1806894 (Refugee)

1806894 (Refugee) [2018] AATA 5969 (22 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1806894
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Melissa McAdam
DATE:22 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 22 June 2018 at 4:51pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – attacks and threats by loan sharks – lengthy unlawful stay in Australia – credibility – no real risk of significant harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 March 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 7 March 2018.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in 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.
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.
A person is a refugee if, in the case of a person who has a nationality, she or he is outside the country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail herself or himself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, she or he is a refugee if outside the country of her or his former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if she or he fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance of being 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.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The following is a summary of the claims and information provided by the applicant in his Protection visa application:
a.He was born on [date] in Kulim, Kedah state, Malaysia. He submitted a copy of his Malaysian passport.
b.He fears for his and his daughter’s life in Malaysia. He is unable to pay back money he borrowed from loan sharks. Malaysia’s economy is down.
c.The week before he left Malaysia the loan sharks asked him to pay them the money he owed or they would hurt him and his family. The loan sharks held a knife against his neck and punched him a few times.
d.The loan sharks will easily find him in Malaysia through their network. They will demand the money he owes them plus interest or they will kill him.
e.The police are involved with loan sharks so they will not protect him.
f.He arrived in Australia [in] June 2001 on a [temporary] visa which ceased on 7 September 2001.
g.He is in a de facto relationship with a Malaysian woman who is a permanent resident of Australia. His partner has a mental illness. He is her primary carer and financially supports her. At one time she returned to Malaysia to her parents’ house for treatment but her family did not understand her problem and sent her back to Australia. He wants to stay in Australia to look after his partner.
h.He was cheated in Australia and lost a large sum of money in a business investment.
Departmental Interview
There is no record of the applicant being interviewed by the Department, in regard to his protection claims.
Delegate’s Decision
The Delegate was not satisfied that the applicant’s claims related to any of the grounds in the refugee definition. The Delegate noted country information that the Malaysian police had shown a willingness to take action against loan sharks and illegal money lenders. The Delegate found that applicant would be able to seek assistance from the Malaysian police or security forces if he needed to in Malaysia.
Information to the Tribunal
Written Submission
On 1 June 2018 the Tribunal received a written submission from the applicant. It contained the following:
a.A letter from the applicant to the Tribunal (set out below).
b.News articles regarding loan sharks in Malaysia.
c.A letter of support from a friend, [Ms A].
d.A Statutory Declaration regarding support for the applicant from a friend, [Ms B].
e.A letter of support for the applicant from [Mr C].
f.A Malaysian government KWSP account statement in the applicant’s name stating that there is a total amount of [amount] as at [May] 2018.
g.KWSP EPF Membership Fund Withdrawal conditions for the applicant’s EPF account.
h.An email dated [March] 2012, stating the applicant’s total funds in his EPF account are [amount].
i.A photograph of a [book] written by the applicant.
j.A handwritten letter in English from the applicant’s ‘Elder Sister’, dated [April] 2018, in which she states that all is not well at the family home because unknown people have knocked on their door on several occasions claiming to be debt collectors for the applicant’s past loans. She states that they threatened bodily harm to the applicant and the family so they [the family] are considering making a police report. She states they asked her to pay the applicant’s debts but she refused, and that there have also been phone calls and it is very frightening. She states that it is dangerous for the applicant to return home.
The applicant’s letter states:
I left 2001 [June] from Malaysia Kuala Lumpur because the i am frightened and fear of my life from money Lenders ( Loan sharks) with interest Total of [amount] and [amount] Ringgit in separate occasions ... with different individuals ( They are introduced by Few friends I know. For small business venture, when i was unemployed at that period.1998 They charged me Up to 5%. [Amount] every month, The only reason I went with them is quite hard for me to get for loans from Banks and any other sectors.
The first few months I have managed to pay. It becomes to much manage, I missed 3 months. I am unable to pay the interest. And unable recover the initial amount from business. I am not gambler either taking any drugs. I got few threatening calls from the loan shark. Demanding for their Money, nightmare which left me frightened.
I don't what to do at that time, I told them will pay in week. Not thinking straight, Like I am going crazy. very shameful, Stressful, worried, getting Nightmares. I have tried the maximum level to get the money to avoid conflict with them.
Few money lenders who know me give me couple more weeks to pay off ...[in] may 2001, two Chinese guys caught me in the evening at my house, They are very violently threaten me with few punches with holding with knife point on my neck demanding the full amount or Interest, They give me a week to pay off. I had no money, I felt down lonely, depressed and suicidal. I lived in constant fear. no sleep. I know the fact they would turn up at the house at any time of the day or night demanding payment and make violent threats again.
I moved to Kuala Lumpur the next day. I stayed in KL for a week with fear. I called my sister. Back home ...told her i left Penang that in Kuala Lumpur 3 day's later my sister told me not return. The loan sharks told to my sister they will find me.(That's my family Home)
Secondly, I can hide in different state ..in Malaysia, it is easy for them to find me with I/D Card or working address. I came to Australia without thinking what visa I needed just want to hide.
I don't want the loan shark know where i am. I am not the strong person to fight back ... I have tried maximum level to avoid them to payoff. I was mentally stressed, unable sleep, I can't think straight or concentrate, huge lost weight. Fear of life and shame brought to family and my daughter, Even I thought about commit suicide. Even though there are few of Ah Longs them brought to justice different states. They still come around looking for me.
I always check with my sister (Back Home) regards my matter.. .She used to tell ..there are few unknown people do drop by asking for me. They have my I/D Details of Mine.
I am divorced with one daughter who staying her grandmother and every week I visit her at her grandmothers' house...Due to my problem, I stopped visiting her. .afraid they will find out. That's in Penang. My daughter and Grand Mother have moved to Kuala Lumpur for safe side.
Malaysia loan sharks are like Mafia there are every where. I read Malaysian news every day, regards to loan sharks (Malaysian Loan shark articles From news pepper) I am not the strong person to fight back. If I am been send back to Malaysia...that not only affecting me, my Family and my daughter too. Eventually, they will haunt me down, I can't imagine what Interest will be for [amount] ,That will be huge amount I need pay them. Or definitely will be killed.
The only way I can pay off is from My EPF ( My retirement fund ) which I can draw when I turned 60 yrs I am [age] now still need [number] years now.
I met [Ms D] late 1999. When I arrived in Australia I stayed with my friends In Brisbane at [Suburb 1], for few months he did support me, Then I moved with my Partner [Ms D] lived in [Suburb 2]. I met [Ms D] Again 2002 in Brisbane QId., She studied at [University] Brisbane for studied 3 yrs. She also received money from her farther monthly allowances. She is Permanent in Australia.
We lived 15 yrs in Brisbane QLD. She worked at [Employer] for year. And Casually few other [work sector] firm. She suffered mental health Issues. Been treated at [Hospitals]. She been in and out 9 yrs. Never worked after that. I become full time carer. [Ms D] medical File and to see JP moved to [Town], NSW. Where we lived .. [address] [phone number] Where She was at At [Street name] Surgery ([Doctor]) [phone number]
Since i was detained, There is No one look after her, I have ask her go home for some time with her Mother in Malaysia.
… I humbly requesting a Temporary Humanitarian Protection Visa till i turn 60 yrs ,Then i can go back to Malaysia and able draw my Epf Fund (Employees Provident Fund) I have amount pay Back the loan sharks and Avoid conflict to safe my self and my family. I am penniless Now. I have not paid my solicitor
My humble apology to Australia Immigration government, I lived unlawfully in Australia, For 17 yrs. But I never broke the Australian Law in any manner in shorts only to hide. I have helped and teach many [people]. Past years, the authentic Indian cooking Even Ii wrote [a] Book
([Title])
I have requested the latest amount from Malaysia.
I have copy of my (Employment Provident fund) details.
I have Submitted Few Support letter from friends.
I have submitted Few articels form Malaysian news paper media.
Tribunal Hearing
The applicant appeared before the Tribunal on 21 May 2018 to give evidence and present arguments. The hearing was conducted in English. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant was born and grew up in Pulau Pinang.
b.He has [a number of siblings] in Malaysia. [A number of siblings] are in Pulau Pinang, one [sibling] is in Kulim, about 50 km away, and one [sibling] is in Kuala Lumpur.
c.His marriage in Malaysia did not last very long. He divorced his wife and he had to get loans to pay his bills.
d.He wanted to run his own business. He approached men for loans. The business was a [specified] business he operated with his then wife. Everything was going fine until his business crashed in 1997-1998. Because of his divorce he could not concentrate on work and had to give up the [business]. Then he could not afford to pay his loan repayments or bills.
e.After his [business] closed he ran a business buying and selling [products]. However he was unable to sell the [products] for the price he paid for them.
f.He first borrowed money when he married, in 1994 or 1995 or 1996. He borrowed from people introduced by friends. The rest of the money he borrowed from his friend. Then his friend introduced Chinese loan sharks to him. He sometimes had to pay the Chinese loan sharks daily.
g.He first borrowed money from loan sharks in 1994 or 1995 to start his business. It was very hard to borrow money from banks. The loan sharks charged 5% or 10% interest which had to be paid daily or monthly. Initially the [business] profit could cover the loan repayments.
h.When he started having problems with his ex-wife he started to get into financial difficulty. He had a break down. They divorced in 1997. He stopped re-paying the loans when he left his [business]. Then he borrowed money from other loan sharks to repay the loans. This was in 1997.
i.He owes money to a loan shark and a moneylender and to friends. He owes the loan shark and money lender about [amount] ringgits and his friends about [amount] ringgits. He owes one loan shark, [E], almost [amount] ringgits[1]. He owes a money lender, [F], about [amount] ringgits[2]. He owes his friend [G] about [amount][3] or [amount][4] ringgits. He can’t remember who else he owes money to.
[1] Approximately AUD[amount].
[2] Approximately AUD[amount].
[3] Approximately AUD[amount].
[4] Approximately AUD[amount].
j.The loan sharks would come directly to him to give him cash and would collect money from him in cash. [F] was the only person who gave the applicant money by cheque.
k.Because of the interest he now owes more money. He missed a few months and they keep calling and looking for him. They go to his elder sister’s house.
l.The loan shark, [E], asked the applicant a few times when he would pay the money he owes. [E] went to the applicant’s house and became violent. This happened one evening. [E] asked the applicant if he had the money he owes. [E] said if the applicant doesn’t pay him there would be a problem. [E] gave the applicant a week to pay off the interest and loan amount. [E] held a knife at the applicant.
m.The applicant fears [E] will come to his house and abuse him if he returns to Malaysia. If the applicant does not return the money to [E] it will be the end of his life.
n.The applicant has not repaid any money he owes while he has been in Australia. He has had no contact with the loan sharks or money lenders while in Australia.
o.[E] went to the applicant’s home, in May, a week before the applicant left Malaysia in 2001. The applicant went to Kuala Lumpur and stayed there for a week. He applied for a passport. He applied for a visa to Australia sometime in June.
p.He contacts his sister once in a while. His sister tells the loan sharks that she doesn’t know where the applicant is. She does not tell them the applicant is in Australia because they can come to Australia very easily. He has been hiding in Australia.
q.He cannot live in Kuala Lumpur or anywhere else in Malaysia because he will need to show his ID card wherever he goes. The police are involved with the loan sharks and money lenders.
r.The loan sharks can hold the applicant and get his [siblings] to pay them. The loan sharks are a company, a group, not an individual. He does not know the name of the company or group.
s.He can’t tell the loan sharks and moneylenders that he will pay them when he receives his EPF money in July next year because they will want the money immediately.
t.His sister’s daughter wrote the letter from his sister.
u.If his family make police reports there will more problems after that. The punishment will be severe.
v.His [siblings] are retired and his elder [sibling] is mostly retired. They cannot help him repay the money he owes.
w.He sent his partner back to Malaysia on 23 February because there was no one to care for her here when he was put in immigration detention. He hasn’t spoken to her since she has been back in Malaysia. She is not mentally well. She can’t get or take medication in Malaysia so the applicant wants to bring her back to Australia when he is released from detention.
Country Information
DFAT’s most recent Country Information report upon India, published on 19 April 2018 includes the following:
Victims of Loan Sharks
3.97 Loan sharks (‘ah-Long’), or ‘pay-day-financing’, carry out money lending activities, charging high interest rates, without a licence. Loan sharks operate very publicly in Malaysia and while the practice is illegal, advertisements listing phone numbers and offers of cash loans for RM10,000 – RM20,000 (AUD3,100 – AUD6,200) appear on public property including lamp posts and utility boxes. Loans typically carry an interest rate of about 30 to 40 per cent per month, and can be as high as 15 per cent per day. The Commercial Crimes Investigation Department reported 2,273 cases involving loan sharks from 2016 to July 2017, with a total loan amount of RM68.8 million (AUD20.7 million).
3.98 In 2015, Public Services and Complaints Department of the political party, the Malaysian Chinese Association (MCA), reported over 70 per cent of borrowers in 214 cases were Chinese Malaysian. The Malaysian Muslim Consumers Association (PPIM), which provides services predominantly for the Malay community, has been involved in over 10,000 cases involving loan sharks from 2012 to 2016, of whom around 70 per cent were Malay. Sources provide vastly differing views on the reasons individuals engage illegal moneylenders. Some claim that up to 80 per cent of borrowers are supporting illegal gambling activities. Others claim most borrowers are public servants trying to cover daily expenses such as children’s education, or businesses excluded from mainstream finance due to insufficient documentation, bankruptcy or a poor credit history.
3.99 Amendments to the Moneylenders Act (1951) in 2003 and 2011 have increased police investigative powers against alleged loan sharks. Police can visit, enter, inspect or search premises without a warrant and seize moveable properties and business documents to assist with investigations against alleged loan sharks. Individuals involved in illegal moneylending activities in Malaysia can be convicted under Section 5(2) of the Moneylenders Act, which carries a fine of between RM250,000 and RM1million (AUD80,000 – AUD320,000) or, a jail term of up to five years, or both. Police made several high profile arrests and investigations of syndicates in 2017.
3.100 The MCA assists community members unable to service their loans. Very limited research is available on loan sharks and the individuals that engage these services, possibly due to their links to gangs and corruption.
3.101 An individual who is unable to service a debt from a loan shark may risk physical threats. Due to a lack of reliable information, DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, their likelihood of seeking police protection, or the level protection offered by police.
CONSIDERATION OF CLAIMS AND EVIDENCE

The applicant submitted a copy of his Malaysian passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of Malaysia. The Tribunal assesses the applicant’s claims against Malaysia as his country of nationality and receiving country.
Credibility
The applicant has consistently maintained that he borrowed money in Malaysia in the 1990s, got into financial difficulty and was unable to fully repay the loans. He has provided details of when he started to borrow money, from whom, and why he had difficulties repaying the loans. He has no documentary evidence regarding the debts however in light of his detailed oral evidence, the Tribunal gives him the benefit of the doubt that he did borrow money from a loan shark, a moneylender, and a friend or friends in Malaysia and has been unable to fully repay the loans.
The Tribunal accepts that the applicant was physically assaulted by a loan shark on one occasion in May 2001. He has consistently maintained this claim and provided a reasonable level of detail about the event. Available country information also indicates that, while infrequent, loan sharks may engage in physically violent acts to force debtors to make repayments.
The Tribunal does not accept that loan sharks have continued to visit the applicant’s family in Malaysia over the past seventeen years to demand loan repayments from the applicant. there is no reasonable explanation why the applicant’s family would not simply inform the loan sharks that the applicant is in Australia so that they would discontinue their visits. As stated by the applicant he owed the Chinese loan shark about [amount] ringgits which is not a particularly large sum of money. The Tribunal considers it highly implausible the loan sharks would continue to visit the applicant’s family over so many years to recoup the loan, when such efforts proved completely ineffectual. There is also no indication in the applicant’s initial protection visa application statement that the loan sharks had shown any interest in the applicant’s family since he departed Malaysia.
The letter purportedly written by or for the applicant’s elder sister in April 2018 also raises concerns. The writer speaks of phone calls and several visits by unknown people, regarding the applicant’s debts, as though this is new information to the applicant. However the applicant’s letter to the Tribunal describes him as always checking with his sister regarding his debts. There is no reason why the applicant’s sister would wait seventeen years to inform the applicant she was being visited and threatened by loan sharks regarding the applicant’s debts. There is also no reason why she would wait so long to report the threats to the police. The Tribunal does not accept the contents of the letter are factual.
In view of the above concerns the Tribunal does not accept that loan sharks or others have visited the applicant’s family to demand repayments by the applicant, since he departed Malaysia.
Fear of harm in Malaysia
The Tribunal has accepted that the applicant has unpaid loans to several people including a loan shark organisation.
As put to the applicant it has been many years since he departed Malaysia. The Tribunal considers that the chances of the loan shark organisation maintaining any interest or awareness in the applicant’s debt after all this time, are remote.
Even if the loan shark organisation, and/or the applicant’s other debtors, do start demanding repayment of the debts the applicant incurred in the 1990s, the applicant has stated he will be able to repay these from his retirement funds in July next year. The Tribunal can see no reason why the applicant’s debtors, including the loan shark organisation, would not agree to wait till then for repayment given he currently has no ability to repay the loan, but will in a relatively short period of time. In view of his ability to repay his debts from July next year the Tribunal considers the chance of serious or significant harm occurring now or in the reasonably foreseeable future, because of his current outstanding debts, is remote.
Further, recent available country information[5] indicates that the Malaysian police and other authorities are taking effective action against the unlawful acts of loan sharks, including in the applicant’s home province, Penang.[6] The authorities are conducting raids and arrests of loan sharks, as well as public campaigns against the use of unlawful moneylenders and loan sharks. They report successfully closing down a number of loan shark operations. The police are reportedly also encouraging victims to report illegal acts by moneylenders and there appears to be a willingness to do so. The government in the applicant’s province, Penang, has agreed to repay the loans of its own civil servants, minus interest, to the loan sharks.[7] The Tribunal finds this further indication of the state’s willingness to assist victims of loan sharks. In light of this information the Tribunal is satisfied that there is effective state protection available to the applicant from harm by the loan sharks.
[5] See e.g. Bernama.com News, 2018, ‘Loan Sharks Among 29 Individuals Detained For Illegal Money Lending’, 5 August, The Star Online, 2016, ‘Ah Long banners taken down in state-wide crackdown’, 15 January, ; New Straits Times, 2018, ‘'Op Vulture' nets 31 Ah Long syndicate members in six states’, 18 April, ; New Straits Times, 2017, ‘Loan Sharks Can Ruin Lives’, 23 April, ; New Straits Times, 2017, ‘Police reel in 2 loan sharks offering services in Pahang’, 1 March, ; Borneo Post, 2015, ‘No Need to Fear Loan Sharks’, 18 February,
[6] See e.g. The Star Online, 2014, ‘Crackdown on Ah Long’, 25 April, ; The Sun Daily, 2009, ‘26 loan sharks caught in Penang’, 2 October, See Free Malaysia Today news, 2017, “Penang to help civil servants caught in loan shark web’, 6 February, >
Although it is not strictly necessary to do so the Tribunal has also considered the applicant’s ability to relocate in Malaysia. The Tribunal considers that even if the applicant does incur threats or adverse interest from the loan shark organisation in his home area he would be able to move to another part of Malaysia to avoid such harm. He has given evidence that he went to Kuala Lumpur to escape the intimidation from the local loan sharks in May 2001. The applicant stated the loan sharks would be able to find him wherever he was in Malaysia. However in a large city such as Kuala Lumpur the Tribunal considers the chance of them doing so to be remote. There is no indication the loan sharks were aware the applicant was in Kuala Lumpur during his brief time there. There is also no reason they would become aware he is in Kuala Lumpur if he returns there. He stated that they would know because he would need to use his ID card and the police are in collusion with the loan sharks. While the Tribunal accepts that the applicant would need to use his ID card on return to Malaysia there is no reason loan sharks would have any knowledge of this. The Tribunal has not located information to support the applicant’s statements the police work with the loan sharks. The information located by the Tribunal indicates the opposite, that the police are actively combatting the loan shark operations. The Tribunal is satisfied that the applicant would be safe from the threat of harm if he moved to a city such as Kuala Lumpur. The applicant has [various] skills which would allow him to find work in a city such as Kuala Lumpur. His sister and daughter are also in Kuala Lumpur so that he would have familial support there. In all the circumstances the Tribunal is satisfied that as a matter of reasonable practicality, the applicant is able to relocate to a city such as Kuala Lumpur to avoid any problems he may have in his home area.
The applicant raised further issues about having formed a long term relationship with an Australian permanent resident of Malaysian nationality. He stated that his partner developed a serious mental illness some years ago and he has been her sole carer and support in Australia. He also stated that he convinced her to return to Malaysia after he was detained in immigration detention, because there was no one else to care for her in Australia. The applicant was not raising claims to fear harm in Malaysia because of his relationship but was presenting this information as a reason for the some of the financial difficulties he faced in Australia, and a further reason why he wanted to remain in Australia.
The Tribunal accepts the applicant’s statements about his relationship and partner. Movement Records confirm that the applicant’s partner is an Australian permanent resident and that she returned to Malaysia shortly after the applicant was put in detention.
The Tribunal has sympathy for the applicant’s and his partner’s situation and his concern for his partner’s future well-being. However the relationship and its special circumstances do not give rise to any chance of serious or significant harm to the applicant. If his partner was still resident in Australia the Tribunal would consider a recommendation to the Minister under s.417 of the Act, to allow the applicant to continue to care for his partner in Australia. However she is now living with her family in Malaysia. If the applicant returns to Malaysia he will be able to resume contact with her there. The Tribunal is not satisfied that the applicant faces any chance of harm in Malaysia because of his relationship with his partner.
On the information before it and for the reasons given above the Tribunal is not satisfied that there is a real chance the applicant will face serious or significant harm on return to Malaysia. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution in Malaysia. The Tribunal is also not satisfied there is a real risk he will be subjected to significant harm on return to Malaysia.
CONCLUDING PARAGRAPHS
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Melissa McAdam
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 5969

22 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction