1621127 (Refugee)

[2017] AATA 1262

1621127 (Refugee) [2017] AATA 1262 (24 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621127

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Roslyn Smidt

DATE:24 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 24 July 2017 at 11:46am

CATCHWORDS

Refugee – Protection visa – Malaysia – Social group – Homosexual – Credibility issues – Inconsistent evidence

LEGISLATION
Migration Act 1958, ss 5H(1), 5J, 5K-LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

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] November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of Malaysia, applied for the visa [in] August 2016.

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

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

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

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

9. The applicant is a [age] year old single man of Malay ethnicity and Muslim religion. His parents and [siblings] remain in Malaysia. He completed a [course] in Malaysia in December 2014. He worked as a [occupation] at [a workplace] in Kuala Lumpur from January 2012 until April 2016. He arrived in Australia on a [temporary] visa [in] June 2016 and applied for protection [in] August 2016.

   Summary of claims and conclusions

10. The applicant claims that he is homosexual and that he will face serious or significant harm such as mental and emotional disorder, stress, discrimination and the inability to express himself freely if he returns to his homeland. He fears harm from other Muslims, not for the government of Malaysia.

    Protection visa application

11. In his protection visa application the applicant claimed that he was gay and that homosexuality was condemned in Malaysia which is an Islamic country. He said that he had been treated as an outcast by his family who would not accept his sexual orientation. He claimed that he would face discrimination, depression and stress if he returned to Malaysia as he would be denied the freedom to express his true self.

12. The applicant was not invited to an interview. In her decision the delegate noted while not explicitly outlawed, gay relationships could be prosecuted under a laws banning “carnal intercourse against the order of nature” and acts of gross indecency, but also noted that these laws were rarely enforced.  She also noted advice from DFAT which states that the government openly criticises gays and human rights reports which report on discrimination and harassment of homosexuals by society and the Malaysian government, but found that even when considered cumulatively the level of harm did not amount to persecution.

    Hearing held on 13 July 2017

13. The hearing was conducted with the assistance of a Malay interpreter. However, the applicant chose to give most of his evidence in English.

14. The applicant said that he had not come to Australia to claim protection in order to visit a [relative] and travel around the country. However, when he learned that he could apply for protection because of his sexuality decided to apply.

15. The applicant confirmed that he had lived with his parents at the same address in Selangor until his departure for Australia. Later in the hearing he said that after he started work he sometimes stayed with a straight friend near his workplace during the week.

16. The applicant said that he had been aware of his sexual orientation since he was a child. He said that [one sibling] was the only person in Malaysia who was aware of his sexuality. He had many girlfriends while at high school in order to avoid problems but no relationships with men until he was [age].  When asked if they were serious relationships, he said that they were casual relationships with men he met online using the [Website 1] app.

17. I asked the applicant how many men he had met online. He said he had met two men. When asked to confirm he had only met two men online he said that he had only had two serious relationships. I noted that he had previously said that he had not had any serious relationships. He said that these relationships were casual but more serious than the others. The first relationship lasted for about a month during which he and the man met daily at the man’s home and had sex. The relationship ended because the applicant became bored. About a month later he met at [age] year old man at a straight club. The relationship lasted about 3 months. They met at [a location] about 3 times during this period. They never had sex.

18. I asked the applicant if he had had any relationships of any kind with any other men in Malaysia. He said that he had not.

19. I asked the applicant if he had had any boyfriends in Australia. He said that he had a boyfriend called [Mr A] who he had met about [a few] months earlier on [Website 1]. When asked he said that he had not had any relationships of any kind with any other men in Australia.  He said that [Mr A] was [occupation], aged about [age] and lived at home with his parents. He said that they saw each other most days and he attended an English class which [Mr A] gave once or twice a week. However, they do not have sex. Later in the hearing he added that the lack of sex was one of the best things about his relationship because most gays were only interested in sex not in serious relationships. He said that his gay friends in Australia were jealous of him because he and his boyfriend did not have sex.

20. The applicant said that he had first gone on [Website 1] in Australia in about January 2017 after moving to a house in [Suburb 1] which he shared with [other] gay men. When asked why he had waited 6 months to go on [Website 1] in Australia he said that prior to he had been living with other Malaysians. When asked how he had met the gay men with whom he now shares a house that he said that he had met them on [Website 1]. I noted that this was at odds with the statement that he had only begun to use [Website 1] after moving in the gay men in [Suburb 1]. He said that when he decided to move he went on [a website] and [Website 1] to look of accommodation.

21. I asked the applicant to confirm that he had not had any intimate relationships with gay men in Australia. He said that this was not correct. I noted that he had told me that he had not had sex with [Mr A] and that when asked if he had had any other relationships of any kind with men in Australia he said that he had not. The applicant said that after moving to [Suburb 1] he had sex with men every weekend until he met [Mr A]. He said that one of the men was named [name] and they had met for sex every weekend for a month, but he only met the other men once I twice. I advised him that I had great difficulty understanding why he failed to mention these encounters when asked about his relationships with men earlier in the hearing, particularly as he now claimed he had seen [name] for a month. He said that he had not understood the question.

22. When asked if he had had any other involvement in the gay community in Australia he said that for the last [number] months had had gone to gay clubs [most] weekends.  He said that he had not gone before that time because he had nobody to go with.

23. I asked the applicant if he had had any problems with anyone in Malaysia because of his sexuality in Malaysia. He said that he had problems with all of his school friends who had found out he was gay. He did not know how they knew he was gay, but at college someone told them people were gossiping about him. I noted that he had previously told me that only his [sibling] knew he was gay and observed that it was strange that he had not told me that all of his friends believed he was gay and they were gossiping about him. He said that his [sibling] knew he was gay, but his friends were not 100% sure.

24. When asked, the applicant said that he had not had problems with anyone else in Malaysia because of his sexuality. He also confirmed that he had completed his own application for protection. I noted that he had claimed in that application that his family had rejected him and treated him badly because of his sexuality. He said that he had been helped by a friend when he prepared the application and added that he did not understand the meaning of the word outcast. He said that he thought that the question referred to the future. I observed that he appeared to speak English reasonably well and advised him that I had difficulty accepting his explanation.  The applicant said that a friend who was studying [in] Malaysia and spoke English very well had helped him with the application. He said that he had told her that he was not gay but he planned to claim protection by saying he was gay and she gave him some advice over the telephone.  

25. I advised the applicant that I had a number of concerns about his credibility. I noted that he appeared to have given differing accounts of the problems he faced in Malaysia and had given a confused account of his experiences in Australia. He maintained that his claims were true.

26. I asked the applicant what he feared would happen to him if he returned to Malaysia. He said that he would have to pretend to be straight and he would have to get married. He added that he was a Muslim and the Muslim community would not accept this sexuality. He said gays did not have any problems with government in Malaysia, but the community was very strong. When asked he confirmed that he did not fear the government or the police or anyone else in authority in Malaysia. I advised him that I was surprised that he understood that the Malaysian government was accepting to homosexuals as this was not my understanding.  He said that he knew this to be the case because he had investigated the situation of gays in Malaysia online after arriving in Australia. He said that there were gay clubs in Malaysia, but he had never been to one. I observed that investigating the attitude of the government after arriving in Australia appeared to be suggestive of someone who wished to concoct a claim regarding homosexuality rather that someone who was genuinely gay and had had gay relationships in Malaysia. He said that it was just a random thing and repeated that gays faced problems with the community in Malaysia, but not with the government.

27. I noted that despite claiming that he had a boyfriend and gay friends in Australia he had not called then as witnesses or provided any supporting evidence to confirm his claims. He said that his housemates could not come because one of them was in [country] and the others were at work and added that in any event he had not told them that he had applied for protection. He said that his boyfriend was aware of his application but he was working. I noted that the applicant had completed the hearing response form which asked if he wanted to bring any witnesses. He confirmed that he had read and understood the form, but said he had decided not to bring a witness. He offered to provide his boyfriends telephone number. I advised the applicant that I would give him a week to provide any additional information.

    Post hearing submission

28. On 19 July 2017 the Tribunal received a letter of support from [Mr A] which states that he and the applicant made contact on [Website 1] less than [number] months ago. It states that he tutors the applicant in English once a week [and] that after the class they go for a drive. In addition they text each other daily and have declared their love for each other.

29. Findings of fact

30. For the following reasons I did not find the applicant to be a truthful or a credible witness.

31. The evidence he gave at the hearing was unconvincing. He appeared to have difficulty recalling events in the recent past and much of his evidence was vague and confused.  While I would not have rejected his claims for this reason alone, it is not the only problem with his evidence. There are some significant inconsistences in the evidence he gave at the hearing.

32. The applicant initially stated that only his [sibling] was aware that he was gay, but later stated that many of his school and college friends were aware of his sexuality. When I noted this discrepancy he said that they had only suspected he was gay. If large numbers of the applicant’s school friends had suspected he was gay and gossiped about it I believe he would have mentioned this when first asked who was aware of his sexual orientation.

33. When asked about his relationships in Malaysia the applicant indicated that he had had casual relationships with a number of men, but no serious relationships; he then stated that he had only had two relationships with men and described these relationship as more serious than his other relationships and finally stated that he had not had any relationships with any other men in Malaysia.

34. When asked about his relationships with men in Australia he first said that he had been in a non-intimate relationship with a man called [Mr A] for about [number] months and said that he had not had any relationships with any other men while in Australia. However, he later said that he had sex with men he met on [Website 1] most weekends prior to meeting [Mr A].

35. The applicant also stated that he had not gone on [Website 1] until he moved to share a house with gay men earlier this year. But also claimed that he had found the house on [Website 1].

36. When asked to explain these discrepancies the applicant suggested that he had misunderstood my questions or I had misunderstood his responses. I do not accept this explanation. The questions were straightforward and dealt with events in the recent past. I believe that the applicant’s evidence was confused and contradictory because his claims were concocted.

37. Finally, while I acknowledge that there are gay clubs in Malaysia and that gay men in Malaysia may not be routinely prosecuted or seriously harassed by the government, as pointed out at the hearing, there are provisions in Malaysia law was have been used against homosexuals and the Malaysian government is not tolerant of homosexuality. If the applicant was genuinely gay and had had relationships with gay in Malaysia I believe that he would have been aware of this.

38. After considering all of the relevant evidence I am not satisfied that the applicant is homosexual. I find that he concocted this claim in order to obtain protection in Australia.

39. In reaching this conclusion I have noted the letter from [Mr A] provided following the hearing. However, it was written by a friend of the applicant and seeks to confirm claims which I have found to be lacking in credibility. I have given it no weight as evidence of the truth of the applicant's claims.

    Does the applicant meet the refugee or complementary protection criteria?

40. There is no credible evidence before me which suggest that there is a real chance that the applicant will suffer serious or significant harm for any reason if he returns to Malaysia within the reasonably foreseeable future. I am therefore not satisfied that he has a well-founded fear of persecution for any of the reasons contained s.5J(1) of the Migration Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.

    CONCLUSION

41. 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).

42. 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).

43. 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

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

    Roslyn Smidt
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

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

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

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

    but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …

    5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)   significant physical harassment of the person;

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

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

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

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

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

    5K  Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L  Membership of a particular social group other than family

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

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

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

    (c)   any of the following apply:

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

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

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

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

    5LA  Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)   the person can access the protection; and

    (b)   the protection is durable; and

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

    ..

    36Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

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

    …