1904605 (Refugee)

[2019] AATA 3771

1904605 (Refugee) [2019] AATA 3771 (20 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1904605

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Christopher Smolicz

DATE OF ORAL DECISION:  20 June 2019

DATE OF WRITTEN STATEMENT:         2 July 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 02 July 2019 at 3:06pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Court remittal – money lending company – loan sharks – lack of evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65

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.

ORAL STATEMENT OF DECISION AND REASONS

1. The Tribunal gave its decision and reasons on the review at the conclusion of the hearing held on 20 June 2019.

2. MEMBER: This is an application for review of a decision made by the delegate of the Minister that was made on 28 February 2017 to refuse to grant you a protection visa under section 65 of the Migration Act.

3. You applied for that visa on 22 September 2016 and, as I said, the delegate refused your application and you were not successful.  You subsequently applied to this tribunal in June 2017 to review that decision.  The first tribunal, was constituted by a different Member, affirmed the department's decision not to grant you a protection visa.  For some reason you did not attend the previous hearing and that Member made a decision in your absence.

4. You applied to the Federal Circuit Court to review the first tribunal's decision.  [In] February 2019 the Federal Circuit quashed the first tribunal's decision.  Your appeal was successful and the matter was remitted back to this tribunal for reconsideration and that is why we are here today.

5. As I explained to you during the hearing, I am not bound by the department's decision or the first tribunal's decision and I am looking at the matter afresh from the beginning.  I have taken evidence from you were given you an opportunity to explain your claims for protection in Australia during this hearing today.

6. The issue that we are looking at here today is whether you meet the criteria to become a refugee under 36(2)(a) of the Act or whether you come within Australia's complimentary protection obligations under section 36(2)(aa).  And you claim to fear harm in Malaysia from a business gang as you called them in your claim form, money loan sharks "Ah-long" in relation to unpaid debts. 

7. So before we talk about the claims let us talk about your background.  You are [age].  According the claim form you are single.  And you were born in Sabah, Malaysia.  You travelled to Australia [in] June 2016 on a valid Malaysian passport.  You came here on a short term visitor visa and you claimed the visa was valid only for two weeks.  In any event you have not returned back to Malaysia and you have now been in Australia for almost three years.

8. I accept that you are a Malaysian national having regard to your passport.  And I have assessed these claims, your claims, against Malaysia as the receiving country.  You told me about that since you have arrived in Australia you have been working.  You have been working on [Location 1] for two and a half years doing [Occupation 1].  Before [a certain] period you work six days per week up to nine hours a day.  You do not have any family in Australia.

9. Your parents and [a number] of your siblings continue to live in Malaysia.  Your father has worked all his life as a [Occupation 2].  He would work away from home and return every year.  He is retired but he still continues to work.  Your mother is responsible for home duties.  And your siblings [work] in the [Location 2] [in Occupation 3].

10.You are educated, you have completed schooling.  And you have completed a [specific] certificate in Malaysia.  You have not given me any certificates but you said it was between 2012 and 2013 and the certificate enabled you to apply for employment within the [Organisation 1] or to the [Organisation 2] or [a certain] company and you did put in applications for that work in that industry.

11.So that is the background of your circumstances.  Now, let us talk about your claims.  In particular the tribunal notes that your claims in your protection visa application are very brief and they lack important detail.  They are general.  You claim to fear a money lending company who has threatened you and your family for the payment of money that was borrowed to improve a family [business].  There was no detail in your application about when the loan was made, the amount of the loan, the repayments, when the threats were made or who made them.

12.You claimed in your form that if you go back you will be pursued by the money lending gang because of these debts.  You fear being killed by these people.  You claimed in your form that your house had been damaged, your car had been damaged, and your parents were victims.  Your neighbours were too worried to help.  You said in your claim form that you reported the incident to the police as soon as these people wanted to kill you.  A report was made and the matter is unresolved.  You said you did not try to relocate because you were strong in the face of the harm and the threats and you said you would be worried that if you had left your parents would be killed.

13.At the hearing I questioned you and I gave you an opportunity to provide me with as much details as you could about the circumstances of your claim.  I found your evidence this morning to be vague and lacking in important detail and containing inconsistencies.  I found it unusual that you would finish a degree in [a certain subject] and then commence a business in the [specified] [industry].  You invested you claimed about [a sum of] ringgits into the business.  But you did not want to work in this business at all because you were waiting to hear about your employment opportunities in the [certain] industry.  So that sounds unusual to me to start with.

14.You told me the business was called ‘[Business name 1]’ but in your application form you gave a completely different name, you said ‘[Business name 2]’.  I asked you about this inconsistency.  You did not really give me a satisfactory explanation.  You maintained it was called [Business name 1] but in the application form you referred to it in your name to create an association with you.  It seems a very unusual explanation to me.

15.You claimed to have documents associated with this business but they are not here in Australia, none have been produced, and you claim that they exist but they are in Malaysia.  The claim form asks you for documents in support of your claims and you made no effort to produce anything.

16.I asked you about what did you need to do, what action did you need to take to set up the business.  Again, I found your answers vague and lacking in detail.  You claimed you went to the [Organisation 3], you got clearance, [specified] clearance within a week and you were able to run the business.

17.I said it was surprising you would do this with no qualifications and you said you attended a one day catering course.  You provided no evidence about the lease agreement, the rental agreement, the location of the business.  You struggled to explain to me what the operating costs of the business were.  I asked you on numerous occasions to explain to me what were the costs of running this business.  And then you said the main cost was [Product 1], [Product 2], and electricity.  This seemed rather unusual that you did not refer to any rental agreement, rent.  You did not mention to me where you got the initial amount of [ringgits] from to start up the business.

18.You then said that the business was doing well but there was competition and you had to borrow money.  And you thought by improving the business you would improve the profitability.  You went to a bank and you applied for a [ringgit] loan.  You were not sure when it was but it was rejected in about 2015.  Again, the paperwork exists but you did not provide any in support of your application.

19.Then you told me you went to the Ah-long, to the loan sharks to borrow money.  You reached an agreement to borrow [sum] ringgits.  You had to repay [a certain amount] a month.  You claim there is no documentation.  I asked you what the interest was and you said it was not mentioned.  That seems very unusual because the whole point of a loan agreement with loan sharks is the very high interest rate which they exploit people by.  You said the agreement was simply to repay [a certain amount] per month until the loan was repaid.  Again, that is very unusual.  It does not really sound like organised criminals would agree to such a contract.

20.You said you upgraded the [business] but I am not sure what you did, how much it cost.  And you said everything was going well for two months and then you became lagging in the repayments.  You were two months late to the loan sharks but you were still committed to the business and you wanted to keep running it.  Then you had six months outstanding debt.  You were stressed.

21.And then you said in December 2015 threats started being made.  There were people employed by the loan sharks, you do not know who they are.  They would come any time, weekly, fortnightly, and demand money.  You asked for an extension of time.  They requested for [a sum of] ringgits and you could not repay.  They hit you in the stomach, it was not too bad you said.  They came to your home, damaged the home, the car and the TV.  You tried to resist and they threatened to kill you.  You went to the police and made the report and you waited for a month and no action was taken.

22.You thought you had to run away because they would kill you.  You went into hiding and you relocated.  Well, this aspect of your evidence is clearly inconsistent with your claim where you said you did not want to go into hiding.  You went to an uncle who was wealthy and you asked him whether he could lend you money.  He said the amount was too big.

23.I asked you a number of times what was the outstanding amount.  You could not answer my question.  You gave various vague answers such as there was interest on top of the original amount.  You did not know what the interest was and you do not know what the total amount you owed was.  This is a very unusual aspect of your case because if people demand money they will tell you how much is owed.

24.When I asked further questions you said you did not keep track of the amount repaid.  So you think [a certain amount] must be repaid plus [a higher amount] plus interest, you were not sure.  It is again very unusual that if you have an agreement with money lenders and you are paying them money with no contract, then the obligation is on you to make sure you know exactly how much you have repaid so they do not cheat you.

25.So this aspect of your evidence makes me wonder whether this, in fact, it happened.  It makes me wonder whether you, in fact, did take out a loan and I am really concerned that you are not being truthful today.  You tried to relocate your parents to another village and you escaped to Australia.  I asked why have you not been able to repay the loan now that you are here and working and again your answer was vague.  You maintain that the money lenders are relentless and they will pursue you and they will look for you and that there was interest on the loan and you could not repay it.

26.Again, I do not understand your answer and how it fits into your account because if you are working and you have a loan, then you could easily calculate how much it would take for you to pay it off now that you are in Australia and you have been here for three years. 

27.You gave no evidence about your parents being threatened or your siblings being threatened.  It sounds very unusual that if these money lenders were relentless and would find you everywhere that nothing would happen in the three years that you have been in Australia.

28.Let us now turn to the law.  First of all I have to say, as I have explained to you, that I found your evidence vague, inconsistent in parts and lacking in detail.  I have concerns that you have made up the whole story about this loan agreement and the business.  But assuming that I do accept it and it did happen there are a number of legal obstacles that you face in being successful in your application and I want to explain those to you.  In order to qualify within the definition of being a refugee the persecution you fear has to be for a particular reason.  We discussed this at the hearing and you agreed that the persecution you fear is in relation to a business issue, which turned into a criminal matter.  And that is what I find, that it was a business venture and it turned into a criminal matter when you were being pursued by money lenders.

29.And if I accept that that is the situation then you have got problems meeting the refugee criteria, so I want to address that finding.  I find that the harm feared is not for the essential and significant reason set out in section 5J(1)(a).  It is not for the reason of your race, your religion, your nationality, your membership of a particular social group or a political opinion or a combination of all of those.

30.Secondly, I also am not satisfied that you will be denied State protection for any of those reasons mentioned just then.  It is clear that you will not be denied State protection, police protection for any of the reasons mentioned in 5J(1)(a).  You mention that you approached the police, you made a report but you were dissatisfied because no action was taken.  As discussed with you at the hearing, there are many reasons why the police may have been ineffective in catching these criminals.

31.Their action depends on how much information and evidence they have.  Investigations often take a lot of time but importantly you were not denied State protection.  And also we discussed at the hearing that the question of police protection is important in the context of Malaysia's police force.  In this instance I have had regard to the Department of Foreign Affairs country information report on Malaysia dated 19 April 2018 that talks about victims of gangs and loan sharks.  It talks about State protection and the Royal Malaysian Police Force.  It talks about police integrity and accountability.  And, as discussed with you at the hearing, the information indicates that illegal money lending or Ah-long is a problem in Malaysia and many people are exploited by the Ah-long.  But the Malaysian Government has taken action.

32.First of all it is an offence under the Money Lenders' Act 1951.  Punishment includes fines and imprisonment.  And there are instances where the police do take action and DFAT's country information report refers to those examples.  And there are also media reports available where it shows effective police investigations and arrests of Ah-long syndicate crime members.  The country information suggests that the Royal Malaysian Police Force is professional and effective, however their response may vary depending on training, its capacity and corruption.  So I am not satisfied that you will be denied State protection for the reasons mentioned in 5J(1)(a).  That certainly was not your evidence today.

33.So first of all addressing the refugee criterion, as I said to you, first of all I found your evidence vague and inconsistent and lacking in detail and I do not accept that you actually entered into a loan agreement and you ran a business in Malaysia.  In the alternative I find that even if you did run a business, as you said, and you did have trouble with criminals, that was a business matter that turned into a criminal problem and that was not for reasons set out in 5J(1)(a).

34.For those reasons the tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a). 

35.Now, having concluded that you are not a refugee I will turn to the alternative criteria in section 36(2)(aa).  This is referred to as the complimentary protection criteria.  The question for the tribunal to determine is whether there are substantial grounds for believing that as a necessary and foreseeable consequence of you being removed from Australia to Malaysia there is a real risk you will suffer significant harm.  It is a forward looking test as well.

36.So again, I make two findings.  As stated above, your evidence about your catering business and the loan agreement with the loan sharks was vague, lacking in detail and inconsistent.  But if I was to accept it the law states in section 36(2B)(b) the Act that there is not a real risk that you will suffer significant harm if you could obtain protection from the authorities of Malaysia such that there would not be a real risk.

37.So just to be clear my first finding is that you have not been truthful, that you did not run a [business], that you did not enter into a loan agreement, and you made that evidence up.  And I make that finding based on observing you at the hearing and the vague and inconsistent evidence that you have given about the circumstances of running your business and entering into the loan agreement.

38.In the alternative I also find that if you did run a business there is in Malaysia protection available from the authorities such that there would not be a real risk you would suffer significant harm.

39.So I will just summarise again that I have relied on DFAT's country information report and that the Royal Malaysian Police Force is professional and effective and that the quality of their response may vary depending on training levels, capacity, and also corruption.  Malaysia has laws that make illegal money lending a crime and they have taken action against money lenders.

40.So to conclude the tribunal finds that the applicant does not meet the refugee criteria in section 36(2)(a).  The tribunal has considered the alternative criteria in section 36(2)(aa) and the tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under section 36(2)(aa), which is the complimentary protection criteria.  And there is no suggestion that the applicant satisfies any of the alternative criteria in section 36(2).

41.So as stated before, the tribunal affirms the decision not to grant you a protection visa and I conclude my reasons.

Christopher Smolicz
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.

…

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 them 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.

..

36Protection visas – criteria provided for by this Act

…

(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.

…