1413039 (Refugee)

1413039 (Refugee) [2016] AATA 4913 (24 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1413039
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Sophia Panagiotidis
DATE:24 June 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 24 June 2016 at 1:07pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – race – Indian Malaysian – religion – Hindu – particular social group – interfaith relationship – threats and beating – threats from gang members – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R, 91S, 499
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 dependant.
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 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 24 October 2013 and the delegate refused to grant the visa on 22 July 2014.
The applicant appeared before the Tribunal on 16 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Tamil Nadu) and English languages.
The applicant's claims
In her application for a protection visa, the applicant has claimed essentially that she left Malaysia because she is not safe there and she had received threats. She claims to have been attacked by members of a Malay gangster organisation called “[Gang 1]”. She claims to have been harmed and that they also tried to kill her. This was because she fell in love with a Malaysian man [Mr A]. His father is very rich and has police and political influence. She and [Mr A] had been in love for about a year and in about August 2013 his father came to know about their relationship and tried to harm her. He arranged for members of “[Gang 1]” to harm her. Her boyfriend tried to warn her and advised her not to stay in Malaysia. The reason why [Mr A]’s father does not approve of the applicant's relationship with his son is because she is Hindu. She does not want to change religion. If she returns she will be killed. The applicant also claims that her mother, father and brother were attacked and her mother hid the applicant at a neighbour’s house. The applicant claims that she was later attacked by a member of the gang wielding a samurai sword, but she escaped with help from her neighbours and her parents. Her boyfriend later told her that his father will not let her live because he is racist and he hates her because she is Hindu. The applicant also claims that the authorities did not protect her. When the gang attacked her neighbour the police attended but after her boyfriend’s father spoke to them they just went away and did not take any action. She claims there is no justice for Hindus in Malaysia as they are treated like third class citizens and like animals not human. A Malaysian man with influence can rule anyone, even the police.
The applicant also provided the Department with the following documents which have been considered by the Tribunal:
·A copy of a blog in relation to racism and bigotry towards Indians in Malaysia posted 24 May 2012;
·An article published in The Standard on 2 June 2014 Ethnic Indians suffer most from brutality of ‘racist’ Malaysian police;
·An article published in The Malaysian Insider in 2014 Muslim woman who married a Hindu refuses to back down. This article is in relation to a woman whose father converted to Islam and who was registered as a Muslim despite the fact that her mother did not convert and the woman considers herself to be a Hindu. She was arrested at her wedding and taken away to be questioned about her religious status;
·A copy of an article from Time: Malaysia Factbook Racism in Malaysia which discusses institutionalised racism which extends to every sphere of life. This was published after a demonstration demanding free and fair elections;
·A copy of entry from Wikipedia Racism in Malaysia and states that Malaysia is a multi-ethnic country. Accusations of racism stem from racial preferences embodies within the social and economic police of the Malaysian government as well as broader tensions between various ethnic groups;
·A copy of an article from the Malaysia Chronicle, 26 July 2013, Malaysia now openly racist: Toilet canteen’ episode shows up long simmering issues (Wong Choon Mei and J D Lovrenciear);
·A copy of an article by John R Malott, former US Ambassador to Malaysia 1995 to 1998, the Price of Malaysia’s Racism: Slower growth and a drain of talented citizens are only the beginning, 8 February 2011;
·A cover letter signed by the applicant dated 1 June 2014 which refers to evidence being provided in support of her application for a protection visa. These included photographs of the applicant and her boyfriend [Mr A], a letter of support by residents of the applicant's apartment building, a letter by the applicant's father;
·A letter from the applicant's father dated 22 May 2014 in which he states that his only daughter, the applicant is having major problems with her boyfriend’s father and “[Gang 1]”. She was in love with a Malaysian man without her father’s knowledge. [In] August 2013 some Malaysian men came to his house and attacked him, his wife and daughter. On that day his daughter also attempted suicide. After that it was decided to send the applicant to Australia to save her life because even the police were not able to help;
·A letter dated 22 May 2014 and signed by a number of people who state they are the residents from the applicant's neighbourhood in Selangor:
We are here residents from (address supplied) writing this letter to the department that (the applicant) living in the same apartment is having threaten for her life from her boyfriend’s father [and] the Malay gangsters [Gang 1].
The incident happened on [date] August 2013. On that day, the gangsters and [the boyfriend’s father] attacked (the applicant and her family members). The residents try to help (the applicant) from the gangsters. And also (the applicant) tried to suicide and we all save her from she killed herself. With the help of the residents she has been sent to Australia.
We are the witnesses for what happened to her is true and we will support her always… (sic)
·The same photographs which accompanied the letter of 1 June 2014 were again provided to the Department by email by another person who was identified as [name] dated 30 June 2014 who advised that the photographs submitted to the Department by the applicant were essentially not what they purported to be. The applicant stayed with her from October 2013 and she recently checked her computer and saw a photograph of her husband’s [friend]. He used to come to the house to [do repairs]. The last time he was there, the applicant took a picture with him. She was shocked when she saw the picture, which has been edited and was confused. She found out that this picture was sent to the Department and she has attached the original picture and the edited picture.
The applicant provided the following documents to the Tribunal:
·A copy of an application and summons for an intervention order with a hearing date [in] August 2014. In that application the respondent states that he has known the applicant for 11 months and he and his family had previously shared accommodation. While living together, the applicant used his computer and after the applicant moved out he became aware that the applicant had accessed the computer and edited a picture of their [repairman] and herself and used this for immigration/visa purposes. He has since contacted the Department about this on July 2014. The applicant had been constantly ringing him and making threats and screaming at him about losing her visa.
·A copy of an application and summons for an intervention order with a hearing date [in] August 2014. The applicant states that the respondent is her cousin’s husband and she has known the respondent for seven years. When she arrived in Australia in August 2013 she moved in with the respondent and his wife. She states that from September 2013 the respondent started to make unwelcome advances towards her and he also suggested he marry her in order to sponsor her to remain in Australia. He has threated to report the applicant to the Department if she tells anyone about his behaviour and believes that because he is a permanent resident nothing can be done to him and it will reflect badly on her. He has also threated violence towards her.
·A copy of a further application for an intervention order with a hearing date [in] August 2014 the applicant states that she moved in with her cousin and the respondent in [one location] and then to [Town 1]. In around [date] June 2014 she was told to leave the house and if she refused there would be questions asked. Her cousin had threatened to physically assault her and she left the house with her husband leaving the applicant there with her mother. Her cousin has indicated to the applicant on a number of occasions she is a permanent resident and therefore she is not able to do anything to or about her. When the applicant arrived in Australia she discovered that the respondent is involved in fraudulent activities and they also demanded the applicant do the cleaning and she was never paid for this. The respondent had also taken money from the applicant which had been given to her by the Red Cross.
·A letter from [a named person] (undated) who writes that he is a neighbour of the applicant's family and he states that he was resting on the afternoon when the violence happened in his neighbour’s house. He heard a loud noise outside his door and he quickly looked through the peephole. He saw several Malay men armed with ‘parong’ and iron rods who were trying to break in. They were shouting and calling names. He eventually made out that these men were calling the applicant's name and asking them to come out. He was about to call the police when these men left so he did not call the police. He later saw damage to his neighbour’s gate and other things that were damaged. He was told that these people were there because of the applicant's love affair with a “different race boy” and that his parents disagreed with the relationship. They were threatening the applicant. The boy’s family are Muslims and are politically influential so the applicant's family is unable to negotiate any arrangement between the families. They have threatened the family and the daughter several times. His neighbours have sent the applicant away from Malaysia as they were worried about her safety. As they are a poor family they are not able to do anything to protect her since the other party is strong financially and politically influential.
·A copy of what appears to be a police report dated [January] 2014, however no translation has been provided.
The delegate’s decision
The delegate noted the applicant arrived in Australia on 10 August 2013 as the holder of a subclass 601 Electronic Travel Authority. She has remained in Australia since her arrival.
The delegate noted the applicant's claims that she entered into a romantic relationship with an Islamic Malay man and they were in a relationship for approximately one year. They were engaged to be married but the boyfriend’s father did not approve because she is Tamil and Hindu. The applicant has claimed that she fears being harmed or killed by her boyfriend’s father and members of a criminal gang [Gang 1] because he does not approve of his son being romantically involved with the applicant. She has also claimed that the Malaysian authorities have not responded to her requests for protection because her boyfriend’s father is wealthy and influential. The applicant has claimed that at the request of her father and her boyfriend she leave Malaysia as the attacks against her would not stop until she was killed.
The delegate noted that the applicant has not kept in touch with [Mr A], her boyfriend since she left Malaysia. Although she had had several means by which to contact him either directly or indirectly, the applicant has provided evidence that she has not made attempts to reach him and he has not contacted her. The applicant has been unable to provide anything more than copies of two photographs which the delegate has discounted. The delegate did not accept the applicant's claims that she is still in a relationship with [Mr A]. The delegate did not accept that [Mr A]’s father was powerful and influential or that he has any political or official ties as the applicant's claims regarding this were speculative and have not been substantiated.
In relation to the applicant's claims that the police were not effective on the day she and her family were attacked, the delegate did not accept this as country information does not support this claim. The delegate considered that if an incident, such as an attack were to occur in the future, state protection would be made available to her. There is no information before her to suggest that protection would be withheld for a Convention reason.
The delegate noted that the applicant had not remained in the relationship and did not accept that the relationship was current or going as claimed. She found that the threat of harm, whether real or perceived, was eliminated upon the applicant's departure from Malaysia. She also considered that since some ten months had passed since the applicant left her home country and despite having several means by which to contact [Mr A] either directly or indirectly, she has not done so.
The hearing
The applicant confirmed that she is a citizen of Malaysia and that she is not a citizen of any other country. She does not have the right to reside in any other country. She first arrived in Australia 1 August 2013 as a tourist. She does not have any family in Australia apart from a cousin living in [Town 1] when she first arrived. She thinks her cousin is still in Australia. They have had problems and she left her cousin’s place. She is living in [City 1] and working. She is working at a [certain job]. She lives in a share house with others. Prior to coming to Australia she did not work. Prior to moving house, she was working in a [factory]. She had been there for about a year.
The applicant told the Tribunal that her parents are in Malaysia. Her father [works] and her mother is a housewife. She has no siblings. They do not support her financially. Her mother has visited her in Australia. This was about in 2013. The applicant has not returned to Malaysia.
The applicant was asked why she did not want to return to Malaysia. She said she does not want to return because her life is not safe in Malaysia. She fell in love with an Islamic boy and his family did not like that. She called him once after she came to Australia but the phone was not connected and she could not speak to him. The boy has not contacted her. She last saw him before she came to Australia on 1 August 2013. When the problems started he told her it was not safe for her to be there and since then she has not spoken to him. The boy was looking after his father’s [business]. Before that he was working at an office and after that he was helping his father. They boy has [a] sister. She confirmed they met in a [location] on [a certain day]. She has known him since 2011 and they started a serious relationship on his birthday he gave her a gift and proposed to her, so it was about a year after they met. He met her parents and had been to her house for [Divali]. He did not ask her parents for permission to marry her. She told her parents she wanted to marry him. Her father did not like the relationship because he is a Muslim but he accepted it. He was concerned about converting her religion. She said she did not intend to convert as he said they would continue to practice their respective religions so it was not a problem.
The applicant said that the relationship was a problem for his father. She called the boy one day and found out that his father had found out about the relationship. His father saw her name on the phone and as it was a Hindu name he asked someone to find out about her. His father asked the boy who he was talking to and the boy told him he was in love with the applicant and his father asked someone to find out who she was. When he found information about her, her father came to her house. There is a gang called [Gang 1] and they all came to the house and created problems at home. The neighbours knew about it and he was very insulting. The father came and hit her and her parents and harmed them as well. [Mr A] had given her a puppy and when his father came to the house, he hit the puppy. She and her parents did not know who these people were. Her father asked them why they were there but he said why was their daughter meeting with his son. Then he hit them. He started to hit her and her father was begging him not to do so. After that everyone said it was not safe for her to stay there. The boy’s father came to their house other times looking for her. Her father was scared so he got her to go to a neighbour’s house but the boy’s father found her there as well. He started shouting and asking the neighbours why she was there. It was dangerous for them because of her. After he left, five men came. Then [Mr A] came and that was the last time she saw him. That’s when her father said to [Mr A] that his daughter’s life had been destroyed. [Mr A] said he knew what was happening but he could not help her in any way. He said he would be there for her and said it was not safe for her to be there and to go away. He left and her mother took her home. No one had spoken to her father that way before as [Mr A]’s father had done. Her father was a kind and generous man. Her father loves her dearly and he accepted her decision. Her parents had been in love when they married and their respective families do not talk to them. She has brought her family a lot of pain and feels sad about it. She did not think it would be such a massive problem falling in love with someone. She just wanted to get married to [Mr A] and settle down with him. She still can’t forget him. His father still goes to her parent’s house and speaks to them in a bad way.
The applicant was asked about the first time [Mr A]’s father came to the house. She said he came with five or six people. She knew they were from [Gang 1], everyone said they were from that gang because they had a number on their shirt. There are many gangs with numbers on their shirts. On that occasion he hurt her and her parents and her puppy. He kicked the puppy and he died.
The police were called and they came, but then [Mr A]’s father spoke to them and left. She was injured during that confrontation on her eye and had bruises. Her parents were hit but only she had an injury. She was bruised and he had pulled her hair. She went to the doctor and was given medicine for a headache so they gave her panadol. The police did not do anything. She does not know what [Mr A]’s father said to them.
The applicant said that the second incident took place the next day. He came with the same people and shouting to her to let his son go and made degrading comments to her. He threatened to kill her. This took place at her house.
The applicant said that [Mr A]’s father returned the next day when her parents were home they came back with the same people. At the time she was at her father’s house and they shouted at her parents. After that she made arrangements to come to Australia. The applicant said that [Mr A]’s father also went to her neighbours’ house while she was staying with them. The flat was downstairs. This was after the first incident. He told the neighbours not to get involved.

After the first incident, [Mr A] came to her because he found out what had happened. Her father shouted at him and blamed him for what had happened. Her father left and went upstairs and [Mr A] told her he did not know it was going to be a problem falling in love with her and he has caused her problems but he cannot let her go. He also said for her to go away somewhere. That was the last time she saw him and she has not seen or spoken to him since.
After the second incident, she went to the police but they did not take a statement. The police shouted for them to get out. She has bruises but they did not look at them or allow her to speak to them. She thinks it is because [Mr A]’s father has a lot of money that is why they did not take any action or take any statements from her or her family. It could be because he bribed them. During the first incident, the police attended her house and then left. They went to the police station after the second incident. They did not go to the police after that.
The applicant was asked why she left the country instead of going elsewhere in Malaysia. The applicant was also asked if she and her family discussed her options. The applicant said that Malaysia is a small country and [Mr A]’s father knows a lot of people. Her cousin and her father’s friends all said she should go to Australia. The applicant was asked if she had gone to another city what would have happened and how would [Mr A]’s father find her? He would find her because he has a lot of money and influence. He knows a gang he will definitely know a lot of people.
The applicant was asked since she left Malaysia and because she has not had any contact with [Mr A], whether the situation improved. The applicant said that [Mr A]’s father still goes to her house and makes threats. This year her father was on a motor bike and he felt like someone was chasing him and returned home as he was scared. He reported this to the police. The applicant was asked how often had [Mr A]’s father has been to her house. She said he has been to her house many times and this was reported to the police twice. Once after the motor bike incident and once when people came to their house and were shouting. The neighbours have not complained to the police and won’t get involved. The applicant was asked if she had any evidence of these reports. The applicant said she does not have reports of complaints made to the police. The applicant was asked why [Mr A]’s father still goes to her father’s house. The applicant said it is because [Mr A]’s father thinks she will return and marry his son. [Mr A]’s father has told her mother if she comes back she will die at his hands.
The applicant was asked about additional information she indicated she would be sending to the Department. The applicant said her mother sent additional documents to [Town 1] and these were sent to the Department by the person living there. The documents included photos of [Mr A]. She had some photos at home in Malaysia but she does not know what other documents her mother sent. The applicant was asked if she still had the photos. She said that she does not have them as they were emailed to the Department by her cousin. She is no longer in touch with her cousin. She said she has some court documents with her involving her cousin and her cousin’s husband. She said she received a letter from the police station and she also filed a case against her cousin and they had to go to court. The case she filed was because she was spoken to badly by her cousin’s husband.
The applicant said she had been living with her cousin and her husband in [Town 1]. While she was there her cousin’s husband was making advances towards her and she told her cousin. She did not take it seriously and her husband knew she was getting Red Cross money and they wanted this as they would not look after her otherwise. Many people come to their house and she felt there were bad things going on. They were using the computer and would be talking. There were many documents on the table but she cannot read English and does not know what they were. She was scared of these people and so she stayed in her room. She asked about these and she was told to leave the house when she asked questions. Her case worker helped her to move house.
The applicant provided the Tribunal with the copies of an application for an intervention order. Her cousin’s husband had applied for an intervention against her and she made an application too. The applicant was asked why her cousin’s husband took out an intervention order and she replied that it was because of the people who were coming to the house. She had to attend [a certain] court and the [Town 1] court on the same day. Her cousin then withdrew the case and they each had to sign a paper. She believes her cousin and her husband are taking people’s money and cheating them. People would come with forms and her cousin and her husband would complete them.
When her mother sent her the documents she had asked for, she did not see these as her cousin sent these straight to the Department.
The Tribunal looked at the documents proffered by the applicant and indicated that these raised some concerns. She was asked if anyone had explained the contents of these documents and she said that her cousin and her husband had put a case against her that she had taken documents from their house. She was represented at court and the lawyer had been organised for her by her case worker.
The Tribunal read to the applicant the contents of the application for an intervention order with the help of the interpreter. Essentially the situation in the application was that the applicant was living with her cousin and her husband and it was alleged the applicant had been using the computer. After the applicant left the house they found that the applicant had used the computer and altered a photograph of their [repairman] and used this for immigration purposes and she has contacted the Department about this. [In] July 2014, the applicant constantly contacted her by mobile phone and landline screaming at her for losing her visa. The applicant confirmed that the person who has taken out the order is her cousin. She is her aunt’s daughter and is a permanent resident of Australia. The applicant told the Tribunal that she does not know how to use a computer.
The applicant’s application for an intervention order alleged she was threatened with physical assault and she was asked about this. The applicant said her cousin and her husband were using bad and degrading language and that people were coming to the house all the time and that they had taken money off her from the Red Cross.
The applicant was asked to identify the person in the photograph which had been sent to the Department and she said she has no idea who the person in the photographs is. She said she had asked her mother to send photos of [Mr A] and a doctor’s letter. She also asked for support letter from her father. She did not send the handwritten letter dated 1 June 2014 to the Department; it was her cousin who did so. She did not send the letter from mother and residents. She had not seen the documents provided by her mother.
The applicant was asked what documents she asked her mother to provide to her for the Department. The applicant said she asked her mother for a photograph of [Mr A] because that was important and a letter from the doctor.
The applicant was asked about a letter from her father which had been provided to the Department dated 22 May 2014. The applicant said she had not seen that letter.
The applicant was asked about a hand written letter to the Department dated 1 June 2014 which appears to have been sent by her. The applicant was asked if the handwriting on the letter was hers. The applicant said that the handwriting was not hers and she denied having sent the letter. The applicant was asked if the signature on the letter was hers. She said it was her signature. The Tribunal pointed out the letter was dated after the interview with the Department which was on 29 May 2014 and the letter indicates that she is providing evidence including support letters and she provided a telephone number for her boyfriend. The applicant said she does not remember any of that. She denied having someone help her to forward documents from Malaysia after the interview with the Department. The applicant was asked if the signature on the letter from her father was his signature. The applicant indicated that it was not. The applicant was asked for her parent’s telephone number which she provided and the Tribunal pointed out that this was the same as that in the letter. The applicant did ask for a support letter from her father, one for the Department and one for the Red Cross but she never saw these. She never asked anyone to help her write a covering letter to the Department.
The applicant was asked for names of people in her apartment building who may have helped her. She did so. The applicant was asked who prepared the letter signed by 16 people who state they are residents in her apartment building. The Tribunal indicated that this letter was provided to the Department with other documents after her interview on 29 May 2014. The applicant said that her mother sent some documents and she never saw them. The Tribunal indicated that the covering letter which was signed by the applicant refers to these support letters and also the photograph of her boyfriend. The applicant reiterated that the handwriting on that letter was not hers and she had not seen the documents. She maintained that she never asked anyone to help her send documents to the Department because she does not know anyone in Australia. The Tribunal indicated that the timing of these documents is soon after the interview with the Department. The applicant was asked who could have possibly sent these letters. She said she did not know. She said that before the interview with the Department she had not spoken to her cousin and her husband much. She said her cousin’s husband was behaving differently after the interview.
The applicant was asked if she had any contact with [Mr A] since August 2013. The applicant said that she had not. The Tribunal indicated to the applicant that it found it difficult to accept that the threats by [Mr A]’s father were continuing especially since the last time she saw [Mr A] was in 2013, particularly in view of the amount of time that has passed. The applicant said that [Mr A]’s father does not want her to return and to look for him and if she does, she believes [Mr A] will change his mind and go to her. She knows he will come to her if she goes back because they love each other. If he was married her parents would know about it and her friends. She has asked friends to let her know if they become aware of anything. His father continues to go to her house because he still thinks she is a threat and because [Mr A] still thinks of her. The applicant was asked why [Mr A] would not have contacted her since she left Australia as he would be able to find her through her parents. The applicant said he does not know where she is. She believes he is still thinking about her. The applicant was asked that as [Mr A] has not contacted her, why she has reached that conclusion. The applicant said that in November a friend saw him and he asked about her but her friend did not know where she was. Her friend told her mother about meeting [Mr A], but her mother did not tell her until much later because was scared to tell anyone where she was living. Since then, she has told her mother to tell all her friends to let her know if they see [Mr A], even though this would bring problems on her family. She has done this because she really loves him and there is no life for her without him.
The applicant said she did not believe she will be protected if she returns because [Mr A]’s father knows her and all these gang members. The police did not protect her because she is Hindu. There is no safety for Hindus in Malaysia, no matter where they go.
The Tribunal put to the applicant that according to country information, Indians are the third largest ethnic group in Malaysia. The applicant said that the Hindus come after the Muslims and the Chinese.
The applicant was asked if she had she personally experienced harm or discrimination in Malaysia because she was a Hindu. She said that being hit by [Mr A]’s father and being called names and that her parents were called names and were assaulted. This was all because they are Hindu. Prior to that she has had no difficulties.
The applicant was asked why she could not relocate within Malaysia for her own safety. The applicant said that [Mr A]’s father would find her even if she were living elsewhere because he knows a lot of people. He found her in her neighbour’s house. If anyone sees her he will find out she is in the country. He has told her mother that if she returns to Malaysia he will try to find her and she will die at his hands. It is a small country and he has a lot of money and knows a lot of people and he could find her. She would not be safe in Malaysia.
The Tribunal put to the applicant country information which indicates that Malaysia is basically a safe country with an effective police force and an effective legal system although it is acknowledged that there is corruption. The applicant disagreed and indicated there is a lot of information which shows that Malaysia is not safe. The Tribunal indicated that it will also consider other government and non-government sources as well including those provided by the applicant.
The applicant reiterated it is not safe for her and she wanted to save her life. She is [age] years old and she wants to live and be safe.
The applicant was asked if she wanted the opportunity to provide further evidence such as police reports and photographs of [Mr A]. The applicant said that she only had one photograph of [Mr A] and this was sent. His father took other stuff off her and her mother. The photo on the Department’s file is not him. She said she will provide a translated copy of the police report by her father.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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
Country information
Malaysia’s ethnic demographic consists of ‘Malay (67.4 per cent), ethnic Chinese (24.6 per cent), ethnic Indians (7.3 per cent) and others (0.7 per cent). It is estimated that 80 per cent of the Indian population are Tamil. The indigenous peoples of Malaysia represent around 12 per cent of the population.’[1]
[1] Department of Foreign Affairs and Trade (DFAT) 2014, DFAT Country Report – Malaysia, 3 December, Section: Demography, p.7
The Department of Foreign Affairs and Trade’s (DFAT) Country Report – Malaysia states:
The Malaysian Constitution forbids discrimination against citizens on the basis of gender, religion, and race, however it accords a “special position” for bumiputera [ethnic Malays], permitting affirmative action policies that favour ethnic Malays.[2]
[2] Department of Foreign Affairs and Trade (DFAT) 2014, DFAT Country Report – Malaysia, 3 December, Section: Human Rights Infrastructure, p.7
According to DFAT:
3.10 Indians constitute the third largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against ethnic Indians.
3.11 Ethnic Indians predominantly live in major urban centres, including Kuala Lumpur, Penang, Negeri Sembilan, Selangor and Perak on Peninsular Malaysia. Most Indian Malaysians form part of the working classes but they also represent a high proportion of professionals (15.5 per cent) including 38 per cent of the entire medical workforce. Access to primary and secondary education is high, with over 500 state-based Tamil Schools across Malaysia, however, access to state-based tertiary education and the civil sector remains low. Between 2011 and 2012, only 2.6 per cent of student places at public universities were offered to Indian applicants. The exclusive use of the Malay language may be a restriction in this regard.
3.12 While many Indian Malaysians belong to the upper-middle class, the number of ethnic Indians living below the poverty line has not decreased in recent years, in contrast with decreases in poverty for ethnic Malay and Chinese communities. Ethnic Indians also constitute a disproportionately high number of incarcerated persons in Malaysia, with some figures suggesting they represent up to 48 per cent of the Malaysian prison population.
3.13 Indian Malaysians freely participate in political life. There are several members of parliament of ethnic Indian origin and two serving ministers within the current government.
3.14 DFAT assesses that ethnic Indians generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service. [3]
[3] Department of Foreign Affairs and Trade, 2014, DFAT Country Report – Malaysia , 3 December
A Bernama (Malaysian National News Agency) 30 January 2015 report quoted the Malaysian Prime Minister’s acknowledging support and commendation for the Malaysian Indian community and pledged on-going government support:
The Government will ensure that the Malaysian Indian community continues to progress and, at the same time, will safeguard its language and culture, Prime Minister said Friday.
Datuk Seri Najib Tun Razak said the Indian community in Malaysia had contributed significantly to the progress of the country and had progressed in tandem with the progress of the nation.
“Malaysian Indians are the sons and daughters of this soil. The Government has always made it its responsibility to ensure the well-being of all its citizens,” he said in his speech at the 9th International Conference-Seminar on Tamil Studies at Dewan Tunku Canselor of Universiti Malaya here.
Najib said the Government had always promoted a multicultural and multilingual policy in Malaysia.
“We have continued to encourage the use of the mother tongue, especially in the education system, and give all the necessary assistance to the various ethnic groups in ensuring that their languages are practised and preserved,” he said adding that he was proud that the Tamil community in Malaysia has successfully safeguarded its language and culture.[4]
[4] ‘Najib - Govt will ensure continued progress of Indian community’ 2015, Bernama (Malaysian National News Agency), 30 January
DFAT notes that despite poverty among all ethnic groups in Malaysia falling by at least 50 per cent between 1989 and 2009, ‘[e]thnic Malays continue to face high rates of relative poverty. Poverty rates were 2.2 per cent for ethnic Malays, 0.3 per cent for ethnic Chinese and 1.8 per cent for ethnic Indians in 2012. While poverty rates for ethnic Malays are now reducing, levels are increasing for other ethnicities, particularly the Indian community.’[5]
State Discrimination
[5] Department of Foreign Affairs and Trade (DFAT) 2014, DFAT Country Report – Malaysia, 3 December, Section: Economic Overview, p.5
There are a number of reports regarding the extent of state discrimination experienced by the ethnic Indian community broadly.
According to the United States Department of State (USDOS), while the Malaysian constitution “provides for equal protection under the law and prohibits discrimination against citizens based on race…the constitution also provides for the ‘special position’ of ethnic Malays”, or bumiputra[6]. In particular, the government is known to employ a number of affirmative action policies that visibly discriminate against non-ethnic Malay populations. In 2011, USDOS reported that such policies caused ethnic Indian citizens to remain among the country’s poorest groups. According to the report:
Government regulations and policy provide for extensive preferential programs designed to boost the economic position of ethnic Malays or bumiputra…Such programs limited opportunities for non-bumiputra in higher education, government employment, and ownership of businesses. Many industries were subject to race-based requirements that mandated bumiputra ownership levels, limiting economic opportunities for non-bumiputra citizens. According to the government, these policies were necessary to ensure ethnic harmony and political stability.[7]
[6] Bumiputra – or Bumiputera – is a Malaysian term used to describe ethnic Malays as well as other indigenous ethnic groups. In the past, the term has been used to exclude ethnic Chinese and Indian populations in Malaysia.
[7] US Department of State 2012, Country Report on Human Rights Practices 2011 – Malaysia, 24 May, Section 6
While bumiputra account for 67.4 per cent of the population[8], USDOS reported that in 2009 bumiputra constituted “more than 90 per cent of the country’s almost 1.15 million civil servants”.[9] A 2009 Minority Rights Group International report lists the exclusive use of the Malay language by the government as a tangible barrier to ethnic Indian employment within the civil service.
[8] US Department of State 2012, Background Note: Malaysia, 2 March Accessed 30 August 2012
[9] US Department of State 2010, Country Report on Human Rights Practices 2009 – Malaysia¸ 11 March, Section 6
The Malaysian government has engaged in various anti-discrimination reforms since 2009. According to USDOS, the government released a series of economic policies throughout 2010 in an attempt to restructure “the country’s system of bumiputra ethnic preference to reduce unequal treatment of different ethnicities by the government”. In particular, “the prime minister cited the reforms as a means to better target subsidies and preferences to the poorest citizens, regardless of ethnicity”. Although the government lifted a 30 per cent bumiputra equity benchmark in 27 service sectors in 2009, “observers considered the announcement a minor adjustment to the entrenched pro-Malay economic policies”.[10]
[10] US Department of State 2011, Country Report on Human Rights Practices 2010 – Malaysia, 8 April, Section 6
In relation to social discrimination, the Tribunal notes there are reports regarding the broader social treatment of ethnic Indians in Malaysia.
An article published by The New Paper in 2008, which cites a 2007 study undertaken by the Centre for Public Policy Studies in Malaysia, states that while “75 per cent of [ethnic] Malays feel that they have never been treated unfairly due to their race”, only 49 per cent of ethnic Indians feel the same way.[11]
[11] The New Paper is the second-highest circulating English language paid newspaper in Singapore. The newspaper has reportedly held close ties to government intelligence services in the past.
In 2010, USDOS reported that a number of Malaysian employers “exploited ethnic Indian citizens through forced labour”.[12] Minority Rights Group International also reports that the ethnic Indian population lacks “the demographic weight to be able to exercise any large degree of political power”.[13]
[12] US Department of State 2011, Country Report on Human Rights Practices 2010 – Malaysia, 8 April, Section 7
[13] Minority Rights Group International 2008, World Directory of Minorities and Indigenous Peoples – Malaysia : Indians, UNHCR Refworld Accessed 30 August 2012
According to a 2008 report published by the Observer Research Foundation, Hindu members of the ethnic Indian community in Malaysia are the main recipients of discrimination and human rights violations.[14]
[14] Lahiri, D 2008, Malaysian Indian Community: Victim of ‘Bumiputera’ Policy, Observer Research Foundation, February, p. 4 attachments/malaysia_1203067850658.pdf Accessed 30 August 2012
While freedom of religion is enshrined in the Malaysian constitution, Islam remains the official religion with laws restricting the propagation of other religions among persons adhering to Islam. In addition, reports indicate that the government has heavily favoured Islam through state institutions in the past. Hindu communities seeking to establish and maintain places of worship face various bureaucratic obstructions. In particular, the government has engaged in the demolition of a number of Hindu temples since 2006.
State protection
The Tribunal notes that no specific information was located regarding the adequacy of state protection for Hindu Malaysians exposed to discrimination and threats. According to DFAT law enforcement entities operate at both federal and state level. The Royal Malaysian Police (RMP) reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide.
The RMP functions under the command of the Inspector General of Police, who reports to the Home Minister. As of 2011, the RMP employed approximately 102,000 officers[15], and operated 837 stations across Malaysia.[16] While dated, a 2008 report published by the Centre for Public Policy Studies Malaysia states that the RMP provides 3.8 officers per 1,000 citizens.[17]
[15] US Department of State 2012, Country Report on Human Rights Practices 2011 – Malaysia, 24 May, Section 1
[16] Royal Malaysian Police n.d., Structure of the Royal Malaysian Police Accessed 3 September 2012
[17] Centre for Public Policy Studies Malaysia 2008, Policy Factsheet: Police, 26 August Accessed 4 January 2010
According to the Countries at the Crossroads report published by Freedom House in 2010, “[b]y regional standards, Malaysia’s police appear to be reasonably organised”. The report notes, however, that “their effectiveness is limited by low salaries and endemic corruption” and that “[t]he police are frequently alleged to be providing protection for drug trafficking, prostitution and loan sharking”.[18] An unofficial translation of the RMPs 2009 Annual Report indicates that police were able to successfully resolve 99,254 or 47.40 per cent of cases reported in 2009. In particular, the report states that 65.99 per cent of violent crimes and 42.90 per cent of property crimes were resolved.[19] Information was located, however, to suggest that police sometimes “review the crime statistics to regain public confidence and come up with the right number for public consumption” and that a number of crimes go unreported.[20]
[18] Freedom House 2010, Countries at the Crossroads 2010 – Malaysia, UNHCR Refworld, 7 April Accessed 24 May 2010
[19] Royal Malaysian Police 2009, Annual Report 2009, p.97 Accessed 3 September 2012
[20] Nair, M 2012, ‘Why is crime Rising: Is it because Umno is Sleeping?’, Malaysia Chronicle, 19 July Accessed 3 September
The Malaysian government does maintain some mechanisms to investigate and penalise corruption, predominantly via the Malaysian Integrity Commission established in April 2011. A 2012 article published by the Borneo Post[21] reports that the highest number of complaints received by the commission in the first half of 2012 were against the RMP.[22] According to an article published in June 2012 by The Star Online, the commission received “120 complaints of misconduct and wrongdoing against police from members of the public” between April 2011 and June 2012. Of the 120, “nine were referred to the Malaysian Anti-Corruption Commission for bribery and 15 were addressed to the disciplinary department within the police force”.[23] In addition, according to USDOS reporting on events from 2011:
[21] The Borneo Post is the largest English news source in Borneo.
[22] ‘Lack of integrity in the force is more of an isolated problem, says director’ 2012, The Borneo Post, 15 August Accessed 3 September 2012
[23] ‘Integrity Commission records 120 complaints from public on police misconduct’ 2012, The Star Online, 19 June Accessed 3 September 2012
Police officers are subject to trial by the criminal and civil courts. Police representatives reported that there were disciplinary actions against police officers during the year. Punishments included suspension, dismissal and demotion.
The government continued to focus police reform efforts on improving salaries, quarters, and general living conditions for police officers. However, the status of other reforms, including the formation of an independent police complaints and misconduct commission, remain pending at year’s end.[24]
[24] US Department of State 2012, Country Report on Human Rights Practices 2011 – Malaysia, 24 May, Section 1
A 2012 article published by Free Malaysia Today asserts that the Malaysian government has ignored proposals to establish an independent police complaints and misconduct commission in the past.[25] According to a 2010 report published by Freedom House, “police reform has been inhibited by resistance at the highest levels of the police force and, according to many, by the attorney general”.[26]
[25] El Sen, T 2012, ‘Misconduct due to ignoring inquiries’, Free Malaysia Today, 4 May Accessed 3 September 2012
[26] Freedom House 2010, Freedom in the World – Malaysia (2010), June Accessed 10 September 2010
DFAT reports however that credible local and international sources consider that the police in Malaysia to be professional and effective.[27]
Internal Relocation
[27] Department of Foreign Affairs and Trade (DFAT) 2014, DFAT Country Report – Malaysia, 3 December, Section: State Protection, p.20
The Tribunal notes the following advice by DFAT in relation to relocation:
5.17 Malaysia’s Constitution provides for freedom of internal movement. However, the eastern states of Sabah and Sarawak have autonomy over their own immigration controls. Non-Sabah or Sarawak residents, whether Malaysian citizens or foreigners, are required to present national identity cards (or passports for foreigners) to gain entry. The federal government can overrule immigration decisions made by Sabah or Sarawak in limited circumstances, including for national security reasons.
5.18 A small number of individuals have been denied entry into Sabah or Sarawak in recent years. Ahead of a Sarawak state election in 2011, the former chairman of the election watchdog Bersih 2.0 was prevented from entering Sarawak. Two members of the Opposition Pakatan Rakyat (People’s Alliance) party were denied entry into Sabah (Vice Presidents, Nurul Izzah and Tian Chua) in July 2013. Chua and two other PKR leaders, Rafizi Ramli and Datuk Saifuddin Nasution Ismail, were deported from Sarawak in March 2014 for campaigning in a by-election.
5.19 High-profile political activists and politicians may be denied entry into Sabah or Sarawak where their visits related to engagement in a political process, particularly federal elections or by-elections. In practice, entry into Sabah or Sarawak is not restricted for the majority of citizens upon displaying their national identity card. DFAT is not aware of any instances of individuals being denied exit from Sabah or Sarawak.
5.20 DFAT assesses that Malaysians can and do freely relocate internally. Individuals likely to attract official attention under state sharia-based law, including transgender individuals, women escaping violent husbands or Muslims wishing to marry a non-Muslim, often move to large urban centres to avoid attention. People also move to different parts of Malaysia for economic reasons. [28]
[28] Department of Foreign Affairs and Trade, 2014, DFAT Country Report – Malaysia , 3 December
Findings and reasons
The applicant claims to be a citizen of Malaysia and arrived in Australia on a valid passport issued by the Malaysian government which state she is a national of that country. The Tribunal finds on the basis of the applicant's identity documents that she is a national of Malaysia and has assessed her claims against that country. The Tribunal also finds that Malaysia is the applicant's receiving country for the purpose of assessing her claim against the complementary protection criterion.
The applicant essentially claims to fear harm at the hands of her boyfriend’s father who is a Muslim because he disapproves of her as a Hindu and of their relationship.

The Tribunal had significant doubts of the credibility of the applicant's protection claims.
According to the evidence before the Tribunal, the claimed relationship between the applicant and [Mr A] apparently started in January 2011 and continued for over two years. This relationship was unknown to each of their families for most of this period and the applicant's family was eventually told of it. They made plans to marry. Their coming from different religious backgrounds was not a consideration in their view. The applicant claims to have fled Malaysia in August 2013 because of having been threatened and assaulted by [Mr A]’s father if she and his son continued to pursue their relationship. She believes [Mr A]’s father was against the relationship because she is a Hindu and he is a Muslim. She has claimed that he has continued to threaten to kill her if she returns to Malaysia even though she has been absent from her home for almost three years.
The applicant also claims that she is still in a relationship with [Mr A] even though they have not seen or spoken to each other at all since before she left Malaysia. Despite no communication with him whatsoever, she claims to still be in love with him as he is with her and she will try to find him to pursue a relationship if she returns. When the applicant was asked why she had not attempted to make contact with him in the time she has been in Australia for example through social media, she responded that he does not use such things but she has asked her friends to let her or her mother know if they see him. She maintained that they would continue their relationship even if in the meantime he has married someone else.
The claimed events that led to her fleeing Malaysia occurred in early August 2013. The applicant claims that [Mr A]’s father has employed members from a gang to threaten her and her family. She has also claimed that the police would not take any action in relation to the threats and the assault on her by [Mr A]’s father because he is wealthy and powerful and he has probably bribed them. She was therefore not able to produce any evidence of reports to the police about the claimed threats and assault and although she referred to providing medical evidence about the injuries she sustained during the claimed assault, she has not done so.
The applicant has also been unable to provide the Tribunal with credible evidence of the relationship being ongoing. The Tribunal notes she denied providing evidence of the claimed relationship to the Department namely the letter dated 1 June 2014 (at folio 82 of the Department’s file) as well as the attached documents. Although her evidence was that she asked her mother to provide some documents, including a photograph of [Mr A] and a medical report from her doctor to confirm the claimed assault by [Mr A]’s father she claims that the documents provided were not sent by her and she has never seen them. She claimed that her mother forwarded these to the house where she was living with her cousin and it was her cousin who forwarded these documents to the Department by email. The Tribunal asked the applicant whether the signature on letter the letter dated 1 June 2014 was hers. She told the Tribunal that it was but she did not write the letter as she is unable to write or read English and she cannot use a computer. The Tribunal notes the letter dated 1 June 2014 was provided following an interview with the delegate on 29 May 2014. The email on the Department’s file appears to have been forwarded with a number of attachments which included:
·the letter signed by the applicant, a letter dated 22 May 2014 which is claimed to be from residents in the applicant's apartment building in Malaysia (at folio 81 of the Department’s file)
·a letter from the applicant's father (at folio 79 of the Department’s file) which contained her parent’s telephone number as confirmed at the hearing by the applicant but she said the signature was not his
·photographs of the applicant and a man, who the applicant during the hearing said was not her boyfriend [Mr A].
The applicant was asked about the photographs in particular and she refuted these were images of [Mr A] and stated she had never seen this man before.
The applicant has provided the Tribunal with copies of applications for an intervention order made by her and cousin. The Tribunal raised a number of issues with the applicant which arose from the events described in the documents and indicated these were of some concern and asked her if she was familiar with the contents of these documents. She indicated to the Tribunal that the contents had been explained to her by her lawyer. The Tribunal read the contents of the documents to the applicant and the information was translated by the interpreter during the hearing. The information in the application for the intervention order indicated that the applicant had used the computer at her cousin’s house and had altered a photograph of their [repairman] and had used this for immigration purposes. The documents also indicated that the applicant phoned her cousin and her husband [in] July 2014 “screaming at him for losing her visa”.
In response the applicant denied using her cousin’s computer to alter the photograph and reiterated she had not seen the person in the photographs before and did not know who he was or who had sent these to the Department. She also denied being able to use a computer.
The Tribunal had difficulty in ccepting the applicant's explanation in relation to the documents provided to the Department under cover of a letter bearing her name. Taking into consideration the evidence provided by the applicant at the hearing, including her evidence that her relationship with her cousin and her husband had broken down and as well as the contents of the applications for the intervention orders, the Tribunal considers it is plausible that in light of the applicant's limited English and her apparent inability to use a computer as well as the timing of the provision of this information to the Department, her cousin and/or her husband were assisting her with her application for a protection visa and forwarded these documents to the Department on her behalf. However, the applicant’s evidence is that that the documents provided to the Department were not genuine. The Tribunal considers that the documents were provided by the applicant with the assistance of her cousin and/or her husband and does not accept the applicant's evidence that she did not know who or why these had been provided to the Department. The Tribunal bases this conclusion on the sequence of events, that is the interview with the Department, the applicant's request to her mother to provide additional documents to support her application, the provision of the additional documents to the Department after the interview which included a letter with the applicant's signature, the subsequent breakdown of the relationship with the applicant's cousin and her husband and the contents of the applications for the intervention orders provided to the Tribunal.
The applicant has not been able to provide any evidence that her relationship with [Mr A] is genuine or continuing. The applicant was given the opportunity to provide further evidence after the hearing and she provided a letter from a neighbour which is undated and which refers to his having heard a disturbance but he states that the people he saw making the disturbance left before he could call the police. He then states he spoke to the applicant's parents and was told about a relationship she was having with a Muslim man and that his parents are politically influential and therefore they were not able to negotiate an arrangement between both families. He refers to threats having been made several times and the applicant having to be sent away. He gives no indication as to the date this event occurred and he did not witness any altercation between the applicant's family and the men who attended the house and was later told the reason for it. The applicant also provided some photographs of items being strewn in a hallway but did not offer any explanation as to when these were taken and what they were supposed to represent. The applicant provided what looks like a police report to the Malaysian police dated [date] January 2014, but did not provide a translation for this as requested, the Tribunal was therefore unable to assess the importance of this document. The Tribunal has considered this additional information but in light of the doubts it had about the applicant's credibility concluded that it could not give much weight to this.
While the Tribunal accepts as plausible that a relationship between a young woman who is a Hindu and a young Muslim man may not be acceptable to their families due to religious difference and societal discrimination in Malaysia against Hindus according to country information, there has been little evidence provided to support that such a relationship is ongoing or still exists. On the applicant's own evidence the documents in support of her application were not genuine, although she has denied that she provided these. The available evidence indicates that the applicant's boyfriend’s father may have threatened the applicant in order to stop the relationship with his son, but there is no credible evidence in the Tribunal’s opinion point to a conclusion that the applicant or her family have ever been harmed, threatened or assaulted in the manner as claimed. There is no corroborating evidence before the Tribunal that the applicant's boyfriend’s father has employed a gang to threaten her or her family. The letter from her neighbour provided to the Tribunal after the hearing, confirms there was an altercation but this neighbour does not have knowledge of who these men were and he does not indicate when the event he witnessed took place. The applicant's claim that the police failed to interfere in an alleged assault and threat to her and her family’s safety is contrary to the country information referred to earlier.
In addition, the applicant's evidence that the only alternative for her was to flee Malaysia entirely without considering other alternatives such as relocation was not persuasive, particularly in light of the lack of evidence regarding an ongoing relationship and the harm she has claimed to have experienced. The Tribunal has also considered the applicant’s evidence at the hearing that she had never experienced any discrimination personally in Malaysia apart from the claimed threats from her boyfriend’s father.
The Tribunal concludes after considering all the available evidence before it that there is no real chance that the applicant will suffer serious harm amounting to persecution for a Convention reason in the reasonably foreseeable future should she return to Malaysia.
The Tribunal must also consider whether 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 she will suffer significant harm. In light of the findings above, in that the Tribunal does not accept the applicant’s reason for leaving Malaysia was because of threats received because of her religion as a consequence of a claimed relationship with a Muslim man, the Tribunal does not accept there is a real risk that the applicant will suffer any form of significant harm at the hands of [Mr A]’s father or anyone else if she returns to Malaysia. As a result, the Tribunal is not satisfied 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 she will suffer significant harm.
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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
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 is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

100. 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
101. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Sophia Panagiotidis
Member

‘Chinese and Indian Malaysians Feel Racial Discrimination’ 2008, The New Paper, 29 April Accessed 30 August 2012

[2016] AATA 4913

24 June 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness