1706650 (Refugee)

1706650 (Refugee) [2020] AATA 5557 (18 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706650
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Christopher Smolicz
DATE:18 December 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 December 2020 at 8:28am
CATCHWORDS
REFUGEE – protection visa – Malaysia – fears harm from money lender – no evidence provided – credibility concerns – fabricated claims – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 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 and Border Protection on 24 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 on 2 November 2016.
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 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 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.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 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issue
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds because he has unpaid debts and fears harm from money lenders in Malaysia.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a [age]-year-old single Malay male born in Pahang, Malaysia.
He travelled to Australia on a 3-month ETA visa [in] June 2016. He has not departed Australia.
The Tribunal has had regard to the applicant’s Malaysian passport and finds he is a citizen of Malaysia. The Tribunal has assessed the applicant’s claims against Malaysia as the receiving country.
Summary of substantive claims
The applicant provided the following brief evidence in support of his claims for protection:
·He was threatened in Malaysia as he was in debt as a result of a gold investment.
·He was followed by a money lender who attempted to settle the debt.
·His life is threatened, he is very stressed and at risk.
·He therefore left Malaysia for Australia, where he feels comfortable and safe.
Tribunal hearing
The applicant took part in a video conference hearing before the Tribunal on 2 November 2020.
The Tribunal questioned the applicant as to why he travelled to Australia and why he fears returning to Malaysia.
The applicant said in 2014 he borrowed [amount] MYR (about [amount] AUD) and invested the money in a gold investment business in Malaysia [The] business was “blacklisted” by [Bank 1]. He could not remember when the business was blacklisted and provided different answers during the hearing. After further questioning he said the business was blacklisted in 2016 and he quit in 2015.
His role in the business was to try to recruit people to invest in the scheme. Investors would pay [amount] MYR and if they recruited other investors, they would be a paid a commission from the people they recruited. The applicant said he was paid a commission but was unable to explain who paid him money or how it was paid.
The applicant maintained the scheme was legal and was not a pyramid scheme. The people who invested money were called “down liners”. They lost their investment when the business was blacklisted and demanded he pay back their losses. He could not explain why the business was blacklisted.
The Tribunal asked the applicant what information he would tell potential investors he was seeking to recruit in the scheme. The applicant was unable to answer the question. After further questioning, he said there were three levels (silver, gold, platinum) in the scheme with different investment requirements. He was unable to explain how the scheme operated and where the money would be invested or for how long.
The Tribunal asked the applicant if he had any documents to confirm his role in the investment scheme and his [loan]. The applicant said he did not have any investment documents, loan agreements or bank statements.
The Tribunal asked the applicant why he travelled to Australia in 2016. The applicant said he came to Australia to earn money so that he could repay all the people he recruited. He owes [amount] MYR to three people he recruited.
The Tribunal asked the applicant if he kept a schedule or repayments to keep track of the repayments he had made. The applicant said he did not keep any records and repaid the money little by little. When asked how he was able to repay the debts from Australia, the applicant said he would transfer the money online but could not provide any transfer records in support of his evidence.
The Tribunal referred the applicant to his claim form (Q89) and noted where he declared that he had had repaid the debts but was still threatened. The applicant said he was able to repay some people but not others. The Tribunal asked the applicant to explain who threatened him. The applicant said the “down liners” threatened him but he did not experience any physical harm in Malaysia.
The Tribunal asked the applicant if he tried to get any help from the police in Malaysia. The applicant said he did make a police report. He was unable to produce the police report and did not know where it was. The Tribunal referred the applicant to his claim form (Q92) and noted that he declared that he did not seek any help in Malaysia. He said the police were very slow, so he did not know what action was taken.
The Tribunal asked the applicant how he was able to afford to travel to Australia if he was in debt. The applicant said he used his savings. The applicant said he wanted to work in Australia for 2 years so that he could repay the debts.
Credibility
The Tribunal finds the applicant’s evidence at the hearing was vague, lacking in detail and inconsistent. The Tribunal had to prompt the applicant throughout the hearing to provide any meaningful details about his claims and the investment business. The Tribunal did not find the applicant’s evidence about the investment scheme and why he fears return to Malaysia to be credible.
The Tribunal finds the applicant was unable to provide a coherent explanation of how the investment business operated. The Tribunal would have expected that if the applicant was recruiting investors, he would be in a position to provide detailed and clear evidence about the operation of the investment scheme.
The Tribunal finds the applicant’s written claims were brief, and the Tribunal found it concerning that he was unable provide any documentary evidence to support his claims. The Tribunal would have expected that if the applicant was involved in a registered financial scheme, borrowed [money], invested funds and recruited investors in a financial business, he would have business records, loan agreements and banking statements to support his claims.
The Tribunal would also have expected that if the applicant was repaying debts by electronic funds transfer from Australia, he would be able to provide financial records to support his evidence. The Tribunal finds it illogical the applicant would not keep any records as evidence of the people he repaid and of the amounts of funds outstanding if his goal was to travel to Australia to earn money and repay his debts.
The Tribunal has considered the applicant’s evidence and does not accept the applicant invested any money in a gold investment business in Malaysia which was blacklisted by [Bank 1]. The Tribunal does not accept the applicant’s claims that he recruited investors who lost their money and have threatened him, and that he now fears returning to Malaysia. The Tribunal finds the applicant has manufactured his claims for protection.
Well-founded fear of persecution
Further, as discussed with the applicant at hearing, the Tribunal finds that the applicant does not claim to fear persecution in Malaysia for reason of his race, religion, nationality, membership of a particular social group or political opinion. The Tribunal finds there is not a real chance he would be persecuted for one or more of those reasons if he returned to Malaysia in the reasonably foreseeable future. He does not satisfy the criteria in s.5J(1)(a) of the Act. The Tribunal finds that the applicant does not have a well-founded fear of persecution.
For the reasons given above, 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
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).
For the reasons detailed above, the Tribunal is not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Malaysia there is a real risk the applicant will suffer significant harm.
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 5557

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Immigration

Statutory Interpretation

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Jurisdiction

Procedural Fairness

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