1705835 (Refugee)

Case [2021] AATA 5642

1705835 (Refugee) [2021] AATA 5642 (1 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705835

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Simone Burford

DATE:1 November 2021

PLACE OF DECISION:  Perth

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

Statement made on 01 November 2021 at 2:20pm

CATCHWORDS  
REFUGEE – protection visa – Malaysia – multilevel marketing business/pyramid scheme – loan sharks – credibility concerns – inconsistent evidence – effective state protection – race – Chinese ethnicity – ‘Bhumiputra’ policy – decision under review affirmed 

LEGISLATION 
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5LA, 36, 65, 423A, 424A
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

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 and Border Protection on 23 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

    Background

  2. The applicant is a [age]-year-old Malaysian citizen. She arrived in Australia [in] September 2019 on a UD-601 Electronic Travel Authority visa. She travelled to Australia alone and does not have any family here.

  3. Prior to coming to Australia, she was living in Johor, Malaysia with her family.

  4. The applicant’s parents and [number] younger brothers are living in Malaysia.

    Issues

  5. The issues in this review are whether there is a real chance that, if she returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

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

    Claims and evidence

    Protection claims

    Protection visa application

  7. On her application form the applicant identified herself as Buddhist and as ethnically Chinese.  She indicated she never been married. She confirmed this information at the hearing on 24 September 2020 however she said she had no religion.  When the Tribunal queried this, she said she put Buddhist on the application form because she followed her mother. The Tribunal notes the application made no claims with respect to her religion or lack of religious belief. She indicated she speaks, reads and writes English, Bahasa Malaysia and Mandarin Chinese.

  8. Her application form indicated she…

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1705835 (Refugee) [2021] AATA 5642
Case
[2021] AATA 5642
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse the applicant, a Malaysian citizen, a protection visa. The applicant arrived in Australia in September 2019 and claimed she feared persecution upon return to Malaysia due to her involvement in a multilevel marketing business that turned out to be a scam. She alleged she had lost her investment, borrowed money from a loan shark, and was subsequently threatened and beaten by her "downline" and the loan shark, who she claimed had connections throughout the country and had warned her not to involve the police for fear of harm to her family.

The core legal issues before the Tribunal were whether there was a real chance that the applicant would be persecuted for one of the five prescribed reasons under section 5J(1)(a) of the *Migration Act 1958* (the Act), or if there were substantial grounds to believe that, as a necessary and foreseeable consequence of her removal to Malaysia, she would suffer significant harm under section 36(2)(aa) of the Act. The Tribunal was required to assess the applicant's claims against the relevant country information and the statutory criteria for protection visas.

The Tribunal's reasoning focused on inconsistencies and a lack of credibility in the applicant's evidence. It noted discrepancies between her initial application and her testimony regarding her religion, her involvement with an assistant in preparing her application, and the details of her financial situation and the loan. The Tribunal found that the applicant's claims regarding the loan shark and her downline were not substantiated to the required standard, particularly in light of her inconsistent accounts and the lack of evidence of any attempts to seek protection from Malaysian authorities. The Tribunal also considered updated country information regarding Malaysia, which did not corroborate the applicant's specific fears in a way that would establish a well-founded fear of persecution or significant harm.

Ultimately, the Tribunal concluded that the applicant had not established a well-founded fear of persecution or a real risk of significant harm upon return to Malaysia. Accordingly, the Tribunal affirmed the delegate's decision to refuse the protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).Background The applicant is a [age]-year-old Malaysian citizen. She arrived in Australia [in] September 2019 on a UD-601 Electronic Travel Authority visa. She travelled to Australia alone and does not have any family here. Prior to coming to Australia, she was living in Johor, Malaysia with her family. The applicant’s parents and [number] younger brothers are living in Malaysia.Issues The issues in this review are whether there is a real chance that, if she returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Claims and evidenceProtection claimsProtection visa application On her application form the applicant identified herself as Buddhist and as ethnically Chinese. She indicated she never been married. She confirmed this information at the hearing on 24 September 2020 however she said she had no religion. When the Tribunal queried this, she said she put Buddhist on the application form because she followed her mother. The Tribunal notes the application made no claims with respect to her religion or lack of religious belief. She indicated she speaks, reads and writes English, Bahasa Malaysia and Mandarin Chinese. Her application form indicated she had resided at one address from 1994 to November 2016 when she left Malaysia. This was consistent with the Malaysian identity card details she provided to the Department. She listed her mother and father as her only family in Malaysia (Question 42) and did not provide any details of employment in Malaysia and indicated she was unemployed at the time she made the application and was supporting herself through ‘savings’ (Question 84). She indicated she did not have any assistance in translation on preparation of the application form (Question 101). She indicated she had not travelled to any country other than Australia (Question 80). She declared that the application was ‘truthful and honest in every way’. (Question 1). The applicant initially presented her claims in her protection visa application in which she states, in summary, that:· She invested money in a multilevel marketing business. She convinced a few of her friends and relatives to invest in her network. They made a small profit at first and tried to increase their investment. She borrowed money from a loan shark to invest in the pyramid scheme, which turned out to be a scam. She lost all of her investment and was unable to give money back to her ‘downline’ or her creditor and was scared they would threaten to beat her if she couldn’t repay the money.· She said she was beaten by her downline who were chasing her for money and the loan shark threatened her and her family. She fears that if she were to return to Malaysia now or in the reasonably foreseeable future she would be harmed by her downline and the loan shark. She said the loan shark told her not to report the matter to the police or they would hurt her family.· She cannot move to another part of the country because the loan sharks have gang members throughout the country.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Claims and evidenceProtection claimsProtection visa application On her application form the applicant identified herself as Buddhist and as ethnically Chinese. She indicated she never been married. She confirmed this information at the hearing on 24 September 2020 however she said she had no religion. When the Tribunal queried this, she said she put Buddhist on the application form because she followed her mother. The Tribunal notes the application made no claims with respect to her religion or lack of religious belief. She indicated she speaks, reads and writes English, Bahasa Malaysia and Mandarin Chinese. Her application form indicated she had resided at one address from 1994 to November 2016 when she left Malaysia. This was consistent with the Malaysian identity card details she provided to the Department. She listed her mother and father as her only family in Malaysia (Question 42) and did not provide any details of employment in Malaysia and indicated she was unemployed at the time she made the application and was supporting herself through ‘savings’ (Question 84). She indicated she did not have any assistance in translation on preparation of the application form (Question 101). She indicated she had not travelled to any country other than Australia (Question 80). She declared that the application was ‘truthful and honest in every way’. (Question 1). The applicant initially presented her claims in her protection visa application in which she states, in summary, that:· She invested money in a multilevel marketing business. She convinced a few of her friends and relatives to invest in her network. They made a small profit at first and tried to increase their investment. She borrowed money from a loan shark to invest in the pyramid scheme, which turned out to be a scam. She lost all of her investment and was unable to give money back to her ‘downline’ or her creditor and was scared they would threaten to beat her if she couldn’t repay the money.· She said she was beaten by her downline who were chasing her for money and the loan shark threatened her and her family. She fears that if she were to return to Malaysia now or in the reasonably foreseeable future she would be harmed by her downline and the loan shark. She said the loan shark told her not to report the matter to the police or they would hurt her family.· She cannot move to another part of the country because the loan sharks have gang members throughout the country. The issues in this review are whether there is a real chance that, if she returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

Decision

Reasons for decision

The Tribunal notes that it discussed with the applicant at the hearing what was then the current Department of Foreign Affairs and Trade (DFAT) Country Information Report: Malaysia dated 13 December 2019 (the 2019 DFAT Report) in considering the claims raised in the application. On 29 June 2021, DFAT released an updated country information report for Malaysia – the Country Information Report: Malaysia dated 29 June 2021 (the 2021 DFAT Report). The Tribunal considered the content of that report with respect to the applicant’s claims. The Tribunal considers that the general content of the report as it relates to the applicant’s claims is consistent with the 2019 DFAT Report and with other country information discussed at the hearing. Relevant country information is discussed further below.DECISION MAKING FRAMEWORKCriteria 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. 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 themselves 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 fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).

Ratio Decidendi

Legal Principle Established

The Tribunal has included references to both the 2019 DFAT Report and the 2021 DFAT Report where relevant. The Tribunal was satisfied that the issues arising from the 2021 DFAT Report had been raised with the applicant at the third hearing. Country information is discussed further below.CONSIDERATION Applicant identity and country of reference The applicant claims to be a citizen of Malaysia. The applicant provided a copy of her Malaysian passport issued [in] 2015 to the Department. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection. The Tribunal finds that the applicant is a citizen of Malaysia, which is also her receiving country for the purposes of the refugee and complementary protection assessments.EvidenceFirst hearing When the applicant gave evidence before the Tribunal, as previously constituted, on 16 February 2018, she said that [Ms B] had assisted her in preparing her application. The Tribunal reviewed a recording of that hearing. When asked if [Ms B] lived in Perth she ‘no’ and when asked where she lived the applicant told the Tribunal that [Ms B] had ‘returned back to her own country’. She was asked if that was Malaysia and she said ‘yes’ and when she was asked if she was in Malaysia now she said ‘yes’. The applicant told the Tribunal at the first hearing that she was involved in a multilevel marketing business. She said she couldn’t recall the name of the business. She said she was just sending money to a person who was the person who would try to earn money from it. She said she could make a profit from the multilevel marketing business/pyramid scheme by earning 20% by recruiting one person but the amount depended on how much was invested. When asked how much profit the applicant had earned she told the Tribunal it was a bit over RM1000. She said she borrowed around RM8000 from a loan shark. The Tribunal asked about the terms of the loan and she said that she hadn’t paid off the loan and the interest was still going but there was no deadline for paying off the loan. She said every month she paid off a little bit. The applicant told the Tribunal at the first hearing that her initial investment was RM2000 which she lost when the scheme collapsed. She said initially she was getting profit but then the profit wasn’t coming anymore. She said she did not report it because she thought it would be regulated by the government. As noted above, the hearing was adjourned to a later date however the member became unavailable.Second and third hearings The applicant told the Tribunal that her parents and [number] younger brothers were living in Malaysia. She said her parents have been divorced for around 10 years and that her mother was living in Johor. She did not know where her father was living. Her mother was working in a supermarket in Johor. Her brothers both lived with her mother in Johor. One of her brothers was married and he and his wife were living with her mother. One brother was still in school and the other was temporarily not working due to COVID-19. Her sister-in-law works in a supermarket. She said they lived in a rental property which they had been living in for about four years prior to her coming to Australia.