1825236 (Refugee)

1825236 (Refugee) [2020] AATA 4241 (9 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1825236
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Alison Murphy
DATE:9 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 October 2020 at 9:49am
CATCHWORDS
REFUGEE – Protection visa – Malaysia – fears harm from loan sharks – significant inconsistencies – 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 August 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 12 May 2018. The delegate refused to grant the visa on the basis that the applicant was not owed protection by Australia.
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, 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).
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.
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.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
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
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 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
The visa application records that the applicant is [an] [age]-year-old female from Kelantan, Malaysia. At hearing, she told me her parents are divorced and that until travelling to Australia she lived with her mother in [Kelantan]. She stated she had lived in Kelantan all her life except for a [visit] to Kuala Lumpur in 2015. She stated her father is remarried and lives in a distant part of Kelantan and she has three half-brothers.
The applicant stated she completed her high school certificate (SPM) in [year]. After finishing school, she worked at a small [business] run by her mother. Prior to travelling to Australia, she had never left Malaysia. She travelled to Australia on a visitor visa in February 2018 and she works on a [farm].
I accept the above matters to be true.
Claims for protection
In her visa application, the applicant set out her claims for protection as follows (in summary):
·She left Malaysia after applying for a loan to support herself and her family. She had heard the company would give loans without payslips or other documents and she was self-employed so had no payslips. The interest rate was low so she thought it was a good loan. After the loan was approved she made payments, but after a year she took out a second loan which she couldn’t afford to pay in full after her business went down;
·A year after taking out the first loan she had still not finished paying it, which is when she realised she had borrowed from a loan shark. They kept threatening her so she would pay more and more, saying her payments were not enough because the interest had grown too much. The loan sharks also harmed her parents so she asked them to move to another state. She also moved to another state but the loan sharks found her and warned her they would kill her. The loan sharks knew where she worked and where she lived and their people kept following her. She couldn’t go back to her parents’ house because she didn’t want them to know where her parents lived;
·She can’t repay the loan on her small salary in Malaysia so she needs to start her new life here in Australia and send money back to Malaysia to keep the loan sharks away, who can kill her anytime. She needs protection and the right to work so she can live a peaceful life and help her family to survive;
·She did not seek help in Malaysia because no one can help her with this kind of financial problem and she did not move to another part of Malaysia because she had no idea where to go. If she returns to Malaysia, the loan sharks will find her and kill her because she tried to run away from them. They will find her wherever she goes and the police cannot protect her 24 hours a day. She has already tried to relocate but it didn’t work for her.
At hearing, the applicant elaborated on her written claims. In summary, she stated that she and her mother opened a [business] in 2017. The applicant borrowed [amount] ringgit from loan sharks in May 2017 to expand her mother’s business. She used the money to start the business, pay the rental and workers, and purchase furniture. The business was initially doing quite well, so she borrowed a further [amount] ringgit in October 2017. The interest on the first loan was 20,000 ringgit and the interest on the second loan was 10,000 ringgit, but she does not know how those amounts were calculated. In November 2017, the business’s income dropped dramatically to the point they had to close the shop. By the middle of December 2017, the applicant was unable to pay the loan sharks and asked for more time. They refused so she withdrew all her savings to pay them.
After that, the loan sharks sent her a text message with a picture of her family saying if she didn’t pay, someone would die. She called and asked for more time, but they only gave her two weeks to pay. [In] January 2018, they sent her more pictures of her mother and father and threatened her again, telling her they knew where she lived and worked. She told her mother to move away from Kelantan and her mother and brother moved to an aunt’s place in Kuala Lumpur. The applicant went into hiding at an aunt’s place in Kelantan who bought her a ticket to come to Australia. She stayed with her aunt for four days and spent the rest of the two months before her departure from Australia staying at a friend’s house.
Since arriving in Australia the applicant has been working on a [farm] and transferring money back to her mother and brother in Malaysia to pay the debt to the loan sharks. She has not had any contact with the loan sharks since arriving in Australia but calculates her debt is currently [amount] ringgit. She wants time to pay off the debt before returning to Malaysia.
For the following reasons, I do not accept the applicant’s claims to have borrowed money from loan sharks in Malaysia be true.
Firstly, I consider aspects of the applicant’s claims to be both vague and implausible. The applicant claims she did not know she had borrowed money from a loan shark until they started threatening her. This despite her statements that she did not provide payslips or other documents to obtain that loan and the loan was not document in writing. In her visa application she claimed that the interest rate was low so she thought it was a good loan, but at hearing she stated that the interest on the initial [amount] ringgit loan was 20,000 ringgit and the interest on the second [amount] ringgit was a further 10,000 ringgit. When I discussed with the applicant that such interest rates seemed to be extremely high rather than low as she had described them in her visa application, she stated that at the time she did not know anything about illegal money lenders.
Secondly, there are significant inconsistencies in the applicant’s evidence:
·In her visa application, she states that she operated a [stall] with her mother between 2011 and 2018, however at hearing she stated they started that business shortly before the applicant took out the first loan in May 2017. When I discussed the apparent inconsistency with the applicant at hearing, she stated that a friend had completed her visa application and must have made a mistake. When I noted that she had stated in her visa application that she did not get assistance from anyone else to complete the form, the applicant stated that she paid her friend [Ms A] to complete the form for her and that she did not know [Ms A]’s surname;
·She has given inconsistent evidence about the timing and the manner in which she became aware that her loan was from a loan shark. In her visa application, she stated that she realised she had borrowed from a loan shark when she had still not finished repaying the loan a year after she took it out. At hearing, she stated she became aware she had borrowed from loan sharks when she took out the second loan and they started to threaten her, six months after she borrowed the first amount in May 2017;
·She has also given inconsistent evidence about where she and her family resided and the actions they took to avoid the loan sharks. At the beginning of the hearing the applicant gave evidence that her parents and siblings remained living in the state of Kelantan, but later in the hearing she claimed her mother and brother had moved to Kuala Lumpur to escape the loan sharks;
·In her visa application, the applicant stated that she herself also moved to another state to escape the loan sharks, where the loan sharks found her and warned her they would kill her. This is contrary to her evidence at hearing that she remained living in the state of Kelantan with her aunt and a friend and the loan sharks did not find her before she departed for Australia. When I discussed this with the applicant, she stated she did not know anything about that and suggested the errors were made by the friend who completed the visa application;
·The applicant described a number of incidents in her visa application which she did not mention in her oral evidence. In her visa application, she claimed that the loan sharks followed her and harmed both the applicant and her parents, events not suggested by her oral evidence at hearing. When I discussed this with her at hearing, she did not suggest those things had occurred, rather she suggested that the person who completed her visa application had inserted them.
I have considered the explanations the applicant has given for the above matters. I do not accept the inconsistencies arise from errors made by a third person who completed the applicant’s visa application. In making this assessment, I note the applicant specifically states in her visa application that she did not receive assistance in completing the form. She also states that she reads and writes English. In any event, some of the inconsistencies arise out of the applicant’s own statements at hearing.
Taken together, the above matters cause me to consider that the applicant’s claims should not be accepted. Having carefully considered the applicant’s claims to have borrowed money from loan sharks in Malaysia, I do not accept them to be true. I do not accept the applicant unknowingly took out loans from a loan shark in 2017, nor do I accept she was unable to repay those loans. I do not accept the applicant was threatened, harassed, targeted or otherwise pursued by loan sharks for reasons of those loans. I do not accept the applicant or her mother left their home in [Kelantan], to escape the loan sharks and I do not accept the applicant has a genuine fear of harm on that basis.
It follows that I do not accept there to be a real chance the applicant would be harmed by loan sharks if she returns to Malaysia, now or in the foreseeable future. For the same reasons, I do not accept there to be a real risk that the applicant would face significant harm from loan sharks if she returned to Malaysia.
At hearing the applicant confirmed there was no other reason she could not safely return to Malaysia. For these reasons I do not accept there to be a real chance the applicant will face serious harm or a real risk she will be subjected to significant harm by any person or group if returned to Malaysia, now or in the foreseeable future. Therefore, she does not meet the criteria set out in s.36(2)(a) or s.36(2)(aa).
CONCLUSIONS
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.
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.
…

[2020] AATA 4241

9 October 2020

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction