1707024 (Refugee)
[2019] AATA 4556
•15 August 2019
1707024 (Refugee) [2019] AATA 4556 (15 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1707024
COUNTRY OF REFERENCE: Malaysia
MEMBER:Nora Lamont
DATE:15 August 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 15 August 2019 at 12:00pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – gang member – loan sharks – credibility concerns – knowledge of alleged gang – knowledge of alleged loan – inconsistent evidence – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220Any 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 on 10 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 December 2016.
The applicant appeared before an authorised officer to give evidence and present arguments for a preliminary hearing on 21 June 2019. The Tribunal resumed the hearing on 13 August 2019.
The applicant was not represented at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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 applicant travelled to Australia on a valid Malaysian passport and states that he is a national of Malaysia. The delegate had no concerns about the applicant’s identity. Therefore the Tribunal has assessed the applicant’s claims against Malaysia as his country of nationality and his receiving country.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons as set out in 5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk that he will suffer significant harm.
The applicants claims as accurately summarised by the Department are as follows: [1]
·The applicant claims that the leader of the gang that he was in forced him to give him a sum of money.
·He didn’t have the money to give the gang so he borrowed money from a loan shark.
·The applicant had to pay the gang and the loan shark.
·The gang will harm him.
[1] AAT File page 37
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482: -stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that 'if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt'. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
Tribunal Hearing
At the initial evidence hearing the applicant outlined his background and work life. At the resumed hearing the Tribunal focused on the applicant’s claims for protection.
The applicant said that his friend from school was involved with a gang and he had lots of money and a nice car. The applicant also wanted these things and joined the gang. When asked what type of gang it was the applicant said they sold real estate. He said the head of the gang was a VIP. When asked what a VIP was the applicant said he was a political figure. The applicant however, could not tell the Tribunal his name. The Tribunal told the applicant that it did not find it credible that the gang sold real estate. The applicant then said the real estate was a front for selling drugs and gambling. He said the gang dealt in heroin, marijuana and gambling.
The applicant said his friend and other gang members would give him money for no reason. Again the Tribunal stated it did not find this to be credible as why would they just give him money and expect nothing in return. He said he took about 10,000 MR. They asked him to sell drugs and he didn’t want to do it. He said he used the money to pay for his car and for his house payments. The applicant said that when he found out they were selling drugs he tried to distance himself from them. One day a gang member came looking for him and asked him to pay back all the money he had been given.
The applicant said they were rude and forceful. He didn’t have the money to pay them back so he went to a loan shark and borrowed 20,000 MR. He paid the gang 10,000 MR and used the rest to pay for his house and car.
When asked where he met the loan shark the applicant said in his office. The Tribunal asked if he had paperwork related to the loan and he said he did but it was in Malaysia. The Tribunal noted to the applicant that during the first hearing he had said he kept the paperwork in Malaysia and he was asked to provide it. He never did. The applicant then said he didn’t want his mother in law to know about the loan so he threw away all his paperwork before he came to Australia. Again the Tribunal did not find this to be credible.
The applicant said that his wife is paying back the loan shark in Malaysia. He had no paperwork showing that payments were being made and he said his wife pays the loan shark in cash every month or so. When asked how much had been paid off the applicant said he maybe 10,000 MR or 12,000 MR. When asked what the interest rate was he said he did not know but that it was high.
The applicant said one day at the shopping mall someone made a cutting throat motion at him. He didn’t know if it was the gang or the loan shark. This was before he paid back the gang. Also one time he had a broken mirror on his car and a scratch. Again, he didn’t know if it was a gang member or the loan sharks.
The applicant had told the first Tribunal hearing that he had saved $15,000 AUD while in Australia and the Tribunal queried why he didn’t use this money to pay off the loan. He said he needed that money.
The applicant said that he would be forced to sell drugs if he went back to Malaysia by the gang as he is not a drug user so they can trust him. When asked why he didn’t just go to the police the applicant said he didn’t dare go to the police.
The applicant also said that after this period of time and after paying off the money to the gang they did not do anything to him or threaten him. The applicant was asked if the gang was happy with him and he was paying off the loan why didn’t he just return to Malaysia. The applicant said there is no work in Saba and he won’t be able to pay the loan shark.
The applicant said his wife has reported to him that she has seen strangers loitering around their house. The applicant said that if he returned to Malaysia he would have to be in the gang, he won’t be able to get a job and needs to pay the loan shark and his family won’t be safe.
Findings
The Tribunal accepts that the applicant is a national of Malaysia and that he came to Australia to make money. However, for the reasons that follow the Tribunal has a number of concerns with the applicant’s claims to have been involved with a gang and loan shark.
The Tribunal does not find the applicant to be credible. The Tribunal does not accept that the applicant joined a gang thinking they were just into real estate. Further, the applicant could not name the gang or the alleged VIP gang head. His claim to have just assumed the gang was giving him money “for no reason” does not seem credible.
The applicant’s oral evidence about the circumstances of the loan, the terms of the loan and limited evidence of any trouble or threats from the loan sharks were vague and inconsistent.
The Tribunal does not accept that if the applicant returned to Malaysia he would be forced to sell drugs as he was not forced to sell drugs when he was in the gang as he claims and he told the Tribunal once he paid the money back to the gang they didn’t bother him.
The applicant said he had the paperwork for the loan from the loan sharks at his home in Malaysia. Then he said he could provide it to the Tribunal but he did not. Then he said he actually threw all his paperwork away and does not have it. The Tribunal does not accept the applicant’s claims of going to a loan shark and getting a loan and then being inconsistent with whether he did have paperwork related to it and the Tribunal does not accept that his wife makes payments in cash to the loan shark.
Given these concerns and as discussed at the hearing, the Tribunal does not accept that the applicant is a credible witness. For the reasons set out above, the Tribunal does not accept the applicant’s claims that he was in a gang and didn’t have to do anything, that he was threatened at the shopping mall and his car was scratched and his mirror was broken by either the loan shark or the gang. It follows that the Tribunal does not accept that the applicant’s wife is under threat or that strangers are loitering around her house.
Given these findings the Tribunal does not accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from money lenders or the gang. The Tribunal is therefore nor satisfied that the applicant meets the alternative provisions in 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 criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nora Lamont
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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