2106241 (Refugee)

[2024] AATA 4377

2106241 (Refugee) [2024] AATA 4377 (16 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2106241

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Michael Brereton

DATE:16 September 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 16 September 2024 at 3:29pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from investors in failed business scheme, debt collectors/gangsters and authorities – illegal investments by business partner, demands for repayment by investors, official investigation and freezing of bank accounts – applicant convicted, and applicant and family threatened and harmed – period as unlawful non-citizen – consent to decision without hearing – limited evidence provided – responsibility to specify claims and provide evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 May 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 29 August 2020. The applicant claimed to fear harm from investors in a failed business scheme and from the Malaysian authorities. The delegate refused to grant the visa on the basis that the applicant’s claims do not relate to any of the reasons in s 5J(1)(a), and the applicant does not face a real risk of significant harm.  

3. The Tribunal invited the applicant to attend a hearing listed on 4 September 2024.  On 29 August 2024, the applicant told the Tribunal that he did not want to attend the hearing and that he consents to a decision being made on the papers.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. The issue in this case is the applicant’s fear of harm because of a failed business investment scheme. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Application to the Department

11. In his application to the Department, the applicant stated:

    At Year 2006, I decided to closed down the business because, I was betrayed by my business partners. He had taken out all the business profit and investors fund invest into multi- level marketing investment company. Now, the company declared that their investment running loses but local government found that they are money games company. Malaysia related department have taken action to freeze the bank account for investigation. Our business investor found that my business partners have making a wrong investment and illegally invest into money games company so asking for fully refund, but my business partner run away for hide and leave me alone to handle the case. Some of the investors have make a report to police department and the authority department have call me up for investigation. They lodge a report to the authorities and I'm the only one who was convicted. My company assets were impounded by authorities, and the investors come to my house to harm me and family member. So, my family member advises me to leave a country for security purpose. I have entry Australia with visitor visa but overstayed. I have online visited the Australia visa type and now I have applied a protection visa and hopefully Australia government able to protection me to prevent if I back to home country will harm or kill by investor appoint runner (because there is gangster background). I hope can start a new life here.

    The investors appointed debt collectors come to my home and harmed me.

    My movement is very limited back at my home country, because the authorities can easily track me. The debt collectors mention to kill me with showed pistol, so I no want to take a risk.

    I am unable to relocate to any other part of Malaysia because the investor had hired a local gangster to collect the money. I will certainly be caught by them if I return to home country.

12. The delegate summarised the applicant’s claims:

    ·In 2006, the applicant was betrayed by his business partner who used their investors’ funds to invest in a multi-level marketing company. The company went bankrupt, and the local Malaysian authorities froze its bank accounts to investigate its involvement in illegal ‘money games’.

    ·The applicant’s investors requested a full refund upon learning that their money had been invested illegally. The applicant’s business partner fled leaving the applicant to repay the debt on his own.

    ·The investors lodged a police report prompting the police to investigate and convict the applicant. The company’s assets were impounded by the authorities.

    ·The investors visited the applicant’s house where they harmed the applicant and his family.

    ·The investors also hired debt collectors who visited the applicant’s home with a pistol and harmed the applicant.

    ·The applicant made a police report however the police could not catch the debt collectors. Further, the police cannot protect him all the time.

    ·The applicant cannot relocate because the authorities can easily track him, and he may be killed by the debt collectors.

    ·If the applicant returns to Malaysia he will be harmed or killed by the debt collectors or the local gangster, both of whom act on behalf of the former investors.

13. The applicant was not invited to an interview with the Department.

    Application to the Tribunal

14. On 11 May 2021, the applicant applied to the Tribunal for review of the delegate’s decision.

    Hearing Invitation

15. On 13 August 2024, the Tribunal invited the applicant to attend a hearing. The invitation letter stated:

    We have considered the material before us but we are unable to make a favourable decision on this information alone.

    …

    Please use the ‘Response to hearing invitation’ form attached to this letter or attach additional information if you have any requests or any new information which you wish us to consider.

    …

    If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

16. The applicant has chosen not to attend the hearing and has not sought to provide any additional evidence or information. The Tribunal is satisfied that the applicant was advised that the Tribunal is unable to make a favourable decision on the information before it. The applicant has asked expressly for the Tribunal to decide on the papers. The Tribunal has decided to proceed to a decision on the material before it, without giving the applicant further opportunity to appear before the Tribunal or to provide further information or evidence.

    FINDINGS

    Identity

17. The applicant provided the Department with a copy of his Malaysian passport. There is no information before the Tribunal indicating that he has a right to enter or reside, whether temporarily or permanently, in any other country. The Tribunal finds that the applicant is a citizen of Malaysia, and that Malaysia is the receiving country and country of reference for the purposes of this review.

    Claim

18. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason(s) claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm.’ It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]

    [1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

19. The applicant claims to fear harm because of an investment business failure and legal ramifications. He has provided limited details about these events. He claims that he was part of an investment scheme that failed and led to him being convicted and having his company
    assets impounded. However, he has not provided any details or context, such as dates,
    copies of legal documents, sentencing and conviction documents, or copies of court orders.

20. He claims to have been convicted and that the authorities can track him if he returns, but the evidence provided, does not suggest that he is of any ongoing adverse interest to the authorities. He has not provided any details or context, such as why the authorities would now wish to track him (given he claims to have already been convicted and to have lost his company assets), or whether he has any other adverse profile with the authorities.

21. He claims to fear harm from debtors, and from a local gangster who has been hired by the investors to collect the money they believe he owes them. He has not provided any details of how much is owed, how many debtors are involved, where these debtors are, how they would find him if he was to return, or any other details or context for this claim. He has not provided any details, dates, or other context in relation to claims that he and his family have faced harm at home from investors or debt collectors.

22. There is insufficient evidence before the Tribunal to establish the relevant facts of the
    applicant’s case. For these reasons, the Tribunal is not satisfied that the applicant was
    involved in a failed business or investment scheme. It does not accept that he faces a real chance of any adverse interest, or any harm of any nature, at the hands of the authorities, people he has described as debtors, or any other person or group, arising from any failed business investment scheme, now or in the reasonably foreseeable future, should he return to Malaysia.

23. There is no other information before the Tribunal indicating that the applicant will be
    otherwise targeted or harmed for one or more of the reasons in s 5J(1)(a). The Tribunal finds
    that the applicant does not have a well-founded fear of persecution for any reason, should
    he return to Malaysia.

24. The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the
    Act. A person will meet that criterion if there are ‘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’.

25. For the reasons set out above, the Tribunal has found there is not a real chance the
    

    [2] (2013) 210 FCR 505.

    [3] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).

    applicant will experience harm from the Malaysian authorities, debtors, or any other person or group arising from any failed business investment scheme, if he returns to Malaysia. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[2] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J.[3] It follows that the Tribunal does not accept there to be a real risk that the applicant would face significant harm from these, or any other persons or groups, for this reason, if returned to Malaysia.

26. There is no evidence or information before the Tribunal indicating that the
    applicant fears or may face a real chance or real risk of serious or significant harm for any
    other reason or reasons, now or in the reasonably foreseeable future, should he return to Malaysia.

    Conclusion

27. Having regard to the 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) or (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.

    Michael Brereton
    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.

    …