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

1. 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).

2. 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.

3. At the Departmental stage the applicant was not interviewed. The Departmental decision was made available to the Tribunal by the applicant.

4. The delegate refused to grant the visa on the basis that the applicant could find effective protection from the police and judiciary in Malaysia.

5. The applicant appealed this decision to the Tribunal on 1 June 2017. The following decision is the outcome of this review.

6. 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

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence and findings of fact

14. 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.

15. 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.

16. 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.

17. The applicant stated that since arriving to Australia he has paid off the bank loan and his father’s debt to the loan shark.

18. 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

19. 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

20. I put to him that he can work in the same job as he had before. He said, yes.

21. 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.

22. I found the applicant to be credible as his claims aligned with country information and he had provided documentary evidence to support his situation. As such I accept that the applicant’s father borrowed money, that he was drawn into the debt and began payments himself, that due that he was unable to repay his own debt, lost his fiancé, was threatened and subsequently chose to leave Malaysia. I also accept that as of the hearing he has paid off his father’s debt as well as his own and is currently working through a lawyer to discharge his bankruptcy. I accept that the loan sharks have not harassed his father since paying off the loan.

    Considerations

23. The applicant said that he fears returning to Malaysia because the loan sharks are looking for him and his father. I noted that he had earlier stated that his father had not been visited by loan sharks. He then clarified that before he repaid the loan they were looking for him. As the applicant has helped his father repay the debt and there being no evidence to suggest that the loan sharks remain interested in his father, I find that they will no longer be interested in the applicant. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from loan sharks.

24. He said that he is afraid that he might have financial difficulties because he doesn’t have enough money for his future. The applicant feared that being bankrupt would prevent him from finding work. I asked if he could temporarily move back to his family’s house until he found a job, as there was no legal barrier to him working other than in those professions listed. He admitted that he could live with his parents. As the applicant can live with his parents temporarily, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from being unable to sustain himself in the short term.

25. The applicant said that the salary he receives would be low in Malaysia. He said it would be difficult for him to get a permanent job in Malaysia. He said that he failed a colour test on a medical. I note that the applicant has had employment in Malaysia in the past as such I find that his visual impairment is not such that it would prevent him from finding employment in the future. He has an opportunity to remain with his parents until he can find work. He has savings from his time working in Australia. For these reasons, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from challenging long-term employment conditions.

26. The applicant said that he is afraid to return to Malaysia because of the coronavirus. Section 5J(1)(a) of the Act requires the persecution to be for reasons of race, religion, political opinion, membership of a particular social group or nationality. A virus is non-discriminatory. The applicant did not claim that treatment would be withheld nor is there any reason to suspect that it would be based upon the evidence available.[3] For this reason, I find that the applicant does not face a real chance of serious harm from the coronavirus for the reasons stipulated in s.5J(1)(a).

    [3] Tribunal searched CISNET, Google and Malaysian newspapers

27. I now turn my mind to complementary protection. Complementary protection is exhaustively defined in section 36(2A). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

28. The definition of cruel and inhuman treatment, degrading treatment and torture can be found in s.5(1) and has been extracted in the attachment. In each instance an intention to cause harm is required which does not apply in the context of a non-discriminatory virus lacking agency.

29. The death penalty as a type of significant harm is not relevant to the claimed fear of the virus.

30. Lastly, I consider arbitrary deprivation of life. In SZDCD v Minister for Immigration and Border Protection [2019] FCA 326, Gleeson J said (at [44]),

    In context, a non-citizen may be “arbitrarily deprived of his or her life” by lawful or unlawful action that is demonstrated to have elements of capriciousness, inappropriateness, injustice or lack of predictability. Section 36(2A)(a) is concerned with the risk of significant harm in the nature of the serious human rights abuse that is the arbitrary deprivation of a person’s life.

31. It is doubtful that a virus can be considered to act through a ‘lawful or unlawful action that is demonstrated to have elements of capriciousness, inappropriateness, injustice or lack of predictability.’

32. Furthermore, in EZC18 v Minister for Home Affairs [2019] FCA 2143 Besanko J said (at [47]), ‘In my opinion, s 36(2A)(a) is restricted to the risk of being deprived of life by a third party or third parties.’

33. In summary, each of the definitions of significant harm requires an intention on the part of someone who has personal agency not something such as a virus. The applicant did not claim that he feared treatment would be withheld. There is no reason to believe that this would be the case arising from the evidence as noted above.

34. I have considered the applicant’s fears cumulatively including that he was once pursued by loan sharks, he is visually impaired, finding employment will be challenging and if he does the salary will be limited. Even considering the impact of the pandemic upon these claims and how they may be amplified because of the virus, I find that the cumulative circumstances the applicant faces do not amount to a real chance of serious harm or a real risk of significant harm.

35. 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).

36. 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).

37. 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

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

    Denis Dragovic
    Senior 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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 the 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.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …