1711627 (Refugee) - [2020] AATA 4702

1711627 (Refugee) [2020] AATA 4702 (24 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711627
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Denis Dragovic
DATE:24 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 September 2020 at 7:51am
CATCHWORDS
REFUGEE – protection visa – Malaysia – loan sharks – an undischarged bankruptcy – employment opportunities – colour blindness – coronavirus – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
EZC18 v Minister for Home Affairs [2019] FCA 2143
SZDCD v Minister for Immigration and Border Protection [2019] FCA 326
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 May 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 6 February 2017. A copy of the applicant’s passport was provided to the Department and was available to the Tribunal. Based upon the passport accompanying the application I find that the applicant is a citizen of Malaysia and that Malaysia is his receiving country.
At the Departmental stage the applicant was not interviewed. The Departmental decision was made available to the Tribunal by the applicant.
The delegate refused to grant the visa on the basis that the applicant could find effective protection from the police and judiciary in Malaysia.
The applicant appealed this decision to the Tribunal on 1 June 2017. The following decision is the outcome of this review.
The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1711627 (Refugee)

Details

AGLC: 1711627 (Refugee) [2020] AATA 4702
Case: [2020] AATA 4702
Decision Date: 24 September 2020

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a non-citizen in Australia. The applicant claimed he was threatened by loan sharks due to his father's gambling debts, which he attempted to repay. His efforts to repay his father's debt led to him being unable to meet his own financial obligations, resulting in his declaration of bankruptcy in Malaysia. The applicant also raised concerns about his ability to work and own property due to his undischarged bankruptcy. The decision under review was affirmed by the Tribunal.

The legal issues before the Tribunal included whether the applicant met the refugee criterion under s.36(2)(a) of the Migration Act 1958 (Cth), and alternatively, whether he met the complementary protection criterion under s.36(2)(aa). This involved assessing the applicant's claims of persecution by loan sharks and the implications of his bankruptcy in Malaysia on his ability to obtain protection in that country. The Tribunal was required to consider the meaning of "significant harm" as defined in ss.36(2A) and (2B) and whether the applicant faced a real risk of suffering such harm if returned to Malaysia.

The Tribunal considered the applicant's evidence regarding the threats from loan sharks and his subsequent bankruptcy. It noted that the applicant had paid off his father's debt and that the loan sharks had ceased their harassment. Regarding his bankruptcy, the Tribunal considered country information which indicated restrictions on undischarged bankrupts, including limitations on spending, asset seizure, and certain employment and business ownership restrictions. However, the applicant confirmed he could continue in his previous employment and that his bankruptcy was being addressed by a lawyer with a view to termination upon repayment of debts. The Tribunal concluded that, based on the evidence presented and the relevant guidelines, the applicant did not meet the criteria for the grant of a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence and findings of fact The applicant’s written application received on the 7 February 2017 included the claim that his father had borrowed money from loan sharks because he was gambling. He claimed that the loan sharks had ‘hunted and threatened’ him to settle the debt. They threatened to kill him and his family. At the hearing the applicant clarified and updated his claimed circumstances including that he came to Australia because his father had a debt of 10,000 Ringgit with a loan shark and his father had asked him to help repay it. At the time the applicant was working in Kuala Lumpur. In addition, he had a personal loan of [amount] Ringgit which he had used to buy a car and to prepare for his wedding to his fiancé. Despite having his own debt and obligations he chose to divert his income to repay his father’s debt. He managed to pay off some of his father’s debt, he recalls it being about 200 Ringgit per month over five or six months. Because of his efforts to repay the loan shark he couldn’t pay off his bank loan and as a result he claimed to have been declared bankrupt. The applicant provided evidence of his bankruptcy in the form of a letter from the Malaysian Department of Insolvency which stated that the applicant was declared bankrupt on 26 September 2017. The applicant stated that since arriving to Australia he has paid off the bank loan and his father’s debt to the loan shark. Regarding his bankruptcy, he explained that he has contacted a lawyer in Malaysia who is working to close the bankruptcy. He explained that in Malaysia you can be bankrupt for up to five years. This information aligns with the information available from the Department of Insolvency website which states that it is possible to have the bankruptcy terminated through an application if the debt has been repaid.[1] The applicant was not sure how much longer he would have to wait for it to be terminated.[1] Malaysian Department of Insolvency, accessed 21 September 2020 He claimed that as long as you are bankrupt you can’t work or buy a house. I presented to the applicant country information on bankruptcy in Malaysia, including the following information. The undischarged bankrupt is not allowed to spend more than 1,000 Ringgit on a bank card or obtain more than 1,000 Ringgit in credit; all assets will be taken away; employment will be restricted, specifically preventing work as a lawyer, accountant and doctor; and the undischarged bankrupt is not allowed to own a business.[2] The applicant agreed with each of these. He summarised them by saying that ‘everything will be blocked’. [2] What You Need To Know About Bankruptcy in Malaysia, accessed 21 September 2020 I put to him that he can work in the same job as he had before. He said, yes. Regarding the father’s loan, the applicant stated that he has paid off his father’s debt and that the loan sharks have not harassed his father since he paid off the loan.

Ratio Decidendi

Legal Principle Established

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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence and findings of fact The applicant’s written application received on the 7 February 2017 included the claim that his father had borrowed money from loan sharks because he was gambling. He claimed that the loan sharks had ‘hunted and threatened’ him to settle the debt. They threatened to kill him and his family. At the hearing the applicant clarified and updated his claimed circumstances including that he came to Australia because his father had a debt of 10,000 Ringgit with a loan shark and his father had asked him to help repay it. At the time the applicant was working in Kuala Lumpur. In addition, he had a personal loan of [amount] Ringgit which he had used to buy a car and to prepare for his wedding to his fiancé. Despite having his own debt and obligations he chose to divert his income to repay his father’s debt. He managed to pay off some of his father’s debt, he recalls it being about 200 Ringgit per month over five or six months. Because of his efforts to repay the loan shark he couldn’t pay off his bank loan and as a result he claimed to have been declared bankrupt. The applicant provided evidence of his bankruptcy in the form of a letter from the Malaysian Department of Insolvency which stated that the applicant was declared bankrupt on 26 September 2017. The applicant stated that since arriving to Australia he has paid off the bank loan and his father’s debt to the loan shark. Regarding his bankruptcy, he explained that he has contacted a lawyer in Malaysia who is working to close the bankruptcy. He explained that in Malaysia you can be bankrupt for up to five years. This information aligns with the information available from the Department of Insolvency website which states that it is possible to have the bankruptcy terminated through an application if the debt has been repaid.[1] The applicant was not sure how much longer he would have to wait for it to be terminated.[1] Malaysian Department of Insolvency, accessed 21 September 2020