1612940 (Refugee)

Case [2018] AATA 5971

1612940 (Refugee) [2018] AATA 5971 (10 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612940

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Dr Colin Huntly

DATE:10 July 2018

PLACE OF DECISION:  Perth

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

Statement made on 10 July 2018 at 2:10pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – attacks and threats by loan sharks – credibility – inconsistent evidence – incorrect information on application – travel to other countries – delay in bringing dependent child to Australia – no real risk of significant harm – state protection available – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36(2)(a), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Emiantor v MIMA (1998) 98 ALD 635

Iyer v MIMA [2000] FCA 52

SZQNO v MIAC [2012] FCA 326

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 28 July 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

  2. The applicants, who claim to be citizens of Malaysia, applied for the visas on 28 January 2015.  The delegate refused to grant the visas on the basis that the claims presented in the application for review were vague and lacking in appropriate detail.  The delegate further found that available country information did not support the applicants’ claims regarding the unavailability of state protection in Malaysia relating to illegal money lenders as potential agents of harm.

  3. The applicants attended three hearings with the Tribunal.  The first of these hearings took place on 19 September 2017.  The second hearing was held on 11 December 2017.  The third and final hearing was held on 15 February 2018.  All hearings were conducted with the assistance of an interpreter fluent in both the Mandarin and English languages.  The applicants were not represented in this application by a registered migration agent.

    APPLICANTS’ IDENTITIES

  4. Both Applicant One (Mr [A]) and Applicant Two (Mrs [B]) arrived in Australia [in] November 2014 as holders of [temporary] visas.  Applicant Three (Ms [C]) arrived in Australia [in] April 2015 as the holder of a [temporary] visa.  

  5. The Tribunal has had regard to the Department of Immigration’s files and the information on which the decision of the delegate, relating to identity, was based.  The Tribunal has also had the advantage of interviewing the applicants in person in addition to reviewing the applicants’ Malaysian passports.  Applicant One’s Malaysian passport was issued in Johor [in] 2014, and bears the same identifiers as Applicant One.  Applicant Two’s Malaysian passport was issued in Johor [in] 2014, and bears the same identifiers as…

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AGLC
1612940 (Refugee) [2018] AATA 5971
Case
[2018] AATA 5971
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by two applicants who claimed to fear persecution in Malaysia due to their indebtedness to loan sharks. The applicants asserted that these loan sharks had extensive networks of influence throughout Malaysia, posing a continuing threat. The decision reviewed was made by a delegate who had refused the protection visa application.

The legal issues before the Tribunal were whether the applicants held a well-founded fear of persecution for the essential and significant reason of membership of a particular social group, namely persons indebted to illegal money lenders in Malaysia, pursuant to sections 5H and 5J(1)(a) of the Act, read with section 36(2)(a). Additionally, the Tribunal was required to consider whether there was a real risk of significant harm to the applicants under complementary protection considerations, pursuant to section 36(2)(aa) of the Act, taking into account the availability of adequate State protection in Malaysia.

The Tribunal noted that the delegate had found the applicants' claims to lack adequate explanation, detail, and supporting evidence, and to be unsupported by relevant country information, leading to a finding that the claims lacked credibility. The delegate also concluded that there was no real risk of significant harm due to the availability of adequate State protection. At the hearings, the Tribunal presented the country information to the applicants, who responded by asserting that Malaysian police only protected the wealthy and that corruption was prevalent. The applicants also referred to a past incident involving red paint and claimed ongoing harassment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal discussed the foregoing claims with the applicants at the second and third hearings. The Tribunal notes the applicants’ stated belief that they would be under continuing threat by criminal thugs if they were to return to Malaysia, because they have networks of influence throughout the country. STATEMENT OF DECISION AND REASONS The Tribunal notes that the applicants’ primary claim for protection is based on holding a well-founded fear of persecution for the essential and significant reason of their membership of a particular social group; namely, persons in Malaysia indebted to illegal money lenders (known colloquially in Malaysia as ‘Ah Longs’). Decision under review The reasons given by the delegate for not granting the applicants’ application for protection are contained in the delegate’s record of decision at pages 13 with respect to Applicant One, and page 14 with respect to Applicant Two. In any event, those reasons are ultimately expressed in the same terms for each applicant. Firstly, the delegate found that the applicants’ refugee criteria-based claims lacked adequate explanation and details, lacked supporting evidence and were not supported by the relevant country information surveyed in the decision. As a result, although not expressly stated as such by the delegate, the implication is that the delegate found those claims to lack credibility and were therefore, not genuinely held by the applicants. On this basis, the delegate found that the applicants did not hold a well-founded fear of persecution in Malaysia, now or for the reasonably foreseeable future, for the purposes of section 5H and 5J(1)(a) of the Act, as these relate to section 36(2)(a) of the Act. The Tribunal notes that, in addition to this finding relating to the refugee criteria, the delegate also found that there was not a real risk of significant harm to the applicants under the complementary protection considerations at section 36(2)(aa) of the Act, due to the availability of adequate State protection in Malaysia now and in the reasonably foreseeable future. The Tribunal has discussed these delegate findings, together with the delegate’s summary of relevant country information, with the applicants at the hearings. At the second hearing, the Tribunal surveyed the country information contained within the delegate’s decision record and indicated to the applicants that the delegate’s assessment appeared to correspond with the country information available to the Tribunal. The applicants were invited to make any comments about this material. In response, Applicant One indicated that the Malaysian police only protect the wealthy and that police protection is available to those who can corruptly pay for it, including criminals. Applicant One also referred to a red paint incident which is referred to in his original statement attached to the application for protection. Applicant One stated that the harassment of his family by the agents of harm he fears continues to the present time.Initial Hearing

Ratio Decidendi

Legal Principle Established

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