1703107 (Refugee)

[2019] AATA 6930

1703107 (Refugee) [2019] AATA 6930 (24 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703107

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         24 October 2019 at 11:32 am (WA time)

DATE OF WRITTEN RECORD:                22 February 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 22 February 2021 at 9:27am

CATCHWORDS

REFUGEE – protection visa – Malaysia – work in Australia without work rights – incorrect answers in visa application – economic migrant – no credible basis to claim protection – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5AAA, 36, 65, 104, 423A, 499

Migration Regulations 1994, 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 7 February 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 24 October 2019 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. Attached to this decision record is a corrected transcript of the oral reasons for decision delivered to the applicant at the time of their delivery in person.

   DECISION

4. The Tribunal affirms the decision under review.

   Dr Colin Huntly
   Member

   
   

   Corrected Transcript

   Oral Decision of Member Huntly  [11.05 am]

   INTRODUCTION

5. The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994. To qualify for the visa, an applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria, or on complementary protection grounds.

6. Where relevant, the Tribunal has taken into account the policy guidelines prepared by the Department relating to refugee law and complementary protection, together with any country information assessment prepared by DFAT, as is required by Ministerial Direction No.84.

7. Before looking at my findings, I note that on questions of credit I need to give the benefit of the doubt, but that 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. 

8. 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, which would proceed on the assumption that such a fear is objectively held by an applicant in the context of refugee protection.

9. If the 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.  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 claims not to be credible. 

10. In this respect, I have had regard to Migration and Refugee Division guidelines on the assessment of credibility, issued in July 2015, which provides:[1]

    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 claims themselves.

    [1] At [8].

11. I also note:[2]

    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 their claim was not raised, or the evidence was not presented before the primary decision was made, the Tribunal must rule an inference unfavourable to the credibility of the claim or evidence.  This refers to the requirements of section 4.3.2A of the act.

    [2] At [13].

12. Further:[3]

    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 critical issues on which his or her application may depend. 

    An applicant may be favourably fronted with matters that would be 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.

    [3]         At [17]-[19].

13. With respect to contradictions, inconsistencies and omissions:[4]

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

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

    [4]         At [27]-[28].

    NEW CLAIMS AND EVIDENCE

14. 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 specify 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. 

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

16. 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

17. According to the applicant’s movement record, he arrived in Australia [in] July 2016, travelling on [a] visitor’s visa.  The applicant thereafter applied for protection on 20 September 2016. 

18. The applicant seeks review of the decision of the delegate for the Minister for Immigration, dated 7 February 2017.  That decision found that the applicant should not be granted a Protection visa.

19. The applicant appeared before the Tribunal on two occasions.  Firstly, on 5 September 2019 and at a second hearing on 24 October 2019 to give evidence and present arguments. 

20. The applicant was not represented in this application by a registered migration agent, and the Tribunal was assisted in this review by the services of an interpreter who was fluent in both the Malay and English languages. 

    IDENTITY

21. 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 complementary protection assessments.

    COUNTRY INFORMATION

22. In addition to the country information referred to in the delegate’s decision record (such as it is) a copy of which was provided to the Tribunal by the applicant, the Tribunal has had regard to the most recent DFAT Country Information, Malaysia, dated 19 April 2018.  In particular, the discussion in this publication relating to the treatment of returnees. 

23. I note that this publication provides as follows:[5]

    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.

    [5]         At [5.22].

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 first hearing with you on 5 September 2019, I explained what documents I had in my possession.  I read to you the summary of claims contained in the delegate’s record of decision, which you had provided to the Tribunal.  This comprises three item points at p.2 of the decision:

    ·     The applicant 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 to Malaysia, 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 I had before me that you needed to change.  You said ‘No’.  I asked if there was anything 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’.  Following the first hearing with the Tribunal, I received no further written submissions from you.

    Second Hearing

27. At the second hearing before the Tribunal on 24 October 2019, I once again reminded you of what we had discussed at the first hearing.  I then went through the documents I had before me and asked you the same questions.  You again confirmed that the three item points above comprised a fair and accurate summary of your claims for protection.  You once again indicated there was nothing to change in the documents; nothing you wished to add to your claims for protection; and, you confirmed that you were happy for me to proceed on the basis of the information I had before me.

28. Following this, I asked you some questions about your life in Malaysia before coming to Australia.  You told me that you lived in Malaysia, in the town of [Town 1], near Kuala Lumpur.  You are one of three children.  Your father deceased in 1998, your mother is [retired].  She keeps reasonably good health, but does have high blood pressure and diabetes.  Living with her in Malaysia in the town of [Town 1], is your [age] year old sister and your [age] year old sister.  Your older sister has a job, your younger sister is currently unemployed.  They are both in good health.  Your own relationship status is single, having never been married.

29. You indicated that, after secondary school you completed [a study].  Following that, you had a range of mainly part-time jobs in Malaysia, before coming to Australia.  In all, this was a period of between seven and eight years. 

30. Prior to coming to Australia, you had travelled to [Country 1] on two occasions; [Country 2] on one occasion; and, [Country 3] on one occasion.  On each occasion, you returned again to Malaysia. 

31. I asked you about your decision to come to Australia.  You said that you had lost a job that you had had for a little while before you made the decision, and at that time, you were unemployed.  During this period of unemployment, a person whom you described as a friend suggested you come to Australia to work.

32. In the course of the hearing, you indicated that this friend told you that a permanent work permit for Australia is difficult, and that the quota was generally full.  However, they said that you could still work in Australia on a Tourist visa, even though Tourist visas do not come with work rights.  You expected to have a job when you arrived; you were told that a job would be waiting for you.  When you arrived it was not exactly as you anticipated.  You stayed in a backpackers’ hostel and obtained work on a market-garden, picking strawberries and vegetables.  This job commenced approximately two weeks after you arrived in Australia.

33. I asked you why you chose to work in Australia without work rights.  You said that you needed to work because you had no money.  I indicated to you that it would reflect poorly on your credit if you had come to Australia to work on a Tourist visa without work rights, engaging in work almost as soon as you had arrived.  You indicated that you couldn’t go home, because you had run out of money and had no job to return to, that in Malaysia you were worried and disheartened, and you had no hope of bettering yourself in that country.  That’s why you had come to Australia.  I asked you if, at that time, you had considered approaching a travel agent; a migration agent; lawyer; an authority such as the police or the Department; or looked online for some assistance.  In each case, you said you had not.

34. I asked you if anyone had stopped you from seeking information from any of those sources, you said ‘No’.  Instead, you determined to breach your visa conditions and engage in employment without a work permit.  After some time talking to a friend, approximately two months later, you looked online and discovered that a bridging visa was available with Protection.  A visa application would give you the lawful ability to work in Australia.  We then looked at your application for protection.  You acknowledged that Question 42, relating to disclosure of your family circumstances in Malaysia was not correctly completed, as your sisters were not listed.

35. You indicated that you had forgotten to complete this question correctly.  You accepted that it was not correct.  We looked at your answers to Question 80, relating to your overseas travel history, in which you had not answered the question, despite the fact that you had earlier told the Tribunal under oath that you had travelled to [Country 1] on two occasions, and [Country 2] and [Country 3], each on one occasion.  I asked you why this was incorrect, and you said you must have skipped it there, you’re not sure. 

36. Question 81 lists no residential addresses for Malaysia before arriving in Australia.  You accepted that this was not correct.  You indicated that you probably believed that only your Australian addresses were required.  I pointed out to you that this was not what the question asked for.  Question 82 asks whether you are employed and you indicated you were not.  You accepted that this was not correct at the time you filled out the form.  You are not sure why you answered that question incorrectly.

37. Similarly, Question 84 asks further information about your employment history, in which place you indicated that, while in Australia you were not employed.  You indicated that you were confused about this.  I pointed out to you that your repeated answers about your employment status in the form in three different places in Questions 82 and 84.

38. We discussed Question 100 and I pointed out that your repeated incorrect answers about your employment history had the appearance of dishonesty.  I invited you to comment on that observation.  You said that you misunderstood the Form.  I asked you if you would like to address my observation that this appeared to be dishonest conduct.  You made no comment.  I then asked you why you were unable to return to Malaysia.  You said that you wanted to work, that you want to stay here in Australia and have a better life.  You indicated that you can’t return to Malaysia at the moment, because the economy is too poor. 

39. We looked at your answers to Questions 99 and 100.  You accepted that your answer to Question 100, in the form of a statutory declaration, was not correct.  I pointed out to you that it reflected poorly on your credit of character that you would sign a document in the form of a statutory declaration knowing, or not taking appropriate care to ensure, that it was incorrect.  In the course of that discussion, you acknowledged that you had actually received assistance in completing the Form, that you did not fill much of it in yourself, beyond signing it.  That you paid your friend $300 to complete it for you.  This is not reflected in your answer to Question 101 which asks if you received any assistance in completing the Form.

40. I pointed out to you that it reflected poorly on your character that you would submit an application for a visa to the Australian government without taking appropriate care, and paying attention to the correctness of that document before lodging it with the Australian government; and then to appeal against the decision based on the same incorrect information to the Tribunal; and despite this, even after being given two opportunities by the Tribunal to correct the document, to not correct it.  You did not respond to these comments. 

41. I asked you why you came to Australia.  You said you came to work.  I asked you why you do not want to return to Malaysia.  Firstly, you said you had nothing further to add, beyond what you had already said.  After indicating that I was able to adjourn to consider my decision, you then said you were sorry for everything, and that you were desperate to stay in Australia for the survival of your family. 

42. You indicated that you believed that politically Malaysia is not stable at present; job opportunities are very poor; economically the country has worsened since you left.  You have nothing.  I invited you to make any written submissions, or point the Tribunal to specific documents.  At that point, you indicated you had nothing with you that you wished to submit, but insisted that you have read that things are not good in Malaysia.

43. I accept that you came to Australia seeking to work in this country; for a better life for yourself and your family.  I find that this was in fact the real reason for you coming to Australia, and that at no time had you come to Australia genuinely seeking protection.  Seeking economic benefit in another country, in and of itself, does 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 under the complementary protection assessments.  Given the evidence before me that you have presented in the present circumstances, I so find.

44. I am particularly mindful that in addition to your incorrect, partial claims made to the Department, you have attempted to repeat them when you applied to this Tribunal for a review of the delegate’s original decision on your application, and repeatedly asserted before the Tribunal – under oath – that your application was true and correct in every respect. 

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

    FINDINGS

1. I have carefully considered the claims contained in 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.  I accept that 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 the Tribunal, together with your disregard for Australian law by working in Australia without a work permit, without having a reasonable explanation means that your application is lacking in credibility in every material respect.  Accordingly, I find that you have no credible basis to claim protection in Australia.

2. I note that generalised concerns about economic, political disadvantage in and of themselves are not recognised grounds to support a well-founded fear of persecution for the purposes of the protection visa in Australia, under either the refugee criteria, or the alternative complementary protection criteria in the absence of other considerations.  In particular, I note that at no time have you identified a single agent of harm in Malaysia.  I find that 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 from any person for any reason, now or in the reasonably foreseeable future in that country for the purposes of s.36(2)(a) of the Act. 

3. The real risk test imposes the same standard as the real chance test.  Noting the findings that I have already detailed relating to the credibility of your claims and the content of your remaining claims, it follows that 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 you would suffer significant harm for the purposes of s.36(2)(aa) of the Act, now or in the reasonably foreseeable future, from any person or for any reason. Taking your claims at their highest, first individually and then cumulatively, they remain unsatisfactory and inconsistent, and lacking in appropriate corroboration.

   SUMMARY

4. For the foregoing reasons, I am not satisfied that you are a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act (‘the refugee criterion’). 

5. Having concluded that you do not meet the refugee criterion, I have considered the alternative criteria and I am not satisfied that you are a person in respect of whom Australia has protection obligations by virtue of s.36(2)(aa) of the Act (‘the complementary criteria’). 

6. There is no suggestion that you are a member of the same family unit as a person who meets either of those criteria.  Accordingly, the criteria in s.36(2) of the Act are not met.

   DECISION

7. The Tribunal affirms the decision under review.

   End of Oral Decision  [11.32 am]