1704571 (Refugee)

[2017] AATA 1951

1704571 (Refugee) [2017] AATA 1951 (29 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704571

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:K. Chapman

DATE:29 September 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 29 September 2017 at 8:55pm

CATCHWORDS

Refugee – Protection Visa – Malaysia – Loan sharks – Economic hardship – State protection – Fear of violence – Credible witness – Conflicting evidence

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 499
Migration Regulations 1994, Schedule 2

CASES

SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
MIAC v MZYYL [2012] FCAFC 147
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.

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] November 2016. His written claims concern him purportedly establishing a market stall with a friend who borrowed from money lenders, then disappeared leaving the applicant with the debt even though it was taken out in the friend’s name. The delegate refused to grant the visa on the basis that the applicant does not have a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and he does not face a real risk of significant harm if he returns to Malaysia, therefore Australia’s protection obligations are not invoked.

3. On 13 March 2017, the applicant applied for review of the protection visa refusal decision. He provided a copy of that decision to the Tribunal with his application for review. The applicant appeared before the Tribunal, by video link from the Melbourne Registry, on 9 August 2017 to give evidence and present arguments. The review hearing was conducted using the assistance of an interpreter in the Malay and English languages. The applicant confirmed he understood the interpreter and that he was feeling well enough to give evidence.

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

   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.

10. ‘Significant harm’ for these purposes is exhaustively defined in the Act: s.36(2A) and s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

11. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Relocation

12. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    State protection

13. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

    Mandatory considerations

14. 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

    Country of reference

15. According to the protection visa application, the applicant claims to be a citizen of Malaysia. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

16. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s.36(3).

    Issues

17. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.

    Documentary evidence before the Tribunal

18. The Tribunal has its own file, and the Departmental file, relating to the applicant before it. Information including, but not limited to, the following is contained in those files:

    a.the applicant’s protection visa application forms lodged [in] November 2016 (including a handwritten continuation of his answer to question 90 on a separate piece of paper, an extract from his passport, and a copy of his Malaysian Identity Card);

    b.the Departmental delegate’s visa refusal decision dated [in] March 2017 (a copy of which was provided to the Tribunal by the applicant);

    c.the application for review submitted on 13 March 2017; and

    d.Departmental administrative and Movement records.

    Claims for protection  

19. The applicant’s written claims for protection may be summarised as follows:

    a.he established a market stall with a friend who recommended they borrow from money lenders to expand the business. The applicant initially resisted, but was persuaded by his friend to borrow on the basis they would repay the loan ‘half and half’. The loan was taken under the friend’s name, with the applicant acting as referee. The stall was subsequently [damaged], it was uninsured and the applicant suffered financial loss. In addition, the applicant’s friend cheated him, absconded and the money lenders pursued the applicant for repayment of the borrowed funds and interest;

    b.he was attacked and injured on several occasions, including by way of torture, hitting and threat of death. The money lenders purportedly came to his home and damaged it, causing fear for himself and his family;

    c.he fears being harassed and attacked by the money lenders if he returns to Malaysia. Additionally, he fears being detained and killed by the money lenders because of police reports made, with his family also in fear of the money lenders;

    d.his family made police reports but the Malaysian police could not protect he and his family. He does not think the authorities can protect them all if he returns to Malaysia; and

    e.he did not try to relocate within Malaysia whilst residing there, noting they hadn’t harmed his family to date. He does not think he can avoid the money lenders by relocating within Malaysia if he returns to that country.

    Evidence at the review hearing

20. The applicant’s oral evidence may be summarised as follows. He informed the Tribunal that he obtained assistance from a friend, [Mr A], to complete the protection visa application.  [Mr A] apparently filled out the application form based on details recounted to him by the applicant, and informed the applicant what he had written. [Mr A] has since returned to Malaysia. The applicant indicated that he signed the application for protection and that the application was important to him. He later advised he was unsure whether he signed it, and suggested he was not sure of all of its contents. The Tribunal raised with the applicant that it might have difficulty accepting that he wasn’t sure if he signed the application, or of its contents, given its importance to him. The applicant advised that he understands bits of the application, but the claims are not made up. When asked if the contents of the application were true and correct he replied that it is correct and true he asked for help from his friend. The applicant also indicated that his claims for protection were all contained in the protection visa application which included a one page extension of his answer to question 90.

21. When asked by the Tribunal to tell it about his life in Malaysia, the applicant read from notes and outlined that he had worked in [Country 1] until the end of 2015, then returned to Malaysia in order to establish a shop. The Tribunal asked the applicant if he was reading from notes and he confirmed that he was because he can’t see well. The Tribunal raised with him that it seemed unusual he would need notes to tell it about his life in Malaysia. The applicant replied that he wanted to speak closer to the speaker. The Tribunal raised with him that if he needed to rely upon notes to explain about his life in Malaysia, that might suggest his evidence lacked credibility and invited his comment. The applicant replied that maybe he was not focused. The Tribunal then invited the applicant again to tell it about his life in Malaysia. He advised he worked in [Country 1] between 2012 and 2015, at which point he established a shop in Malaysia. Between December 2015 and June 2016 the shop was profitable, at which point he obtained a business partner, [Mr B]. After approximately 2 months, money began to go missing from the shop and funds were lacking. The applicant approached [Mr B] to get a loan from unlicensed money lenders, to which he was agreeable.

22. Initially [Mr B] wanted to borrow [amount] Malaysian Ringgits (MYR), then increased the amount to [five times as much]. The applicant agreed. [Mr B] located the money lender, took out the loan in his name and the applicant acted as a witness. The applicant advised he took MYR [one fifth] from the [amount] borrowed by [Mr B]. The loan was apparently signed at a [store] in [Location 1]. When asked by the Tribunal of the street name he could not remember. He then explained they met the money lender at a [restaurant]. The applicant could not remember the name of that restaurant. The applicant’s initial description of the interaction with the money lender was delivered in a vague fashion. The Tribunal asked him to describe further about the day the money was borrowed. The applicant could not remember the date and the time. He advised that after his store had opened at 9am [Mr B] came to him, the store was closed and they went to the restaurant to meet a friend of the money lender and they agreed upon the loan amount. The applicant wanted MYR [amount] but [Mr B] wanted [five times that amount] in total. The friend of the money lender was named [Mr C]. They travelled together to see the [money lender] for the loan. The applicant did not know the name of the money lender. There was not much discussion with the money lender himself, who agreed upon [the higher amount for the] loan with [amount] in interest payments. When asked by the Tribunal, the applicant clarified that the principal repayment was MYR [amount] with interest of [amount] to be paid every 2 or 3 months. The applicant told the Tribunal that he would pay the [interest payments], whilst [Mr B] would repay the [principal amount]. The applicant advised there was loan documentation with his name on it as a witness. He did not furnish such documentation to the Tribunal. The applicant advised the loan was taken out in June or July. When asked by the Tribunal in what year, he paused for a lengthy period before indicating it was in 2016. When asked why he hesitated in providing the year of the loan, the applicant advised he thought he was asked the month it was taken out. He then indicated the loan was acquired in early July 2016.

23. The applicant advised he travelled to Australia after [Mr B] ran away. He confirmed he departed legally from Malaysia using his own passport and arrived at [Location 3] Airport [in] September 2016 holding a [travel authority]. When asked by the Tribunal why he came to Australia, the applicant advised it was because of threats from the money lenders. He explained his shop was a [type of shop] and was [seriously damaged] by [Mr B] [in August 2016], and a neighbour witnessed this. [Mr B] ran away and the money lenders came searching for him because he did not make repayments for the month of July. The applicant told the Tribunal that the money lenders located him the day after the shop [was damaged] and beat him up. This was [in] August 2016. He was apparently [details of beating and injuries]. He purportedly could not walk and was assisted to go to the hospital and the police, who indicated they would assist but ultimately did not. [In]  August 2016 the money lenders purportedly came to the applicant’s residence, [and vandalised] the house. [Vandalism] was commenced outside of the house and the applicant ran from the dwelling. Whilst doing so, he was again [beaten], this time by [number] people. He was also threatened with death and told not to make a police report. The applicant ultimately fled, he lived with a friend and the money lenders still searched for him. He confirmed that he did not require medical attention for his [injuries], and that the money lenders had no interaction with his family. His friend told him to come to Australia and start a new life. The applicant wants to remain in Australia and does not wish to return to Malaysia. When asked by the Tribunal what he feared if he had to return to Malaysia, the applicant advised that he fears the money lenders finding him. He confirmed he has had no contact with them since around [date] September 2016 in Malaysia when they threatened him on the telephone. He maintained that he was very scared and could not return home. The applicant advised he was not in contact with his family and they were unaware he was in Australia.  

24. The applicant advised that he applied for a protection visa in November 2016 and began work only after he was permitted to do so. He started working in [Location 2] and in January 2017 moved to [Location 3] where he has worked in the [industry]. When asked by the Tribunal why he waited approximately 2 months after his arrival in Australia before making his claim for protection, the applicant stated that he could not find anyone to help him. When asked by the Tribunal where he stayed when he first arrived in Australia, the applicant indicated he stayed at [accommodation] in [Location 3] before calling a friend in Malaysia who advised him to fly to [Location 4] to meet up with [his friend, Mr A]. The applicant flew to [Location 4] in September 2016. The Tribunal raised with the applicant that it appeared as though he met [Mr A] shortly after his arrival in Australia and queried why he delayed in making his claim for protection given he met [Mr A] in September. The applicant confirmed he met [Mr A] in September. The Tribunal raised with him that it might have difficulty accepting his earlier explanation for the delay in seeking protection, due to having nobody who could help him, when he met [Mr A] shortly after his arrival. The applicant responded that [Mr A] didn’t mention protection at that time. The Tribunal raised with the applicant that it appeared he signed the application for protection [in] October 2016 but did not lodge it until [approximately a month later in] 2016. The applicant replied that he did sign the application on that date, but wasn’t sure of the reason for the delay citing his need for assistance from [Mr A]. It is worth pausing to reflect that the applicant arrived in Australia [in] September 2016 and met [Mr A] that month, however he asserted in his earlier oral evidence that he had nobody to help him and that is why he delayed seeking protection until [date] November 2016. The Tribunal raised with the applicant that the delay in lodging his claim for protection from the time of his arrival in Australia, and from the time of signing the application, might suggest his claims are not genuine. He stated that he has told the truth and if he goes home there is no hope for him.

1. The Tribunal raised with the applicant that the pages in the protection visa application in answer to questions 88 to 97, and the additional written page, appeared to be in different writing to the remainder of the application and also appeared to be printed from a colour printer and not written in blue ink as with the rest of the application. The applicant indicated he did not know why this was the case. The Tribunal indicated it might have difficulty accepting the truth of the written claims for protection in light of this. The applicant responded that he needs to remain in Australia as he does not want to return home. The Tribunal asked the applicant if there was any further information he wished to provide regarding the money lenders. He replied that if he goes back to Malaysia his chances are only ‘50/50’ unless the loan is repaid in full. When asked by the Tribunal the amount now owed, the applicant advised that it is more than MYR [amount] because it has not been serviced for the last 6 months. It is worth pausing to reflect that at the time of the hearing the applicant had been in Australia for approximately 11 months.

2. The Tribunal asked the applicant if there was any further information he wished to provide regarding being harmed or threatened with harm in connection with the loan. He replied that he was really scared, even after making a police report. The applicant believes he will be harmed if he returns to Malaysia because the money lenders were very clear to him in their last phone call. When asked if could seek the assistance of the Malaysian police if he returns, the applicant advised he had been to the police [a number of] times (on [various dates in] 2016) but they advised him to resolve the matter by repaying the loan. When asked if he could relocate within Malaysia to avoid harm the applicant responded he didn’t believe he would be safe elsewhere as the money lenders would find him. The Tribunal raised with the applicant that his claims did not appear to raise a fear of persecution by reasons of race, religion, nationality, membership of a particular social group or political opinion and invited his comment. He responded that he didn’t know the criteria prior to the hearing and that he just hopes he can keep working in Australia. The Tribunal raised with the applicant that the evidence tended to suggest he was not a refugee and invited his comment. The applicant replied that he didn’t know what to say.

3. The Tribunal raised country information from the Department of Foreign Affairs and Trade (DFAT) with the applicant indicating that ‘credible local and international sources consider the Royal Malaysian Police to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption.’[1] The Tribunal indicated to the applicant that the country information does not tend to support his claims of being unable to obtain assistance from the police due to owing money to money lenders or criminal gangs and that the country information was suggestive of adequate State protection being available to him if he returns to Malaysia. The applicant responded that he cannot go home and he needs time to calm down in Australia.

   [1] Paragraph 5.5 DFAT Country Report Malaysia of 19 July 2016.  

4. The Tribunal raised country information from the Department of Foreign Affairs and Trade (DFAT) with the applicant indicating that ‘the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure,’[2] although there are some shortcomings in the system. The Tribunal indicated to the applicant that the country information does not tend to support his claims that he will not be protected by the State from money lenders and that there is adequate State protection for him if he returns to Malaysia. He replied that he did not trust the Government. The Tribunal also raised with the applicant that the available country information, including numerous media reports, indicates the Malaysian police have been active in targeting illegal moneylenders for several years now, and that protection from the moneylenders would be available to him from the police in Malaysia. The Tribunal invited the applicant’s comment and he replied that “if it is o.k. then alright” and he just wants the matter to settle.

   [2] Paragraph 5.13 DFAT Country Report Malaysia of 19 July 2016.  

5. The Tribunal raised country information from the Department of Foreign Affairs and Trade (DFAT) with the applicant indicating ‘DFAT assesses that Malaysians can and do freely relocate internally…People also move to different parts of Malaysia for economic reasons.’[3] The Tribunal indicated to the applicant that the country information does not tend to support his claims that he cannot relocate to avoid those he says have caused, or might cause, him harm. The applicant responded that is what the Government says but the ‘Ah Long’ (money lenders) don’t care about the Government. The Tribunal raised with the applicant that if it were reasonable for him to relocate within Malaysia, or obtain State protection in Malaysia, or the claimed risk is one faced by the population generally, then according to the migration law he would not face significant harm and accordingly he would not be entitled to complementary protection. The Tribunal invited the applicant’s comment and he responded that he had nothing to say and he wants to stay in Australia.

   [3] Paragraph 5.19 DFAT Country Report Malaysia of 19 July 2016.  

6. The Tribunal raised with the applicant the provisions of s.423A of the Act relating to the requirement for an adverse inference on the credibility of a claim to be drawn if satisfied the applicant does not have a reasonable explanation for failing to raise the claim before the Departmental delegate’s primary decision on the visa was made. The Tribunal drew the applicant’s attention to his claim raised at the hearing that his house was [seriously damaged], but this was not mentioned in the written claims. He replied that he thought it was in the written claim. When asked by the Tribunal what gave him that impression he responded, “I guessed.” The Tribunal indicated to the applicant that it was having some difficulty accepting the claim his house was [seriously damaged] given that it was not specified in the written claim and invited his comment. He replied that it was not the whole house that was [damaged].

7. The Tribunal raised inconsistencies in the applicant’s written and oral claims with him. He was invited to comment upon why in his written claim it was stated he initially didn’t want to engage with a money lender, yet his oral evidence was expressed in opposite terms. The applicant replied that he may have made mistakes in the written application. The Tribunal raised with him that it might have difficulty accepting that he did not know the contents of his protection visa application given he had earlier advised that it was important to him. The applicant indicated the person who helped him with the claim had now returned to Malaysia and didn’t explain it to him. The Tribunal raised with the applicant that his written claim never referred to the sum borrowed from the money lender and in oral evidence he indicated his friend borrowed MYR [a large amount] with the applicant taking [one fifth] of that. In addition, the written claim referred to the applicant and his friend repaying half of the loan each, whilst the applicant’s oral evidence was that he paid MYR [amount]periodically in interest with his friend paying MYR [more than double the amount] periodically in principal. The applicant was invited to comment upon the aforementioned inconsistencies and he replied that he and his friend would each “pay a bit” of the loan. The Tribunal indicated that this seemed inconsistent with earlier evidence and the applicant responded that he was “telling…the true story now.” The Tribunal asked the applicant why he would not tell the true story in his written claims and he replied that he “didn’t know what to do about it”, indicating that the person who assisted him had returned to Malaysia and the claim could not be redone. The Tribunal again raised with the applicant that it might have difficulty accepting that he didn’t know the contents of his written claims when he had earlier indicated the application for protection was important to him. He replied that he was scared of the situation now.

8. The Tribunal raised with the applicant that in his written claims it was indicated that his family made police reports, yet in oral evidence he did not mention this rather indicating he went himself to make reports on several occasions. He replied that this was a mistake. The Tribunal again raised with the applicant that it might have difficulty accepting that he didn’t know the contents of his written claims when he had earlier indicated the application for protection was important to him. The applicant responded that it was not he who wrote the claims, rather he just told the writer in Malay. The applicant added that he was present when he spoke and his friend typed his claims. He then stated that his friend wrote and typed the claims. The Tribunal asked the applicant to clarify how the claims were entered into the protection visa application and he indicated his friend wrote then typed. The Tribunal indicated it might have difficulty with this evidence given its inconsistency with earlier evidence. The applicant advised he didn’t know what to say. The Tribunal drew the applicant’s attention to its earlier discussion with him concerning his answers to questions 88 to 97 and the additional page being of different appearance to the remainder of the protection visa application, thus causing some difficulty in accepting the genuineness of the claims. The applicant replied that his friends had told him prior to the hearing he would not be believed and advised him not to attend. The Tribunal assured the applicant it was reviewing his claims seriously and invited him to comment again. He apologised for errors in the application. It is worth pausing to reflect that in his earlier evidence, the applicant indicated he did not know why the appearance of his answers to questions 88 to 97 and the additional page were of different appearance to the remainder of the protection visa application.

9. The Tribunal raised with the applicant that his oral evidence concerning interactions with the money lenders was vague, it contained inconsistencies as highlighted, and that this might cause difficulties for the Tribunal in accepting the genuineness of the claims. The applicant replied that he may have made a mistake not to look at the claim form properly. Again the Tribunal indicated that it might have difficulty accepting that he didn’t know the contents of his written claims when he had earlier indicated the application for protection was important to him. The applicant maintained that his friend had helped him, there was nobody else to assist, and the friend was no longer in Australia. The Tribunal offered the applicant another opportunity to comment on its concerns with his credibility and he stated he didn’t know what to say.

10. The Tribunal offered the applicant another opportunity to comment upon having adequate State protection if he returns to Malaysia and he indicated the State would not assist him. The Tribunal offered the applicant another opportunity to comment upon his ability to relocate within Malaysia and he indicated he was not confident he could do so. The Tribunal offered the applicant another opportunity to comment upon the position that he would not be entitled to complementary protection if he can access State protection or relocate within Malaysia. He replied, “I accept that.” The Tribunal referred the applicant to the earlier discussion concerning that his delay in claiming protection might undermine its genuineness. He replied that the delay was a mistake on his part. The Tribunal drew the applicant’s attention to his earlier oral evidence seeking to explain the delay on the basis that he had nobody to help him, yet he met his friend [Mr A] soon after arriving in Australia, and that this might cause doubt about the reasons for delay and the claims being genuine. The applicant indicated he had no response. The Tribunal invited the applicant to make any further submissions he wished and he replied that he wants to stay in Australia until he is better and he also wants to work. The Tribunal asked him to clarify what he meant by being ‘better’ and he replied that he was referring to being financially better.

    Analysis  

11. The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. During the review hearing the Tribunal developed serious concerns with the credibility of the applicant’s claims that he had faced, and would face, harm in Malaysia at the hands of money lenders. The Tribunal notes it had the benefit of observing the applicant as he gave his oral evidence and that he displayed an evasive demeanour whilst doing so. His written and oral claims contained significant inconsistencies as previously indicated. For example, they diverged regarding the applicant’s desire to approach the money lenders, the proportion of loan repayments between himself and [Mr B], and whether his family or he made reports to the police. The written claims also lacked any detail concerning the quantum of the purported loan, whilst the applicant orally cited its composition with respect to [Mr B] and himself. Additionally, the application for protection contained a portion with writing that appeared to have been printed from a colour printer, with the remainder of the application handwritten, as previously described. The applicant’s oral evidence explaining this circumstance contained inconsistencies, with him initially indicating he did not know why this was the case, then later describing his presence whilst his friend [Mr A] typed and wrote the application for him. Following careful consideration, the Tribunal does not accept that the inconsistencies in the applicant’s claims can be attributed to errors made in transcription by his friend [Mr A]. Rather, the Tribunal finds that the applicant provided an untruthful account in this regard. Further, during the review hearing, the applicant’s oral evidence was vague concerning the purported interactions with the money lenders. Having regard to the aforementioned matters, the Tribunal does not accept that the applicant was a witness of candour. Accordingly, the Tribunal does not accept the veracity of his claims for protection.

12. For the reasons detailed above, the Tribunal does not accept that the applicant has ever interacted with money lenders in Malaysia. Accordingly, the Tribunal does not accept that he has ever faced, or would ever face, harm in Malaysia from money lenders. It follows that the Tribunal is not satisfied that Australia’s protection obligations are invoked on the basis of any of the claims that have been raised by the applicant.

13. For completeness, the Tribunal has further considered the country information relating to State protection, which is referred to above, and finds that the applicant would be able to avail himself of protection from the Malaysian authorities if he returned to that country. Additionally, the Tribunal has considered the country information regarding internal relocation and finds that it would be reasonable for the applicant to relocate within Malaysia to avoid those he purportedly fears might cause him harm, noting he has demonstrated versatility in being able to travel to Australia and find employment in a new country. It follows that even if the Tribunal accepted the veracity of his claims that he faced harm from money lenders, which it does not, the applicant would not be entitled to protection.    

    CONCLUSION

14. Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.

15. 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). 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).

16. 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

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

    K. Chapman
    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.

    …