1732895 (Refugee)

[2022] AATA 800

1732895 (Refugee) [2022] AATA 800 (17 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732895

HOME AFFAIRS REFERENCE(S):          CLF2017/33186

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Bridget Cullen

DATE:17 February 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 17 February 2022 at 4.39 pm  

CATCHWORDS
REFUGEE – protection visa – Malaysia – loan sharks – credibility concerns – no meaningful or verifiable detail – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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.

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 30 November 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 20 April 2017, on the basis that both she, and her family, are being threatened by loan sharks. The delegate was not satisfied that the Applicant is a refugee as defined in the Act. The delegate therefore held that the applicant is not a person to whom Australia owed protection obligations and refused to grant her the visa.

3. The applicant appeared before the Tribunal on 15 February 2022 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. The issue in this case is whether the applicant is entitled to a protection visa, either because she is a refugee or because she is otherwise entitled to complimentary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11. The applicant provided a copy of the Departmental delegate’s decision and a personal statement, dated 11 December 2017 along with evidence of a Tax File Number (TFN) at the time of lodging her application for review with the Tribunal.

12. On 5 February 2022, the Tribunal received a submission from the applicant, which was accompanied with a Personal Loan Statement from [Bank 1], a land purchase agreement from Malaysia, a study enrolment letter, and a screenshot of her completion of a Certificate IV course.

    Assessment of the Applicant’s claims

13. The applicant told the Tribunal that she was in danger if she returned to Malaysia, as she and her father borrowed a significant amount of money to “invest in a business,” and were then scammed, and lost lots of money. She says that she fears harm if she returns and would not be able to go to the police, as that would make it worse.

14. The applicant was unable to provide any detail about the business she and her father had invested in, save to say that it was an “overseas business” that had been proposed by her uncle as a good investment. She could not name it, or identify what it did, nor the amount of money that they had borrowed.

15. The applicant said that she believed the money had come from a loan agency, as opposed to an individual, for the reason that when her father was still employed with a [business], his wage was paid by his employer, in part, to the loan agency. The applicant could not explain whether this was pursuant to a court order.

16. As the applicant appeared to have no detail about any of the business or lending arrangements, the Tribunal asked her how it was that she was involved in the lending. She says that it is because she is family. She needs to help her family, as they cannot pay the money back. She said that she asked her uncle, who was managing the alleged overseas investment, what happened to the money. She said that her uncle gave an excuse for having lost the money, but the applicant could not explain what the excuse was or provide more information.

17. The applicant stated that none of her family members have been harmed, but that they have been treated very badly as a consequence of this lending situation.

18. While in Australia, the applicant has been working for [Company 1]. She has repaid the [Bank 1] personal loan regularly, at a rate of $120.00 per week. The current balance of the loan is [amount] as at 27 January 2022. The applicant says that she took out the loan because she needed to buy a vehicle, and claims that she also sent some money to her sister, to give to her father, to pay the loan sharks. The Tribunal queried why she would give the money to her sister instead of her father directly, and the applicant said that it was easier.

19. The applicant provided a copy of an agreement to buy land, signed by her father, to purchase a block of land for [amount]MYR, that is located next to her mother’s ancestors’ land. She says that she is taking responsibility to pay for the land.

20. While the Tribunal appreciates that this land may be sentimental, the Tribunal doesn’t understand why the applicant’s father would be seeking to take on more debt if he could not repay the debt he already has, which the applicant claims puts her in peril. The applicant did not have an explanation for this, save to say that she wanted to help her family.

21. The Tribunal’s impression is that the applicant’s story has been contrived, for the simple reason that she believes she will have a better life in Australia. The Tribunal found her to be courteous, and understands that she wants to remain in Australia, to complete a course which she has enrolled in.

22. However, the Tribunal does not find any of the applicant’s claims to have borrowed from a loan shark to be credible. There is no detail, even the most basic detail in relation to the nature of the business that the loan was supposedly taken out for. The applicant has provided no meaningful or verifiable detail, or supporting documentary evidence, of any of her claims to owe money in Malaysia, and could not pinpoint even the amount borrowed, or where it was borrowed from.

23. The Tribunal is prepared to accept that the applicant’s family may owe money to a lawful lender, but there is no logical information that would facilitate the Tribunal concluding that there were loan sharks involved, or that the applicant and her family were in any danger. The Tribunal considers the applicant’s story implausible and contrived for migration purposes.

24. The only claim made by the applicant in relation to the need for protection arises from her alleged fear that she will be harmed by loan sharks. She acknowledges that her family has not been harmed to date.

    Does the applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Act and meet the protection obligations under the complementary protection provisions of the Act?

25. On the basis of the Tribunal’s finding above that the applicant’s story has been contrived for migration purposes, the Tribunal also does not accept that the applicant faced any difficulties from any loan sharks or is even known by any loan sharks. The Tribunal does not accept were the applicant to return to Malaysia, now or in the reasonably foreseeable future, that she will face any of the difficulties she claims at the hands of any loan sharks or money lenders.

26. It follows that the Tribunal does not accept that the applicant will be killed or harmed, threatened, be required to pay back any debt stemming from Malaysia (the Tribunal does not consider the Applicant’s [Bank 1] loan in Australia to be a relevant factor), or experience economic difficulties arising from her alleged borrowing activities. For the same reasons, the Tribunal does not accept that the applicant’s family will be threatened or harmed because of any debt by her or her family to loan sharks.

27. As a result, the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm were she to return to Malaysia, in the reasonably foreseeable future at the hands of any loan sharks. Similarly, based on the findings above

    and on the basis of the evidence before it, the Tribunal is not satisfied that there is a real risk
    that the applicant will suffer significant harm on her return to Malaysia, at the hands of loan sharks.

    Conclusions regarding the Refugees Convention

28. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of her being subjected to serious harm in Malaysia in the reasonably foreseeable future. As the Tribunal has rejected the applicant's claims in their entirety, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if she returns in the reasonably foreseeable future.

29. 30. For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary Protection

30. The Tribunal has also considered whether the applicant is eligible for complementary protection. The Tribunal has above rejected the credibility of the applicant's claims in their entirety. The Tribunal therefore does not accept 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 that she will suffer significant harm as defined in subsection 36(2A).

31. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

32. 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

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

    Bridget Cullen
    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.

    …