1827874 (Refugee)

[2022] AATA 1439

1827874 (Refugee) [2022] AATA 1439 (12 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1827874

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Joseph Lindsay

DATE:12 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 12 April 2022 at 4:20pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from money lenders – threats and beatings – credibility – inconsistent claims and evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth),

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 24 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 is a citizen of Malaysia, applied for the visa on 12 February 2018.

3. The applicant appeared before the Tribunal on 8 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. In the applicant’s handwritten protection visa application she claimed, in summary, that she left Malaysia because she had been threatened by money lenders (ah longs). She indicated that she had a big loan from the ah longs, a loan that grew bigger due to the interest rate on the loan. She claimed she had been harmed when she was in Malaysia. She claimed that when she was in Malaysia the ah longs went to her house and blackmailed her. She stated that sometimes she would be beaten and slapped in front of her family. She stated that the ah longs threatened her many times and that they tried to kill her and her family. She stated she tried to hide from the ah longs, but they still found her. She stated she did not seek help when she was in Malaysia, and she did not move to another part of Malaysia to seek safety. 

11. In the hearing, the Tribunal asked the applicant to provide more specific information about her protection claims. In response, the applicant said she needed money from a loan shark. She said she was threatened because she was unable to repay the loan. She said she was living at home with her mother and father at the time, but she was also working to support her parents. She said she never actually tried to borrow money from a bank, and she was not in any debt when she decided to borrow money from the ah long in Kota Kinabalu. She said she borrowed about 20,000 ringgit and used the money to financially assist her parents. She said she is still financially assisting her parents and sends about 2500 ringgit to her parents each month. She said that despite being in Australia for a number of years, she has not repaid any of the loan. She admitted that she has had sufficient opportunity to repay the loan. 

12. She said that when she made the first payment, the ah longs grabbed and threatened her at a café. She said that, after this incident, she ran away. She said she went home and called the manager of her workplace and told the manager she was not going back to work. She said she then borrowed money from a friend to come to Australia, and then left Malaysia.

13. The Tribunal put to the applicant that it may have some concerns that she had not given credible information about her protection claims. The Tribunal discussed the applicant’s written claims in her protection application and put to her that her written claims appeared to be different to the claims she made at the hearing. The Tribunal put to the applicant that she had said in the hearing that the ah longs grabbed and threatened her at a café, but in her written claims she stated that the ah longs went to her house and blackmailed her, beat her and slapped her in front of her family, threatened her many times and tried to kill her and her family. The Tribunal put to the applicant that the Tribunal may find she had given inconsistent information about her claims in this respect and may find the information she provided was not credible. In response, the applicant said that she had said all she wanted to say and perhaps she had forgotten what had happened.

14. The Tribunal put to the applicant that in the hearing she said she lived at home with her parents when she was in Malaysia, and that in her written application she only gave one address that she ever lived at when she was in Malaysia, but that in another part of her written claims she stated that she had tried to hide from the ah longs, but she moved to another apartment and they still found her. The Tribunal put to the applicant that the Tribunal may find she had given inconsistent information about her claims in this respect and may find the information she provided was not credible. In response, the applicant said she only ever lived with her parents in Malaysia. 

15. The applicant said to the Tribunal that she had forgotten about the details of her protection claims and thought she had given wrong answers to the questions.

16. The applicant then said she did try to ask the Malaysian police for help. However, the Tribunal put to the applicant that in her written claims she said she did not seek help in Malaysia, and she did not seek help from the Malaysian police. In response, the applicant said she had forgotten what had happened to her.

17. The applicant said if she went back to Malaysia, she would go back to live with her parents in Kota Kinabalu and look for another job.

18. The applicant said there was no further information she wanted to provide in respect to her protection claims.

    Analysis and Findings

19. The Tribunal has carefully considered the applicant’s claims and the evidence available to the Tribunal in respect to those claims. The Tribunal holds great concerns about the applicant’s credibility. Indeed, the Tribunal is not satisfied that the applicant has given credible information in respect to her protection claims.

20. In respect to the applicant’s claims of alleged harm when she was in Malaysia, the Tribunal finds the applicant’s written claims are significantly different to the claims she made at the hearing, where she had said in the hearing that the ah longs grabbed and threatened her at a café, but in her written claims she stated that the ah longs went to her house and blackmailed her, beat her and slapped her in front of her family, threatened her many times and tried to kill her and her family. Likewise, the Tribunal finds that the applicant’s written claims are significantly different to the claims she made at the hearing, where in the hearing she said she lived at home with her parents when she was in Malaysia, and that in her written application she only gave one address that she ever lived at when she was in Malaysia, but in another part of her written claims she stated that she had tried to hide from the ah longs, but she moved to another apartment and they still found her. The Tribunal is not satisfied by the applicant’s explanation for the inconsistent information she provided in these respects and finds that the applicant did not give credible information in respect to her claims of harm when she was in Malaysia.

21. In considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant gave credible information in respect to her protection claims and finds that none of the applicant’s protection claims are credible. The Tribunal does not accept that the applicant borrowed money from money lenders or loan sharks or ah longs, howsoever described, or that when she was in Malaysia the ah longs went to her house and blackmailed her, or that sometimes she would be beaten and slapped in front of her family by the ah longs, or that the ah longs threatened her many times, or that they tried to kill her and her family, or that she tried to hide from the ah longs but they still found her. The Tribunal does not accept that the ah longs grabbed and threatened the applicant at a café, or that she ever moved to another apartment to seek safety, or that she ever tried to seek help from the Malaysian police.

22. The Tribunal is not satisfied that the applicant gave credible information about being harmed or threatened in Malaysia by money lenders or ah longs, or anyone else at all, when she was in Malaysia. 

23. Accordingly, the Tribunal does not accept that the applicant was ever threatened or harmed by money lenders or ah longs or anyone at all when she was in Malaysia, and finds that none of her protection claims are credible.

24. 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).

25. 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

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

    Joseph Lindsay
    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.

    …