1822161 (Refugee)

[2021] AATA 2606

1822161 (Refugee) [2021] AATA 2606 (23 April 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1822161

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:  P. Wood

DATE AND TIME OF

ORAL DECISION AND REASONS:          23 April 2021 at 12:54 pm (VIC time)

DATE OF WRITTEN RECORD:                20 May 2021

PLACE OF DECISION:  Melbourne, Victoria

DECISION:  The Tribunal affirms the decision under review.

CATCHWORDS

REFUGEE – protection visa – Malaysia – unpaid debt to money lender – Tamil ethnicity – fear of persecution – disadvantage – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 July 2018 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

1. At the hearing on 23 April 2021, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The time is now 12.25 pm and this is the beginning of my reasons in the application of AAT file number 1822161. The criteria for a protection visa set out in section 36 of the Migration Act and schedule 2 to the Migration Regulations. The applicant is either a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds. Where relevant, the tribunal has taken into account the policy guidelines prepared by the Department on refugee law and complementary protection and also the country information assessment prepared by the Department of Foreign Affairs and Trade in accordance with the relevant ministerial direction.

Credibility

1. The tribunal observes that before going into its findings that in questions of credit the Tribunal needs to give the benefit of the doubt that that should not lead to the uncritical acceptance of any and all assertions made. It is entirely for an applicant to make their case before the tribunal in as much detail as possible. Greater weight may be given to one piece of evidence against another and there is no rule that there must be a positive state of disbelief before making adverse assessments.

Country of nationality

1. In this case, the applicant claims to be a Tamil of Indian heritage who was born in and is a citizen of Malaysia. The applicant provided the department with a copy of his passport. It is in this situation that I find that the applicant is a national of Malaysia, which is also his receiving country for the purposes of the refugee and complementary protection assessments.

Summary of claims

1. The tribunal discussed with and questioned the applicant concerning the protection claims that he put forward in writing. In summary, the applicant’s written claims were that he departed Malaysia because he had borrowed money from a money lender, that the money lender increased the interest and that, if he returned to Malaysia, he will be physically assaulted and killed. The situation is that the applicant’s oral testimony for the tribunal, whilst overall not very persuasive, was more detailed than his written claims, and is therefore necessary of further consideration.

Summary of evidence at the tribunal hearing

1. Following discussion with the applicant concerning his written claims, the tribunal invited the applicant to provide oral testimony and expand upon his written claims. Further, the tribunal invited the applicant to address the tribunal in relation to any other matter he sought fit to put before it.

1. The applicant told the tribunal that prior to coming to Australia, he conducted a business in Malaysia. The applicant said that, initially, he worked for his cousin’s [business], but that he decided to establish his own business and therefore, needed to borrow money. The applicant told the tribunal that he borrowed [amount] from a well-known money lender and [amount] from a friend [and] had a large amount of redundancy or retirement-like moneys available.

1. The applicant told the tribunal that he borrowed the [amount] Malaysian Ringgit from the money lender, initially, at an interest rate of 15 per cent. He said that, over time, he and later, he and his father, met with the money lender and on two further occasions, the interest rate was decreased to 12 per cent and then 10 per cent, respectively. This is significant as the applicant’s written claim was that the money lender did the opposite; that is, he said in his initial written claim to the department that the agreement he negotiated with the money lender involved a situation where the interest rate increased.

1. The applicant told the tribunal that he sold his car for 17,000 Malaysian Ringgit because he needed money. He said that he reached a point where he was unable to repay the money lender and he was in a situation where people would look for him at night and they would threaten him. He asserted that he had lodged three police reports in relation to this and that no action had been taken by the Malaysian police. The applicant said that he formed the view that he could not make money from anywhere in Malaysia so he decided to borrow some money from his parents and purchase a plane ticket to come to Australia. He said that his plan was always to find a job here in Australia.

1. The applicant told the tribunal that in Australia he initially worked as [an occupation]. He told the tribunal that following his success in that role, he was moved to [another section]  where he worked as [another occupation] for almost a year. Significantly, he told the tribunal that he now works as a team leader, responsible for the supervision of [a number of] people at the same [workplace] where he first started working as [an occupation].

1. The tribunal observes that the applicant now earns, on his evidence, [amount] per week. The tribunal considered that the applicant seemed quite proud of his present employment situation. The tribunal was told by the applicant that previously he rented short-term accommodation, but that he has now obtained a house for himself. He said that he has recruited two housemates and that he has spent money on making the house comfortable in terms of furniture and the like. He told the tribunal that he did this in preference to repaying his debts, because he formed the view that he would like to remain in Australia and work.

1. He told the tribunal that he has only repaid 30,000 Malaysian Ringgit in respect of the loan from his friend [and] provided him with [amount] Malaysian Ringgit interest- free loan.

1. The tribunal continued to question the applicant and invited him to provide any further comment. He said that in Malaysia he had previously been the subject of a kidnap attempt because of the outstanding moneys owed to the money lender and that if he returns, he would continue to be threatened and that he might lose his life. Additionally, the applicant told the tribunal that because he is of an Indian heritage, in Malaysia, he does not receive the same priority in terms of bank loans as are given to Muslims.

1. I discussed country information with the applicant relating to the present situation in Malaysia.1 During the course of the tribunal hearing, I put to the applicant that country information suggests that Malaysia is classified as an upper middle-income economy by the

1 DFAT Country Information Report Malaysia, 13 December 2019, 2.9 – 2.10.

World Bank, with GDP growth and that there has recently been some economic prosperity. I further put to the applicant that following the COVID-19 pandemic, the Malaysian government had provided significant resources across the economy, including support for small and medium enterprises.2 The applicant did not agree.

1. I asked the applicant if there was anything else he wished to say or provide further information on his claims. He said that he had nothing further to add.

Findings

1. I find on the basis of the applicant’s Malaysian passport, that the applicant’s receiving country and his country of nationality, is Malaysia.

1. I find on the applicant’s evidence that he was able to support himself for some time in Malaysia prior to coming to Australia. Having listened to the applicant, I find that the applicant has a strong work ethic, has the capacity to work in Malaysia and I do not accept that he has suffered any harm in the past in Malaysia.

1. Having listened to the applicant, I find it is unlikely that the applicant would put himself in a situation where he would invest in furniture and fitting out a house here in Australia in the way he describes, with a view to the long-term, if he continued to have significant debts accruing in Malaysia, particularly at the interest rates that he has asserted. I find it puzzling that given the applicant’s wage here in Australia, he would not have sought to have paid off the loan with the high level of interest to some extent. I find it puzzling that the applicant claims that he has made only 30,000 Malaysian Ringgit payments towards the interest-free loan.

1. It follows that I do not accept that the applicant has ever borrowed [amount] Malaysian Ringgit from a money lender or his friend. It follows that I did not accept the applicant’s claim that people have ever come to his house, put paint on his car, or his house, or that they looked for him at night, or that they have threatened him, or that he has made police reports concerning this. I do not accept the applicant’s evidence that he cannot make money in Malaysia.

1. I do, however, accept that the applicant travelled to Australia primarily for the purpose of finding a job and maintaining employment here. I accept that the applicant works in Australia as a team leader and that the applicant has progressed in his role to ultimately become a team leader.

1. I do not accept that the applicant will lose his life if he was to return to Malaysia. Whilst I accept that there may be some issues concerning the applicant being of Indian heritage, I do not consider that the applicant’s circumstances would prohibit him from obtaining loans through the ordinary banking mechanisms to any lesser degree than the applicant claims are made available to Muslims.

1. I accept that the applicant has established a house for himself in Australia. I accept that the applicant has recruited two housemates. I accept that the applicant has spent money on furniture, and that he has done this because he would like to establish a life for himself in Australia where he can work and continue to be paid in Australian dollars.

2 See ‘Coronavirus: Malaysia announces US$2.3 billion third stimulus package for economy’ South China Morning Post, 6 April 2020; ‘Commentary: Malaysia's economy has surprised many despite COVID-19. But for how long more?’ Channel News Asia, 20 May 2020; ‘Reopening Malaysia’s economy in a new normal’ World Bank Blogs, 7 May 2020

1. I find that despite the economic challenges facing Malaysia at present, on the country information, the applicant has reasonable prospects of obtaining employment there as he has done in the past and as he has demonstrated that he can do here in Australia.

1. I find that the applicant will be able to support himself financially. I find that there is no real chance that the applicant, or his family, being unable to subsist or suffer any other form of serious harm. In making this finding, I have given significant consideration to the fact that the applicant has previously worked in Malaysia and has demonstrated progression in a number of roles in employment here in Australia.

1. Having regard to my findings, I find that there is no real chance that the applicant suffering serious harm amounting to persecution from anyone on return to Malaysia now or in the reasonably foreseeable future.

1. I have considered the applicant’s claims against the complementary protection provisions. On the basis of my findings above, I find that the applicant has not been and will not be pursued by any money lender. I accept that the applicant was able to support himself previously in Malaysia, that the applicant has worked in Australia and Malaysia. I have found above that the applicant would have reasonable prospects of employment on return to Malaysia and I have found that there is no real chance of him or his family being unable to subsist. Therefore, I find that there is no real risk of the applicant suffering significant harm if he is removed from Australia to Malaysia now or in the reasonably foreseeable future.

Conclusions

1. 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 section 35(2)(a).

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

1. There is no suggestion that the applicant satisfies section 36(2) on the basis of being a member of the same family unit, as a person who satisfies section 36(2)(a) or (aa) and who holds a Protection visa.

1. Accordingly, the applicant does not satisfy the criterion in section 36(2).

DECISION

1. The Tribunal affirms the decision under review.

P. Wood Senior Member