1502686 (Refugee)

[2016] AATA 3455

1502686 (Refugee) [2016] AATA 3455 (26 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502686

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Filip Gelev

DATE:26 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 26 February 2016 at 3:07pm

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] September 2014 and the delegate refused to grant the visa [in] February 2015.

3. The applicant appeared before the Tribunal on 22 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

   RELEVANT LAW

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.

   Refugee criterion

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. 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.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. 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

19. The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

20. The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Tribunal. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s country of nationality for the purposes of s.36(2)(a) and receiving country for the purposes of the complementary protection assessment, s.36(2)(aa).

    Third country protection

21. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Claims

22. The delegate’s decision a copy of which was attached together with the application for review shows that the applicant first entered Australia [in] November 2009 and left the country [in] January 2010.

23. He re-entered Australia on a further Electronic Travel Authority [in] February 2010. He did not lodge the application for protection until [September] 2014, after the applicant had been located by the Department of Immigration ([in] September 2014) and counselled to leave Australia.

24. The applicant said in his application for protection that he had a Muslim girlfriend in about 2009. He loved her very much and they had sex a few times. When her parents found out, they had a “serious talk” with him to become a Muslim. The applicant did not want to do so, because he is the only child in the family and he is Buddhist.

25. The girl’s family then accused him to the police of raping the girl. If he returns to the country, he will be detained by the police and if he does not become a Muslim he will be put in jail. The “extreme Islam group” had claimed that becoming a Muslim is his only choice. Otherwise, he will be killed.

26. He claimed that “they” had detained him and asked “extreme Muslim leaders” to talk to him in order to try to force him to accept “Muslim principles”. When he refused they detained him for a long time.

27. He explained that it is a serious thing in Malaysia for a man to have a sexual relationship with a Muslim girl. He is then required to marry her and become a Muslim.

28. The applicant’s parents were also harassed many times by the girl’s relatives. His parents had to move to other places.

29. At the hearing, the applicant gave evidence in relation to his claims.

30. He said that he lived in Kuala Lumpur his whole life. He completed [number] years of school. He started as a trainee [occupation] for about 3 years in various [workplaces]. He said there were 4 or 5 [workplaces], all of them in Kuala Lumpur.

31. He said if he remembers correctly, he met the Muslim girl in 2009. They were working in the same shopping complex building. Her first name was [name]. He could not remember her last name. He said that things happened too fast. He said that even though they were of different religions and they were not married, these days “youngsters” have sex before marriage. He said he could not remember when he first had sex with her or the name of the hotel where it happened.

32. He said that they would have sex in a hotel, mostly at night. He said that his parents would not ask any questions about the fact that he would not go home after work. He did not know if her parents asked any questions. He said the relationship lasted 3-4 months.

33. He did not meet the parents properly. He said that one time the parents came to his workplace to talk to him. Things went bad from there. His parents suggested that he should try to talk to her parents nicely, but that did not work. Her parents said that they were going to make a police report. They were going to accuse him of raping their daughter. He went back home and talked to his parents about it. His parents decided to send him away “in case things go bad”.

34. The Tribunal asked whether things deteriorated after that. He said that the girl knew where he lived because he had shown her. He said that when he was in [Country 1], people would come and “bang on the gate” and ask where he was.

35. The Tribunal asked whether anything happened when he returned to Malaysia. He said that one time “they” came to the house and he was inside the house. His father told him to stay in his room and that he would deal with it. On another occasion when he was out with friends, “they” came again. He said that “they” would come, bang on the gate and yell things.

36. He said that before he went to [Country 1] her father and some other people whom he did not know, but he thought one of them may have been her uncle, came to his work. He was not beaten but they would push him. He said that there would always be 4-5 of them. He did not know who they were. He said that all the incidents were at his workplace.

37. The applicant admitted that that he was in [Country 1] for about [number] months in 2009 (according to a stamp in his passport he arrived [in] April 2009). His family sent him there for his safety, but he did not want to stay there because it was too far from home and he did not know anyone there.

38. The Tribunal asked why he did not apply for protection the first time he came to Australia in November 2009 (according to the stamp in his passport he arrived [in] November 2009). He said that he was hoping at the time that things would settle down, but later it turned out that they did not.

39. He said that when he returned to Malaysia in 2010, after his first trip to Australia, it was Chinese new year and about 6-7 people came with stakes. His parents became really worried for him and that is why the third time he left Malaysia, he actually stayed away. He did not want to, he really missed his family and they missed him.

40. When asked whether he had been detained as claimed in his application, he said he had not been detained as such but for 2-3 hours they would not let him go home from work.

41. When the Tribunal referred to the claim that there was an “extreme Muslim leaders” involved, he replied that he was not sure whether they were Muslim leaders but they had “turbans” on their heads so he assumed that they were religious leaders.

42. The Tribunal asked why he had written in his application that he had been accused of rape to the police. He said that what he meant was that he will be accused of rape.

43. When asked why if he thought they would do so, they had not done it in the last 7 years, he said he did not know.

44. When the Tribunal raised credibility concerns with the applicant, he said that in “things are more casual these days” and it was not such an unlikely occurrence that he would have a casual relationship with a Muslim girl.

45. In relation to the Tribunal’s concern that he did not apply for protection for more than four a half years, the applicant said that he did not know about protection visas.

46. In relation to inconsistencies between his written claims in the application and his oral evidence, he said it was his god sister who wrote the application.

47. When asked if there was any other reason why he feared returning to Malaysia, he said it was too hot and too humid in Malaysia. He said it would be difficult for him to start over. He said that things are bad in Malaysia – there is a high crime rate, and it would be hard for him to start over.

48. The Tribunal found the applicant’s evidence to be inherently implausible, lacking in detail and inconsistent. The Tribunal finds that he is not a credible witness and rejects his claims in their entirety for the following reasons.

49. The applicant could not remember important details relating to his alleged relationship such as the girl’s last name, when it was that they first had sex or where they first had sex.

50. The Tribunal does not consider it is plausible that the applicant would have a casual affair with a girl who is of another faith in Malaysia. The entire premise of the applicant’s case is that – as he wrote in the application – if a non-Muslim man has sex with a Muslim girl in Malaysia, he would have to convert to Islam and marry the girl. However, at the hearing, he claimed that things were more casual in Malaysia than Australia or that things were more casual among “youngsters” these days. That was why he did not think much of starting a relationship with a Muslim girl, and it was the first sexual relationship for both of them.

51. There were significant inconsistencies between the written and oral evidence. For example, according to the written application the applicant was detained for a long time but according to the evidence at the hearing he was held back at work for a couple of hours and not allowed to go home. According to the written application a rape report had been made to police, whereas at the hearing he said a report will be made in the future. The Tribunal observes that it is the applicant’s responsibility to ensure that the contents of the application are correct. On the form the applicant indicated that he had not received assistance with the application form. The Tribunal finds that the applicant made up the claim that someone else had written down his claims.

52. The Tribunal places significant weight on the applicant’s failure to seek protection in [Country 1] in 2009 or in Australia in late 2009 to early 2010. This failure is inconsistent with a well-founded fear of persecution, especially in circumstances where the applicant claims that his persecutors visited the family home and continued to pursue him while he was in [Country 1].

53. The Tribunal also gives weight to the applicant’s failure to lodge an application for protection for more than 4 years after he came to Australia for a second time. The Tribunal considers that there is information available in Australia about protection visas and if his fears were genuine he would have made inquiries relatively soon after his initial visa expired and he became unlawful, and thus liable to be removed from Australia.

54. In addition, the Tribunal finds it implausible that the girl’s family would report the case to police and accuse him of rape in the future, if these events took place in 2009 and they have not accused him of rape yet.

55. The Tribunal finds that the applicant did not have a relationship with a Muslim girl in Malaysia and therefore he was not subjected to threats, harassment, physical violence or any other type of harm or threat of harm.

56. The Tribunal finds that the applicant does not have a fear of returning to Malaysia. He is not of any adverse interest to anyone for any reason. The Tribunal gives the applicant the benefit of the doubt and accepts that the climate in Malaysia is too hot and humid for him, that he will have to “start over” in terms of work, and that the rate of property crime according to him is higher than in Australia. However, none of these three issues taken individually or cumulatively can be said to create a well-founded fear of serious harm amounting to persecution.

57. 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).

58. 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).

1. On the evidence before, there are no 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 that he will suffer significant harm for any reason, at the hands of anyone.

2. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. 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

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

   Filip Gelev
   Member