2004228 (Refugee)

[2024] AATA 4417

2004228 (Refugee) [2024] AATA 4417 (25 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2004228

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Melissa Haag

DATE:25 September 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 25 September 2024 at 1:26pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from money lenders – outstanding loan for online gambling – family intimidated and some money repaid by siblings while applicant in Australia – no recent contact from lenders to family – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), 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 dependants.

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. The applicant is [Age] years of age and a national of Malaysia. He arrived in Australia [in] July 2017 on a Visitor visa. He applied for a Protection visa on 19 November 2019.

2. On 28 February 2020, a delegate for the Minister of Home Affairs refused to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth)(the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

3. In his Protection visa application, the applicant stated that he was of Buddhist religion and born in Seri Kembangan, Selangor, Malaysia. He listed a single address where he lived from birth until he travelled to Australia in 2017.  He stated that he completed school up to Middle School level in Kuala Lumpur in [Year] and stated that he had not been employed. He did not provide any details of his family members.

4. The applicant made the following claims in response to questions relating to his reasons for claiming protection:

   -He left Malaysia for the safety of his life.

   -His family tried to move to another part of country but the gangster society members found them.

   -He was given a warning he will get hurt and harmed if the gangster society members find him.

   -On return his parents will be harmed by the gangster society member bully when they help him.

   -The authorities are unable to protect him.

   -He cannot relocate in Malaysia because the gangster society have a lot of members in Malaysia which can easily find him.

5. The applicant was not invited by the Department to attend an interview.

6. The delegate was not satisfied that the applicant is a refugee as defined by s5H(1) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk they will suffer significant harm under s36(2A) of the Act. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.

   The review application

7. On 3 March 2020, the applicant applied for a review of the delegate’s decision to the Tribunal. In support of his application, the applicant submitted a copy of the delegate’s decision record.

8. The applicant appeared before the Tribunal on 18 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.

   CRITERIA FOR A PROTECTION VISA

   The relevant law

9. 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.

10. 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.

11. 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).

12. 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.

13. 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

14. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Analysis, reasons and findings

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

16. In his protection visa application, the applicant claimed that on return to Malaysia he and his family will be harmed by ‘gangster society members’ and that they have a lot of members throughout Malaysia so will easily be able to find him. At hearing, the applicant gave evidence that he will be targeted because of an outstanding loan which he took out in 2015 or 2016 to use for online gambling and could not repay.

17. The applicant said that he lived with his parents and [siblings] in Malaysia. He gave evidence that he lived in Kuala Lumpur for over 20 years and then for approximately 8 years in [Location], Selangor with his parents before travelling to Australia. He finished school at 17 years of age and trained as an [apprentice]. He worked in a factory with the same employer for more than 20 years before travelling to Australia in 2017. His father passed away in 2020 and his [siblings] are living nearby to his family home in [Location] where his mother is still living at present. The applicant’s [siblings] are in stable employment in Malaysia, as [Occupations]. The applicant said that his siblings made repayments on his loan from 2017 when he travelled to Australia until they told the moneylenders that they would not make any further payments in 2021. He said that in total they have paid approximately $25,000RM which he says is more than he borrowed, however, the moneylenders claimed the still owes $35,000RM due to the compounding interest.

18. The applicant gave evidence that he arranged the loan with moneylenders from his local area. He said he attended at their office in approximately 2015 or 2016 and signed a loan agreement but does not have a copy of the agreement. He said that he received various sums of money over the following two years and by July 2017 when he travelled to Australia he had borrowed ‘tens of thousands of dollars’ which he could not afford to repay.

19. The Tribunal is willing to accept that the applicant took out a loan from moneylenders in his local area which he was unable to repay after July 2017 and that his family continued making repayments on the loan until 2021.

20. The applicant said that three days after he travelled to Australia in 2017, the money lenders went to his family home in the middle of the night and splashed red paint in front of his house. He claims that his parents reported the moneylenders to the police and the police told the moneylenders to clean up the mess and compensate them. The applicant said that his older sister reported the money lenders to the police on another occasion around 2 years later but the police only gave them a warning which they ignored and did it again. The applicant said that the moneylenders went to his family home and splashed red paint outside the house approximately 4 to 5 times after he left Malaysia in 2017 and that the last time was approximately 4 years ago. He said that his family members were not physically harmed or threatened but were harassed by the splashing of red paint outside the house in the middle of the night.

21. The Tribunal is willing to accept that shortly after his departure from Malaysia in July 2017, moneylenders went to his family home and splashed paint outside his family home where he had lived with his parents in order to intimidate him to repay his loan and interest. The Tribunal is also prepared to accept that the moneylenders went to his family home on further occasions and splashed paint at some time between 2017 and 2020, totalling 4 to 5 times. However, the applicant’s evidence at hearing was that the moneylenders have not attended at his family home or otherwise harassed or threatened his parents or his siblings since they last went to the house approximately four years ago, despite that the applicant and his siblings have not made any further repayments since 2021.

22. The Tribunal put to the applicant that it has been a number of years since the moneylenders last visited his family home and that despite his siblings not making payment since 2021, there have not been any incidents of harassment or threats of harm against him or his family. None of his siblings have been contacted since they stopped making payments in 2021, let alone harmed by the moneylenders in recent years. His mother still lives in the same family home and has also not been approached by the moneylenders for approximately four years despite them knowing her address. The applicant’s response was that the family told the moneylenders that they would not pay the debt for him in 2021 and that they know he is still in Australia. He said that if he returns to Malaysia there will be issues and they will look for him. The applicant did not offer an explanation as to why his siblings who live in nearby towns to his family home or his mother have not been approached or contacted by the moneylenders since they ceased making payments in 2021 to exert pressure on his family members as a means of coercing the applicant to make payments.

23. The Tribunal considers that the applicant’s evidence does not suggest that the moneylenders continue to be genuinely interested in recovering the debt or seeking retribution for the applicant’s failure to repay the money owed. The Tribunal considers that it would be reasonable to assume that since 2021 when the applicant’s family ceased making payments that the moneylenders would have continued to put pressure on members of the applicant’s family as they had done in the past in order to force the applicant to return or to continue making payments towards the debt. The Tribunal is of the view that the applicant’s moneylenders are not interested in harming the applicant in order to recover the loan, or as an act of retribution for his failure to repay the loan.

24. For the above reasons, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm from his moneylenders, or their agents, on return to Malaysia now or in the reasonably foreseeable future.

25. On the basis of the evidence before me, the Tribunal does not accept that there is a real chance that the applicant would be persecuted for the reason of his race, religion, nationality, political opinion, or membership of any particular social group if he were to return to Malaysia. Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the purposes of s5J of the Act.  The Tribunal finds that the applicant is not a refugee for the purposes of s.5H(1) and therefore that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).

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). For the reasons outlined 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 is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s5(1). Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).

27. 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

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

    Melissa Haag
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    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.

    …