1822545 (Refugee)

[2020] AATA 3390

1822545 (Refugee) [2020] AATA 3390 (24 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822545

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Paul Noonan

DATE:24 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 24 July 2020 at 05:00pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – threats to kill by creditors of associate’s failed business venture – resilement from written claim, completed by friend without applicant’s knowledge – economic conditions and work record – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), Schedule 2

CASE

MIAC v SZQRB [2013] FCAFC 33

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 dependants.

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 Home Affairs on 26 July 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 12 March 2018. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic on 9 July 2020. I determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The hearing was assisted by an interpreter in the Malay and English languages. I was satisfied that the applicant understood the interpreter and my questions to him during the course of the hearing, and note that the applicant did not raise any concerns with respect to the interpreter or any difficulty in understanding my questions during the hearing.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

    Migration history and identity

11. In his application to the Department, the applicant declared he was born [in] the province of Terengganu, Malaysia, in [year], and that his ethnicity is Malay and religion is Islam. The applicant stated he can speak, read and write Malay and English. He indicated that he has never been married and declared [siblings], a mother and a father as family members residing in Malaysia.

12. The applicant stated that he completed high school in Terengganu in [year] and worked as [an Occupation] at a [Workplace] in Selangor from January to October 2017 and lived at a single address in Malaysia until his departure in 2017.

13. The applicant first arrived in Australia [in] December 2017 as the holder of an electronic travel authority. On 12 March 2018, he applied for protection and was granted a bridging visa in connection with this application.

14. The applicant was not offered a protection visa interview by the Department.

    Country of reference

15. The applicant provided the Department with a copy of his Malaysian passport and details of his Malaysian national ID card, which satisfied the delegate as to his identity and Malaysian citizenship.

16. On the basis of such, and in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is as he claims it to be. The Tribunal accepts that Malaysia is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issues in this case are whether the applicant is a refugee, and if not, whether there are substantial grounds for believing that there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of being returned to Malaysia.

18. In his written claim for protection, lodged with the Department on 12 March 2018, the applicant stated (in summary) that he left Malaysia because creditors from a failed business venture threatened to kill him. The applicant stated that in 2017, he found 20 people to invest in a business venture offering fast returns that was run by his associate, [Mr A], who fled with the investors’ money after a few months. The investors blamed the applicant and he was hit by some of them, and they also threatened to kill him if he does not return the money. The applicant stated he did not seek help because the situation is his fault and no one can help him and he does not believe the Malaysian authorities could protect him. He stated he cannot relocate internally as they will find him in the country no matter what. He stated his creditors will kill him if he returns to Malaysia.

    Does the applicant have a well-founded fear of persecution should he be required to return to Malaysia?

19. At the commencement of the hearing, I read the applicant’s written claims to him and asked him if they are a fair and accurate record of his claims for protection and if there is anything he wished to add to his claims for protection.

20. The applicant informed me that he had no idea about these claims for protection as he did not write them. He informed me that a friend wrote his claim for him and he just told his friend to write whatever they wanted. I asked the applicant if in fact he is making any claims for protection. The applicant replied yes. I asked the applicant what his claims are for protection and whether he has any fear of harm should he be required to return to Malaysia. The applicant replied that he is not sure but he needs money. I asked the applicant whether he resiled from his written claim to fear harm from [Mr A] and if he could confirm whether he wished me to consider those claims or not. The applicant stated that he did not really know what his friend wrote and what claims his friend made on his behalf.

21. I asked the applicant if his friend, who he stated wrote his protection claim for him, is in Australia, to which the applicant replied he did not know. I asked the applicant to confirm whether he fears harm from investors who gave him money in relation to [Mr A]. The applicant replied maybe not. He stated again that he did not really know what was written on his claim and he just gave his friend his basic details.

22. The applicant indicated that he came to Australia to earn some money to support his family in Malaysia. He noted that he was working in Malaysia in various [work sector] jobs but the income was insufficient. He is helping to support his parents and siblings. He has [sibling composition deleted] and two of them are working. His parents are no longer able to work and have debts related to the treatment of injuries sustained in a car accident which he is helping them to pay off. The debts are owed to friends, family and maybe the government, but he is not sure of that. He believes the debt is around [Amount] ringgit but is not sure. He sends money regularly to them.

23. I asked the applicant if there is any reason he would be denied employment should he return to Malaysia. The applicant replied that he does not really know, that he would probably have to look for a new job. I put to the applicant that his past employment history, his age and the fact he is working now may suggest to me that he would be able to find a job should he return to Malaysia. The applicant stated that he would rather work in Australia where he can earn better money and support his family. I put to the applicant that country information indicates that the overall unemployment rate in Malaysia as of February 2019 was 3.3%.[1] Further that Malaysia is classified by the World Bank as an upper‑middle‑income country, and further that Malaysia’s economic performance over several decades has led to a significant reduction in poverty.[2] I put to the applicant that this country information may suggest to me that his economic prospects are reasonable should he return to Malaysia.

    [1] Department of Foreign Affairs and Trade, Country Information Report, Malaysia, 13 December 2019, p.11

    [2] Department of Foreign Affairs and Trade, Country Information Report, Malaysia, 13 December 2019, p.10

24. At the end of the hearing, I asked the applicant if he had anything to add as to why he fears harm or does not want to return to Malaysia, to which the applicant replied that he did not.

    Refugee considerations

25. I am satisfied that the applicant resiled from his written claim to fear harm from a business associate known as [Mr A]. This is because he gave clear evidence that he had no knowledge of his written claim in this regard. He had informed a friend to write whatever he wanted in his written claim and he did not know what his friend had written. He had no knowledge of a [Mr A] and was unable to provide any evidence in support of his written claim as he did not know what his written claim was.

26. Even if the applicant’s resiling from his written claim were to be considered somewhat equivocal, I reject the claim as not credible. This is because it is not reasonably plausible that the applicant would have no knowledge of his written claim for protection and I would expect that at the very least he would have some, if even scant, knowledge of his claim if the events detailed in the written application had occurred, nor did he seek to give any evidence in support of his written claim when it was put to him.

27. I find that there is no real chance of serious harm to the applicant from a business associate known as [Mr A], or any other person associated with [Mr A] or investors in a business run by [Mr A], should he be required to return to Malaysia.

28. On the basis of the applicant’s evidence, I am satisfied that the applicant is concerned that, should he be required to return to Malaysia, he will not be able to earn sufficient money, when compared to what he can earn in Australia. He claimed that the consequence of this is that he will not be able to help support his family and assist his parents to pay off their medical debts. The applicant gave somewhat vague evidence that his parents owed money to friends and family and maybe the government. I also note the applicant’s evidence that his siblings are employed in Malaysia and I consider they would also be able to contribute to the family’s living costs. I am satisfied that there is no evidence before me that the applicant will face harm should his parents be unable to service their debts. Accordingly, I am satisfied that any fear of harm for this reason is highly speculative. I find that that there is no real chance of serious harm to the applicant on this basis.

29. I consider the applicant’s fear of harm in respect to his claim that he needs to stay in Australia to earn more money than he can in Malaysia is also due to his concerns about the prevailing economic conditions in Malaysia. I put to the applicant that DFAT country information indicates that Malaysia is an upper‑middle‑income country with good economic growth which has led to a significant reduction in poverty levels. The applicant indicated that there was no identifiable reason why employment would be specifically denied to him. After considering the country information that Malaysia is an upper‑middle‑income country with good economic growth and significantly reduced poverty, and taking into account the applicant’s age and employment history in [work sector], I am not satisfied that there is a real chance of serious harm to the applicant on this basis.

30. In summary, I am satisfied that there is no real chance of serious harm to the applicant for reason of a business associate known as [Mr A] or from investors in a business run by [Mr A] or any other person associated with [Mr A], or with respect to his parents’ creditors or with respect to the applicant being unable to find a job or being paid a lower rate of pay than that which he can obtain in Australia. In the absence of any other claim advanced as to why the applicant may face harm upon return to Malaysia, I find that the applicant has no real chance of being harmed by anyone for any reason, now or in the reasonably foreseeable future. It follows that I do not accept the applicant has a well‑founded fear of persecution for any reason claimed if he returns to Malaysia.

    Complementary protection

31. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa) of the Act, I have considered whether I have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.

32. For the reasons set out above, I have not accepted there to be a real chance that, if he returns to Malaysia, the applicant will suffer serious harm from a business associate known as [Mr A] or from investors in a business run by [Mr A] or any other person associated with [Mr A], or with respect to his parents’ creditors, or for reason of the state of the Malaysian economy manifesting as difficulty obtaining employment, or being paid at a lower rate of pay than that available to the applicant in Australia either now or in the reasonably foreseeable future.

33. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee definition.[3] For the same reasons, I do not accept there to be a real risk that the applicant would face significant harm on this basis.

    [3] MIAC v SZQRB [2013] FCAFC 33 per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297] and Flick J at [342]

    Conclusion

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

35. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

36. 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

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

    Paul Noonan
    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.

    …