1704338 (Refugee)

[2017] AATA 3143

1704338 (Refugee) [2017] AATA 3143 (23 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704338

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Luke Hardy

DATE:23 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 23 June 2017 at 12:30pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Fear of harm from Loan sharks – Wife took out a loan – Credibility issues – Oral evidence contradicts written claims – Planned visit to Australia for sightseeing – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 65, 499
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.

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 on 6 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, [the applicant], is an ethnic Malay Muslim citizen of Malaysia. He entered Australia on 19 October 2016 on a three-month (ETA) visitor visa. He applied for the protection visa on 16 December 2016.

3. The Minister’s delegate refused to grant the visa on 6 March 2017. [The applicant] subsequently sought review of the delegate’s decision.

4. [The applicant] appeared unrepresented before the Tribunal on 13 June 2017. The hearing was assisted by an interpreter in the Malay-English medium.

   Criteria for a protection visa

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

    The issues

11. The issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.  

12. For the following reasons, I have concluded that [the applicant] is not a reliable witness in the present matter and that the decision under review should be affirmed.

    Claims to the Immigration Department

13. In his protection visa application form, [the applicant] claimed to have been a married [person] from Perak. He claimed he left Malaysia because he was “hounded by loan sharks” and said that if he returned there they would hunt and threaten him. He claimed the loan sharks had sent gangsters to threaten him because he had stopped repaying a loan. He said he did not report the threats to the police lest the loan sharks and the gangsters take revenge. He claimed he did not try to relocate to another part of Malaysia because the loan sharks and/or their associates would hunt him down and kill him. He said the state cannot protect people from loan sharks as the latter “will act beyond our expectations”.

14. [The applicant] clearly said in his protection visa application form that the loan was “money that I borrowed.”

15. The claims in [the applicant]’s protection visa application were entirely unsupported.

    Evidence to the Tribunal

16. [The applicant] gave vague oral evidence in support of his claims about the loan shark and gangsters, some of it inconsistent with claims he clearly made in his protection visa application form.  He also gave evidence about actions he undertook before and after arrival that, considered cumulatively, is not consistent with his claimed fear of persecution.

17. [The applicant] told me that the loan shark loan referred to in his protection visa application was lent to his wife in April 2016, rather than to him, and without his knowledge. He said he eventually this found out, in September 2016, directly from loan shark himself. He claimed to me that his wife borrowed the money while she was having an affair with another man. He claimed that his wife ran away with their child, leaving him, in October 2016, which was the month he came to Australia: he came here on the 18^th.

18. However, [the applicant]’s evidence was confused and contradictory, because he also said at the hearing that he only found out about the loan after his wife had left him. This means he could not have found out about it in September as claimed. It was very difficult to ascertain a consistent chronology of events in this matter, as [the applicant] said that he had been having marital difficulties for some time and that he and his wife had decided earlier in 2016 to travel together to Australia for sightseeing. According to his oral evidence, he was preparing to come to Australia even before he found out about the loan, and certainly before becoming burdened by the problem of repayments.

19. [The applicant] adhered to the claim about having found out about the loan in September 2016. He went on to tell me that even after hearing that his wife had put them in this difficult position, he still planned to visit Australia with her for sightseeing because he had already bought the air tickets. The plan at that time was for their child to be minded by his parents. He indicated that his wife then left him for another man in October 2016. He told me he has no idea where his wife and child are living.

20. All of this information was difficult to gather as [the applicant] frequently changed his evidence in a number of details. At one point in his oral evidence, when he had been talking about how he took over the repayment of the loan after his wife left, he asked if he could change his statement.

21. [The applicant] said that the loan shark had known him and his wife for some time. He said, implausibly, that this lender, whilst dealing with the now-estranged wife, imagined he was actually lending the money to [the applicant]. I questioned how this could be possible and he said his wife somehow took his ID card and presented it to the loan shark in the course of securing the loan. He went on to say that his wife had borrowed from this loan shark before and repaid all the money herself, causing the loan shark to trust her.

22. [The applicant] told me that he was still planning to come to Australia for sightseeing with his wife in early October 2016, even after finding out that she had borrowed money from the loan shark without permission and after finding out that the loan shark was putting pressure on him to repay the money. He said he decided to come here alone only after his wife left him for the other man. He said that right up to October, even after the loan shark problem came to light, his intention was to come to Australia for sightseeing.

23. Somewhat oddly in the claimed circumstances, [the applicant] maintained that he originally came to Australia for sightseeing and to find peace of mind. He said he arrived via [Australian city 1] and when I asked him what he did while he was in [Australian city 1], he said he went sightseeing here for two days before moving to [Australian city 2]. I asked him why he moved away from [Australian city 1] so soon to [Australian city 2] and he said he just wanted to go elsewhere, adding that [Australian city 2] has [natural sites]. He said he went to [Australian city 2] for sightseeing and to meet an old friend from Malaysia  who lived there. However, he was unable to tell me anything much about the friend who he described as being very secretive. He said he did not know if the friend was working in [Australian city 2] or not. He later gave me inconsistent evidence as to whether this friend had anything to do with his applying for a protection visa: initially he said the friend knew nothing about it , but later said the same friend told him how to obtain a bridging visa allowing him to work.

24. [The applicant] told me he needed a visa allowing him to work to earn money here for sightseeing and “day-to-day living”. In this evidence, protection in Australia seemed not at all to be the foremost consideration.

25. [The applicant] said he was confused about whether this friend helped him apply for a protection visa. At one point [the applicant] said the friend told him he should apply for a protection visa but never found out whether he ultimately applied or not. He also said the friend knew all about his plight with the loan shark in Malaysia as they had been friends there before, and yet he claimed to have no idea whether this “secretive” friend was working or studying here or what he might be doing in Australia. According to his evidence, their conversations during his time in [Australian city 2] seemed entirely one-sided.

26. [The applicant] gave inconsistent evidence as to how long he stayed in [Australian city 2]. He said he stayed there only three weeks before moving to [Australian city 3], and thence to [Australian city 4], but in his protection visa application form he said he stayed in [Australian city 2] for two months and was still living there at the time he lodged his protection visa application. [The applicant] said he lodged his protection visa application whilst residing in [Australian city 3], before moving to [Australian city 4], but it is clear from what he submitted to the Department that the application was lodged in [Australian city 1]. When I put to him that he appeared to have stayed in [Australian city 2] longer than he claimed he said he went back there after lodging his protection visa application. This did not resolve the discrepancy between staying in [Australian city 2] for three weeks and staying there for at least two months. Whilst this is arguably a minor discrepancy when considered alongside the discrepancy about who borrowed the money from the loan shark, it is nevertheless one of many in this case and I have considered it cumulatively.

27. [The applicant] gave inconsistent evidence about the loan shark threatening his family back in Malaysia. Initially he said the loan shark threatened both of his parents and then later said that it was only his mother who was threatened because his father was away from the family home when the loan shark visited. [The applicant] also gave inconsistent evidence about whether he was living with his parents in Malaysia at his lifelong family address: in his protection visa application form he said he was; in evidence to me he said his parents moved out to another property after his father inherited it, whereupon he moved his wife and child into the old family home, but then he said the property his parents moved to was inherited in 2010 whereas he moved his new family into the old family home in 2001. Very little of what [the applicant] said at the hearing remained uncontracted by earlier written or later oral claims.

    Findings in relation to s.36(2)(a) of the Act

28. On the confused and contradictory evidence before me, I find that [the applicant] is not a witness of truth.

29. I do not accept that [the applicant] owes money to a loan shark, let alone one who is pursuing him with threats of harm to him and/or his family. I am not satisfied on the evidence before me that he or anyone in his family faces the harm he claims.

30. I find on the evidence before me that [the applicant]’s motivation in applying for a protection visa was entirely economic.

31. Even [the applicant]’s claim to have been separated from his wife sits ill with what he claimed in his protection visa application where, invited to tick a box to say whether he was married and/or to tick one saying he was separated, he only ticked the “Married” box. Even if I accept that [the applicant] and his wife are separated, I find that I cannot rely on any of the alleged circumstances of the separation.

32. Having considered all of the evidence before me in its entirety, I am not satisfied that [the applicant] faces a real chance of persecution in Malaysia in the reasonably foreseeable future. I also find that the persecution he claims to fear has no nexus with any of the five factors exhaustively described in s.5J(1)(a) of the Act.

33. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Findings in relation to s.36(2)(aa) of the Act

34. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

35. A person may meet the criteria for the grant of a protection visa under s.36(2)(aa) 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

36. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

37. In this case, [the applicant]’s claims to complementary protection rely on the same facts he presented in his claims for protection as a refugee.

38. Given my findings of fact in relation to [the applicant]’s refugee claims, and given that the "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" of persecution, I find that [the applicant]’s claims can no more succeed as complementary protection claims than they do as refugee claims.

39. On the evidence before me, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that [the applicant] will suffer significant harm.

    Other findings

40. 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, he does not satisfy the criterion in s.36(2).

    decision

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

    Luke Hardy
    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.

    …