1504684 (Refugee)

[2016] AATA 4159

1504684 (Refugee) [2016] AATA 4159 (19 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504684

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sean Baker

DATE:19 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 19 July 2016 at 10:51am

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. [The applicant’s name] (also referred to here as ‘the applicant’) and [his partner] are Malaysian nationals, who declared their ethnicity as Chinese and their religion as Catholic. They can both speak English, Bahasa and Chinese. [The applicant] claims that his life has been threatened by village leaders with strong religious associates. He claims he was harmed by a group of Muslim religious people who beat him and put him inside the temple and tortured him, one of them unclothed him and threatened [serious physical harm] if he did not marry his daughter and join the religion. He fears he will be tortured and harmed by his ex Muslim girlfriend with her father (a village leader) and the associates. He believes this will happen because his parents tell him that the village leader regularly goes to his parents’ house to peek and shout his name and ask for him. He does not believe the authorities will help him because before he started to make the report the male police officer asked him to explain what happened and after he explained they laughed at him and told him to go away. [The applicant’s partner] applied as a member of [the applicant’s] family unit, but also claimed to fear harm as a result of sheltering [the applicant].

2. Their applications for protection were refused by a delegate of the Minister for Immigration and they have applied to the Tribunal for review of those decisions. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant.  The issues in this review are whether [the applicant] or [his partner] have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Malaysia and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of either being removed from Australia to Malaysia, there is a real risk that either will suffer significant harm. If so, the other may be owed protection as a member of the family unit of the other.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

5. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

6. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Identity and Nationality

8. On the basis of the evidence provided to the Department I accept that the applicants are who they claim to be and are nationals of Malaysia, their receiving country. On the basis of the evidence before me and with no evidence to the contrary I find that they do not have a right to enter and remain in a third country. I accept that they both identify as of the Chinese ethnicity and are both Catholics.

   Does [the applicant] or [his partner] have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Malaysia?

   [The applicant’s] claims and evidence and consideration of claims

9. [The applicant’s] claims from his protection application are set out above. With his application for review he provided the decision record, a statement, and several photographs.

10. In the statement, received 1 April 2015, he addressed concerns in the delegate’s decision. He explained how and why he formed a relationship with the daughter of a Muslim leader, saying that he knew her when he moved and lived in their village with his parents and became her neighbour about 10 years ago. He explained the circumstances of their break up, saying that 3 years ago they broke up because they wanted different things in life somewhat and they realised they didn’t suit each other’s personalities as he could not take food if it was not halal, and he was forced to change his lifestyle. Marrying Malay people they have to convert to Islam and he did not want to convert from Christianity to Islam. He explained why his ex-girlfriend’s father insisted on her being married to him, a Chinese Catholic man, saying that in Islam, sex before marriage was a sin and shameful to Allah. Her father was a Muslim leader of the village and it was very hard for him facing that his daughter had had sex before marriage and her father felt he had no choice but to insist that his daughter marry [the applicant]. He explained why he waited two and a half years to apply for protection, saying that after two and a half years, he received a call from his parents who told him that the Muslim girl and her father brought policemen to search for him – the matter became more serious. He does not know why they made a police report case under section 376 after two and a half years, and says that her father is trying to frame him as having raped the Muslim leader’s daughter, so he cannot return to Malaysia otherwise they will put him in prison. The police officers in Malaysia can do whatever they like, and can put him in jail because of money. A Malay saying is that police is king in Malaysia, and this can be found in their police station and written on their uniforms. Those who have money can give to the police and make a fake police report and put him in prison, so he decides not to go back to Malaysia forever. He wishes to have protection and a visa to stay here lawfully. 

11. Three photographs of the applicant show scars on his [specified body parts] which it is claimed were caused by the Muslims hitting him with hard wooden sticks, punching and kicking him until he half died, and his [body part] was nearly disabled.

12. [The applicant’s partner] made claims at the hearing about why she feared harm on return to Malaysia, which were bound up with the claims of [the applicant] and are dealt with below.

13. At the hearing I developed considerable doubts about the claims and the credibility of the applicants. I put significant inconsistencies in their stories to them at hearing, allowing them to comment or respond, and made them aware of the issues and concerns I had with their claims.

14. [The applicant’s] evidence on his claimed relationship with the daughter of a Muslim village leader was vague and undetailed. He was unable to explain the implausibility of the daughter of a Muslim village leader becoming friends with, and then becoming romantically and sexually involved with, an older Chinese Malay man. He claimed that he had known this woman in [Town 1], Selangor, since they were little, and then when he was in a share house with friends when he was [age] and she was [9 years younger], in 2010, they began a relationship which only lasted a few months and then ended, but her parents knew they had had a sexual relationship and wanted him to marry her. I noted to him that it was hard to believe that a young, unmarried Muslim girl would form a relationship with an older Chinese man or that her family would permit her to spend time with him. In response he said that they were neighbours when they were little, and when they were going out they did not consider too much about race or religion; that was how they started. I noted that if, as claimed, her father was the village leader, I had great difficulty accepting that he would allow his unmarried daughter to spend time with an unmarried male. The applicant said that her parents did not know anything about this as when they went out they went out in private most of the time and they would never hold hands with each other. I asked, in those circumstances, how he was able to have the claimed sexual relationship with her and he said that there was a day when he invited her to the share house and that was how they had a sexual relationship. I noted he had said that the relationship only lasted for a few months and asked what had ended it. He said that basically she invited him to see her father and the meeting place was in a mosque, so her father waited to see him in a mosque, and when he went to the mosque, there were many other people, they tied his legs and hands together and began to talk about how he should marry the leader’s daughter. He said he was still in a relationship with the daughter at this stage. He said that they wanted him to convert to Islam and he told them, because he only began a relationship a few months ago he had not fully understood and asked them to give him 1-2 years to consider the conversion. They did not let him consider and began to assault him physically with bare hands and other furniture as well. He said that they assaulted him until he had lots of bleeding in his body and then they stopped assaulting him, then the daughter saw him, and at that time she was heartbroken and asked her father to let him go to hospital for examination first. I asked what happened then and he said that he went for a checkup in hospital and then he was too afraid to return home and he went to [his now partner’s] house and she looked after him and cooked for him and after a year he was fully recovered.

15. The applicant’s claims about the relationship were vague. His explanation of how they knew each other as children (despite a 9 year age gap), and then became friends and then lovers when older was general and undetailed. I found his explanations of why a young Muslim girl would form a relationship with a significantly older Chinese male, how her family would allow this to occur, and how they were able to conceal their friendship and relationship from her family, unconvincing. The description of the asking him to convert, assaulting him, and then them letting him go after attacking him I find implausible. When I consider his claims about these events, in light of my concerns with his evidence, I have reached a positive state of disbelief that these events occurred. Despite giving him ample opportunities to address my concerns during the hearing, he was not able to explain or give further detail.

16. [The applicant] claimed that he then fled to [his partner’s] house. I asked if the Muslim leader and his associates had tried to find him and he said that he had been at [his partner’s] for a long time, had never gone out and so was not sure if they had been looking for him. I noted that he had claimed earlier that he was working as [an occupation] during this time. He said that at that time he only did certain work which was not heavy duty. I noted I was not referring to his injuries, but that it appeared if he was working, and these people had wanted to find him, it would have been very easy for them to find him at his workplace. He said that he could do his job at home, as people sent the [products] to his place [to work on], so normally he did things at home, so he didn’t have to go out. I asked him the name of his business and he said [business name]. I asked then, if they had wanted to find him, could they not have just looked up [business name] and found where he had [products] sent and found him that way. He then said that he had closed his business down, he used to have a shop, and then he was staying in [his partner’s] house and normally he only got private clients, so they had not found him. I asked him what had happened then and he said that he didn’t know how the Muslim people knew he was staying in [his partner’s] house and they decided to get away from them, that is why they went to [two other countries] together, they thought this was too close, and so to get away from these guys they came to Australia.

17. I found [the applicant’s] evidence on his claims to have hidden at [his partner’s] place for a year whilst his injuries healed, from March 2011 until they departed for Australia, to be inconsistent with other evidence he had provided in his application and at hearing that he had worked as [an occupation] from 2005 to 2012. At hearing he then attempted to reconcile these claims by saying that he had been working at home, having closed his shop and having only private clients. I do not accept this explanation and I consider it significant that he has stated he was working during a year-long period when he has also claimed to have been injured and bandaged, and to have been hiding at [his partner’s]. I find these claims, despite his attempts to reconcile them, to be inconsistent and to further indicate that these claimed past events have not happened.

18. Both applicants have stated that they travelled briefly to [two other countries] in the same month that they then travelled to Australia, May 2012. When I asked [the applicant] why he had travelled he said for sightseeing. When I asked him later why, given his fears of harm in Malaysia, he had not sought to remain in [one of the two other countries] he said because it was too close; he did not have peace in his heart. I noted that he had remained at [his partner’s] for a long time without anything apparently happening to him, why would staying in a different country be less safe. He said he had tried to stay in [the two other countries] but it was still too close, he said he reckoned Australia would be a safe place for him. I noted the fact he had not stayed in [either of the two other countries] for longer might indicate to me that he was not in fear at that time, which might lead me to doubt his claims of what had happened to him in Malaysia.

19. [The applicant] has attempted to address the issue of delay raised by the delegate in the delegate’s decision, where the delegate found that he had not explained why he had waited two and a half years to apply for protection in Australia, despite his stated fear of being killed if he returned to Malaysia. He claimed in the statement he provided to the Tribunal that this was because he had had a call from his parents after two and a half years telling him that his ex-girlfriend and her father had falsely accused him of raping her and the Malaysian police were searching for him. I do not find this claim, made for the first time in his statement to the Tribunal, convincing. He stated that the call from his parents had been in October 2014, more than three and a half years after the attack on him in the mosque, the last contact he had had with his ex-girlfriend or her father and his going and hiding at the house of [his partner]. I noted that this seemed an improbably long time after these events for the Muslim leader and his daughter to accuse him of rape, which caused me to doubt that this had occurred. Further, even if I accept this phone call occurred, it does not, in my view, explain why he delayed some two and a half years after arriving in Australia to seek protection. According to his claims, when he arrived in Australia, he had been assaulted, and he claimed to have come to Australia to avoid being seriously harmed. He later claimed that before travelling to Australia he had sold his house, and that his prime aim in coming here was not to work. It is then a concern that he did not seek protection soon after arriving, but delayed for a considerable period of time. I clarified with him that they had arrived here on three month visas. [The applicant] was clear that they became unlawful after this time, and lived like other unlawful people in caravan parks. I noted that information on seeking protection was available in Cantonese. Later [the applicant] also said that the primary reason he came to Australia was for peace and protection, but then they realised that if they sought protection they would not be allowed to go back to Malaysia, and they had to make a difficult decision to leave their heritage in Malaysia. He said for [his partner], she owned a house worth quite a lot, and if they applied for a protection visa she also had to give it up and her [business] as well. I accept that they may have had to make difficult choices about their application for protection but I find it does not follow that this would lead to them delaying applying for such a considerable period of time. I do not accept the applicant’s explanations for why he delayed applying for protection for such a significant period of time, and I find this casts serious doubt on his claims to fear harm on return to Malaysia.

20. The above findings lead me to find that [the applicant] was not ever in a relationship, sexual or otherwise, with the daughter of a Muslim village leader, I find given my concerns above that he has completely invented this claim. I do not accept that his life has been threatened by village leader with strong religious associates, that he has been tied, beaten or tortured by a group of Muslim people in a mosque/temple, I do not accept that one of them unclothed him and threatened [serious physical harm] if he did not marry the leader’s daughter and join the religion. I do not accept that he has been pressured in any way to join Islam for this or any other reason. I do not accept that after he claimed to have been released he hid at [his partner’s] house. Given my above findings I have had regard to the photographs but I do not accept that he sustained these claimed injuries in the manner claimed. I do not accept that the village leader regularly goes to his parents’ house to peek and shout his name and ask for him. I do not accept that the applicant went to make a police report about the assault and was laughed at by the police.

1. Further, I do not accept that he received a call from his parents who told him that the Muslim girl and her father brought policemen to search for him, nor that they or anyone have made a police report case under section 376 that he raped the daughter. I do not accept that the police are looking for him or wish to arrest him and put him in jail for the accusation of having raped the daughter or for any other reason. On the evidence I do not accept that the police or other authorities have any interest in the applicant whatsoever.

2. I find therefore that there is no real chance that the applicant will be searched for, tortured or harmed, made to convert or forced to marry the daughter by the Muslim village leader, a group of Muslims, his associates or anyone else, nor that he will be arrested or put in jail by the police or anyone else, for the reasons he has claimed or for any other reason.

3. When asked if he feared any other harm on return the applicant said that he had no other fear and reiterated the above fears. I find that the applicant has not claimed, nor is there any evidence he will be harmed on return to Malaysia for any other reason.

   [The applicant’s partner’s] claims and evidence and consideration of her claims

4. [The applicant’s partner] did not specifically make claims, although her story has been entwined with [the applicant’s]. At hearing she said that she feared returning to Malaysia because the problems from [the applicant] had affected her as well and she was quite afraid of going to work and back home as well. I asked her why this was and she said that she understood that because of his previous relationship, and since he got injured and was staying at her house, the matter became very serious and she started to realise that there were people following her, and had slashed the tires of her car. She said she really feared that when she went back to work and got back home she would be harmed. She said that because of the fear she suffered stress and insomnia and had to take sleeping pills. She said that since she had been gone people had come to her [business] and broken in and vandalised a few things. I asked her if she was telling me that these people looking for [the applicant] knew where she lived. She said yes, she didn’t know how they found out where she lived but they discovered where they were. I noted to her that [the applicant] had not told me this in his evidence. She said that she thought that [the applicant] was too stressed and nervous.

5. Later in the hearing I put this inconsistency to both parties, noting that [the applicant] had said he hid at [his partner’s] house for a year and had not said that the people had found out where she lived, and did not mention she had had her tires slashed. [His partner] had said the people found out where she lived, followed her, and slashed her tires and she was afraid to go to work. The applicants indicated they understood this information. I then put to them that this information may be relevant because I expected that they would be able to give a consistent account of what happened in Malaysia and noted that I may find that they had not suffered harm in the past and the things claimed have not happened. They indicated they understood. I gave them an opportunity to respond then or later and they indicated they wished to respond straight away. [The applicant’s partner] said that because they were really stressed and nervous they found it hard to give accurate information and that was why there were inconsistencies. [The applicant] spoke about their reasons for not applying sooner. When I noted he had not responded to my concerns he then said that when he was at [his partner’s] he was staying at home all the time, and [his partner] had not mentioned anything to him in the past. I noted I found it hard to believe that she would not have mentioned to him that the people he claimed were looking for him had found out where [his partner] lived.

6. I do not accept the explanations for these inconsistencies, and I find that their inconsistent evidence means that [the applicant] was not in hiding at [his partner’s], that no one was looking for him there, for any of the reasons claimed or any other reasons, that [his partner] was not followed by anyone, nor that she had her tires slashed

7. I noted to [the applicant’s partner] that I had concerns about the period of time she had spent in Australia and delayed applying for a protection visa, and noted that she claimed to fear returning to Malaysia, and had claimed that she had felt afraid, that people had followed her and slashed her tires, and therefore I was concerned that she had not sought to apply for protection earlier after arriving in Australia. She said that they did not know too much about Australian law, they knew they may become unlawful here but it was better than going back to Malaysia as they wanted to wait for this situation to get better, but then eventually the situation was the same. I also accept the evidence, as above, that [the applicant’s partner] had a house worth a considerable amount, and that on applying for protection she would have had to decide to abandon her house and [business]. As above I accept that this may have been a difficult decision but as above I do not accept that this explains the very considerable delay. Having discussed these matters with her I do not accept her explanations for delaying applying for protection for such a considerable period and I find this casts serious doubt on her claims to fear harm on return to Malaysia.

8. On the basis of the above I find that [the applicant’s partner] was not ever followed, had her tires slashed, or had any other harm or threat of harm to her as a result of [the applicant] or for any other reason. This leads me to find that she has invented her claims. A further result of my findings is that I give her evidence no weight in assessing the chance or risk of harm to [the applicant].

9. I find therefore that there is no real chance that [the applicant’s partner] will be harmed by anyone because of her hiding, association with or relationship with [the applicant], or for any other reason.

10. She has not claimed to fear harm for any other reason. I find that [the applicant’s partner] has not claimed, nor is there any evidence she will be harmed on return to Malaysia for any other reason.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] or [his partner] being removed from Australia to Malaysia, there is a real risk that either will suffer significant harm?

    Consideration of [the applicant’s] claims

11. Having regard to my findings of fact above, I have found that [the applicant] would not be searched for, tortured or harmed, made to convert or forced to marry the daughter by the Muslim village leader, a group of Muslims, his associates or anyone else, nor that he will be arrested or put in jail by the police or anyone else, for the reasons he has claimed or for any other reason. I asked the applicant if there were any other reason he feared harm on return to Malaysia and he indicated there was not, and I so find on the evidence before me. I have considered the totality of [the applicant’s] circumstances that I accept, as a Malaysian of Chinese ethnicity, who speaks Cantonese, and on the evidence before me I do not accept that there are 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.

    Consideration of [the applicant’s partner’s] claims

12. Having regard to my findings of fact above, I have found that there is no real chance that [the applicant’s partner] will be harmed by anyone because of her hiding, association with or relationship with [the applicant]. I asked [his partner] if there were any other reason she feared harm on return to Malaysia and she indicated there was not, and I so find on the evidence before me. I have considered the totality of [his partner’s] circumstances that I accept, as a Malaysian of Chinese ethnicity, who speaks Cantonese, and on the evidence before me I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant’s partner] being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm.

    Conclusions

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

    DECISION

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

    Sean Baker
    Member