1706449 (Refugee)

Case [2021] AATA 2892

1706449 (Refugee) [2021] AATA 2892 (24 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706449

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Simone Burford

DATE:24 March 2021

PLACE OF DECISION:  Perth

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

Statement made on 24 March 2021 at 12:37pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from loan shark – attacks and threats – credibility – vague, inconsistent and implausible claims and evidence, omitted information and no supporting documentation – previous travel to Australia and other countries and voluntary returns – work in home country and in Australia on tourist visas – no harm to wife and children, or to applicant during visits to hometown – country information – actions against loan sharks by government and police – possibility of relocation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5J(1)(a), 5H, 36(2), (2B)(b), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510

BEH15 v MIBP [2019] FCAFC 184

Chand v MIEA [1997] FCA 1198

CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v MIBP [2018] FCFCA 2

Guo Wei Rong and Pam Run Juan v MIEA (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v Li [2013] HCA 18
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
MIBP v SZVFW [2018] HCA 30
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Lay Lat (2006) 151 FCR 214
MIMA v Rajalingam (1999) 93 FCR 220.
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
SZBEL v MIMIA (2006) 228 CLR 152
SZQNO v MIAC [2012] FCA 326
WAKK v MIMIA [2005] FCAFC 225

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 dependants.

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 9 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. He is Buddhist and has identified himself as ethnically Chinese.  His parents are deceased.  He was born in [Town], Negri Sembilan, Malaysia and is one of 10 children, eight of whom remain living in Malaysia.  He also has a wife in Malaysia from whom he has been estranged for 10 years.  They have four adult children who are all living…

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Details
AGLC
1706449 (Refugee) [2021] AATA 2892
Case
[2021] AATA 2892
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 claimed to fear serious harm from a loan shark to whom he owed a significant debt, alleging past physical assaults and threats. He also stated he had not sought assistance from Malaysian authorities due to a belief they could not provide adequate protection and that relocation within Malaysia was not feasible due to his established livelihood and lack of contacts elsewhere.

The primary legal issues before the Tribunal were whether there was a real chance the applicant would be persecuted for one of the five prescribed reasons under section 5J(1)(a) of the Migration Act 1958, or if, as a necessary and foreseeable consequence of removal to Malaysia, there was a real risk of significant harm under section 36(2)(aa) of the Act. The Tribunal was required to consider the applicant's claims in light of country information and assess the credibility of the evidence presented.

The Tribunal found the applicant's claims to be vague, inconsistent, and implausible, noting a lack of supporting documentation and omitted information. It also considered the applicant's previous travel to Australia and other countries, his voluntary returns, and his work in Malaysia and Australia on tourist visas. The Tribunal had regard to country information indicating that loan sharking is illegal in Malaysia, that police have broad powers to investigate and prosecute such activities, and that government efforts are being made to combat corruption and illegal money lending. The Tribunal concluded that the applicant had not established a well-founded fear of persecution or a real risk of significant harm, and therefore, the delegate's decision to refuse the protection visa should be affirmed.

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 9 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. He is Buddhist and has identified himself as ethnically Chinese. His parents are deceased. He was born in [Town], Negri Sembilan, Malaysia and is one of 10 children, eight of whom remain living in Malaysia. He also has a wife in Malaysia from whom he has been estranged for 10 years. They have four adult children who are all living in Malaysia. He initially arrived in Australia on [Date 1] December 2008 on a [Subclass 1] Electronic Travel Authority visa, departing on [Date 2] December 2008. He travelled to Australia again on [Date 1] March 2009 on another [Subclass 1] Electronic Travel Authority visa, departing on [Date 2] March 2009. He returned to Australia [in] November 2016, on a [Subclass 2] Electronic Travel Authority visa. He applied for a protection visa on 13 January 2017.Issues The issues in this review are whether there is a real chance that, if he 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 him being removed from Australia to Malaysia, there is a real risk that he 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 The applicant initially presented his claims in his protection visa application, in which he states, in summary, that:· He owes more than 50,000 Malaysian dollars to a loan shark and is unable to pay. He is scared the loan shark will hurt/hit him seriously.· The loan shark has already hit him several times and poured hot cooking oil on his body while he was cooking. The loan shark also threatened to break his legs and hands.· The applicant has not sought help from the authorities. They would not be able to protect him 24 hours.· He cannot relocate elsewhere in Malaysia because he has been living in his village more than [Number 1] years and he sells vegetables and it is easier for him to make a living in his small town and it would be difficult for him to relocate because he does not know anyone in the new place and it would take him time to build his client base. The applicant submitted a copy of his Malaysian passport issued [in] 2016 to the Department. The applicant was not interviewed by the Department in relation to the application. He did not provide any other documents or evidence in support of his application to the Department.The delegate’s decision The delegate refused the visa on 9 March 2017. The applicant provided a copy of the delegate’s decision with his application for review.

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 The applicant initially presented his claims in his protection visa application, in which he states, in summary, that:· He owes more than 50,000 Malaysian dollars to a loan shark and is unable to pay. He is scared the loan shark will hurt/hit him seriously.· The loan shark has already hit him several times and poured hot cooking oil on his body while he was cooking. The loan shark also threatened to break his legs and hands.· The applicant has not sought help from the authorities. They would not be able to protect him 24 hours.· He cannot relocate elsewhere in Malaysia because he has been living in his village more than [Number 1] years and he sells vegetables and it is easier for him to make a living in his small town and it would be difficult for him to relocate because he does not know anyone in the new place and it would take him time to build his client base. The applicant submitted a copy of his Malaysian passport issued [in] 2016 to the Department. The applicant was not interviewed by the Department in relation to the application. He did not provide any other documents or evidence in support of his application to the Department.The delegate’s decision The delegate refused the visa on 9 March 2017. The applicant provided a copy of the delegate’s decision with his application for review. The delegate refused the visa on the basis they were not satisfied that there was a real chance that, if the applicant was returned to Malaysia, he would be persecuted for one or more of the reasons mentioned in s.5J(1)(a) of the Act. Therefore, the applicant is not a refugee as defined in s.5H and the criterion in s.36(2)(a) of the Act was not satisfied. The delegate also found that, having regard to country information and given the minimal detail and lack of supporting evidence from the applicant, he had not established his case. The delegate found the applicant would receive adequate protection from the authorities in Malaysia. Accordingly, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there was a real risk that he would suffer significant harm. Accordingly, the applicant was not a person in respect of whom Australia had protection obligations, as outlined in s.36(2)(aa) of the Act.Review application The applicant filed his application for review on 29 March 2017. The applicant was initially scheduled to appear before the Tribunal, differently constituted, on 15 March 2018. That hearing was postponed when the constituted member became unavailable. Following reconstitution, the applicant appeared before the Tribunal on 25 November 2020 and 11 March 2021 to give evidence and present arguments. The hearing on 25 November 2020 was held by telephone. The hearing was held during the COVID-19 pandemic. At the time the hearing was conducted, the Tribunal registry was closed and the Tribunal was not undertaking in-person hearings. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. At that hearing the Tribunal discussed with the applicant whether there were any changes to his claims and the information on which he was seeking to rely in support of his claims.

Decision

Reasons for decision

The Tribunal finds that the applicant is a citizen of Malaysia, which is also his receiving country for the purposes of the refugee and complementary protection assessments.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 (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 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). When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.

Ratio Decidendi

Legal Principle Established

Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal notes in particular that it has had regard to the 2019 DFAT Report in considering the claims raised in the application.Country information Information regarding loan sharks outlined in the 2019 DFAT Report was discussed in general terms with the applicant at the second hearing. Country information indicates that loan sharks, or ‘Ah Longs’, operate very publicly in Malaysia carrying on moneylending activities without a licence and charging high interest rates to do so. While such practices are illegal, moneylenders advertise their services publicly[11]. However, country information indicates it is an offence to illegally lend money in Malaysia and police have broad powers to investigate alleged loan sharks.[12] In this regard, police can visit, enter, inspect or search premises without a warrant and seize movable properties and business documents to assist with the investigations against alleged loan sharks. Penalties for illegal moneylending include a jail term of up to five years. [13] [11] DFAT, Country Information Report: Malaysia, 13 December 2019 par 3.108, page 39-40.[12] Illegal money lending or loan sharking is an offence under s.5(2) of the Moneylenders Act 1951, which carries a fine of between RM250,000 and RM1 million (AUD80,000 – AUD320,000) or, a jail term of up to five years, or both, see DFAT, Country Information Report: Malaysia, 13 December 2019.[13] DFAT, Country Information Report: Malaysia, 13 December 2019. The police actively investigate and prosecute illegal money lenders. Police actions against individual loan sharks under the Moneylenders Act 1951 are reported on regularly in the Malaysian media.[14] Country information suggests the Government has been making efforts to reduce corruption within the political system and the police force, and to target illegal money lenders by charging them with criminal offences and/or fining them. This suggested that the police would take action if the applicant reported being harassed or threatened by an illegal money lender. The applicant said he had a friend who had reported money lenders and the police took no action and then he was beaten. [14] ‘14 held for illegal money lending in Pahang, items worth RM1million seized’ NST, November 2019 ‘Violent gang of loan shark members nabbed’ The Star, Jan 2020