1420685 (Refugee)

[2016] AATA 3689

1420685 (Refugee) [2016] AATA 3689 (12 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420685

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Paul Windsor

DATE:12 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 12 April 2016 at 3:30pm

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] August 2014 and the delegate refused to grant the visa [in] December 2014.

3. The applicant applied to the Tribunal for review of this decision on 17 December 2104.

4. The applicant appeared before the Tribunal on 8 April 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.  His representative did not attend the hearing.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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).

8. 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.

9. 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’).

   Mandatory considerations

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal took 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

11. The applicant claims to be a citizen of Malaysia who was born in Perak Sate, Malaysia on   [date].  According to his Protection visa application he speaks, reads and writes Cantonese.  He did not indicate his ethnicity or religion in his Protection visa application, or indicate his marital status.  His application indicates that he departed Malaysia [in] November 2012 and arrived in Australia [in] December 2012, entering Australia as a Visitor.[1]

    [1] See folios 19-31 of Departmental file [number].

    Summary of claims from the Protection visa application

12. The applicant’s claims from his Protection visa application lodged [in] August 2014 can be summarised as follows[2]:

    ·He left Malaysia for holiday and to escape harm from Islamists.

    ·He was in a relationship with an Islamic girl who became pregnant.  After her family found out she was pregnant they approached him and sought to force him to marry her.  When he refused he was kidnaped and tortured.  They have been looking for him since he managed to escape.

    ·He fears for his life from his ex-girlfriend’s family and their associated Islamic extremists if he returns to Malaysia.  This is because the safety of his life was threatened if he did not convert to Islam and marry the Islamic girl with whom he had a relationship.

    ·He does not think that he could get assistance from the police as most of the policemen are Islamic.  If the police get involved he will sustain further harm.

    [2] See folios 23-27 of Departmental file [number].

    Evidence from the hearing of 8 April 2016

13. At the hearing on 8 April 2016, the applicant indicated that he was born in [Town 1] in Perak state Malaysia but had lived in the capital, Kuala Lumpur, for more than 10 years before coming to Australia in November 2012.  He grew up and did his schooling in [Town 2] in Selangor state, where his mother still lives.  His father is deceased.  He has [family composition].  [One sibling] is [an occupation] and lives in [another country].  [Relative A], who is an Australian citizen, lives in Kuala Lumpur (KL) and works in [an industry].

14. The applicant worked in Malaysia as [an occupation].  He made a good living from that work.  He lives in [City 1] in Australia but has not worked in Australia because his visa does not permit him to work.  He is supported by his [Relative A].  His [Relative A] lives in Melbourne when [in] Australia but the applicant does not know where in Melbourne his [Relative A] lives.  He also has [a different relative] in Melbourne.  He chose to live in [City 1] because it is cheaper than Melbourne.

15. The applicant said that he came to Australia because he came to know a Malay girl and she became pregnant to him.  He commented that, in Malaysia, you can’t have a Malay and a Chinese with one Muslim and one Buddhist, marrying as a couple.  Her father wanted to talk to him about this and wanted him to convert to be a Muslim.  This would also mean he would have to change his surname from [name] to a Muslim name such as ‘Mohammad bin ….’, and he did not want to have anything to do with that.

16. The applicant claimed that his girlfriend’s father threatened to report him to the police and subsequently to drag him before the Islamic court.  He was in love with this lady and it was not that he did not want to negotiate, but her father insisted that he should face the Islamic court.  He did not want to do that as anything can happen, as was the case with (former deputy PM) ‘Anwar’, who was in jail for more than 10 years.  Malaysia is a country without justice unless you have influence and money and you can be detained without charge.  It is very difficult to survive in Malaysia under such circumstances.

17. About a year ago, his ex-girlfriend’s father went to seek him out in his home town, and went to see his mother as well.  This was just after he left for Australia.  His mother told him over the phone. The Tribunal sought to clarify with the applicant how many times his ex-girlfriend’s father went to his home town, when this occurred and whether her father met with his mother.  The applicant clarified that his mother told him his ex-girlfriend’s father came once, to survey the scene.  The applicant said that this was after he came to Australia and that over a period of 6 months his ex-girlfriend’s father still went to look for him in [[Town 2].  The Tribunal confirmed with the applicant by checking his passport that he entered Australia on [a date in] November 2012, and clarified with the applicant that he was stating that his ex-girlfriend’s father went to [Town 2] about 6 months after the applicant had come to Australia.  He said his mum called him and said his ex-girlfriend’s father had come to look for him.  The tribunal queried whether this would have been in May or June 2013.  The applicant replied that his mother only saw him once, other than that she does not know, as she goes to work every day.  When the Tribunal asked the applicant when his ex-girlfriend’s father went to see his mum, he said that his ex-girlfriend’s father didn’t talk to his mum directly, he drove a car around the block, looking out for the applicant and that ‘maybe’ he had even walked around.  The Tribunal asked the applicant whether his mother had ever met his ex-girlfriend’s father to which he replied ‘no’.  The Tribunal then asked the applicant how his mother would know what his ex-girlfriend’s father looks like.  The applicant replied that he took his girlfriend to see his mum.  When asked how that would mean that his mother would know what his ex-girlfriend’s father looks like the applicant said he didn’t know but his mother had said that there was a guy who went round and round the block and she tried to figure out who it was and deduced it could be his ex-girlfriend’s father.

18. The applicant said that he met his ex-girlfriend on Facebook, more than a year before he came to Australia.  He thinks it may have been sometime around February or March 2010.  He was playing with his phone and was on Facebook and entered her as a ‘friend’.  When asked how he came across her he said that he looked at the details, where she was living, how she looked and requested her to be his ‘friend’.  The Tribunal asked the applicant why he would ‘friend’ with a Muslim girl that he did not know.  the applicant replied that ‘such is life’, you develop a passion for somebody and subsequently we got together.  The Tribunal sought to question the applicant further regarding what attracted him to this girl and how he developed a ‘passion’ for her.  He said that he proposed a date to see her, they went out and went around.  The Tribunal asked him why he proposed a date and whether this was what he did with Muslim girls he saw on Facebook.  The applicant replied that small towns are more reserved but in a bigger town you can date a Muslim girl and no-one will notice.  The Tribunal commented that the applicant had not answered the question about what attracted him to this girl.  The applicant said it only takes [time] from his home town to KL and she asked to go out.  When again asked by the Tribunal what attracted him to this girl the applicant replied that she is very pretty.  When asked if he had been out with Muslim girls before he replied ‘no’.  When asked if she wore hijab, he said ‘no’ and commented that she’s an open girl, not reserved.  When asked how old she was he replied that she would be in her [age range] at the moment, approximately.  The Tribunal asked the applicant whether it was strange for a [age] year old Muslim girl to go out with a [older age] year old Chinese man he replied that he made money and bought things for her.  When asked why he thought she went out with him in the first place given they do not seem to have anything in common the applicant replied that in Malaysia a lot of Muslims like the Chinese.

19. The Tribunal asked the applicant how they first came to go out somewhere.  The applicant replied that he took her to [a resort], where the casinos are.  He then commented that in Australia his health was not so good, that he has [some medical conditions], and is taking a lot of medications.  The Tribunal asked the applicant to explain how he went from ‘liking’ this girl on Facebook to having a date.  He replied that they chatted on Facebook, came to know each other, and she proposed that they go out.  He commented that she’s female, he’s male and if the opposite sex proposes you go out, what do you think?  The Tribunal asked the applicant what they chatted about on Facebook.  The applicant replied that it was just general chit chat, whether she had her meals, had done her homework.  The Tribunal asked whether she was a schoolgirl at the time.  The applicant replied that she was, and was in [a range of school grades] when they met.  When asked how old she was when they met he replied probably [age range].  The Tribunal asked the applicant why he thought she would want to go out with someone so much older.  The applicant replied that it is a strange thing but when his father passed away he was in his 60s but his mother was in her 40s.

20. The applicant said they did not go to the casino when they went to the [resort] as Muslims are not allowed in there, but there is a resort there with shopping.  He indicated that the girl lived with her parents but he did not go there or meet them.  He and the girl would arrange a place to meet.  When asked whether he ever thought that there might be consequences in having a relationship with a Muslim girl, the applicant said ‘no’, he was happy and never thought of such things.  The Tribunal asked what other dates they went on.  The applicant replied that they just did things around KL.  When asked what sort of things he said they went shopping and had meals.

21. The Tribunal asked the applicant when the relationship first became a sexual relationship.  The applicant replied that he really had to think hard about that because it was many years ago.  The Tribunal asked about how long it was after the relationship began.  The applicant replied that it was about two months.  When asked where they had sex, he said in a hotel or motel.  When asked why not at his home, he said he couldn’t take her to mum’s place.  When the Tribunal clarified that it was referring to where he lived in KL, the applicant said he lived in a rooming house with other tenants and he did not want the landlord to be unhappy.  The Tribunal asked the applicant if either of them used contraception.  He said ‘no’.  The Tribunal queried the applicant that he must have known that she would get pregnant.  The applicant said he forgot about all of that when he was excited and that it was an accident.  The Tribunal suggested to the applicant that he must know how people get pregnant.  He replied that he did not think about it back then.

22. The Tribunal asked the applicant how and when he found out his ex-girlfriend was pregnant.  He commented that she told her father and her father came to see him.  The Tribunal asked the applicant why his ex-girlfriend would not have told him first.  He said he did not know.  He said she brought her father and two brothers along to see him at a restaurant.  He said it was sometime in 2011 but he can’t remember when in 2011.  The Tribunal suggested to the applicant that it is a pretty significant event and asked whether it was early in 2011.  He replied that it was quite close to the end of 2011 or the start of 2012 but it has been a few years and he didn’t record the time.  The Tribunal asked the applicant whether his ex-girlfriend had the child.  He replied that he has ‘no idea’.  He said that when her father came to see him her father insisted that the applicant must convert to Islam and must marry his daughter, so he ran away.  The Tribunal suggested to the applicant that she would have had the child around September 2012, before he ran away in November 2012.  He replied that he has no idea whether she had the child and that, after all this, he changed his mobile phone and she has no way to contact him. He indicated that he had no contact with his ex-girlfriend after he found out she was pregnant.  When asked whether he was interested in whether she had the child, the applicant said that when her father and brothers came they threatened to kill and assault him, so he was not interested at all.  He was given no choice but to become a Muslim.  He indicated that when she called him and invited him to meet her at the restaurant he did not know her father and brothers would be there.  The moment he went in, they raised that she was pregnant and said he must convert.  She said nothing but sat there crying.  He commented that her brothers wanted to be violent with him.  He knew this because when he said he wanted to consider the matter, the brothers said what more do you need to consider, and their aggressive manner carried a threat of violence.  The applicant said he indicated he had ‘a thing about this’ and he just left, walked away and then he changed his phone number.  When asked what happened after that, the applicant said that his ex-girlfriend did not know where he lived in KL, but she did tell father where his home town is.  After a while he decided to leave for Australia and then he applied for a Protection visa.

23. The Tribunal queried the applicant regarding why, if this incident occurred in late 2011 or early 2012, he did not come to Australia until November 2012.  The applicant replied that he had to get money and plan for this.  He indicated that he did not know who to come to and does not speak English.  The Tribunal asked the applicant whether his [Relative A] could have assisted him.  The applicant replied that his [Relative A] does not stay in Melbourne but flies all over the place.

24. The Tribunal asked the applicant if he went to the Sharia court.  He said his ex-girlfriend’s father wanted to take him there but he did not go.  The applicant commented that if he had gone to the Sharia court he would not be here now.  When asked if anything else happened to him in Malaysia, the applicant indicated that nothing further occurred.  He said that since he came to Australia he does not use Facebook anymore.  He reiterated that his mum told him that it looks like someone is seeking out for him and had been going round and round the block.

25. The Tribunal asked the applicant about the statement in his application that ‘upon refusing the proposal’ that he should marry his pregnant girlfriend he ‘was kidnapped and tortured’.  The applicant replied that he was not kidnapped.  He said what he meant was he was afraid this would happen, because in Malaysia Muslims can do anything.  In this regard he commented see what has happened to Anwar and now with Najib.  The Tribunal asked the applicant if he prepared the statement in his application because it is pretty clear in stating that he was kidnapped and tortured.  The applicant commented that he narrated it, but it was written by someone else.  The applicant commented that they threatened him but he didn’t say that they kidnapped him.  The applicant added that in Malaysia kidnapping is a serious crime and if he had been kidnapped he wouldn’t be here.  The Tribunal discussed with the applicant that some of the things he has said at the hearing are different to what is in his statement and that the Tribunal might find that what he is telling the Tribunal is not credible or not true.  The Tribunal raised with the applicant that his statement said he was kidnapped, but now he is saying he was not kidnapped, that the Tribunal had thought he was saying earlier that he had been taken to the Sharia court, but he was now saying that he was only threatened with this, and that he had suggested earlier that his ex-girlfriend’s father went to see his mum, but then said his ex-girlfriend’s father didn’t speak to his mum.  The Tribunal suggested to the applicant that these matters, plus his general vagueness, might cause the Tribunal to find that he has not provided a true account of what happened to him in Malaysia.  The applicant replied that he knows it sounds contradictory but he just narrated a story to a lawyer.  He added that he can’t understand English and the lawyer wrote it down in English.  He said everything he has said at the hearing is the truth.  The applicant added that he wasn’t kidnapped and that kidnap is a heinous crime which carries the death penalty, so they are afraid to use kidnap as a measure to force him to do what they wanted him to do.

1. The Tribunal raised with the applicant that he came to Australia in November 2012 and his visa expired in February 2013, but he did not apply for a Protection visa until [date] August 2014.  The Tribunal asked why he delayed for 20 months if he was fearful.  The applicant replied that it was because it was very expensive to apply.  The Tribunal commented that the fee to lodge his application was $35 and that he did not have to go to a lawyer.  The applicant replied that he paid $6500 and that he does not work.  He commented that he asked his [Relative A] to sponsor him for a visa but his [Relative A] refused, saying that he has no qualifications.

2. The Tribunal also asked the applicant why he did not attend an interview with the department.  He said he does not know what happened, he does not use email and did not receive a letter from the department.  The Tribunal suggested that his adviser who is representing him would have received the letter from the department advising of the opportunity to attend an interview.  The applicant replied that his adviser told him that he did not receive anything, and advised him not to worry that his visa has expired as they can arrange a visa for him.

3. When asked whether he had any further comments, the applicant asked whether, if he is granted the visa to stay, he can use that to go back to Malaysia.  The Tribunal asked the applicant why he was asking if he can go back to Malaysia, when he is telling the Tribunal that he has a fear of returning to Malaysia.  The applicant replied that his mum is getting old, and as a son, it is his duty to see her, and he has been in Australia for three years or so.  He added that he does not necessarily have to go back to his home town, he can go to Thailand near the border so he can see his mum.

   Findings and reasons

4. The issues in this review are whether there is a real chance that, if the applicant returns to Malaysia, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

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

   Delegate’s decision

6. The decision record of the delegate of the Minister for Immigration and Border Protection[3], provided to the Tribunal by the applicant, indicates that the delegate accepted that the applicant is a citizen of Malaysia.  The delegate indicated that the applicant arrived in Australia [in] November 2012 as the holder of [temporary visa], and remained in the community as an unlawful non-citizen from   [February] 2013 until he lodged his application for a Protection visa [in] August 2014.  The delegate noted that on [a date in] August 2014, the applicant was sent a letter inviting him to contact the department within seven days to arrange an interview in relation to his application and that no reply had been received from the applicant at the time of decision [in] December 2014.  The delegate found that the applicant’s claims are vague and limited in detail and had not been substantiated. The delegate found the applicant’s claims were not credible and that the applicant did not have a well-founded fear for the purposes of the Refugees Convention.   The delegate also was not satisfied that the applicant faced a real risk of significant harm should he be removed from Australia to Malaysia.

   Applicant’s identity

   [3] See folios 4 of Tribunal file 1420685.

7. On the basis of the copy of the applicant’s Malaysian passport provided to the Department, the Tribunal finds that the applicant is a citizen of Malaysia[4].  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Malaysia.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Malaysia, the Tribunal also finds that Malaysia is the applicant’s ‘receiving country’ for the purposes of s.36(2)(aa).

   Assessment of claims

   [4] See folio 33 of Departmental file [number].

8. The Tribunal has concluded that the key elements of the applicant’s claims are not true.  The Tribunal finds that the applicant did not have a relationship with an ethnic-Malay Muslim girl that resulted in her getting pregnant and her father and brothers threatening the applicant that he must convert to Islam and marry the girl.  The Tribunal does not accept that the applicant was threatened that he would be taken to an Islamic or Sharia court, that he was kidnapped and tortured or threatened with kidnap and torture or other harm, or that his claimed ex-girlfriend’s father went to his home town of Sabak Benam looking for him, or that his claimed ex-girlfriend’s family and their associated Islamic extremists will harm him if he returns to Malaysia.  The Tribunal has reached this conclusion for the following reasons, taken cumulatively.

9. The Tribunal found that the applicant was vague and evasive in giving his account of what he claimed happened to him in Malaysia.  As detailed in paragraphs 18-20 above, he provided brief answers to the Tribunal’s questions and needed to be prompted repeatedly to provide detail and to answer the questions asked.  For example, the Tribunal considered that the applicant could not provide a convincing account of why he asked an ethnic-Malay Muslim schoolgirl, who was approximately [number] years younger than him, to be his ‘friend’ on Facebook, and why she should be interested in being his Facebook ‘friend’, or how they came to decide to meet and go out together.  At one point, when the Tribunal commented that he had not answered the Tribunal’s question regarding what attracted him to this girl, the applicant responded that it only takes an hour from his home town to KL and she asked to go out.  After repeated questioning the applicant said that while he had not ‘friended’ or sought to date other Muslim girls he was attracted to this girl because she was ‘very pretty’.  When asked what they talked about on Facebook, he said general chit-chat, whether she had had her meals and had done her homework.  The Tribunal does not consider that such conversations would be likely to encourage a young ethnic-Malay Muslim woman to want to meet a much older ethnic-Chinese Buddhist man.  The Tribunal suggested to the applicant that they seemed to have nothing in common.  The Tribunal found the applicant’s answer, that in Malaysia a lot of Muslim’s like Chinese, was a generalisation which did not focus on the details of their particular relationship.  When the Tribunal asked the applicant how they first came to go out somewhere, the applicant spoke about where they went, stating that they went to the [resort] where the casinos are.  He then changed the subject to issues to deal with his health.  When asked what they did on dates the applicant again spoke in generalised terms, stating that they just did things around KL.  When asked what sort of things they did he did not provide specific examples but said they went shopping and had meals.  Based on the applicant’s responses to questions regarding how the relationship began and developed, the Tribunal was not satisfied that the applicant had a relationship with [an age range] year old ethnic-Malay Muslim woman in Malaysia.

10. The applicant had to be prompted before he could comment on when the relationship became a sexual relationship, stating initially that it was a long time ago.  The Tribunal does not accept that the applicant would not be able to comment on this given the centrality of the claimed relationship, and in particular his claim that the girl became pregnant, to his claims for protection.  While the applicant said they had sex at a hotel or motel, he claimed that neither used contraception.  The Tribunal queried why he did not use contraception and he replied that he forgot all about it because he was excited and that it was an accident that the girl got pregnant.  The Tribunal does not accept this account, given the circumstances of the liaisons, where they went to a hotel or motel to have sex, rather than had sex on an impulse.  As the Tribunal discussed with the applicant, he must have known that she would get pregnant.  He replied that he did not think about it back then.  The Tribunal found that the applicant’s responses to questions regarding the sexual aspects of the claimed relationship supported the Tribunal’s conclusion that it was not satisfied that the applicant had a relationship with a [age range] year old ethnic-Malay Muslim woman in Malaysia.

11. The Tribunal also did not find convincing the applicant’s account of what happened once the girl allegedly became pregnant.  The applicant said that the girl did not tell him she was pregnant, and did not tell him that her father wanted to meet him, but arranged to meet with the applicant at a restaurant, without telling the applicant that her family members would be there.  The applicant said that he did not agree with the demands of the girl’s father that he convert to Islam and marry her, and while her brothers were very angry and aggressive in their disposition, and he claims her father threatened to take him to an Islamic court, he simply got up and walked away from the restaurant.  He said that the girl did not know where he lived in KL and he changed his phone number, so he did not hear from her or her family again.  The Tribunal finds it implausible that in these circumstances, where he claimed the girl’s family were aggressive and threatening, the applicant would be able to simply walk away from the restaurant, without the girl’s family at least obtaining some personal and contact details from him that would enable them to follow him up, or without them physically confronting him or restraining him to stop him from leaving.

12. The applicant claimed that his mother advised him that his ex-girlfriend’s father had come to his home town of Sabak Benam, where his mother lives, looking for him.  He said that he had taken his ex-girlfriend to meet his mother in Sabak Benam in the past.  The Tribunal also found the applicant’s evidence in relation to this matter to be vague and evasive.  Initially the applicant said that, about a year ago, his ex-girlfriend’s father went to seek him out in his home town, and went to see his mother as well.  He then said that this was just after he left for Australia. As outlined in paragraph 17 above, the Tribunal questioned the applicant closely to clarify how many times he was claiming that his ex-girlfriend’s father had come to Sabak Benam, whether his ex-girlfriend’s father had actually met with the applicant’s mother, and when this occurred.  The Tribunal was able to establish that the applicant was claiming that his mother thought that his ex-girlfriend’s father might have come looking for him on one occasion, about six months after he came to Australia, but his mother did not actually meet with his ex-girlfriend’s father, and did not know whether he had come other times because she works every day.  The applicant confirmed that his mother had never met his claimed ex-girlfriend’s father.  When asked how she knew what he looked like, and therefore that the person she said she had seen was his claimed ex-girlfriend’s father, the applicant said his mother had said she saw someone who went round and round the block and she tried to figure out who it could be and deduced it could be the claimed ex-girlfriend’s father.  The Tribunal finds this account to be speculative and implausible, noting that it would have occurred some 16 months after the claimed incident at the restaurant, in the absence of any other reported attempts by the claimed ex-girlfriend’s father or family to locate or contact the applicant.  The Tribunal considers that, if the applicant’s mother did see someone unknown to her driving around the block near her house, there are many other possible explanations for that behaviour, including a completely unrelated person looking for a completely unrelated address.  The Tribunal does not accept that this claimed incident is evidence that supports the applicant’s claim that the girl’s father and/or family, or anyone else, has been looking for him since he managed to escape.

13. While claiming to fear for his safety, the applicant did not depart Malaysia until November 2012, at least 10 months after the time of the claimed incident in the restaurant (in late 2011 or early 2012.  The Tribunal finds this delay is inconsistent with the applicant fearing for his safety in Malaysia.  The Tribunal does not accept the applicant’s claim that he needed this time to get money together and make plans, noting that the applicant has a [Relative A] who is an Australian citizen, from whom he could have sought advice about travelling to and living in Australia.  The Tribunal finds that this delay in departing Malaysia is inconsistent with the applicant having a well founded fear of persecution or being at risk of significant harm in Malaysia

14. The Tribunal also finds that the delay in the applicant applying for a Protection visa, waiting until [August] 2014 after arriving in Australia [in] November 2012, is inconsistent with the applicant having a well founded fear of persecution or being at risk of significant harm in Malaysia.  The Tribunal does not accept the applicant’s claim that he could not afford to apply sooner, noting that, as discussed with the applicant, the fee to lodge a Protection visa application is $35.  The applicant indicated that he asked his [Relative A] to sponsor him for a visa, but his [Relative A] refused, telling the applicant that he has no qualifications.  This comment by the applicant also suggests that the applicant was not looking initially to apply for Protection, but did this as a last resort, to prolong his stay in Australia.

15. The Tribunal also finds that the applicant, once having applied for a Protection visa [in] August 2014, not taking the opportunity offered to him to have an interview with the department to discuss his claims for protection, is inconsistent with him having a well founded fear of being persecuted or being at risk of significant harm in Malaysia.  The delegate’s decision record, provided to the Tribunal by the applicant, indicates that on [a date in] August 2014 the applicant was sent a letter inviting him to contact the department within seven days to arrange an interview in relation to his application, and that no reply had been received from the applicant at the time of the department’s decision [in] December 2014.  The Tribunal does not accept the applicants claim he did not receive a letter from the department.  As discussed with the applicant, this letter would have been sent to his adviser.  The Tribunal does not accept the applicant’s claim that his adviser told him he did not receive anything.

16. Considering the above findings cumulatively, the Tribunal concludes that the applicant does not face a real chance of persecution amounting to serious harm, or a real risk of significant harm, from the father or family of his claimed ex-girlfriend, or from their associated Islamist extremists, or from Islamic courts, or from Muslim police officers, should he return to Malaysia, now or in the foreseeable future.

17. As the Tribunal has found that there is not a real chance that the applicant would suffer persecution in Malaysia, the Tribunal finds that the applicant would not require the protection of the authorities in Malaysia.  Consequently the Tribunal finds that the applicant would not suffer a similar fate to Anwar Ibrahim, and finds that the alleged activities of Malaysian police and authorities in relation to Malaysian Prime Minister Najib Razak are not relevant to the applicant’s circumstances.

    Does the applicant have a well-founded fear of persecution if he returned to Malaysia?

18. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution amounting to serious harm, if he were to return to Malaysia, now or in the foreseeable future.

19. Accordingly, 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).

    Complementary protection

20. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

21. Having regard to the findings of fact set out above, the Tribunal also does not accept that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, now or in the foreseeable future.  The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Paul Windsor
    Member