1704079 (Refugee)

[2019] AATA 1980

1704079 (Refugee) [2019] AATA 1980 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704079

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Geraldine Hoeben

DATE AND TIME OF

ORAL DECISION AND REASONS:          22 January 2019 at 1:45 pm (NSW time)

DATE OF WRITTEN RECORD:                6/02/2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 06 February 2019 at 1:51pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – member of same family unit – debt owed to loan shark – business debt owing – bankruptcy proceedings in Malaysia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J, 5K-LA, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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 6 March 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 22 January 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.

3. The applicant, who is a citizen of Malaysia arrived in Australia on a 3 month [temporary] visa [in] October 2016, applied for the visa on 30 December 2016. The delegate refused to grant the visa on the basis that she did not satisfy the criteria for a protection visa.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.   Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

8. 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

   9.  In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Consideration of Claims and Evidence

   10. The issue in this case is that the applicant has got herself into debt through her business interests in Malaysia. She claims it is a loan shark to whom she owes money. However, her migration agent and authorised recipient (MA) has made new submissions which would appear to indicate that she has genuine business debt owed to another party, not identified in English, as well as a bank account in arrears, no documents appropriately translated by an accredited interpreter or JP certified.  She claims she has no way of repaying the debts and is depressed. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   11. The applicant believes that because she has incurred business debts and is depressed that she will require protection if she is returns to her home country. She has made no allegation that she has ever been threatened or harmed in relation to this situation.

   12. Her MA has submitted a number of uncertified sheets of paper prior to the hearing, not translated by a certified interpreter and made a further submission on 17 December 2017 when the MA submitted other sheets of paper where it appears a firm of Malaysian solicitors have issued a letter of demand to the applicant and a [medical professional] who states the applicant suffers from depression. The full amount owed is not known because the sheets of paper, some of which appear to be part of bank records with numbers on them, have not been translated either by a certified interpreter or otherwise. One of the sheets appears to indicate that the applicant has been declared bankrupt through court proceedings following unpaid amounts of money which her business had incurred over time. The various documents identify a business entity with multiple addresses and with more than one registration number. Despite asking the applicant several times to explain these inconsistencies she could offer no explanation except to say that her life would totally unravel if she returned to Malaysia. Included in these replies was information regarding a broken marriage in which she had two children and who are still in Malaysia.

   13. As mentioned above there is an uncertified copy of a Malaysian court document dated [in] 4/18 which refers to the issuing of bankruptcy proceedings against the applicant. Even though this document is only a copy and has not been JP certified the Tribunal accepts that it is probably genuine.

   14. The Tribunal asked the applicant what her legitimate debts had to do with her protection visa application and she replied that if she returned to Malaysia she would be under great stress and anxiety as well as having to face a former toxic relationship with her former husband. She also stated that she was still paying the loan shark a certain amount on a weekly basis but could not identify this Chinese person or otherwise produce any information which would support her assertion that there was any loan shark at all. The Tribunal asked if she had been harmed in any way by the loan shark or anyone else or entity because of her debts and she replied no as she was paying some money back regularly at least to the loan shark.

   15. The Tribunal asked why she had not disclosed to the department her legitimate business debts and only made mention of the loan shark and she replied she did not think it was important at the time.

   16. The Tribunal then referred the applicant to the hearing invitation dated 8 November 2018 in which it was stated in italics and bold print:

   After the hearing the member may hand down an oral decision. Consequently, it is important that all information/submissions/documents, are appropriately translated by an accredited interpreter and certified by a JP or notary, and submitted a full 7 days before the hearing date.

   17. The Tribunal asked what she understood by this notification and she replied she did not give it much thought when she read it. The Tribunal replied that this appeared to be a cavalier approach by a person seeking protection in Australia given the claimed potential for harm to her if returned to Malaysia. There was a pause, a smile but nothing more was added.

   18. The Tribunal then asked about her 2 children and she replied that they were being looked after by family in Malaysia. She replied that she believes they will be alright in Malaysia.

   19. The applicant continued that she no longer has a husband because the relationship had broken down. The Tribunal asked if she could produce any documents to prove that the relationship was no longer on foot such as a certificate of divorce or annulment but she replied had nothing on her at the time. The Tribunal then referred the applicant to the date of the departmental decision dated 6 March 2016, over 2 years ago, as well as the Tribunal hearing invitation in November 2018 which would have given her considerable time in properly preparing her case and getting all the relevant documents to support her claim for protection – however, she only smiled and did not add anything else.

   20. The Tribunal raised with the applicant its concerns with the sudden appearance of what appeared to be genuine business debts before the Tribunal but did not mention this to the department. She said nothing. The Tribunal continued that it was concerned that she could not produce any information to support her claim that she was being harmed or persecuted in her homeland despite over 2 years available to prepare her case. Given these factors the Tribunal put directly to the applicant that it had significant concerns about the truthfulness of her claims. She replied they were true.

   21. The Tribunal then referred to the sheets of paper she brought to the Tribunal today relating, amongst other things, to her mental state and she replied that they were to prove that she was in a depressed/anxiety state of mind as well as being distressed because of her failed marriage and the her debts in Malaysia and that returning to Malaysia would only aggravate the situation.

   22. In light of the above absence and non-compliance with the Tribunal’s request for accredited translation and authorised certification of original documents, it does not accept that all of the submitted Malaysian documents are genuine. However, despite this it is clear that the applicant has incurred substantial business debts in Malaysia and that it is highly likely the solicitors’ letters of demand and court documents the latter declaring her bankrupt, are probably bankrupt.

   23. The applicant has not been able to produce any supporting or independent information as to the existence of any loan shark. She, by her own admission, has not experienced any threats or harm regarding her debts except receipt of solicitors’ letters of demand and the commencement of Malaysian court proceedings to declare her bankrupt. In answer to the question how did she expect that seeking protection in Australia had anything to do with debts she had genuinely incurred as a business entity in Malaysia – would be any different in Australia. She gave no answer.

   24. As to the existence of the claimed Chinese loan shark the applicant has not produced any supporting information of any shape or form to prove his identity or, indeed, existence at all. Her claim at the hearing that she had made a complaint to the police about the loan shark is equally not supported by any independent, corroborative information such as a complaint form. Her replies to the Tribunal’s queries as to the production of any police document proving that this ever happened was met with another smile and a reply that she could not now find them.

   25. The Tribunal finds, that based on the non-existence of any objective, independent or corroborative information, properly certified or government documents or otherwise, that the assertions made by the applicant are not genuine and are a complete fabrication.

   26. The applicant has had well over 2 years to prepare her case and obtain any necessary supporting documents or information to prove the substance of her claim for protection. . She has ignored the Tribunal’s common-sense notification as to having all submitted documents JP certified and properly translated by an accredited interpreter. Her indifference and casual response to responding seriously to either the preparation of her case and the notification in the Tribunal’s hearing invitation is not reflective of a genuine fear of harm if she is returned to her homeland.

   27. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

   28. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality or membership of a particular social group.  Section 5AAA of the Act makes clear that that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

   29. It is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

   30. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

   32. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

   CONCLUDING PARAGRAPHS

   33. 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).

   34. 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).

   35. 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

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

   Geraldine Hoeben
   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.

   …