1705381 (Refugee)

[2017] AATA 3077

1705381 (Refugee) [2017] AATA 3077 (21 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705381

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:James Silva

DATE:21 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 21 June 2017 at 6:58pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Social group – Business owner – Borrowed money from loan sharks – Fear of money lenders

LEGISLATION
Migration Act 1958, ss 5J, 5H, 5K-LA, 65, 426A, 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. The applicant is a man in his early [age] from Malaysia.

2. He arrived in Australia [in] October 2016, as the holder of an Electronic Travel Authority visa. He applied for a Protection (Class XA) visa [in] November 2016. [In] March 2017, the delegate refused the application pursuant to s.65 of the Act.

3. This is an application for review of that decision.

4. The applicant was invited to a Tribunal hearing on 21 June 2017, but did not attend.

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

   Criteria for a protection visa

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant’s protection claims as expressed in his protection visa application, are in summary:

   He left Malaysia for the following reasons:

   The applicant claims to have borrowed a large sum of money from a money lender. His goal was to start a small business, as it had been difficult for him to find a steady job and settle his study loans.

   His business did not do well, and the applicant had difficulty meeting repayments to the money lender.

   The money lender threatened to harm the applicant and his family if he failed to meet his repayments.  The applicant was worried about his mother and other family members.

   The money lender sent his people to threaten the applicant. One of them punched the applicant in the face, and threatened to assault his family, too.

   The applicant did not tell anyone about the loan, or seek help. He feared that the matter would escalate if he did so. He is concerned that the police will not take any complaint seriously.

   The applicant said that he moved to Kedah and Kuala Lumpur, but he could not stand living in hiding, in fear of them eventually catching him.

   The applicant claims to fear that the loan sharks will beat him up if he returns to Malaysia without having paid off his debts. They have lots of connections, and the authorities give no priority to protecting people who have fallen foul of the loan sharks. The applicant is concerned that his high-interest debts are growing every day (hence, by implication, his prospects of discharging the loan are poor).

   Background

8. The applicant is [age] year old unmarried man from Taiping, in Perak. He is an ethnic Malay, and Muslim, whose languages are Malay and English (reading and writing). He lived in [a town] before coming to Australia.

9. The applicant attended primary and secondary school up to [year]. In 2014 and 2015 (not further defined), he undertook further training at [a] Training centre, [in] Perak. The applicant states that from February to May 2016, he worked as [Occupation 1] for offshore platforms. He indicates that he was unemployed (presumably, in other periods).

10. The applicant gives no details of his family composition, but states that he is in contact with relatives at least weekly, via voice calls or through social media.

11. The applicant holds a Malaysian passport issued in Perak in [2016], a copy of which he provided with his protection visa application form. He also provided a copy of an ETA authorisation slip which shows that he was approved for travel to Australia [in] September 2016. The applicant stated on Form 866C, at Question 58, that he had never held or used another passport. However, the passport photocopy that he provided is annotated: ‘Bearer has previously travelled on passport number [number provided], which has been cancelled and returned.

    Evidence

12. The evidence before the Tribunal includes the following relevant material: -

    §  The protection visa application form, which includes the applicant’s handwritten reasons for claiming protection in Australia.

    §  The applicant also provided a full photocopy of his current Malaysian passport, issued in Perak [in] 2016, his Malaysian ID card and his Malaysian driver’s licence. He also provided a photocopy of his Australian ETA approval slip, which was issued [in] September 2016.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of [March] 2017. The delegate did not invite the applicant to a Department interview.

13. On 22 May 2017, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing to be held on 21 June 2017. The invitation advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent by email, to the address for correspondence indicated in the review application.

14. The Tribunal initially received no response to this invitation. On 20 June 2017, at 9:58 pm, the applicant sent an email to the Tribunal in the following terms: ‘I would like to postpone my hearing because I can’t get off on that day. Hope you can consider my request and if you don’t mind to reschedule back my hearing date’. The Tribunal received this on the morning of the hearing. A Tribunal officer tried to telephone the applicant, without success. On the second attempt, she left a voice message advising the applicant that the Member had carefully considered the request for a postponement, but did not grant it. She advised that the hearing would proceed at the originally scheduled time. She confirmed this in writing, by email.

15. The Tribunal notes that the applicant did not initially respond to the hearing invitation, and it is not satisfied that unspecified work commitments provide a good reason for rescheduling a hearing.

16. The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. He has not contacted the Tribunal by COB 21 June 2017, to provide any additional reason why he could not attend at the scheduled time (other than his prior advice that he had work commitments), or to make any further submissions. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

    Receiving country

17. The applicant claims that he is a Malaysian national. He claims to speak Malay, and he provided photocopies of his Malaysian passport and other identity documents. The Tribunal is satisfied, on the limited available evidence, and in the absence of any suggestion to the contrary, that the applicant is a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing his claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

18. The Tribunal has before it only the brief written statements on the protection visa application form. The information is vague, and lacking in detail in significant respects. The applicant’s appearance at a hearing would have provided an opportunity to address the various gaps, and to discuss what further information and details are available. Among the claims on which the Tribunal has insufficient evidence before it are the following:

    §  Details of the applicant’s background, especially his employment and business interests, financial situation (including details of his claimed study loans and other commitments), his family composition, and his living arrangements, insofar as these are relevant to his protection claims. In particular, details of the small business that the applicant set up, including: - when he did this (he also indicated that he had been working from February to May 2016 on offshore platforms as [Occupation 1]); the nature of the business; the financial aspects; how and where it operated; and when the difficulties arose.

    §  Details of the large loan that the applicant took out from the ‘money lender’, including: - the borrowed sum, the terms of the loan, the identity of the lender (the applicant implies that this was an illegal money lender, operating in a ‘big group’, and who employs criminal methods, ie. a loan shark), the course of the loan contract (the applicant suggests that it was in place, that he had invested it in a business, but he had been unable to keep up with repayments), and when things went wrong.

    §  The threats that the money lender (and agents operating on his behalf) made against the applicant and his family; details of the incident when someone punched the applicant in the face (such as timing, circumstances, and the consequences of the assault); and any further details.

    §  The applicant’s response to the threats, including his consideration of seeking police protection; any efforts on his or his family’s part to seek other protection or take precautions; details of his ‘attempts’ to live in Kuala Lumpur and Kedah; and what led him to fear that the money lender would eventually track him down.

    §  Any further developments since the applicant’s arrival in Australia, such as the money lender’s actions to recover the money; the applicant’s efforts to repay at least some of the money; and his family’s location and circumstances (since he claims that they, too, where subject to threats).

    §  An update on what the applicant fears will happen to him if he returns to Malaysia.     

    §   loan that his cousin allegedly took out with an unregistered (illegal) money lending company, including: - the applicant’s relationship with his cousin; the circumstances that led his cousin to nominate the applicant as a guarantor; whether the applicant willingly entered the arrangement; the terms of the loan and its purpose; and other contextual information to explain how the situation arose.

    §  The applicant’s and his family’s efforts to locate the cousin.

    §  The threats the money lenders made against the applicant (and his family), including the timing and details of the alleged visits to his home, the assaults, the seizure of his car, and any harm that they inflicted on the applicant and his family. Also, the consequences for the applicant, including the psychological impact.

    §  The applicant’s response to the threats, including his consideration of seeking police protection, any efforts on his and his family’s part to relocate within Malaysia, and the factors that led him to conclude that overseas travel was the best solution.

    §  The applicant’s decision to travel to Australia, including an account of his activities prior to his arrival in mid-October 2016 (as he had ETA approval from [a date in] September 2016).

    §  Any further developments from the time of the applicant’s arrival in Australia, such as the money lender’s actions to recover the monies, the applicant’s efforts to repay at least some of the money, and his family’s location and circumstances.

    §  An update on what the applicant fears will happen to him if he returns to Malaysia.  

19. On the limited available material, the Tribunal is unable to be satisfied that the applicant took out a loan from a money lender (in particular, an unregistered money lender or loan shark), in order to meet study loan repayments or help establish a small business; that his small business faltered, and the applicant was unable to meet his repayments; that the money lender threatened to harm the applicant and/or members of his family; that the money lender sent people who assaulted the applicant (by punching him in the face); or that the applicant worried (suffered psychological harm) on account of his and/or his family’s safety. It is also unable to be satisfied that the applicant lived in fear in Malaysia; that he contemplated police protection, but considered it both futile and risky; that he failed to seek help elsewhere (whether due to shame, stigma or any other reason); or that he moved to Kedah and Kuala Lumpur, but was unable to bear living in fear.

20. The Tribunal notes country information that the delegate drew on, which confirms that illegal money lending is a widespread problem in Malaysia; that the victims are sometimes embarrassed or otherwise reluctant to seek police assistance; but that the Malaysian authorities have undertaken enforcement measures against these practices. The delegate concluded that the authorities ‘are reasonably effective in combatting illegal money lending’. However, this country information and analysis do not resolve the Tribunal’s concern that it has insufficient material on which to assess the applicant’s personal claims. 

21. In sum, the Tribunal is unable to be satisfied that the applicant ever suffered harm in Malaysia (including death threats to him or his family, or an assault) from a money lender or his associates, due to unpaid debts, or any other reason; that he needed police protection but judged that he had no prospect of receiving help; that he and/or his family tried relocating in Malaysia for their protection; or that he is a source of ongoing interest to a money lender. The applicant has not claimed to fear harm from any other source, and no other claims are apparent on the information before the Tribunal.   

    Refugee criterion

22. In light of the above findings (and the Tribunal’s lack of satisfaction about the applicant’s circumstances), and the lack of information about his future conduct, the Tribunal is not satisfied that the applicant faces a real chance of serious harm amounting to persecution from creditors or others in the future, for any reason. It is therefore not satisfied that he has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1) should he return to Malaysia.

23. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection

24. 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). Based on the limited information before the Tribunal, and the assessment of facts above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there would be a real risk that he will suffer significant harm.

25. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

26. 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

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

    James Silva
    Member

    
    

    ATTACHMENT A – SUMMARY OF RELEVANT LAW

    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.

    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.

    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).

    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.

    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

    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.

    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).