DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 01 July 2024 at 9:33am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – loan shark gang former member – fear of killing – physical assault – separation from family – state protection – internal relocation – decision under review affirmed
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 8 March 2019 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 14 December 2018. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owes protection obligations.
The applicant appeared before the Tribunal on 1 May 2024 via video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Background
The applicant is [an age]-year-old Malaysian national who was born in Johor.
In his protection visa application, the applicant states he is divorced. He lived in [District 1], Selangor state in Malaysia from his birth until he travelled to Australia in August 2015. He states that he was never employed in Malaysia, spent time as a ‘freelancer’ and was financially supported by his family.
The delegate’s decision record, which the applicant provided for the purpose of the review, sets out his immigration history. He arrived in Australia [in] August 2015 on an Electronic Travel Authority visa. This visa ceased on 29 November 2015 and he became an unlawful non-citizen. On 24 February 2016, he applied for a protection visa. However, this application was found to be invalid and his Bridging C visa ceased on 18 May 2016 and he became unlawful again. The applicant made a second application for a protection visa on 14 December 2018, which is the visa that is the subject of this review.
At the hearing, the applicant gave further information about his background. He clarified that he has never married and is not divorced. He has a de facto partner,…
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.
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AGLC
1905544 (Refugee) [2024] AATA 3247
Case
[2024] AATA 3247
Decision Date
CaseChat Overview and Summary
The applicant, a Malaysian national, sought review of a decision not to grant him a protection visa. The applicant had a history of involvement with a loan shark gang in Malaysia, which he claimed led to threats against his life and physical assaults, compelling him to leave the country. He argued that he could not return to Malaysia due to the pervasive network of the gang and the real risk of being killed or suffering significant harm.
The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or alternatively, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Malaysia, he would suffer significant harm. The Tribunal was required to consider the applicant's claims in light of the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth), including the definitions of "refugee" and "significant harm," and relevant country information.
The Tribunal considered the applicant's assertion that he was a former member of a loan shark gang and feared retribution. However, it found that the applicant had not established a well-founded fear of persecution based on the enumerated grounds. Specifically, the Tribunal did not find that the applicant's fear was linked to his race, religion, nationality, or political opinion. Furthermore, while acknowledging the applicant's past involvement with the gang and the threats he received, the Tribunal concluded that he had not demonstrated that he would suffer significant harm upon return to Malaysia. The Tribunal noted that the applicant had not provided sufficient evidence to establish that the gang's network was so extensive that internal relocation within Malaysia would not be a reasonable option, nor had he shown that state protection would be unavailable or ineffective.
Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy any of the criteria set out in section 36(2) of the Migration Act 1958. The Tribunal concluded that there was no real chance of persecution or significant harm upon his return to Malaysia, and therefore, Australia had no protection obligations towards him.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The applicant appeared before the Tribunal on 1 May 2024 via video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.Background The applicant is [an age]-year-old Malaysian national who was born in Johor. In his protection visa application, the applicant states he is divorced. He lived in [District 1], Selangor state in Malaysia from his birth until he travelled to Australia in August 2015. He states that he was never employed in Malaysia, spent time as a ‘freelancer’ and was financially supported by his family. The delegate’s decision record, which the applicant provided for the purpose of the review, sets out his immigration history. He arrived in Australia [in] August 2015 on an Electronic Travel Authority visa. This visa ceased on 29 November 2015 and he became an unlawful non-citizen. On 24 February 2016, he applied for a protection visa. However, this application was found to be invalid and his Bridging C visa ceased on 18 May 2016 and he became unlawful again. The applicant made a second application for a protection visa on 14 December 2018, which is the visa that is the subject of this review. At the hearing, the applicant gave further information about his background. He clarified that he has never married and is not divorced. He has a de facto partner, whom he met in Australia, about one year after he came to Australia. He has [children] from this relationship, aged [respective ages]. His partner is a Malaysian national. In Australia, he has lived in regional Victoria, doing [specified] work. His parents and [specified family members] live in Malaysia. They all live together in Johor. The applicant stated that he was born in Johor but he grew up and lived with his parents in a smaller regional town called [Town 1], in the [District 1] district. He lived there until 2015. In relation to his educational background, the applicant stated that he stopped attending school when he was [age range] years old as his father got sick and could not afford to support the family. The applicant had to go out to work. He did [specified work] for about 5 years, until he was [age range] years old. He then [did different duties] for about 8 or 9 years. After that, he joined a loan shark gangster group, giving out loans and doing debt collection. He did this for about 5 years. 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 (Cth). 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.
Evidence
Evidence Before The Court
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this case are whether there is a real chance, if the applicant returns to Malaysia, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicant has provided a copy of his passport to the Department and Tribunal which shows he is a Malaysian citizen. The Tribunal finds, based on the applicant’s passport, that he is a national of Malaysia and has assessed his claims on this basis.Applicant’s protection visa claims In his protection visa application, the applicant states he had to leave Malaysia because he was involved with gangsterism. There were a lot of gangsters living near his home when he was young. He did not attend school so he got involved with gangs. The group was called ‘[name]’ which indicates high-risk gangsters. When the situation got worse, he had to leave the group. They started hunting him and threatened to kill him. At times he was attacked by his own friends and could not trust anyone. He had no choice and had to leave Malaysia or risk being killed. He could not relocate elsewhere in Malaysia as the gang’s network was large and they had connections. At the hearing, the Tribunal asked the applicant why he could not return to Malaysia, and what he feared would happen if he returned. The applicant stated that he fears harm from a gangster group. He lent money out and he could not get it back, so they threatened to kill him. He also does not want to be separated from his [children]. The Tribunal asked the applicant about his involvement in the gang. The applicant stated that he joined the ‘[Gang name 1]’ in about 2010. Their role was to lend money to people who needed it and to collect debts. He explained they were similar to the loan sharks or ‘Ah Long’. The applicant worked as an intermediary between the bosses who would give him the money and the borrowers. He would lend the money and collect the debts. He never used force or violence to collect the money. He did the job as he did not have much education and it was an easy way to make money – he could earn about MYR 20,000 to 30,000 a month.
Decision
Reasons for decision
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 any of the criteria in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Suseela DurvasulaMemberATTACHMENT – 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
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this case are whether there is a real chance, if the applicant returns to Malaysia, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicant has provided a copy of his passport to the Department and Tribunal which shows he is a Malaysian citizen. The Tribunal finds, based on the applicant’s passport, that he is a national of Malaysia and has assessed his claims on this basis.Applicant’s protection visa claims In his protection visa application, the applicant states he had to leave Malaysia because he was involved with gangsterism. There were a lot of gangsters living near his home when he was young. He did not attend school so he got involved with gangs. The group was called ‘[name]’ which indicates high-risk gangsters. When the situation got worse, he had to leave the group. They started hunting him and threatened to kill him. At times he was attacked by his own friends and could not trust anyone. He had no choice and had to leave Malaysia or risk being killed. He could not relocate elsewhere in Malaysia as the gang’s network was large and they had connections. At the hearing, the Tribunal asked the applicant why he could not return to Malaysia, and what he feared would happen if he returned. The applicant stated that he fears harm from a gangster group. He lent money out and he could not get it back, so they threatened to kill him. He also does not want to be separated from his [children].