1704007 (Refugee)

[2017] AATA 2371

1704007 (Refugee) [2017] AATA 2371 (28 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704007

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Linda Symons

DATE:28 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 July 2017 at 1:37pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Social group – Guarantor for a loan – Fear of illegal money lenders – Credibility Issues

LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 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.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, arrived in Australia [in] September 2016 as the holder of a [temporary] visa that was valid until  [December] 2016. [In] November 2016, she was granted a Bridging visa which was subsequently cancelled. [In] January 2017, she was granted a further Bridging visa in association with her application for a Protection visa.  

3. The applicant applied to the Department of Immigration and Border Protection (the Department) for a Protection visa [in] January 2017. The delegate refused to grant the visa on the basis that she is not a person in respect of whom Australia has protection obligations. On 7 March 2017, she applied to the Tribunal for review of that decision.

4. The applicant appeared before the Tribunal on 2 June 2017 to give evidence and present arguments. She was assisted by an interpreter in the Malay and English languages. 

5. The issues that arise on review are whether the applicant is owed Australia's protection under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.  

10. 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

11. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

12. In her application for a Protection visa the applicant claimed that a friend of hers borrowed money from an illegal money lender. She claimed that her friend asked her to be a guarantor on the loan and she gave him her ID card and signed a document. She claimed that her friend ran away a few months later and the illegal money lenders started looking for her. She claimed that they went to her house and threatened to kill her and her family if she did not repay the loan. She claimed that they also threatened to sell her to a pimp. She claimed that she resigned from her job in August 2016 and decided to come to Australia to seek protection. She claimed that the authorities will not help her as it involves illegal money lending. She claimed that she cannot move safely to another part of Malaysia as the illegal money lenders would be able to track her and her family. She claimed that she fears that if she returns to Malaysia the illegal money lenders will kill her and her family and sell her to a pimp.

13. The applicant has provided to the Department and the Tribunal a copy of her Malaysian passport. She has also lodged with the Tribunal a copy of the Department’s Decision Record dated [in] March 2017.

    Nationality

14. The Tribunal finds that the applicant is a citizen of Malaysia based on her Malaysian passport and her evidence and will assess her claims on this basis. The Tribunal finds that the applicant is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than her country of nationality.

    Does Australia have protection obligations to the applicant under the refugee criterion?

15. The applicant gave evidence to the Tribunal that she filled out her application for a Protection visa. She stated that she is satisfied that the information in her visa application is true and correct and that her visa application is accurate and complete.

16. During the hearing, the Tribunal discussed with the applicant her background, her family, her employment, where she lived in Malaysia, her reasons for leaving Malaysia and why she fears returning to Malaysia. The Tribunal found aspects of her evidence to be implausible, inconsistent and unconvincing. She made several new claims during the hearing. The Tribunal formed the view that she was fabricating her evidence as she was giving it. The Tribunal is of the view that she is not a credible or reliable witness for the following reasons.

17. First, the applicant’s evidence is that she completed[schooling], undertook tertiary studies thereafter and has a[degree]. Her last job in Malaysia was at [Workplace 1] where she worked for 2 ½ years initially as [Occupation 1] and then as [Occupation 2]. Prior to that she worked at [Workplace 2] as  [an Occupation 1]. In her visa application, she indicates that she also worked at a [company] [as][Occupation 1] . She gave evidence during the hearing that her friend asked her to be a guarantor for his loan to purchase [an item]. She stated that in April 2016 he gave her the last page of the loan application and asked her to sign it. She stated that she signed it and did not see the rest of the pages of the loan application. She stated that she gave him her payslips and ID card. She stated that she understood at that time what it meant to be a guarantor.  

18. The Tribunal finds it implausible that the applicant, as someone who worked [in the financial sector] as [Occupation 2] and understood the responsibilities of being a guarantor, would have signed the last page of a loan agreement without looking at the rest of the loan agreement. The Tribunal also finds it implausible that, if she was only presented with the last page of the loan agreement and not the rest of the document, this did not raise concerns for her and lead to her requesting to see the rest of the document. When the Tribunal raised this as an issue with her, she responded that she trusted him and it was her mistake.

19. Second, the applicant gave evidence that a week or so later she tried to contact her friend but was unable to do so. She stated that he had changed his telephone number. She stated that she went to his house but could not find him. However, she later gave evidence that she first realised there was a problem when the illegal money lenders went to her home at the end of June 2016 looking for her friend. She stated that she told them that he did not live there. She stated that they told her he owed them a lot of money and they wanted her to repay the money as she was his guarantor. The Tribunal finds it implausible that if she was unable to contact her friend since April 2016, after she had signed the loan agreement, and he had changed his telephone number and she was unable to find him at his home, this did not raise alarm bells and make her realise that there was a problem.

20. Third, the applicant initially gave evidence that she had no further contact with the illegal money lenders after they went to her home at the end of June 2017. However, she later claimed that they went to her office on a few occasions between July and August 2016 looking for her. She stated that they looked like gangsters and the people at her office were concerned. She stated that the[employees] at [Workplace 1](her office) did not let them in. She stated that they spoke to her twice at the office and demanded that she repay the loan. She did not explain how they were able to get past the [employees] on those two occasions. In her visa application, which she stated was accurate and complete, she made no claims in relation to the illegal money lenders going to her office. These inconsistencies in her evidence raise further concerns about her credibility and the veracity of her claims.

21. Fourth, when asked why she did not move to another address and leave her job, the applicant stated she did not want to leave her job, spend time looking for another job and she had no family members elsewhere. When the Tribunal pointed out that she was not living with her mother anyway, she responded that she did not want the illegal money lenders to harm her mother or to get her mother involved. She then stated that her mother’s address was on her ID card. When asked how the illegal money lenders were able to find out where she lived if her mother’s address was on her ID card, she responded that she gave her address to her friend. 

22. The Tribunal finds it implausible that, in circumstances where the applicant claims that the illegal money lenders went to her home and to her place of work and threatened to kill her or sell her to a pimp, she would not leave her job for her safety because she did not want to have to look for another job. Further, her evidence is that she moved out of her mother’s home after she completed [school] and has been living with friends since then. Since moving out of her mother’s home  [she] has been living independently, working and travelling overseas to countries like [Country 1] for work and [Country 2] twice and [Country 3] once for holidays. In these circumstances, particularly when she has not lived in her mother’s home since 2008, the Tribunal finds it implausible that she has her mother’s address on her ID card.

23. Fifth, the applicant’s evidence is that the illegal money lenders threatened to kill her and her family. She gave evidence that she did not want them to harm her mother. She also gave evidence that her mother’s address was on the ID card she provided so they would have been aware of her mother’s address. However, her evidence is that she never went to the Police to seek their protection. She stated that she was scared the illegal money lenders would do something if she went to the authorities. The Tribunal does not accept this explanation. She claims that she left Malaysia because she feared harm yet she left her mother behind in Malaysia knowing that the illegal money lenders were aware of her mother’s address and could locate and harm her mother if they wished to do so. This is not consistent with her claims and raises further concerns about her credibility and the veracity of her claims.  

24. Sixth, the Tribunal asked the applicant whether she had considered relocating to somewhere else in Malaysia where it would have been safer for her. She responded that she did relocate to another address but the illegal money lenders found her. She stated that she did not know how they were able to locate her. When asked why she had not mentioned this in her visa application, she responded “didn’t I?” Her failure to mention this in her visa application, which she stated was accurate and complete, raises further concerns about her credibility and the veracity of her claims.

25. The Tribunal has had regard to the Tribunal's Guidelines on the Assessment of Credibility when assessing the applicant's credibility. The Tribunal has also had regard to the DFAT Country Information Report on Malaysia and the Department's Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

26. Having considered all the applicant's claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that she fabricated her material claims for the purpose of obtaining a Protection visa.

27. The Tribunal accepts that the applicant was born [in date] at Kuala Lumpur in Malaysia. The Tribunal accepts that her mother, uncles and aunts live in Malaysia. The Tribunal accepts that she completed [schooling]. The Tribunal accepts that she thereafter undertook tertiary studies and has a [degree] in [an area]. The Tribunal accepts that she has worked in Malaysia and that her last job in Malaysia was at [Workplace 1] where she worked for 2 ½ years initially as [an Occupation 1] and then as [Occcupation 2]. The Tribunal accepts that she moved out of her mother’s home after she completed High School in 2008 and has lived with friends since then. The Tribunal accepts that she has travelled to [Country 1] for work and to [Country 2] twice and [Country 3] once for holidays.    

28. The Tribunal does not accept that the applicant was a guarantor for a loan obtained by a friend. It follows that the Tribunal does not accept any of her claims that flow from that.

29. The Tribunal does not accept that the applicant left Malaysia for any of the reasons claimed or that she fears returning to Malaysia for any of the reasons claimed. The Tribunal is not satisfied that there is a real chance that she will suffer serious harm for any of the reasons claimed if she returns to Malaysia now or in the reasonably foreseeable future.

30. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that she will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if she returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary       protection criterion?

31. The Tribunal has considered the applicant's claims under complementary protection. In view of the above findings, the Tribunal is not satisfied that there is a real risk that she will suffer significant harm for any of the reasons claimed if she returns to Malaysia now or in the reasonably foreseeable future.

32. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Malaysia now or in the reasonably foreseeable future.

33. Accordingly, the Tribunal is not satisfied that 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 she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

    CONCLUSION

34. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

35. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

36. The Tribunal affirms the decision not to grant the applicant a Protection visa.

Linda Symons

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.

…