1611467 (Refugee)

[2017] AATA 2219

1611467 (Refugee) [2017] AATA 2219 (20 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611467

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sean Baker

DATE AND TIME OF

ORAL DECISION AND REASONS:          20 September 2017 at 3:31 pm (VIC time)

DATE OF WRITTEN RECORD:                13 October 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 13 October 2017 at 11:04am

CATCHWORDS

Refugee – Protection visa – Malaysia – Economic reasons – Numerous debts – Can live in Malaysia and work to repay debts

LEGISLATION

Migration Act 1958, ss 36

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 2016 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 20 September 2017 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The criteria for a protection visa are set out in Section 36 of the Act and Schedule 2 to the Migration Regulations. The applicant is either a person in respect of whom Australia has protection obligations under the refugee criterion or on complementary protection grounds. Where relevant, the tribunal has taken into account the policy guidelines prepared by the Department of Immigration and any country information assessments prepared by the Department of Foreign Affairs and Trade in accordance with Ministerial Direction number 56.

4. In questions of credit I note that I need to give the benefit of the doubt to applicants but that this should not lead to a critical acceptance of any and all allegations made.  It is for the applicant to make their case in as much detail as possible.  Greater weight may be given to one piece of evidence against another and there is no rule that there must be a positive state of disbelief before making adverse assessments.  I move on now to my findings and reasons. 

   Findings and reasons

5. The applicant claims to be a citizen of Malaysia. He provided a copy of his passport to the Department with his application. The tribunal finds the applicant is a national of Malaysia which is also his receiving country for the purpose of the refugee and complementary protection assessments respectively. There is no evidence before the tribunal to suggest the applicant has the right to enter and reside in any third country for the purpose of section 36(3) of the Act.

6. The applicant claims that he has a number of loans that he has not been able to service.  He fears that if he returns he will not be able to repay the loans and that his family members and best friend will be upset that he will not be able to pay them.  He asked for more time to remain in Australia to work so he can repay his debt. 

7. The applicant’s written claims which he said he had help with are brief and undetailed.  His evidence before the tribunal was more detailed and the tribunal prefers it for this reason. 

8. The applicant explained at hearing that he owed [amount] Malaysian ringgit on his housing loan to a bank, [amount] on his car loan to a bank, [amount] on a study loan to the government and [amount] in credit cards with a bank.  He also said he owed his [family members] various amounts totalling around [amount] and he owes his best friend [amount] ringgit.

9. He said he had another home loan to a different bank for another house but he had sold this before he came to Australia to stop that bank taking legal action against him.  He sold that house and was only left with [amount] ringgit equity.  He said he did not have any other loans, nor did he owe any person or organisation any other money.  He explained that he had borrowed money from his relative as he had fallen into arrears on his other loans.  He has borrowed money from his best friend to pay for his trip to Australia.  I explained to the applicant that I was not sure that these circumstances led to him suffering serious or significant harm on return. 

10. He said he did not have enough money to pay back the debt.  I noted he could sell his house which he said had a market value of [amount] ringgit, pay back all of his debt and then rent.  He said he did not wish to sell his house as he was very fond of it and if he sold it he would not be able to afford to buy another.  When it was also suggested he said he could not sell his car as then what would his wife use to get to work.  He said public transport in Malaysia was not like here.  I noted that what I was suggesting was that I might think he could rationalise his assets in order to pay off his debts.

11. He said that was why he came here to work and thank God he had been able to reduce the debt.  He said he sent home [amount] a month.  I asked what he feared would happen if he returned.  He said his family members would demand the money.  After some discussion he agreed that they would not harm him but would be disappointed and he said he cannot bear the pressure of the ongoing debt.  He said he also would not be able to travel overseas as the government department in charge of student loans would list him so he could not travel overseas.  After some exploration he said that this was all he feared. 

12. I noted that these things might not lead to a real chance of serious harm or a real risk of significant harm.  He said he admitted he would not be harmed but as long as he was in Australia he might as well continue to work so he can settle the debt.  He asked for a bit more time to work before he returned.  I noted again to the applicant that he had significant assets that he could sell to settle the debt.  Given he had been able to work in Malaysia and Australia I considered he would have a good chance of finding work.  I noted his wife was also working and that between them I might consider they could afford rent which he said would be about a quarter to a third of their combined income, food and transport.  He said he did not wish to suffer and wanted to remain here for another year or two to work. 

13. The applicant said there was no other reason he feared harm and no other basis on which he would be harmed on return. 

14. I have carefully considered the claims of the applicant.  I find the applicant has failed to demonstrate he would suffer any chance of serious harm on return to Malaysia, nor that he faces a real risk of significant harm on return.  I accept that he has the debts and level of debt he claims as set out above to the financial institutions, family members and his best friend.  On his evidence I do not accept he owes any money to unlicensed financial companies.  I accept that his family members and friend would be disappointed if he returned and was not able to pay them but I do not accept that this reaches the level of serious or significant harm as he himself conceded.

15. I accept that he may face some restrictions on his travel overseas but I do not accept that this reaches the level of serious or significant harm.  I accept he would be disappointed and frustrated with the level of debt but again I find this is not serious or significant harm.  None of these things have the requisite level of seriousness or intent to lead to harm.  The applicant did not claim or indicate he would be harmed in any other way from any other person or source.  Given the level of debt, I accept the applicant may be forced to sell some of his assets, either his car or his house or both to repay the debts.  I accept the applicant does not wish to do this.  However, I do not accept that it is unreasonable to expect him to do so and I find that faced with being unable to repay his debts he would do so.

16. I accept that this would put the applicant in a situation he does not wish to be in.  To be paying rent and perhaps paying for transport, not driving the family car but I also find that given he has been able to find work in Malaysia and Australia that he could find work and that between him and his wife they would be able to afford to rent, afford transport and food and I find, therefore, that their capacity to subsist would not be threatened.  I find, therefore, that the applicant can return and pay his debts, find work and live with his wife above the level of subsistence.  I find, therefore, that this outcome does not reach the level of serious or significant harm.

17. Whilst not being the applicant’s preferred outcome, as above, the tribunal does not accept he owes money to unlicensed financial companies.  On the basis of this reasoning, the tribunal finds there is no real chance the applicant will be seriously harmed for reasons of his debts from his family members, his best friend, the financial institutions or government, unlicensed financial companies or anyone else or for any other reason on his return to Malaysia now or in the reasonably foreseeable future.

18. I turn now to consider complementary protection.  For the reasons set out above, while I have accepted the applicant owes the money he does, I have found he will not suffer serious harm on return for any reason.  I have considered the evidence above and my findings and I find he will not suffer significant harm for the same reasons.  I find he will be able to live with his wife and find work as she has and afford rent, transport and food and will be able to live above the level of subsistence in Malaysia if he is returned.  I do not accept he would be significantly harmed on the basis of these things.  The applicant has not claimed to face a risk of significant harm for any other reason on return. 

19. As above, I have not accepted that there would be a real chance of the applicant facing serious harm for reasons of his debts from anyone or for any other reason on return to Malaysia now or in the reasonably foreseeable future.  In MIAC v SZQRB[1] the Full Federal Court held the real risk test imposes the same standard as the real chance test.  Noting the findings detailed above, it follows that I am not satisfied that 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 the applicant will suffer significant harm. 

    [1] MIAC v SZQRB [2013] FCAFC 33 (Landeer, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]

20. Taking the applicant’s claims at their highest the tribunal finds that he has not established he will be seriously or significantly harmed for any of the reasons claimed.

    Conclusions

21. For the reasons given above, the tribunal is not satisfied the applicant is a person in respect of who Australia has protection obligations under section 36(2)(a). Having concluded the applicant does not meet the refugee criterion the tribunal has considered the alternative criteria. The tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa). There is no suggestion the applicant satisfies this criteria on the basis of being a member of the same family unit as a person who satisfies either of these criteria. Accordingly, the applicant does not satisfy the criterion in section 36(2).

    DECISION

22. The Tribunal affirms the decision under review.

    Sean Baker
    Member