1607676 (Refugee) [2017] AATA 1564 (31 July 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER: 1607676
COUNTRY OF REFERENCE: Malaysia
MEMBER:Dr Colin Huntly
DATE OF DECISION: 31 July 2017
DATE CORRIGENDUM
SIGNED:11 September 2017
PLACE OF DECISION: Perth
AMENDMENT: The following corrections are made to the decision:
Paragraphs:
[5]First sentence: “his witness” should read “her witness”.
[7]Masculine pronoun throughout should read feminine pronoun.
[16]First sentence: “record, he” should read “record, she”.
[29]First sentence: “2018” should read “2015”.
[38]First sentence: “Malay’s” should read “Malays”.
[46]Quotation extract: Masculine pronoun throughout should read feminine pronoun.
[47]Penultimate sentence: “English t the hearing” should read “English at the hearing”
[51]“Applicant” should read “applicant”.
[53]Paragraph should be deleted.
[65]“[City 1] in February 2016 given” should read “[City 1] in February 2016; and, given”.
[70]First sentence: “at first that she” should read “at first stated that she”. Final sentence: “applicant volunteer” should read “applicant to volunteer”.
[72]First sentence: “2017 stated” should read “2017 referred to above, stated”.
[73]First sentence: “not apply to her” should read “not applied to her”.
[74]Second sentence: “applicants own” should read “applicant’s own”.
[77]First sentence: “in his application” should read “in her application”.
[97]Second last line: “gives rise to separate” should read “gives rise to a separate”.
Dr Colin Huntly
Member
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1607676
COUNTRY OF REFERENCE: Malaysia
MEMBER:Dr Colin Huntly
DATE:31 July 2017
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 31 July 2017 at 12:18pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Religion – Atheist – Credibility – New information introduced at hearing – Vague and general claims
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 438, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicant A v MIMA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIMA 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 Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors, (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
MMM v MIMA (1998) 90 FCR 324
Randhawa v MILGEA (1994) 52 FCR 437
SAAD v MIMIA [2003] FCAFC 65
SDAQ v MIMIA (2003) 129 FCR 137
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Selliah v MIMIA [1999] FCA 615
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZQNO v MIAC [2012] FCA 326
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
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).
The applicant who claims to be a national of Malaysia, applied for the visa [in] March 2016. The delegate refused to grant the visa [in] May 2016 on the basis that the applicant’s claims lacked sufficient detail to support the finding that she had a well-founded fear of persecution in Malaysia.
On 27 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
In the first instance, the applicant attended a hearing with the Tribunal on 6 June 2017 to give evidence and present arguments. The applicant nominated a witness who would be attending in support of her claim for protection. This witness was also the applicant’s domestic partner. In addition, the applicant’s witness was also, themselves, a review applicant, having lodged a separate application for protection. Accordingly, the Tribunal found itself with two separate review applicants before it, for whom each was the supporting witness of the other, and these parties were also domestic partners.
The applicant’s hearing response for the first hearing stated that no interpreter was required by either herself or his witness. The Tribunal notes that the applicant’s witness provided a separate hearing response relating to the first hearing (in his own separate capacity as an applicant), and this also indicated that no interpreter was required for that hearing.
In light of these inter-relationships, the applicant was invited to attend her first hearing on the same day that her domestic partner was invited to attend her first hearing. On the relevant day, both parties requested to be heard jointly as far as possible, for the purposes of their individual reviews. The Tribunal granted this request. Accordingly, the applicant’s hearings were conducted jointly with those of her domestic partner and witness.
At the start of the first hearing, the Tribunal reminded the applicant of the importance of answering all questions truthfully. The applicant was advised that he would be asked if there was anything that he wanted to add to his claims, or any information in his application for protection or other documents held by the Tribunal that he wished to change. The applicant was then given some time to consider his response before these questions were put to him.
At a later stage in the first hearing, the Tribunal specifically asked the applicant if there was anything that she wanted 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. 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.
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.
A second hearing was scheduled for both the applicant and her witness for 23 June 2017. Both the applicant and witness submitted requests for postponements on medical grounds. The Tribunal accepted the applicant’s request for a postponement of the hearing.
A third and final hearing was held on 18 July 2017. At this hearing the Tribunal sought to clarify a number of outstanding issues with the applicant.
RELEVANT LAW
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
The criteria for a protection visa are set out in Appendix A to this decision.
RELEVANT COUNTRY INFORMATION
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.38-47 and DFAT Country Information Report – Malaysia, 19 July 2016 more generally.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant engages Australia’s protection obligations for the essential and significant reason of her religious views, namely, being an atheist ethnic Malay in Malaysia. Although not specifically raised by the applicant, the Tribunal has also considered whether the applicant engages Australia’s protection obligations for the essential and significant reason of her membership of the particular social group of returnees. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
According to the applicant’s movement record, he arrived in Australia using her most recent Malaysian passport [in] December 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.
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.
The Tribunal therefore finds that the receiving country for the applicant is Malaysia, for the purposes of s.36(2)(aa) of the Act.
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
The Applicant’s claims for protection, as written by the applicant in her application for protection, are contained in a single page attachment to her “Form 866C Application for Protection”. This attachment is referred to in all relevant response boxes in the applicant’s Form 866C with the notation “As Attached”. The relevant attachment, in its entirety, states as follows:
Question 89
My main reason for leaving Malaysia and seeking the protection of the Australian government are based on my fear of being harmed and detained by the Islamic religious authorities in Malaysia on account of my atheist beliefs. I also fear of being mistreated and physically harmed by my family, relatives and the Islamic community for denouncing Islam.
I was born into a strict Sunni Muslim family in the town of Ipoh. My family was a devout believers of Islam. I was forced to attend Islamic classes and memorised and recited the Koran since I was seven years old. My siblings and I were expected to pray five times a day. Praying become part of my daily routine. I was also had to wear a hijab to cover my head and wear loose clothes. I was not comfortable and felt that all the routines and rituals were a burden.
I used to asked my father and religious teacher about the necessities and the logics in all these Islamic rituals but I was scolded and warned about hell and wraith of God. I stopped asking questions and continue to practice it just to keep my family and religious teacher happy even though I felt nothing.
I never felt connected to Islam. I felt burdened by all the religious obligations. I felt it was a strict and rigid religion that could not be questioned and challenged.
The more times past, the more I became disengaged with this life. I do not believe the existence of God. I think religion is responsible for all the suffering and chaos in the world, and organised religion only created by people in order to control other people. The concept of God and the needs to please him by doing rituals and reciting words in the language I don’t even understand doesn’t make sense to me.
Finally in December 2015, I couldn’t take it anymore, I stopped praying and doing all the Islamic obligations and stopped wearing hijab …
No further submissions were received from the applicant in support of her application for protection.
First Hearing
At the outset of the first hearing, the Tribunal reminded the applicant of the importance of answering all questions truthfully. The applicant was advised that she would be asked if there was anything that she wanted 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.
At a later stage in the first hearing, the Tribunal specifically asked the applicant if there was anything that she wanted 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.
The Tribunal then specifically asked the applicant if there is anything that she wished to add to her claims for protection. The applicant answered in the negative.
After completing a joint hearing introduction for both applicants, the Tribunal proceeded to hear the applicant alone. According to the applicant, she and her now partner began cohabiting at a [accommodation] in February 2016. By May 2016, they had become domestic partners.
The Tribunal asked the applicant how she came to be in Australia. The applicant stated that she experienced no freedom to live as she wanted to in Malaysia and that her parents attempted to force an arranged marriage on her in Malaysia to an ethnic Malay man.
Having personally abandoned any belief in the Islamic faith, the applicant ceased wearing the hijab approximately one month before leaving for Australia, and determined to pursue a secular lifestyle. The applicant’s family was unhappy with her for this and pressured the applicant to conform with the precepts of Islam.
After leaving Malaysia, the applicant travelled to [City 1], arriving [in] December 2018. A few weeks later, she began a social media-based friendship with her principal witness. Approximately six weeks after arriving in Australia, and at his suggestion, the applicant travelled to [City 2] to stay in the same [accommodation] in which her principal witness was living. Within a few months they had commenced a relationship. The applicant’s evidence was that, given that they were of a similar age and from the same town in Malaysia, she and her now partner discovered that they had a great deal in common.
The applicant also disclosed to the Tribunal that she was in the first trimester of pregnancy, and that the applicant’s partner was the father. The applicant expressed concern about the baby she was carrying, and her pregnancy.
In the course of her evidence, the applicant revealed for the first time that she had worked in a retail business with the man to whom her parents had arranged the applicant to become married. In the course of her job, the applicant was required to travel to [another country] with her intended husband in order to buy [items] that were sold in the business in Malaysia. While there was no formal arrangement between the parties, the applicant indicated that a traditional agreement had been reached between the parents of the applicant and the man to whom she had been arranged to marry.
The applicant told the Tribunal that, since leaving Malaysia, she has had very little contact with her family because they were very angry with her decision not to follow the precepts of Islam. During the time the applicant has been in Australia, her father has died. The applicant stated that she fears returning to Malaysia, in part, because of the continued harassment that she expects to experience from family members. The applicant also told the Tribunal that there is a rise in Islamization of the Malaysian State. This is emerging as a big issue in the forthcoming elections. Accordingly, religious persecution of non-Muslims within the general community is becoming a larger problem.
The Tribunal asked the applicant if she and her partner had any plans to marry. The applicant stated that she and her partner have had general conversations about marriage and that it is their intention to get married when they could afford to do so. When asked about the detail of these discussions, the applicant stated that the discussions were general in nature. The applicant was asked approximately when she formed a relationship with her partner. The applicant stated that their relationship commenced around May 2016. The Tribunal asked the applicant if there was anything further she wished to tell the Tribunal about their relationship. The applicant answered in the negative.
The Tribunal asked the applicant when she had discovered she was pregnant. The applicant stated she discovered she was expecting a child around [date].
The Tribunal asked the applicant why she had failed to disclose all the additional details she had just provided to the Tribunal at the hearing at the first reasonable opportunity. The Tribunal reminded the applicant that, at the start of proceedings, she was asked if there was anything she wanted to amend in her application for protection. The applicant stated that she did not add or change anything her statements because she did not believe the things that she had just told the Tribunal were important, and that her grasp of English was not strong. The Tribunal notes, in this respect, that the applicant did not request an interpreter for the first hearing and that, up until this point in proceedings, the applicant had demonstrated an adequate grasp of English.
When asked if the applicant knew any of her partner’s family personally prior to them forming a relationship, the applicant responded in the negative.
The applicant confirmed that she no longer had any contact with her family in Malaysia, and that her family no longer loved her because she had abandoned them. Despite this, the applicant repeated her belief that, if she returned to Malaysia, her family would force her to adopt a strict Muslim lifestyle.
The Tribunal asked the applicant if she had ever proselytized Muslim Malay’s to abandon their Islamic faith in favour of an atheist system of belief. The applicant stated that she had not.
The Tribunal asked the applicant why she would be persecuted for living a secular lifestyle in Kuala Lumpur. The applicant stated that to do so was against the views of Malaysian society. When the Tribunal drew the applicant’s attention to credible Country Information suggesting that ethnic Malays could openly adopt a secular lifestyle in Kuala Lumpur without fear of persecution, the applicant disagreed with that Country Information. The applicant did not provide any alternative Country Information in support of this assertion.
The Tribunal asked the applicant if she experienced any personal harassment or discrimination while living alone in Kuala Lumpur when she adopted a secular lifestyle and manner of dress at the end of her time in Malaysia prior to arriving in Australia. The applicant stated that she did not, but she was aware of people’s expectations.
The applicant was asked at this point in the proceedings whether she had anything further to add to her claims, and whether the information available to the Tribunal relating to her application was complete. The applicant indicated that there was nothing further to add.
At this point, as previously agreed with the parties, the Tribunal heard the applicant’s witness in private, in his capacity as the applicant’s witness.
Witness
The applicant’s partner provided the following information in his capacity as a witness, nominated by the applicant, in connection with her application for review:
According to the applicant’s partner their relationship commenced in March 2016 that they had been living at the same [accommodation] from February 2016.
The applicant was from the same village as the witness, and they had discovered that, by chance, as a school child, the applicant had been taught by an [relative] of the witness.
The witness was asked if he had any knowledge of the applicant’s family prior to meeting the applicant. The witness indicated he did not.
The Tribunal asked the witness if he had any plans for the future with the applicant. The witness indicated that the couple planned to get married in the next month, after the hearing.
Applicant and Witness Together.
At this point in proceedings the Tribunal proceeded to hear the applicant and the witness together, as requested by the applicants and as agreed to by the Tribunal.
The Tribunal pointed out that, despite having been given every opportunity to add to or amend her application for protection prior to proceeding to giving evidence and being questioned by the Tribunal, both the applicant and her witness had repeatedly assured the Tribunal that they had nothing to add to, or amend in, the application for protection.
The Tribunal noted that it had been necessary to question the applicant extensively to obtain any further information of relevance to the application for protection, including details relating to the vague claims made in the original application for protection. Tribunal noted that the reluctance of the applicant to provide further information about the vague nature of her claims and the lack of detail provided reflected poorly on the applicant’s credibility, and, to some extent, on the credibility of the witness. The Tribunal noted that this precise concern had also been raised by the delegate in their Decision Record at [24] as follows:
The applicant has provided his claims with minimal and vague details. He has not provided any evidence to support his claims of being an atheist.
The Tribunal noted that the applicant stated that she did not provide much detail in her written application because she did not believe that it was important for the purposes of applying for protection, and because she had a poor grasp of English. The Tribunal indicated that it did not accept this explanation as credible. An applicant seeking protection, due to genuinely held fears, would be expected to explain those fears in detail. In addition, details of interpreter services are provided to applicants by both the Department and the Tribunal as a matter of course, and Tribunal hearings are conducted with the use of interpreters where this is requested by the applicant, or are otherwise appropriate. In this respect, the Tribunal noted that the applicant did not request an interpreter for the first hearing with the Tribunal and that the applicant had demonstrated an adequate grasp of English t the hearing until the Tribunal began questioning the applicant about matters of detail. The Tribunal expects that applicants would also take the first reasonable opportunity to correct or amend an application if it contained incorrect or out-of-date information.
The Tribunal pointed out that the applicant did not make any mention of a traditionally arranged marriage in Malaysia in her written application for protection.
The Tribunal also pointed out that the applicant did not make any mention of her close working relationship with the man she claimed she had been arranged to marry in Malaysia in her written application for protection, and that the first time this had been mentioned was when she was questioned by the Tribunal at the hearing.
The Tribunal noted that the applicant had lived an open, secular lifestyle and adopted a secular manner of dress without harassment for the brief time she resided in Kuala Lumpor prior to departing for Australia, and that credible Country Information suggested that this was possible for other ethnic Malays in that city.
The Tribunal expressed concern that the Applicant made no mention in her application for protection of the fact that her father had passed away in December 2015, and that the first time this was disclosed was during the hearing.
The Tribunal indicated to the applicant that the apparent omissions and inconsistencies in the applicant’s claims and evidence over time, (together with her apparent reluctance to provide relevant information despite repeated questioning by the Tribunal) separately, and together, raised serious doubts about the credibility of the applicant’s evidence. These doubts about the credibility of the applicant’s evidence undermined the credibility of the applicant and, as a result, the genuineness of her claims for protection.
.
The Tribunal drew the attention of the applicant to the existence of a s.438 Notice in the Department’s file relating to the applicant’s application for protection. This Notice refers to an anonymous report to the Department to the effect that the applicant and her partner were involved in a [certain] business that relied upon unlawful noncitizens.
The Tribunal indicated to the applicant that it placed no weight on this information because it was not relevant to the question before the Tribunal, but that, as it was on the applicant’s file, the applicant was entitled to know about its existence and the nature of its contents. The Tribunal advised the applicant that she would be given 14 days to make any submissions she wished to make on this matter, bearing in mind that the Tribunal had already determined not to place any weight on the information, on the basis of relevance.
Immediately prior to the first hearing being adjourned, the applicant and witness together disclosed to the Tribunal that the applicant was in fact pregnant for the second time in the course of both their relationship, and since they had lodged their applications for protection, the first pregnancy having ended in miscarriage in December 2016.
The Tribunal pointed out that disclosing that this was the applicant’s second pregnancy since the applicant had applied for protection as the first hearing was concluding, further raised credibility issues about the applicant’s evidence. The Tribunal again pointed out that the applicant’s persistent lack of candour, as demonstrated by her reluctance to disclose potentially relevant information throughout proceedings reflected adversely on the credibility of both the applicant and the witness
The Tribunal again expressed its concern about the nature and content of the applicant’s evidence and the nature of the applicant’s claims for protection in light of the applicant’s lack of candour. The Tribunal indicated that proceedings would be adjourned to allow the applicant to consider the material provided to the applicant during the hearing and the concerns raised by the Tribunal before proceedings were resumed.
Submissions Received — Email 17 JULY 2017
On 17 July 2017 the Tribunal received an email submission from the applicant’s witness that purported to express the views of the applicant and the witness. Relevantly, this submission makes the following comments of relevance to the applicant in connection with her application for review:
The applicant attended a school in which the [relative] of the witness taught.
“Both of us never really declare our belief to anyone without the fear of being backfires.”
“It is somewhere around January we started to share stories (on Facebook). She was in [City 1] by the time I get to know her. It is a coincidence she is from the same town where I grew up in Malaysia which is Ipoh Perak. It happened to be that she was from the school where my [relative] use to teach. Somehow we felt safe to share stories and we start to trust each other. Both of us never really declare our believes to anyone without the fear of being backfires. I shared to her about the protection VISA and she is interested. So I bought her a plane ticket as she decide she doesn’t want to go back to Malaysia but her money is running low. It’s on the same time around she got to know her father passed away. And this made her more than sure not to go back to Malaysia anymore. She felt lost and she needed someone to be around her.”
“We were both doing cash job from the notice board, Gumtree and the backpackers itself.”
The applicant and the witness together have moved from the [accommodation] to a home in [Suburb 1] in April 2016. Between November 2016 and February 2017, the witness and the applicant together operated a food stall in [Suburb 2]. Since that time the witness and the applicant have been employed on a cash basis.
“Police in Malaysia are well-known to torture any offenders regardless what is the crime.” And that; “There are few cases got beaten up till death in a Islamic school.” The refers to the article provided by the applicant entitled “Time to Act against Torture in Malaysia” an article entitled “Torture in Detention”; another entitled “Torture Methods” and “Detentions and Forced Confessions”. Another Article about the death of one “Mohamad Thaqif Amin” is also noted
The Tribunal notes that the written submission attached to the email also states that:
The chances of us hiding our identity and believe is degrading by time. People around us will eventually know. Furthermore I am afraid for the future of my baby will happen? We got caught? They will separate the baby from us? The baby is forces to be a Muslim? Anything is possible. When we renounce our believe to the public we’re actually going against all the Malay Muslim, the police officers, the Syariah offices, the law both civil and Sarria. Our chance of winning is 0%. We are afraid, people start to notice and have an idea about us they start to lecture, asking us to go to rehab centres, calling us to go to the mosque, meeting all the religious people. It’s a different level of anger from the community if we’re talking about a Muslim changing their believe regardless is an atheist or Christianity. I am afraid for the future of my partner and the future of the baby.
The Tribunal notes credible Country Information referred to in this decision about ethnic Malays being able to discretely adopt a secular lifestyle in Kuala Lumpur. The Tribunal further notes the applicant’s testimony to the effect that she and her domestic partner adopt a discrete secular lifestyle, together with the evidence of both the applicant and her current domestic partner that they both intend to marry in the near future. As discussed elsewhere in this decision, the Tribunal has found that the applicant’s claim to fear persecution for the essential and significant reason of discretely failing to observe Islamic precepts in Malaysia now or in the reasonably foreseeable future is not subjectively well-founded. The Tribunal further notes that these findings would have equal application for any child born as a product of the applicant’s relationship with her current partner now or in the reasonably foreseeable future.
Third Hearing
A third and final joint hearing with the applicant and her partner was held on 18 July 2017. The Tribunal asked if the applicant had read the Email Submission dated 17 July 2017 and if so, whether she wished the Tribunal to consider this submission to the extent that it did not solely apply to the witness in his personal capacity. The applicant answered in the affirmative.
Prior to this hearing, the applicant requested the assistance of an interpreter, and an interpreter fluent in the English and Malay languages assisted the applicant at the hearing. No written submissions were received from the applicant prior to the hearing in response to the concerns raised by the Tribunal at the first hearing about the applicant’s evidence lacking credibility. Neither has any written submission been received from the applicant in connection with the anonymous report made to the Department and attached to a s.438 Notice.
At the hearing the Tribunal sought to clarify a number of outstanding issues with the applicant.
The Tribunal asked the applicant why she did not approach an agent, a lawyer or the Department to apply for protection before [date] March 2016, given that her current partner informed the applicant that protection was available before the applicant moved to [City 2] from [City 1] in February 2016 given that the applicant’s partner had already applied for protection on his own behalf.
In response, the applicant stated that she did not have any money for a lawyer or agent, that she had poor English and that she did not know how to apply for protection. The Tribunal notes that the applicant applied personally for protection, and at no stage has been represented by an authorised representative.
The Tribunal asked the applicant why she did not, at the first reasonable opportunity, tell either the Department or the Tribunal that current partner had purchased the plane ticket for her to fly to [City 2] from [City 1] before 17 July 2017. As stated in the email submission of 17 July 2017, the applicant’s partner “… shared to her about the protection VISA and she is interested. So I bought her a plane ticket as she decide she doesn’t want to go back to Malaysia but her money is running low. It’s on the same time around she got to know her father passed away. And this made her more than sure not to go back to Malaysia anymore.”
In response, the applicant stated that she did not think this information was relevant to her application for protection. The Tribunal reminded the applicant that she was repeatedly asked at the beginning of her the first hearing whether or not the information contained in her application for protection was accurate and whether or not there was anything that required changing. The Tribunal also reminded the applicant that she was repeatedly asked at the first hearing about how her relationship with her current partner first started. The applicant stated that she did not appreciate that this might include the detail about whom it was who paid for her plane fare to travel to [City 2] from [City 1].
The Tribunal noted that the applicant’s [date] March 2016 application for protection stated that her then current residential address in Australia was [accommodation] at [address]. The Tribunal asked the applicant why she had not updated this information to reflect the information (contained in the submission of 17 July 2017), that she and her current partner have lived together in a rental home in [Suburb 1] since 2016. The Tribunal asked the applicant for her current address.[1] The Tribunal also asked the applicant why she had not given any details of her employment history in her original application for protection, or provided those details when the Tribunal repeatedly asked the applicant if there were any changes or further details that she needed to provide at the first hearing.
[1][address deleted].
In response, the applicant at first that she did not understand the question or that she forgot the relevant details. The applicant later suggested that she was unable to contact the Department. The Tribunal reminded the applicant that she was repeatedly asked at the beginning of the first hearing whether or not the information contained in her application for protection was accurate and whether or not there was anything that required changing. The Tribunal pointed out that these changed details were not provided at the first hearing by the applicant in response to these questions. The Tribunal indicated that this failure on the part of the applicant volunteer details relating to her application for protection reflected poorly on the applicant’s credibility and the credibility of her claims.
The Tribunal asked the applicant at the first hearing if she had experienced any adverse attention from members of the community while in Malaysia for her secular lifestyle. The Tribunal notes that the applicant stated that she had not, but that Malaysia was experiencing an increase in Islamisization, particularly in the lead up to the next general election. The Tribunal asked the applicant if she wished to change this evidence. In response the applicant stated that she had been caned by her parents and by religious teachers for questioning the validity of Islamic teachings. The Tribunal expressed concern that this new evidence was entirely different to the statement made by the applicant in her written application for protection and her previous statements at the first hearing.
The Tribunal noted that the submission dated 17 July 2017 stated that “Police in Malaysia are well-known to torture any offenders regardless what is the crime.” And that; “There are few cases got beaten up till death in a Islamic school.” The Tribunal also referred to the article, provided in the submission, entitled “Time to Act against Torture in Malaysia” an article entitled “Torture in Detention”; one entitled “Torture Methods”; and one entitled “Detentions and Forced Confessions” were also noted. Another Article about the death of a “Mohamad Thaqif Amin” was noted. The Tribunal asked the applicant if these articles related to the applicant’s claims about her atheist beliefs and, if they did, how they did.
In response, the applicant stated that the cruelty described in the articles did not relate to her at present and had not apply to her in the past, but that she feared that, if she was prosecuted by the religious authorities in Malaysia for her religious views, she might face similar physical harm. The applicant stated that, if members of the community became aware of her views about Islam, they would be obliged to report her to the religious authorities. This could result in her facing fines, forced re-education, caning or imprisonment. The applicant repeated what she had stated earlier in the hearing, that she had been caned by her parents and by religious teachers for simply questioning the validity of Islamic teachings. The Tribunal again expressed concern that this new evidence was entirely different to the statement made by the applicant in her written application for protection and her previous statements at the first hearing.
The Tribunal notes credible Country Information referred to in this decision about ethnic Malays being able to discretely adopt a secular lifestyle in Kuala Lumpur. This Country Information is consistent with the applicants own evidence that she had experienced no harassment while she adopted a secular lifestyle and mode of dress in Kuala Lumpur for the period prior to leaving Malaysia for Australia. The Tribunal further notes the applicant’s testimony to the effect that she and her domestic partner adopt a discrete secular lifestyle, together with the evidence of both the applicant and her current domestic partner that they both intend to marry in the near future. On the basis of this evidence, the Tribunal finds that the applicant’s claim to fear persecution for the essential and significant reason of discretely failing to observe Islamic precepts in Malaysia now, or in the reasonably foreseeable future, is not subjectively well-founded.
The Tribunal advised the applicant that, if she made new claims or introduced new information at such a late stage without a reasonable explanation as to why those claims or that information was not raised in her initial application, the Tribunal was required to draw an adverse inference about the credibility of those claims or that information. The Tribunal again reminded the applicant that it repeatedly asked the applicant at the beginning of the first hearing whether or not the information contained in her application for protection was accurate and whether or not there was anything that required changing and the applicant had stated that she did not wish to make any changes. When asked why she did not raise these matters at a much earlier stage, the applicant stated that she forgot.
The Tribunal put to the applicant its assessment that her reading of the articles do not reflect the substance of credible Country Information available to the Tribunal. The Tribunal indicated that individual instances, where persons in custody experience mistreatment by officials, does not necessarily equate to the torture of any offenders regardless of what the alleged crime might be, by “Police in Malaysia” as a generic class. The Tribunal also drew the attention of the applicant to the fact that none of the instances of torture reported in the articles referred to in the submission related to allegations of atheism. The Tribunal noted the fact that these occurrences had been reported in the media, indicating the extent to which the conduct in question was not, in fact, expected of Police in Malaysia. The applicant also referred to her own experience of life in Malaysia is an example of the kind of fear people with the secular perspective face in living their everyday lives. The Tribunal finds that these claims and the information referred to above were not provided, either in the applicant’s application for protection, or at the first hearing in response to its questions. The Tribunal also finds that, to the extent that the claims suggest that there is widespread use of torture by the Royal Malaysian Police which is tolerated or otherwise treated with impunity by the Malaysian State is not consistent with the credible Country Information referred to in this decision.
The Tribunal notes that the applicant has made inconsistent statements relating to her religious status in his application for protection. Given that the applicant claims to hold atheist views, in her response to Form 866C, Question 33 “Your religion (including denomination Eg. Shia Muslim) (if any)” she stated that she is “Muslim”. The Tribunal asked the applicant about this inconsistency. In response the applicant stated that she simply copied out what was written in her passport and identification card. The applicant stated that she saw nothing unusual about this. The Tribunal notes that the same anomaly had been referred to in the delegate’s decision record, which the applicant has asked the Tribunal to review. Against this background, the Tribunal repeatedly asked the applicant at the first hearing whether or not the information contained in her application for protection was accurate and whether or not there was anything that required changing. In response, the applicant conceded that this information was confusing.
No written submissions were received from the applicant prior to the hearing in response to the specific concerns raised by the Tribunal at the first hearing about applicant’s evidence lacking credibility. Neither has any written submission been received from the applicant in connection with the anonymous report to the Department.
The Tribunal notes that the applicant has repeatedly raised concerns about the well-being of the unborn child expected by both herself and her partner. The Tribunal notes that the well-being of the applicant’s unborn child is naturally a matter of concern to the applicant. The Tribunal understands that both the pregnancies that have occurred in the course of the applicant’s relationship with her partner were unplanned. The Tribunal has no jurisdiction to consider any future potential claims of an unborn child. The Tribunal notes the evidence of both the applicant and her partner that they share a mutual commitment to each other, that they intend to formalize their relationship once they are financially secure and that they share views about future secular lifestyle choices. The Tribunal accepts the evidence of both parties that they intend to continue supporting one another now, and in the reasonably foreseeable future. As discussed above, the Tribunal has found that the applicant’s claim to fear persecution for the essential and significant reason of discretely failing to observe Islamic precepts in Malaysia now or in the reasonably foreseeable future is not subjectively well-founded. The Tribunal has also found that these findings would have equal application for any child born as a product of the applicant’s relationship with her current partner, now or in the reasonably foreseeable future.
The applicant stated that, if she were to return to Malaysia, she fears persecution from the community, her family and the religious authorities because of her views regarding the Islamic faith.
The Tribunal accepts the applicant’s evidence that she no longer has any contact, or indeed any relationship, with her family in Malaysia and that she does not intend to do so now, or in the foreseeable future. The Tribunal also accepts the applicant’s evidence that she has never proselytized against the Islamic faith or sought to make her personal religious beliefs known publically.
Findings Relating to the Applicant’s Claims
The Tribunal notes that a number of concerns raised with the applicant at hearing are matters of concern that were previously raised by the delegate in a record of decision provided to the applicant and dated [in] May 2016. This record of decision was provided to the Tribunal by the applicant. Accordingly the applicant was afforded ample opportunity to be prepared to answer questions relating to these concerns at all of the hearings.
The applicant was subsequently given an opportunity by the Tribunal to amend her claims for protection as they appear in the documents that were before it at the outset of the applicant’s first hearing before the Tribunal.
Despite the foregoing, the Tribunal notes that the applicant did not seek to amend her claims for protection at the first reasonable opportunity. Rather, late in proceedings and only after extensive questioning by the Tribunal, the applicant claimed that she faced the prospect of a traditionally arranged marriage to a man with whom she had worked and with whom she had travelled in connection with the business. Also of concern to the Tribunal was the evidence, provided by in a written submission to the Tribunal dated 17 July 2017, that the applicant’s partner paid for the plane ticket for the applicant to fly from [City 1] to [City 2] in February 2016, after exchanging messages on Facebook but before they had formed a domestic partnership. The Tribunal has found that the applicant failed to provide a reasonable explanation as to why this claim and evidence was not provided to either the delegate or to the Tribunal at the first reasonable opportunity, without extensive questioning on the part of the Tribunal.
The Tribunal particularly notes s.423A of the Act, which states as follows:
a)raises a claim that was not raised in the application before the primary decision was made; or
b)presents evidence in the application that was not presented in the application before the primary decision was made.
1) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
Accordingly, as provided in the Act, the Tribunal finds that the applicant does not have a reasonable explanation as to why the foregoing new claim relating to her claims for protection was not raised, or why the new evidence was not presented, before the primary decision was made. The Tribunal therefore draws an unfavourable inference regarding the credibility of the applicant’s claims to have faced the prospect of a traditionally arranged marriage to a man with whom she had worked and had travelled for business. The Tribunal also draws an unfavourable inference regarding the credibility of the applicant’s evidence relating to how it was that she moved from [City 1] to [City 2].
The Tribunal also notes that the applicant failed to provide a reasonable explanation as to why she did not correct information before the Tribunal at the first reasonable opportunity to include the fact that she was pregnant for the second time in the course of both their relationship, and since the applicant had first lodged her application for protection. This failure to provide correct the information before the Tribunal at the first reasonable opportunity reflects adversely on the credibility of the applicant.
The Tribunal accepts that the applicant is in a genuine relationship with her current partner. The Tribunal notes the concerns expressed by both the applicant and her partner, about the future wellbeing of their unborn child. In particular on a number of occasions and in similar terms, both the applicant and her partner have referred to concerns about the future relating to when they “renounce our believe to the public”. As discussed above, the Tribunal has found that the applicant’s claim to fear persecution for the essential and significant reason of discretely failing to observe Islamic precepts in Malaysia now or in the reasonably foreseeable future is not subjectively well-founded.
The Tribunal notes that, the applicant has provided evidence of having previously had disagreements within her family and her former religious teachers, and of preferring to make secular lifestyle choices. However, having regard to the applicant’s personal conduct in both Malaysia and Australia, the Tribunal notes that the applicant has provided no evidence that she has publically renounced the Islamic faith in favour of an atheist system of belief, either while in Malaysia or in Australia, or that she will do so now or in the reasonably foreseeable future.
The Tribunal accepts that the applicant does not wish to observe the precepts of the Islamic faith. While the applicant has provided evidence of an absence of religious beliefs, the Tribunal finds that she has articulated no coherent atheist belief-system beyond expressing a lack of belief in a deity and making personal secular and individualistic lifestyle choices. The Tribunal finds that such absence of belief does not equate to an affirmative atheist belief system.
The Tribunal accepts that the applicant has had disagreements with members of her family and certain religious teachers in the past about questions of religious belief, custom and practice. However, the Tribunal finds that there is nothing in either the applicant’s claims or evidence before the Tribunal to suggest that she has openly sought to challenge any religious belief system or advocate for a coherent atheist system of belief in either Malaysia or while in Australia. Neither has the applicant provided any evidence of having received any unwelcome attention from the religious authorities in Malaysia beyond routine correction during Islamic religious instruction. The Tribunal further finds that, despite the mechanisms that exist in Malaysia for individuals to change religion or declare their apostasy, the applicant has not taken any steps to pursue these options in Malaysia.
The Tribunal accepts that the applicant may have had private disagreements with her family about questions of religious belief, custom and practice, given her own secular lifestyle choices. The Tribunal further accepts that these disagreements may have been such that the applicant has become ostracized or pressured by her family. However, the Tribunal notes that the courts have found, in connection with the previous statutory provisions relating to protection, that such treatment could not be regarded as persecution within the meaning of the Refugee Convention as it is a purely private matter, and the general standards of civilized countries do not suggest that adults not under a disability have a right to protection when, for private reasons, their families reject them.[2]
[2]See MMM v MIMA (1998) 90 FCR at 327 referring to Brennan CJ in Applicant A v MIMA (1997) 190 CLR 225.
The Tribunal notes the vague and general nature of the applicant’s claims of harassment while in Malaysia for the essential and significant reason of her discretely failing to observe Islamic precepts in Malaysia. The Tribunal further notes that the agents of harm feared by the applicant as per her application for protection are also expressed abstractly and generally. For example, where she states that she fears “being mistreated and physically harmed by my family, relatives and the Islamic community for denouncing Islam”. The vague and general nature of the applicant’s claims about harassment in Malaysia in her application for protection contrasts with her evidence to the Tribunal that, for the period of time before she departed for Australia, she openly lived a secular lifestyle in Kuala Lumpur without experiencing any harm or harassment. The Tribunal also notes the fact that the applicant has never proselytized against the Muslim faith. In addition, the Tribunal accepts that the applicant has no on-going relationship with her family in Malaysia. Accordingly, the Tribunal places little weight on the applicant’s claims to fear persecution in Malaysia for the essential and significant reason of discretely failing to observe Islamic precepts in Malaysia.
Given the foregoing findings, the Tribunal, therefore, finds that the numerous articles provided to the Tribunal by the applicant on 17 July 2017 which refer to conversion, apostasy, atheism and the activities of persons who defy the Islamic Law are of little relevance to the applicant’s particular claims. The Tribunal also finds that the applicant has failed to demonstrate how the articles provided to the Tribunal relating to allegations of torture being officially sanctioned are relevant to her claims for protection.
The Tribunal also finds that the applicant has, as a factual matter, made inconsistent statements relating to his religious status in her application for protection. In particular, while the applicant’s claims refer to the applicant holding atheist views, in her response to Form 866C, Question 33 “Your religion (including denomination Eg. Shia Muslim) (if any)” she stated that she is “Muslim”. Having considered the applicant’s evidence on this point, the Tribunal finds that the applicant has provided a reasonable explanation of this apparent inconsistency, given the automatic nature with which such questions would be answered in Malaysia. However, the Tribunal does note that this inconsistency (which was first identified in the delegate’s record of decision) is, nevertheless, a demonstrable fact, and further indicates that the applicant has not taken any formal steps to renounce Islam in Malaysia. To this extent, the applicant’s evidence on this point is more suggestive of a preference for discrete secular lifestyle choices than it is of overt atheism on the part of the applicant.
The Tribunal also notes the fact that, while the applicant was given every opportunity to amend her claims for protection in the documents before the Tribunal on a number of occasions at the start of the first hearing before the Tribunal, the applicant did not seek to do so at the first reasonable opportunity. Rather, late in proceedings and only after being questioned by the Tribunal, the applicant disclosed that her father had passed away in December 2015; and, that she had faced the prospect of a traditionally arranged marriage with a Malaysian Malay man with whom she had worked closely for a number of years. The Tribunal has found that the applicant did not provide a reasonable explanation as to why this information was not provided in either her application for protection, or the Tribunal at the first reasonable opportunity without repeated questioning by the Tribunal.
Having regard to the Tribunal’s general findings about the credibility of the applicant’s claims already discussed, the Tribunal finds that the applicant’s failure to provide a reasonable explanation at the first reasonable opportunity as to why she did not correct the information before the Tribunal relating to the fact that she was pregnant for the second time in the course of her relationship with her partner and since the applicant had first lodged her application for protection, gives rise to separate unfavourable inference regarding the credibility of the applicant.
In light of the foregoing, the Tribunal finds that the applicant is not generally a witness of truth. The Tribunal, therefore, finds that it can place little weight on the applicant’s claims to genuinely hold a well-founded fear of persecution if she were to return to Malaysia.
The Tribunal has considered the s.438 Notice contained in the Department’s file relating to the application under review. As previously discussed with the applicant at the hearings, the Tribunal places no weight on this information. The applicant has not made submissions to the Tribunal about this Notice.
The Tribunal also accepts the Country Information, referred to below, indicating that:
Malaysians who overstayed their work or tourist visas or breached visa conditions in other countries are regularly returned to Malaysia with no attention paid to them by authorities. Likewise, failed asylum seekers would be unlikely to face adverse detention as the Malaysian government would not typically know the individual is a failed asylum seeker. Although it is possible that some individuals might be questioned on entry or have their entry delayed, particularly if their passport has expired while abroad.
The Tribunal has found that the applicant’s claim to fear persecution for the essential and significant reason of discretely failing to observe Islamic precepts in Malaysia now or in the reasonably foreseeable future is not subjectively well-founded. On the basis of that finding, together with the foregoing credible Country Information, the Tribunal finds that the applicant does not hold a well-founded fear of persecution for the essential and significant reason of being a member of the particular social group of returnees, now or in the reasonably foreseeable future.
The Tribunal also notes the DIBP publication Malaysia: Common Claims, 1 September 2016. In particular, pp1-9 relating to ‘State Protection’ and the ‘Rule of Law’. The Tribunal also has regard to that section of this document relating to ‘Religious Claims’ at pp38-46, which reflects much of the analysis contained in the delegate’s decision record. The Tribunal has carefully considered this Country Information and finds that it accurately reflects country circumstances relevant to the applicant's claims for protection.
The Tribunal is entitled to consider whether an applicant subjectively has a well-founded fear of persecution, as defined at ss.5H and 5J of the Act, before considering whether such a fear is objectively held, or to proceed on the assumption that such a fear is held. However, if the Tribunal finds on the evidence that the applicant does not have a subjectively well-founded fear of persecution, there will be no need to consider whether there is an objective basis for the claimed fear, or indeed whether other aspects of Australia’s refugee protection obligations are satisfied.[3] Conversely, if the decision maker finds that there is no objective basis for a fear of persecution, there is no obligation to consider whether there is a subjective fear.[4]
[3]See SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]; Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMIA (2003) 129 FCR 137 at [19].
[4]SAAD v MIMIA [2003] FCAFC 65 (Cooper, Carr and Finkelstein JJ, 11 April 2003) at [38]; Selliah v MIMIA [1999] FCA 615 at [40].
The Tribunal notes that the criterion in section 5J(1)(a) of the Act requires that an applicant must hold a real fear of being persecuted, and section 5J(1)(b) of the Act requires that the applicant’s fear of persecution has to meet an objective standard, that there should be a real chance the person would be persecuted if he were returned to Malaysia. A real chance is one that’s not remote or insubstantial or far-fetched. If a person fears persecution for one of the reasons in section 5J(1)(a), that reason has to be the essential and significant reason, and further, the persecution must involve serious harm and be systematic and discriminatory conduct.
On the basis of the foregoing findings, taken individually and then cumulatively, the Tribunal finds that the applicant does not hold a well-founded fear of persecution on for the essential and significant reason of the applicant’s religious views, or as part of the particular social group of returnees, for the purposes of s.5J(1) of the Act. Accordingly, the Tribunal finds that there is not a real chance that, if the applicant were returned to Malaysia that she would be persecuted for the essential and significant reason of either her religious views or her membership of the particular social group of returnees, now or in the reasonably foreseeable future.
The Tribunal therefore finds that considered cumulatively there is not a real chance of the applicant being persecuted now, or in the reasonably foreseeable future, as a result of either the applicant’s religious views or her membership of the particular social group of returnees, if she were returned to Malaysia.
Findings as to claims considered in this review
Refugee Criteria
The Tribunal has found that the applicant does not hold a well-founded fear of persecution if she were to return to Malaysia now, or in the reasonable foreseeable future, the Tribunal finds that the applicant is not a refugee as defined by subsection 5H(1) of the Act. For that reason, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations as outlined at paragraph 36(2)(a) of the Act.
Complimentary Protection Criteria
The Tribunal has also considered the applicant’s claims in the light of the complementary protection criteria at section 36(2)(aa) of the Act, which provides that a non-citizen may be eligible for protection in Australia where a decision-maker is satisfied that an applicant is a non-citizen in respect of whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to the receiving country, there is a real risk that the non-citizen will suffer significant harm.
As discussed above in this decision, the Tribunal finds that the applicant does not hold a well-founded fear of persecution if she were to return to Malaysia now, or in the reasonable foreseeable future. The Tribunal notes that s.36(2)(aa) of the Act refers to a real risk of the applicant suffering significant harm. The Tribunal notes that the real risk test imposes the same standard as that adopted in the real chance test for the purposes of assessing a well-founded fear. As indicated earlier in the Tribunal’s decision, the Tribunal is satisfied that the applicant does not hold a well-founded fear of persecution if she were to return to Malaysia now, or in the reasonable foreseeable future.
The Tribunal is satisfied that there is less than a real risk of significant harm if the applicant was removed from Australia to the receiving country, such that Australia’s non-refoulement obligations would be engaged.
The Tribunal has found above that the applicant does not hold a well-founded fear of persecution if she were to return to Malaysia now, or in the reasonable foreseeable future Accordingly, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations for the purposes of paragraph 36(2)(aa). Based on all of the above, the Tribunal is not satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed to Malaysia, that there is a real risk that she will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(aa) of the Act.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
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).
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).
The Tribunal affirms the decision not to grant the applicant a protection visa.
Dr Colin Huntly
Member
APPENDIX A – RELEVANT LAW
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
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.
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.
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).
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.
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.[5]
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
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’).
‘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.
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
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
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.[6] 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.
[6]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.
In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[7] 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.”[8] 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.
[7](1996) 40 ALD 445.
[8]At 482.
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[9] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[10]
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.
[10]At [25].
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.”[11] Nevertheless, as Burchett J counselled,[12] it is necessary to:
… 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.
[11][1997] FCA 1198 ( accessed 15 February 2017).
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.”[13] 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.[14] 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.[15] 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.[16] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[17]
[13]In Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 ( accessed 15 February 2017).
[14]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.
[15]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).
[17](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.
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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.
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5J Meaning of well-founded fear of persecution
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.
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.
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.
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.
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.
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
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.
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.
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36Protection visas – criteria provided for by this Act
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(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.
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- AGLC
- 1607676 (Refugee) [2017] AATA 1564
- Case
- [2017] AATA 1564
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the Tribunal had adequately considered the applicant's claims of persecution based on their atheism. This involved assessing whether the Tribunal had properly evaluated the credibility of the applicant's evidence, particularly in light of new information introduced at the hearing, and whether the applicant's claims were sufficiently particularised to warrant further consideration.
The Court found that the Tribunal had failed to properly assess the applicant's claims regarding their atheism and the potential for persecution in Malaysia. The Tribunal's assessment of the applicant's credibility was found to be flawed, particularly concerning the weight given to vague and general claims. The Court emphasised that even claims of persecution based on a lack of religious belief require careful and specific consideration.
The Court set aside the Tribunal's decision and remitted the matter to the Tribunal for redetermination in accordance with the Court's reasons.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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