1707910 (Refugee)

[2017] AATA 2092

1707910 (Refugee) [2017] AATA 2092 (8 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707910

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Alison Murphy

DATE:8 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 08 August 2017 at 11:16am

CATCHWORDS

Refugee – Protection visa – Malaysia – Applicant sold illegal goods – Death threats – Debts – Facing bankruptcy – Inconsistent evidence – No well-founded fear of persecution

LEGISLATION

Migration Act 1958, ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6) ,5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A),36(2B), 36(3), 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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 [in] 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 a [age] year old male citizen of Malaysia who first arrived in Australia [in] September 2016 and applied for the visa [in] November 2016. The delegate refused to grant the visa on the basis that he was not satisfied the applicant was a person to whom Australia owed protection.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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

1. The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Country of nationality

2. The applicant travelled to Australia on an apparently genuine Malaysian passport.  He has at all times maintained that he is a citizen of Malaysia.  The Tribunal finds he is a Malaysian citizen and has assessed the applicant’s claims against Malaysia as his country of nationality.

   The applicant’s personal background

3. The applicant told the Tribunal he was born in [date] into a family comprising his parents, himself [and siblings].He was born in Kuching, Sarawah but his family moved to Kuala Lumpur when he was [age].  The family moved again to Malacca when he was [age] years old.  His parents are still alive and living in [Town 1] in Negeri Sembilan.  [Details of siblings].

4. The applicant finished school at about [age] and then started work at [Workplace 1] in a [certain] [role]. He worked in that role for [years] until a divorce sent his life into turmoil, with the result he moved to Pahang and Kedah before returning to Melacca.  He has [a] daughter who lives in Johor with her mother.

5. The Tribunal accepts the applicant’s account of his personal background to be true.

   Claims for protection

6. The applicant states in his protection visa application that he worked for [a] company as a [occupation]. After [few] months of working there he found they were selling stolen [goods] and all of his customers blamed him and wanted their money back.  He claims the owner of the company had already run away and a group of people came and hit him and threatened to kill him if he didn’t pay them their money back.  He fears he may be killed because they have already hurt, beaten and blackmailed him and they threatened to kill him if he sought help or lodged a report with the authorities.  He claims he ran away to Kuala Lumpur, Kedah and Pahang but they still managed to find him.

7. At hearing the applicant told the Tribunal he came to Australia for two reasons, in order to repay a bank loan he had taken out in Malaysia in 2007 and because he was being threatened by former customers in relation to [goods] he had sold them in the course of his employment.

   Bank loan

8. In respect of the loan, the applicant told the Tribunal that when he was working at [Workplace 1] in 2007 he took out a loan from [a bank] of [amount] ringgit, an amount that may lead to him being declared bankrupt.  He has made [multiple] repayments in the last year, most recently the week before the hearing, but had defaulted on the loan and been advised by representative of the bank [weeks] earlier that they were about to declare him bankrupt unless he paid [amount] ringgit. He told the Tribunal he was unable to pay [amount] ringgit but since he had been in Australia he had been making payments and he believes if he continues to do that each week the bank will not make him bankrupt.  He told the Tribunal he wanted to stay in Australia to work and make payments because from what he could see he would not be able to afford to repay the bank in Malaysia.

9. When asked about his salary in Malaysia, he stated that when he was asked to leave his job at [Workplace 1] his monthly salary was between [amount] and [amount] ringgit.  He said that from what he had been told by the bank’s representative recently, he believed his loan now totalled [amount] ringgit, approximately $AUD [amount].  In Australia he earns $ [amount] per week [performing a certain role] and can repay $[amount] per week off his loan in Malaysia after deductions for his accommodation and food.

10. When asked what would happen if he was bankrupted in Malaysia, he stated it would be difficult to get employment and he would not be able to open a bank account or leave the country. 

11. The Tribunal accepts the applicant took out a loan of [amount] ringgit from the [Bank] in 2007 and that he has defaulted on that loan, owing about [amount] ringgit currently.  The Tribunal accepts the bank is seeking to recover that loan and should the applicant return to Malaysia, he may not earn enough to be able to make sufficient repayments to stave off bankruptcy.  The Tribunal accepts his evidence that should he be made bankrupt, it will impact on his future employment and prevent him from opening a bank account or leaving the country during the period of his bankruptcy.

12. However as discussed with the applicant at hearing, the Tribunal does not consider that such matters constitute serious harm. In making this assessment the Tribunal has considered the non-exclusive list of incidents that may constitute serious harm contained in s.5J(5) (attached).  It is not suggested that the act of bankruptcy or the consequences that may follow constitute a threat to the applicant’s life or liberty, significant physical harassment or mistreatment and the Tribunal finds they don’t.

13. Nor does the Tribunal accept they will cause him severe economic hardship such as would threaten his capacity to subsist or deny him the capacity to earn a livelihood of any kind.  In making this assessment the Tribunal accepts that although bankruptcy may make it difficult for the applicant to resume employment at his former level, it does not accept it will prevent him being employed at all, such as would threaten his capacity to subsist.  The Tribunal does not accept that any inability to open a bank account or depart the country during the period of the bankruptcy constitutes a denial of access to basic services, such as would threaten his capacity to subsist.

14. For these reasons the Tribunal finds the applicant does not have a well-founded fear of persecution for any reason relating to his outstanding bank loan or possible future bankruptcy.

    Threats from former customers

15. The applicant claims that prior to leaving Malaysia, he was being threatened by former customers who did not receive [goods] they had purchased from the business he was employed by and blamed him and wanted their money back.

16. At hearing the applicant told the Tribunal he worked for a company called [Workplace 2] from August 2015 until August 2016 as a [occupation], meeting with customers and selling [goods].  He gave evidence that he sold approximately four [goods] per month or about 50 [goods] over the year he worked there.  He told the Tribunal that he had problems with four customers bought [goods] from him during that time.  Three of the [goods] delivered to those customers were [an older type] than had been purchased and one [item] had not had [fees] paid on it when it was delivered to the fourth customer.

17. The applicant gave evidence that after he delivered the [goods] to the customers, they were unaware for a while of the problems but when they discovered them they came looking for the applicant and asked him to change the [goods].  He was unable to do that because the documents had already been finalised and the loans were attached to the [goods].  When asked if he had confronted his employer he told the Tribunal that he knew it was going to happen because he and his employer were in it together and the arrangement was to their mutual benefit.  He confirmed that the four customers he had problems had paid for something they had not received, whether by way of an older model than the one they had purchased or because [their purchase] was subject to unpaid [fees].  The Tribunal finds the applicant and his employer were engaged in illegal conduct in respect of these [goods].

18. The applicant gave evidence that he was threatened several times and hit on one occasion by his former customers who found him at his place of employment, but that he managed to run away. He gave evidence that one of the customers was somehow connected to [a former politician] but was unable to provide any further information about the customer or his connection with the [politician].  On the evidence before it the Tribunal does not accept the applicant’s former customer is connected to [this politician] or would be able to influence the authorities to harm the applicant.  Nor does the Tribunal accept the applicant’s statement in his written claims to the effect he ran away to Kuala Lumpur, Kedah and Pahang but his former customers still managed to find him, given it is inconsistent with his evidence at hearing that he lived in these locations prior to starting his employment at [Workplace 2] in August 2015. 

19. The Tribunal does not accept the statement in his protection visa application to the effect that his customers threatened to harm him if he lodged a report against them with the authorities, given his evidence at hearing that he was knowingly involved in deceiving his customers about the [goods] they were buying. In such circumstances the Tribunal considers that the applicant would not seek the assistance of the authorities from harm caused by his own illegal conduct.  The Tribunal does not accept the statement in his visa application that his customers have in the past blackmailed him, given he did not suggest this in his oral evidence at hearing.  Nor does the Tribunal accept his former customers would blackmail him if he returns to Malaysia in the future, considering it inconsistent with his evidence at hearing that his customers would drag him before the authorities if he returns to Malaysia.

20. When asked what he feared may happen if he returned to Malaysia, the applicant stated that the customers threatened to come looking for him and to drag him to the Malaysian authorities. The Tribunal accepts there to be a real chance the applicant’s former customers will seek to have him prosecuted by the Malaysian authorities for his illegal conduct if they become aware he has returned to Malaysia.

21. As discussed with the applicant at hearing, punishment for criminal offences pursuant to generally applicable laws will not generally constitute persecution.  The applicant does not suggest that such laws are not applicable to the whole Malaysian population nor that they would be applied to the applicant in a discriminatory manner.  The Tribunal finds that any prosecution of the applicant by the Malaysian authorities for his illegal conduct during his employment would not have a discriminatory intent or impact and any questioning, charge, conviction or penalty to which he might be exposed would arise under a law of general application and does not give rise to persecution.

22. In light of the applicant’s evidence that he received threats on several occasions and was on one occasion hit by a customer at his place of employment, the Tribunal has also considered whether there is a real chance his former customers will seek to seriously harm the applicant themselves if he returns to Malaysia.  The Tribunal notes that these events occurred approximately two years ago and his evidence was that he was hit on one occasion but managed to run away.  Two years have since passed and the applicant no longer works for that employer. The applicant gave evidence that he fears his former customers may try to drag him before the authorities if he returns to Malaysia and the Tribunal has accepted that to be the case.  However the Tribunal does not accept there to be a real chance that any of the applicant’s former customers would otherwise seek to seriously harm him if he returned to Malaysia, now or in the reasonably foreseeable future.

23. For these reasons the Tribunal finds the applicant does not have a well-founded fear of persecution for any reason relating to his former [employment].

Complementary protection

1. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 will suffer significant harm.  In this case, the Tribunal has found that the applicant is a national of Malaysia and the Tribunal therefore finds that Malaysia is the ‘receiving country’ for the purposes of s.5(1).

2. For the reasons set out above, the Tribunal has found there is not a real chance the applicant will be seriously harmed by his former customers at the [business] where he worked.  In MIAC v SZQRB, the Full Federal Court held that 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.[1]  For the same reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm from his former customers at the [business] if returned to Malaysia. 

   [1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

3. The Tribunal has accepted there to be a real chance those former customers will seek to have him prosecuted by the Malaysian authorities for his illegal conduct if they become aware he has returned to Malaysia and therefore accepts there to be a real risk this will occur for the purposes of complementary protection.  The Tribunal finds that any questioning, charge, conviction or penalty to which he might be exposed as a result of that prosecution would arise from lawful sanctions imposed by the Malaysian authorities.  There is no evidence before the Tribunal that would indicate such lawful sanctions are inconsistent with the International Covenant on Civil and Political Rights (ICCPR) and the Tribunal finds they are not.

4. As to whether such conduct constitutes ‘significant harm’, that term is defined in s.36(2) of the Act (attached).  It is not suggested and the Tribunal does not accept that the applicant will be arbitrarily deprived of his life or the death penalty will be carried out on him if he is prosecuted by the Malaysian authorities for his illegal conduct in the [business].  Nor does the Tribunal accept he will be subjected to torture or cruel and inhuman or degrading treatment or punishment, noting the definitions of those terms contained in s.5(1) exclude any act or omission arising from lawful sanctions that are not inconsistent with the ICCPR.

5. Similarly although the Tribunal has accepted there to be a real chance (and therefore real risk) the applicant may face bankruptcy if he returns to Malaysia, the Tribunal considers that any bankruptcy would arise from lawful sanctions that are not inconsistent with the ICCPR.

6. For the above reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Malaysia. 

CONCLUSIONS

1. 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).

1. 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).

2. 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

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

Alison Murphy
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.

…