1705231 (Refugee)

[2018] AATA 147

1705231 (Refugee) [2018] AATA 147 (18 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705231

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Mila Foster

DATE:18 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 January 2018 at 11:34am

CATCHWORDS

Refugee – Protection visa – Malaysia – Victim of loan sharks – Fear of physical violence – Financial hardship – False claims

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 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 on [a date in] December 2016.[1] The delegate refused to grant the visa on the basis that the applicant was neither a refugee nor owed complementary protection.

   [1] The delegate’s decision record states that the applicant’s protection visa application was made on [a specified date in] December 2016. However, the protection visa application on Department of Immigration and Border Protection file [number] is stamped as having been received by the Department on [the following day].

   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. If a person fears persecution for one or more of those reasons, the persecution must involve serious harm to the person: ss.5J(4)(b). For the purposes of s.5J(4), s.5J(5) provides that the following are instances of serious harm: (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.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’).

7. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): 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.

   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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT produced such a report in relation to Malaysia on 19 July 2016.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. According to his protection visa application, the applicant is [an age] year old Malaysian national who arrived in Australia as a visitor [in] October 2016. He submitted certified copies of his Malaysian passport and Malaysian identity card to the Department. On the basis of those documents and in the absence of any evidence to the contrary, I accept that he is a national of Malaysia.

10. The reasons given in the applicant’s protection visa application for claiming protection were that he had left Malaysia because he had been unable to repay a loan shark he owed money to, had been treated harshly and beaten as a result, and he feared he would be killed if he returned to Malaysia. 

11. The applicant attended a hearing before me on 16 January 2018 via video from [a specified town] and testified with the assistance of a Malay speaking interpreter. He confirmed, as stated in his protection visa application, that in Malaysia he had worked in a [business] from March 2009 until October 2016. He testified that he owned the [specified] business and employed [number] people. However, he said he left Malaysia because he didn’t have money. He added that his agent had organised everything for him. Asked how it was that he had no money if he had his own business and was able to finance his trip to Australia, the applicant replied that he sold his motorbike. I do not accept the applicant’s mere assertion that he left Malaysia because he had no money given he had his own business for several years and could finance his trip to Australia.

12. Having outlined the definition of a refugee and who is owed complementary protection, I asked the applicant what persecution or significant harm he faced if he returned to Malaysia. He replied that he did not think he would be persecuted if he returned to Malaysia. Asked why then he had applied for a visa which is granted to people who face persecution for reasons of their race, religion, nationality, membership of a particular social group or political opinion, or significant harm - the applicant responded that he did not know anything as it was his agent who organised everything. He said his agent had only asked him about his education and work history. Questioned further, the applicant testified that his agent had completed his protection visa application, and he did not face serious harm or significant harm in Malaysia. I outlined the claims made in his protection visa application; the applicant stated that they were false. I noted to the applicant that if the claims in his protection visa application were false and he did not face serious harm or significant harm in Malaysia I would affirm the delegate’s decision. The applicant responded that he would return to Malaysia in March and wanted to work a little longer because his father was sick. That does not indicate that the applicant either fears or faces persecution or significant harm in Malaysia.

13. As the claims made in the applicant’s protection visa application are false, the applicant has not presented claims indicating he faces serious harm in Malaysia nor is there any other evidence before me to indicate that he faces serious harm in Malaysia for any of the five reasons referred to in s.5J(1)(a), I find that he does not have a well-founded fear of persecution within the meaning of s.5J and thus is not a refugee as defined in s.5H. I am thus not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

14. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I must consider the alternative criterion in s.36(2)(aa). As the claims made in the applicant’s protection visa application are false, he has not presented claims indicating he faces significant harm in Malaysia nor is there evidence before me indicating he faces significant harm in Malaysia as that is defined in s.36(2A), I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm. I am thus not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

15. 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

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

    Mila Foster
    Member