1711157 (Refugee)

[2019] AATA 6113

1711157 (Refugee) [2019] AATA 6113 (2 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711157

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:          2 September 2019 at 3:45 pm (VIC time)

DATE OF WRITTEN RECORD:                17 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 September 2019 at 5:28pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – threats and attack by loan shark – use of own money to resolve cash flow issues of employer – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 36
Migration Regulations 1994 (Cth), 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 a decision made by a delegate of the Minister for Immigration on 18 May 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 2 September 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for a review of a decision made by a delegate of the Minister for Immigration which was made on 18 May 2017. The visa was applied for on 22 February 2017. The tribunal commenced its hearing on 21 June 2019 and that hearing was conducted by an authorised officer of the tribunal who was authorised by me using the evidence power in section 364 and 428 of the Migration Act. After the collection of certain basic facts and evidence the matter was adjourned until today where I continued the hearing.

4. The criteria for a protection visa are set out in section 36 of the Act and schedule 2 to the Migration Regulations. The applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or on complementary protection grounds. Where relevant, the tribunal has taken into account policy guidelines prepared by the Department of Immigration and any country information assessment which is prepared by the Department of Foreign Affairs and Trade. In assessing the applicant’s case the tribunal notes that the mere fact a person claims a fear of persecution does not establish the genuineness of the asserted fear, that the fear is well-founded or it is for the reason claimed. A fear of persecution is not well-founded if it is assumed or mere speculation.

5. The tribunal makes the following findings of fact.  The applicant is a national of Malaysia based upon the passport documentation supplied to the tribunal.  This is his receiving country.  I do not have any evidence to suggest he has the right to enter and reside in any safe third country.  I find that he does not have that right.  The applicant made some written claims and oral claims.  I will start with the claims that he gave in the hearing as commenced in June.  The applicant is [age] years old.  He has [siblings] who are in Malaysia.  He married in Malaysia and his wife is with him in Australia.  They have one child.

6. His last job in Malaysia was at [a] company.  He did that for 13 years.  Currently in Australia he does [a job task].  He has previously worked in [work sectors].  He said that with his previous job in Malaysia the company actually belonged to a boss and he worked for the company.  He played a primary role in running the company.  The company, however, ran into trouble because the boss did ‘something bad’ to the company.  It had repercussions for the applicant as a worker in the company.  He said that he was in debt through high interest loans from a loan shark.  He could not meet their repayments.  He was always receiving calls and threats.

7. Authorities could not protect him from loan sharks because it is considered a personal matter.  He could not relocate in Malaysia because they will find him.  He said that because his boss was using his name, i.e., the applicant’s name, to borrow the applicant ended up getting into problems.  The applicant said that his boss wanted the workers to take a share in the company so he and other employees took a share.  The boss siphoned money from the company.  He ran out of cash even as they took on more projects.  In the meantime, the company could not pay back his suppliers.  The applicant took out a loan from a loan shark.

8. I will now turn to the evidence given in the hearing compared to the written claims in the application to the Department.

9. The applicant arrived in Australia under a visitor visa in November 2014.  His wife came later - around about the same time as applying for the protection visa.  That is around 22 February 2017.  I noted that it took approximately two years and three months before the applicant applied for a protection visa after arriving in Australia.  The applicant believed that he waited around about one year.  I asked why it took him so long to apply.  He said he did not know the system or about the protection visa application.  He went to an agent, that agent was not satisfactory.  The agent did not come to any interview with the Department and he basically could not help very much.

10. The agent completed the departmental application form.  This was done in English.  It was read back to the applicant which he agreed to.  I note that the applicant has stated in the hearing that his mother tongue is Cantonese but he speaks freely and easily in both Mandarin and Cantonese.  He had no issues with the interpreter being a Mandarin interpreter.  The tribunal noted that the applicant had basically lived in Australia for two years without a valid visa.  The thrust of his evidence was that he was unaware of the rules.  The tribunal expressed concern that he specifically came to Australia to flee alleged persecution and yet was tardy or late in applying. 

11. His specific reason for coming to Australia was dealt with in a tardy fashion which might make the tribunal believe that it was not a genuine reason for leaving Malaysia and even if there was an unsatisfactory agent and lost contact with the agent the tribunal is still very concerned that the applicant took a relaxed approach to applying for protection.  In and of itself it is not a reason to refuse the applicant’s protection claims but the concern was never sufficiently explained by responses such as moving specifically interstate to Melbourne in part to deal with this visa status.

12. The applicant arrived in the Gold Coast [in] November 2014.  Why this could not be cleared up in a major population centre in Queensland is unclear.  What the connection was with moving to Melbourne as a superior place to resolve a visa status was not explained and I do not accept the applicant’s evidence.  I referred to his answer to question 89 on the departmental application form which is, “Why did you leave that country?”  Now, I note that the applicant had this answer written down for him by an agent with whom he was subsequently unhappy and I bear this in mind, but, to continue, the applicant wrote that loan sharks were seeking him because of the large amount of debt.  He elaborated on his answer that he was working for the company with issues and when there was a shortage of cash in the business he would use his own money to resolve cash flow issues.  He said in oral evidence the company was closed and the manager “ran away”.  The oral evidence elaborates more than the written response and it is to be preferred.

13. The applicant said he was an employee and yet owned 10 per cent of the business.  He would say over a period of every two to three months he would need to borrow from loan sharks to make up shortfalls in the business but he would always pay them back.  I asked if there was evidence of this.  He said he used to have written evidence of this and he said it was in his previous home in Malaysia but he had sold the house and it was no longer there.  The tribunal is puzzled as to this evidence and the tribunal notes that the sale of the house does not necessarily mean the loss of all possessions in the house presumably once possessions are removed when one sells. 

14. The applicant’s wife was there apparently for another two years; therefore, I have concerns that the applicant, in fact, had written evidence of loans and has lost them because he sold his house.  I simply do not accept this evidence.  The applicant then went on to say that the boss had run off and I asked who the applicant dealt with at the loan shark group. He said it was a person called [Mr A].  He said that there was a demand of MYR [amount]. I asked if a payment was made and he said yes, but the loan shark did not accept payment plans.  MYR [amount] was paid by the applicant so far, he said.  I asked what happened after that to which he replied that he was harassed when he was trying to go to work.

15. I pointed out that the applicant has said that the workplace had closed down and the applicant amended his evidence to say that he was trying to get a new job and had to go and do that.  He said that he could not find a job.  I pointed out that he had earlier said that he had been harassed whilst trying to go to work.  However, his earlier evidence was that there was no work anymore.  This was never satisfactorily cleared up the applicant and I find that one is either trying to go to work or trying to go somewhere else, you cannot be going to both.  I have grave doubts that this is accurate evidence and I find that he was not harassed in this way.

16. The applicant said there was threatening language used by the loan shark of setting a house or property on fire, hurting him.  The applicant said that [Mr A] was just a subordinate, he believed.  I asked the applicant whether anybody else said anything to him and he said another person from the loan shark, an Indian named [Mr B] made threats.  There was a threat to “hit him”.  He said he was outdoors at the time and the threatening person came to him to meet him.  I asked if anything else happened with the loan sharks.  The applicant said they came to the house and put red paint on it.  He said that he was not home at the time, but that his wife was there.

17. I asked who did this and he said it was [Mr B].  I asked the applicant that if the applicant was not present how did he know it was [Mr B].  The applicant said his mother had told him that the red paint had been put on by [Mr B].  He said his mother was in the house at the time.  I asked the applicant how his mother knew that this person’s name is [Mr B].  The applicant then gave confusing evidence.  The applicant said the perpetrator of the paint-throwing had told his mother that the applicant owned money.  I repeated how is it, in fact, known that the fellow who threw the paint is called [Mr B].  It is unclear from the applicant’s evidence how his mother would have known that this was a person called [Mr B].

18. The applicant gave unclear evidence and never established that she was told that his name was [Mr B].  The applicant conceded that he was just assuming that it was [Mr B].  Although this may have been the only Indian person that the applicant had encountered from the loan shark this is still a questionable assumption and it causes me to doubt whether this event, in fact, occurred.  The applicant’s claims were so undetailed and vague and speculative that it causes me to doubt them.  I concluded that there was no such throwing of paint or perpetrator of this kind.

19. I went on to ask the applicant what else had happened to him.  He said the loan sharks kept pushing him, they would not let him alone.  He said that he was once bashed.  He said that this was done by [Mr A]. 

20. I asked the applicant if there were any more claims about these loan sharks, whether anything else had occurred or whether there were any other threats or harm and the applicant replied no. 

21. I then took the applicant to his response to question 89 where he had written, “They hit my car”.  I asked if this happened and he said yes.  In question 89 it is written that people had tried to hit the applicant.  I asked if this was, in fact, correct.  The applicant said yes. I drew the applicant’s attention to question 89 again where he had written that he had tried to tell the police but he has been stopped.  The applicant agreed that this was the case.  I drew the applicant’s attention to his written answer that a gun has been pointed and his family had been threatened.  The applicant responded that yes, this had occurred.  I pointed out to the applicant that he had contradicted himself.  I find that the applicant could not reconcile his statement in the hearing that nothing more had happened and yet he then agreed that various other things had, in fact, happened to him.  I encouraged the applicant to reflect upon these responses and explain the contradiction.

22. The applicant said that these things had not all happened in one or two days.  He did not want to mention them at the time because he was very scared.  I gave the applicant an opportunity to reflect over a break about his response and he said it was just what he had said before, it did happen but he did not know how to express it.  However, he confirmed to the tribunal that he had no trouble expressing himself in Mandarin today.  I find that the applicant has fabricated these responses.  I simply do not accept that these additional claims which he had earlier said did not occur simply because he was scared or because he could not remember the claims.  The tribunal has come to the conclusion that the applicant has no difficulty expressing himself in Mandarin. 

23. The tribunal does not accept that there was the hitting of a car, threats, a gun or attempts to tell the police but being stopped, threats to the family, being hit or assaulted

24. The tribunal has discussed with the applicant country information from the Department of Foreign Affairs Malaysia report 19 April 2018 specifically paragraphs [3.98] and [3.99].  The tribunal noted that most borrowers from loan sharks are Chinese.  It notes that the Money Lenders Act increases police investigative powers including visiting, entering, inspecting or searching premises without a warrant, seizing properties and business documents all against loan sharks.  Fines against loan sharks ranging from MYR250,000 to MYR1,000,000  were discussed, jail terms of up to five years or both. 

25. The tribunal heard evidence from the applicant that Chinese Malaysians are scared of the police, are not helped by the police and it has not been his experience that they would help.  He had been to the police, he said, but nothing happened.  He did not expect anything to happen.  I pointed out the Royal Malaysian Police Force has 115,000 officers and is considered a professional and effective police force and although corruption does affect the police force the vast majority of police in Malay it was puzzling that the police force could not offer him help.  The applicant stated that the police force has not been helpful in his experience.

26. The tribunal also discussed with the applicant as to when the business in question stopped operations.  He said that his older [sibling] had told him that the business had closed down after the applicant left for Australia.  This just adds to my concerns about the applicant’s evidence of heading off for work as previously discussed.  The applicant said there had been subsequent threats to his family as recently as two years ago and that was to kill him and the matter was not forgotten.  The tribunal has given consideration to all of these claims and I find that the applicant has not been a witness of credit and truth for these reasons I have earlier outlined.

27. Whilst I am willing to accept that he has worked in an [firm] I do not accept that he borrowed money from loan sharks.  I do not accept that he has had to fill the gaps in the accounts of the company he worked for.  I do not accept that he has been threatened or physically harmed, nor has any of his property been harmed, relatives threatened, property damaged or that he suffered any other harm whatsoever as he has claimed.  The tribunal does not accept his health has been damaged in Malaysia.  The tribunal notes that the applicant has specifically said he does not have any other claims.  So for all of these reasons the tribunal has concluded that the applicant owes money or faces any harm and there is no real chance he will be seriously harmed.  He does not face persecution, nor is he a refugee under the refugee criterion.

28. I turn now to complementary protection.  I do not accept there would be a real chance of significant harm now or in the reasonably foreseeable future and I find that he will be able to live unmolested in Malaysia.  I do not accept he will be significantly harmed.  As I have not accepted there will be a real chance of the applicant facing serious harm for his debts or for any threats now or in the reasonably foreseeable future I am not satisfied there is substantial grounds for believing that he will suffer significant harm. 

29. Therefore, the tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2A) or section 36 (2AA).  There is no suggestion the applicant is a member of the same family unit as a person who does satisfy those criteria.  Accordingly, the applicant does not satisfy the criterion in section 36(2). 

30. The time is now 3.35 pm and the tribunal makes the following decision. 

    DECISION

31. The Tribunal affirms the decision under review.

    Justin Meyer
    Member