1620062 (Refugee)

[2017] AATA 1388

1620062 (Refugee) [2017] AATA 1388 (7 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620062

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:James Silva

DATE:7 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 August 2017 at 11:35am

CATCHWORDS

Refugee – Protection visa – Malaysia – Social group – Homosexual – Debt collector – Credibility issues

LEGISLATION

Migration Act 1958, ss 5J (1), 36, 65, 423A

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. The applicant is a man in his [age] from Malaysia.

2. The applicant most recently arrived in Australia [in] August 2015, as the holder of [a temporary] visa. He applied for a Protection (Class XA) visa [in] July 2016. [In] November 2016, the delegate refused the application pursuant to s.65 of the Act.

3. This is an application for review of that decision.

4. The applicant attended a Tribunal hearing on 31 July 2017.

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

   Criteria for a protection visa

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   Claims and evidence

   Protection claims

7. The applicant claimed in his protection visa application that he is a gay man, whose family reported him to the police and religious authorities. He was beaten up and suffered psychologically. He claimed to fear further such harm if he returns to Malaysia. He later retracted this claim.

8. In his review application form and at the Tribunal hearing, the applicant claimed that he operated a business, and a supplier chased him for unpaid debts, threatening to cut his head off. The supplier and a debt collector have threatened him, and he fears for his own safety and that of his family.

   Background

9. The applicant is a [age] year old man from Negeri Sembilan, Malaysia. He indicates that he is a Muslim of Malay ethnicity, and an English speaker.

10. The applicant lived in his family’s home in [town], Negeri Sembilan. His protection visa application gave no information about his education, employment or family. At hearing, he stated that he attended primary school and high school in Negeri Sembilan. He worked in a [workplace] in Kuala Lumpur until early 2013. He was then employed in [a company] in Selangor until late 2013, but left as the company needed staff with more proficient English. The applicant claimed that during 2013, he occasionally helped a friend who had a [goods] supply business. In late 2013, he became this person’s business partner, with a [number] per cent share of the business. The business occupied rented premises in a market. It purchased wholesale [goods] from a supplier, and then sold this on to customers, in bulk.

11. The applicant stated that he is engaged to be married to a woman living in Malaysia. His parents and [siblings] live in Negeri Sembilan. One is [retired]; others work [in various occupations].

12. The applicant holds a Malaysian passport issued in [2015]. He first visited Australia in December 2006, when he was aged [age]. On that occasion, he entered Australia as the holder of [a temporary] visa, and returned to Malaysia [number of] days later. He most recently entered Australia [in] August 2015, and applied for protection [in] July 2016.

    Evidence

13. The evidence before the Tribunal includes the following relevant material: -

    §  The protection visa application form; the form provides no details of the applicant’s education, employment or family circumstances.

    §  As identity documents, a copy of the applicant’s Malaysian passport (biodata page only), his Malaysian identity card and his Malaysian driver’s licence.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of [November] 2016. It appears that the delegate did not invite the applicant to a Department interview.

    §  The review application lodged on 25 November 2016 has attached to it the applicant’s comments that a friend cheated him, and presented fraudulent claims.

    -   The applicant attached to it a document, in Malay only, that appears to be a police report dated [August] 2015, from the supplier.

    -   The applicant referred at hearing to an earlier police report, which he lodged on 22 June 2016. On 4 August 2017, the Tribunal received a copy of the police report and an English translation. In it, the applicant complains that a supplier and his associate allegedly threatened to kill him and send gangsters to collect unpaid debts.

14. The applicant appeared before the Tribunal on 31 July 2017, to give evidence and present arguments, via video conference from Robinvale. The hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant is not represented in this matter. With the applicant’s consent, a law student observed the hearing.

    Receiving country

15. The applicant claims that he is a Malaysian national. He speaks Malay; he has provided copies of a Malaysian passport, identity card and driver’s licence; and he has shown his familiarity with that country. The Tribunal is satisfied, for the purpose of this decision, that the applicant is a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing his claims for protection.

    Consideration of claims and evidence, and findings

    Credibility of the applicant’s claims and evidence

16. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

17. Of particular concern is that, in his protection visa application, the applicant claimed to be a gay man fearing persecution, a claim that he resiled from in his review application and at the hearing. Instead, he presented new claims linked with the indebtedness of his [goods] business.

18. Section 423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made.[1] In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, the provision requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence.

    [1] Section 423A of the Act

19. The applicant explained that he relied on a friend to complete the form on his behalf, because he (the applicant) has only limited English. The applicant said that he signed a blank sheet (page 25 of Form 866C), and his friend did the rest. His friend cheated him, by putting in a false claim. By way of background, the applicant also said that he had earlier approached a migration [agent], who asked for $[amount] to complete the form. The Tribunal considers it plausible that a ‘friend’ filled the form hastily on the applicant’s behalf, given the omission of key details about his past residence, education, employment and family.  

20. However, the Tribunal does not find that this is a reasonable explanation for his presentation of a false protection claims, and the omission of the claimed real reason. If the applicant had a genuine fear of persecution or significant harm, the Tribunal expects that he would have included in the application the key aspects of the reasons for such fear. Even if the applicant relied on another person to write down his claims and evidence (for instance, for language reasons), the Tribunal expects that he would take at least some steps to check that the contents of the application form were correct. The applicant’s failure to raise this claim earlier causes the Tribunal to draw an inference unfavourable to the credibility of the claim, at least insofar as the circumstances cause him to fear serious harm amounting to persecution, or significant harm, if he returns to Malaysia. (For the reasons set out below, the Tribunal finds on the basis of the applicant’s oral and documentary evidence, that the claims about his indebtedness are based on facts, at least in part.) Furthermore, it suggests a casual approach to this application which, in turn, raises serious questions about his need for protection.

    Homosexuality

21. The applicant initially claimed to be gay, and to fear persecution or significant harm, at the hands of his family, religious members of the community and/or the police. He indicated in his review application, and confirmed at hearing, that this claim is false. He told the Tribunal that he is engaged to a woman in Malaysia, and is not homosexual. The Tribunal finds that the applicant is not homosexual, and that he has no fears of harm related to his sexuality.

    Indebtedness

22. The applicant gave a detailed account of his business interests, the debts that mounted and his suppliers’ efforts to recover the debts. The key elements of this are as follows:

    §  During 2013, he had helped a friend [with] his business. The friend rented premises at a market, and took wholesale deliveries of fresh [goods] that he sold in bulk to customers. In late 2013, the applicant bought into the business. He said (after some initial hesitation at the hearing) that he had a [percentage] share.

    §  Typically, the business would purchase [goods] from the supplier and pay with a post-dated cheque. They then sold the product to customers on the basis of one week’s credit. This model worked fine initially. Over time, however, as the Malaysian economy weakened, the applicant and his business partner fell behind in their payments to the supplier. The applicant named the supplier. To the Tribunal’s surprise, he named the supplier only after checking his notes, explaining that he did not want to make a mistake with the name. By early 2015, the [goods] business was falling behind in its payments.

    §  In early 2015, the supplier’s younger [brother] telephoned the applicant, threatening to kill him and warning that he would send a debt collector around. The applicant said that the debt collector to harass him at the market, and hang around (in a menacing way). He said that he complained to the police about [the supplier’s younger brother]’s threat to kill him (by decapitation).

    -   The purported police report, which the Tribunal received after the hearing, sheds further light on this claim. The applicant claims that, under pressure from the supplier, he signed an undertaking to repay RM [amount] per week. He managed the first payment, but he missed the second instalment in mid-June 2015.

    -   The supplier and his associate came around, and extracted a promise from the applicant to repay RM[amount]. They threatened to kill him, by cutting his head off.

    -   The applicant was scared and depressed, and was admitted to hospital.

    §  The applicant said that he and [his business partner] owe a total of RM [amount]. As for how the supplier had allowed this debt to grow, given the usual three-day period for payments by cheque, the applicant merely stated that the debts had been mounting over a period of time. The Tribunal notes that the purported police report (submitted after the hearing) records the applicant’s fears that the supplier had inflated the outstanding sum;

    §  The applicant told the Tribunal that he fears that the supplier and debt collector will pursue the matter through the courts. The Tribunal noted that the untranslated police report of [June] 2015, which he summarised at the hearing, refers to him and his friends, and suggests that the supplier is seek legal avenues to recover the debt. The applicant agreed with this observation, but added that he does not understand why they ‘prefer violence’ (a reference to the alleged death threats).

    §  The applicant confirmed that there have been no further threats to or violence against him or his family.  

    §  The applicant said at the hearing that he has repaid $[amount] of the debts[2]; he claimed that he has not had a regular income in Australia.

    [2] In light of the translated police report that the Tribunal received on 4 August 2017, it appears that this may in fact the RM [amount] that the applicant (and [his business partner]) repaid in early June 2015. This suggests that the applicant (and presumably [his business partner]) has not made any repayments since leaving Malaysia.

23. The applicant said that, after he left Malaysia, his friend’s brother took over the [goods] business for about two weeks. The supplier harassed him, and they closed it for good. The property manager leased the premises to another person.

24. The Tribunal is satisfied, and finds, that there is a core of truth to the applicant’s claims, namely that he was involved in a [goods] business; that he incurred debts (together with his business [partner]); and that the supplier and debt collectors have pursued him (and [his business partner]) for the debts.

25. However, the Tribunal has significant problems with aspects of the applicant’s claims, particularly the concern that the supplier and/or debt collector will seek to use violence against him if he returns to Malaysia.

    §  First, the applicant claimed that it was [his business partner]’s business; he had to consult notes when asked for the identity of the supplier, and on other occasions; and he hesitated when asked what share of the business he held. Curiously, there is no mention of [his business partner] at all in the purported police report dated [June] 2015. All these points suggest that the applicant has either exaggerated or fabricated his role as a debtor now subject to intimidation and criminal threats.

    §  Second, the applicant showed little by way of genuine efforts to repay the debts, and reduce any risk of harm to him or his family. This adds to the Tribunal’s doubts both about the veracity and the seriousness of the applicant’s claimed indebtedness, and its consequences for him.

    §  Third, the Tribunal has some concerns about the weight that can be placed on the police reports, as evidence of the threats to the applicant.  The report dated [June] 2015 bears no signature; it appears merely to be a pro forma that has been completed. Moreover, there is no mention of [the] applicant’s business partner. This would have been critical information for the police investigating any alleged threats arising from business debts.

    §  Fourth, even if the Tribunal were to take the two police reports at face value, they merely show a commercial dispute between two parties. Their accounts differ as to the exact amount owing, how it was calculated and the suppliers’ efforts to recover the debt. As for the supplier’s alleged threats to harm the applicant – warning that he will send debt collectors (or gangsters) and that he will have him killed, and the applicant’s anxiety and hospitalisation in the wake of these threats (mentioned only in the police report – it is striking that the applicant has no claims or evidence to indicate any follow-up action against him, [his business partner] or family members.

    §  Fifth, the applicant claimed that his brother took over the [goods] business, but had to close it after two weeks, due to ongoing harassment. The Tribunal is not satisfied that any such ‘harassment’ involved any more than the suppliers’ efforts to recover their debts.    

26. In light of the above concerns, and taking into account the adverse inference it has drawn pursuant to s.423A of the Act, the Tribunal finds that the applicant was involved in a friend’s [goods] business from 2013; that it ran into financial problems during 2015; and that the business (that is, the applicant’s friend and the applicant) have unpaid debts. However, the Tribunal finds that the applicant has exaggerated the extent of his exposure, and the supplier’s adverse interest in him personally. The Tribunal also finds that the suppliers have pursued legal avenues to recover the debts. It accepts that he may have threatened to have debt collectors pursue the applicant and his friend, and made some verbal threats in anger. However, the Tribunal does not accept that these involved credible death threats or threats to have gangsters harm the applicant.

27. The Tribunal accepts that the applicant may have some debts in Malaysia, and that this may have influenced his decision to travel to Australia. However, for the reasons stated above, it does not accept that he fled Malaysia in response to any credible threats to kill or otherwise harm him or family members.

    Assessment: Refugee criterion

28. For the reasons set out above, the Tribunal finds that the applicant may have unpaid debts arising from his involvement in a friend’s [goods] supply business (or arising in other circumstances). However, the Tribunal finds that this went no further than the supplier and the applicant (together with his business [friend]) arguing and seeking to intimidate the other side (including, potentially, with police reports). The Tribunal does not accept that there have been any credible threats to harm or kill the applicant, his brother (or other family members), or any other follow-up action.

29. The Tribunal finds, in light of the above findings, that there is no real chance of the supplier/creditor, his associates or debt collectors (or gangsters) operating on his behalf inflicting serious harm amounting to persecution on the applicant, if he returns to Malaysia. The Tribunal relies above all on the applicant’s past experiences in Malaysia. It finds nothing in his future conduct, or general country information, to suggest that he may nonetheless be at risk of persecutory harm on his return to Malaysia. In these circumstances, it is unnecessary for the Tribunal to assess whether such harm is for one or more of the reasons set out in s.5J(1) of the Act.

30. The Tribunal, having found that the applicant is not a homosexual, concludes that he has no genuine or well-founded fear of harm arising in connection with his sexuality.

31. The Tribunal is therefore not satisfied that he has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Malaysia. It follows that the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Assessment: Complementary protection

32. The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.

33. The Tribunal takes into account the above findings of fact, its view of the applicant’s future conduct and general country information. It concludes that there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflict on him, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm, for any reason, if he returns to Malaysia.    

34. Accordingly 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 that he will suffer significant harm: s.36(2)(aa).

    Conclusion

1. 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).

2. 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 satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. 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

4. The Tribunal affirms the decision not to grant the applicant a protection visa.

   James Silva

   
   

   Member

   ATTACHMENT - 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.