1505867 (Refugee)

[2016] AATA 3962

1505867 (Refugee) [2016] AATA 3962 (6 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505867

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Chris Thwaites

DATE:6 June 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 06 June 2016 at 2:07pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

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

3. [In] April 2015 the delegate refused to grant the visa.

4. On 30 April 2015 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application.

6. The applicant’s initial written reasons for claiming protection are contained in his visa application forms. In those forms the applicant claims the reason he left his country was because he met a Malay girl, named [Ms A]. She was a regular customer at the applicant’s [business]. They started to date and went to dinner many times. As the relationship developed they became lovers. Later, a man came to the applicant’s [business] and beat him up, and said he was [Ms A]’s husband. The applicant states he is very evil and threatened to kill the applicant and his family so he escaped to Australia. The applicant indicates he has experienced harm in his country and states he was beaten up badly by the Malay man. The applicant states the Malay man also threatened the applicant’s family. The applicant states that if he goes back to his country, the Malay man, [Ms A]’s husband, will go to the applicant’s place to find him and beat him up badly. The applicant states his [body part] was badly injured before, and he fears this will happen again. The applicant indicates he thinks the Malay people, [Ms A]’s husband, may harm/mistreated him if he goes back to his country. The applicant states that although two years have passed, [Ms A]’s husband still sent a lot of Malay people to search for him. The applicant states his parents have told him not to go back as they are always being threatened many times, and they have threatened to kill the applicant. The applicant states the Islamic will also want to force him to become an Islamic. The applicant states he can’t change himself to Islamic. The applicant indicates he does not think the authorities of his country can and will protect him if he returns. The applicant states he reported to the police, the police said they are Islamic. They could not do anything. The police also asked the applicant to become an Islamic. The applicant states this is how the police treated him. The applicant states he can’t get any protection.

7. As noted above, [in] April 2015 the delegate refused to grant the applicant a protection visa. The delegate’s decision record indicates that [in] January 2015 the applicant was sent a letter acknowledging receipt of his application and inviting the applicant to contact the Department to arrange an interview to discuss his claims. The decision record indicates the applicant did not contact the Department to arrange an interview and therefore the delegate made the decision on the information before her.

8. The delegate noted the applicant’s claims are very brief and vague and the applicant had not provided sufficiently detailed information about the events he claims occurred in Malaysia and the reasons why he would be harmed if he returned. The delegate noted the applicant had not provided any supporting documentary evidence to collaborate his claims and had not substantiated his claims in any way. The delegate noted the applicant had not contacted the Department to arrange an interview as he had been invited to do so. The delegate considered it reasonable to expect someone who genuinely fears harm to present their case and sufficient detail for the examiner to be satisfied of the genuineness of their fears. The delegate noted the applicant had not lodged an application for protection until approximately two and a half years after his arrival in Australia and only after he had been living in Australia unlawfully for a period of over two years. Based on the applicant’s migration history and the lack of detailed evidence in support of his claims, the delegate did not accept the claims to be credible or genuine.

9. The delegate was not satisfied the applicant had a real chance of being persecuted for a Refugee Convention reason and therefore was not satisfied the applicant’s fear was well-founded. The delegate was not satisfied Australia had protection obligations to the applicant under the Refugees Convention and therefore the applicant did not meet the criteria for the grant of a protection visa under s.36(2)(a). The delegate was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there was a real risk the applicant would be subject to significant harm. Therefore the delegate was not satisfied Australia had protection obligations to the applicant under s.36(2)(aa). Therefore the delegate refused to grant the applicant a protection visa.

10. As noted above, on 30 April 2015 the applicant applied to the Tribunal for review of that decision.

11. The applicant appeared before the Tribunal on 2 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

12. During the hearing the applicant told the Tribunal he feared returning to Malaysia because the Muslim girl’s ([Ms A]’s) husband and friends continue to look for him, and if they found him, while he doesn’t know what the rules of Islamic are, he fears he would be beaten, and fears they would break his hands or feet.

    RELEVANT LAW

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

    Refugee criterion

14. 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).

15. 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.

16. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

18. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

19. 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.

20. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

21. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

22. 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.

23. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

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): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

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) of the Act.

    Section 499 Ministerial Direction

27. 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.

    FINDINGS AND REASONS

    Nationality

    Country of nationality

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

    Credibility

29. During the hearing the applicant told the Tribunal that a friend helped him complete his visa application forms. His friend asked the applicant the questions on the forms and wrote down the applicant’s answers. The applicant indicated that to his knowledge the information in the forms was true and correct and he did not wish to add or change anything.

30. During the hearing the Tribunal discussed with the applicant his background in Malaysia, his family composition, education and employment history, as well as his relationship with [Ms A] and the reasons he left Malaysia and his fears of returning. In summary the applicant told the Tribunal that a Muslim girl named [Ms A] came to the [business] where he was working and they had developed a relationship and become lovers and planned to marry. He told the Tribunal he was not aware she was married, and that seven or eight months after he first met [Ms A] her husband came to his [business] and asked him if he knew [Ms A] and if they were together, and then informed the applicant he was [Ms A]’s husband and wanted to beat the applicant up and called people to go to his home. The applicant told the Tribunal he reported the incident to the police who said they couldn’t interfere with Muslim affairs. The applicant told the Tribunal that after this incident he stopped working and hid at his [sibling]’s house, away from his home. The applicant told the Tribunal that while out shopping he was seen, chased and caught, and hit on the foot before he escaped. The applicant told the Tribunal he hid and then came to Australia, and since he has been in Australia [Ms A]’s husband and friends have visited his home asking for the applicant many times.

31. The Tribunal raised its concerns about some of the applicant’s oral evidence, including his evidence about when he met [Ms A] and how the relationship developed over time. The Tribunal also raised its concerns about differences between the applicant’s oral evidence and the information he provided in his visa application forms, as well as the applicant’s delay in making his protection visa application. The Tribunal finds the applicant is not a witness of truth, and the Tribunal is not satisfied the applicant has told the Tribunal the truth in relation to critical aspects of his claims. The reason for this finding is discussed in more detail below.

32. During the hearing the applicant initially told the Tribunal he met the Muslim girl ([Ms A]) around April or May 2011 when she came to his [business] to buy [product]. She then visited his [business] a few months later [for another product], and then six or seven months later she visited again. The applicant told the Tribunal she last visited his [business] in October 2011. The Tribunal raised its concern that October was only five months after May and therefore the applicant’s oral evidence about the period between her visits did not make sense.  In response the applicant told the Tribunal they spoke on the telephone between visits. The applicant told the Tribunal they began a relationship six months after their first meeting.

33. On questioning, the applicant told the Tribunal they began communicating by telephone three to four months after her first visit to his [business], after she called him to have a chat. The applicant told the Tribunal they spoke about ordinary things and chatted about if they could be together. The applicant told the Tribunal that six months after they first met they went on their first date and were speaking on the telephone everyday by that time. On further questioning the applicant then told the Tribunal they had begun speaking on the telephone two to three months after her first visit to his [business]. The Tribunal raised its concerns that the applicant’s initial oral evidence had been that she had telephoned him three or four months after her first visit to his [business]. In response the applicant told the Tribunal that for the first two to three months they did not speak on the telephone, she came to the [business], and then after three or four months they began to speak on the telephone. The Tribunal notes the applicant’s initial oral evidence indicates [Ms A] first visited his [business] around April or May and made her second visit to his [business] a few months later.

34. While the Tribunal does not expect the applicant to recall exact dates the Tribunal found the applicant’s oral evidence about the timeline and initial contacts between him and [Ms A] confused and inconsistent and changed when questioned in more detail. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

35. During the hearing the applicant told the Tribunal that [Ms A]’s husband came to his [business] about seven or eight months after the applicant first met her. He told the Tribunal her husband knew where his [business] was as he had followed [Ms A] there. The applicant told the Tribunal her husband came to the [business], asked about [Ms A], and when the applicant told him the applicant was in a relationship with [Ms A], her husband then threatened to beat the applicant and also sent people to his home. The Tribunal raised its concerns that the applicant’s oral evidence was different to the information he provided in his visa application forms. The Tribunal noted the applicant’s visa application forms claim that a man who identified himself as [Ms A]’s husband came to his [business] and beat the applicant up.

1. In response the applicant told the Tribunal he filed the application some time ago and may have forgotten. The applicant told the Tribunal when [Ms A]’s husband visited his [business] they just talked, but he did beat the applicant when he visited his home. The Tribunal notes the information in the applicant’s visa application forms does not refer to the applicant being beaten at home by [Ms A]’s husband. While the Tribunal accepts that the passage of time can affect a person’s ability to recall detail, the Tribunal considers the experience of being confronted by the husband of a girlfriend, and assaulted, is significant and something the Tribunal would expect the applicant to be able to recall with consistency. The Tribunal considers the differences between the applicant’s oral evidence and the information in his visa application forms reflects poorly on the applicant’s credibility and the reliability of his evidence.

2. During the hearing the applicant told the Tribunal [Ms A]’s husband first came to his [business] in January 2012 and that the applicant then hid and stayed at his [sibling]’s from mid-January 2012 and stopped working at that time. The Tribunal raised its concerns that the applicant’s oral evidence was different to the information he provided in his visa application forms. The Tribunal noted that the information in the applicant’s visa application forms indicated he lived at an address in Malaysia, which he had identified as his parent’s home, up until May 2012. The Tribunal notes the applicant had told the Tribunal he arrived in Australia on [date] May 2012.

3. In response the applicant told the Tribunal his friend helped fill in the forms and the applicant did not know any English. The applicant told the Tribunal his friend communicated with him verbally and he did not know what he wrote.

4. The Tribunal notes the information in the applicant’s protection visa application forms provides a very specific address for the applicant in Malaysia up until May 2012. This is the same address the applicant provided in his initial oral evidence as the home owned by his parents who have lived there for more than 20 years, and the address where he had lived with his parents prior to travelling to Australia.

5. The Tribunal finds the applicant has provided different information in relation to where he was living prior to leaving Malaysia. The Tribunal is not persuaded that difference is explained by translation or communication errors between him and his friend who helped fill out his visa application forms. The Tribunal considers the difference between the applicant’s oral evidence and the information he provided in his visa application forms reflects poorly on the applicant’s credibility and the reliability of his evidence.

6. As noted above, during the hearing the applicant told the Tribunal [Ms A]’s husband first came to his [business] in January 2012 and that the applicant then hid and stayed at his [sibling]’s from mid-January 2012 and stopped working at that time. The Tribunal raised its concern that the applicant’s oral evidence was different to the information he provided in his visa application forms. The Tribunal noted the information in his visa application forms indicated the applicant worked in a [business] from April 2002 until March 2012.

7. In response the applicant told the Tribunal he did not know his friend wrote March, and since January he did not work. The Tribunal notes the information in the visa application forms is very specific, noting dates of employment for a number of different positions. In light of the Tribunal’s other credibility concerns, the Tribunal is not persuaded by the applicant’s response, and it does not accept the difference between the applicant’s oral evidence and the information in his visa application forms is due to a translation or communication error between the applicant and his friend who helped fill out his visa application forms. The Tribunal considers the difference between the applicant’s oral evidence and the information he provided in his visa application forms reflects poorly on the applicant’s credibility and the reliability of his evidence.

8. During the hearing the Tribunal raised its concerns about the applicant’s delay in making his protection visa application. The Tribunal noted the applicant had told the Tribunal he arrived in Australia in May 2012, and noted he had made his protection visa application in December 2014, over two years after he arrived in Australia. The Tribunal raised its concerns that such a delay could lead it to conclude that the applicant was not in fear of returning to Malaysia.  In response the applicant told the Tribunal he did not know Australia issued protection visas, and that a friend at work had asked him if he had applied, and then helped him apply.

9. The Tribunal is not persuaded by the applicant’s response. The Tribunal notes the applicant arrived in Australia over two years before he made his protection visa application.  While the Tribunal accepts the applicant may not have known about the protection visa application process when he arrived in Australia, the Tribunal would expect someone in the applicant’s claimed circumstances, to have left Malaysia in fear of harm and to fear returning to Malaysia, would have sourced information and made a protection visa application with less delay. The Tribunal considers the applicant’s delay in making his protection visa application, of over two years after he arrived in Australia, reflects poorly on his credibility and the reliability of his evidence and claims to have left Malaysia in fear of harm and to fear returning to Malaysia.  

10. During the hearing the Tribunal noted that in his visa application forms the applicant claims that the Islamic will also want to force him to become an Islamic, and that he can’t change himself to Islamic. The Tribunal raised its concerns that the applicant had not mentioned this during his oral evidence.

11. In response the applicant told the Tribunal he ran away and hid and they didn’t get him. He told the Tribunal if they got him they would apply Muslim law but he did not know what Muslim laws are. The applicant told the Tribunal that since he is of Chinese origin he cannot be converted into Muslim. The Tribunal raised its concern that the applicant had failed to mention this in his initial oral evidence when asked about why he feared returning to Malaysia. In response the applicant told the Tribunal he thought this was included in that issue. The Tribunal noted the applicant had told the Tribunal about his fears that [Ms A]’s husband and friends would find him and beat him if he returned to Malaysia. In response the applicant told the Tribunal if they caught him they would take him to the Muslims. The applicant told the Tribunal Muslim’s have their own rules and he does not know what they are.

12. The Tribunal is not persuaded by the applicant’s response in relation to its concerns that he failed to mention in his oral evidence the claim made in his visa application form as noted above. The Tribunal does not accept the applicant thought this claim was included in the issues discussed with the Tribunal as the Tribunal had asked very specific and detailed questions about his fears of returning to Malaysia and at no time did the applicant refer to this concern. The Tribunal considers this omission in the applicant’s oral evidence reflects poorly on the applicant’s credibility and the reliability of his evidence.

13. During the hearing the applicant told the Tribunal that after [Ms A]’s husband confronted him in his [business], the applicant reported the incident to the police. The applicant told the Tribunal the police said they could not interfere with Muslim affairs, and the applicant then hid away at his [sibling]’s home. The Tribunal noted that in his visa application forms the applicant claims that he reported to the police and the police said they are Islamic and therefore they could not do anything. The information provided by the applicant in the visa application forms also indicates that the police also asked the applicant to become an Islamic, and that this is how the police treated the applicant, and he is unable to get any protection. The Tribunal raised its concern that the applicant had failed to mention the police had asked him to become Islamic in his oral evidence.

14. In response the applicant told the Tribunal when he reported the incident to the police they just said they couldn’t do anything, but they did not ask him to convert to Islam. The Tribunal does not accept the applicant’s response explains the difference between his oral evidence and the information he provided in his visa application forms. In light of the Tribunal’s other credibility concerns, the Tribunal is not persuaded the difference between the applicant’s oral evidence and the information in his visa application forms is due to a translation or communication error between the applicant and his friend who helped fill out his visa application forms. The Tribunal considers the difference between the applicant’s oral evidence and the information he provided in his visa application forms reflects poorly on the applicant’s credibility and the reliability of his evidence.

15. During the hearing the Tribunal discussed with the applicant information in the Department of Foreign Affairs and Trade Country Report on Malaysia published of 3 December 2014 (DFAT report). The Tribunal noted the report indicated Malaysian Chinese constitute one of the largest overseas Chinese communities in the world and is the second largest ethnic group in Malaysia. The report notes there are no laws or constitutional provisions that directly discriminate against ethnic Chinese in Malaysia. The report states DFAT assesses that ethnic Chinese generally do not experience discrimination or violence on a day-to-day basis. The Tribunal also noted the report referred to credible local and international sources which consider the Royal Malaysian Police (RMP) to be a professional and effective police force.

16. In response the applicant told the Tribunal that unlike Australia, when Malaysia closes its door, others do not know, unlike Australia where information is public.

17. The Tribunal notes the DFAT report states the report is based on DFAT’s on-the-ground knowledge and discussions with a range of sources in Malaysia, including the government of Malaysia, civil society, religious and community groups and professional organisations, and takes into account relevant credible open source reports including publications from the Office of the High Commissioner of Human Rights, the UN High Commissioner for Refugees, the UN Development Program, UNICEF, the World Health Organisation, the World Bank, the OECD, Transparency International, Human Rights Watch, Amnesty International, and the United States State Department. The Tribunal considers the DFAT report is an authoritative source in relation to the situation in Malaysia. While the Tribunal notes country information, including the DFAT report, indicates there is some level of tension between the indigenous Muslim Malays and the Malaysians of Chinese origin, and there have been some isolated acts of violence, and that ethnic Chinese may face low levels of discrimination attempting to gain entry into state tertiary systems or the civil service, and that police officers wages are low and corruption has been identified as a concern, the country information before the Tribunal does not support the applicants’ claims that the police refuse to help ethnic Chinese Malaysian because of their ethnicity, or because their complaints are against Muslim Malays, or that they would ask the applicant to convert to Islam, or that the applicant would not be able to access police services or protection. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

    Refugee criterion: s.36(2)(a)

18. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

19. As noted above the Tribunal finds the applicant is not a witness of truth, and it is not satisfied the applicant has told the Tribunal the truth in relation to critical aspects of his claims.

20. On the evidence before it, the Tribunal does not accept the applicant had a relationship with a Muslim girl named [Ms A], or that her husband found out about the relationship and confronted or threatened or assaulted and beat the applicant. The Tribunal does not accept the applicant tried to report an incident to the police, or that the police refused to take the matter, or that they asked the applicant to become Islamic. The Tribunal does not accept the applicant left his employment and stopped living at his parent’s home and hid at his [sibling]’s home in fear of [Ms A]’s husband or his friends. The Tribunal does not accept [Ms A]’s husband or his friends came to the applicant’s family home asking people where the applicant was, or threatened the applicant’s family, or caught him and hit him on [body part] or beat him badly, or injured his [body part], or that the applicant was in hiding prior to leaving Malaysia. The Tribunal does not accept [Ms A]’s husband or his friends or associates or any Malay people have searched or continue to search for the applicant. The Tribunal does not accept the applicant’s parents have been threatened many times, or that threats have been made to kill the applicant. The Tribunal does not accept the Islamic want to force the applicant to become an Islamic. The Tribunal does not accept anyone in Malaysia had nor has any adverse interest in the applicant.

21. On the evidence before it, the Tribunal does not accept there is a real chance the applicant will be approached, harassed, threatened, beaten, or have his hands or feet broken, or be killed by the [Ms A]’s husband or his friends or associates or any Malay /Muslim people because he had a relationship with [Ms A] (which the Tribunal does not accept happened), or for any other reason, if he returns to Malaysia now or in the reasonably foreseeable future.

22. The Tribunal does not accept there is a real chance the applicant will be pressured or coerced or forced to join the Islamic religion by [Ms A]’s husband or his friends or associates or any Malay /Muslim people or the police, or that he would be unable to obtain protection from the police if required, if he returns to Malaysia now or in the reasonably foreseeable future.

23. On the evidence before it, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm, or harm of any kind, for any of the reasons he has claimed, or for any other reason, if he returned to Malaysia now or in the reasonably foreseeable future.

24. Therefore the Tribunal does not accept there is a real chance the applicant will be persecuted if he returned to Malaysia.

25. The Tribunal finds that the applicant does not have a well-founded fear of persecution.  

26. Having considered the claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection criterion: s.36(2)(aa)

27. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criteria for the grant of a protection visa pursuant to the complementary protection criteria.

28. For the reasons given above, the Tribunal finds the applicant is not a witness of truth, and it is not satisfied the applicant has told the Tribunal the truth in relation to critical aspects of his claims.

29. On the evidence before it, the Tribunal does not accept the applicant had a relationship with a Muslim girl named [Ms A], or that her husband found out about the relationship and confronted or threatened or assaulted and beat the applicant. The Tribunal does not accept the applicant tried to report an incident to the police, or that the police refused to take the matter, or that they asked the applicant to become Islamic. The Tribunal does not accept the applicant left his employment and stopped living at his parent’s home and hid at his [sibling]’s home in fear of [Ms A]’s husband or his friends. The Tribunal does not accept [Ms A]’s husband or his friends came to the applicant’s family home asking people where the applicant was, or threatened the applicant’s family, or caught him and hit him on [body part] or beat him badly, or injured his [body part], or that the applicant was in hiding prior to leaving Malaysia. The Tribunal does not accept [Ms A]’s husband or his friends or associates or any Malay people have searched or continue to search for the applicant. The Tribunal does not accept the applicant’s parents have been threatened many times, or that threats have been made to kill the applicant. The Tribunal does not accept the Islamic want to force the applicant to become an Islamic. The Tribunal does not accept anyone in Malaysia had nor has any adverse interest in the applicant.

30. On the evidence before it, the Tribunal does not accept there is a real risk the applicant will be approached, harassed, threatened, beaten, or have his hands or feet broken, or be killed by the [Ms A]’s husband or his friends or associates or any Malay /Muslim people because he had a relationship with [Ms A] (which the Tribunal does not accept happened), or for any other reason, if he is returned to Malaysia. The Tribunal does not accept there is a real risk the applicant will be pressured or coerced or forced to join the Islamic religion by [Ms A]’s husband or his friends or associates or any Malay /Muslim people or the police, or that he would be unable to obtain protection from the police if required, if returned to Malaysia.

31. On the evidence before it, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm, or harm of any kind, for any of the reasons he has claimed, or for any other reason, if returned to Malaysia.

32. On the evidence before it, the Tribunal is not satisfied there is a real risk that the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him, or that he will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment, if returned to Malaysia.

33. On the evidence before it, the Tribunal is not satisfied there are 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 the applicant will suffer significant harm.

34. Having considered the claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    CONCLUSION

35. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.

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

   DECISION

2. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Chris Thwaites
   Member  6 June 2016