1934849 (Refugee)

[2022] AATA 2862

1934849 (Refugee) [2022] AATA 2862 (20 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1934849

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:James Silva

DATE:20 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 20 July 2022 at 1:58pm

CATCHWORDS

REFUGEE – Protection visa – Malaysia – Tribunal is unable to be satisfied that the applicant has borrowed money from or had any other dealings with Gang 08 –no current information provided – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 426, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is [an age]year old man from Malaysia, who claims to be a citizen of Malaysia.

2. He arrived in Australia on [date] October 2018, as the holder of a visitor visa, and applied for a protection (class XA) visa on 29 January 2019. On 28 November 2019, the delegate of the Minister for Immigration refused the application pursuant to s.65 of the Act.

3. This is an application for review of that decision.

4. The applicant was invited to a Tribunal hearing on 20 July 2022, but did not attend.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Criteria for a protection visa

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is in the attachment to this decision.

   Claims and evidence

   Protection claims

7. The applicant’s claims as set out briefly on the protection visa application form, are:

   §   He is indebted to ‘Gang 08’, whose members forced him to borrow large sums of money at exorbitant interest rates. He knows some of the gang members by their first names, but does not have details about their leaders.

   §   He left Malaysia after gang members beat him up, stomped on him and held a knife to his neck, threatening to kill him.

   §   He cannot possibly afford to repay the mounting debts and interest. He fears the gang will quickly find out if he returns to Malaysia, due to their connections; and that they will capture, torture and kill him.

   §   He does not believe the authorities can protect him, as the gang is large and powerful, with close links to the government.

   Background

8. The applicant is [an age] year old man from Johor Bahru, Malaysia. He is a Malay Muslim.

9. The application form contains few details, and many gaps. The applicant stated that he lived at one address in Johor, from birth until 2018. He attended school from 2007 to 2012, and worked [in] a [workplace] from 2017 to 2018. He indicated that he has never married or been in a de facto relationship. There are no details of any family members, although the applicant indicated on the form that he telephones relatives in Malaysia.

10. The applicant holds a Malaysian passport issued in [2016], valid for five years. He indicated, as his only prior travel abroad, a one-day trip to [Country 1] in August 2018.

    Evidence

11. The evidence before the Tribunal includes the following relevant material:

    §   The protection visa application form, which includes the applicant’s brief handwritten protection claims on the application form. Attached to the form is a partial photocopy of a Malaysian passport (biodata page only), issued in Johor in [2016], and a copy of a Malaysian learner driver licence. (The applicant indicated that he had attached a copy of his national ID card and was unable to provide his driver licence. The reverse appears to be the case.)

    §   The delegate’s protection visa assessment record (‘delegate’s decision record’) of 28 November 2019, a copy of which the applicant provided with the application for review.

    §   The application for review contains no new information.

    Procedural matters

12. The applicant lodged his application for review on 10 December 2019, providing (among other things) the email address ‘[deleted]’ and a mobile telephone number.

13. On 7 April 2022, the Tribunal received an online withdrawal form with the applicant’s full name, date of birth and AAT file number. However, the form was sent from, and referenced, a different email address ‘[deleted]’ and a different mobile telephone number. The Tribunal sent emails to the original email address and to the unlisted email address, requesting the applicant to contact it urgently, and, as appropriate, complete a MR6 Change of Contact Form. The Tribunal also tried unsuccessfully to contact the applicant by telephone, via the numbers that he had provided. Calls to the original telephone number failed. A Tribunal officer left a voicemail message on the newly provided number, asking the applicant to return the call. The applicant has not contacted the Tribunal.

14. Although the online withdrawal form included some personal details, and an email address that was similar to that originally provided by the applicant ([deleted]), the Tribunal was unable to be satisfied as to the source of the withdrawal form or whether the applicant genuinely intended to withdraw the review application.

15. On 30 June 2022, the Tribunal wrote to the applicant by email (the address provided with the review application as the address for correspondence) advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing to be held on 20 July 2022. The invitation advised that the Tribunal would call the applicant on the telephone number he had provided with the application for review. It also advised that if he did not appear at the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal.

16. The Tribunal exercised its discretion to offer a hearing by teleconference, as it was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the case, including uncertainty about the applicant’s current circumstances and location. Had the applicant participated, there was the option of adjourning the hearing and resuming it via videoconference or in person, as appropriate. The Tribunal also had regard to the time limit for completion of such reviews, and its broader objective of providing a mechanism of review that is fair, just, economical and quick.

17. The applicant did not reply to the hearing invitation, and did not appear before the Tribunal on the day and at the time and place she was scheduled to appear. The email with the hearing invitation was not returned to the Tribunal undelivered. The Tribunal’s earlier emails, in connection with the (purported or attempted) withdrawal were also not returned. The Tribunal sent SMS messages to the applicant via the mobile telephone number provided with the review application, but delivery failed. A Tribunal officer attempted to call the applicant three times, without success. In the meantime, the applicant has not contacted the Tribunal to explain his non-appearance, or for any other reason.

18. Pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable him to appear at a hearing.

    Receiving country

19. The applicant claims that he is a Malaysian national, and has provided a partial copy of his Malaysian passport. The Tribunal is satisfied, on the available evidence and in the absence of any suggestion to the contrary, that he is a Malaysia national. It therefore assesses his protection claims against Malaysia, as the receiving country.

    Consideration of claims and evidence, and findings

20. The Tribunal has before it only the applicant’s brief statement of claims. The information is vague, lacking in detail in significant respects and more than three years old. The applicant’s appearance at a hearing or participation in the review would have provided an opportunity to address the various gaps, and to discuss what further information and details are available. Among the claims on which the Tribunal has insufficient evidence are the following:

    §   Confirmation that his claims relate to the notorious Gang 08 organised crime syndicate, and what information he has about the individuals he allegedly met.

    §   Details of his dealings with the gang, including how he met them, the circumstances of him borrowing money from them (including whether they ‘forced’ him to enter a loan agreement or whether this refers to the unfavourable loan terms) and details of the loan (such as timing, amount borrowed, interest and repayment arrangements).

    §   Particulars of the assault(s) and threats referred to in his protection claims, including the consequences of such actions; such as any medical treatment; any impact on his living arrangements, employment and travel; and any efforts to seek protection from the Malaysian authorities.

    §   Updated information about the loan(s), including whether he has repaid any of it and/or whether the gang has made any efforts to recover the money.

    §   An update on the applicant’s fears about returning to Malaysia, including his intended future conduct.

21. On the limited available material, the Tribunal is unable to be satisfied that the applicant has borrowed money from or had any other dealings with Gang 08 or any other Malaysian gang; or that they assaulted and threatened to kill him; or that he left Malaysia to flee persecution or significant harm for that or any other reason.

22. The Tribunal is also unable to be satisfied that the applicant genuinely fears harm from gangs if he returns to Malaysia; or that he fears that the Malaysian authorities are unwilling or unable to protect him from this or other criminal activity, due to corruption or the influence wielded by criminal syndicates.

23. In sum, the Tribunal is unable to be satisfied that the applicant has suffered any harm or other problems that amount, individually or cumulatively, to ‘serious harm’ (for reason of her religion or any other of the reasons set out in s.5J(1)). It is also unable to be satisfied that he has suffered any harm that amounts to ‘significant harm’. It is unable to be satisfied that he is indebted to a criminal gang, or of adverse interest to them for any other reason. Furthermore, the Tribunal is unable to be satisfied that he genuinely fears serious harm amounting to persecution, or significant harm, arising from any of these circumstances.

    Refugee criterion

24. In light of the above findings, as well as the Tribunal’s lack of information about the applicant’s current circumstances and his future conduct, the Tribunal is not satisfied that he faces a real chance of serious harm amounting to persecution, for any of the reasons set out in s.5J(1)(a), from anyone. It is therefore not satisfied that he has a well-founded fear of persecution within the meaning of s.5J(1) if he returns to Malaysia.

25. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection

26. 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). Based on the information before the Tribunal, and the assessment of facts above, 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 Malaysia there would be a real risk that he will suffer significant harm.

27. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

28. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    decision

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

    James Silva
    Member

    ATTACHMENT: 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) (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.

    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.

    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).

    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.

    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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.