1703014 (Refugee)

[2019] AATA 6551

1703014 (Refugee) [2019] AATA 6551 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703014

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         3 October 2019 at 4:10 pm (WA time)

DATE OF WRITTEN RECORD:                22 October 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 22 October 2019 at 1:24pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – generalised concerns about economic and political disadvantage – seeking work and better life for family – agent of harm not identified – credibility issues – incorrect information on protection visa application form – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36, 104, 423A
Migration Regulations 1994 (Cth), Schedule 2

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 on 9 February 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 3 October 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

   STATEMENT OF DECISION AND REASONS

3. Attached to this statement is a corrected transcript of the reasons for decision delivered at the hearing on 3 October 2019.

   DECISION

4. The Tribunal affirms the decision under review.

   Dr Colin Huntly
   Member

   
   

   ORAL DECISION OF SENIOR MEMBER HUNTLY   [3.21 pm]

5. MEMBER:  This is an oral decision with reasons delivered to the applicant in person.

   Introduction

6. The criterion for a Protection visa are set out in s.36 of the Act and Sch.2 to the Regulations.  An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complimentary protection grounds. 

7. Where relevant the Tribunal has taken into account the policy guidelines prepared by the Department relating to refugee law and complimentary protection together with any country information assessment prepared by DFAT as is required by Ministerial Direction No.56.

8. Before looking at my findings, I note that on questions of credit I need to give the benefit of the doubt but it is for an applicant to make their own 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 I must hold a positive state of disbelief before making adverse assessments.  I also note that a decision maker is entitled to consider whether or not an applicant subjectively holds a genuine fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held objectively by an applicant in the context of refugee protection.

9. If a decision maker finds on the evidence that an applicant does not subjectively hold a genuine fear of persecution there is no need to consider whether or not there is an objective basis for a claim or indeed whether aspects of the claim are satisfied.

10. I also note that where there is a finding that there is no subjective fear of persecution this may lead to a conclusion that the tribunal finds the claims not to be credible. 

11. In this respect I have had regard to Migration and Refugee Division “Guidelines on the assessment of credibility”, issued in July 2015, which provides at [8]:

    It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.

12. I also note that [13] provides as follows:

    In relation to protection visa applications made on or after 14 April 2015 if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made the tribunal must draw an inference unfavourable to the credibility of the claim or evidence.  This refers to the requirements at section 423A of the Act. 

13. Further, [17]-[19] of the Guidelines are as follows:

    Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case.  The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.

    A Member should maintain and be seen to have an open mind when conducting a hearing.  There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend.  An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.

    However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.

14. With respect to contradictions, inconsistencies and omissions, [27]-[28] states:

    Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. 

    The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.

    New Claims and Evidence

15. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  On this view the Tribunal does not have any responsibility or obligation to a specified or assist in specifying particulars of the claim or to, in fact, establish or assist in establishing the claim.  This is consistent with the well settled proposition that it is for an applicant to make their own case.

16. Further, applicants are expected to present their case in full before the primary decision maker and not to wait until after the primary decision has been made.  Two obligations here are particularly relevant; the ongoing requirement under s.104 of the Act for an applicant to ensure their relevant details are correct and to change any incorrect information at the first reasonable opportunity.

17. Second, s.423A of the Act referred to above, requires the Tribunal to draw an adverse inference about the credibility of certain of an applicant’s claims or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made.  In such cases if the tribunal is satisfied the applicant does not have a reasonable explanation about why the claim was not raised or evidence not presented before the primary decision the Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence.

18. Applicants are, therefore, required to present all claims and evidence to the primary decision maker unless they have a reasonable explanation for not doing so.

    Background

19. The applicant appeared before the Tribunal on 9 September 2019 and at a second hearing with the Tribunal on 3 October 2019, to give evidence and present arguments.  The applicant was not represented in this application by a registered migration agent.  The Tribunal was assisted in this review by the services of an interpreter who was fluent and accredited in both the Malay and English languages.  The Tribunal expresses its gratitude to the interpreter for these services.

20. The applicant seeks review of the decision of a delegate of the Minister for Immigration dated 9 February 2017.  That decision found that the applicant should not be granted a protection visa.

    Identity

21. As to identity, according to the applicant’s movement record he arrived in Australia [in] August 2016 travelling on a [temporary] visa.  The applicant thereafter applied for protection on 20 September 2016.  The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Department with his application for protection.  The Tribunal finds that the applicant is a citizen of Malaysia, which is also his receiving country for the purposes of the refugee and complimentary protection assessments.

22. There is no evidence before the tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of section 36(3) of the Act.

    Country Information

23. In addition to the country information referred to in the delegate’s decision record, which was provided to the Tribunal by the applicant, the Tribunal has had regard to DFAT country information in Malaysia dated 19 April 2018, in particular its discussion relating to the treatment of returnees.  I note that this publication provides at [5.22] as follows:

    Many thousands of Malaysians enter and leave the country every day.  People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return on account of their absence.

24. I have also had regard to the Department of Home Affairs publication “Malaysia Common Claims”, COISS 3 July 2018.

    Claims

    First hearing

25. At the hearing with the Tribunal on 9 September 2019 I explained to you the documents I had in my possession.  I read to you the summary of claims contained in the delegate’s record of decision, which comprised three dot points.

    ·He left Malaysia because of political and economic issues.

    ·He applied for many jobs but failed.  His friends suggested he should travel to Australia.

    ·If he returns he will not have a job and will not be able to support himself and his family.

26. I then asked you a number of questions.  Firstly, I asked you if this was a fair and accurate summary of your claims for protection as made in your original “Form 866C”.  You said “Yes”.  I asked you if there was any information in the documents that I had before me that you needed to change.  You said “No”.  I asked you if there was anything that you would like to add to your claims for protection.  You said “No”.  I asked you if you were happy for me to proceed on the basis of the information I had before me and you said “Yes”.

27. Following the first hearing with the tribunal, I received no further written submissions from you.

    Second hearing

28. At the second hearing before the Tribunal on 3 October 2019, I once again reminded you of what had been discussed at the first hearing.  I handed you your original application form seeking protection.  I gave you an opportunity to look through this document and I asked you the same questions I had at the previous hearing.  You once again confirmed that you had nothing further to add to the claims for protection.  There was nothing you wished to change about the Form that you had before you, you also confirmed that you were content for me to proceed on the basis of the information contained in the document.  You again confirmed that the delegate had accurately summarised your claims for protection.

29. Following this, I asked you about your life in Malaysia prior to your time in Australia.  You told me that you lived in Terengganu until you left school.  You are one of [number children].  You have [number] female siblings and [number] male sibling.  You have a number of nieces and nephews.  All of your siblings live in Terengganu where your surviving mother also lives.  Your father deceased in 2008. 

30. All of your siblings are in employment.  All of them are in good health.  You speak to your sister a few times a month.

31. You indicated to me that you had moved to Johor State to study [subject] around 2002.  Following your studies you entered the workforce.  Primarily following your studies you worked for [Workplace 1], rising from a junior position to a supervisorial position.  This job ended when the company was closed in September of 2015.

32. Following that you found it difficult to find work other than daily labour.  Your experience was that the economy was very poor.  What you could earn from daily labour was insufficient and after asking around you decided not to attempt to move to another State.

33. I asked you about your current relationship status and you indicated that you were married in in June of 2004, that you are still married.  Your spouse lives in Johor with your three children.  You support your family through money that you earn here in Australia.  With your wife you have [number of children] aged [specified].

34. These family responsibilities, you suggested was your reason for not attempting to relocate within Malaysia to find work.  At some point in 2015 a friend suggested you come to Australia to find work.  You decided not to apply for a work visa because you were not sure at first whether or not you wanted to stay in Australia, so you travelled here on a tourist visa to find out more about Australia and to decide whether or not you should work here.

35. Within a week of arriving in Australia you started working on a [farm].  I asked you if you had considered applying for a work visa, you said you had not.  You understood that you had to leave the country in order to apply for a work visa and then it was very difficult to qualify for a work visa.

36. I asked you if you had thought about approaching the Department for assistance with your situation and you said “No”.  I asked you if anyone prevented you from asking the Department any questions and you said “No”.  I asked you why you had not approached the Department and you said your friend had suggested it was not worth your while.  I asked you if you had considered speaking to a travel agent about your situation and you said “No”.  I asked if anyone stopped you from approaching a travel agent and you said “No”.  I asked you if there was any reason why you did not and you said that you did not know where to find one.

37. I asked you if you considered approaching a migration agent to help you with your situation and you said “No”.  You said that no one prevented you from doing this but your friend said it was expensive.  I asked you if you considered speaking to a lawyer about your situation and you said “No”.  You agreed that no one prevented you from doing this but said that your friends had indicated that it was expensive.

38. I asked you if you had looked online to find out some information about how to assist you in your situation and you said you had done this.  After doing so and speaking to your friends you decided the only option open to you was to apply for refugee status.  You repeatedly indicated to me that you travelled to Australia to seek work.

39. I asked you why you did not apply for a work visa given this was your true intent.  You said that you were in a difficult situation and you had to provide for your family and you could not afford to maintain them appropriately on your earnings in Malaysia.

40. I asked you several times if you had personally completed your Form applying for protection.  Despite having heard your testimony I am still unclear as to the circumstances in which you completed the form.  The most likely explanation, based on your evidence, appears to be that a friend assisted you to write the answers to the Form.

41. After close questioning you agreed that you had checked the Form before you sent it to the Department for consideration.  I accept this evidence from you.  I also accept your evidence that you signed the Form.  I note in particular you had signed the statutory declaration as to accuracy and completeness at Question 100.  I also note that you failed to indicate at Question 101 as to whether or not you had received any assistance in completing the form.

42. Your conduct in respect to applying for protection raises questions about your credibility, which I put to you during the hearing.  As did your having arrived in Australia looking for work on a visitor’s visa.  You accepted that this would raise questions in the mind of a reasonable person.  Your most common response to my credibility concerns in this respect was that you had relied on advice from friends.

43. I then took you through the Form that you had checked before sending to the Department and which I had deliberately given you an opportunity to view and go through at the beginning of the second hearing in some detail.  I took you to Question 35 of the Form, which asks about your relationship status.  You noted that you had ticked the box “Never married”.  You acknowledged that this was wrong and I asked you why.  You suggested that your friend had made a mistake.

44. We looked at your answer to Question 42 about your family members in Australia and overseas.  I noted that the only person listed in that answer to the form was your wife who was listed as a sister.  You accepted that this response was wrong in many respects.  You again suggested that this was a mistake made by your friend.

45. I pointed out that your answers to this question and Question 35, raised significant issues about your credibility ,as it was a material misstatement of your actual relationship status.

46. We also looked at your answer to Question 45, which was that you had no personal contacts in Australia, you accepted that this was also wrong.  You suggested that you were told to answer this question in that way by your friend with whom you were living and who assisted you in completing the Form.

47. We also looked at your travel history question, Question 80, which was not answered at all.  You once again suggested that your friend had suggested this was appropriate.  We also looked at your residential history at Question 81.  You agreed that it was incomplete and incorrect.  Again, you suggested your friend had not suggested to you that this was important.

48. Question 82 of the form asks if you were working.  I asked you why you had ticked “No” in response to this question.  You gave me no response and I pointed out to you that raised questions about your credibility, given that it was inconsistent with other sworn statements you had made to me that you had been working in Australia when you filled out the form.

49. After this discussion, we considered Question 84 where you had listed your employment history very partially.  When I asked you why this was not completed correctly, you were unable to give me any response.  I pointed out that this conduct on your part raised important questions about your fundamental credibility and honesty as an applicant for protection.

50. I pointed out to you that you were content to read a Form prior to submission, sign it as a statutory declaration, and submit it to the Australian Government for consideration as a refugee or protected person knowing it to be incomplete and misrepresenting your personal circumstances.  Further, after being refused protection by the Australian Government you then submitted the same material to this Tribunal for reconsideration.

51. In addition, after being sworn in by the Tribunal at the first hearing and being given an open opportunity to change the information contained in that document, you declined the opportunity to correct the information.

52. At the second hearing, despite having been handed the document by me and given an opportunity to refer directly to it and then being asked exactly the same questions under oath you again indicated there was nothing that needed to be changed.  Even then, it was only after subsequent close questioning by me that you acknowledged the incompleteness and incorrectness of the information you provided to the Department in the first instance.

53. I put it to you that a reasonable person might think that such repeated misstatements of material information in an application for protection to the Australian Government would reflect poorly on your credibility.  I discussed with you the requirements under ss.99-105 of the Act, and s.5AAA and s.423A of the Act.  I invited you to respond to the adverse inference created by your repeated conduct.  You made no response.

1. At this point I asked you what it was that you actually feared in returning to Malaysia.  You indicated that you were afraid that you cannot find work and that this is bad for you and your family.  I asked why it was safe for your wife and children to remain in Malaysia but not safe for you.  You indicated that it was important to sacrifice for your family.

2. I pointed out to you the limitations of a protection visa application as opposed to permanent residence or a work visa arrangement.  In response you said that you were grateful to the Australian Government and thankful for the last three years’ opportunity to work here and that has allowed for a better life for your family.

3. I accept that you came to Australia seeking work and a better life for your family.  I find that this was the real reason for you coming to Australia and that at no time have you come to Australia genuinely seeking protection. 

4. Seeking economic benefits in another country in and of themselves do not give rise to a cognisable well-founded fear of harm for the purposes of the refugee criteria.  Nor does it give rise to a reasonable apprehension of harm under the complimentary protection assessments and given the evidence before me in the present circumstances I so find.

5. I am particularly mindful that, in addition to your incorrect and partial claims made to the Department, you were content to repeat them when applying to this Tribunal for review of the delegate’s original decision on your application and to repeatedly assert before the tribunal under oath that your application was true and correct in every respect.

6. As I indicated to you at the hearing, it reflects poorly on your credit that you knowingly submitted a document, the contents of which you knew or ought to have known, to be materially incorrect to both the tribunal and the Department.  This is not only contrary to law, but contrary to the expectations of the Australian public.

   Findings

7. I have carefully considered the claims contained within your original application for protection and your subsequent application to the Tribunal.  As I have expressed to you, I have considerable doubts about the credibility of your evidence and your personal particulars and while I accept your real reason for coming to Australia was to find work, I find that your inconsistent sworn statements about your personal circumstances made to the Department and to the Tribunal together with your disregard for Australian law by working in Australia without a work permit without reasonable explanation means that I find your application to be unsatisfactory.

8. Given the unsatisfactory aspects of your evidence, which I have gone through in some detail in this decision, I find that you have no credible basis to claim protection in Australia.  I note that generalised concerns about economic and political disadvantage in and of themselves are not recognised grounds to support a well-founded fear of persecution for the purposes of a protection visa in Australia under either the refugee criterion or the alternative complimentary protection criteria in the absence of other considerations.

9. In particular I note that at no time have you identified a single agent of harm in Malaysia.  I find you have not been harassed or victimised by anyone in Malaysia for any reason or at any time.  On that basis I find you would not face any chance of serious harm if returned from Australia to Malaysia for any reason.

10. On the evidence I find there is no real chance that you would be seriously harmed by any person for any reason now or in the reasonably foreseeable future.  The real risk test imposes the same standard as a real chance test.  Noting the findings I have already detailed relating to the credibility of your claims and the content of your remaining claims it follows I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of you being removed from Australia to Malaysia that there is a real risk that you would suffer significant harm as defined in the Act now or in the reasonably foreseeable future from any person for any reason.

11. Taking your claims at their highest first individually and then cumulatively, they remain unsatisfactory and inconsistent and lacking in appropriate corroboration.

    Summary

12. For the foregoing reasons I am not satisfied that you are a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act. 

13. Having concluded that you do not meet the refugee criterion I have considered the alternative criterion and I am not satisfied that you are a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

14. As at the date of this decision there is no suggestion that you are a member of the same family as a person who meets either of these criterion.  Accordingly, the criterion at section 36(3) of the Act is not met.

    Decision

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

    END OF ORAL DECISION  [4.10 pm]