1704452 (Refugee)

[2017] AATA 2539

1704452 (Refugee) [2017] AATA 2539 (13 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704452

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Tania Flood

DATE:13 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 13 September 2017 at 9:39am

CATCHWORDS

Refugee – Protection Visa – Malaysia – Economic hardship – Bank loan – Fear of arrest – False claims in submissions

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 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, applied for the visa [in] February 2017. The delegate refused to grant the visa on the basis that the evidence does not support there is a real chance the applicant will be persecuted for one or more of the reasons mentioned in s.5J(1)(a) of the Act and because in any event she could access effective protection from the Malaysian authorities against any harm she fears.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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

9. The issue in this case is whether there is a real chance the applicant will suffer serious harm if she returns to Malaysia for reason of her race, religion, nationality, membership of a particular social group or political opinion, or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Malaysia there is a real risk she will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Summary of claims

10. In her application for a Protection visa the applicant claims the following:

11. She was born on [birth date] in Wilayah Persekutuan, Kuala Lumpur Province, Malaysia. She is ethnic Malay and a Muslim.  She has never married.  Her parents and [siblings] are residing in Malaysia.

12. She arrived in Australia [in] November 2016 as the holder of a [temporary] visa. She has previously visited [country] ([6/13] to [7/13]; [4/14] to [4/14]) and [another country] ([1/15] to [2/15]).

13. From March 2012 to December 2015 she was [occupation] working in Selangor Malaysia.

14. She was retrenched from her employment during the economic downturn.  She borrowed money from an unlicensed money lender to support herself and her family. 

15. She could not pay back her debt and the money lender is threatening her and her family.

16. She joined Bersih and the Malaysian police are looking for her to arrest her.

17. She is afraid of returning to Malaysia because the money lender will do anything to get her to pay the debt which is increasing due to interest. 

18. She cannot get a job in Malaysia because she is a member of Bersih.  She will be arrested for joining the street rally and riot.

19. The government will not provide her with effective protection. 

20. It is difficult to live anywhere in Malaysia where there is a crisis of economy and corruption.

    FINDINGS AND REASONS

    Country of reference

21. Attached to the Department’s file is a copy of the applicant’s Malaysian passport which verifies her claimed identity and nationality.  In the absence of any information to the contrary the Tribunal accepts she is a national of Malaysia and has assessed her claims against Malaysia.

    Claimed fear of loan shark and fear of being unemployed and arrested as a result of her Bersih involvement

22. At the Tribunal hearing the applicant was asked why she left Malaysia and she replied it was because she had financial problems.  She said she was worried that people would start looking for her if she couldn’t pay back a loan.  When questioned further about the circumstances of the loan, the applicant informed the Tribunal that it is a bank loan. 

23. In view of the above, the Tribunal asked the applicant whether it is true she was retrenched from her employment and forced to take out a loan from an illegal money lender and then threatened by the money lender as claimed and she agreed this did not happen. The Tribunal also asked the applicant whether she fears being arrested and denied employment because of her involvement in Bersih rallies as claimed and she said this claim is also not true. In light of this, the Tribunal is satisfied that there is not a real chance or real risk the applicant will suffer any serious or significant harm on return to Malaysia for these reasons.

24. The Tribunal explained to the applicant that difficulty repaying a bank loan is not a situation that would appear to amount to serious or significant harm for the purposes of the Act.  She was asked if she fears returning to Malaysia for any other reason and she replied “no”.

25. Noting the applicant came to Australia for financial reasons only, for completeness, the Tribunal discussed the current state of the Malaysian economy with the applicant.  The Tribunal advised the applicant that country information indicates that Malaysia is classified by the World Bank (April 2017) as an upper middle-income economy.  The Tribunal noted that while Malaysia was reportedly hit by the Global Financial Crisis in 2009 it has recovered rapidly posting growth rates averaging 5.7% since 2010.  Further, the Tribunal pointed out DFAT’s advice that Malaysia’s economic growth has led to a significant reduction in poverty with the share of households living below the poverty line falling from 50% in the 1960’s to 0.28 per cent in 2016.  Lastly, the Tribunal noted that in December 2015, the Malaysian Department of Statistics reported an unemployment rate of 3.3% (DFAT Country Information Report, Malaysia, 19 July 2016).

26. Noting Malaysia’s generally positive economic performance and the applicant’s oral evidence that she was able to obtain employment in the past in Malaysia, the Tribunal is satisfied the applicant will be able to obtain employment and derive an income on return to Malaysia with which she can service her bank loan and ensure her capacity to subsist. To the extent she may suffer some economic difficulties there is nothing before the Tribunal to suggest that this would be for any of the reasons set out in s.5J(1)(a) of the Act or that such difficulties would amount to serious or significant harm.

27. For the above reasons the Tribunal finds the applicant does not have a well-founded fear of persecution in Malaysia, now or in the reasonably foreseeable future, arising from the fact she has an unpaid bank loan or for any other reason, including those set out in s.5J(1)(a) of the Act. Further, having regard to the definition of significant harm in s.36(2A) of the Act, the Tribunal finds, for the reasons already articulated, that there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Malaysia there is a real risk the applicant will suffer significant harm on this basis or for any other reason.

    CONCLUSION

28. 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) of the Act.

29. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

30. 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 (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

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

    Tania Flood
    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.

    …