1506462 (Refugee)

[2015] AATA 3683

1506462 (Refugee) [2015] AATA 3683 (20 November 2015)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506462

COUNTRY OF REFERENCE:                  Malaysia

SENIOR MEMBER:  Antoinette Younes

DATE:20 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 20 November 2015 at 2:42pm

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 on 1 April 2015 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] January 2015. The delegate refused to grant the visa [in] April 2015.

   CRITERIA FOR A PROTECTION VISA

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, he or she 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 because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. In the application for a protection visa, the applicant claimed that:

   a.She left Malaysia in order to avoid harm by her former boyfriend. Her former boyfriend had raped her but later promised to treat her well. Several months later, he started to treat her badly and he went out with other women. She wanted to leave him but he threatened to kill her.

   b.She reported the former boyfriend to the police who detained him for one day only. She does not think the police could protect her. She went to other locations, he threatened to harm her parents if she refused to return.

   c.If she were to return, she would be harmed. She cannot relocate to any other part of Malaysia because he knows her very well.

   FINDINGS & REASONS

   Country of nationality

10. On the basis of the available information, the Tribunal finds that the applicant is a national of Malaysia and that her claims should be assessed against Malaysia. She travelled to Australia as the holder of a passport issued by the Malaysian authorities. 

    Has the applicant suffered any of the claimed harm and is there a real chance of her suffering serious harm?

11. In the course of the hearing, the applicant gave evidence that she has been to Australia previously. She stated that although she could not remember clearly the date, she came to Australia for the first time approximately 3 years ago. She gave evidence that both her parents are still living in Malaysia and that she has [siblings] all of whom remain in Malaysia.

12. The Tribunal asked the applicant about the completion of the application for a protection visa and she stated that a friend who spoke both Mandarin and English, assisted her in completing the application. She confirmed that she had signed the application.

13. The Tribunal asked the applicant about her claims in relation to her former boyfriend. She stated that she went to school with him and commenced a relationship with in 2008. She stated that the relationship lasted for one year and that it ended around August 2009. She stated that he was violent towards her and threatened to kill her if she did not stay with him. He also teased her. She reported the violence and the threats to the police in August 2009 and he was arrested for one day but later released. The Tribunal asked the applicant if she had any corroborative documents such as a police report and she stated that she does not have any documents to support her claims.

14. The Tribunal continued to ask the applicant if her former boyfriend had caused her any other harm and she confirmed that apart from being violent and threatening, he did not cause her any other harm. The Tribunal referred to the application for a protection visa in which she had claimed that the former boyfriend had raped her. The applicant stated that she did not want to mention or talk about this claim as she did not feel safe. The Tribunal asked the applicant if she had reported the rape to the police and the applicant stated that she did not report the rape to the police because they would believe him rather than her.

15. The Tribunal encouraged the applicant to discuss the events surrounding the rape and the applicant stated that it occurred [in] August 2008. The Tribunal noted that this would mean that she subsequently stayed with her former boyfriend for about a year and asked her why she would do that given her claim that he had raped her. She stated she did not do so because he threatened her. The Tribunal referred to the application for a protection visa and noted that there is no mention of the date relating to the rape claim and the applicant stated that she did not want to mention the dates and that he had raped her at his home.

16. The Tribunal indicated to the applicant that independent country information about Malaysia appears to indicate that the Malaysian police and authorities do take violence against women seriously[1]. She disagreed and said that those with money are treated differently.

    [1] DFAT Country Report, Malaysia, 3 December 2014, at page 7 - DFAT reported that although domestic violence against women is a problem in Malaysia, and is under-reported due to traditional beliefs in the sanctity of marriage, Malaysian law prohibits domestic violence, including emotional and psychological abuse. Victims can obtain protection orders which attract a prison sentence of up to one year or a fine of RM 2000 (approximately AUD 660) if breached.

17. The Tribunal referred to the applicant’s evidence that she has been to Australia previously and asked her given her claims of fear of harm why she had not sought protection when she first came to Australia a few years ago. She stated that after the rape incident, her former boyfriend treated her well and hence she did not report the matter to the police. As the applicant did not answer the question about the delay in lodging the application for a protection visa, the Tribunal asked her why she did not apply for protection during her first visit to Australia. She stated that she came with family members and the former boyfriend was good to her then. The Tribunal suggested to the applicant that delay in lodging the application for a protection visa could raise doubts about the veracity of her claims. The applicant did not respond.

18. The Tribunal asked the applicant why she did not want to return to Malaysia and she stated that she fears that the former boyfriend would beat her. The Tribunal indicated to the applicant that the Tribunal would consider further her claims that even if they were accepted, the Tribunal needed to consider whether the harm is for reasons of race, religion, nationality, membership of a particular social group or political opinion.

19. The Tribunal has concerns about the applicant’s claims and whilst the Tribunal appreciates that singularly, each may not raise doubts about the veracity of her claims, when considered cumulatively and in totality, the Tribunal is satisfied that they are legitimate considerations and that the applicant has not suffered any of the claimed harm.

20. On her own evidence, the applicant has been to Australia previously, subsequent to the claimed harm by her former boyfriend. The fact that she did not lodge an application for a protection visa raises serious doubts about her claims. Her explanations about the delay are neither persuasive nor convincing. In the course of the hearing, the applicant required substantial prompting in relation to the specific harm she had claimed in the application for a protection visa. She continued to respond by saying that the harm she had suffered relates to being beaten and threatened. It was not until the Tribunal specifically asked the applicant about the claim of being raped that she remembered that she had made the claim in the application for a protection visa. Her explanation that she did not want to mention the claim is not persuasive. The claim was clearly made in the application for a protection visa that the applicant had confirmed she had signed.

21. The Tribunal appreciates that the claim of rape is a sensitive claim and there may well be reluctance by a person who has been raped to discuss it. However given the fact that the claim was clearly made in the application for a protection visa and that it formed an integral aspect of the applicant’s protection application, the fact that the applicant did not mention it in the course of the hearing until she was prompted on various occasions by the Tribunal, raises doubts about the claim.  Moreover, The Tribunal is of the view that the applicant was particularly evasive when asked about the claim as she did not want to discuss it.  She came to the hearing and it is reasonable to expect the applicant to provide further details about her claims, particularly given that the hearing invitation noted that the Tribunal could not make a favourable decision on the available information.

22. Furthermore, the Tribunal notes that the date of the claimed rape incident is not mentioned in the application for a protection visa but was mentioned in the course of the hearing. The applicant’s explanations are not convincing. The Tribunal is of the view that failure to have mentioned the claimed date in the application for a protection visa suggests lack of veracity.

23. There is no evidence before the Tribunal and the applicant is not claiming that subsequent to her departure, any member of the family in Malaysia has suffered any actual harm.  This is difficult to reconcile with her claim that he had threatened to harm her parents if she refused to return.  She has not returned. 

24. The applicant gave evidence that subsequent to being raped, she continued the relationship for approximately a year. Her explanation that things got better is unconvincing.  The Tribunal acknowledges that victims of sexual assault may continue in relationships with the perpetrators. The Tribunal however has difficulties accepting that she would continue a relationship with a person who had raped her early on in the relationship, when arguably it might have been practically less difficult to leave. 

25. The applicant has not provided any corroborative evidence of her claims such as when she reported incidents of violence to the police. The Tribunal is aware that it is sometimes difficult for an applicant to provide corroborative evidence and that claims should not be disregarded because of lack of corroborative evidence. However, on the basis of the available information, in consideration of the evidence as a whole, and given the Tribunal’s concerns about the applicant’s credibility, the Tribunal does not accept that the applicant had a violent boyfriend, or that he had raped her, or that he was violent towards her, or that he had threatened her or any member of her family, or that she had reported any incident of violence to the authorities, or that the Malaysian authorities treat people with money differently, or that they only detained the former boyfriend for one day, or that the applicant fears returning to Malaysia on this basis or any other basis.

26. In essence, and for the stated reasons, the Tribunal does not accept that the applicant has suffered any of the claimed harm or that there is a real chance that she will suffer any such harm on her return to Malaysia. The Tribunal finds that the applicant does not have a well-founded fear of persecution.

    Is there a real risk of significant harm occurring to the applicant in case of her return to Malaysia?

27. On the basis of the available information and for the stated reasons, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm.

28. In consideration of the evidence as a whole, on the basis of the available information, the Tribunal finds that there is not a real risk of the applicant suffering significant harm in case of her return to Malaysia.  For those reasons, the Tribunal finds that the applicant’s claims do not give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Malaysia, there is a real risk that she would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore she does not satisfy the requirements of s.36(2)(aa).

    CONCLUSIONS

29. 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).

30. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

31. 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

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

    Antoinette Younes
    Senior Member

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:    For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:    For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …