1705804 (Refugee)

1705804 (Refugee) [2017] AATA 2669 (3 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705804
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Tania Flood
DATE:3 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 November 2017 at 10:27am
CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Victims of loan sharks – Physical violence – Witness credibility

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] November 2016. The delegate refused to grant the visa on the basis that the Malaysian authorities can provide the applicant with an adequate degree of protection against the harm he fears in Malaysia.
CRITERIA FOR A PROTECTION VISA
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm on return to Malaysia for reason of his race, religion, nationality, membership of a particular social group or political opinion, or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Malaysia there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed
Summary of written claims
In his application for a Protection visa the applicant provides the following information:
He was born on [date] in Petaling Jaya, Selangor, Malaysia. He is a Tamil and a Hindu who speaks, reads and writes, Bahasa Melayu, English and Tamil. His parents still reside in Petaling Jaya and he is in regular contact with them.
He has only ever lived at one address in Selangor. He completed high school and has no prior work experience in Malaysia.
He arrived to Australia [in] October 2016 as the holder of a [temporary] visa.
He left Malaysia because he was in debt to a loan shark. He took out a loan of RM[amount] to settle his family business that was facing bankruptcy.
When he couldn’t pay the interest on time the loan shark hunted him down. He was assaulted and had a gun held to his head as a warning.
He did not seek help from the police because the loan shark threatened him and said they would harm him and his family.
He tried to move to Johore but the loan shark found him there. They have connections in every state.
If he returns to Malaysia he will be harmed again by the loan shark. They will torture him and may kill him because he ran away from them. The police won’t help him because they accept bribes from loan sharks.
Tribunal hearing
The applicant appeared before the Tribunal on 5 October 2017. At the outset he confirmed that he wrote his claims for protection himself and that everything contained therein is true and correct. By way of background he stated that he was born in Petaling Jaya, Selangor, Malaysia. He said that prior to coming to Australia he lived with his parents and siblings ([numbered]) in Puchong, Kuala Lumpur for around four or five years. Prior to that his family lived at another address in Puchong. He said his father is retired and his mother is a housewife. His [siblings] are studying. After he completed high school he worked as an [occupation] for a few years in his [relative’s] business. On arrival in Australia he went to [a named town] where he has worked on a farm for about one year.
The applicant testified that he left Malaysia because he was indebted to a loan shark and was unable to meet his repayments. He said that he and a friend borrowed approximately [amount] ringgit to rent a parcel of land to use as a car park. He said that they paid [a smaller amount] ringgit to a person to rent the land but instead he ran away to [a named country] with the money. After that they repaid the remaining [amount] ringgit to the loan shark.
The applicant testified that the loan shark held his bank card and for three months and deducted [amount] ringgit per month from his account for interest payments. Similarly, his friend was also making payments to the loan shark. At the time he was still working for his [relative] but due to a lack of orders there was a period of about two months when he didn’t have any work and therefore didn’t have money in his account for the loan shark. After two months the loan shark starting calling him and coming to his house and workplace to demand his money.
When they were unable to make any payments for two months the loan shark assumed they were trying to cheat them and brought papers for them to sign. He promised to pay them but they continued coming to his house and workplace. All the paperwork pertaining to the loan and his bank cards remain in the hands of the loan shark.
When asked for further detail about his interactions with the loan shark the applicant stated that they threatened to take his motorbike and said they would cut off his hand. When asked if he was physically harmed by the loan shark he said he was once punched in the stomach and once his face was pushed. When asked if anything further happened he said no.
The Tribunal pointed out to the applicant that his written claims state that he had a gun held to his head. He then stated that they showed him the gun when they threatened to cut off his hand.
When asked what he did about this threatening and violent behaviour the applicant stated that he went to the police and reported that he had taken out a loan and was threatened and assaulted. He said the police never took his report and said it was his own fault for dealing with a loan shark. The police also refused to act because he had no evidence. The Tribunal put it to the applicant that his written claims state that he did not seek help from the police. The applicant appeared surprised by this information and said that it must be a mistake. He added that he does not remember what he wrote in his statement of claims.
The applicant testified that since being in Australia he has been making interest payments to the loan shark. He said his intention is to save the remaining [amount] ringgit and repay it in full. He said he is making the interest payments because the loan shark continues to call him on his Malaysian number and has been to his house again since he came to Australia.
The applicant testified that when the loan shark kept coming to his house he decided to come to Australia. The Tribunal put it to the applicant that his written claims indicate he moved to Johore to avoid the loan shark but they found him there through their connnections. The applicant replied that it was his plan to move to Johore but they found out about it before he could do so.
FINDINGS AND REASONS
Country of reference
Attached to the applicant’s departmental file is a copy of his Malaysian passport which verified his claimed identity and nationality. In the absence of any information to the contrary the Tribunal is satisfied the applicant is a national of Malaysia and has assessed his claims against Malaysia.
Feared harm from loan shark
The Tribunal has considered the applicant’s oral evidence and his responses to matters raised with him at the hearing but is not satisfied that his evidence is truthful. The Tribunal considers there are significant inconsistencies between the applicant’s written and oral evidence which haven’t been adequately explained particularly as the applicant informed the Tribunal he had written his claims himself and knew them to be true and correct. At the hearing the Tribunal informed the applicant that aspects of his written and oral evidence were inconsistent and that this causes the Tribunal to doubt the truthfulness of his evidence. The applicant’s responses to the issues raised with him at hearing are summarised in the following paragraphs.
Firstly, the applicant’s written evidence is that he borrowed RM[amount] to settle his family business that was facing bankruptcy. At the hearing he stated something entirely different, namely that he and a friend borrowed RM[a smaller amount] to establish a car park business. In the Tribunal’s view there are no similarities between the two accounts and the differences cannot be explained by forgetfulness or lack of attention to detail.
Secondly, as to the claimed past harm he experienced at the hands of the loan shark the applicant claimed in his written claims that he was assaulted and had a gun held to his head. At the Tribunal hearing he indicated that he was punched and pushed and was threatened with having his hand cut off. It was only after the Tribunal raised the fact that he added that the loan shark had shown him a gun, not placed it to his head. The Tribunal considers it would have been a terrifying moment in the applicant’s life to have a gun placed at his head and considers he would not have misrepresented this in his written claims. Even if he was only shown a gun in a threatening manner the Tribunal considers he would have mentioned it at hearing without being prompted to do so if it had occurred.
Thirdly, at the hearing the applicant informed the Tribunal that he sought help from the police after the loan shark began visiting him at his home and workplace and threatening him. In his written claims he stated that he did not seek help from the police because he was afraid of the loan shark. When this inconsistency was discussed with him at hearing the applicant was clearly surprised and claimed it must have been a mistake. The Tribunal is not persuaded the applicant would mistake such a simple fact and considers it is not a difficult matter to recall whether he did or did not report the matter to the police.
Fourthly, at the hearing the applicant made no mention of his claimed attempt to relocate to Johore to avoid harm from the loan shark. When this omission was discussed with him at hearing the applicant amended his evidence by stating he had only planned to do so. The Tribunal considers that if he had only planned to relocate to Johore he would not have stated in his written claims that the loan shark found him there by way of their connections in every state.
The Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. However, in this case, the Tribunal does not accept that these factors explain or excuse the internal inconsistencies in the applicant’s evidence. These matters, when considered cumulatively lead the Tribunal to find the applicant is not a credible witness.
In view of the above finding about the applicant’s credibility, it follows the Tribunal does not accept that the applicant was indebted to a loan shark in Malaysia for any reason, that he was harmed or threatened with harm by a loan shark, that he reported such matters to the police or attempted to escape the loan shark by moving or planning to move to another state in Malaysia. Nor does the Tribunal accept a loan shark has visited the applicant’s family since his arrival in Australia or that the loan shark is continuing to call him. The Tribunal rejects the applicant’s claims and is of the view he has fabricated the claims to achieve an immigration outcome.
For these reasons the Tribunal does not accept that the applicant faces a real chance of serious harm were he to return to Malaysia now or in the reasonably foreseeable future at the hands of a loan shark or anyone else. He therefore does not have a well-founded fear of persecution in Malaysia.
Similarly, based on the findings above the Tribunal is not satisfied 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 for the reasons claimed or for any other reason.
The applicant does not claim to fear harm in Malaysia for any other reason.
The Tribunal finds the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 2669

3 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction