1609913 (Refugee)

[2018] AATA 781

1609913 (Refugee) [2018] AATA 781 (13 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1609913

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Justin Meyer

DATE:13 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 13 March 2018 at 3:16pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Loan Sharks – Minor Applicant

LEGISLATION
Migration Act 1958, s. 5, s.36
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347
Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on [date] May 2016 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, who claims to be a citizen of Malaysia, applied for the visa on [date] February 2016. The delegate refused to grant the visa.

3. The applicant appeared before the Tribunal on 6 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [two witnesses].The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Criteria for a protection visa

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Consideration of Claims and Evidence

11. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in Malaysia and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

12. The applicant claimed in his protection application that:

    ·The applicant’s father opened a [business] with a friend in April 2013. The applicant’s father was asked by his friend to be his guarantor on a loan, which he agreed to. He later found out his friend borrowed from a loan shark rather than a normal bank, and when his friend was unable to repay the debt, the applicant’s father was harassed and threatened for money. The loan sharks physically assaulted the applicant’s father at home on three occasions, and paint was splashed on the walls of the house as a threat.

    ·The applicant’s father spoke to the police but they refused to protect him so he fled Malaysia to Australia. The loan sharks then began harassing the applicant’s mother so she moved the applicant and his siblings to a relative’s house and came to Australia as well. The applicant’s parents fear returning to Malaysia because their lives would be in danger from loan sharks, as they cannot repay the debt.

    ·The police are corrupted and ‘collude with the underground’, and cannot protect the applicant and his parents.

    ·The applicant stated he relocated with his siblings and lived with relatives for a time, prior to coming to Australia. The applicant did not indicate whether he thought he could relocate within Malaysia upon his return.

13. On the basis of the information on file and for the purposes of this review I accept that the applicant is a national of Malaysia, which is also his receiving country. I find on the evidence before me that the applicant does not have a right to enter and reside in any third country.

14. The circumstances of this case are somewhat unusual. The applicant is a [age] old boy. His parents accompanied him to the hearing. His father came to Australia on his own in October 2013 under a [temporary] visa. His mother came to Australia in January 2014 also under a [temporary] visa.

15. The applicant’s father made a protection visa application whilst holding a [temporary] visa. That application was refused by the Department, and appeals on this decision to the Tribunal were unsuccessful.

16. The applicant’s father was asked why his son was included as an applicant under his earlier application. The applicant’s father replied that his son was living in Malaysia at that time, residing at his sister-in-law’s home. The applicant was having some troubles and it was for the best that he lived at his aunt’s home.

17. The applicant has [number of] siblings. One is [age] years old and has their own immigration application in Australia. The other siblings are [age].

18. The applicant gave some oral evidence in the hearing and was capable of understanding and answering simple questions. He was calm throughout the hearing. I asked the applicant about his life for the last two years. He discussed how he now had many friends and toys and no longer had much homework. In Malaysia he had a lot of homework and by his own admission was very lazy.

19. The applicant confirmed that he had had some trouble in school and had gone to live with his aunt before going to Australia for a new life.

20. The applicant’s mother gave evidence about the trouble her son had had in school. She was asked why she had personally come to Australia, and she stated that her husband had owned a [business] as a shareholder and money had been borrowed from a loan shark. The [business] closed. The applicant’s mother worked as a [driver], bought a van and did business for two years. She and her husband had had financial difficulties and could not repay their loans. The bank had taken their van and they had no way to survive. An aunt tried to help the parties find work. The applicant’s mother stated that she liked life here in Australia and that education in Australia was good for her son. She added that the Malaysian school system bores her son. She intimated that Mandarin was not taught properly in the school system. The parties are of Chinese ethnicity.

21. The applicant’s mother stated that the grandmother could not support the family and that they needed to find some kind of way to survive and have a better life.

22. When asked why her son was worthy of protection status she noted that as parents they had applied for protection status. She said that loan sharks kept asking for money from her and her husband.

23. The applicant’s mother stated that moneylender came to ask for the debts to be replaid paid and tried to “harm us.”

24. When asked when was the last time that anybody had tried to get money off her in this way she replied that it was before she came to Australia but could not remember.

25. The applicant’s mother was asked whether she had moved house to which she replied that she had gone from one place in Selangor to another.

26. Part of the reason for moving was because the parties had difficulty with their [vehicle] repayments for two years. This loan involved a seven to nine year term and not all of the money had been paid off. The applicant’s mother said that this was because the family did not have enough money. When asked whether this money had been borrowed from the bank she said she could not remember the name of the bank. It was put to the applicant’s mother that this situation was going to ruin the family and yet she could not remember.

27. When asked how much was owed right now the applicant’s mother said that she believed that it was now a greater amount because of the interest and estimated that it was approximately [amount of money].

28. The applicant’s mother was asked whether it had been contemplated to move somewhere else in Malaysia to get away from loan sharks. The applicant’s mother did not think of going anywhere else, as the loan sharks would simply know that they had moved. Besides, they could not move because they needed to remain in the same town because of their [business].

29. It was put to the applicant’s mother that the family did want to move to Australia, and it was then asked how this situation was different. The applicant’s mother replied that it was too far away for lenders to find them.

    Credibility

30. In assessing the applicant's credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation.

31. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

32. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

33. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal 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).

34. The delegate refused the application. The delegate noted the applicant had provided minimal detail and found that the state could protect the applicant against the claimed harm. Based on the lack of explanation and detail the delegate found the applicant did not have a well-founded fear of being persecuted, nor that there was a real risk he would suffer significant harm. The applicant provided a copy of the delegate's decision to the Tribunal.

35. The applicant's central claim is that loan sharks have threatened the family and harmed the family and will do so again if he returns to Malaysia.

36. This claim was supported by the applicant at hearing with a series of illogical claims made by his parents which ultimately lead me to disbelieve that the claims have in fact happened to the applicant.

37. I bear in mind the Tribunal’s Migration and Refugee Division Guidelines on Vulnerable Persons of July 2015. I find that the applicant, [age] year-old boy is a child who may not be able to fully comprehend the context of the review and may not have developed the capacity or the knowledge to understand the wider implications for him of the review.

38. The applicant has stated in his written application and via his parents’ oral evidence as witnesses that loan sharks had threatened his family and in turn, him. I bear in mind the fact that the applicant is a [age] and appears to have limited comprehension of the reasons why he is in Australia. I also bear in mind that his parents were the ones who did most of the speaking during the hearing to explain the situation on behalf of their son. This is appropriate in the circumstances. I bear in mind that children process information differently from adults and may not be able to be as precise as an adult would be in giving evidence. I acknowledge that young children may not be able to put events into a wider context or put together events in a sequence.

39. In dealing with the applicant in the hearing I created a more informal setting for the hearing. I asked some very general questions of the applicant in an informal manner.  I allowed his parents to be in the hearing throughout his brief giving of evidence, of a few minutes. 

40. I informed the applicant in simple terms that I had some simple questions for him about his visa for Australia. He was reassured he was only expected to answer as best he could.

41. The applicant did not become distressed or uncomfortable during the hearing. He was only asked questions for a few minutes when it became apparent that he was not sure of the wider context of the application. He simply and mainly talked about his school, living with a relative and living with his family, and his toys and friends.

42. The accounts of loan sharks or a loan shark coming to the doorstep was very clouded indeed. The applicant’s mother said that three males came. When asked whether they had weapons she replied that they may have had weapons hidden. When asked whether the loan sharks threatened, she replied they said ‘you better pay back’. When asked whether she was frightened when the loan sharks came she said no. When asked whether her husband was frightened she said her husband was not there.

43. The applicant’s mother was asked whether there were in fact beatings as claimed in the written materials. She replied that the beatings were not true and that there was no beating. She indicated that a migration agent had put this down for her, telling the couple that if they do not put down beatings they will not be eligible for a protection visa.

44. This raises very serious concerns about credibility given the issues I had raised in the hearing.

45. I found the applicant's evidence given by his family and specifically his mother about this claimed series of events increasingly implausible. He was unable to explain via his parents the logic of his behaviour. He could not explain via his parents why the police were not told about the situation. The reasons proffered by the applicant’s mother were that the police are corrupt. When it was put that this might be because the police do not care or because the police are being corrupted themselves the applicant’s mother replied that this was all possible. When asked whether there was any evidence of an offence taking place she replied that there was no evidence. Very vague evidence was then provided about how the police only do something when Malay people are involved or somebody dies.

46. The evidence from the applicant’s father gave more insight into the situation. The emphasis here was upon having a better life and earning enough money to support his children. He said that if the family went back to Malaysia there would be no work and that they would have to start again. He felt that it was impossible to go back to Malaysia to set himself up and because of the poor quality of the education system. When asked whether his son could live safely with a relative he replied he would be okay. Otherwise this would be a sad situation he said that his son would be at no risk from loan sharks because he is only a child.

47. The applicant’s father was asked if a protection visa was refused whether his son upon return to Malaysia would be in any form of trouble with the Malaysian government and he could only proffer that maybe the Malaysian government would not accept his son as a Malaysian citizen and may remove his citizenship. When asked what basis he had for believing this he said that he had just heard this and that there were such cases that it happened. There was no other evidence proffered as to why this would be the case. I do not accept this claim as I have no evidence before me that this is the case as a matter of practice or law in Malaysia, and the very clouded and general say-so of alleged unnamed persons.

48. All of this evidence was vague and undetailed.

49. The applicant via his parents did not engage with a Department of Foreign Affairs and Trade country report as quoted in the delegate’s decision and discussed in the hearing (Australian Department of Foreign Affairs and Trade Country Report on Malaysia. The relevant report here is the 2016 edition report). A report about the reasonably effective police force in Malaysia which and been active in combatting illegal money lending was quoted here, yet the response was met with vague remarks about the alleged corruption of the Malaysian Prime Minister. The relevance of this response is highly questionable.

1. I consider the applicant's claims. The applicant is [age]. I give regard to the Guidelines for Vulnerable Persons in relation to minors giving evidence to the Tribunal as earlier discussed. I note further the role of parents at the Tribunal – and treat the action of the guardian or guardians undertaken on behalf of the applicant as the actions of the applicant. Therefore, the evidence provided by the parents is treated as acting for the child applicant. Despite exploring their evidence at hearing, I find their claims on behalf of the applicant to be unconvincing – the parents were unable to give more than vague details of the events claims, they were unable to explain motivations or provide any further information about the loan sharks, their actions or behaviour that might indicate that these events had actually occurred. Having considered the undetailed written claims in the application, the parents’ inability to provide more than minimal detail at the hearing and their inability to explain key difficulties with the evidence, I find that the parents are not a credible witnesses and I find that they have manufactured the claims in total on behalf of the applicant.

2. There are two claims regarding loans. The loan the applicant’s father claims to be for [one type of business] and the loan the applicant’s mother claims to be for [another type of] business. In regards to both loans that claimed I do not accept that the applicant’s family was contacted by loan sharks or anyone saying that a debt had to be repaid. I do not accept the family met with a loan shark or anyone else I do not accept that the family or any of its members were threatened with harm by loan sharks or anyone else. I do not accept that the parents went to the police about these things. I do not accept that the applicant’s family has taken out a loan for any amount from loan sharks or anyone else.

3. Because of my credibility findings, I also do not accept that the applicant was unable or is currently unable to live in Malaysia. He said his reasons for dissatisfaction in Malaysia were due to behaviour issues in school troubles. The evidence of the applicant’s father confirms this situation. I accept the evidence of the father which contradicts the evidence of the mother that the applicant would be safe because he is only a child and lived otherwise in peace with his aunt.

   Does the applicant have a well-founded fear of persecution if he returns to Malaysia?

4. The applicant has made a claim via his parents that if he returned to Malaysia he feared he would be threatened. The applicant’s father spoke to the police but they refused to provide protection so he fled Malaysia to Australia. The loan sharks then began harassing the applicant’s mother so she moved the applicant and his siblings to a relative’s house and came to Australia as well. The applicant’s parents fear returning to Malaysia because their lives would be in danger from loan sharks, as they cannot repay the debt.

5. I have found that I do not believe the applicant's parents claims in relation to loan sharks I have found that the applicant’s parents are not credible witnesses and whilst I accept the economic situation is problematic for some in Malaysia, I have not accepted the claim that there is family financial difficulty in supporting a household in the past or at present. I find that the applicant’s parents could return to Malaysia and once again find work, and I do not accept that he would face any harm form loan sharks or anyone connected with loan sharks for the reasons above.

6. On the basis of the above findings I find that there is no real chance that the applicant will be harmed by loan sharks or anyone else for any reason whatsoever, nor that there is a real chance he will be unable to support himself or his family, on his return to Malaysia now or in the reasonably foreseeable future.

7. 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).

   Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to Malaysia?

8. In MIAC v SQRB the Full Federal Court held that a 'real risk' test imposes the same test as the 'real chance' test applicable to the assessment of 'well-founded' fear' in the Refugee Convention definition.

9. The applicant in the application did not claim to fear harm on return to Malaysia for any reason other than these reasons. I have carefully considered what I accept of the claims made for him, above, against the complementary protection criteria. I accept that he may find it difficult to be at school in Malaysia because he becomes bored by it, but I find that he was able to do this previously. I find that any de-emphasis of Chinese language curriculum is not a source of harm. This was presented more a complaint about schools rather than anything linked to persecution or a lack of state protection. The DFAT Country Information Report (Malaysia) of 19 July 2016 states that: Primary school education involves six years of education, beginning at age seven) which is free and compulsory in Malaysia. As of March 2016, there were 1,284 public Chinese Schools. All national schools use Bahasa Malaysia as the language of instruction. However, the Education Act 1996 allows Chinese and Tamil schools the freedom to use their mother-tongue as the main medium of instruction. There is a high number of Chinese independent schools. Therefore this information is not supportive of the claim in the hearing about a neglect or de-emphasis of Chinese language curriculum being a source of harm.

10. Given these facts, I do not believe that there is a risk that is real, as opposed to remote or far-fetched, that he would be unable to be supported and face a level of significant harm from any person or for any reason set out above or for any other reason evident on the claims or material as a necessary and foreseeable consequence of him being removed from Australia to Malaysia.

11. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

12. 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

13. The Tribunal affirms the decision under review.

    Justin Meyer
    Member