1607501 (Refugee)

[2017] AATA 2217

1607501 (Refugee) [2017] AATA 2217 (1 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1607501

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Colin Huntly

DATE:1 September 2017

PLACE OF DECISION:  Perth

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

Statement made on 01 September 2017 at 4:25pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Religion – Forced conversion to Islam – Particular social group – Domestic violence – Mental health status – Controlling and abusive behaviour – Police

LEGISLATION
Migration Act 1958, ss 5H, 5J - 5LA, 36, 65, 499
Migration Regulations 1994 Schedule 2

CASES
Iyer v MIMA (2000) FCA 52
Iyer v MIMA (2000) FCA 1788
SDAQ v MIMA (2003) 129 FCR 137
Chan Yee Kin v MIEA (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan, (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors, (1996) 185 CLR 259
Chand v Minister for Immigration and Ethnic Affairs, (1997) FCA 1198
Sundararaj v Minister for Immigration and Multicultural Affairs (1999) FCA 76
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (1998) FCA 1167
Abebe v The Commonwealth of Australia, (1999) 197 CLR 510

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 [in] May 2016 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 national of Malaysia, applied for the visa [in] May 2015.  The delegate refused to grant the visa [in] May 2016 on the basis that Australia did not owe the applicant protection by reference to either ss.36(2)(a) or 36(2)(aa) of the Act.  The delegate found that the applicant’s claims were both inconsistent with credible Country Information and lacked sufficient detail to support the finding that she had a well-founded fear of persecution in Malaysia.

3. [In] May 2016 the applicant lodged an application with the Tribunal seeking a review of the delegate’s decision not to grant a Protection visa to the applicant.  The applicant provided the Tribunal with a copy of the delegate’s decision record which forms the basis of this review.  The applicant was not represented in this review by a registered migration agent. 

   Hearings

4. In the first instance, the applicant attended a hearing with the Tribunal on 15 June 2017 to give evidence and present arguments.  During the course of this hearing, it became apparent that the applicant required specialist professional assistance before the Tribunal could adequately assess her claims for protection.  Accordingly, the Tribunal directed that proceedings be adjourned to a later date.

5. At the applicant’s request, the resumed hearing was initially scheduled for 7 August 2017 to allow for a specialist professional report to be prepared for the attention of the Tribunal.  This request was granted.

6. Subsequently, the applicant requested a further postponement, initially until 24 August 2017, and then finally to 28 August 2017.  The second hearing proceeded, as agreed on this later date.  Prior to the hearing, the applicant provided a specialist report prepared by Clinical Psychologist, [named].  This report was based on three consultations with the applicant, and the Tribunal has had regard to the report in reaching this decision. 

7. To the extent that this report is relevant to the questions before the Tribunal, the Tribunal notes that it contains applicant history that, in a number of respects, it is consistent with that provided previously to the Tribunal.  The Tribunal does also note that some of the applicant history related in this report is inconsistent with that provided previously to the Tribunal.  The Tribunal notes the therapeutic assessment for the applicant, contained in the report, as being consistent with [specified] guidelines for [Condition 1].  Aspects of this report will be referred to below.

   RELEVANT LAW

8. The law relevant to this application for review is discussed at Appendix A to this Decision and the Attachment-  Extract from Migration Act 1958.

   CRITERIA FOR A PROTECTION VISA

9. The criteria for a protection visa are set out in Appendix A to this decision.

   RELEVANT COUNTRY INFORMATION

10. Country Information specifically referred to by the Tribunal in this decision is identified below.  The Tribunal has also had regard to the most recent DIBP Country Information contained in its COISS publication Malaysia: Common Claims, 1 September 2016 at pp.1-10 and 38-47 and DFAT Country Information Report – Malaysia, 19 July 2016 more generally.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant engages Australia’s protection obligations for the essential and significant reason of religion, namely, being forced to convert to Islam by her former partner.  Although not specifically raised by the applicant, the Tribunal has also considered whether the applicant engages Australia’s protection obligations on account of domestic abuse by a former boyfriend, or on the basis of persecution due to her current mental health status if she was returned to Malaysia. 

12. The Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.

13. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.  The Tribunal notes that in Iyer[1], for example, the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. 

    [1]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].

14. The court confirmed that the Tribunal had applied the correct principles concerning the applicant's fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim.  This decision was affirmed on appeal.[2]

    [2]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

15. The Tribunal also notes that if it makes findings that an applicant's claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant held a genuinely subjective fear of harm.  Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims. 

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

    Country of reference

17. According to the applicant’s movement record, he arrived in Australia using her most recent Malaysian passport [in] March 2015 on a [temporary] visa.  The Tribunal has also had regard to the Departmental files, interviewed the applicant in person, and has viewed the applicant’s most recent Malaysian passport.

18. On the basis of the above evidence, the Tribunal finds that the applicant is a woman born on [date], and is a national of Malaysia.

19. The Tribunal therefore finds that the receiving country for the applicant is Malaysia, for the purposes of s.36(2)(aa) of the Act.

20. Having regard to all the evidence, the Tribunal finds that the applicant does not have a right to enter and reside in a third country.  The Applicant is therefore not excluded from Australian protection by the operation of s.36(3) of the Act.

    Applicant’s Claims

21. The Applicant’s claims for protection, as written by the applicant in her application for protection, in their entirety, are as follows:

    ·Because I was forced to change my religion to join Islam.  My boyfriend house arrest me and threatened to kill me. (Form 866C, Question 44 “Why did you leave that country?”)

    ·Yes.  He (Name).  He didn’t allow me to go out and beat me.  Recently he forced me to join Islam.  (Form 866C, Question 45 “have you experienced harm in that country? Give details”).

    ·I am afraid that (Name) and the undercover police will find me and force me to join Islam.  They will hurt me.  (Form 866C, Question 46 “what do you fear may happen if you go back to that country?)

    ·My boyfriend (Name) and his police friends.  (Form 866C, Question 47 “who do you think may harm/mistreat you if you go back?)

    ·Because I tried to escape from him but his police friend caught me and bring me to him. He threatened to kill me if I run away again. (Form 866C, Question 48 “why do you think this will happen to you if you go back?)

    ·I’ve been to the police to report what happened but they advised me to just join Islam even though they know (Name) will hurt me. I don’t do anything. Just told me to settle it between ourselves. I feel very confused and scare.  (Form 866C, Question 49 “Do you think the authorities of that country can and will protect you if you go back?)

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The principle issue in this case is whether the applicant is a person towards whom Australia owes protection obligations for the essential and significant reason of religious persecution in Malaysia (refugee criteria).  An alternative consideration is whether the applicant is owed protection obligations on account of domestic abuse by a former boyfriend, or persecution due to her current mental health status (complementary criteria).  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    First Hearing

23. At the start of the first hearing with the applicant on 15 June 2017, the Tribunal reminded her of the importance of answering all questions truthfully.  The applicant was advised that she would be asked if there was anything that she wished to add to her claims, or any information in her application for protection or other documents held by the Tribunal that she wished to change.  The applicant was then given some time to consider her response, before these questions were put to her subsequently.

24. At a later stage in the first hearing, the Tribunal specifically asked the applicant if there was anything that she wished to add to her claims for protection.  The applicant answered in the negative.  The Tribunal then specifically asked the applicant if there was any information in her application for protection or other documents before the Tribunal that she needed to change.  The applicant answered in the negative. 

25. The Tribunal also clarified with the applicant if she was aware that there were findings in the delegate’s decision record that suggested that the delegate did not accept the applicant’s claims as being credible.  The applicant indicated that she was aware of this.  The Tribunal then specifically asked the applicant if there was anything that she wished to add to her claims for protection.  The applicant answered in the negative.

26. Before proceeding to questions at the first hearing, the Tribunal asked the applicant specifically if she was happy for the Tribunal to proceed on the basis of the information before it.  The applicant answered in the affirmative.

27. At the commencement of the first hearing the applicant stated that, prior to arriving in Australia, she had lived in [City 1], [in Country 1], with her immediate family for approximately five years. Both the applicant’s parents are managers in [products] companies operating within [Country 1].

28. According to the applicant while she was a student she would occasionally visit her [Relative A] in Johor Bahru, in Malaysia.  These visits often occurred in company with the applicant’s own sister.  In the course of one of these visits in 2014, the applicant made the acquaintance of one of her sister’s friends, and over a period of time a relationship developed between the two.  On one occasion, the applicant claimed that her boyfriend visited the applicant’s family home in [City 1], [Country 1] for a period of a week.

29. On another occasion, the applicant, who is a non-Muslim person of ethnic Chinese descent, claimed to have visited with the family of her boyfriend, who are ethnic Malays, at their home in Johor Bahru, Malaysia.  Throughout the first hearing, the applicant maintained that she had stayed with her boyfriend’s family for four months in late 2014, early 2015.

30. The applicant stated that during this stay, her boyfriend proposed to her and that, although she was surprised, she accepted this proposal of marriage.  According to the applicant, from this point forward both her boyfriend and his parents placed significant pressure on her to convert to Islam.  The applicant stated that she resisted this pressure to convert throughout her stay with her boyfriend’s parents.

31. The applicant stated that soon after this, her boyfriend began became verbally and, occasionally, physically abusive towards her whenever they were alone.  When asked how he had been physically abusive towards her, the applicant stated that she had been slapped by her boyfriend and that he had punched the wall.  According to the applicant, her boyfriend was very controlling, monitored her use of telephonic communication and rarely, if ever, let the applicant out of his sight.

32. According to the applicant, there were occasions when she visited with her [Relative A] who also lived in Johor Bahru, but that on these occasions the applicant was accompanied by her boyfriend.  The applicant also claimed to have been periodically locked in her room by her boyfriend when he was not in the house.  The Tribunal asked the applicant if her boyfriend’s parents were aware of what was going on, the applicant stated they were not.

33. According to the applicant, there were occasions when she was able to spend time alone with one of her friends who lived in Johor Bahru.  She confided in this friend that she was under duress while living in the home of her boyfriend’s parents.

34. On one of her excursions with her friend, the applicant claims to have visited a police station in Johor Bahru and attempted to report her involuntary detentions and physical abuse experienced at the hands of her boyfriend.   The applicant was unable to identify which police station she had visited.  According to the applicant, the police officer in question initially began making notes but then declined to take a police report from the applicant.  The Tribunal asked the applicant when this occurred.  The applicant was not sure what day the week but estimated that it was somewhere around [date range in] October 2014.

35. According to the applicant, while she was resident with the parents of her boyfriend in Johor Bahru, her use of her mobile telephone was closely monitored by her boyfriend on every occasion.

36. The applicant stated that, by means of discrete signals in her telephone calls to her parents, she made it clear that she was unhappy and wish to return to [City 1].  The applicant’s mother arranged a flight, and the applicant’s [Relative A] came to her boyfriend’s parents’ house, collected her and took it to the airport.

37. The Tribunal pointed out to the applicant that there were numerous inconsistencies and improbabilities in the applicant’s statements.  Firstly, contrary to the applicant’s written claims for protection, the applicant was now stating that she had never been forced to convert to Islam.  Rather, the applicant was now stating that she had merely been pressured to convert to Islam, but that she had resisted this pressure.

38. Tribunal also indicated that the applicant’s claims to have been held against her will were not consistent with her evidence to the Tribunal that she had spent time with a personal friend in Johor Bahru, to the point of having excursions alone together.  The applicant’s [Relative A] also lived in Johor Bahru, and the applicant had the opportunity to gain access to her [Relative A] during the time of her stay with her boyfriend’s family.  Given this, the Tribunal would have expected a person facing the type of duress claimed by the applicant to have taken the first opportunity to go directly to her [Relative A] and ask for protection.

39. Similarly, the Tribunal would have expected a person in such circumstances to have called her own parents at the first opportunity and ask for assistance.  The Tribunal also notes that, while the applicant had claimed in her application for protection that the police returned her to her boyfriend after she tried to make a police report, the applicant stated during the hearing that she returned voluntarily to the house after this attempted report to police.

40. The Tribunal asked the applicant why she did not seek assistance from her [Relative A] or express distress to her boyfriend’s parents about how she was being treated.  The applicant claimed that she had experienced [a condition significantly] for all of her adult life and that this made it very difficult to stand up or speak out against such controlling and abusive behaviour.

41. At this point in the hearing, the applicant made what she claimed to be a first disclosure of a sexual assault that occurred in her late teens.  After making sure that the applicant felt safe, Tribunal advised that it would be unwise to continue the hearing at this point and that the applicant should seek specialist counselling.  The Tribunal suggested that the applicant should give careful thought to how her mental health condition might relate to her claims for protection before a further hearing was held.  The Tribunal provided the applicant with contact details of various support agencies, and the hearing was adjourned.

    Second Hearing

42. On the day prior to the second hearing with the applicant, 28 August 2017, the Tribunal received a psychological report dated [in] August 2017 from the applicant’s clinical psychologist. 

43. In some respects the history related in this report is consistent with the history provided by the applicant to the Tribunal at the first hearing.  However in a number of important respects the history related in the report varies from that provided the Tribunal at the first hearing.

44. In particular the report states that the applicant’s relationship with her former boyfriend commenced in 2013 ending at the beginning of 2014.  At the first hearing, the applicant claimed that this visit was at the end of 2014 to the start of 2015.  The report also states that the visit, during which the applicant claims to have been held against her will, lasted for only four weeks and not the four months claimed by the applicant at the first hearing.

45. The report refers to repeated sexual assaults by the applicant’s former boyfriend.  This is not consistent with the information provided to the Tribunal at the first hearing, at which the applicant stated that her only experience of sexual assault was in a formal relationship during her late teens.  The report also indicates that the applicant has not made any disclosure of sexual assaults prior to interview by the clinical psychologist.  No mention is made about the applicant’s prior disclosure to the Tribunal in the report.

46. The report also refers to repeated attempts by the applicant’s former boyfriend to contact her after she returned to [City 1].  The Tribunal notes that no reference was made by the applicant of such attempted contact by the applicant’s former boyfriend in either her original application for protection or at the first hearing with the Tribunal.

1. The Tribunal notes that the assessment of the applicant’s clinical psychologist, which is contained within the report provided to the Tribunal, is that the applicant meets the diagnostic criteria for [Condition 1] by reference to [specified guidelines].  In particular the Tribunal notes that, according to the report, the applicant has not “engaged in treatment or counselling or with a mental health service for any of the above-mentioned difficulties.”  The Tribunal also notes the following extract from the report:

   She appeared to be independent in being able to care for herself and engage in regular work.  Based on her reporting, it appeared that her overall coping significantly of improved after coming to Australia in 2015- this was seen as expected given the level of traumatisation in the above-mentioned incidents that had previously occurred in both Malaysia and [Country 1].

2. The clinical psychologist’s report also recommended that the applicant engage in treatment for [Condition 1] and receive an appropriate level of care and interventions to assist with her overall functioning.  The report also states that the applicant would be provided with resources and contact numbers for services that will be able to provide assistance and treatment in this regard.

3. The Tribunal discussed the specialist report with the applicant at the commencement of the second hearing.  The Tribunal also referred to the applicant’s Malaysian passport, which indicated that, since the beginning of 2014 she had extensively travelled internationally; including several visits to [Country 2]; travel between Malaysia and [Country 1]; [two other countries], not including her travel to Australia in March 2015.  The Tribunal suggested to the applicant that such extensive international travel is not necessarily indicative of a person suffering from severe [condition].  The applicant responded that she had engaged in this international travel in company with close members of her immediate family.

4. The applicant acknowledged that, while she had originally stated at the first hearing that her stay with her former boyfriend’s family in Johor Bahru was four months in 2014, she now recalled that this occurred in 2013 and only lasted four weeks.  The applicant suggested that this was simply because it seemed much more recent and the stay felt as though it had lasted for months.

5. The Tribunal referred the applicant to the report provided to the Tribunal from her clinical psychologist.  The Tribunal asked the applicant if she had accessed any of the support programs recommended by her specialist in that report.  The applicant stated that she had not accessed any of these support services.  When the Tribunal asked why she had not done so, the applicant stated that she had been raised in a way that discouraged the seeking of help and speaking about her problems.  The Tribunal pointed out to the applicant that, as [an age]-year-old adult with full capacity and evident resourcefulness and resilience, the Tribunal would have expected her to act on the recommendation of a psychologist with whom she had developed a therapeutic relationship over previous months.

6. The Tribunal put to the applicant that the numerous significant inconsistencies in the applicant’s claims and the extent to which these claims appeared to vary over time suggested that the applicant’s claims lacked credibility.  The Tribunal asked the applicant if she wished to address any of these inconsistencies or provide further information in response to the Tribunal’s concerns.  The applicant stated that she had nothing further to add.

   Factual findings

   Refugee Criteria - Religion

7. On the basis of the foregoing, Tribunal finds that, while the applicant may have been pressured to convert to Islam by her former boyfriend while visiting that person and his family in Johor Bahru, she resisted this pressure and did not, in fact, convert to Islam.

8. Given this, together with the fact that the applicant’s true circumstances are significantly misstated in the applicant’s original application for protection, the Tribunal finds that, taken at its highest, such pressure does not give rise to a well-founded fear of persecution by the applicant for the essential and significant reason of her religious beliefs now or in the foreseeable future if she were returned to Malaysia.  Accordingly, the Tribunal finds that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act.

   Complementary Criteria – Domestic Violence and Mental Health Condition

9. On the basis of the foregoing facts and findings, the Tribunal finds that, while her initially positive relationship with her then boyfriend may have become acrimonious during her stay with his family in Johor Bahru, the applicant’s claims to have been held against her will by her boyfriend or her boyfriend’s family while visiting with them in Johor Bahru lack credibility.  Similarly, the Tribunal finds that the applicant’s later claims to have been pursued by her former boyfriend via social media following the termination of their relationship also lack credibility.

10. The applicant’s evidence to the Tribunal demonstrates that she had numerous opportunities during her stay with his family in Johor Bahru to, at the very least, seek the assistance and protection of her [Relative A] in that city, with whom she had stayed on numerous previous occasions.  The Tribunal notes the inconsistency of the applicant’s testimony about important details of what happened during this visit with her previous boyfriend’s family in 2013.  This, together with the effluxion of time since that visit and her frequent subsequent international travel prior to her arrival in Australia in March 2015, satisfies theTribunal that there was no connection between this visit in 2013 and the applicant’s decision to seek protection in Australia in 2015.

11. Given the foregoing, the Tribunal finds that the applicant does not genuinely hold a well-founded fear of persecution on the basis of physical or emotional harassment experienced in the course of the applicant’s relationship with her previous boyfriend, now or in the foreseeable future, if she were returned to Malaysia.

12. As discussed above the Tribunal has had regard to the psychological report of the applicant’s treating clinical psychologist, dated [in] August 2017 which refers to an assessment consistent with [several specified conditions].  The Tribunal notes that, while Country Information suggests that there may be some social stigma surrounding mental health issues in Malaysia, there is nothing to suggest that the applicant would be unable to obtain relevant support services in that country now or in the reasonably foreseeable future.

13. Tribunal notes that the applicant has not pursued further support services following her three therapeutic sessions with the clinical psychologist.  The Tribunal also notes that, despite the events described in the report which led to her present difficulties stretching back to 2008, the applicant is nevertheless described as being “independent in being able to care for herself and engage in regular work”.  The Tribunal also notes that this report refers to the applicant as having had a “significant improvement in her overall coping after coming to Australia in 2015”. 

14. On the basis of the foregoing, there is nothing before the Tribunal to suggest that the applicant genuinely holds a well-founded fear of persecution because of her current mental health condition, now or in the reasonably foreseeable future, if she were returned to Malaysia.

15. Accordingly, the Tribunal finds that the applicant does not meet the complementary protection criterion in s.36(2)(aa) of the Act.

    CONCLUDING PARAGRAPHS

16. 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).

17. 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

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

    Dr Colin Huntly
    Member

    
    

    APPENDIX A – RELEVANT LAW

    65.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

    66.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.

    67.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.

    68.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).

    69.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 below.

    70.The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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.[3]

    [3]Chan Yee Kin v MIEA (1989) 169 CLR 379.

    71.If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).

    Complementary protection criterion

    72.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’).

    73.‘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.

    74.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

    75.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.

    Applicant credibility

    76.The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[4]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. 

    [4]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

    77.In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[5] Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[6]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. 

    [5](1996) 40 ALD 445.

    [6]At 482.

    78.The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[7] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[8]

    [7](1996) 185 CLR 259.

    [8]At [25].

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

    79.The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[9]  Nevertheless, as Burchett J counselled,[10] it is necessary to:

    [9][1997] FCA 1198 ( accessed 15 February 2017).

    [10]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

    80.The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[11]  On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86.  Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[12]  Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case.  However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[13]  In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[14]  The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[15]

    [11]In Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 ( accessed 15 February 2017).

    [12]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.

    [13]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

    [14]MIMA v Rajalingam (1999) 93 FCR 220.

    [15](1999) 197 CLR 510 at [191].

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

    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.

    …