2100969 (Refugee)
[2024] AATA 4360
•4 September 2024
2100969 (Refugee) [2024] AATA 4360 (4 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2100969
COUNTRY OF REFERENCE: Malaysia
MEMBER:Michael Brereton
DATE:4 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 04 September 2024 at 11:04am
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from loan shark criminal gang – sister’s friend’s loan and gang’s demand for repayment, threats and attacks on sister and applicant – passage of time and no direct connection to sister’s friend or loan or continuing harassment of sister – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2CASE
MIAC v SZQRB (2013) 210 FCR 505Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 January 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia applied for the visa on 15 August 2016. The applicant claimed to fear harm from loan sharks in Malaysia. The delegate refused to grant the visa on the basis that the applicant did not claim to fear harm for one of the reasons specified in s 5J(1)(a) of the Act, and because the applicant could access effective state protection in Malaysia.
The applicant appeared before the Tribunal by video on 16 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the applicant’s fear of harm from a criminal gang of loan sharks. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Application to the Department
In his application to the Department the applicant claimed to fear harm from a criminal gang in Malaysia. He claimed that he saw his sister being beaten by three men who were demanding payment. The applicant went to his sister’s aid and caused two men to sustain broken limbs. The men were enraged and threatened to kill the applicant and his sister. At one time the applicant was beaten at his workplace and was warned that if his sister does not repay the loan, both he and his sister would be killed. The applicant decided to flee Malaysia before matters got worse.
The applicant was not invited to attend an interview with the Department.
Application to the Tribunal
On 29 January 2021, the applicant applied to the Tribunal for a review of the delegate’s decision. At the time of the application the applicant was living in Victoria. On 17 June 2024, the Tribunal sent the applicant a request to provide pre-hearing information and on 9 July 2024, the Tribunal sent the applicant an invitation to an in-person hearing. On 24 July 2024, the applicant advised the Tribunal that he is now living in Queensland and asked that the hearing be converted to a remote (video) hearing.
On 16 August 2024, the applicant attended a video hearing. At the start of the hearing the Tribunal confirmed with the applicant that he consented to a video hearing, and that he was in a safe and a private location.
The applicant’s evidence is considered below.
Identity
The applicant claims to be a citizen of Malaysia. He has provided the Departments with identity documents. There is nothing before the Tribunal indicating that he has a right to enter or reside in any other country. The Tribunal finds that the applicant is a Malaysian citizen, and that Malaysia is the receiving country and country of reference for the purposes of this application.
Loan Shark Claim
The applicant told the Tribunal that his fears stem from an incident involving a criminal gang called “[Gang name]”. He said that he and his sister had a mutual friend in their hometown. This friend borrowed money from [the gang] in 2015 but ran away without paying it back. Towards the end of 2015, the gang came to the applicant and his sister demanding to know where the friend is and told the applicant that he must pay back the money. The gang used to come to the [workplace 1] where the sister worked and ask about the friend. They also came to the [workplace 2] where the applicant worked and made trouble. Once they punched him in the face and knocked a tooth out. He said that the owner of the [workplace 2] could not do anything about the gang because one of the leaders was the son of the local police chief.
The Tribunal asked the applicant about the claim in the visa application that he had broken some persons’ limbs. The applicant said that on one occasion he had fought back and hit one of the gang members on the head and leg. He said the gang was angry about that and he became more frightened. The applicant left Malaysia and came to Australia in March 2016.
The Tribunal asked what had happened to the friend who borrowed the money. The applicant said that he has had no contact with her since she ran away and does not know where she is. The Tribunal asked if the gang has continued to harass the applicant’s sister. The applicant said that he has not spoken to his sister since he fled Malaysia and does not know where she is or what she is doing. The Tribunal asked if the applicant’s parents tell him what is happening with his sister. He said he never asks his parents about her.
The Tribunal asked why the gang will seek him out an continue to harm him if he returns to Malaysia. He said he does not know if they have got the money back. He said that they will also remember that he hit one of them. He said that he does not want to take the chance.
The Tribunal asked the applicant if he fears harm for any other reason or reasons in Malaysia. The applicant said that he did not fear harm for any other reason or reasons.
The incidents described by the applicant occurred over an approximately six-month period at the end of 2015 and the beginning of 2016. The applicant has been in Australia since March 2016, a period of over eight years. The applicant’s evidence is that another person, not related to the applicant, borrowed money from the gang. It is plausible that the gang knew the applicant was friends with that person and harassed him in order to find that person. The Tribunal accepts that the applicant had some interactions with the gang members in the months between the person leaving town and the applicant leaving Malaysia.
The Tribunal accepts that there was at least one incident of violence which led to an injury to the applicant’s teeth. The Tribunal has also considered the applicant’s claim about fighting back and causing an injury to a gang member. The applicant said he had hit the gang member on the head and leg. He did not provide any further detail of the claimed injuries. Although his written application refers to broken limbs, the evidence he gave the Tribunal does not point to such serious injuries. The Tribunal asked him about the claim to have broken someone’s limbs and he repeated his explanation that he hit the person on the head and leg. The Tribunal has given more weight to the applicant’s explanation at hearing where he was assisted by an interpreter. The Tribunal accepts that the applicant may have fought back during a scuffle but does not accept that there was any serious injury to the gang member.
The Tribunal finds that the applicant does not owe money to the gang himself and that he was of interest to the gang only because of his association with the borrower. The Tribunal accepts that the gang may have told the applicant he needs to pay the debt, that he suffered a punch to the face, and that he caused one person an injury during a scuffle. The gang has not shown any interest in locating the applicant since he left Malaysia and he does not claim that the gang has continued to harass his sister, who remains in Malaysia. The Tribunal takes account of the applicant’s claim that he does not ask about his sister, but considers it is implausible that his parents would not tell him if they were aware that she is still being threatened or harassed by the same people the applicant himself fears.
The Tribunal finds that the gang has not displayed any ongoing interest in the applicant in relation to the loan and that he is not, and will not be, of any adverse interest to the gang because of the loan, now or in the reasonably foreseeable future, should he return to Malaysia.
The Tribunal has considered the assault and the scuffle and the time that has passed since these events and finds that any other adverse profile the applicant may have had with the gang in the past was not of such seriousness that the gang will continue to hold a grudge against him now. The Tribunal finds that the chance of the gang remembering and seeking out the applicant should he return to Malaysia is so low as to be a remote and not a real chance.
The Tribunal finds that the applicant does not face a real chance of harm from any gang or loan sharks, for any reason or combination of reasons, now, or in the reasonably foreseeable future, should he return to Malaysia.
The applicant does not claim to fear harm for any other reason or reasons if he was to return to Malaysia. The Tribunal finds that he does not have a well-founded fear of persecution in Malaysia for any reason or reasons.
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).
COMPLEMENTARY PROTECTION
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 has found above that the applicant does not face a real chance of harm for any reason or reasons should he return to Malaysia. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB,[1] the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[2] Having regard to this and to the reasons the Tribunal has given above, the Tribunal finds that the applicant does not face a real risk of harm for any reason or reasons should he return to Malaysia.
[1] (2013) 210 FCR 505.
[2] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
The Tribunal is not satisfied that there are substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Brereton
MemberATTACHMENT - 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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Appeal
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