1836192 (Refugee) - [2022] AATA 2980

1836192 (Refugee) [2022] AATA 2980 (7 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1836192
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Wendy Banfield
DATE:7 June 2022
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa

Statement made on 07 June 2022 at 5:51pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from loan shark – education loan debt and guarantor of loan by partner – partial repayment – inconsistent claims and evidence – first application invalid and period as unlawful non-citizen before making current application – applicant’s responsibility to specify particulars and provide sufficient evidence – country information – legal protections and financial services – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v v MIMA (2004) 217 CLR 387
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 11 May 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 28 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. As the applicant resides in a regional area, the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal 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. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Criteria for a protection visa
Refugee criteria
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1836192 (Refugee)

Details

AGLC: 1836192 (Refugee) [2022] AATA 2980
Case: [2022] AATA 2980
Decision Date: 7 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the protection visa application of a Malaysian citizen who claimed to fear harm from a loan shark due to outstanding debts, including an education loan and a debt incurred as a guarantor for her partner's loan. The applicant arrived in Australia in February 2017 and applied for a protection visa in May 2018.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as a refugee, or under section 36(2)(aa) as a person facing a real risk of significant harm if returned to Malaysia. The Tribunal was required to assess the applicant's claims against the relevant country information and legal protections available in Malaysia, and to determine if her fear of harm was well-founded and constituted persecution or significant harm.

The Tribunal reasoned that it is the applicant's responsibility to provide sufficient particulars and evidence to establish her claims, and the Tribunal is not obliged to assist in this process. While acknowledging the applicant's debt and potential for harassment from a loan shark, the Tribunal found that being in debt does not inherently distinguish her from the general Malaysian population. Crucially, the Tribunal noted the availability of government support services for those in debt and the capacity of the Malaysian police to act against illegal money lenders. The Tribunal was not satisfied that the applicant would be unable to seek assistance from authorities or available debt services. Furthermore, the Tribunal found that the applicant's apprehension about the loan shark did not amount to a fear of persecution, and her continued payments towards the loan while in Australia reduced any perceived risk. The Tribunal also considered the applicant's capacity to work and support herself, concluding that any financial blacklisting would not constitute significant harm.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that there was no real chance she would face persecution or significant harm upon return to Malaysia. The applicant did not satisfy the criteria under either section 36(2)(a) or 36(2)(aa) of the Migration Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group. The Tribunal finds that being a person who owes money such as an education loan does not necessarily distinguish the applicant from Malaysian society at large. This is because large numbers of people, across all sections of society in Malaysia have debts. It is generally characterised as “household debt” and there is no distinction from any other member of society.[9] In the applicant’s circumstances however, the Tribunal assessed the claims based on her being a person who owes a debt to an illegal money lender in Malaysia.[9] >The Tribunal notes there are government support services available in Malaysia to those who are in debt and have difficulty making repayments, including to illegal money lenders.[10] The applicant indicated she had not sought the assistance of any such services. Malaysia also has an effective police force that is willing and able to act against illegal loan shark activities, despite a level of perceived and actual corruption. Media reports indicate police do pursue and prosecute unlawful lenders. There is nothing to suggest the applicant would be unable to seek assistance from the authorities and available debt services. The Tribunal understands the applicant has a preference to remain in Australia, but this appears to be because wages are higher, and she has been able to support herself as well as meet ongoing financial obligations. The applicant explained that her salary in Malaysia was low and not sufficient to pay her debts as well as meet her daily expenses. The applicant outlined concerns about possible harassment by a loan shark, however, the apprehension she described did not amount to a fear of persecution and the Tribunal is not satisfied there is a real risk the applicant would be persecuted in Malaysia. In addition, the applicant claimed that while in Australia she had continued to make payments to the loan shark and while she stated she did not know the current balance of the loan, her ongoing payment would reduce any risk of threats or harassment if she returned to Malaysia.[10] Malaysian Government Credit Management Programme: >Based on the applicant’s claims before the Tribunal, there is no evidence she would suffer serious harm if she returned to her home country, and there are protections in place. The Tribunal did consider whether the applicant would face significant economic hardship that would threaten her capacity to subsist. In this regard the Tribunal notes the applicant has been working in Australia for several years, she is of working age at [Age] years old, and she has been able to able to use her personal resources to live and work in a foreign country without being a native English speaker. While in Australia the applicant would have acquired skills that could be utilised in her home country, including a level of English language proficiency as demonstrated at the Tribunal hearing where she was able to participate without the assistance of an interpreter. In her application for a protection visa, the applicant claimed she would be financially blacklisted and unable to borrow in future. The Tribunal accepts that may be the case, but this would be a possibility for anyone with unpaid loans who has acquired a poor credit history. Such an outcome would not amount to a real risk of significant harm to the applicant.For these reasons, the Tribunal is not satisfied that there is a real chance that on return to Malaysia now or in the reasonably foreseeable future, the applicant would face harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).Complementary protection criteriaA person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. Significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.The applicant claimed to fear harm due to outstanding debts, in particular debts to a loan shark. She described her concerns that if she was in Malaysia, the loan shark would keep calling her and would come to her house. In her evidence at the hearing, the applicant also claimed the loan shark may try to blackmail her, but she did not indicate how or why she thought anyone would do this. The applicant alleged that in the past, the loan shark had threatened that she needed to pay if she wanted a good life. The applicant stated she had not contacted the police about she believes they would say it was her fault for borrowing from a loan shark. Based on country information about the problem with illegal money lenders and their practices in Malaysia, the Tribunal accepts the applicant may face a level of threat and intimidation. However, there are protections available in her home country and services she could access to assist with outstanding debts. For these reasons, the Tribunal ins not satisfied there is a real risk the applicant will suffer significant harm if she returns to her home country.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).decisionThe Tribunal affirms the decision not to grant the applicant a protection visa.Wendy BanfieldMemberAttachment - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.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.Applicant's Identity and Country of Reference The applicant stated in her application for a protection visa that she was born on [Date] in Malaysia. The applicant provided a copy of her Malaysian passport to the Department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant's identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Based on the document provided by the applicant and accepted by the Department, the Tribunal finds that she is a citizen of Malaysia and as such her protection claim will be assessed against Malaysia as the country of reference and 'receiving country' respectively.Migration History The applicant arrived in Australia on 18 February 2017 holding an Electronic Travel Authority (ETA) and has not departed since. Claims for protection and supporting documentation The applicant submitted her claims for protection when she made an application to the Department on 11 May 2018. Her claims were summarised in the Department’s decision record that was submitted in evidence:· She has accumulated a debt at the National Higher education Fund (PTPTN) with arrears of RM 20,649 (Malaysian Ringgits) · She became guarantor for her partner’s loan RM 8,000 from a loan shark and she need to repay RM 17,880. · She will be blacklisted, and she has got a debt with the PTPTN Government money and cannot borrow anymore. · The loan shark will be looking for her because her partner did not pay his debt. Evidence at the hearing The applicant was asked if anyone assisted her with the application for protection. She said she did it herself and was satisfied everything is true and correct. The applicant confirmed she is a citizen of Malaysia and does not have citizenship anywhere else. She had visited [Country] before she came to Australia. The applicant claimed she does not have family in Australia; in Malaysia she had parents and a sister and brother. The applicant is single with no children. Before coming to Australia, the applicant had been working in a shop. She said she had completed a Diploma of [Subject] for three years after secondary school.