1507188 (Refugee)

[2016] AATA 4726

1507188 (Refugee) [2016] AATA 4726 (10 November 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507188

COUNTRY OF REFERENCE:                  Malaysia

MEMBERS:Sydelle Muling (Presiding)
Judith Troeth

DATE10 November 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 10 November 2016 at 10:25am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 473EC(2) of the Migration Act 1958 and replaced with generic information which does not allow the identification of a referred 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] June 2014 and the delegate refused to grant the visa [in] April 2015.

3. The applicant appeared before the Tribunal on 16 August 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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 67country 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.

8. 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’

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant is a [age] year old female who grew up in [a city in] Malaysia then moved to [another city] in 2007 for tertiary education and work. She has never married. Her father is [an occupation] and her mother is [an occupation]. She has two older [siblings] in Malaysia; one is a [occupation] and one is a [occupation]. [Details of siblings deleted].

11. The applicant has a Bachelor degree in [qualification]. She paid for her education herself as she was able to work while studying part-time. The applicant has worked as a [Occupation 1] and has worked in [another industry] in Malaysia. She has also lived away from the family home for an extended period of time, renting her own accommodation with a friend [near] her workplace.

12. The applicant applied for a Protection visa because she fears abuse from her ex-boyfriend, and she fears having to undertake an arranged marriage instigated by her parents.

13. The applicant claimed that she met her boyfriend when she was in [school] in 2000. They became very close friends and fell in love. They had a good relationship until she began work as a [Occupation 1] after graduation in 2007. Her boyfriend then explained his family’s financial problems to her. Her boyfriend’s father was a guarantor for a friend’s business loan and when the friend became bankrupt, her boyfriend’s father was ordered to pay the debts.

14. The applicant wanted to help her boyfriend and gave part of her salary to him but her parents were not aware of this. In 2009 she changed her job and worked in a [workplace] as [occupation]. Her boyfriend then asked her to help him get a loan from the [workplace] where she worked but as the [workplace] has strict rules, the only way was for her to be his guarantor but she was too scared in view of his father’s experience. Instead, the applicant claimed that she helped him to apply for a credit card under her name, so that he had cash for emergencies.

15. The applicant claimed her boyfriend withdrew cash every month but did not pay back any money so the applicant needed to pay his debt and interest every month. At the same time the applicant was studying for her Bachelor degree and did not have enough money to pay her fees and the credit card debt. Nevertheless she took out a loan under her own name instead of acting as his guarantor (as he had asked her again) but as before he could not pay the instalments every month and she had to, as the loan was in her name.

16. According to the applicant, after 2010, her boyfriend’s personality changed dramatically, and he became very violent and impatient which she attributed to his family’s debt. In early 2012, they happened to meet her parents in the street. When her parents met him for the first time, it was obvious to her that her father did not like her boyfriend and after the meeting, when she and her boyfriend returned to her flat, he slapped her on the face twice because of her father’s attitude. She was very shocked because she had always been loved and spoiled at home.

17. After this, in 2012 she wanted to break up with her boyfriend because of his changed behaviour and the huge financial pressure. She avoided seeing him but he disturbed her by coming to her workplace. He also threatened her by showing her private photos taken of the two of them together and said that if she did not return to him he would show these to her parents, friends and colleagues. So, in September 2013, she got a private loan in her name from a loan centre with very high interest rates. He gave her the photos when she gave him the money, but she fears he still has the negatives.

18. At the same time, her parents had done some research on her boyfriend and knew about the family debt. Apart from the debt, he was also from [another] caste. When she told her parents she had no intention of marrying her boyfriend, they moved quickly to arrange a marriage for her, to someone she had never met. She was very unhappy, and her boyfriend was extremely angry. He came to her flat and kicked her. She cried out and a neighbour called the police. The police talked to both of them and told them that the police have more important things to do. She also went to the police station the next day in case her boyfriend had lied but the police told her they could not solve family matters.

19. In October 2013, helped by her [sibling], she applied for an overseas visa because she felt the pressure being applied from her parents and her boyfriend. However, her parents found out and forced her to cancel the visa. In January 2014 the applicant and her parents met with the arranged fiancé and his family. She did not like him at all, and did not want to marry him. There was to be an engagement in June 2014, and, after talking to her [sibling], [her sibling] helped her to apply for another visa, to escape from the violence and the arranged marriage. The applicant came to Australia in March 2014 after paying off all the debts through her savings.

20. The applicant claims that she does not want to be married to the prospective husband or anyone else. She fears her parents will force her into an arranged marriage, and she fears that her boyfriend will look for her and demand her financial support. The applicant also claims that her father stated that if she did not agree to an arranged marriage, she would never see her parents again. She has taken this to mean that, as a result of her refusal, her parents will die.

21. The applicant travelled to Australia on a Malaysian passport. The Tribunal is satisfied on the evidence before it that Malaysia is the applicant’s country of nationality and receiving country for the purpose of complementary protection.

22. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in Article 1A(2) of the Refugees Convention, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Malaysia, there is a real risk she will suffer significant harm. 

23. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

24. Based on the applicant’s evidence to the Tribunal it accepts that the applicant was in a relationship with a boy from [school] and that she had provided financial assistance to her now ex-boyfriend by way of ongoing ‘loans’ and the provision of a credit card, very little of which was repaid to her.

25. The Tribunal accepts that after the applicant started working in 2007, her ex-boyfriend disclosed to her his family’s financial problems and the applicant initially started assisting her ex-boyfriend financially by giving him part of her salary. According to the applicant’s evidence in the hearing, she gave her ex-boyfriend money every month which he said he used to repay the money that his father allegedly owed.

26. The Tribunal accepts that after the applicant started working in a [workplace] in 2009, her ex-boyfriend asked her to take a loan for him but she instead applied for a credit card in her name, which he used to withdraw money from. The Tribunal accepts on the applicant’s consistent evidence that the applicant’s ex-boyfriend did not repay the money that he withdrew from this credit card and that the applicant instead paid the debt. Despite her ex-boyfriend not being able to repay the money he withdrew from the credit card, the applicant claimed, and the Tribunal accepts, that the applicant’s ex-boyfriend asked her to be guarantor for a loan but she instead took a loan in her own name and again he was unable to repay the monthly payments and she had to do so.

27. According to the applicant, the relationship with her ex-boyfriend had started in [school], and was ongoing for [a number of] years during which time her parents had never met him. The applicant claimed that her parents only became aware of her relationship with a ‘chance’ meeting in the street in 2012, by coincidence, when her parents’ car and the car of the applicant and her ex-boyfriend  ‘happened’ to park near to each other. The Tribunal finds such a coincidental meeting occurring to be somewhat far-fetched. It also finds it implausible that the applicant would have been able to conceal her relationship with her ex-boyfriend from her parents for such a substantial number of years, particularly in light of the applicant’s evidence as outlined in the delegate’s decision, a copy of which was provided to the Tribunal, regarding the Indian community in Malaysia and how word gets around and people know other’s business. Further, the Tribunal does not accept that the applicant’s father or parents, whom she has described as traditional and conservative, would engage in a heated discussion or argument with the applicant’s ex-boyfriend on the sidewalk, as she described during the hearing. The Tribunal finds the applicant’s description of this very public exchange inconsistent with her evidence regarding her parent’s nature.

28. As the Tribunal does not accept that the applicant’s parents were unaware of her relationship until this alleged coincidental meeting in 2012 or that there was any exchange between her ex-boyfriend and father during which the applicant’s father indicated that he did not approve of her relationship with her ex-boyfriend because he was of a [different] caste, the  Tribunal does not accept the applicant’s claim that this alleged incident resulted in a change in her ex-boyfriend’s personality or that he became abusive towards her from this time onwards. It therefore follows that the Tribunal does not accept that after this meeting the applicant’s ex-boyfriend slapped her in the face twice.

29. The Tribunal accepts the applicant’s claim that she tried to end her relationship in mid-2012. Given the findings above, the Tribunal does not accept the applicant’s evidence that it was this alleged incident when her ex-boyfriend slapped her that motivated her to end the relationship. Rather, it accepts her evidence in her statement that she did not want to live with the financial pressure anymore and that this was the motivation for her terminating the relationship. According to the applicant’s evidence, when she told her ex-boyfriend that she wanted to break-up, he beat her for the second time. She claimed in the hearing that she did not report this incident to the police because if she had, her parents would have come to know. The Tribunal has serious doubts about the applicant’s claims regarding the physical violence she was allegedly subjected to by her ex-boyfriend, given that it does not accept for the reasons discussed above, that she was slapped by her ex-boyfriend after the alleged coincidental meeting with her parents. Nor does the Tribunal accept, as discussed below, that the applicant was kicked by her ex-boyfriend after he allegedly was informed by her parents about their plans to arrange a marriage for her. For this reason, the Tribunal does not accept that the applicant was beaten by her ex-boyfriend in mid-2012 when she first tried to end their relationship.

30. The Tribunal accepts after the applicant told her ex-boyfriend that she wanted to end their relationship, she avoided seeing her ex-boyfriend, but he came to her workplace and he tried to blackmail her with incriminating photos. The applicant has provided consistent evidence throughout the process that her ex-boyfriend blackmailed her into continuing their relationship by threatening to show the pictures to her family, friends and colleagues if she did not. The Tribunal accepts that the applicant continued her relationship with her ex-boyfriend and that she also took another loan in September 2013 for her ex-boyfriend in exchange for the photographs of her. Her clear evidence was that her ex-boyfriend had given her the photographs once she had resumed a relationship with him and taken the loan for him. While the applicant expressed concerns that her ex-boyfriend may have copies of these photographs or the negatives, the Tribunal notes the applicant confirmed that she had no knowledge of whether her ex-boyfriend retained copies of these pictures but stated that she strongly feels this. The Tribunal finds the applicant’s claim to be purely speculative. 

31. The applicant claimed that her ex-boyfriend also physically abused her after her parents told him about plans for her arranged marriage. She claimed that he came to her place and shouted at her and kicked her in her back with his shoe. Her neighbour called the police after she cried for help and when the police came they talked to them both and then to her ex-boyfriend alone and then told her not to call anymore because they have more important things to do. The applicant claimed she went to the police station the next day also because she thought her ex-boyfriend may have lied to the police but when she went she was told the police could not solve family matters and to go back.

32. The Tribunal does not accept that the applicant and her ex-boyfriend were involved in any verbal or physical altercation after he was informed by her parents about their plans to arrange a marriage for her, based on the Tribunals findings discussed in detail below, that her parents had not arranged a marriage for her prior to her departure from Malaysia. Further, the Tribunal has considered the applicant’s evidence that at the time her parents allegedly contacted her ex-boyfriend to inform him about this alleged arranged marriage, her parents were of the belief that they were not together. The Tribunal finds it implausible that if the applicant’s parents knowledge was that she and her ex-boyfriend were no longer together, for whatever reason, that they would contact her ex-boyfriend (or her ex-boyfriend’s family as she later claimed, when the Tribunal queried how her parents were able to contact her ex-boyfriend if they had only met him the once, accidentally, as she had claimed), to advise him about this alleged arranged marriage. As such, the Tribunal does not accept that the applicant was physically abused by her ex-boyfriend after her parents told him about plans for her arranged marriage. It therefore follows that the Tribunal does not accept that the police came to her place, after her neighbour had called them, and told her not to call them anymore because they have more important things to do, or that the applicant was turned away by the police the next day when she went to the police station.

33. The Tribunal does accept that not long after the applicant took a loan for her ex-boyfriend after being blackmailed with incriminating photos, she again ceased having contact with him for several months and the relationship ended. The applicant’s evidence was that she stopped paying her ex-boyfriend money and used that money, and her savings, to pay the credit card and loans she had taken for him. The Tribunal does not accept that the applicant’s ex-boyfriend continued to call her and threaten her because he wanted more money from her or that after several months he came to see her at her workplace because he had somehow come to know about the alleged meeting she had with her proposed groom and he wanted to prevent the marriage happening.

34. While the Tribunal accepts that the applicant experienced a number of difficulties in her relationship with her ex-boyfriend in the past, particularly of a financial nature, before she ended her relationship with him and subsequently travelled to Australia, the Tribunal does not accept the applicant’s claims that if she returns to Malaysia now, she will be harmed by her ex-boyfriend.  Although the applicant claimed in her statement that her ex-boyfriend is looking for her everywhere because he needs money, the applicant’s evidence in the hearing was that she has had no contact with him for the last two and a half years since coming to Australia. While the applicant claimed that her ex-boyfriend contacted her parents four months ago, wanting to know her telephone number in Australia, the Tribunal does not accept that there was any such contact. The Tribunal finds it implausible that after more than two years without any communication or interaction with the applicant, or her family, that the applicant’s ex-boyfriend would seek to make enquiries about her after such a long period of time. The Tribunal does not accept the applicant’s claim, made for the first time in the hearing, that prior to her ex-boyfriend allegedly contacting her parents four months earlier, her father had received calls from various places asking about her whereabouts, including from her [work]. Again, the Tribunal finds it implausible that such enquiries, which she claimed occurred only after the interview with the delegate [in] April 2015, would have been made over a year after she arrived in Australia and not at some time earlier. Rather, the Tribunal finds the timing of these alleged enquiries raises serious doubts about the credibility of this claim. The Tribunal finds the applicant has embellished not only the enquiry made by her ex-boyfriend from her parents but also the calls from others about her whereabouts, in an effort to bolster her case. 

1. Given the lapse of time since the applicant ended her relationship with her ex-boyfriend and the fact she has had no contact with him for more than two and a half years and is not aware of her ex-boyfriend’s circumstances, including whether he is in a relationship, the Tribunal finds the applicant’s claims regarding her ex-boyfriend wanting to find her and harm her or get further financial assistance from her are purely speculative. Based on the above, the Tribunal does not accept that the applicant faces a real chance of serious harm from her ex-boyfriend if she returns to Malaysia, now or in the reasonably foreseeable future.

2. The applicant also claimed to fear if she returns to Malaysia she will be forced by her father into an arranged marriage. The applicant claimed that her parents were keen to see her married to a person of suitable caste, and were in the process of arranging a marriage before her departure from Malaysia in March 2014.

3. The Tribunal does not accept the applicant’s claims regarding the arranged marriage organised for her prior to her leaving Malaysia. The Tribunal notes when asked the name of the man who she was allegedly to marry, the applicant had difficulty recalling his surname. Further, her evidence was that her family were allegedly looking for a groom from 2012, yet it was only in September 2013 that they found someone, which is not consistent with her evidence indicating her parent’s urgency to find her a suitable partner. The Tribunal also finds the applicant’s evidence that after allegedly meeting her proposed husband in January 2014, the engagement was organised to take place in June 2014, some six months later, which is also inconsistent with her evidence in her detailed statement regarding her parents’ resolve in arranging her marriage as soon as possible.

4. The Tribunal has also taken into consideration the applicant’s evidence that despite fleeing Malaysia prior to the alleged engagement that was organised for June 2014, she has been in regular contact with her parents by phone, particularly her father, since arriving in Australia. The Tribunal has difficulty accepting that if the applicant’s parents had allegedly found a suitable husband for the applicant, had taken her forcibly to meet him as she claimed in the hearing and had settled on an engagement date with the proposed groom and his family, that if the applicant had fled from the country, thereby bringing this arrangement to an end, that the applicant’s parents would be on speaking terms with the applicant given the shame and embarrassment her actions would have had on her parents and particularly in light of her evidence in the hearing that they had threatened to not speak to her again if she did not go through with the arranged marriage.

5. Further, the Tribunal has had regard to the detailed statement the applicant made which suggests that she lived a very independent life in Malaysia. Her evidence was that she completed and paid for her own higher education, she lived independently from 2007 and had a successful career. Also, taking into account that one of her [siblings] had an arranged marriage and the other [sibling] a love marriage and her [other sibling] is not married, the Tribunal does not accept that the applicants parents are of a controlling nature, or that they would seek to force her into an arranged marriage.

6. Based on the above, the Tribunal does not accept that the applicant’s parents arranged a marriage for the applicant prior to her departure from Malaysia or that in the last few months, her father has arranged another marriage with a different groom, as the applicant claimed. The Tribunal notes when asked if her parents had found a suitable groom, the applicant stated no. The Tribunal also finds it implausible that if the applicant’s parents had any intention of forcing the applicant into an arranged marriage, that they would advise her of this, if they wanted her to return to Malaysia, particularly in light of her evidence that she had conveyed to them that she did not wish to be married this way.  

7. On the basis of the Tribunal’s findings above, it does not accept that the applicant’s parents have ever tried to arrange a marriage for the applicant or that they have any intention to force her into an arranged marriage on her return to Malaysia. Accordingly, the Tribunal does not accept that the applicant would face harm from her parents if she returns to Malaysia if she refuses to conform with their alleged wish for her to be married in an arranged marriage. The Tribunal notes the applicant’s claim that her decision to remain unmarried or to not comply with her parents’ wishes for an arranged marriage could cause her parents ’death. The Tribunal finds that the applicant has not provided a plausible explanation for why this would eventuate and the Tribunal does not accept that her refusal to marry,  either in an arranged marriage or at all, would result in her parents death as claimed. Given the above, the Tribunal does not accept that if the applicant returns to Malaysia, she faces a real chance of serious harm from her parents, now or in the reasonably foreseeable future.

8. The Tribunal therefore finds that the applicant’s fear of persecution is not well-founded.

   Complementary protection obligations

9. On the basis of the applicant’s claims to be a national of Malaysia and her Malaysian passport, the Tribunal finds that Malaysia is the applicant’s receiving country for the purposes of s.36(2)(aa).

10. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether 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 she will suffer significant harm as defined in subsection 36(2A) of the Act.

11. Based on the findings of the Tribunal above that the applicant has not been in a relationship with her ex-boyfriend since sometime in 2013, she has not had any contact with her ex-boyfriend since she arrived in Australia in March 2014, over two and a half years ago, and she has no awareness of her ex-boyfriend’s current circumstances, including whether he is currently in another relationship, the Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm from her ex-boyfriend.

12. The Tribunal is also satisfied on the basis of the applicant’s evidence and its findings above, that the applicant’s parents have not tried to arrange a marriage for the applicant in the past or that they will do so in the future. It therefore finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, that there is a real risk she will suffer significant harm from her parents if she returns there. 

13. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

14. 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).

15. 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

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

    Sydelle Muling
    Member

    
    

    Judith Troeth
    Member