1416093 (Refugee)

[2015] AATA 3965

1416093 (Refugee) [2015] AATA 3965 (22 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416093

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Penelope Hunter

DATE:22 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 22 December 2015 at 4:51pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are a husband and wife, who claim to be citizens of Malaysia. They applied for the visas [in] March 2014 and the delegate refused to grant the visas on [in] September 2014. In their claim to the Department of Immigration and Border Protection (the Department) the applicant wife claimed to fear harm in Malaysia as she is from a poor family and is of a different religion to the applicant husband. She claimed to fear harm from her mother-in-law.

   RELEVANT LAW

3. 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.

4. 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).

5. 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.

6. 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’).

   MINISTERIAL DIRECTION

7. 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. The Tribunal has taken into account the Department of Foreign Affairs and Trade (DFAT) Country Report Malaysia, dated 3 December 2014, to the extent that it is relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

8. The Tribunal has before it the Department file in relation to the Applicants. The Tribunal also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.

   Application to the Department

9. In her application, the applicant wife states that she was born in the town of Selangor, Malaysia on [date]. She does not list any ethnicity or religion in her application form. The applicant can read and write Cantonese, Mandarin and English and speak both Cantonese and English. She married the applicant husband [in] 2007 in [Malaysia]. The applicant arrived in Australia [in] May 2008. She departed Australia [in] March 2009 and returned [in] April 2009, and then again [in] January 2011, returning [in] May 2012. The applicant records that she has [number] years of education, [in] Malaysia and [number] years study [in Australia]. She lists her profession as [occupation].

10. The applicant husband was born on [date]. No religion or ethnicity is listed for him in his application form. He can speak Mandarin, Cantonese and English. The applicant husband first arrived in Australia [in] May 2008. He also departed Australia [in] March 2009 and returned [in] April 2009, and then again [in] January 2011, returning [in] May 2012. He has [number] years of education, [in] Malaysia and [number] years of study [in Australia] from January 2011. His occupation is listed as [occupation].

11. The applicant wife and husband have two [children], born [on dates]. Their children reside in Malaysia.

12. In her application form the applicant stated that she had experienced harm in Malaysia from her mother-in-law as they have different religions. She claimed that she will be parted from the applicant husband if she is to go back to Malaysia and would be unable to practice her own religion freely. In her application form the applicant stated that the authorities in Malaysia could protect her if she went back and stated that the harm was between her mother-in-law and herself, she did not think it was from the country, and referred to details in her personal statement.

13. In a statement filed with their Protection visa application, the applicant wife set out her claims which are summarised as follows;

    ·    The applicant is from a Buddhist family. In September 2005 she met the applicant husband and they started a relationship. The applicant husband’s mother was Christian and she wished for his partner to be of the Christian religion. Due to this religious difference their relationship was hidden from his mother.

    ·     After 6 months both of the applicants’ parents found out about their relationship. The applicant husband’s mother fought against the relationship for two reasons. Firstly because the applicant wife was from a poor family and secondly because the applicant wife was Buddhist. The applicant husband is the youngest [and] the only son in the family. His mother wished for him to find a girl who believed in Christianity and who was from a rich family to help his career.

    ·    In May 2007, the applicant wife found out she was pregnant. The applicant husband’s mother had to agree to their marriage registration after their [child] was born on[date].

    ·    For 5 months after her first [child] was born the applicant wife was living with her mother while her [child] stayed with the applicant husband’s family. This was because of the different religions and the applicant husband’s mother cared for her [child].

    ·    The applicant husband decided to take the applicant to Australia in May 2008 so they could be happy.

    ·    In July 2010 the applicant wife was pregnant with her second [child]. When they announced the news to the applicant husband’s family, his mother was upset and she did not allow the applicant wife to stay at the applicant husband’s home in Malaysia. The applicant wife therefore remained in Australia until she was more than six months pregnant and then she returned to her family home in Malaysia to give birth to her second child on [date]. While she remained in Malaysia she rushed between her parent’s home and the applicant husband’s family home. The applicant husband’s mother put pressure on the applicant wife to divorce the applicant husband.

    ·    The applicant husband did not want the applicant wife worrying so he brought to Australia again in April 2012. In April 2013 the applicant husband’s mother brought their [children] to Australia and during this visit she gave the applicant wife a hard time although the applicant wife was trying to improve the relationship.

    ·    The applicant wife and husband are applying for protection in Australia because they are persecuted due to their religion. It was inhuman persecution for the applicant wife and husband to not be allowed to live together although they love each other, in Malaysia. The applicant husband’s mother has persecuted them mentally.

14. The applicant provided a copy of the delegate’s decision [in] September 2014, with their application for review to the Tribunal. The Tribunal has listened to an audio recording of the delegate’s interview and is satisfied that the decision contains and accurate summary of the applicant wife’s evidence provided at the interview. The delegate found that the claims by the applicant wife were not credible and that she had no fear of harm for a convention related reason.

    Application for Review

15. The Tribunal received an application for review of the delegate’s decision on 25 September 2014.

16. The applicant wife appeared before the Tribunal on 14  December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent.

17. The Tribunal discussed with the applicant wife her experiences in Malaysia, her relationship with her mother-in-law, past instances of harm and her fear of returning to Malaysia. Where relevant the Tribunal has set out the evidence provided by the applicant wife below.

    FINDINGS AND REASONS

    Country of Nationality

18. The applicants have consistently claimed that they are citizens of Malaysia, they have provided to the Tribunal and the Department a copy of their passports. There is no contrary information concerning their identity or nationality. The Tribunal finds that Malaysia is their country reference for the purposes of assessing their claims.

    Third Party Protection

19. There is nothing in the evidence to suggest that the applicants have the right to enter and reside in any country other than Malaysia. The Tribunal therefore finds that they are excluded from Australia’s protection by s.36(3) of the Act. The Tribunal also finds that Malaysia is the applicants’ receiving country for the purposes of s.36(2)(aa).

    Claims

20. The applicants claim to fear harm in Malaysia from the applicant husband’s mother as they are of a different religion, and they fear the applicant husband’s mother will force them to divorce. The Tribunal has concluded that the application should be affirmed for the following reasons.

21. The Tribunal accepts that the applicant wife and applicant husband are married. The applicant wife gave evidence that the both she and the applicant husband are Buddhists. The Tribunal accepts this claim. The Tribunal accepts the evidence of the applicant wife that her mother-in-law has adopted the Christian religion.

22. The Tribunal also accepts that the applicant wife does not have a good relationship with her mother-in-law, who would like the applicant wife to convert to Christianity. On the evidence of the applicant wife, the Tribunal finds that the applicant husband’s Buddhism has not affected his relationship with his mother. The applicant wife did not present any evidence that the applicant husband had been subjected to any harm as he was not Christian, nor that his mother had attempted to convert him to Christianity or harm him for this reason. It was claimed that the applicant husband’s parents had provided financial support for the applicants in Australia since 2008, they have also visited and brought the applicants’ children to visit them in Australia on at least four separate occasions. Additionally the applicant husband’s mother wishes for the applicant husband to live with her if he returns to Malaysia. The Tribunal finds that the applicant husband is not at risk of harm from his mother because he is a Buddhist.

23. The applicant wife stated that she had no fear of the authorities or the government in Malaysia. She has further stated in her application that she believes that the authorities can protect her. There is no independent evidence before the Tribunal to suggest that the Malaysian authorities would withhold protection from the applicant wife. That her fear only related to her mother-in-law. Her father-in-law did not oppose her marriage, in fact she gave evidence that he supported the applicant wife at times in disputes with her mother-in-law. Her father-in-law was also Buddhist.

24. The Tribunal further does not accept that the treatment the applicant wife has received from her mother-in-law amounts to serious harm as required by s.91R(2) of the Act. The applicant wife confirmed that her mother-in-law had never threated to end her life, physically harassed or ill-treated her, denied her access to basic services such as food or shelter or threatened her capacity to subsist. The applicant wife claimed that her mother-in-law had subjected her to mental torture. She claimed that there were a lot of conflicts as she did not want to become a Christian, there had been verbal altercations about this issue, and she would not stay at her mother-in-law’s home rather return to her family home instead. Additionally she claimed that sometimes when her children are staying with her mother-in-law she would not let the applicant wife contact her children. The applicant wife confirmed that she was able to decide whether or not her children were cared for by her mother-in-law. Furthermore, despite the fact that she stated in her written claims she was unable to stay with her mother-in-law, in her evidence to the Tribunal she gave evidence of experiences when she stayed in her mother-in-law’s home. Her evidence was that she would leave her mother-in-law’s home voluntarily in order to avoid discussions about Christianity. The applicant wife claimed torture also arose because her mother-in-law talked to the applicant husband about the applicant wife’s shortages. It was claimed that the mother-in-law would force the applicants to divorce. The Tribunal does not accept that the claim by the applicant wife that this is torture. It is accepted that this experience was unpleasant but the evidence does not demonstrate that the treatment that the applicant wife has received amounts to serious or significant harm. The wife applicant does not claim to have suffered any psychological injuries requiring hospitalisation or medical treatment of any kind. The applicant wife told the Tribunal that she never called the police and never needed medical assistance.

25. The applicant wife has not changed her religion, despite periods of residence in her mother-in-law’s home. She told the Tribunal that she does not wish to change her religion. She was unable to explain satisfactorily why it was important to her mother-in-law that the applicant wife  change her religion and not the applicant husband or her father-in-law. The Tribunal does not accept that as a possible explanation because she married the applicant husband, the applicant wife should follow after her mother-in-law. Although her mother-in-law has been involved in their care, the applicant wife confirmed that her [children] remained Buddhists, despite concerns that they may be converted. As her mother-in-law has been unable to change the religion of any members of her immediate family, despite opportunity to do so, the Tribunal does not accept that there is a real chance that the applicant wife will be forced to change her religion if she returned to Malaysia.

26. In her written statement the applicant wife had claimed her poor family background also caused her mother-in-law to be against her. The applicant wife was asked about this at the hearing. She did not provide any reason for fear on this basis, and claimed that her mother does not work and her father only worked casually. The applicant wife had to work in her school holidays.

27. The applicant claims that her mother-in-law will force the applicants to divorce if they return to Malaysia. She was unable to explain to the Tribunal how this would occur. The applicant wife claimed that her mother-in-law could force them to divorce as sometimes when they stay with her she speaks ill of the applicant wife, that she wanted them to go to the divorce registry otherwise she would say nasty words. The evidence does not support the claim that the applicants will be forced to divorce. The applicant wife confirmed that she was still in a relationship with the applicant husband, that despite the disapproval of her mother-in-law he had not taken any steps to divorce her since 2007, neither did he intend to do so. Furthermore the applicant husband’s parents had not withdrawn their financial support to the applicants since their marriage in 2007.

28. The applicant acknowledged to the Tribunal that she could avoid conflict with her mother-in-law by not living in the same home. The applicant further agreed that it would be reasonable for the applicants to relocate to another city in Malaysia, such as Kuala Lumpar, Kajang, George Town or Ipoh, away from her mother-in-law. However she claimed that she really liked it in Australia, it was more relaxed and not as fast paced as Malaysia. The applicant husband has experience working as [occupation], the applicant wife has experience working as [occupation] and she also claims to have completed [qualification] in Australia. The Tribunal is satisfied that they would have the skills and experience to obtain employment and support themselves in Malaysia.

29. Other than her relationship with her mother-in-law the applicant wife has not raised any claims on any other convention ground. On the basis of the evidence before the Tribunal it is not satisfied that the applicant wife has a fear of serious harm from her mother-in-law, that the fear is well-founded or that the applicant wife could not reasonably avoid the harm claimed, were she to return to Malaysia in the reasonably foreseeable future.  

30. The Tribunal then went on to consider whether the applicant wife met the complementary protection requirements of s 36(2)(aa) of the Act.

31. The Tribunal does not accept that the conduct of the applicant wife’s mother in law amounts to significant harm. The applicant confirmed that her mother-in-law has not threatened to deprive her of her life or carry out the death penalty. She claimed that the conduct amounted to verbal torture and cruel or inhuman treatment. The Tribunal is not satisfied that from the evidence provided by the applicant that the pain and suffering is severe, within the meaning of the Act or with regard to the Guidelines.[1] The Tribunal is not satisfied that the applicant has suffered significant harm in the past, and the Tribunal is also not satisfied that the applicant wife cannot or will not return to Malaysia because she has a fear of significant harm.

    [1] Department of Immigration, PAM3 ‘Complementary Protection Guidelines’, revised 21 May 2015

32. The Tribunal is not satisfied that there is any other evidence before it to suggest that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant wife being removed from Australia to Malaysia, there is a real risk that the applicant wife will suffer significant harm for any other reason.

    Applicant Husband

1. The applicant husband did not appear at the hearing. He has not raised any separate claims to the applicant wife. The Tribunal finds on the evidence that the applicant husband is also a Buddhist. The applicant wife did not claim at the hearing, or in her application for protection, that the applicant husband had any fears of his mother nor that she would attempt to change his religion. As set out above the Tribunal is not satisfied that the applicant husband’s mother would force him to divorce the applicant wife. The applicant wife claimed that the applicant husband would suffer harm because he would experience a dilemma and be caught up in the conflict between the applicant wife and his mother. The Tribunal does not accept that there is a real chance or real risk that this conflict would cause serious or significant harm to the applicant husband.

2. For the reasons given above the Tribunal is not satisfied the applicant husband has a well-founded fear of persecution for a Convention reason in Malaysia.

3. For the reasons given above the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant husband being removed from Australia to Malaysia, there is a real risk he will suffer significant harm.

   CONCLUDING PARAGRAPH

4. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

5. The Tribunal affirms the decision not to grant the applicants Protection visas.

   Member