1707637 (Refugee)

[2018] AATA 1747

1707637 (Refugee) [2018] AATA 1747 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707637

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Michael Judd

DATE:30 April 2018

PLACE OF DECISION:  Perth

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

Statement made on 30 April 2018 at 10:16am

CATCHWORDS

Refugee – Protection Visa – Malaysia – Debtor fearing creditor – Effective protection available – Economic reasons – Credibility concerns

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

2.The applicant, who claims to be a citizen of Malaysia, applied for the visa on 10 January 2017. The delegate refused to grant the visa on the basis that she found that the Applicant would receive effective protection from the Royal Malaysian Police and judiciary in Malaysia against any threats he may face from illegal money lenders, groups, gangs or anyone else in Malaysia.

3.Country information considered by the delegate indicated that Malaysian authorities are able to provide an adequate level of protection from criminal behaviour as allegedly feared by the Applicant. In relation to complementary protection the delegate was not satisfied that there are substantial ground for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk  

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, 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).

7.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.

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

10.The issue in this case is the credibility of the applicant’s claims to the Department. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11.On or about 6 January 2017 the Applicant submitted a form 866C to the Department in support of his application for a protection visa. Within pages 20 to 23 of the document was information in support of the applicant’s claims for protection. Those claims can be summarised as follows:

1.He made (sought) a loan in the amount of [amount] Malaysian Ringgit (15% interest component) from a money lender to operate a [business];

2.He managed to pay instalments on the loan for about two years without failure but in the third year he failed to pay due to the business suffering a loss;

3.The money lender ‘chased’ him for the balance of the debt. The money lender threatened the applicant and his family by pouring red paint on the door of his house as a warning. They also threatened to kill the applicant and his family if he failed to settle the debt; he shifted to another Malaysian State to hide from the money lenders to save his family but they (the money lender(s))were still looking for him;

4.He feared that if he returned to Malaysia the money lender(s) will try to harm him to get the money; he claimed he was beaten by the money lender; he was told by the money lender(s) not to report to any authority or else they would hurt his family; he believed the money lender(s) have a network throughout Malaysia and that they will find him irrespective of where he moves to;

5.He claimed that the money lender(s) have harmed people resulting in some people hanging themselves. He did not believe authorities in Malaysia could, or would, protect him from harm and that the money lender(s) is not afraid of the authorities.

12.There are no indications that the Applicant was interviewed by the Department.

13.On or about 10 April 2017 the Applicant applied to the Tribunal for review of the delegate’s decision. On 19 December 2017 the Tribunal wrote to the applicant utilising his nominated email address to invite him to appear before it to give evidence and present arguments relating to the issues in his case. The hearing date was set for 1.30 pm on 23 February 2018 at the Tribunal’s [offices].

14.On or about 1.30 pm on 23 February 2018 the Applicant appeared in response to the notice and was not represented. Following the Tribunal briefly outlining the Tribunal process to the Applicant, the Applicant, to his credit, indicated that he wanted to tell the Tribunal the truth about his application for protection as made to the Department.

15.The Applicant told the Tribunal that he arrived into Australia and had been referred to a person named [Mr A] living in [City 1].  He had ‘met’ a person on [social media] known as ‘[name]’ who told him that his brother could help him when he got to Australia. [Mr A] collected the applicant the day subsequent to his arrival and took him to an address in [a] suburb of [City 1]. At the address [Mr A] explained to him how he could assist the applicant to seek a protection visa in Australia and that he would assist if the applicant paid a sum of money, being, in this case, $[amount]. The applicant paid [Mr A] the money.

16.[Mr A] completed the application document for the applicant. He had provided the applicant with a blank application document which the applicant signed. This was forwarded to the Department by [Mr A] on behalf of the Applicant. The Applicant did not at any stage read the document to check its accuracy, his only involvement being signing the document.

17.The applicant told the Tribunal that when he received a copy of the decision record from the Department (dated 23 March 2017) he ‘got a surprise’ when he read it. All of the information contained within the above-mentioned application for protection visa, was, according to the Applicant, false. The Tribunal put each of the claims and facts relied upon for the application to the Applicant and he confirmed the falsity of all. He confirmed he signed the application document because he needed a visa to work in Australia and that he sought the visa for ‘economic reasons’. He confirmed he had no legitimate fear for his safety in Malaysia.

18.The Tribunal had no advance notice that the Applicant intended to withdraw from the claims as made to the Department. In the circumstances, the Tribunal provided the Applicant with 14 working days in which to write to the Tribunal to confirm his position as to his claims for protection.

19.On 4 March 2018 the Applicant wrote to the Tribunal outlining the following matters:

a.He had applied for several jobs in Malaysia in vain. Malaysia has been offering many jobs to immigrants from Bangladesh and Indonesia;

b.He has to settle a study loan in Malaysia which he is unable to pay. If he returns to Malaysia he will be banned from seeking a loan and from obtaining a personal bank account and this will make it hard to get a job for survival. He will also be banned from leaving Malaysia;

c.He will not be able to feed his son and wife;

d.He will be a dead man as he cannot survive in Malaysia. No information was provided by the applicant in support of this;

e.The Malaysian Government only care about their own careers and their own pockets;

f.He takes the risk and gambles for a better life in Australia because Australia is a good country, especially the people and the government takes good care of their citizens;

g.He wants to stay in Australia for a better living to support his family, to rent a house, pay his study loan in Malaysia and medication for his sick mother;

h.The cost of living in Australia is quite affordable based on Australian wage rates;

i.If he returns to Malaysia he will not be able to get jobs to survive in the longer term and pay his study loan;

j.He wants a better life here in Australia, and people in Australia are very humble and friendly to him; he really loves Australia; and

k.He prays and hopes the Australian Government could consider him staying to be part of ‘Aussie people’.

1. The Tribunal accepts the evidence of the Applicant to the effect that the initial written (computer generated by [Mr A]) claims for protection are false in their entirety. The Tribunal accepts his evidence that he did not know anything about the claims until he was provided with a copy of the written record of decision from the Department. The Tribunal therefore places no weight at all upon the written claims as made to the Department as it finds that the claims are false in their entirety, having being ‘manufactured’ by [Mr A], whom the Tribunal finds was acting in the capacity of an unregistered migration agent at the time he provided services to the Applicant.

2. The Tribunal has also considered the information as provided to the Tribunal by the Applicant in the email dated 4 March 2018.  The Tribunal does not consider that the information as contained within the email evidences ‘serious harm’ for the purposes of sub-section 36(2) of the Act or ‘significant harm’ for the purposes of section 36(2) (aa) of the Act. At the hearing, the Applicant told the Tribunal that ‘he had no legitimate fear for his safety back in Malaysia’.  The Tribunal has considered whether the Applicant potentially faces ‘significant economic hardship’, ‘denial of access to basic services’ and ‘denial of a capacity to heard a livelihood’ for the purposes of section 36(2) (a) of the Act. The Tribunal has significant concerns as to the credibility of the Applicant arising from the Application process and entrusting [Mr A] to submit his application without even conducting a rudimentary check of its contents. The Tribunal finds that the applicant would have realised that [Mr A] was not a qualified migration agent and yet entrusted him to advance his application for protection without checking. The Tribunal does not accept his claims as to him being likely to suffer these hardships. 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).

3. 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).  As per the above assessment, the Tribunal does not accept that the Applicant will suffer ‘significant harm’ if he returns to Malaysia, again for reasons of credibility. There is no evidence before the Tribunal from either the testimony of the Applicant before the Tribunal, or from the subsequent email, which would indicate that the Applicant will suffer ‘significant harm’ as defined by section 36 (2A) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36 (2) (aa).

4. 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

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

   Michael Judd
   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.

   …