1714694 (Refugee)

[2019] AATA 5965

1714694 (Refugee) [2019] AATA 5965 (21 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714694

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Sean Baker

DATE AND TIME OF

ORAL DECISION AND REASONS:         21 August 2019 at 11:12 am (VIC time)

DATE OF WRITTEN RECORD:                1 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
REFUGEE – protection visa – Malaysia – political and economic conditions – student loan – unemployment – blacklist – financial hardship – 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 6 July 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 21 August 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. Criteria for a protection visa are set out in section 36 of the Migration Act1958 and schedule 2 to the Migration Regulations. The applicant is either a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds. Where relevant I have taken into account the policy guidelines prepared by the Department of Immigration on refugee law and complementary protection and any country information assessment prepared by the Department of Foreign Affairs and Trade in accordance with Ministerial Direction 56.

4. 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.  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.

5. I turn first to the question of nationality.  You claim to be a citizen of Malaysia and have provided a copy of your passport to the Department.  I find on this evidence that the applicant is a national of Malaysia, which is his receiving company for the purpose of the refugee and complementary protection assessment.  There is no evidence before me to suggest the applicant has the right to enter or to reside in any third country.

6. To summarise the applicant’s claims, he claims that the political and economic status of Malaysia has ruined his country; that if he returns to Malaysia he will have to borrow money from illegal moneylenders; that he has a student loan, which is in arrears, and will lead to him being blacklisted; and that he will be in financial hardship.  The applicant’s written claims about this, which he said he had some assistance with, are brief and undetailed.  His evidence before the evidence-gathering Tribunal and this Tribunal was more detailed and for this reason is to be preferred.

7. At the evidence-gathering hearing and before me today the applicant made consistent claims.  He said that in Malaysia he had completed a [qualification] in [subject], in 2016.  He then did an internship with [Company 1] and during this time he worked as a [job].  He said that he has a student loan of approximately [amount] Malaysian ringgit from a government agency, which is overdue at the moment, and another loan with financing but that loan is being paid by his dividends.

8. He said that he came to Australia in August 2016 and has been working in a variety of jobs.  He sends approximately AUD 300 to AUD 400 home per month, or sometimes less, depending on whether he is working the full month.  He has between $1,000 and $2,000 in savings in Australia.

9. He said that he left Malaysia first because he thought he wanted to just travel, but then after a while he wanted to stay here.  When asked if there was anything specific that made him want to leave Malaysia at that time, he said it was mainly because of politics and the economy at that time.  He said he chose to come to Australia because there was a better lifestyle in Australia and when he left Malaysia to come to Australia he did not have any problems with the authorities or the police.

10. When asked what he thought would happen to him if he went back to Malaysia, he has been consistent in saying that nothing would happen to him, just that he felt, due to the current economy of Malaysia, it would be probably hard for him to get employment and that the current student loan might be a problem for him and might lead to him being blacklisted.  He said no one would harm him but he might be blacklisted if he was unable to pay and therefore be unable to travel outside the country again.  He said the government and finance agencies might blacklist him.  He said no one had harmed him in Malaysia.  He said that, other than having the loans and problems with employment, there was no other reason he could not go back to Malaysia.

11. Before me, the applicant confirmed that he sent money home; that he had savings of between $1,000 and $2,000 here as well as an old [car] and that he had worked in a variety of jobs in Australia.  He confirmed that there was no other reason he had left Malaysia and confirmed he had not had trouble with the authorities.  He said no one would harm him but he would face unemployment and blacklisting.  He conceded that he could pay the amount in arrears on his loan with his savings from Australia.  He said he would not be able to financially survive however.  He conceded that he could live with his mother and may be able to find employment and pay his loan off and live but that it would be a struggle.  I also raised with the applicant that he had been employed in Malaysia and university educated there and employed in Australia.

12. I put to the applicant country information that Malaysia is classified as an upper-middle income economy with real GDP growth of 5.4 per cent in 2017 and growth of around 5 per cent for the last 20 years and that this sustained growth and government policies had led to a reduction in poverty.  He said that he had a friend who had not been able to find a job or had trouble finding a job.  He said there was no other reasonable basis on which he would be harmed.

13. I turn now to make my findings.  I have carefully considered the claims of the applicant.  I find that the applicant has failed to demonstrate that he would suffer any chance of serious harm on return to Malaysia, nor that he faces a real risk of significant harm on return.  I accept that the applicant has a student loan that is in arrears.  I find that he has worked in Malaysia, is university educated there, and did an internship there.  I find that he has worked in a variety of jobs in Australia.  I find that the country information indicates Malaysia is a middle-income country with a reasonable rate of economic growth.  I find that the applicant can return to Malaysia and pay much or all of the arrears with the savings and assets he has in Australia, including his savings and his car.  I find that, given he has worked in Malaysia and Australia in a variety of jobs, he could find work there.  I find that he could live with his mother until his student loan is paid off and she would support him with accommodation and food, as he conceded.

14. On the basis of these findings I do not accept that there is a real chance or a real risk of him being blacklisted by the student loan authority or anyone else.  I do not accept that there is a real chance or a real risk he will have to take out a loan from moneylenders.  I do not accept that he will face financial hardship or that he will not be able to subsist.  I do not accept the financial or political situation in Malaysia will lead to the applicant being unable to subsist or being harmed in any way.

15. On the basis of this reasoning the Tribunal finds that there is no real chance the applicant will be seriously harmed for reasons of financial hardship, political opinion, or any other reason, by the government, student financial institution, or anyone else for any other reason, on his return to Malaysia now or in the reasonably foreseeable future.

16. I turn now to consider complementary protection.  The court has held that the real risk test imposes the same standard as the real chance test applicable to the assessment of well-founded fear.

17. For the reasons set out above, while I have accepted that the applicant has a student debt that is in arrears, I have also found that he has worked in Malaysia, as he has in Australia; that the country information indicates Malaysia is a middle-income country; and that the applicant has funds with which he could pay or part-pay the arrears.  I have found that, given his work history, he can find work in Malaysia and can live with his mother and be part-supported by her until his student loan is paid off.

18. I do not accept that he would face financial hardship that would threaten his capacity to subsist or that he would suffer any other form of significant harm on the accepted facts.  I do not accept that he would be significantly harmed on the basis of the things I have accepted.  The applicant has not claimed to face a risk of significant harm for any other reason on return.

19. Regarding the findings as detailed above, it follows that I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk the applicant will suffer significant harm.  Taking the applicant’s claims at their highest, the Tribunal finds that he has not established that he will seriously or significantly harmed for any of the reasons claimed.

20. For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).

21. Having concluded the applicant does not meet the refugee criterion in 36(2)(a), the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).

22. There is no suggestion the applicant satisfies section 36(2) on the basis of being a member of the same family unit as a person who satisfies these other criteria and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in section 36(2).

23. The decision of the Tribunal therefore is that the Tribunal affirms the decision not to grant the applicant a protection visa.

24. The time is 11.12 am on Wednesday, 21 August 2019. 

    DECISION

25. The Tribunal affirms the decision under review.

    Sean Baker
    Member