1514371 (Refugee)

[2016] AATA 3931

1514371 (Refugee) [2016] AATA 3931 (1 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514371

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Nicole Burns

DATE:1 June 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 01 June 2016 at 2:45pm

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 30 September 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] September 2015.  

3. The applicant appeared before the Tribunal on 31 May 2016 to give evidence and present arguments in relation to the issues in his case. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.  

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 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

9. 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

10. The applicant set out her initial claims for protection in her visa application as follows:

    Why did you leave that country?

    To avoid the family arranged marriage.

    Have you experienced harm in that country?

    Yes. My parents have detained me at home and forced me to marry a unknown Muslim.  I have been intimidated, constantly harassed and watched.

    What do you fear may happen to you if you go back to that country?

    I am in fear of the safety of my life and my family when I refuse to marry as arranged.

    Who do you think may harm/mistreat you if you go back?

    My parents, the arranged future husband and his family.

    Why do you think this will happen to you if you go back?

    I have declined the family marriage to a Muslim to whose family my father has indebted.  In order to clear my father’s debt, my father agreed the arranged marriage.  As a result of refusal of this arrangement, I have been detained at home.  I have been abused and intimidated for not staying at home.   I have been constantly watched and have not been allowed to go out alone.  My friends, especially my boyfriends who were with me have been threatened.

    Do you think the authorities of that country can and will protect you if you go back?
    
    

    No.  The arranged family is quite common Malaysia.  The corrupted police will not help me.  The arranged marriage does not break the religious law in Malaysia.

11. The issues in this review 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 s.5J(1) 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 that she will suffer significant harm.

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

13. The applicant travelled to Australia on a valid Malaysian passport and states that she is a national of Malaysia. The delegate had no concerns about the applicant’s identity.  Therefore the Tribunal has assessed the applicant’s claims against Malaysia as her country of nationality.

14. At hearing the applicant told the Tribunal that she left Malaysia in May 2014 because her parents wanted her to marry a “Malay guy” whose father they owed money to: she said around RM[amount]– [amount].  When the applicant refused, her parents locked her in her bedroom and did not feed her for around a week.  One of her sisters helped her escape from the bedroom, drove her to the airport in Kuala Lumpur, and paid for her ticket to Australia. 

15. The applicant said she is in contact with her sister from Australia and she told her their father has not paid back the money.  The money lenders came to their family home once about a year ago and her father asked for more time, promising that the applicant would marry his son.  This explains, she argued, why the money lender had not threatened or harmed her parents.  At hearing when asked why the money lender would want her to marry his son (and why this would eradicate her parents debt), noting that she is not a Muslim yet she claimed that the Malay guy was Muslim, the applicant replied that, according to her sister, the Malay guy has a problem intellectually.

16. The applicant said she is afraid her parents would lock her in her room again if she returns to Malaysia. 

17. The Tribunal has considered the applicant’s oral and written evidence to the Department and Tribunal about her fears about returning to Malaysia.  However, for the reasons that follow the Tribunal does not accept her claims to have been promised to a ‘Malay guy’ (whom she refers to as an “unknown Muslim” in the visa application) by her parents to pay off their debt.

18. First, the Tribunal found the applicant’s oral evidence about the money her parents allegedly borrowed from money lenders and the arrangement that she would marry their son in lieu of paying back the loan was vague, lacking in details, and at times implausible.  For instance, when asked about the ‘Malay guy’, the applicant said she knew nothing about him, apart from hearing (via her sister) that he had an intellectual disability and that he was Muslim.  She did not know his name for example, or his parents name, where he lived, his age or any other details.  As well, the applicant did not know any details about the money her parents allegedly borrowed, including the terms of the loan, the purpose of the loan, or the identity of the money-lenders.  Initially she did not know the loan amount when asked at hearing, however after some probing she indicated the amount may have been somewhere between RM[amount] and RM[amount].

19. Second, the Tribunal finds it implausible that the family who purportedly loaned the applicant’s parents money would want her to marry their son in order to clear her father’s debt, particularly given she is not Muslim and they would not be able to recuperate a substantial sum of money owed.  When this concern was raised at hearing and the applicant was asked what the money-lenders would gain out of such an arrangement, the applicant said because he has an intellectual disability, as mentioned.  The Tribunal notes that there is no mention of this fact in the protection visa application.  The late introduction of this claim – i.e. that the ‘unknown Muslim’ has an intellectual disability - combined with the implausibility of the alleged arrangement as discussed, causes the Tribunal to doubt the applicant’s claims in this regard. 

20. For these reasons the Tribunal has credibility concerns about the applicant’s core claims to fear harm from her parents in terms of being forced to marry a Malay guy to write off her father’s debt, and harm from the Malay guy or his family.  The Tribunal does not accept that the applicant’s father borrowed RM[amount] to [amount] from a Malay family or that her parents have promised she will marry their intellectually disabled son in order to clear the debt.  It follows that the Tribunal does not accept that the applicant’s parents locked her in her bedroom and did not feed her for a week when she refused to marry the Malay guy as claimed.   Nor does the Tribunal accept that the money lenders have visited the applicant’s parents since she has come to Australia as claimed at hearing, or that her friends or boyfriends were threatened when with her in Malaysia in the past, as set out in her written claims to the Department. The Tribunal finds the applicant does not face a real chance of serious harm from her parents, or from the Malay guy or his family for any reason on return to Malaysia now or in the reasonably foreseeable future.  Her fears of persecution on these bases are not well founded.

21. In reaching this conclusion the Tribunal has also taken into consideration the fact that the applicant arrived in Australia [in] May 2014 yet did not seek protection until [January] 2015, despite the fact that she claimed she left Malaysia because of these alleged problems from her family members and money lenders, originating from April 2014.  It is well established that delay in applying for refugee status is a relevant consideration. In Anandaraj Subramaniam v MIMA (unreported, Federal Court of Australia, Carr J, 10 March 1998) Justice Carr agreed with Heerey J in Selvadurai v MIEA & Anor (1994) 34 ALD 346 as a matter of principle that the period of time which elapses between an applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least depth of an applicant’s fear of persecution. His Honour went further and found that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant. The Tribunal does not find the applicant’s explanation at hearing that she did not know about protection visas adequately explains the delay. Given the delay in the applicant seeking asylum, combined with the other concerns with the applicant’s evidence as set out above, the Tribunal does not accept that the applicant’s claims are credible or that she has a genuine fear of persecution if she is returned to Malaysia.

22. Based on the above the Tribunal does not accept that the applicant’s parents have arranged for her to marry a Malay guy in order to write off her father’s debt, or that they threatened and detained her for refusing to marry him.  Therefore it does not accept that if she returns to Malaysia she faces a real chance of persecution from her parents, the Malay guy, his family, money lenders or anyone else because of her parents debt or because she has refused to marry someone or for any other reason.  The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).  The applicant does not meet the refugee criterion in s.36(2)(a).

23. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from her family, a Malay guy, his family, money lenders or anyone else for any reason. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

24. 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

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

    Nicole Burns
    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.

    …