that someone followed her in KL. She did not work after she was married. She said she would clean and cook and wait for her husband to work. However she did not have a peaceful mind and she lived in fear.
The Tribunal put to [Applicant 2] that she originally stated [Mr A] was owed MYR [amount] and that is why they moved. She said she made a mistake. She said he was the money lender who they owed the most to and that there were no further debts after [Mr A].
[Applicant 2] provided an account of her husband’s claimed experience with the customer who would not pay for [the] work. She claims that the client demanded MYR [amount] compensation or they would report it to the police. It related to a [good]. The Tribunal queried the applicant and she said she is certain. It was also about [a certain item]. She said the client complained about all of the [items]. She said her husband was arrested and he must pay money to them.
The Tribunal asked the applicant if she is aware of how her husband was treated by the police. She said she was not sure. She said she is worried that the loan sharks will force her to do indecent work.
The Tribunal asked the applicant why it took so long to lodge their protection visa application and she said she did not understand the process.
The Tribunal asked the applicant to explain how her husband was arrested and she said that the police went to her father in laws place and arrested her husband and her father-in-law raised the money. He borrowed from relatives. He needed MYR [amount] and she did not have this money to help her husband.
The applicant was asked to explain any further concerns about returning to Malaysia. She stated that the Australian government needs to provide protection to them because of the loans sharks. She is extremely fearful.
The applicant was asked if she wished to comment on any experiences regarding being Chinese Malays. She stated that she knows very little about this aspect. Just that Malays are always treated with number one priority over the Chinese population. Non one helps Chinese people.
The Tribunal explained that it had put all credibility concerns to the applicants throughout the hearing but summarised these for the applicants. The Tribunal highlighted the delay in the lodging or a protection application and conflicting independent country information which did not support their claims. In addition, the applicants return visit to Malaysia and [Applicant 1] and [Applicant 2’s] differing explanation of why the client did not pay raise concerns for the Tribunal pertaining to the credibility of the applicant’s claims. It highlighted that the claim made by [Applicant 2] that she is fearful that the Ah Longs may harm her or sell her into prostitution yet do not harm [Applicant 1’s] father because he is old lacks credibility and is also subjective. The fact that [Applicant 1] was unable to state how much he owed the Ah Longs was also of concern to the Tribunal. The country information available to the Tribunal indicates that ethnic Chinese are not discriminated against and in fact the government has committed to ensuring better representation of ethnic minorities within the police force and that whilst corruption was recognised as a concern measure have been in place to minimise it. In their protection visa application it stated they owed MYR [amount] in loans yet in oral evidence [Applicant 1] said he owed MYR [amount] and then said he cannot recall.
The Tribunal stated that these discrepancies in particular about the amount of money the applicant claims he owes cast a doubt over the credibility of the applicant’s claims in general. He stated that he cannot recall what the MYR[amount] principle plus interest was or the total amount he borrowed. [Applicant 1] said “My Wife has an unsatisfactory power of expression and she has no idea what I was doing”. The Tribunal offered the applicants and opportunity to respond to these concerns with a written submission by Friday 18 November 2016. The applicants did not provide a response.

FINDINGS AND REASONS

On the basis of their Malaysian passports, I accept that the applicants are nationals of Malaysia and not nationals or citizens of any other country. I accept that they do not have a right to enter and reside in any country other than Malaysia. Therefore I find that the applicants are not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Malaysia is the applicants “receiving country” for the purposes of s.36(2)(aa).
On the bases of the evidence provided at hearing I accept that they are Chinese Malays. I am required to consider if the applicants being ethnic Chinese would be persecuted or would suffer significant harm in the future if they were to return to Malaysia. The independent evidence indicates that ethnic Chinese constitute one of the largest overseas Chinese communities in the world and are the second largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against ethnic Chinese in Malaysia. Malaysian Chinese make up a high percentage of the professional and educated class and dominate business and commerce sectors. Malaysian Chinese freely participate in political life and are represented by ministers in the current cabinet and in opposition parties. DFAT assesses that ethnic Chinese generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service. The applicants claim that Malays are able to harass and threaten them and that police do not protect them because they are Chinese. Whilst the applicants have stated that this is their view, they have provided no evidence to support such discrimination which would convince the Tribunal that they have experienced levels of discrimination which would equate to serious or significant harm. The Tribunal gives weight to the independent country information and does not accept that the applicants have been or will be discriminated against due to their Chinese ethnicity.
I accept that corruption and bribery exist in the police force but that there are measures to combat this which have been effective. According to DFAT Malaysia 2016, Police Integrity and Accountability the Royal Malaysia Police [RMP] employs approximately 102,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Home Affairs Minister. Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption.
The Royal Commission to Enhance the Operation and Management of the RMP in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion.
The Royal Malaysian Police (RMP) report to the federal Minister for Home Affairs who is responsible for law enforcement nationwide. DFAT reports that the Malaysian police are generally considered to be a professional and an effective police force. The Malaysian authorities are interested in and regularly arrest ah longs but they are hamstrung by a lack of co-operation by victims. The Tribunal does not accept that Malay or ethnic Chinese would be unable to avail themselves of police protection from Ah Longs or anyone else in Malaysia. In particular the Tribunal does not accept that Chinese Malays would not be provided with protection by police if needed.
For the following reasons, the Tribunal finds that the applicants are not credible witnesses and their claims are not credible.
The applicants came to Australia in 2010. They had made a previous visit to Australia prior to making their protection application. They did not seek protection in the first instance and they took a further five years and two months to make their application. The applicants’ explanation that they were initially unaware of such a visa and were limited by financial means to pay a migration agent so took longer to research it is not an acceptable explanation. The Tribunal would expect that people who are so fearful of returning to their country and fear for their safety would seek protection as quickly as possible. This significant delay in applying for protection raises strong credibility concerns.
The applicant and his wife fear harm from loan sharks for his debts however [Applicant 1] was unable to tell the Tribunal exactly how much he owed and this raises further credibility concerns with the Tribunal. In their protection visa application it stated they owed MYR [amount] in loans yet in oral evidence [Applicant 1] said he owed MYR[amount] and then said he cannot recall. The Tribunal would expect the applicants to know exactly how much they owed given it forms the bases of their application for protection.
[Applicant 1] claims that the loan sharks did not threaten or harm his father but he is fearful for his wife’s safety because the Ah Longs may harm her or sell her into prostitution. The Tribunal finds these statements inconsistent and unbelievable given the applicant had previously stated his father was the one who was able to raise money to pay off police and have him released and that the loan sharks would visit his father’s place to look for him and that they still ask his father where he is. [Applicant 1’s] explanation that his father is too old and therefore they will not try and harm him is not logical. Logic would suggest that a loan shark will find whatever means possible to obtain their money and given the applicant has made claims which embody this in regards to his own safety and that of his wife it is surprising that [Applicant 1’s] father has not been targeted over this period because he is known to the loan sharks. The fact that he has never been harmed raises concerns about the level of threat [Applicant 1] or [Applicant 2] face and indeed the credibility of their claims.
[Applicant 2] stated that her husband’s client demanded MYR [amount] compensation or they would report the issue to the police however [Applicant 1] stated that his client would not pay for the remaining [of the] work which equated to MYR [amount] and then also reported him to the police who colluded with the client and asked for a bribe of MYR [amount]. Their inability to provide a consistent explanation to the bases of their claims raises further credibility concerns for the Tribunal.
[Applicant 1] blamed his wife’s “unsatisfactory power of expression” however the Tribunal offered to give the applicant’s additional time to provide a response which they accepted but did not take up. These discrepancies and the applicant’s choice not to provide a further explanation contribute to the Tribunal’s findings that the claims lack credibility.
The Tribunal has considered the evidence on file and evidence at hearing and has also considered independent country information. The Tribunal finds that neither of the applicants have ever borrowed money from loan sharks in Malaysia. The Tribunal does not accept that they have been blackmailed by [Applicant 1’s] client or the police or had to pay a bribe to the police to be released from incarceration of nearly a week in the police station. The Tribunal does not accept that either of the applicants have made complaints about police online or in any other form. The Tribunal does not accept that [Applicant 2] has been followed in her car or that she is at risk of being caught and forced into prostitution by loan sharks.
I am satisfied as discussed above that the Malaysian authorities have in place effective protection measures. Malaysia is willing and able to offer such protection. I am satisfied that the applicants can access protection, the protection is durable and there is an appropriate criminal law, a reasonably effective police force and an impartial judicial system in Malaysia.
As stated above, I reject the applicants’ claim they have suffered persecution or any harm in Malaysia, as an ethnic Chinese Malay.
The Tribunal finds that the applicants do not fear returning to Malaysia for any reasons.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

DECISION

The Tribunal affirms the decision not to grant the applicants protection visas.

Rachel Westaway
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

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.
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.
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.

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.
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.
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

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.
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 2872

28 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction