1615462 (Refugee)

1615462 (Refugee) [2017] AATA 2220 (11 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615462
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Rosa Gagliardi
DATE:11 September 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 12 September 2017 at 12:36pm

CATCHWORDS
Refugee – Protection Visa – Malaysia – Economic hardship – Inability to repay bank loan - Fear of financial consequences – Lack of objective fear - Capacity to subsist – False claims in submissions
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
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.

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] September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia applied for the visa [in] June 2016. The delegate refused to grant the visa on the basis that the applicant could obtain effective protection on return to Malaysia.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant is a Malaysian national and was born on [birth date], in Penang Province. He is a Malay Muslim. The applicant has provided his Malaysian passport which confirms his claimed identity and nationality. In the absence of any information to the contrary, the Tribunal accepts the applicant is a national of Malaysia and has assessed his claims against Malaysia.
The applicant’s claims at the time of application
At the time of application the applicant submitted the following as his claims in a statement dated [in] April 2016:
…Why I was coming in Australia and why I am Applying protection visa the reason is here. “My father was born in Malaysia and grow up also there after his study he was started his business and then got married and and (sic) then I was born everything going be good but after some time they borrow money [amount] for his business on my ID from loan shark who call [Mr A] but my father business gone in lost and then all problem is starting in our life and my father and my mom also left me. After that [Mr A] come to my house and disturb me and asking money from me because my father need to pay [amount] interest per month how could I pay. He said me if I can’t pay he kill me after all I don’t have choice run Australia”.
I was more depressed because of [Mr A] threaten and harassment (sic). I always worried for my life I always in tension of what was going to happen next. My condition day by day was getting bad to worst. I was not even able to concentrate on my study, this financial crisis. Me were not in any fault were also made to suffer badly. I had even look after myself and my expenses.
My Relative seeing all this problems and financial crisis, they broke relation with me and I am alone. Nobody even asked for help. On other side, I was tired.
He spoiled my family life, my friend also didn’t stand by me he back stabbed me. [Mr A] destroyed my life. Even the police didn’t take any action against him. [Mr A] can do anything with me because he is a Politically support. He uses to give communal reasons and fault paid witness before the police and in court to make, all complain filed by me are false.
[Mr A] goons came at my Residence, said to visit his office with them, they tried to come inside the house to look for me and shouted and said “we never forget our computation” they threatened if I don’t visit them at the earliest they would kill me. Till many days we went out of station, I have finish this matter I even told some people to mediate between me and [Mr A], but he just kept on asking for more money as penalty and other expenses. He dints (sic) heed to anybody. Day by day I could sense more and more trouble. His goons every day used to visit at my residence and threaten me.
At this point I planned to visit Australia for some time. I applied for my visa, I got visa to visit Australia After coming here, I got to know about the Protection visa, which can be of great use for us to live for some time peacefully, in such a great place where laws are being followed by one and all and a law which sees everybody equally. This can be of great help for me betterment without worrying for my life. I am alone and I don’t have the ability to fight with [Mr A]. Back in Malaysia and I have risk of my life in Malaysia. Where is my parents right now I don’t know I am alone in the world?...
The applicant’s claims at hearing held on 24 August 2017
The Tribunal put to the applicant what it considered were some of his claims based on the information before it, relating to money being borrowed from a loan shark for his father’s business. The Tribunal asked whether the Tribunal’s summary was accurate. The applicant stated “no”. Asked what his claims actually entailed, the applicant responded that he had borrowed [amount] Malaysian Ringitt (MRY) (approx. AUD[amount]).
The Tribunal asked why the applicant had written at the time of his application that [a larger amount] had been borrowed for his father’s business from a loan shark, [Mr A]. The applicant stated that the agent wrote the claims. The applicant paid him and the agent wrote down the reasons. He just wanted money. The applicant stated that he had not borrowed money from a loan shark. He had borrowed the [amount] MYR from [a bank].
As the applicant had not provided a copy of the departmental decision for the purposes of the review, the Tribunal put to the applicant verbatim his letter [April] 2016 to the department, pursuant to section 424AA(i)(b)(i)-(v), and concerns about him having fabricated claims for the purposes of the application.
The applicant stated that in terms of what the agent had written none of it was true. The Tribunal asked whether it had to rely on what the applicant had told the Tribunal at hearing and he confirmed that to be the case.
The applicant stated that his genuine claims were that:
-    He borrowed [amount] MYR to enter into a multi-level marketing (MLM) business involving [goods]. This was not his father’s business – only he was involved. He was cheated by a friend who told him that he could make money by becoming involved, instead the company cheated him;
-    His problems related to his inability to repay his bank loan. He did not have enough money to service the loan;
-    He had a job at [Company 1] as a [Occupation 1] but this did not assist him repay the loan as he also had to assist his family members. He had also taken out a loan for his [vehicle];
-    He would not be able to get a job because other employers would have heard about him at [Company 1]; and
-    His mother had lost money and his father was bankrupt and he needed to help them.
The Tribunal asked the applicant directly whether he had travelled to Australia to work given he was not in a position to travel to Australia for leisure due to a lack of funds to service his bank loan. The applicant confirmed that he had come to Australia to work. He worked in [occupation] for 6 or 7 months. He had not yet paid off his bank debt and had only honoured [a small portion] of the debt.
The Tribunal asked what would happen to the applicant if he returned to Malaysia. He stated that he would not have a job. Secondly, his mother had also lost money and he needed to help her out. His father had his own business; a shop, but he was now bankrupt.
The Tribunal again asked who he feared on return to Malaysia and the applicant responded “no one”. He did not want to return because of his financial circumstances. He lived in Klang, Malaysia but it was difficult to get a job there.
The applicant’s father did not work, only his mother did in [occupation]. He had [a number of] brothers who were also working and the applicant was the [number] child. The applicant stated that in Malaysia there were many waiting to come to Australia as the situation was very difficult due to the economy there. In terms of moving to another area such as Kuala Lumpur, for example, the cost of living is high and salaries are very low.
The Tribunal again asked the applicant what harm he feared if he returned to Malaysia. He stated that he would not have a job, and secondly, he would not go back to Malaysia, instead he might go to [a third country]. He had a friend over there. He would be going there to work if his visa was refused but he wanted to remain in Australia. Asked if he feared anyone in Malaysia, the applicant stated that he just feared the bank as it had issued a warrant to confiscate his belongings. They had not confiscated his belongings as yet, but his [vehicle] had since been repossessed.
Third country protection
There is no evidence before the Tribunal to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Findings
The applicant has abandoned all the claims that he put forward in his statement to the department dated [in] April 2017. The Tribunal therefore rejects that the applicant’s parents borrowed money using his ID from a loan shark called [Mr A], and it follows that none of the other matters raised in his statement of [April] 2017 occurred. As such, the Tribunal rejects claims that:
·The applicant’s ID was used to borrow money from a loan shark called [Mr A];
·[Mr A] went to the applicant’s house to harass him and to ask for money otherwise the applicant would be killed;
·The applicant was depressed because of [Mr A]’s threats and harassment of him;
·The applicant was worried for his life and he was tired;
·The applicant was unable to concentrate on his studies due to this financial crisis;
·Even the police took no action against [Mr A] because [Mr A] was a powerful figure who had political support and paid witnesses appearing in court;
·[Mr A]’s goons went to the applicant’s residence threatening to kill him if he did not pay them a visit at the earliest;
·The applicant attempted to have people mediate between him and [Mr A] but he just kept asking for more money as penalty, presumably for non-repayment and for other expenses;
·[Mr A]’s goons went to his residence on a daily basis to threaten him;
·His friends did not stand by him; and
·The applicant’s parents broke their ties with the applicant and he is alone in the world.
Indeed the Tribunal rejects that a personage called [Mr A] exists.
The Tribunal finds that the applicant at hearing was credible in providing the Tribunal with information that he had not written the statement, dated [in] April 2017, that was initially provided to the department as his statement of claims. Given that the applicant provided detail to the Tribunal at hearing which was clearly not in the interests of advancing his protection claims, and given that he spoke frankly and directly, the Tribunal finds that the applicant does not have an objective fear of returning to Malaysia, or that there is a real chance that, on return to Malaysia, he will be persecuted for either his race, religion, nationality, membership of a particular social group or political opinion, now or in the reasonably foreseeable future.
Instead, the applicant has admitted needing to come to Australia to work to repay a debt he legitimately entered into with a banking institution in Malaysia. The Tribunal accepts that there will be financial consequences for the applicant returning to Malaysia in that he will need to continue to work to repay his debt. As put to the applicant at hearing, however, he has had experience in working as a [Occupation 1] and has also worked in Australia in [occupation], gaining international experience, making him more marketable on the job market in Malaysia.
The applicant at hearing stated that he could not get work in his home area because the employers would have found out about him from his employer at [Company 1] and would not employ him. The Tribunal does not, however, accept that the applicant is incapable of finding any work in Malaysia because his previous employer at [Company 1] will talk about him to other employers. The Malaysian economy generally is highly open and as put to the applicant at hearing, in such city centres as Kuala Lumpur, the economy is diverse due to the city’s development as a modern metropolis and as a financial and commercial hub. For these reasons, the Tribunal is not persuaded the applicant will be unable to find any employment on return to Malaysia to assist him repay his loan with the bank and to assist his family financially.
As the Tribunal has found that the applicant has not broken his ties with his parents/family in Malaysia, the Tribunal finds that the applicant has family to live with if he were not minded to leave his home area and look for work elsewhere in Malaysia, such as in Kuala Lumpur or in his birth place in Penang. Indeed, the applicant’s [brothers] are employed according to the applicant, and the Tribunal finds that the applicant, if he continued to live with his family, would reside in a household in which income was being generated. This is particularly so as the applicant’s mother is also working in [occupation]. The Tribunal finds that the applicant will not suffer significant economic hardship that will threaten his capacity to subsist and that he will not be denied capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
The Tribunal is satisfied that there is not a real chance the applicant will suffer serious harm if he returns to Malaysia now or in the reasonable future for reason of the economic situation in Malaysia.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee definition: MIAC v SZQRB [2013] FCAFC 33. Based on the findings and reasons earlier, the Tribunal is 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 he will suffer significant harm, being that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment.
Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of serious or significant harm in Malaysia.
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). The Tribunal is not, however, satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi
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
(1)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.
(2)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.
(3)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.
(4)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.
(5)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.
(6)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
(1)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.
(2)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 2220

11 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction