1912030 (Refugee)

[2024] AATA 4213

1912030 (Refugee) [2024] AATA 4213 (14 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1912030

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Christine Cody

DATE:14 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 14 September 2024 at 9:29am

CATCHWORDS
REFUGEE – protection visa – Malaysia – written claims as guarantor for brother-in-law’s loan from money lender – threatened and hit after brother-in-law failed to pay – claims at hearing of own loan from loan sharks to buy wife car – threatened and beaten, and car vandalised – physical health and inability to get job – passport expired – inconsistent claims and evidence – amounts of loans and terms of repayments – delay in departing after visa granted – short holiday in another country and return – responsibility to specify claims and provide evidence – country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

M0IEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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 26 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). Relevant law is set out in Annexure A.

2. The applicant, who claims to be a citizen of Malaysia, departed Malaysia legally [in] December 2018 from Kuala Lumpur airport and arrived in Australia on the same day with a visitor visa. He applied for the protection visa on 24 March 2019[1].

   [1] Source: application form.

   Departmental file

3. The applicant provided his protection visa application form, and some pages from his passport issued  [2018] (showing his bio details and stamped pages), and his Mykad (national identity card).

   Protection visa application form

4. According to the protection visa application form, the applicant’s background information is as follows:

   ·     The applicant was born in [Town], Perak, in Malaysia to Malaysian parents, and he is [Age] years of age. His ethnicity is Malay and his religion is Islam. He speaks, reads and writes in Malay and in English.

   ·     He was educated until [Year] when he completed high school.

   ·     From 23 March 2013-18 February 2016 he was [an occupation 1] at [a workplace 1] in Pulau Pinang. From 19 February 2016-10 December 2018 he stayed at home as he had an issue with his eye and he lived off savings. 

   ·     He resided at a single address in [Town], Perak until 24 December 2018.

   ·     He is divorced.

   ·     He lists no relatives, states that he is not in contact with relatives outside Australia and he has no personal contacts in Australia.

   ·     He travelled to [Country] [in] November 2018 for holidays.

5. The applicant’s claims[2] are set out below:

   [2] Spelling corrections have been made

   The applicant left Malaysia for the following reason:

   The reason I seeking a protection is about when my ex-brother in law start making loan from money lender. At first, I don't want to be a guarantee for him. But at last I agreed to be a guarantee for him because my ex-wife force me to be help her brother. I received threats of harm by the debt collector after my brother-in-law failed to settled the instalment. My brother-in-law making a loan from the money lender about RM150,000.We already pay back to them about RM50,000.They begin to disturb my life and my ex wife: ..we divorced because she can't stand with all the threat from the debt collector. I have been caught by the debt collector once time a go. They hit me and tied my hand and asking about my brother-in-law because he already escaped.

   Did this applicant experience harm in that country or those countries?

   Yes

   Details include:

   the type of harm this applicant experienced: -They hit my head and body

   the person/people responsible for the harm -The debt collector

   why they harmed this applicant: -They looking for my brother in law and asking me to pay the balance of loan.

   Did this applicant seek help within the country or those countries after the harm?

   Yes, I stay at my friend house [Mr A]; He let me stay at his house for a while.

   Did this applicant move, or try to move, to another part of that country or those countries to seek safety

   No

   Give details for why this applicant did not try to move to another part of the country or those countries

   Because I was still working when they irritate me. Because I have my own self business

   Explain what the applicant thinks will happen to them if they return to that country or those countries:

   They would do something worse to me

   Does this applicant think they will be harmed or mistreated if they return to that country or countries?

   Yes. The debt collector will hit my head and body. They looking for my brother in law and asking me to pay the balance of loan.

   Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

   No

   Give details about why this applicant thinks the authorities could not, or would not, protect them ?

   They can't protect me completely

   Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

   No

   Give details about why this applicant is unable to relocate?

   Wherever I go they still can find me

   The delegate’s decision record

6. The delegate refused to grant the visa on the basis that, having considered:

   …the country information and personal circumstances of the applicant. While there may be instances of corruption in the police force in Malaysia, the Malaysian authorities are willing and reasonably effective in combating illegal money lending. While I accept the applicant may not have absolute protection in Malaysia, I find the Malaysian authorities can provide protection to the applicant and they are willing and able to offer such protection. In addition, I find the applicant can access the protection, the protection is durable and the protection consists of an appropriate criminal law, a reasonably effective police force and impartial judicial system. I am satisfied that there are effective protection measures available to the applicant in the receiving country and that the applicant does not have a well-founded fear of persecution. Therefore, the applicant is not a refugee as defined in s5H of the Act and the criterion in s36(2)(a) of the Act is not satisfied for this reason. 

   I find that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm as outlined in s36(2B)(b). Therefore, there is taken not to be a real risk that the applicant will suffer significant harm and the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(aa) of the Act.  

   The Tribunal

7. The applicant lodged an application for review with the Tribunal on 15 May 2019. A copy of the delegate’s decision record and notification of refusal letter was provided to the Tribunal.

8. On 5 August 2024 the applicant was informed that based on the material before it, the Tribunal was unable to make a positive decision, and he was invited to attend a hearing on 11 September 2024. He was requested to provide any documents in support by 4 September 2024. He provided a letter dated 26 June 2024 from [Dr B] addressed to his GP. This states that he has [Medical condition], and he had [a device] fitted about 2 years ago. His readings are normal and the battery lasts for 5 years. He has been requested to see the GP in 3-4 months for a full [body part] assessment.

9. In his hearing response he stated that he would attend the hearing, there were no matters that would affect his ability to participate in the hearing and he did not seek to provide any documents or rely upon any witnesses. He provided no other details or information about the claims made in his protection visa application form.

10. The applicant appeared before the Tribunal on 11 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. He told the Tribunal that he does speak some English, and he was informed that the interpreter was there to allow him to communicate with the Tribunal. He used the interpreter, and at times he spoke in English. The Tribunal is satisfied that he was able to understand the proceedings and present evidence and arguments.

11. Some of his evidence was as follows:

    ·     When he lodged his protection visa application, it was true and correct, there were no mistakes, and there was nothing missing.

    ·     The applicant said that when he arrived in Australia, he did not work straight away; he waited about 2- 3 months. The Tribunal asked how he survived and he said that he had his savings when he came here, the sum of about RM25,000 which he equated to around 6000-7000 AUD.

    ·     He said that in Australia he worked in the [work sector]; he later said that he had also worked as [an occupation 2].

    ·     His parents divorced when he was 12 and he lived with his mother. She still lives in the family home in [Town]. She used to work as [an occupation 2] cleaner but now she is old and she is retired. He has no contact with father.

    ·     He lived at family home in [Town], Perak, when he was young. When he lived in [Town] he worked in rubber plantation in the village. He moved to Ipoh, Perak in 2011, where he rented accommodation. He was not working then, he was supported by his parents’ money.  In about 2012 he got a job at the [workplace 1] in Ipoh and continued renting in Ipoh. He worked as the [occupation 1] at the [workplace] for 6 years; he worked there up until about 6 months, or almost 1 year, before he came to Australia.

    ·     He has an older brother; he doesn’t know what he is doing. His [sister] is married  and she lives nearby to his mother’s house. He has three younger brothers. Two are working and they live with his mother (the eldest is around [Age] years, he has special needs and he works part-time, and other one is [Age] years and he works in the market). The youngest brother ([Age] years) is doing work experience with a company in Kuala Lumpur.

    ·     He was married to [Ms C] in 2016 and they lived together in Ipoh. They had no children.

    ·     When asked why he fears returning to Malaysia, he said it is because he owes money to loan sharks. When asked how much he owes he said he doesn’t know the full balance because he hasn’t paid for a long time. He said that he borrowed RM7000-8000 in 2017. He said he is unable even to give an approximate idea of the month he borrowed this. He was also unable to provide a name of the person he borrowed the money from, saying that his friend organised it all. When asked to explain why he borrowed it, he said that his wife wanted to buy a car, so he borrowed the money: the debt was in his name, but the car was purchased in her name. He said that the repayment terms were to repay RM500 every day for 10 months and his wife was going to repay it. He said, however, that she repaid nothing, and he could only pay for 15 days or 1 month by borrowing money from his mother.

    ·     He divorced his wife in 2018 because of this. He can’t recall when in 2018 he was divorced.

    ·     When asked what happened when he did not pay the money, he responded that they would always come to my rental and they would harass me at work and my home. My car was splashed with paint. There were lots of threats, they threatened my safety, and they threaten to take my life. The Tribunal asked when the threats were made and he said he could not recall.

    ·     When asked if anything else happened in Malaysia he said he was beaten by the people who worked for the loan shark in July 2018. They told him to pay up all his debt. They threatened him, saying that if he can’t pay all his debts they will kill him. The Tribunal asked if he believed them and he said at that time he was very scared and he did not know what his future looked like, he believed they would kill him.

    ·     The Tribunal asked the applicant whether he left Malaysia straight away when he was granted his Australian visa, and he said no. When asked how long he waited, he said he thinks he waited 3-4 months.

    ·     The Tribunal asked the applicant why he got his passport, and he said that he was planning to have a holiday; he got his passport to go to [Country] on holidays.

12. Further relevant evidence is set out below.

13. The Tribunal put to the applicant that it had credibility concerns, and concerns about his claims, although it had not made up its mind.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS

14. The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference

15. The Department accepted that the applicant was a Malaysian citizen and national, and assessed his claims against Malaysia. The Tribunal was provided with his passport and accepts that he is a national of Malaysia, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Malaysia.

    Credibility

16. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded”, or that it is for the reason claimed. Similarly, the fact that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

17. Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

18. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).

19. The Tribunal put to the applicant its concerns about inconsistencies in his claims, which undermined his credibility and claims about his circumstances in Malaysia, as discussed below. 

20. Firstly, the Tribunal put to the applicant that, despite telling the Tribunal that his application form was true and correct with no errors, his claims made at hearing were inconsistent with his application form in numerous respects, including as follows[3]:

    ·     His ex-brother-in-law obtained the loan from the loan shark and the applicant’s ex-wife forced him to be guarantor for that loan; compared to the claim that he took the loan from the loan shark for his wife to buy a car and she then refused to pay it back, so he had to do so.

    ·     His ex-wife divorced the applicant because she could not stand the threats from the debt-collector; compared to the claim that he divorced his wife because she got him into this debt and refused to pay the debt.

    ·     His ex-brother-in-law borrowed about RM150,000 and “we” had paid back about RM50,000; compared to the claim that the applicant had borrowed RM7000-8000 and had paid back about RM 500 per day for a period of about 2 weeks (RM 7000) or 1 month (RM 15,000).

    ·     They hit him and tied his hand and asked about his brother-in-law who had already escaped; compared to the claim that they had beaten the applicant because of his debt.

    [3] The claims from his application form are listed first, then his hearing claims.

21. When these inconsistencies were put to the applicant at hearing, he said in response that’s all I can remember now. The Tribunal did not consider that this was a persuasive explanation for such significant differences in his claims. The Tribunal considers that these differences, and his inability to explain these, undermine his claims and his credibility.

22. Secondly, the applicant told the Tribunal that he had a large amount of money outstanding to the loan shark, he had made no repayments since the initial 15 days or 1 month he paid in 2017, in July 2018 he was beaten up and told that if he didn’t pay his debt he would be killed, and he believed them. However, as put to the applicant, the credibility of these claims was undermined by his evidence that:

    ·     He had been granted a visa to come to Australia, yet he delayed several months before he travelled to Australia in December 2018[4].  In response he said that he was looking for money as it is unusual to come to a country with a high cost of living. 

    ·     He decided to take a holiday to [Country] in November 2018, and then he returned to Malaysia where he claimed to face being murdered. He responded that he went for 1 day, it was not for a holiday, he went to borrow money from a friend. The Tribunal put to him that he was changing his evidence as he had previously claimed that he went on holiday to [Country]. He agreed that he had not previously claimed to have gone to [Country] to obtain money from a friend.

    [4][4] This evidence was confirmed by the  Departmental movement records which indicated that he had been granted a visitor visa on 27 October 2018 but that he did not arrive in Australia until [December] 2018

23. The Tribunal does not find the applicant’s responses persuasive. He initially told the Tribunal that he had RM25,000 in savings when he came to Australia; he did not claim that this had been sourced from borrowing money and selling his possessions to escape a loan shark. It was only later that he claimed to the Tribunal that to come to Australian he sold his car and motorbike and borrowed money from his siblings and from his mother.  The Tribunal prefers his initial claim to the Tribunal that when he came to Australia he had access to his savings (and thus did not need to work). It does not accept his explanation that a lack of money was the reason why he delayed in coming to Australia once he was granted a visa.

24. Further, while the Tribunal accepts that his passport appears to show that he did only stay for one day in [Country] (compared to the 3 days listed in his application form), the Tribunal is not prepared to accept his changed reason for travelling to [Country] (namely that he went there to borrow money). In this regard the Tribunal notes that even in his protection visa application form he claimed that his purpose in travelling to [Country] was for a holiday. The Tribunal considers that his actions in delaying coming to Australia, and in taking a holiday to [Country] (then returning to Malaysia, a place where he claims he is at risk of being killed), before coming to Australia, undermine his claim that his life was in danger because of an ever-increasing debt to a loan shark that he was making no effort to repay. The Tribunal considers that the above also undermines his credibility.   

1. Thirdly, the Tribunal had concerns with the details of the applicant’s claims including:

   ·     His claim that he had agreed to borrow RM 7,000-8,000, and that the repayment terms were that his wife was going to repay RM500 every day, which equates to about RM15,000 per month (thus, double the amount borrowed would be owed in the first month). However, according to his evidence, he only earned RM2,000 per month as [an occupation], and his wife worked in a [workplace 2] (he claimed he could not recall how much she earned but he accepted that she would have earned less than him). The Tribunal put to the applicant that it made no sense that he would enter into such an agreement as there would be no hope of repayment at the stated rate.  In response he said she made the arrangement and I was not going to pay it. The Tribunal notes that this is inconsistent with his earlier evidence that it was his friend who organised it for him, however he had never claimed that he did not know the arrangements before entering into the loan. The Tribunal repeated that it makes no sense that he entered into such an agreement because it would not be possible to repay the money from his or her salary. The applicant was unable to give a credible explanation. The Tribunal considers it is highly unlikely that even if his wife said she was going to make the repayments, that he would have borrowed the money on such terms, as he would have been aware that it would have been impossible for himself or his wife to pay the instalments of RM500 per day having regard to their salaries. The Tribunal’s concerns were further heightened given that the amount borrowed was only RM 7,000-8,000, yet he claimed that when he borrowed the money, the terms were to pay RM500 daily for 10 months, which equates to a total of about RM150,000. The Tribunal considers that his claim that he agreed to borrow RM 7,000-8,000 and then repay 10 months later a total of  RM150,000, to buy his wife a car, is difficult to accept. The Tribunal considers that this evidence undermines the applicant’s claim and his credibility.

   ·     The applicant was unable to tell the Tribunal approximately which month he borrowed the money from the loan shark, only that it was in 2017. The Tribunal asked him if he could think of it differently, namely for how long before he came to Australia (December 2018, which he month he could recall) did he borrow the money, thus placing himself into almost immediate significant debt: he still insisted he could not recall. The Tribunal put to him that it was difficult to accept that he would not recall whether he owed a loan shark a significant debt for 1 year (if the loan date was in late 2017) or two years (if the loan date was in early 2017) before he came to Australia. He still said that he could not recall. The Tribunal did not consider this to be credible. 

   ·     The applicant asked whether, if his application is not approved, he can stay here another one year to save enough money to pay off the loan sharks. The Tribunal put to him that if it would only take one year to pay off the loan sharks, it did not understand why he had not paid off his debt in the 6 years he has been in Australia. He responded that he did not think about paying them off since he has been here. The Tribunal put to him that if they were violent people as claimed, and he had left behind his family members in Malaysia, it would expect that he would have thought about the unpaid debt, especially as he claimed in his application form that he could not relocate because they would be able to find him anywhere in Malaysia. He responded that he told his mother to give them his ex-wife’s address if they come, and he never gave them his home address so they could not find his mother. The Tribunal considers that his responses undermines his own claim that the loan sharks are resourceful enough to find him no matter where he goes in Malaysia. The Tribunal considers that his evidence undermines his credibility.

2. Having regard to the above, the Tribunal is not satisfied that the applicant is a credible witness in relation to his background and claims.

   Other matters

3. The Tribunal has considered that the applicant may have been nervous when giving his evidence, however it is not satisfied that this can explain the difficulties with his evidence.

   Credibility summary

4. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above leads the Tribunal to conclude that he has not been a witness of truth when making claims in these proceedings. The Tribunal considers that the applicant is prepared to make up claims and change his evidence in order to be granted a protection visa.

   Findings on the applicant’s claims

5. On the basis of the adverse credibility finding, the Tribunal does not accept that the applicant left Malaysia due to fear of harm resulting from a loan shark debt (either in his name or for which he was a guarantor). It does not accept any of the claims flowing from this claim, including that he paid some repayments to a loan shark, that he was subjected to harm, or he was threatened, or harassed or visited at home or that his car was splashed with paint or that he was fearful and believed that he would be killed or he could not obtain state protection or relocate. The Tribunal does not accept that he borrowed money to come to Australia, nor any claims that flow from this, including it does not accept that the applicant travelled to [Country] to obtain money from a friend.

6. It does not accept that he has been truthful about his circumstances back in Malaysia, including in relation to the existence of a wife or ex-wife or ex-brother in law. The Tribunal is not satisfied that this applicant had any fears of harm when he was in Malaysia nor does it accept that he left Malaysia for the reasons claimed. The Tribunal does not accept that the applicant faced any adverse attention when he was in Malaysia for any reason.

7. The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm for any of the above reasons in Malaysia, as it does not accept that any of those claims were true.

8. The Tribunal put to the applicant that, although it had not made up its mind, given the credibility concerns, then if it did not accept his claims relating to the loan shark and debts, then when considering the country information as set out in the DFAT report, it may be that he does not face a real chance of serious harm or a real risk of significant harm if he returns to live in Malaysia. He did not disagree, but asked for further time to stay here to earn money.

9. The applicant’s expired passport: The Tribunal noted that the applicant’s passport had expired and asked whether he had obtained a new one. He said he is not permitted to obtain a new passport while the protection process is going, but when it is over he will be able to get his new passport. He said that he does intend to get a new passport and return home if he is not successful with this application, but he would like to stay a bit longer to earn money if he can be permitted to do so. The Tribunal noted that, according to the DFAT report:

   5 5.31 Under Malaysian immigration law, Malaysians who overstay their visa or breach visa conditions in other countries (regardless of if they apply for asylum) may be blacklisted and prevented from further travel, normally for a period of up to two years. Malaysians who are returned from Australia face a passport ban of five years under an agreement between the two countries. In practice, cases are unlikely to come to the attention of authorities unless the Malaysian is removed (i.e., deported) from another country or applies to renew a passport through a diplomatic mission overseas.

   5.32 Authorities generally pay little attention to Malaysians who overstay their work or tourist visas, or who breach visa conditions in other countries, upon their return to Malaysia. Likewise, failed asylum seekers rarely face adverse attention, as the Malaysian Government is usually unaware that someone is a failed asylum seeker, although it is possible some failed asylum seekers could face questioning on return, particularly if their passport expired while abroad. The International Organization for Migration (IOM) assists voluntary returnees, and Malaysian authorities cooperate with IOM in these arrangements.

10. The Tribunal put to the applicant that it did not appear that he would face a real chance of serious harm or real risk of significant harm for the above reasons. In response he said that he understood. The Tribunal accepts that the applicant would have to renew his passport in Australia, but he did not suggest that he would suffer a real chance of serious harm or a real risk of significant harm for the reasons set out in the DFAT report. The Tribunal considered that the applicant’s request to remain for a longer period to earn some more money, and his willingness to then return home, undermines that he believes that returning home to Malaysia is of concern, or will lead to him facing any harm or difficulties in Malaysia for any reason. The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm for reason of his passport having expired while he was here, or because he would be returning to Malaysia as a failed asylum-seeker.

11. The applicant’s medical condition, and his ability to get a job: The Tribunal asked if the applicant had any other reason why he did not want to return home and he referred to the letter from [Dr B]. The Tribunal put to the applicant that the letter did not indicate that he could not return home. He said that there is treatment, but the hospital is too far away from his mother’s home.

12. The Tribunal put to him that it had concerns about his credibility and it may not accept that there is not a hospital he could attend near his mother’s home. The applicant said that he also may not get a job because of his age or health condition. The Tribunal put to him that he has work experience in both Australia and Malaysia and it does not have country information before it to suggest that because he has a [body part] condition or because he is aged [Age] years, he could not get a job in Malaysia. The applicant’s response was to ask: can I have a further 1 year or even 7 months or 9 months and then I can go home. The Tribunal considered that his willingness to go home after a short period of time undermines his claims that he fears or faces any harm or difficulties in Malaysia for any  reason, including his health, access to a hospital, or work. The Tribunal put to him that it may find that he does not face a real chance of serious harm or a real risk of significant harm for the reasons he has claimed, and in response he said yes, I understand.

13. The Tribunal discussed with the applicant that it did not appear that his claim (that his mother did not live close to a particular hospital in Kuala Lumpur where he could obtain monitoring/treatment) meant that he was a refugee, in that there was no suggestion that he would face a real chance of serious harm for reasons of his race, religion,
    nationality, membership of a particular social group and/or political opinion. It also noted that his claim did not appear to fall under the definition of significant harm which is defined (s 36(2A); s 5(1) of the Act) as:

    ·     Being arbitrarily deprived of his life; or the death penalty will be carried out on him: the Tribunal noted that he made no suggestion that he faced a real risk of this; or

    ·     There is an intention to subject him to torture; cruel or inhuman treatment or punishment; or degrading treatment or punishment: the Tribunal noted that the applicant had not suggested that anyone would have an intention to cause such harm to him.

14. The applicant said that he understood this.

15. The Tribunal is not satisfied that the applicant has been truthful as to his circumstances in Malaysia, including where he intends to live when he returns, noting that he has been prepared to live away from his mother for many years (since 2011), nor is it satisfied that he is truthful when claiming that he may not be able to easily access a hospital or medical attention. The Tribunal notes that the DFAT report refers to Malaysia having a well-established universal health care system which is accessible to most of the population.  The Tribunal is not satisfied that the applicant will not be able to access treatment wherever he intends to live in Malaysia. The Tribunal also does not accept that this applicant, who has work experience in both Malaysia and Australia, faces a real chance or a real risk of not being able to obtain work. The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm for reason of his health, age or ability to find work. 

    Refugee claims

16. The Tribunal is not satisfied that the applicant genuinely fears or that he actually faces a real chance of serious harm at all, and in particular not for any of the 5 listed reasons including membership of a particular social group, political opinion, religion, race, nationality. It does not accept that he faces a real chance of serious harm in the form of financial or economic harm, not being able to get a job, or for reason of his health or location or age.

17. The Tribunal has considered the applicant’s claims individually and on a cumulative basis, in the context of its findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, and, apart from those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.

    Complementary protection

18. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Annexure A, which provides a summary of the relevant terms). The Tribunal also notes that the real risk test under the complementary protection criterion imposes the same standard as the real chance test under the refugee criteria.[5]

    [5] MIAC v SZQRB [2013] FCAFC 33

19. The Tribunal has not accepted that the applicant has been honest about his circumstances in Malaysia in the past nor upon return and it does not accept his assertion that wherever he chooses to live he will not have access to medical treatment, he will not be able to get a job, including for reason of his age or health. The Tribunal has found that the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm for any reason at all. The Tribunal also is not satisfied that the applicant faces a real risk of significant harm because his passport expired here and he would be returning as a failed asylum seeker, noting he himself indicated a willingness to return after earning some more money.

20. The Tribunal is not satisfied that he faces a real risk of experiencing significant harm for any reason.

21. On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Malaysia, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    Conclusion

22. 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).

23. 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).

24. 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 criteria in s 36(2).

    DECISION

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

    Christine Cody
    Member

    
    

ANNEXURE A - CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

6. 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.

   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.

   …