1926956 (REFUGEE) [2024] ARTA 734 (6 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1926956
Tribunal:General Member J Edis
Date:6 December 2024
Place:Perth
Decision:The Tribunal affirms the decision under review.
Statement made on 06 December 2024 at 10:21am
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs (now known as the Minister for Immigration and Multicultural Affairs) to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The application was initially lodged with the Administrative Appeals Tribunal (AAT).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.[1] This decision and statement of reasons is made by the Tribunal.
[1] The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
BACKGROUND
The applicants comprise a trio of Malaysians: namely, the first-named applicant, his de facto partner ([Miss A]), and his older sister ([Miss B]).
The first-named applicant is the primary applicant in this case. [Miss A] and [Miss B] have not made any claims in their own right. For simplicity, I will mostly refer to the first-named applicant as ‘the applicant’ hereon in.
The applicant and [Miss A] travelled to Perth on [date] March 2019 holding UD-601 Electronic Travel Authorities (ETAs).
[Miss B] travelled from Malaysia to Perth later, on her own. She arrived on [date] April 2019.
The applicants lodged a protection visa application via ImmiAccount[2] on 7 June 2019.
[2] The Department’s online visa application system.
According to what was stated on the application form, the applicants left Malaysia because of an ‘economy issue’, to the effect that they could not find jobs or support themselves.
The applicants were not asked to provide more details or attend a Departmental interview.
The delegate made the refusal decision on 17 September 2019. The applicants sought review of that decision via the lodgement of the application to the AAT on 24 September 2019.
On 26 July 2024 the AAT Registry contacted the applicants to inform them that their case was being prepared for a hearing. They were invited to complete and return a ‘pre-hearing information form’ (the Form), which they did, on 2 August 2024.
On the Form,…
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Details
- Case
- [2024] ARTA 734
- Decision Date
CaseChat Overview and Summary
The applicants, three Malaysians comprising the first-named applicant, his de facto partner, and his older sister, sought a protection visa in Australia due to alleged harassment and threats from a loan shark in Malaysia. The Tribunal was required to determine whether the applicants met the criteria for a protection visa under the Migration Act 1958. Specifically, the Tribunal needed to assess whether the applicants had a well-founded fear of persecution due to their race, religion, membership of a particular social group, or political opinion, and whether there were effective protection measures available in Malaysia.
The Tribunal reviewed the evidence provided by the applicants, including their claims of economic hardship and threats from a loan shark. The applicant alleged that after borrowing money from a loan shark at a high-interest rate, he faced threats and violence when he could not meet the repayments. The Tribunal considered the credibility of the applicant's evidence, noting inconsistencies and vague details. The Tribunal also examined whether the claimed persecution was systematic and discriminatory and involved serious harm. Given the lack of clear and convincing evidence, the Tribunal found the applicants' claims insufficient to meet the criteria for a protection visa.
The Tribunal affirmed the decision to refuse the protection visa application. The Tribunal concluded that the applicants did not satisfy the requirements under the Migration Act 1958, as they failed to demonstrate a well-founded fear of persecution and the necessary criteria for a protection visa. The evidence provided was deemed vague and lacking in credibility, and there was no clear indication of effective protection measures in Malaysia.
The Tribunal reviewed the evidence provided by the applicants, including their claims of economic hardship and threats from a loan shark. The applicant alleged that after borrowing money from a loan shark at a high-interest rate, he faced threats and violence when he could not meet the repayments. The Tribunal considered the credibility of the applicant's evidence, noting inconsistencies and vague details. The Tribunal also examined whether the claimed persecution was systematic and discriminatory and involved serious harm. Given the lack of clear and convincing evidence, the Tribunal found the applicants' claims insufficient to meet the criteria for a protection visa.
The Tribunal affirmed the decision to refuse the protection visa application. The Tribunal concluded that the applicants did not satisfy the requirements under the Migration Act 1958, as they failed to demonstrate a well-founded fear of persecution and the necessary criteria for a protection visa. The evidence provided was deemed vague and lacking in credibility, and there was no clear indication of effective protection measures in Malaysia.
Orders
Orders of the court
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Background
Background to the litigation
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.[1] This decision and statement of reasons is made by the Tribunal.[1] The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.BACKGROUND The applicants comprise a trio of Malaysians: namely, the first-named applicant, his de facto partner ([Miss A]), and his older sister ([Miss B]). The first-named applicant is the primary applicant in this case. [Miss A] and [Miss B] have not made any claims in their own right. For simplicity, I will mostly refer to the first-named applicant as ‘the applicant’ hereon in. The applicant and [Miss A] travelled to Perth on [date] March 2019 holding UD-601 Electronic Travel Authorities (ETAs). [Miss B] travelled from Malaysia to Perth later, on her own. She arrived on [date] April 2019. The applicants lodged a protection visa application via ImmiAccount[2] on 7 June 2019. [2] The Department’s online visa application system. According to what was stated on the application form, the applicants left Malaysia because of an ‘economy issue’, to the effect that they could not find jobs or support themselves. The applicants were not asked to provide more details or attend a Departmental interview. The delegate made the refusal decision on 17 September 2019. The applicants sought review of that decision via the lodgement of the application to the AAT on 24 September 2019. On 26 July 2024 the AAT Registry contacted the applicants to inform them that their case was being prepared for a hearing. They were invited to complete and return a ‘pre-hearing information form’ (the Form), which they did, on 2 August 2024. On the Form, the applicant wrote that he left Malaysia together with his partner and sister ‘to escape from harassment and serious threat from the loan shark’. He explained: ·He borrowed from a loan shark to carry on a business. ·After he received the money, the loan shark imposed a higher interest rate than initially agreed. ·He could not meet the repayments. ·As a result, the loan shark became violent and threatened harm to him and his family. ·The loan shark was connected to underworld gangsters and local police.·The loan shark threatened him that if he went to the police, he and his family would be harmed.·They had no choice but to escape from Malaysia to Australia.[3][3] The applicant provided further particulars of these claims in a statement emailed to the Tribunal on 11 November 2024, in response to a Request For Information sent to him. The applicant also stated on the Form that he had provided these details to the migration agent, but the agent did not include them on the protection visa application.
Evidence
Evidence Before The Court
For the following reasons, I have determined that the applicants do not meet the protection visa criteria and I therefore affirm the decision under review.OUTLINE OF EVIDENCE AND CLAIMS I set out below an outline of the evidence and claims presented on behalf of the applicants.[4][4] The outline of evidence is derived from the Form, the applicant’s written statement of 11 November 2024, and the applicant’s oral testimony on 20 November 2024. I have not relied on the visa application form because the applicant unequivocally told me at the hearing that he had never seen it. Personal circumstances The applicants are Malaysian citizens.[5] They are of Chinese ethnicity and Buddhist faith. [5] They travelled to Australia on Malaysian passports. Copies were provided to the Department. I have no reason to doubt the validity of these documents. The applicants come from ([Town 1]) situated in Perlis, which is the smallest and northern-most state in Malaysia. Perlis shares a border with Thailand. [Details deleted]. The applicant is [age] years old. Miss [A] is [age]. They have been together since around 2011. [Miss B] is [age] years old. The applicant and [Miss B] are 2 out of 4 children; they have 2 brothers. The applicant and [Miss B]’s father passed away over 20 years ago. Their mother is still alive and lives in [Town 1] with the eldest of the 2 brothers, together with his wife and 2 children. The applicant completed high school in [Town 1] and went on to study at a tertiary level. He completed 3 out of the 4 years of the university course before moving to Penang for a job. The applicant lived and worked in Penang for around 1.5 years and then returned to [Town 1]. In 2014, the applicant started work as a [manager]. His employer was in the business of [details deleted]. How the loan shark debt arose In late 2016, the applicant was approached by a [customer] of the business he worked for. The customer sought to enter into a deal directly with the applicant rather than via the company. The deal was to the effect that the applicant would purchase goods using his employee discount. He would then privately supply the goods to the customer, who would on-sell them in [Country 1] at a profit within 3 weeks. They were to split the profit equally. The applicant needed MYR20,000 to buy the goods. He did not have the money. He tried to obtain a bank loan but was rejected. So, he turned to a friend. He borrowed MYR4,000 from the friend. The friend introduced him to a loan shark to obtain the remaining funds. The applicant entered into an agreement with the loan shark. He borrowed an amount of MYR20,000 on the basis that repayments were to be weekly, and the interest rate was 20%. The applicant borrowed the money from the loan shark in anticipation of receiving his share of the profits from the [customer] within the 3-week timeframe. He was expecting to make an overall profit of almost MYR30,000 from the deal based on the assumption that he would end up paying the loan shark a total of around MYR40,000 (i.e., comprising the principal and interest).
Decision
Reasons for decision
For completeness, I note there is no suggestion the applicants satisfy s 36(2) on the basis of being members of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, I also find the applicants do not satisfy the criterion in s 36(2)(b) or (c) of the Act.DECISION The Tribunal affirms the decision not to grant the applicant protection visas.ATTACHMENT - 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
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