1706871 (Refugee)

[2018] AATA 2533

1706871 (Refugee) [2018] AATA 2533 (3 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706871

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Luke Hardy

DATE:3 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 03 April 2018 at 11:53am

CATCHWORDS
Refugee – Protection visa – Malaysia – Debt – Trouble with loan sharks – Credibility issues – Delay in applying for protection – Inconsistent claims – Claims do not relate to UN claims grounds for protection – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. [The applicant] is an ethnic Chinese citizen of Malaysia. He arrived in Australia on a [temporary visa] on 19 May 2015. The visa expired on 19 August 2015. [The applicant] overstayed and became an unlawful non-citizen in Australia. He lodged a protection visa application about a year and a half later on 7 February 2017. The delegate refused to grant the visa on 6 March 2017. [The applicant] the sought review by the tribunal

3. [The applicant] appeared before the Tribunal on 8 September 2017 to give oral evidence and present arguments. The hearing was facilitated by an interpreter in the Mandarin-English medium.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of their 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance that he or she 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.

8. 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

9. 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 issues

10. The issue in this case is whether or not the applicant is entitled to protection as a refugee or, in the event that he is not, on complementary protection grounds.

11. For the following reasons, I have concluded that the decision under review should be affirmed.

    Claims to the then Immigration Department

12. In his primary application, [the applicant] claimed to have resided at a specific address in Perak from January to November 2015 and, prior to that, at another specific Perak address from July 2014 to January 2015. Since he arrived in Australia in May 2015, it is implied that he retained the more recent address for some time after his arrival here. [The applicant] claimed he could not remember his address or addresses prior to July 2014. He claimed to have worked as [an Occupation 1] from March 2011 to June 2014 and to have been unemployed since then. Since he came to Australia in May 2015, it is hard to conceive that he was granted a visa whilst claiming to be unemployed.

13. Speaking to questions in his protection visa application form regarding his substantive claims, [the applicant] claimed he fell into default with a gang of loan sharks. He claimed his house was sprayed and vandalised. He claimed his motorcycle was confiscated. He claimed he has siblings who fled Perak due to threats and physical disturbance. He claimed this was why he fled to Australia.

14. [The applicant] indicated that the lenders did not know where he worked, but lent money to him anyway. He claimed that they eventually found out where he worked, whereupon three men approached him in the workplace and beat him badly. He claimed the men demanded he surrender his mobile telephone to them. He claimed his employer paid for his medical bills after the assault. [The applicant] claimed that the attack upon him at his workplace was the factor that made him most afraid for his safety; however, I note that he remained at the same address from the time he stopped working in June 2014 to January 2015, seeming to give the loan shark gang plenty of time to find him at home.

15. [The applicant] claimed he did not seek help from anyone because he was embarrassed and did not think the police could do anything. He acknowledged it was “probably foolish” to think that the police would be unable to do anything, seeming to stand back from prejudices about the usefulness of the police he had had at the time. However, he later said in his protection visa application that he considers the police to be in the pocket, as it were, of loan sharks.

16. [The applicant] claimed he could not relocate within Malaysia to avoid harm because he could not afford to do so. However, I note, he flew to Australia. Logically, this would have been after providing some assurances as to his ability to support himself for three months here.

17. [The applicant] provided no material, documentary or other evidence in support of his claims.

18. For the purposes of this review, [the applicant] submitted to the Tribunal a copy of the delegate’s decision. The delegate, who did not interview [the applicant], relied on independent country information detailing efforts by the authorities in Malaysia to crack down on and punish unscrupulous loan sharks. The delegate found that [the applicant] was and would be able to avail himself of effective state protection.

19. [The applicant] did not suggest that his “race” had anything to do with the harm he feared in Malaysia. The delegate found that there was no nexus between [the applicant]’s claims and the refugee criteria in s.5J(1)(a) of the Act.

    Evidence to the Tribunal

20. [The applicant]’s evidence before me was to a significant extent inconsistent with what he claimed to the Department.

21. In evidence to me, [the applicant] said he worked for an unauthorised lender for four or five years in Malaysia. He said his problems began when he started to lend money on his own, instead of, or in addition to, lending on behalf of the “company” for which he worked. He claimed that the friend who introduced him to the boss betrayed him to the latter. He went on to say, however, that he proceeded to arrange his own loans with the boss’s money and blessing. His evidence about how he became offside with the loan shark for whom he worked was somewhat confused.

22. [The applicant] said his problems worsened when he decided that working for a loan shark was not the right job for him. He said the boss forced him to be responsible for the money he had lent. He also said the boss required him to repay the money with interest. He said the boss lent him money at 3% and he lent it onward to customers at 15%. However, his evidence continued to strike me as being very confused because when I asked him why he added such a higher rate of interest he said he was following the law, only to acknowledge soon afterwards that he was engaged in illegal lending.

23. I asked [the applicant] how his claims could possibly be a refugee issue. In reply, he said he does not know Australian law. He said he was bashed in Malaysia and needed to run away. He said his boss engaged some men to take him to an office where they broke his leg. He said they also tried to find him at his home on Chinese New Year’s Day in 2016; by then, he indicated, he had left for Australia and only his wife and children remained. [The applicant] explicitly claimed that the gang did not come to his house until eight or nine months after he left Malaysia. I put to him that there seemed to have been a long delay in the gang coming after him. He said that he had bene complying with his boss’s demands prior to fleeing Malaysia and that this was why the men did not come to his house until after he left. I put to him that taking him to an office and breaking his leg, while he was still in Malaysia, did not appear to sit with his suggestion that his boss regarded him as compliant up until after he left the country. In reply, [the applicant] merely adhered to the claim about having been beaten till his leg broke, adding that this caused him to be hospitalised in December 2015 or January 2016 and unable to walk for two or three months. I note, again, that [the applicant] was already in Australia several months before December 2015.

24. I asked [the applicant] if his sole occupation in Malaysia had been as a loan shark for the boss and he said this was correct. I then asked him if he had ever been [an Occupation 1] and he said he had not.

25. I put to [the applicant] that he had claimed in his protection visa application form that he was hospitalised with “concussion in my head” and had not mentioned having had his leg broken. In reply, he merely insisted that he had been beaten in an office rather than at his workplace. He did not resolve the discrepancy as to the sites of injuries on his body.

26. I put to [the applicant] that his claims at the Tribunal hearing were substantially and significantly inconsistent with the claims he had made in his protection visa application form, in which he said that he borrowed from a lender rather than went to work for one, that he had been beaten in his own workplace rather than abducted and taken to an office to be beaten, and that the loan shark’s gang came to his house on occasions before he left Malaysia. I put to [the applicant] that he had signed a declaration in his protection visa application form to the effect that his claims were true, complete and correct. In response, [the applicant] said that he had been assisted in the completion of his protection visa application form by another person who had not spent much time at school. However, he then suggested that he merely told that person “I owe other people money” and had then left the rest of the details for him to flesh out: “All I know,” he said at the hearing, “is that I didn’t want to return to Malaysia.” Overall, [the applicant] did not resolve the substantial inconsistencies in his claims.

27. I asked [the applicant] why he took so long to lodge his protection visa application, as I noticed the lodgement date even fell a long time after Chinese New Year 2016. In reply, he said he did not understand “these things” due to being “fresh” in Australia. However, he went on to say that after he arrived in [Australia], he was able to find illegal work in the country and even negotiate his way by air to [another city]. I put to him that he seemed otherwise very able to do things in Australia more or less when he needed to do them. In reply, he said that lack of money had been the reason why he took so long to apply for a protection visa.

28. I asked [the applicant] if, for the sake of his family, he had been repaying outstanding monies to the boss from his earnings in Australia and he said he had not been doing so. He said he had bene sending money to his children and talked about life being easier. I asked him, in light of the home invasion on Chinese New year’s Day if he was not afraid for his family’s safety and he said he was sure the gang was angry only with him.

29. I asked [the applicant] if he had any claims relating to his being ethnic Chinese in Malaysia, and he merely said in reply that his claims about the loan shark were “serious stuff”.

    Findings in relation to s.36(2)(a)

30. On consideration of all of the evidence in this matter, and having regard to significant and unresolved inconsistencies in his evidence, I find that [the applicant] is a highly unreliable witness in the present matter. I do not believe his account of having told a genuine story to someone else who then added incorrect details; [the applicant] did not suggest this until I confronted him with the very apparent discrepancies in his claims. Even on their own, [the applicant]’s new claims are far-fetched and inconsistent.

31. In addition, I find that none of [the applicant]’s claims relate to any of the five factors cited in s.5J(1)(a) of the Act.

32. On the evidence before me, I am not satisfied that [the applicant] faces a real chance of persecution in Malaysia in the reasonably foreseeable future for any of the reasons in s.5J(1)(a) of the Act. He is not a refugee.

    Findings in relation to s.36(2)(aa)

33. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa) ), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

34. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

35. [The applicant]’s complementary protection claims rely on the same facts as his claims to protection as a refugee. As shown above, these claims have failed comprehensively on credibility grounds and, ultimately, for not meeting the “real chance” test”.

36. In view of my findings of fact above, [the applicant]’s claims can no more succeed as complementary protection claims.  

37. Having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that [the applicant] will suffer significant harm.

38. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

39. For the reasons given above I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

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

    Luke Hardy
    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.

    …