1502882 (Refugee)

[2016] AATA 4490

1502882 (Refugee) [2016] AATA 4490 (23 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502882

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Christian Carney

DATE:23 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 23 September 2016 at 4:10pm

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

BACKGROUND

1. The applicant arrived in Australia [in] June 2012 as the holder of an Electronic Travel Authority Visitor visa with a passport issued to him by the government of Malaysia. He claims to be a [Ethnicity 1] Sunni Muslim from [District 1] in the Khyber Pakhtunkhwa (KPK) province in Pakistan and that he migrated to Malaysia in 2010 and became a Malaysian citizen in [2012]. He applied for a Protection visa [in] September 2014, claiming to fear harm in Malaysia from relatives in Pakistan whom he claims have, and would again, travel from Pakistan to Malaysia to harm him in order to seize control of his family’s property.

2. He was interviewed by a delegate of the Minister for Immigration in [City 1] [in] February 2015, who formed the view that his claims were vague, confused, inconsistent and lacking in detail, and, in a decision dated [in] February 2015, the delegate refused the application after finding his claims to be not genuine and that he was not at risk of harm in Malaysia. 

3. The Tribunal must consider and decide whether the applicant has a well-founded fear of being persecuted in Malaysia for reasons of his race, religion, nationality, membership of a particular social group or political opinion and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Malaysia, there is a real risk he will suffer significant harm.  In considering these issues, the Tribunal has applied the law set out in Appendix 1.   

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence to the Department

4. According to the information in his application for the visa, which was completed with the assistance of a migration agent, the applicant was born in [year] in [his home village], [District 1], in the KPK province of Pakistan.  He is a [Ethnicity 1] Sunni Muslim and can speak, read and write in Urdu, and can speak [Language 1] and Malay.  He was an only child and has never married or been in a de-facto relationship.  He resided at the same address in [his home village] from the time of his birth up until his departure to Malaysia in June 2010.  He completed [number] years of education in [District 1] and had not engaged in paid employment prior to his departure from Pakistan in June 2010. 

5. In a detailed statement, the applicant made the following claims:

   (a)His father went to live in Malaysia in [year] and became a Malaysian citizen [year].  His grandfather owned about [number] acres of land in [his home village].  His father sent money from Malaysia to the family in [District 1] and his grandfather purchased more land with that money.

   (b)His parents married in [District 1] in [year].  His mother is a local [Ethnicity 1] Sunni Muslim and, after the wedding, lived with her husband’s [relatives] in the family home in [his home village].  

   (c)His grandfather passed away in [year], about six months after the applicant’s birth.  His father returned to Malaysia about once every three years while the applicant was growing up.  His father sent money from Malaysia to cover the family’s living costs.

   (d)In April 2009, the Taliban came to their village and established a strict code of living, banning films and videos.  The applicant was arrested for not praying and not growing a beard, and was given 40 lashes on his back.  The following day, he and his family left the village and went to live in [Town 1] in [City 2].  His [Relative A], [named], remained in the family home in [his home village] and became a spy for the Taliban. 

   (e)In August 2009, the applicant and his family returned to [his home village] after the Taliban left the area.  Despite their departure, many locals remained sympathetic to the Taliban, and the applicant’s [specified relatives] began to harass and beat him so their family could claim his portion of the family estate. 

   (f)On [a date in] April 2010 his friend tricked him into going hunting but when they reached the mountain top his friends tied him and began to hit and kick him.  The applicant became unconscious and woke the next morning when a shepherd found him and took him home. 

   (g)After that incident, his mother called his father in Malaysia and told him that the [Relative A] had tried to kill the applicant and that he had to leave.  His [Relative A] warned him not to go to the village elders as, if he did, the [Relative A] would tell them that he was not praying.  He was unable to go to the police as they were under the influence of the village elders.  After that incident, he stayed at home and did not leave until his departure to Malaysia in June 2010. 

   (h)In Malaysia he began to work in his father’s [business] in [Malaysian City 1].  His father paid him money and gave him shares in the business.  In [2012], he received Malaysian citizenship and cancelled his Pakistani citizenship as he feared returning there. 

   (i)In May 2012 his [Relative B] came to Malaysia and they were looking for him.  His father found out that they were trying to kill him.  His father was too scared to go to the police as his wife, the applicant’s mother, was still in [his home village].  The applicant escaped by coming to Australia in June 2012. 

   (j)His father returned to [his home village] in November 2013 to see his dying [Relative C] and to try and resolve the property dispute with his [Relative A].  In June 2014 his father returned to Malaysia to continue the business.  Their [Relative C] died one week after his father’s return.  His father went back to [his home village] [in] July 2014 to sort out the land dispute.  His father had decided to sell his share and to give the money to the applicant to do business in Australia.  However, [a few days later], his father was abducted as he was leaving the Mosque and has not been seen again. 

   (k)The applicant’s mother fears for her life and the life of her [Relative D] who lives in [their home village]. 

6. By letter dated [in] January 2015, the applicant’s migration agent made detailed submissions about the applicant’s claims, including references to reports about land and property disputes turning violent in Pakistan.  The agent submitted that the applicant would be alone in Malaysia and vulnerable, without support or protection in a country that is rife with human rights problems.  He is at risk in Malaysia from his [Relative A’s] family as they now where he lives and will want to eliminate him to get the estate. 

   Interview with the delegate

7. The applicant was interviewed by the delegate in [City 1] [in] February 2015.  The delegate’s decision record provides a summary of the statements and claims made by the applicant at that interview. 

8. The applicant told the delegate that he did not see or meet [Relative B] in Malaysia.  His father told him that the man was in Malaysia.  When asked how his father knew that man was in Malaysia, he said that his father’s business contacts or his friends had told his father that the man was in Malaysia. 

9. He told the delegate that his mother told him that on [a date in] July 2014 that his father had gone to the mosque and did not return.  He said his father had to go back because his [Relative C] was sick and he wanted to solve the problems with [Relative A].  When the delegate noted that it was difficult to understand why his father spent eight months in Pakistan between November 2013 and June 2014 and then returned to Pakistan within one month if his life was in danger, the applicant said that he does not know why his father did that, as he has no contact with anyone. 

10. He told the delegate that he had not experienced any problems in Malaysia and that he had worked there for over two years in his father’s business. 

    Delegate’s decision

11. The delegate did not accept that the applicant’s claims were reliable or credible and did not accept that his father had been abducted or kidnapped or that there was a family dispute over property or that the applicant’s [Relative A] had sent someone to Malaysia to harm the applicant, as claimed.  The delegate did not accept that the applicant was at risk of harm for any reason in Malaysia. 

    Evidence to the Tribunal

12. The applicant gave the Tribunal a copy of the delegate’s decision record with his application for review.

13. By letter dated 31 May 2016, the applicant’s agent made written submissions in support of the application, in which he addresses the delegate’s reasons for refusing the application.  The agent submits that the applicant had given detailed evidence to support his claims and that part of the reason he was unable to provide more evidence was because it did not exist as his mother was unable to report the incidents to the police or send him evidence from [his home village]. 

    Hearing on 1 September 2016

14. The applicant appeared before the Tribunal on 1 September 2016 and gave evidence through an accredited [Language 1] interpreter.  His migration agent also attended the hearing. 

15. The applicant confirmed the details of his identity, nationality and place of birth.  He is an only child.  His mother continues to live in their family home in [District 1].  He has maintained regular contact with her since he arrived in Australia.  He last spoke to her last week.  Her [Relative D] lives with his [family] in the adjoining house.  He has not spoken with his father since his father went back to Pakistan in June 2014 and disappeared. 

16. His father first went to live in Malaysia at the age of [age] and was based in Malaysia from that time.  His father returned to Pakistan to visit family from time to time but was never based in Pakistan again.  The applicant moved to Malaysia in June 2010 when he was [age].  His mother has never been to Malaysia.  The applicant complete [Grade] in [District 1] and then moved to Malaysia the following year.  He lived in Malaysia for two years before he came to Australia.  He did not return to Pakistan after June 2010. 

17. He became a citizen of Malaysia in 2012 before he came to Australia.  He renounced his Pakistan citizenship at the time because he feared being harmed in Pakistan.  He accepts that his country of nationality is Malaysia and he has no intention of ever returning to Pakistan. 

18. His family owns farming land in [District 1].  His father has a [Relative A], [named], who lives in [District 1] and is the person who wants to kill the applicant and who the applicant suspects is responsible for his father’s disappearance.  [Relative A] wanted his father’s share of the land that [his father inherited]. 

19. His father operated a [business] in Malaysia.  His father would buy and sell [products], usually by going from house to house.  His father sent a lot of money from Malaysia back to Pakistan.  The applicant worked with his father in the business for the two years he was in Malaysia.  His father paid him a salary of [amount] ringgit a month.  He lived with his father in the apartment his father rented.  He did not live elsewhere in Malaysia.  Apart from his father, he has no family in Malaysia. 

20. He did not have any problems or trouble with anyone in Malaysia.  He left because his father found out that his [Relative B] had come to Malaysia to get the applicant.  When his father found out about [Relative B], he told the applicant that he should come to Australia, so they applied for the visa and he came here.  He was afraid of [Relative B] as his [Relative A’s] men beat him in Pakistan and his [Relative A] does not want him to return to Pakistan.  He did not see or meet or have any contact with [Relative B] in Malaysia. 

21. He came to Australia for protection.  He knew it was a safe place.  He did not know about Protection visas at the time he arrived or that he could apply or a visa to extend his stay.  He was scared about contacting the Department as he thought they would make him leave.  A friend in [Town 2] told him about Protection visas and he applied soon after he knew about them.  He arrived in Melbourne and asked people there about work and accommodation.  He met a man who was going to [Town 2] and he went with him and has lived there ever since.  He has worked as [an occupation 1] and for the past nine months as a [different occupation] at [Employer 1].  He brought about A$[amount] to Australia.  His [Relative D] sent him money once in 2013 when he was not working and needed money. 

22. He was in regular contact with his father for the first two years in Australia.  Then his father went to Pakistan to try and solve the problems with [Relative A].  His father had decided to sell the land to [Relative A] and was going to give the money to the applicant so he could start a business in Australia.  But [several] days after he arrived, his father went to the Mosque and did not return home and has not been seen again.  The family suspects that it was [Relative A] who caused his father’s disappearance. 

23. His mother did not contact the police.  The Jirga system operates in the [District 1] area.  His [Relative A] is a member of the Jirga and because of his connections and power, it is impossible to do anything against his [Relative A].  The local people in [District 1] do not listen to the police.  They are mountain people and they place more importance on the traditional Jirga system than the formal government.  When the Taliban were in power they had more influence and power than the police or government.  Even though the Taliban are not officially in power, they still influence the Jirga.  If it was safe for his mother to have done so, she would have gone to the police to report his disappearance.  His [Relative D] was threatened and told not to intervene or get involved. 

24. The Tribunal asked whether his [Relative A] would need a death certificate or some official statement if his purpose was to obtain the property.  He said that in the mountain area there is no insurance, no birth or death certificates or anything like that.  The Tribunal noted that independent information indicated that identity documents like those were issued throughout Pakistan, including in the FATA and KPK areas.  He said that it is possible to get some documents, like a birth certificate for school, but not death certificates.  The Tribunal asked why his [Relative A] would cause his father to disappear instead of killing him, if he wanted the land.  He said he assumes it was his [Relative A].  His father did not have any other enemies. 

25. The Tribunal noted that, if his father died, then according to normal inheritance laws, he, the applicant, would inherit his father’s property.  He said that was correct.  The land is worth a lot of money.  The Tribunal noted that if it was his [Relative A’s] purpose to get rid of his father so he could get the land, then he would need to prove that his father was dead in order to have the land transferred.  He said his father had been sending money back to Malaysia to buy more land.  His [Relative A] thinks that the applicant will grow up and return and try and get the land.  His [Relative A] wants the land for his sons. 

26. He confirmed that his [Relative C] was unwell in 2013 and his father returned to Pakistan and spent nine months living in [District 1] with his father.  Nothing happened to his father during those nine months.  His [Relative C] died one week after his father left Pakistan.  His father then went straight back to Pakistan and that was when his father went missing.  When asked, he said he does not know why his [Relative A] did not take action against his father during those nine months.  It could have been because their [Relative C] was still alive. 

27. When asked why his [Relative A] would send [Relative B] to Malaysia, he said that he thinks it was because his [Relative A] wants the land for [his son].  The Tribunal asked why they would target him before his father died, if they wanted the land.  He said that they came after him because he had run away to Malaysia after they attacked him in [District 1].  The Tribunal noted that he was in Malaysia for two years before his father told him [Relative B] was in Malaysia.  He said that that was correct and his father told him to come to Australia.  He confirmed that he would not inherit the land after his father died.  But his [Relative A] would want him out of the way so they could get the land once his father died. 

28. His father did not see or have any contact with [Relative B] in Malaysia in 2012.  People his father knew in Sarawak told his father that a man from Pakistan was asking questions about his father.  His father did not want to see [Relative B].  The Tribunal put to him that, on one view, it was difficult to understand why [Relative B] would come from Pakistan to Malaysia and go to a city and ask people if they knew how to contact the applicant’s father; if his purpose was to harm the applicant it was difficult to understand why he would not have done some basic research and found out where they lived.  In response, the applicant said that there are good and bad people everywhere and that he does not know why [Relative B] did what he did.  Maybe people saw [Relative B] there and assumed he was looking for them.  He does not know what happened.  His father told him that [Relative B] was there and that he had to leave and go to Australia.

29. When asked, the applicant said that he did not know how many from [District 1] or Pakistan or how many [Ethnicity 1 people] from the KPK province lived in [Malaysian location].  He said it is a big city and he is not sure how many Pakistanis lived there.  There are some [Ethnicity 1 people] but he does not know how many as he never went to their homes or had contact with them.  He said it is possible that people from Pakistan who knew his father told his father that a man from [District 1] was there asking questions. 

30. He confirmed that nothing had ever happened to his mother.  She is traumatised and stressed by what has happened to her family and is lonely, but she has not been harmed or threatened. 

31. Since he arrived in Australia he has not had any contact with his [Relative A] or [another relative] or their agents. 

32. The Tribunal noted that he had been in Australia for over four years and it asked him to explain what he thought would happen if he returned to Malaysia now.  He said that he is 100% sure they will kill him.  They have got rid of his father and they will get him next.  The Tribunal asked why they would care about him if he stayed in Malaysia and did not return to Pakistan.  In response, he said that the Tribunal was right, and they would not care if he stayed in Malaysia, but they would be worried that he might return to Pakistan and ask for his share of the property.  They will target him in order to make sure he does not go back to Pakistan.  He wants to see his mother but he has absolutely no intention of returning to Pakistan.  The Tribunal asked if his mother would go to Malaysia and be with him there.  He said that he cannot protect himself in Malaysia, so it wold not be possible for him to look after his mother there.  If something happened to him in Malaysia, there would be no one to look after his mother.

33. He said his only fear of being harmed in Malaysia was his fear of his [Relative A] and his [Relative A’s] agents.  The Tribunal asked him to explain how his [Relative A] in [District 1] would even know that he was in Malaysia.  He said that if someone saw him and told his [Relative A] that he was there then his [Relative A] might come after him.  The Tribunal asked whether he would go to another part of Malaysia, such as Kuala Lumpur, if he was afraid of that happening in [Malaysian location ].  He said that there are people from [District 1] all over Malaysia and they would find him where ever he was.  The Tribunal put to him that, on one view, it seemed remote and far-fetched to consider that, after six years outside Pakistan, including four in Australia, his [Relative A] or his agent would travel to Malaysia in an attempt to kill him.  In response, he said that that might be the case for a while, for a few months, but then they would find out he was there.  If his mother went to Malaysia, they would locate him through her and they would then come for him. 

1. The applicant’s migration agent submitted that the applicant was an only child whose only family now was his mother and his [Relative D].  He has no other family.  His circumstances are unique and he would be in danger if he returned. 

2. The Tribunal asked the applicant to comment on whether he would be able to seek protection from the Malaysian police if he feared being harmed in Malaysia.  He said that the police would not do anything until something had happened.  If he did go to the police about his [Relative A], it would put his mother’s safety in jeopardy, as they would seek retribution.  The Tribunal noted that, as a Malaysian citizen, he had the right to seek protection from the police and other law enforcement agencies if he feared a person coming from Pakistan to harm him.  The Tribunal noted that independent information indicated the Malaysian police were a well-resourced, independent, functioning police force, which indicated that they could provide a reasonable system of protection.  In response, he said that the police would ask questions and they investigate but, if they did, his [Relative A] would seek retribution against him.  He wants to be safe and have a peaceful life.  He has told the truth and fears his [Relative A].  He wants to stay in Australia and have his mother live here with him. 

3. The applicant’s migration agent submitted that while ever the applicant’s mother was alive it is not safe for the applicant in Malaysia.  He would contact her and that would lead his [Relative A] to his location and they would find him and harm him. 

   FINDINGS AND REASONS

   Assessment of the applicant’s claims and evidence about past events

4. The Tribunal’s first task in determining whether the applicant is owed protection is to make findings of fact on relevant matters.  The task of fact-finding often involves an assessment of an applicant’s credibility.  In this context, as set out in Appendix 1, the courts have made it clear that the Tribunal must be sensitive to the potential difficulties faced by asylum seekers in putting forward their claims, and that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility and afford the benefit of the doubt to asylum seekers who are generally credible but unable to substantiate all of their claims.  However, the Tribunal is not required to accept uncritically any and all claims made by an applicant. 

5. In assessing the applicant’s claims, the Tribunal has taken into account the information in the Department’s file, including his application for the Protection visa, his interview with the delegate and the evidence he gave at his hearing before the Tribunal.  It has also taken into account information from independent sources concerning relevant matters in Malaysia, including the most recent report on Malaysia prepared by DFAT, the ‘Country Information Report - Malaysia’, dated 19 July 2016. 

   Nationality and general background

6. The applicant has consistently maintained he is a citizen of Malaysia.  The Tribunal has observed the passport he used to enter Australia, which supports his claimed identity and nationality, and, in the absence of any evidence to the contrary, the Tribunal finds that he is a national of Malaysia and has assessed his claims against Malaysia.

7. He has consistently maintained and the Tribunal accepts that he was born in [his home village] of [District 1] district in the KPK province of Pakistan in [year], that he is a [Ethnicity 1] Sunni Muslim and that he can speak, read and write in Urdu, and can speak [Language 1], Malay and some English.  On the basis of his consistent evidence, the Tribunal accepts that, in about [year], the applicant’s father relocated to Malaysia and would return to Pakistan from time to time, including in [year] to marry the applicant’s mother.  The Tribunal accepts that the applicant was the only child of his parents and that, during his youth and adolescence, he only saw his father about once every three years when his father returned from Malaysia for a holiday. 

8. On the basis of his mostly consistent evidence, the Tribunal accepts that the applicant’s father had one [Relative A], [named], and that on the death of [his] [father] in [year], [the applicant’s] father and [Relative A] inherited a large parcel of farming land in [his home village].  On the basis of his mostly consistent evidence, the Tribunal accepts that, between about [year] and 2010, the applicant’s father would, from time to time, send money back to his family for the purpose of buying more land to increase the size of the farming land he part-owned with [Relative A].

   Claims about past mistreatment in Pakistan

9. With regard to his claims to have been subjected to adverse treatment in Pakistan by his [Relative A], and his agents, the applicant has presented his claims on three separate occasions, including at an interview with the delegate and at a hearing before the Tribunal, during which it was able to question him at length about his claims and test his reliability as a witness.  He gave his evidence in a direct and sincere manner and his account of events was mostly consistent with his oral evidence to the delegate more than 18 months earlier, and with his written evidence.  He was a mostly responsive witness and sought clarification when necessary, and while aspects of his claims about what occurred to him and his family in Pakistan were in part vague and lacking in detail, in the Tribunal’s view, he did not appear willing to embellish or exaggerate his evidence to fill in gaps or to explain or clarify a circumstance that could have appeared implausible or difficult to understand. 

10. Moreover, the nature and background of his claims is consistent with the available independent information about the cultural, political and religious circumstances that have existed in the [District 1] district and surrounding areas over the past 10-15 years.  According to a number of independent reports, the Taliban has been present and active in the [District 1] district, which borders [other mentioned areas] of Pakistan, since about 2002, following their removal from Afghanistan.  Reports indicate that the Pakistani Taliban, the TTP, emerged from the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM) movement of the Islamic cleric Sufi Muhammad to impose Sharia law in the KPK,[1]  and that, from about 2004 to 2009, the Taliban conducted a campaign to gain control over the province, which it was successful in doing in various districts at various times in that period.  Between 2007 and 2009, the [Swat Valley] witnessed significant armed conflict between the Taliban and the Pakistani security forces,[2] and, during this period, the TNSM and TTP attacked targets that it deemed to be un-Islamic, such as health workers, NGO workers, musicians, music and video stores, barber shops, schools, and artists.[3] 

    [1]     [Deleted.]

    [2]     ‘Time line on Swat Valley turbulence’, IRIN News, 11 February 2009. 

    [3]     Khattak, D, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, 2013; Mustafa, D & Brown, K E, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, 2010. 

11. By early 2009 about 60% of Swat's 1.8 million people had been displaced by the escalation of conflict and violence, with thousands of homes damaged and more than 150 schools destroyed, as the TNSM and Taliban gained control of about 75% of Swat.[4]  In April 2009, the Pakistan Army launched a major counter-insurgency offensive and 15,000 troops entered the Swat Valley to confront about 4,000 Taliban militants and regained control of Swat.  Residents were asked to evacuate the area during the army offensive and that more than 1.5 million people were registered as internally displaced in the month after the offensive commenced.[5]  Following the success of the military operation in the Swat Valley, the majority of TTP and TNSM militants fled into [other] districts of the KPK, including [District 1], and to the FATA, and to Afghanistan, from ‘where [they] launch attacks from time to time against the Pakistani security forces’.[6]  In [year], the Taliban occupied [District 1] district and fought an intense military battle with the Pakistan Army.[7]  After being defeated by the military, some Taliban reportedly [remained there].  In [2009], the government encouraged displaced residents to return to their homes [when it was safe].[8]  As noted by DFAT in their ‘Country Information Report: Pakistan’ published in November 2013, ‘the spread of the TTP within Pakistan has resulted in a growing Islamisation in the areas it controlled in the FATA and KPK’ and the ‘establish[ment] [of] traditional tribal justice systems’. 

    [4]     ‘Time line on Swat Valley turbulence’, IRIN News, 11 February 2009. 

    [5]     ‘Mass evacuation ordered in Swat’, Al Jazeera, 10 May 2009, available at Macey, J, ‘Desperate’ Swat Valley situation revealed’, ABC News, 1 June 2009, available at     [Deleted.] 

    [7]     [Deleted.]

    [8]     [Deleted.] 

These reports support the plausibility of aspects of the applicant’s claims, including the presence of the Taliban at the relevant times and their imposition of a harsh and strict system of Sharia Law, as well as the operation of the Jirga system in [District 1], of which he claims his [Relative A] was an influential member and a Taliban supporter.  Further, the prevailing religious and cultural conservatism in the area indicates the plausibility of the claim that a person such as his [Relative A] would develop and harbour a negative and hostile attitude to a young man like the applicant who preferred music and a more modern way of life over a religious, Sharia-law oriented lifestyle, and whose father had lived in Malaysia for [many] years and had sent money back to Pakistan for the purchase of more land.  In addition, the available independent information indicates the prevalence of land disputes throughout Pakistan and the high incidence of related violence.  A July 2014 report issued by the UK Home Office stated that:[9]

Land disputes are prevalent in rural and urban areas throughout Pakistan resulting in violence and death.  A revenue court system has jurisdiction over disputes regarding land documents, tenancy, land revenue, and land transactions.  Pakistan’s formal court system also has jurisdiction to hear land cases.  Land disputes are the most common form of dispute filed with the formal court system.  Both at local government level and federal level, courts dealing with land disputes suffer from a back-log of cases, are poorly trained, and subject to corruption.  In Pakistan’s tribal areas local Jirgas decide on land disputes and often discriminate against women and their right to land ownership.

[9]     ‘Pakistan: Land Disputes’, UK Home Office, July 2014, available at

According to a February 2012 report, a property dealer in Islamabad stated that ‘[m]any people have been eliminated over land disputes and incidents of murder and kidnapping for land have become common, putting a question mark on the efficiency of the law enforcement agencies.’[10]  Some of the numerous online reports about property related violence in the north-west area of Pakistan from the relevant time include a family related dispute in Shikarpur which led to the death of five and serious injury to three, which noted that ‘more than 34 people of both parties had already been killed in this dispute’;[11] the shooting of four persons by a rival group over a land dispute in Tumair;[12] a young man being shot dead and his father seriously wounded in Pakpattan when rivals fired on them over a land dispute;[13] fourteen members of the same family killed by members of another family as part of an ongoing feud and dispute over land in the city of Gujranwala;[14] and the murder of four people in an alleged land dispute in the Gidar area of Kalat district.[15] 

[10]    ‘Land disputes on the rise in capital’, Dawn, 10 February 2012, available at    ‘Five killed over land dispute in Shikarpur’, Geo.TV, 26 May 2013, available at    ‘Land Dispute: Two shot dead in Tumair’, The Express Tribune, 2 March 2013, available at         ‘Man, son among four killed in firing’, Dawn, 31 March 2014, >

Taking all of these considerations into account, on the evidence and information before it, despite some of his evidence being confused and vague, the Tribunal has formed the view that the applicant’s evidence about his identity, place of origin, family background, the enmity he experienced from his [Relative A] and the existence of a dispute over family property, was based on his personal experience and actual events and that, with regard to these claims, he was, overall, a credible witness. 

Findings about past events in Pakistan prior to June 2010

For all of the above reasons, on the evidence before it, the Tribunal makes the following findings:

(a)In [2009], the Taliban began to occupy [his home village] village and the applicant and his mother lived under their rule for a brief period of time.  The Taliban established a strict code of living, and banned films and videos. 

(b)The applicant’s [Relative A] was and is a Taliban supporter and sympathiser, and a member of the local Jirga in the [his home village] area.

(c)In April 2009, the applicant was arrested by Talibs for not praying and not growing a beard, and was punished by being whipped across his back.  The following day, he and his mother and [Relative D] uncle left [his home village] and went to live in [Town 1] in [City 2].  They remained in [Town 1] until August 2009, when they returned home to [his home village] after the area returned to government control.  Despite the formal removal of the Taliban, many locals, including his [Relative A], remained sympathetic to the Taliban. 

(d)Between about September 2009 and April 2010, the applicant was subjected to a number of incidents of harassment and abuse from his [Relative A] and [other relatives].  In April 2010 he was subjected to a serious assault by young men associated with his [Relative A].  After that incident, he remained at home while his father made arrangements for him to travel to Malaysia.

(e)He departed Pakistan in June 2010 and has not returned. 

Findings about past events in Malaysia

In light of the mostly consistent, plausible and detailed nature of his evidence, the Tribunal makes the following findings about events in Malaysia:

(a)The applicant resided in [Malaysian location], with his father, from June 2010 to [July] 2012.

(b)During that period he worked in his father’s [business] and was paid a salary. 

(c)In [2012] he renounced his Pakistani citizenship and was granted Malaysian citizenship.

(d)He did not experience any mistreatment or adverse action in any way or form in Malaysia. 

However, contrary to his evidence about his other claims, the applicant’s evidence in support of his claim that his [Relative B] travelled to Malaysia in May 2012 in order to harm him, was vague, confused and lacking in detail, and difficult to understand.  For example, at the time of the alleged incident, the applicant had been living with his father in Malaysia for two years, and neither of them had returned to Pakistan in that period, and his evidence did not suggest or indicate that anything had happened to his family in [District 1], nor did it indicate or suggest a trigger event or reason for his [Relative A] to take the incredible step of sending a family member from Pakistan to Malaysia to kill or harm the applicant or his father.  When asked why his [Relative A] would send [Relative B] to Malaysia to target him, the applicant said that he thought it was because his [Relative A] wanted the land for his [son] and that they came after him in Malaysia because he had escaped to Malaysia after they attacked him in [District 1].  However, as put to him, on one view, it did not make logical sense that they would target him before his father, as he would only inherit the land after his father died.  In response to that he claimed that his [Relative A] wanted him out of the way so they could get the land once his father died. 

Further, it was also difficult to understand why, if [Relative B’s] intention was to travel from Pakistan to Malaysia to commit a violent criminal offence in Malaysia, he would arrive in Sarawak and approach people he did not know and ask them questions about the applicant and his father.  As discussed with the applicant, it is reasonable to assume that, in such a scenario, an assassin would act with more caution so as to not alert his target to his presence, and would have taken some basic steps to find out where the target lived without having to ask people he did not know.  The applicant’s response to this contention was to say that there are good and bad people everywhere and that he did not know why [Relative B] did what he did and does not know what happened.  He said that maybe people saw [Relative B] there and assumed he was looking for them.  Significantly, his evidence indicated that neither he nor his father had any form of direct or indirect contact with [Relative B] in Malaysia, and his claim was based on what his father told him that his father had been told by his father’s ‘business contacts or friends’; he told the Tribunal that people his father knew in Sarawak told his father that a man from Pakistan was asking questions about his father.  Moreover, his evidence does not indicate that his father subsequently confirmed that [Relative B] or another person was or had been in Malaysia, at any time, for the purpose of harming or delivering a threat to the applicant or his father.

For these reasons, having carefully considered the evidence before it, the Tribunal is not prepared to accept that his [Relative A] sent an agent to Malaysia in May 2012 for the purpose of harming or delivering a threat to the applicant or his father, as claimed.  Accordingly, the Tribunal does not accept that the applicant or his father had been threatened or been at risk of being harmed in Malaysia, for the reasons he claimed, at the time the applicant departed Malaysia in June 2012, and it does not accept that he left Malaysia for the reasons he claimed. 

In the Tribunal’s view, these findings are supported by and are consistent with his evidence that his father remained in Malaysia from June 2012 to November 2013, without incident, and that his father returned to Pakistan and lived in [his home village] for approximately eight months between November 2013 and June 2014, without incident.  Indeed, it is difficult to understand why, if his [Relative A] had such a strong intention to kill or harm the applicant that he would send [Relative B] to Malaysia to perpetrate such a crime, that his [Relative A] would not take some form of adverse action against the applicant’s father during that period, particularly when his father is the person who holds the title to the property.

Findings about events in Pakistan between June 2014 and September 2016

In light of the mostly consistent and detailed nature of his evidence, the Tribunal accepts that the applicant’s [Relative C] passed away in July 2014, and that his father returned to Pakistan for her funeral in July 2014. 

1. With regard to his claim that his father disappeared on his third or fourth day back in Pakistan, the Tribunal had a number of concerns about this incident, as, while it was consistent, the applicant’s evidence was mostly vague and lacking in detail.  Further, on one view, if his father’s disappearance was caused by the applicant’s [Relative A] for the purpose of gaining his father’s share of the property, then it is difficult to understand why the body has not been produced for the purpose of obtaining a death certificate, which it is reasonable to assume would be a necessary piece of evidence to claim ownership of the land.  It was also difficult to understand why his family have not taken action in response to the disappearance.  Indeed, according to the applicant, his family have not contacted the authorities or reported his father as missing, and he did not indicate that his family had taken any other steps to locate his father or to initiate an investigation into his disappearance.  While his explanation for their conduct and lack of action, that they feared retribution from his [Relative A], who is aligned to the local Jirga, is plausible, if his [Relative A] was so keen to acquire the property, then it is difficult to understand how the applicant’s mother and her family have been able to continue to live in the same house without incident.  Nevertheless, despite these concerns, for the purpose of this decision, the Tribunal is prepared to afford the applicant the benefit of the doubt and accept that his father has been missing in Pakistan since about July 2014. 

   Is there a real chance the applicant would suffer persecution on return?

2. In light of the above findings, the Tribunal must consider whether the applicant’s fears of being harmed on return are ‘well-founded’.  The High Court of Australia has held that a person has a ‘well-founded fear’ of persecution if he has a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason.  In the leading case on the issue, the former Chief Justice of the High Court, Sir Anthony Mason stated that the expression ‘a real chance’:[16]

   … clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring.  This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

   The High Court’s decision in Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50%. Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is ‘well-founded’ and it can be reached even if the event feared is ‘unlikely to occur’ and has only a ‘10 per cent chance’ of occurring, however, the chance of it occurring must be more than ‘far-fetched’ or ‘remote’,[17]  and the evidence must indicate ‘a real ground for believing that the applicant … is at risk of persecution’; a fear ‘is not well-founded if it is merely assumed or if it is mere speculation’.[18]  

   [16]    Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389.

   [17]    Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 per McHugh J.

   [18]    Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.

3. As noted above, the applicant is national of Malaysia and the Tribunal must assess his claims against Malaysia and not his former country of nationality, Pakistan, and his clear evidence was that he has no intention of ever returning to Pakistan.  The evidence before the Tribunal indicates that he has been outside Malaysia for more than four years, and that during the two years he lived in Malaysia he was not subjected to any form of adverse treatment or harm.  The issue for determination is whether, on the basis of the circumstances that exist now, his fears of future harm in Malaysia are well-founded, as understood in the terms set out above. 

4. He claims that he would be subjected to serious harm in Malaysia by his [Relative A] or his agents because his [Relative A] wants the property in [District 1] that the applicant stands to inherit from his father, who has been missing since July 2014.  However, his evidence in support of this claim was vague and based on speculation and, as put to him at the hearing, his evidence did not indicate that the chance of him being harmed in Malaysia by his [Relative A] or his [agents] was anything more than a remote chance.  Indeed, when the Tribunal asked him why his [Relative A] would care about him if he did not return to Pakistan, the applicant initially agreed that his [Relative A] would not care about him as long as he stayed in Malaysia and did not go back to Pakistan; however, he subsequently claimed that, to ensure he did not go back to Pakistan and claim his father’s share of the land, his [Relative A] would seek to kill him in Malaysia.  When the Tribunal asked him to explain how his [Relative A] would even know that he was back in Malaysia or how his [Relative A] would locate him in Malaysia, he claimed that, if someone who knew his [Relative A] saw the applicant in Malaysia, that person would tell his [Relative A] and his [Relative A] would then target him.  However, he did not identify a person who lives in Malaysia who is connected to his [Relative A] or a member of [Relative A’s] family, but claimed that there were people from [District 1] ‘all over Malaysia’ and that his [Relative A] would locate him through one of those people. 

5. He also claimed that his [Relative A] would locate him in Malaysia through his contact with his mother and that if she went to see him in Malaysia his [Relative A] would locate him; however, he said elsewhere in the hearing that he would not bring his mother to Malaysia because, apart from him, she had no other family or support network in Malaysia and if anything happened to him she would be alone. 

6. In considering this claim, the Tribunal has taken into account his evidence that he has had no contact with his [Relative A] or [other specified relatives] since he left Pakistan in June 2010, and that he has not been threatened by his [Relative A] or [other specified relatives] or their agents in the six years since he left Pakistan, and that nothing has happened to his mother or his [Relative D] or any other member of his mother’s family in that time.  It has also taken into account the fact that he has no family or relatives who live in Malaysia, and that he did not identify any people known to his family or relatives who live in Malaysia.  It has also taken into account his clear evidence that he had no intention of ever returning to Pakistan. 

7. The Tribunal has carefully considered his claims, however, on the evidence and information before it, considers the chance of him being subjected to harm in Malaysia by his [Relative A]or his [Relative A’s] agents in the reasonably foreseeable future, is remote and far-fetched, and it does not accept that there is a real chance that he would suffer serious harm in Malaysia by or on behalf of his [Relative A]. 

8. With regard to the claim raised by his agent in his written submissions that human rights problems are rife in Malaysia, and that, as he would be alone and without family support, the applicant would be vulnerable and exposed to harm if he returned to Malaysia, the Tribunal notes that the applicant did not refer to or mention this claim at the recent hearing, and that he told the Tribunal that his only fears of being harmed in Malaysia related to his [Relative A].  As noted in the delegate’s decision, independent information from credible sources, including DFAT in its 2014 report, which it confirmed more recently in its July 2016 report, Malaysia is ‘one of south-east Asia’s most vibrant economies’ and is a multi-ethnic, multi-religious society encompassing a majority Muslim population, and that while like many countries of the world it faces a number of issues that could reasonably be described as ‘human rights problems’, in the Tribunal’s view, the available independent information does not indicate or suggest that, in his circumstances as [an age] year old single Muslim man originally from Pakistan, who is without family and has been traumatised by his father’s disappearance and his separation from his mother and family, there is a real chance that the applicant would suffer serious harm in the event he returned to Malaysia and lived by himself without family support or assistance in Malaysia.  While the Tribunal accepts that he would initially face a difficult period in adjusting to life in Malaysia without his father, he has demonstrated by his conduct in Australia, a country in which he had no contacts before his arrival, that, despite being alone and without family and despite being traumatised by his father’s disappearance and his separation from his mother and family, he was able to adapt to a new environment and find work and accommodation, and, on the evidence and information before it, the Tribunal does not accept that there is a real chance he would suffer harm in Malaysia for any of these reasons in the reasonably foreseeable future.

9. Accordingly, on the evidence before it, and having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept that there is a real chance that he would suffer serious harm for a Convention reason if he returned to Malaysia now or in the reasonably foreseeable future.  Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution in Malaysia.

   Complementary protection

10. 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) and has had regard to ‘PAM3 Refugee and Humanitarian - Complementary Protection Guidelines’.

11. With regard to his claims to fear being harmed in Malaysia by his [Relative A] or his agents, in light of its earlier reasons with regard to there not being a real chance he would suffer harm for those reasons, the Tribunal considers there are no substantial grounds for believing there is a real risk he will suffer significant harm in that way. 

12. With regard to his claims to fear being harmed in Malaysia because he would be alone and without family, in light of its earlier reasons with regard to there not being a real chance he would suffer harm for those reasons, the Tribunal considers there are no substantial grounds for believing there is a real risk he will suffer significant harm in that way. 

13. Having considered the applicant’s circumstances singularly and on a cumulative basis, the Tribunal finds there are no 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. 

    CONCLUSIONS

14. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations and it finds that he does not satisfy the criterion set out in s.36(2)(a) or (aa).  There is no suggestion 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) for a Protection visa.

    DECISION

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

    Christian Carney

    
    

    Member

    APPENDIX 1 - RELEVANT LAW

16. Section 65(1) of the Act provides that a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.  The criteria for a Protection visa are set out in s.36 of the Act.  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 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), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person in respect of whom Australia has protection obligations under s.36(2) and that person holds a Protection visa of the same class.

17. 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.

    Refugee criterion

18. 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 Refugees Convention.  Generally speaking, as a party to the Refugees Convention, Australia 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.

19. The High Court of Australia has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51. Sections 91R and 91S of the Act qualify certain aspects of Article 1A(2) for the purposes of the application of the Act and Regulations to a particular person.

20. There are four key elements to the Convention definition.  Firstly, an applicant must be outside his or her country.  Secondly, the applicant must fear persecution, which, according to s.91R(1) of the Act, must involve ‘serious harm’ and ‘systematic and discriminatory conduct’.  The expression ‘serious harm’ includes, for example, a threat to life or liberty; significant physical harassment or ill-treatment; or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2).  The High Court has said 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 condoned or be incapable of being controlled by the authorities of the country of nationality.  However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.  Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.

21. Thirdly, 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).

22. Fourthly, an applicant’s fear of persecution for a Convention reason must be ‘well-founded’.  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 a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason.  A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation.  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.

23. 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.

    Complementary protection criterion

24. 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’). 

25. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).  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.

26. 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).

    Credibility

1. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions including Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

2. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Foster J stated at 482 that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.” Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

3. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed at [25]:

   First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

4. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”  Nevertheless, as Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

   … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

5. Indeed, as the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (unreported, 17 September 1998) “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”  On this point, the Tribunal also takes into account the comments of Professor Hathaway in The Law of Refugee Status" (1991, Butterworths) at pages 84-86.  Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true: see MIMA v Rajalingam (1999) 93 FCR 220. The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191]:

   … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.