1710256 (Refugee)

[2018] AATA 3050

1710256 (Refugee) [2018] AATA 3050 (5 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710256

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Denis Dragovic

DATE AND TIME OF

ORAL DECISION AND REASONS:          5 February 2018 at 11:03 am (VIC time)

DATE OF WRITTEN RECORD:                31 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

CATCHWORDS
Refugee – Protection visa – Malaysia – Race – Ethnic Chinese – Gambling problems – Victims of creditors demanding payment – Fear of physical violence – Sabah and Sarawak separatism – Economic situation in Malaysia

LEGISLATION
Migration Act 1958, ss 36, 424AA
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.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 24 April 2017 to refuse to grant the applicants protection visas under the Migration Act 1958 (the Act).

2. At the hearing on 5 February 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

3. As the applicants had separate interpreters the decision record was read into two languages.

4. As both applicants were in the room when the oral reasons were delivered I have amended references to ‘you’ with names to those to whom each paragraph was addressed. I have also amended the decision for grammar and readability as per President’s Directive.

   STATEMENT OF DECISION AND REASONS

5. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants [the applicants] a protection visa under the Migration Act 1958. The hearing was held on 5 February and the tribunal made an oral decision and gave an oral statement of decisions and reasons. The following are those reasons.

6. The criteria for a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations. Where relevant the tribunal has taken into account policy guidelines prepared by the Department of Immigration and any country information assessment prepared by the Department of Foreign Affairs and Trade. In assessing the applicant's case the tribunal notes the mere fact a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear nor does it assert that the theory is well founded or that it is for the reason claimed.

7. A fear of persecution is not well founded if it is assumed on mere speculation. The relevant facts of the case will have to be supplied by the applicants themselves. In determining whether an applicant is entitled to protection the tribunal must first make findings of fact. In doing so I note before looking at my findings that in questions of credit I need to give the benefit of the doubt but that this should not lead to an uncritical acceptance of any and all allegations made. It is for the applicant to make their case in as much detail as possible.

8. Greater weight may be given to one piece of evidence against another and there is no rule that there must be a positive state of disbelief before making adverse assessments. I make the following findings.

   [The applicant husband]

9. [The applicant husband], you provided an application for which you stated that you did not prepare but rather that your wife did. You stated that you did not know what was in the application. Under section 424AA I informed you that the information provided in the application regarding the reason for your departure from Malaysia was exactly the same as in other applications received by the Tribunal. You asked if this meant that it was copied and I responded that it did infer that. I noted that the information was relevant to the review for the reason that it indicated that the reasons given in your application were not genuine and not representative of the reasons why you left Malaysia. I find that the claims provided in the application form are not genuine and not representative of the reasons for why you left Malaysia. As such I do not accept them as your claims.

10. Instead, the reasons you, [the applicant husband], gave at the hearing for leaving Malaysia were your gambling debts. Specifically you claimed to owe [amount] Ringgit. I accept that you owe that amount of money. You stated that you started gambling when you were [age] years old. Now you are [age]. You said that you took out your first loan when you were [age] years old, borrowing a few thousand ringgit. I accept this narrative.

11. You claimed that the last time you borrowed money was two years ago for an amount of [amount] ringgit. You said that you used that money to gamble. The debt you owe you said was to approximately ten people all of whom were friends but you claimed never to have been threatened. I also accept these claims.

12. You explained that you were afraid because you do not have the ability to pay off the debt. If you do not pay off the debt you fear the interest will continue to increase. While before you were running a business that has now closed. I asked if there were any other fears that you held to which you said that you cannot make a living in Malaysia as your gambling problem is too severe.

13. I read to you country information on the economic situation in Malaysia and I will read it again.

    Malaysia's unemployment rate in September 2017 was 3.4 per cent. The former Deputy Human Resource Minister has claimed that for Malaysia an unemployment rate below 4 per cent is considered to have reached full employment.[1] Full employment is defined by the International Labour Organisation as being "A level of employment where all those available, able and actively seeking work can obtain it".[2]

    [1] ‘Malaysia enjoying full employment, says minister’ New Strait Times, 9 October 2013 available at [accessed on 7 March 2013]

    [2] ‘ILO Conference Adopts First-ever International Convention on Home Work: Tripartite Delegations Endorse Full Employment, Battle Against Child Labour to Intensify’ 20 June 1996 available at [accessed on 7 March 2017]

14. You responded that you do not have the skills and that it is very difficult to find a job. People to whom you owe money to would still come for it. You also added that since you have been in Australia you have paid off [an amount] ringgit which I accept as fact. I put to you that the requirement for refugee and complementary protection is that the harm feared reaches the level of serious harm and that it appeared in your case that it did not.

15. You responded that you hoped that you can stay a little longer or get a visa. In considering your circumstances I note that you borrowed money from friends who have not harmed you. You have been able to pay off small portions of the debt whenever someone came asking for the money to be paid back. The economic situation in Malaysia is considered full employment which means that anyone seeking work can find it. As such I find that you are able to find work and that you are able to resume repayments as you had before, thereby paying your debts off gradually.

16. The past circumstances can inform an assessment of the future that you will return to. You have not been harmed in the past and without any other information that suggests the situation has changed I find that you will not be harmed in the reasonably foreseeable future were you to return to Malaysia. As such I find that you do not face a real chance of serious harm or a real risk of significant harm were you to return to Malaysia.

    [The applicant wife]

17. [The applicant wife’s name], you stated that a friend whom you paid $[amount] prepared your application form for you. You said that you knew that the content of the claims was something about Sabah and Sarawak exiting Malaysia.  You said it was that man's idea to use the claims but you agreed with the suggestion as people of Sabah and Sarawak are being oppressed.

18. Under section 424AA of the Act I informed you that the information provided in the application as to your reason for your departure from Malaysia was exactly the same as in other applications. I noted that the information was relevant to the review for the reason that it indicated that the reasons given in your application were not genuine and not representative of the reasons why you left Malaysia.

19. You responded that you had no idea what was written by this person and that it was not you who copied the reasons. For this reason I find that the claims provided in the application form are not genuine and not representative of the reasons for why you left Malaysia. As such I do not accept them as your claims.

20. [The applicant wife’s name], you stated at the tribunal hearing that the reasons you left Malaysia were because of family problems and the economy. The family problems relate to your husband who is accompanying you in the application and owes money. He never told you how much he owes. You told the tribunal that every once in a while people he owes money to would come demanding payment. In the past the both of you could manage the repayments as you were working. But because of the economic situation you both could not afford to pay much, only a little. I accept the narrative of the reason why you left Malaysia.

21. You said that your husband was warned if he failed to make some form of payment that they would beat him up or destroy your belongings. I asked when this happened and you said "About 15 years ago". You explained that that was the worst case but since then he has only received warnings. I accept this as fact and find that the time that has passed does not influence the assessment of the future harm you face. Instead, for the same reasons given earlier to your husband I find that you do not face a real chance of serious harm or a real risk of significant harm for reasons related to your husband's gambling problems and the debt that he owes.

22. I asked about your economic concerns. You responded that Chinese people face difficulties in applying for government jobs or bank loans. You said that you would be able to get a job but questioned how you were to survive considering that you have to pay rent or buy a house and service a mortgage and get a car loan and pay for children’s' education.

23. I put to you that you do not need a car, that you do not have children’s' education to pay for and you just needed to pay for rent. You said that the economic downturn made it difficult. I read to you information about the economic situation which I will read again.

    Malaysia's unemployment rate in September 2017 was 3.4 per cent. The former Deputy Human Resource Minister has claimed that for Malaysia an unemployment rate below 4 per cent is considered to have reached full employment. Full employment is defined by the International Labour Organisation as being "A level of employment where all those available able and actively seeking work can obtain it."

24. You responded that it is difficult as Chinese people. You said that you may be able to get a job with the government, but it would be difficult. I put to you that you could find other work.

25. I asked if there were other reasons why you feared returning and you said that the people of Sabah are oppressed. Specifically you said that in Sabah you cannot seek help for Chinese people as a priority is given to Malay people.

26. In response to asking what help you required you said that you needed assistance from the government for financial help, food, especially when the children were small.

27. In reviewing your claims both of being an oppressed minority and due to the economic downturn I find that you do not face a real chance of serious harm or a real risk of significant harm for the reason that the economy in Malaysia is at full employment and that as such you would be able to find work. You have said that you could find work, even government work. The oppression that you have stated I also find does not reach the threshold of serious or significant harm.

28. In conclusion to the both of you for the reasons given above the tribunal is not satisfied that the applicants are persons in respect of who Australia has protection obligations under section 36(2)A.

29. Having concluded the applicants do not meet the refugee criteria the tribunal has considered the alternative criteria. The tribunal is not satisfied the applicants are persons in respect of whom Australia has protection obligations under section 36(2)AA. There is no suggestion that the applicants satisfy this criteria on the basis of being a member of the same family unit as a person who does satisfy either of these criteria. Accordingly, the applicant does not satisfy all of the criteria in section 36(2).

30. The decision is the tribunal affirms the decision under review.

    DECISION

31. Hearing concluded at 11.03am.

32. The Tribunal affirms the decisions under review.

    Denis Dragovic
    Senior Member