1717284 (Refugee)

[2021] AATA 5007

1717284 (Refugee) [2021] AATA 5007 (25 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717284

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Murphy

DATE:25 November 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 25 November 2021 at 1:54pm

CATCHWORDS

REFUGEE – Protection visa – Malaysia – borrowed money from loan sharks – pursued by loan sharks – inconsistent evidence – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

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 31 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 8 May 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection obligations by Australia.

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Country of nationality

10. The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Malaysia and she has been assessed on that basis by the Department. The Tribunal finds she is a Malaysian citizen and has assessed her claims against Malaysia as her country of nationality and the receiving country.

    The applicant’s personal background

11. At hearing, the applicant gave evidence that she is one of seven siblings and that she has [an adult] son in Taiping, Malaysia. She gave evidence her mother had died when she was very young while her father passed away in 2016.

12. The applicant stated that while she was born and grew up in Taiping, she worked in Pahang for more than a year prior to travelling to Australia doing [work]. While she was working in Pahang, her son was looked after by her brother in Taiping.

13. The applicant stated she entered Australia [in] April 2017. Since she has been in Australia, she has worked in multiple farming jobs.

14. I accept the above matters to be true.

    The applicant’s claims for protection

15. In her protection visa application, the applicant stated that she left Malaysia to avoid being caught by loan sharks who had threatened to kill her after she was unable to repay money she borrowed in 2014. She borrowed the money to pay her father’s medical bills after he was admitted to hospital following a motor vehicle accident which left him in a coma and paralysed down one half of his body. She thought she could repay the debt by selling cake and bread, but the economic situation in Malaysia meant that she could not repay the debt and the debt increased.

16. However at hearing, the applicant’s evidence was significantly different. She stated that in 2015, she borrowed 30,000 ringgit from loan sharks to operate a [business]. She said she was living with her brother and son in Taiping at the time, and when the business didn’t work out she was unable to repay the loan. She stated that she and her brother and son moved house twice to avoid the money lenders, but the money lenders always found them and disturbed them. She stated that she paid interest of 3,000 ringgit on the loan each month until 2018 and then stopped paying. She stated that the money lenders never found her after she moved to Pahang, but they continued to disturb her brother and son in Taiping. In 2020 she found out that the debt had risen to more than 50,000 ringgit.

17. For the following reasons, I do not accept the applicant’s claims to have borrowed money from loan sharks to be credible:

    ·Firstly, the applicant’s evidence at hearing was significantly different from the claims made in her protection visa application. In her protection visa application she stated that she borrowed the money in 2014 to pay her father’s medical costs which she intended to repay by selling cake and bread, while at hearing she stated she borrowed it in 2015 to start a [another] business. When I discussed these apparent inconsistencies with her at hearing, she stated that a friend completed her protection visa application, and although she had confirmed her claims with her friend three times her friend must have written down something else. I note that the differences in the claims are not minor. I consider that if the applicant had told her friend the real reasons she had borrowed the money as she claims, her friend would have no reason to invent a different version of events;

    ·Secondly, I consider the applicant’s evidence about the relevant events in Malaysia to be vague and unsatisfactory. When asked about the terms of the loan, she claimed the money lenders had not specified the terms of the loan. She did not know the duration of the loan, rather she only knew she had to pay interest of 3,000 ringgit each month. She stated that the loan details were recorded in writing, but it had been lost. Although she claimed to have continued payments until 2018, being nearly a year after she had arrived in Australia, she said there was no documentary evidence of the loan repayments made from Australia because she sent the money to her brother so that he could pay the money lenders cash. The applicant has not produced any evidence of financial transfers to her brother in Malaysia. Her evidence that her brother was paying the money lenders in cash is inconsistent with her evidence that both her brother and son stay in their home in Taiping so that the money lenders can’t find them;

    ·The applicant’s evidence as to the harm or harassment she had experienced from the loan sharks is also vague and unsatisfactory. In her protection visa application she stated that they had threatened to kill her, but she did not repeat this claim at hearing. Rather, when asked the details of what the loan sharks had done to harm her or her family, she stated that they had gone to her brother’s workplace and told people he owed money and ‘disturbed’ her brother and son at home. When I asked her if the money lenders had ever harmed her or her family in Malaysia, she said that they had not but that this was because she was in Pahang. However the applicant earlier gave evidence that the harassment from the money lenders started while she was living with her brother and son in Taiping;

    ·Thirdly, the applicant’s evidence about being pursued by the loan sharks was inconsistent with her evidence about her living arrangements. At the beginning of the hearing, the applicant told me that for over a year prior to travelling to Australia in April 2017 she lived and worked in Pahang while her brother and son lived in Taiping. Later in the hearing, she stated that she, her brother and her son moved houses on two occasions in Taiping to avoid the money lenders before the applicant left Malaysia for Australia. When I pointed out that she had said she was living separately from her brother and son in Pahang, the applicant stated that these moves occurred before she went to Pahang. However she also stated that the money lenders did not harm her in Malaysia because she was making regular monthly payments on the debt. If that were the case, there would be no reason for the loan sharks to harass her family members in Taiping or for the applicant and her family to relocate to avoid the money lenders;

    ·Fourthly, at hearing, the applicant gave evidence that she had never reported the loan sharks’ harassment to the police. I discussed with her DFAT’s advice that police actively investigate and prosecute illegal money lenders in Malaysia and had made a number of high profile arrests in recent years.[1] When invited to comment on that information, the applicant said she just wanted the opportunity to stay in Australia for a few more years and not return to Malaysia so soon. When I asked why, she said that in a few years she could pay off the loan. When I pointed out she had said that she had stopped making payments in 2018, she said that after the loan sharks found her brother and son in 2020 she made further payments. I note this to be inconsistent with her earlier evidence and I do not accept it to be true.

    [1] DFAT Country Information Report Malaysia 29 June 2021 at 3.116.

18. For all of the above reasons, I do not accept the applicant borrowed money from loan sharks in 2014 or 2015 as claimed, nor do I accept that the loan sharks harassed or otherwise harmed the applicant or her family members in Malaysia. For the same reasons, I do not accept that there is a real chance the applicant will be harmed by loan sharks if she returns to Malaysia, now or in the reasonably foreseeable future.

19. As the ‘real risk’ test imposes the same standard as the ‘real chance’ test, I do not accept there is a real risk the applicant will suffer significant harm from loan sharks as a necessary and foreseeable consequence of being returned to Malaysia.[2]

    [2] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].

20. As the applicant does not claim to fear harm in Malaysia for any other reason, she does not meet the criteria set out in s 36(2)(a) or s 36(2)(aa).

    CONCLUSIONS

21. 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).

22. 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).

23. 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

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

    Alison Murphy
    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.

    …