1421084 (Refugee)

[2016] AATA 1401

1421084 (Refugee) [2016] AATA 1401 (6 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1421084

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Nicole Burns

DATE:6 September 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 06 September 2016 at 11:02am

CATCHWORDS
Refugee – Protection Visa – Malaysia – Interreligious wedding – Where applicant has converted from Hinduism to Islam – Where the applicant has married an Islamic woman – Whether the applicant has a well-founded fear of serious harm – Witness credibility – Vague and inconsistent evidence – Country information does not support claims – Decision 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

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 on 1 July 2014 and the delegate refused to grant the visa on 27 November 2014.

3. The applicant appeared before the Tribunal on 30 August 2016 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations 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).

6. 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.

7. 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’).

8. 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.

9. The applicant is [a particular age] married man from Kuala Lumpur, Malaysia.  His wife and daughter currently live in Malaysia.

10. The applicant presented his claims in his visa application on 1 July 2014 as follows,

    Why did you leave that country?

    I worked at [a particular business] since 2009 to 2013 as [a particular occupation].  I was meet a girl name is [name removed]. That time she work as [a particular occupation] at [a particular business]. I met her every day I met my friend who working same place with her.  His name is [name removed]. We fall in love and decide to marry after 1 month loving when I was story to my family, they never allowed and not accept because I converted to Muslim for marry her.  My family asked me far away from her and relatives too. By her family side her parents never give her permission to marry me after she told them too.  Few days later, when I was in my way to home after work by shortcut way, there got 2 cars and 2 bikes block my way suddenly, they stopped my bike and crash my bike. They warn and blackmail me will never let me alive if I still try to marry her, I get scratch on my back when 2 guys of 8 Malay guys push me to the drain.  I was blue and confuse do not know what to do. I never go to police because it’s a love issue.  About 1 week no call from her.  I call also can’t get. I’m not willing to find her at her home because there was Malays Muslim majority.  After a week I get call from private number and a guy speak to me and black mail leave her if not he will do something hurt on me.  By my love I still try to find her and she was in her home, no work just keep by her parents. I talked to her by phone, we decide to run away from our family and we did it. We ran to...[to a location]. 

    One month living there, it’s my friend’s house.  We don’t know how her family can found us, we get caught and they separate us again.  Our plan for marry was not come true. I go to police, I go to Muslim society but I get nothing, everybody their side because its parents rights for let her marry me.  My friend my family and relatives ask me to forget her.  I really can’t do it, I’m really loved her and she too.  I try to found her.  I found, we speak by phone and decide again to run away.  We ran again to... [a  different location].  It’s a bit far from our state.  We living together and plan to marry.  Her father knew already that we living with our friends house. He try to talk to us by my friends. He told us please come back home, he will arrange our marriage.  She believe her father and me too.  We back, we get married [in] June 2013 at...[Town 1].  My wife get pregnant after 3 months married.  We started to get tourcher by her family and relatives.  We just cool even we get interference in our marriage life and its became serious after she became pregnant.  Her mother siblings and relatives don’t like me because of 1 reason I’m descendant of Hindu even I converted to Muslim already. Her family ask me to divorce her.  I will not do it.  My parents and everyone from my side don’t want help me and also my siblings because I was converted to Muslim.  Her family try to separate us and black mail me if I never divorce, will never come alive and they will take my child born in soon and don’t hope will get back.  Before its happen, me and my wife ran to ...Johor it’s her best friend’s house.  I decide to come to Australia alone after I get know can try to get protection from Australia government who have a humanity and not like Malaysia always racist everywhere.  What I story here is only part of happened. I’m able to tell more in interview to sir.

    Have you experienced harm in that country?

    Yes. I get hurt on head and scratch on back when I fall to big drain.  Pushed and kick by 2 guys.

    What do you fear may happen to you if you go back to that country?

    Will get separate by her family. I love my wife and my baby.  Her family never accept me even I talk to them. They tried to separate us and finds us when we run to other state. After they get know my wife pregnant their turn aggressive.  Her relative, her father’s gang had warn me will never let me alive when get find me.

    Who do you think may harm/mistreat you if you go back?

    I get hurt by her father’s gang. Lot of warn and try to hurt and find me but I get ran from them.  His gang still trying to find me.  Her father and his gang.

    Why do you think this will happen to you if you go back?
    
    

    I get hurt by her father’s gang.  Lot of warn and try to hurt me. Now they don’t know where is me and my wife. They went to my house, go to my friends and warning them too.  Even police also support them.  Malays with Malays. 

    Do you think the authorities of that country can and will protect you if you go back?

    No.  I went to police; police says it’s a family issue.  Police advice me to do what her parent ay and settle down this case. How can we be separate after married, and we are really worried about our [baby].  Her parents said will never let me see or look after my baby in soon.  It’s my baby. 

    I bring this issue to Muslim’s Society.  I asked for help, there also full of Malays.  Yes, I’m Hindu, now I am a Muslim too.  They should be my side but unfortunately I am not a Malay, they talk same.  Because of race I can’t fight for my issue.  Everywhere Malay. 

    [errors in original]

11. The issues in this review are whether there is a real chance that, if he returns to Malaysia, the applicant 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 him 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 the Migration Act.

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

13. The applicant travelled to Australia on a valid Malaysian passport and states that he is a national of Malaysia. He also provided to the Department copies of his Malaysian identity card and a conversion to Islam card issued by the Selangor authorities. The delegate had no issues with the applicant’s identity.  He provided to the Tribunal untranslated copies of his Malaysian birth certificate, marriage certificate and identity card chip information.  The Tribunal is satisfied that he is a national of Malaysia and has assessed the applicant’s claims against Malaysia as his country of nationality and his receiving country.

14. In his oral evidence to the Tribunal the applicant described his problems in Malaysia stemming from his marriage to a Muslim woman, summarised as follows.  He told the Tribunal that he met his wife whilst in Kuala Lumpur through a friend who worked with her (at [a particular business]) in around 2011. They started a relationship in January 2013 and around a week later he was stopped by a number of men on the street near his work who hit him with a [stick], kicked him, pushed him into a drain and told him to stop seeing his then girlfriend.  A couple of hours after this incident the applicant received a telephone call from one of his girlfriend’s brothers ([Mr A]) who threatened to kill him and told him to forget about his sister.  He reported the matter to the police at [Town 1] police station that day and they told the applicant they would call him later, however they did not. 

15. Around two weeks later the applicant said he contacted his then girlfriend and they hatched a plan to run away together.  They went to [the] north of Kuala Lumpur and stayed with a friend of the applicant’s called [Ms B].  Four days later [Mr A] located his sister at [Ms B]’s house and took her back to the family home in Kuala Lumpur.  The applicant and his girlfriend ran away together a second time, at the end of February (2013), this time to the applicant’s friend’s house ([Ms C]) in Malacca in the south of the country.  After two weeks [Mr A] tracked them down, arrived at [Ms C]’s house with six friends, started to choke the applicant and threatened him and the applicant’s girlfriend before he took his sister back to Kuala Lumpur.  The applicant reported the incident to the police in Malacca who advised him to talk to her family, noting that parents have more rights.  The applicant then contacted his then girlfriend’s father and he agreed to arrange their marriage as long as he converted to Islam.  The applicant clarified that he had actually converted to Islam over a year prior, in January 2012, because he was close to a Muslim family and had not had much to do with his own family since he moved out of home in 2005.  In order to convert he said he simply went to the Muslim Society, admitted that there is no god other than Allah and that Mohammad is the prophet from Allah.  He changed his name and was later issued a religious conversion card (a copy of which he provided to the Department, untranslated). In order for the authorities to issue this card the applicant said he had to attend a seminar for five days where he read about the Koran and was instructed how to pray for example.   He said the electronic chip in his national identity card (NIC) states that his religion is Muslim, but his race is still [of Nepalese origin].    

16. The applicant told the Tribunal he married his now wife in an Islamic ceremony at his wife’s parents house in May 2013, and later stated it may have been in June 2013.  According to the copy of his marriage certificate provided to the Tribunal he was married [in] June 2013.  The applicant said around 200 people attended the wedding, including his wife’s family and relatives (with the exception of her brother, [Mr A] who did not support their marriage), his biological family and his ‘Muslim’ family.  Afterwards they lived together in Kuala Lumpur until the applicant left Malaysia in March 2014.  Prior to his marriage the applicant said his ‘Muslim’ parents met with his wife’s parents.

17. The applicant said the problems started again with his wife’s family after she fell pregnant, around four months after they married.  For example his mother-in-law, whom the applicant said was never happy with their marriage because although the applicant had converted to Islam he was not born a Muslim, was upset that he wanted their child to have his [name].  As well, his wife’s brother, [Mr A], was always saying something to try and separate them, as did his mother-in-law who was putting pressure on her daughter to move back to their house given she was pregnant and not working.  The applicant said when he left Malaysia in March 2014 his wife moved to his [friend’s] house in Johor Bahru where she has stayed, unbeknownst to her family. 

18. The applicant said he is afraid of his brother-in-laws on return to Malaysia, who (he assumes) are angry that he has separated their sister from them.  He said they want their sister back and do not want the applicant as part of their family.

19. The Tribunal accepts the applicant married a Muslim woman in June 2013, evidenced by a copy of their marriage certificate provided to the Tribunal, and that they have a daughter.   The Tribunal accepts that the applicant converted to Islam from Hinduism in January 2012, noting a copy of a religious conversion card of that date issued by the authorities provided, and the fact the applicant has changed his name, with his Muslim name clearly in his passport, a copy of which is on the Departmental file. His NIC also records his religion (“agama”) as Islam.  However the Tribunal remains unclear as to the main motivation for the applicant’s conversion, noting that his evidence has been inconsistent in this respect.  For instance, in his protection visa application he stated that he converted to Islam in order to marry his Muslim wife however he told the Tribunal that he had actually converted a year and a half prior to his marriage (and a year prior to the inception of his relationship).  The Tribunal found his explanation as to why he converted (and the timing) vague and unpersuasive.  For example, he spoke about being close to a Muslim family, including a [man] who was his father’s friend, that he separated from his own family around 2005 (although said they still had a relationship and were not estranged) and would often pray and attend religious ceremonies or events with his ‘Muslim’ family.  He gave no indication as to why he felt he needed to convert, or why he chose to do so at that particular point in time.  The Tribunal also found his oral evidence at hearing about his alleged religious practices as a Muslim after his conversion – in both Malaysia and Australia – vague and unconvincing.  For instance he said he prayed five times a day after his conversion “wherever” and that he went to a mosque each Friday and when asked which one he replied “any mosque in Kuala Lumpur”.  Asked if he went to a specific mosque, the applicant replied “Masjid Wilayah”, but only after some probing.  He was similarly vague when talking about his religious practice in Australia, telling the Tribunal that he also prays five times a day and attends a mosque on Friday in [a particular town] (where he lives) but was not able to name the mosque, except to state that it was [a particular kind of] mosque.  Further, the Tribunal notes that the applicant’s oral evidence about when his family found out he had converted and their reaction was vague, lacking in detail and changed over the course of the hearing.  For instance he initially said when asked that his parents do not know he has converted, that he knows they will be against it, and referred to the fact that he has a card to identify him as Muslim so if he dies they will not conduct his funeral the “Hindu way”.  Later he contradicted himself by stating that his parents were in attendance at his wedding in June 2013, where he was married according to Islamic law. 

20. Despite these concerns, the Tribunal is willing to accept that the applicant converted from Hinduism to Islam in the past in Malaysia, even if the reasons remain unclear.  It does not accept that he converted in order to marry his wife, as claimed in his protection visa application.  He has not claimed that he holds fears on return to Malaysia on account of his conversion from anyone or that he has been threatened or harmed by anyone in the past on this basis. As noted by the delegate in their decision record (a copy of which the applicant provided to the Tribunal on review) there is no indication that people who have converted to Islam face mistreatment, whereas country information indicates individuals who have converted from Islam to another religion tended to face severe stigmatisation in Malaysia compared with other religious converts.  Given these considerations, the Tribunal finds remote the chance that the applicant faces a real chance of serious harm on the basis of his conversion from members of the community.

21. In his protection visa application the applicant stated that both of their families were not happy with their marriage and his parents and everyone from his side did not want to help him (in relation to problems from his wife’s family) because he had converted. He claims that his family did not allow or accept that he fell in love with a Muslim girl and that he converted to Islam to marry her and that they asked him to go ‘far away from her’.  At the Tribunal hearing the applicant said his father was shocked about his conversion and later claimed that his family did not help with the problems with his wife’s family as he had converted to Islam, which infers that they disapproved of his conversion and marriage.  However apart from stating that his father was shocked he has not claimed that his family have expressed their disapproval, including by threatening him for example.  He said his mother did not care.  He also said that they do not bother him, know he is married and has converted, and say it is his choice.  The Tribunal also notes the applicant’s oral evidence to the Tribunal that his parents and other relatives attended his wedding, held at his wife’s family house, which indicates that they were supportive to some extent.  For these reasons the Tribunal does not accept that the applicant faces a real chance of serious harm from his family members because he converted to Islam or because he married a Muslim woman on return to Malaysia in the foreseeable future. 

1. For the reasons that follow the Tribunal does not accept the applicant’s claims to have been threatened or harmed by his wife’s family members in the past.  The Tribunal has a number of concerns about the applicant’s claims to have been threatened and harmed by members of his wife’s family, in particular her brother [Mr A], as follows.

2. First, inconsistencies exist between the applicant’s written claims in his visa application and his oral evidence to the Tribunal in some key respects.  For instance, in the visa application the applicant stated that his wife’s family found her a month after when they had ran away (the first time) however at the hearing the applicant said her brother found her after four days.  As well, at hearing the applicant said he reported the attack by a group of men (whom he alleges were linked to the applicant’s brother) in January 2013 who allegedly pushed him into a drain and warned him against continuing his relationship to the [Town 1] police station.  However in his visa application he said he “never go to the police because it’s a love issue”. 

3. Second, there are aspects of the applicant’s story that are internally inconsistent and implausible.  For instance, on the one hand he claims that his wife’s family disapprove of their relationship and he fears serious harm from her brother yet on the other hand he gave evidence that his father-in-law helped organise their wedding, which was held at their house with over 200 guests, and his only concern was that the applicant had converted to Islam, which he had.  At hearing the applicant said his mother-in-law was not happy (with his relationship) or [Mr A] and that arguments ensued when his wife was pregnant, for example about whether or not their child would have his (non-Muslim) name.  The Tribunal notes that later in the hearing when asked if his daughter ended up having his [name], the applicant replied “no” which casts doubts as to his claims in this respect.  As well, whilst on the one hand the applicant has claimed that he refuses to give in to his in-laws demands to separate him from his wife and child, he came to Australia alone and he gave evidence at hearing that she has visited him twice – in 2015 and 2016 – yet returned to Malaysia, noting that it is too expensive here. 

4. Third, the applicant raised claims at hearing that were not included in his visa application.  For example he made no mention in his application form that when his brother-in-law (along with six friends) located him and his wife at his friend’s house in Malacca, he tried to choke the applicant and the applicant subsequently made a police report.   The Tribunal notes also that whilst the applicant mentions threats and harm from his wife’s family in the visa application form, he does not specifically mention her brother, [Mr A].  Furthermore, at hearing he was unable to state his name, apart from ‘[Mr A]’. 

5. In the visa application the applicant stated that he fears and had been warned by his wife’s father’s gang, but made no mention of this fact at the Tribunal hearing until asked specifically.  He then told the Tribunal that it was [Mr A]’s gang as well, and it was members of that gang who had allegedly harmed him in January 2013.  However he was vague in his description of this gang, only stating that he believes his father-in-law had a gang because he was a well-known person in his area, used to run a business selling [particular goods], and in that capacity always had some “blokes” about him. 

6. For these reasons the Tribunal has serious credibility concerns about the applicant’s core claims to fear harm at the hands of members of his wife’s Muslim family because he was not born a Muslim, is a Hindu descendant, has a Nepalese background (and therefore, the applicant stated at hearing, his mother-in-law considered him a foreigner) and in general is deemed unsuitable.  The Tribunal does not accept that the applicant was ever harassed or threatened by his wife’s brother or any other family members as claimed.  It does not accept that his father-in-law or brother-in-law are members of a gang nor that their gang members (or anyone else) attacked and threatened him in January 2013 or threatened him thereafter as claimed.  It does not accept his claims that his wife’s family tried to separate them, tried to force him to divorce her and threatened to take his child.  The Tribunal finds the applicant does not face a real chance of serious harm from his wife’s family members or people associated with her family for any reason on return to Malaysia now or in the reasonably foreseeable future.  His fears of persecution on this basis are not well founded. 

7. The Tribunal notes that in the visa application the applicant stated that there are racists everywhere in Malaysia; that Malay guys had attacked him in the past (to warn him away from his then girlfriend); that he could not go to his then girlfriend’s house because there were Malay Muslim majority; that the Muslim society did not help him because they are full of Malays; and because of race he cannot fight for his issue.  The applicant told the Tribunal he was born in Malaysia to Nepalese parents and his identity card indicates his ethnicity as ‘[deleted]’.  The delegate found he was a Malaysian citizen of Nepalese background.  The applicant has not claimed and there is nothing to indicate that Malaysians of Nepalese backgrounds face a real chance of serious harm or a real risk of significant harm for reasons of their ethnicity in Malaysia.  Further, given the applicant has converted to Islam, and the fact that the Tribunal has not accepted his claims to have been attacked by Malay guys (linked to his then girlfriend’s family) in the past, the Tribunal finds remote the chance that he would face serious harm on return to Malaysia from Malays, Malay Muslims or anyone else on ethnicity grounds.

8. For the reasons above the Tribunal does not find that there is a real chance of the applicant being persecuted now or in the reasonably foreseeable future on return to Malaysia for any Convention related reason. The Tribunal finds that the applicant does not have a well-founded fear of persecution within the meaning of the Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

9. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from his family or anyone else because he converted to Islam and married a Muslim, from his wife’s family because he was not born a Muslim and they disapprove of his relationship, on the basis of his ethnicity, or for any other reason on return. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

10. 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

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

    Nicole Burns
    Member