1823976 (Refugee)

[2022] AATA 519

1823976 (Refugee) [2022] AATA 519 (5 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1823976

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Murphy

DATE:5 January 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 05 January 2022 at 10:46am

CATCHWORDS

REFUGEE – Protection visa – Malaysia –applicant had not experienced harm in Malaysia in the past – fear of bankruptcy and economic harm – fear of harm from loan sharks –credibility concerns – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, 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 Home Affairs on 17 August 2018 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 18 May 2018. The delegate refused to grant the visa on the basis that they were not satisfied the applicant attracts Australia’s protection obligations.

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

6. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

7. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Country of nationality

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

    The applicant’s personal background

11. The applicant is a [age]-year-old female from Perak, Malaysia. Her parents and [siblings] remain in Malaysia, with her youngest brother and his wife living with her parents while the other siblings live separately.

12. The applicant completed the Higher Certificate of Education in Malaysia, which she states is the equivalent of year 11. After finishing her studies she worked as [an occupation] at [a workplace] from 2009 until she departed Malaysia in early 2018.

13. The applicant entered Australia on [date] February 2018 as the holder of a tourist visa. At hearing she stated that she came to Australia to work and that she did not intend to return to Malaysia.

14. Since arriving in Australia she has worked on farms, [doing work]. For the past year she has been working in [a] factory.

15. I accept the above matters to be true.

    The applicant’s claims for protection

16. In her protection visa application, the applicant stated that she takes care of her elderly parents, but her income is not sufficient to support the family’s expenses. She stated she had to borrow money from her relatives and friends and also paid her father’s loan and her own car loan. She stated that she felt depressed because her friends and relatives asked her to pay them back and she didn’t have enough money to do so and Malaysia’s economy is unstable.

17. In response to a question asking what she thought would happen if she returned, the applicant stated that she would face financial problems from her friends and relatives because her income was insufficient to repay them and manage the family’s other expenses. She stated it was her responsibility to take care of her parents and she feared they would be depressed to see her face financial problems. She stated she had not experienced harm in Malaysia in the past and she did not try to move to another part of the country to seek safety, because she felt that she could make more money in Australia to solve her financial problems.

18. At hearing the applicant gave evidence that was generally consistent with her written claims, telling the Tribunal that her other siblings were poorly educated and had only lowly paid jobs, as a result of which she had to take care of their parents. She said that as at the date of the hearing, she had a car loan of 60,000 ringgit and the bank had repossessed the car. She also took out a personal loan of 15,000 ringgit to help her father with his shop, but that shop had since ceased trading.

19. The applicant made a new claim at hearing, saying she also borrowed money from loan sharks to whom she still owed 15,000 ringgit. She said that she had to repay them every three days and when she wasn’t able to make payments in the past, they had threatened her by coming to her father’s shop and yelling at her and telling her that they would print out her photos and put them in public places. She said she was continuing to repay the loan sharks by transferring money to her father using a money transfer service every two days. Since starting work at the [farm], she has also been making monthly repayments on the bank loans.

20. When asked what she feared would happen if she returned to Malaysia, the applicant stated that she feared the bank would declare her bankrupt and the loan sharks would create trouble for her.

21. At hearing I raised with the applicant the issue of her credibility, noting that she had not suggested in her protection visa application that she had borrowed money from loan sharks, nor that she had been threatened or harassed by them. Rather she stated in her visa application that she did not experience harm in Malaysia. I noted that the Act required the Tribunal to draw an inference unfavourable to the credibility of her new claims unless I was satisfied she had a reasonable explanation for not raising those claims earlier. The applicant stated that she had told the friend who completed her visa application about the loan sharks, but that she now knew her friend had not helped her as asked. She said she had no documentary evidence of the loan from the loan sharks, but that she could show the transfers to her father’s account which he used to repay the loan sharks.

22. I discussed with the applicant that sanctions or punishments for breaches of generally applicable laws like Malaysia’s bankruptcy laws will not generally constitute persecution because they are not applied in a discriminatory manner for reasons of a person’s race, religion, nationality, membership of a particular social group or political opinion and because the consequences may not rise to the level of serious harm. I discussed with her that in respect of complementary protection, the definition of significant harm doesn’t generally include acts that arise from lawful sanctions such as bankruptcy laws. The applicant stated that she understood that Australian law does not include her situation, but she was hoping to be given a chance to remain here to earn money because if she returns she cannot afford to take care of her family.

23. At the end of the hearing the Tribunal adjourned the review to allow the applicant to submit further documents evidencing her payments to her father.

    Fear of bankruptcy and economic harm

24. I accept that the applicant has a car loan of 60,000 ringgit and a personal loan of 15,000 ringgit from a bank in Malaysia. I accept she has defaulted on those loans and that her car was repossessed before she arrived in Australia. I accept her evidence that since she started work at the [factory] a year ago, she has been making regular repayments towards the bank loans and that she fears she could not continue to do so if returned to Malaysia with the result she will be made bankrupt. I accept there to be a real chance that the applicant will default on her bank loans and be made bankrupt if she returns to Malaysia.

25. However as discussed with the applicant at hearing, sanctions or punishment imposed pursuant to generally applicable laws such as bankruptcy laws will not generally constitute persecution. At hearing the applicant agreed that bankruptcy laws applied to the whole of Malaysia’s population regardless of race, religion, nationality, membership of a particular social group or political opinion and would not be directed at her in a discriminatory manner. The Tribunal finds that any sanction that might be applied to the applicant under bankruptcy laws would arise under a law of general application; would not have a discriminatory intent or impact and does not give rise to persecution.

26. In relation to the applicant’s fear of other economic harm, being that Malaysia’s economic situation is unstable, that she will have difficulty finding work that will pay her enough to support her family and that she cannot earn as much in Malaysia as she is earning in Australia, the Tribunal finds that the harm feared by the applicant is not for the essential and significant reasons of her race, religion, nationality, membership of a particular social group or political opinion. Therefore, she does not meet the criteria set out in s.5J(1)(a) of the Act and it follows she does not meet the criteria set out in s.36(2)(a).

27. For the purposes of complementary protection, it is not suggested that the applicant will be arbitrarily deprived of her life, subjected to the death penalty or tortured by the banks if she defaults on her loans and is made bankrupt and the Tribunal finds there is no real risk this would happen. In considering whether bankruptcy proceedings could constitute ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’, I note that the definitions of those terms exclude acts or omissions arising from lawful sanctions that are not inconsistent with International Covenant on Civil and Political Rights (ICCPR). There is no evidence before the Tribunal that would suggest that Malaysia’s bankruptcy laws are not lawful or that they are otherwise inconsistent with the ICCPR. For these reasons the Tribunal finds that any acts or omissions applied to the applicant as a result of any bankruptcy proceedings will not constitute significant harm.

28. In relation to any other economic harm that the applicant may experience in Malaysia or disadvantage relative to her financial position in Australia, it is not suggested that such harm would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. For these reasons I do not accept that any economic harm to which the applicant may be subjected if returned to Malaysia would meet the definition of ‘significant harm’, as that term is exclusively defined in s.36(2A).

    Fear of harm from loan sharks

29. I do not accept the applicant’s evidence at hearing that she also borrowed money from loan sharks, nor that they threatened and harassed her before she came to Australia. In making that assessment I note that she did not raise such claims in her protection visa application. Rather she stated in her visa application that she had borrowed money from the banks and friends and relatives and that she did not experience harm in Malaysia.

30. When I raised this with the applicant at hearing, she said that she had told the friend who completed her visa application about the loan sharks, but that she now knew her friend had not helped her as she had asked. I have considered that explanation but I do not accept it. I note that the applicant’s evidence at hearing was in other respects consistent with the contents of her visa application. In particular she discusses her insufficient income, her loans from banks and relatives and the state of the Malaysian economy. Not only does she fail to mention that she has borrowed money from loan sharks and been harassed and threatened by them, she states that she did not experience harm in Malaysia. I consider that if the applicant had borrowed money and been threatened with harm from loan sharks as she now claims, that information would have been included in her visa application.

31. The applicant gave evidence she has no documentary evidence of the loan from the loan sharks, but that she could show the transfers to her father’s account which he used to repay the loan sharks. I have considered the bank statements submitted by the applicant after the hearing, which she claims show the regular payments she makes to her father [Mr A] to pay the loan sharks.

32. The applicant does not identify the relevant payments among the many transactions on her bank statements and I am unable to locate any payments to an account held by [Mr A]. However the statements show a large number of payments made [and] I accept that some or all of those payments may be to the applicant’s father. Given the applicant’s evidence that she is making regular transfers to her father in repayment of the bank loan and to support her family, I do not accept those transfers to be probative evidence that she transferring money to her father to repay loan sharks. Rather my serious concerns about the credibility of those claims causes me not to accept that to be true.

33. For these reasons I do not accept the applicant owes money to loan sharks in Malaysia. It follows that I do not accept there to be a real chance the applicant will face harm from loan sharks if she returns to Malaysia, now or in the foreseeable future. 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 Convention definition.[1]  For the same reasons I do not accept there to be a real risk the applicant will be subjected to significant harm by loan sharks as a necessary and foreseeable consequence of being removed from Australia and returned to Malaysia.

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

    CONCLUSIONS

34. 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).

35. 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).

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.

    Alison Murphy
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …