1704475 (Refugee)

[2018] AATA 5932

1704475 (Refugee) [2018] AATA 5932 (6 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704475

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Geraldine Hoeben

DATE AND TIME OF

ORAL DECISION AND REASONS:          6 September 2018 at 1:05 am (NSW time)

DATE OF WRITTEN RECORD:                12 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 12 November 2018 at 1:30pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – threats by former business partner – credibility – inconsistent evidence – no documentary support – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations (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 8 March 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 6 September 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant, who claims to be a citizen of Malaysia, applied for the protection visa on 29 December 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Malaysia, there was a real risk that the applicant would suffer significant harm as set out in the Act.

   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.  

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.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is that the applicant claims that he owes a debt to a former business partner who threatened him and beat him and sent loan shark debt collectors to his house to also threaten him if he did not repay the loan.

12. The applicant confirmed that he did not receive any assistance with his protection visa application and its attached statement. The Tribunal noted that this information is consistent with the applicant’s answer at question 6 of the protection visa application form, Part B.

13. The Tribunal thanked the applicant for attaching the departmental decision dated 8/03/17 to his review application and asked the applicant what his claim was. He replied that he owed a debt that he could not repay to his former business partner. He was threatened by this former business partner and debt collectors who came around to his home, damaged it and threatened him and the former partner later beat him. He said that he ran away from his home in Perak to escape the attacks.

14. The Tribunal asked if he had any information, details or documents to support the fact that he had a debt and he replied he had a letter of proof that he had a debt.  The Tribunal asked him to produce the letter to the Tribunal and he replied that he could not as he had not had time to get it. The Tribunal then referred him to the delegate’s decision referred to above which was a year and a quarter  ago in which it was clear that he had been put on clear and unequivocal notice that his credibility was in question. In such circumstances, the Tribunal continued, he had the opportunity of attempting to access all supporting information to his claim as early as March 2017. The applicant did not reply.

15. The Tribunal also referred the applicant to the Tribunal’s hearing invitation dated 12/07/18 which contained the following in italics and bold print:

    After the hearing the member may hand down an oral decision. Consequently, it is      important that all information/submissions are submitted a full 7 days before the hearing date. 

    He replied he still did not have time to get the documents.

16. The Tribunal continued that in such circumstances he had more than enough time to access supporting, independent information which might have positively answered his credibility issues. He replied that he had gone to the police but they did nothing and so he left his home town of Perak.

17. The Tribunal responded that this answer was not responsive to its concerns or question and did he wish to respond specifically to the Tribunal’s concerns regarding supporting information which would give substance and credibility to this claim. There was a long pause but no reply.

18. The applicant then claimed that he was forced to leave his home in Perak. He also claimed he was beaten.

19. In response the Tribunal then referred the applicant to question 81 of his protection visa application which indicated that he lived continuously in Perak since January 1995 to October 2016, the month before he departed for Australia and he replied that he must have made a mistake.

20. The Tribunal then referred the applicant to question 84 of the same form which refers to his employment history in Perak, Malaysia which also indicated that he was in continuous employment from 2008 to 2016 right up to the time he departed for Australia and he replied that the details might not be accurate as he does not understand English.

21. The Tribunal then referred the applicant to question 20 of Part C of his protection visa application which indicated that not only did he read, write and speak Malay but he could also speak, read and write English and the applicant replied that it was not true and continued he did not really speak or understand English.

22. The Tribunal responded by asking were there other aspects of his protection visa application that were not true and he replied that no, everything else was true.

23. The Tribunal then referred the applicant to form Part C of his protection visa application, question 84 which also indicated that he had never left Perak as his residential address which was the same for a good 8 years from 2008 prior to the time of his departure for Australia in 2016. He replied that he often made mistakes to which the Tribunal asked if his application for protection was entirely genuine and he replied that it was.

24. The Tribunal asked if he had any independent, supporting information regarding his house being damaged such as repair quotes or that he was beaten by his former partner such as hospital records or that he had fled Perak to escape these claimed attacks such as a police complaint form and he replied he did not have time to get them. The Tribunal responded by restating and referring him back to the delegate’s decision of March 2017 as well as the hearing invitation of July 2018 that his credibility was clearly at issue and because he had not been able to produce any supporting information to give his claim an authentic basis. The Tribunal continued that his general cavalier response to something that threatened his life and wellbeing was very casual and certainly not consistent with a genuine fear of harm or risk of harm for persecutory reasons. He did not reply.

25. The Tribunal put to the applicant the numerous inconsistencies in his oral evidence and written evidence as reflected in his protection visa application. It continued that this together with his claimed unsupported assertions as to the alleged debt, the alleged threats, his claim that he was beaten by his former partner and his house being damaged remained unsupported by any independent, corroborative evidence. The applicant made no reply.

26. The Tribunal then asked if he had anything else to add to his review application and he replied that if he returned to Malaysia he would probably die. The Tribunal asked if he had any information to support this and he replied his evidence today and what is contained in his protection visa application.

27. The Tribunal finds that the claim is without any merit. The applicant has made a series of baseless assertions completely devoid of any persuasive or convincing evidence at all.

28. The applicant has given inconsistent evidence as to alleged damage to his home and injury to himself. He has not provided any believable or cogent reasons for these inconsistencies. It finds that any damage to his house or injury to himself is a complete fabrication.

29. His claim as to the debt itself remains unfounded, unsupported and part of a fictional version of events that remains totally unexplained.

30. The applicant did not give any fair or reasonable explanation as to why he did not or could not access the necessary information to support his claim over the last year and a half. The applicant had been directly put on notice as to the significance of providing independent, corroborative evidence on two separate occasions: firstly, via the delegate’s decision in March 2017 and again via the Tribunal hearing invitation dated July 2018. There is no evidence before the Tribunal that he made any effort to obtain any supporting information relative to his claim. The Tribunal formally finds that there was no effort at all by the applicant to access supporting information from Malaysia as together, with the above findings, it did not exist.

31. It follows that his speculation that he will die on his return to Malaysia is part of the fiction he fabricated and included in his protection visa application and the oral evidence he has given to the Tribunal today on review.

32. 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.)

33. 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

34. 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).

35. 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).

36. 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

37. 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.

    …