1700189 (Refugee)

1700189 (Refugee) [2017] AATA 1960 (5 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700189
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Brendan Darcy
DATE:5 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 October 2017 at 04:40pm
CATCHWORDS
Protection visa – Malaysia – Particular social group – Homosexual men – Segregation from family – Forced marriage – Verbal abuse – Fear of torture – Marriage breakdown – Claimed political and religious views

LEGISLATION
Migration Act 1958, ss 5(1), 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 Schedule 2

CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
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] December 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 citizen of the Federation of Malaysia (Malaysia), applied for the visa [in] August 2016. The delegate refused to grant the visa on the basis that his claims were vague and unsubstantiated.
CRITERIA FOR A PROTECTION VISA
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 in the attachment to this decision.
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
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant claimed to be born on [date] in the capital city of Malaysia, Kuala Lumpur and to be a citizen of the Federation of Malaysia.
On departmental file ([number]) is a copy of the applicant’s valid Malaysian passport issued [in] 2016 and a copy of the applicant’s national identity card.[1]
[1] DIBP Folio 44-46
The applicant arrived in Australia while holding a [temporary] visa [in] May 2016 and applied for a class XA subclass 866 protection visa [in] August 2016 and was granted an associated bridging visa with work rights.
The applicant claimed to be of Malay ethnicity; that he is a Muslim and that he speaks, reads and writes in Bahasa Malaysian.
The applicant also claimed that his father was from [Country 1] and was [a Country 1] citizen. The applicant claimed that he travelled to [Country 1] in 2010 to visit relatives.
The applicant claims that he was married to [wife’s name] and there is no indication that the applicant is separated or divorced according to his submitted 866C application. The applicant claimed that he has [one child] born on [date].
In the applicant’s submitted 866C form, the applicant provided limited written claims outlining the reasons he is owed Australia’s protection obligations which are summarised as follows:
·     The applicant departed Malaysia because he was not given a perfect life and has been segregated from his family which causes him a very great deal of mental torture;
·     The applicant claimed that he is now isolated from his family members and was living on his own and if he returns to Malaysia he will be living with discrimination and without freedom as a homosexual individual and that he will not be able to make decisions to go on with his life;
·     The applicant claims that he was not given proper love, care and treatment from his family, community and that criticism from certain organisations have a low opinion of him and have forced him to live a low profiled life with a lack of confidence to move about and achieve something in life;
·     The applicant claimed that he was bullied by some people, even from his family members and relatives and they threatened him to stay apart and not to have a relationship with a boyfriend at all. The applicant claimed that he was forced to marry his wife and did not love her;
·     The applicant claimed he sought attention from friends and an organisation but no one will be able to help solve his problems; that he was harmed in the past by words that are mental torture and he will be looked down upon by others;
·     The applicant further claimed that homosexuals are not accepted by the religion, the culture and practices from his home country and he fears he will be tortured and have the same problems with discrimination.
No additional documents or statements were provided to the Department.
A delegate on behalf of the Minister refused to grant the protection visa to the applicant [in] December 2016 and that he was issued a notification letter with the decision record on the same day.
On 5 January 2016, the applicant applied to have the delegate’s refusal decision reviewed by the Tribunal. The decision record was attached to the review application.
On 18 August 2017, the applicant attended a scheduled hearing to provide additional evidence and present arguments to the Tribunal. The applicant was assisted by an interpreter in the Bahasa Malaysia and English languages. No witness provided any oral testimony to support the applicant’s claims for protection.
At the end of the hearing, the applicant indicated that he provide additional documents or statements to support his claims by 25 August 2017.
No further documents or submissions, either by the applicant or on his behalf, were forwarded to the Tribunal by 25 August 2017 or right up to the time of writing this decision.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of nationality
The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Department with his protection visa application, as well as a copy at the Tribunal. The Tribunal notes and accepts that the applicant’s father is claimed to be born in [Country 1] and holds [Country 1] citizenship. It further notes that the Malaysian law and authorities do not permit dual citizenship, so the likelihood that the applicant holds [Country 1] citizenship, is very remote. Based on this information and with no evidence to the contrary, the Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…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.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
The Tribunal has also considered the Department Guidelines regarding homosexual claims as found in PAM3 - REFUGEE AND HUMANITARIAN > PAM -17: Sexual orientation and gender identity.[2]
[2] PAM3 - REFUGEE AND HUMANITARIAN > PAM -17 Sexual orientation and gender identity
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not 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 (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
In this case, the Tribunal has considerable credibility concerns about his claim, both written and oral. The applicant’s written claims which include the specific claim that that applicant is a homosexual male who has experienced some discrimination and family and societal isolation due to his homosexuality and that he was forced into a heterosexual marriage. During the scheduled hearing, however, the applicant was given an opportunity to elaborate on his personal circumstances; however the Tribunal has only accepted a very limited amount of evidence to be credible and has found that the applicant’s overall critical or dispositive claims about his marriage and his sexual orientation not to be genuine or credible.
Applicant’s Accepted Circumstances
The applicant claimed that while his [Country 1] father had passed away when he was small. He claimed that his mother was Malaysian, living in Selangor, had been a widowed parent who did not remarry and brought up him and his [specified siblings]. The Tribunal accepts these aspects about the applicant’s background to be credible.
During the hearing, the applicant claimed that he is ethnically Malay; that he speaks, reads, and writes Malay and speaks only a little English; and that his highest level of education was a [qualification] in [subject]. He also claimed that he worked in [related occupation] which included [specific] duties and that his employment was often casual and insecure as he was unable to find permanent employment. The Tribunal accepts these specific claims to be true.
The applicant was asked to elaborate on his religious affiliation and practices. The applicant stated that he observes his religion by praying five times a day; that he follows the teachings of Islam and keeps away from temptation. The applicant claimed that he fasts during Ramadan and attends festivals such as Eid since he has arrived in Australia. He further claimed that in Malaysia he attend mosque every Friday and since arriving in Australia he usually attends mosque every Friday, but he was wary of some of the mosques in Australia as he did not want to mix with Shia Muslims as a Sunni Muslim. He said that when he worked in [an Australian town] for five months he would have to travel to [a nearby town] to attend Friday prayers in a mosque. The Tribunal accepts that the applicant is a practising Sunni Muslim, as claimed, and it finds that the applicant has an ongoing attachment to Islamic teachings and practices.
Credibility Concerns about the Applicant’s Marriage and Homosexuality Claims
With regards to the applicant’s specific claims about his fears as a putative homosexual male, the Tribunal notes that the applicant was asked to recall his written claims during the hearing and that the applicant claimed he remembers some of them claims but not all of them. The applicant went further claiming that he was very reluctant to mention the reasons except to say that he would face harassment and threats against his life. When he was asked who had made threatens against his life, the applicant claimed that friends who know him, that he did not know their full names and that he was not close to them. After much urging by the Tribunal to outline his written claims, the applicant stated that his claims were based on a same sex relationship which is not accepted in Malaysia; that he was a gay and that ‘he had gone towards men’ after his separation with his wife. The Tribunal understands that applicants with such personal claims for protection may be reluctant to share personal information; however, in this case, the applicant’s overall oral evidence remained lacking in critical detail, did not correspond with his written claims and was not mutually supportive which invited the Tribunal to consider that the applicant had embellished or even fabricated his critical claims for protection.
Of particular concern was the applicant’s claim during the hearing that the applicant’s written claim that he was he was forced in a marriage. Firstly, the applicant’s written claim regarding a force marriage indicates that the applicant was forced into that marriage due to his family’s concerns about his homosexually; however the applicant inconsistently claimed that he only became aware of homosexuality after his separation from his wife and that he only acted on his claimed same sex attraction after the breakdown on his marriage. During the hearing, the applicant did not claim that he was ever forced into a marriage by any family member or anyone else. Based on this specific discrepancy about a forced marriage between the applicant’s written and oral claims, the Tribunal does not accept that the applicant was ever in a forced marriage in the past as claimed in his written application for protection. Based on this finding, the applicant has invited the Tribunal to consider that other claims were inconsistent with his claims about his putative marriage breakdown and homosexuality.
The Tribunal has also considered the vague claims made during the hearing about the applicant exploring his sexuality following his claimed separation with his wife in 2016. The applicant claimed that his separation occurred in the few months prior to his departure when he became disappointed with his marriage life. In this regard, the applicant claimed that that his friends, [names] provided the applicant with emotional support during his separation and later that the emotional support developed into homosexual relationships. The applicant claimed that they hugged and held hands in public and even engaged in sexual relations. However the applicant was unable to remember his friends’ surnames and he was unable to provide evidence of any photographs or text messages or social media messages, despite having a smart phone and a [social media] account. The applicant also claimed that these same friends let his wife’s family become aware of their shared homosexual experiences which led to the applicant fleeing for Australia; however the applicant was unable to explain the reasons his friends, living in Malaysia where homosexual acts were illegal and homosexual men face considerable discrimination, would disclose his or their own homosexuality. Later in the hearing, the applicant claimed that he knew his friends when he had shared accommodation with them prior to his marriage. As discussed during the hearing, it would have been reasonable for the applicant to know the full names of long term friends who he claims he knew intimately and over a long duration. As noted during the hearing, there was no mention of these friends in the applicant’s written claims at the time of application and the applicant was unable to explain the reasons his alleged friends would inform his apparently estranged wife and her family. Overall the applicant’s specific claims about his long term friends were very evasive and limited in critical detail; these unsubstantiated claims omitted from his written claims. Based on these credibility concerns, the applicant has further invited the applicant to consider that the applicant’s critical or dispositive claims for protection were not genuine or reliable.
Another troubling aspect of the applicant’s testimony was the very late claim that his friends wanted to harm him. With regards to the lateness of this specific claim, the applicant claimed at first he overlooked this specific claim when filling out the 866C form and then later and inconsistently claimed he had recently learned about the threats emanating from his former friends. Furthermore the applicant was unable to provide any explanation to the reasons his former friends would want to harm or threaten him, including informing his wife and her family. This specific claim about forgetting at the time of application and then only recently being informed about his former friends wanting to harm the applicant just prior to the hearing is found by the Tribunal to be specifically contrived to augment the applicant’s very weak claims for protection.

With regards to the applicant’s marriage, the Tribunal also notes that the applicant claimed to remain in contact with his wife and provide her and his [child] with remittances. He also claimed that his wife now lives with her own family in Negri Sembilan. The Tribunal enquired into the reasons why his family have not completely ostracised the applicant altogether given the claimed sense of embarrassment arising from his known homosexuality; the applicant responded that he still loves his [child] and wishes to help and he further stated that he has not received any more threats since arriving in Australia. However, in the context of the Tribunal’s abovementioned credibility concerns and, given he is in regular contact, not yet divorced and is supporting his family back in Malaysia, the applicant has further invited the Tribunal to consider that his claims about his marriage and homosexuality are not credible.
The Tribunal has also considered its other credibility concerns were raised about the applicant’s claimed behaviour since arriving in Australia as not mutually supportive of his claims to be a homosexual man or that he was separated from his wife. In this regard, the applicant was unable to nominate any LGBTI themed movie or book or a favourite gay actor or anything similar related to artistic expression during the hearing. The applicant responded in stating there is a language barrier to access this. Furthermore, he was unable to name any gay friends he had befriended since being in Australia; indeed he claimed not have any sexual or romantic encounters, homosexual or otherwise, since being in this country. Although he knew some gay men in Australia, the applicant claimed he only knew those people with whom he worked, that he was only interested in working and he has kept his homosexuality secret since coming to Australia. The applicant claimed also that he had never visited any gay bars, clubs or other venues. When it was put to the applicant that the Tribunal found it curious that the applicant did not take advantages of the considerable freedoms while in Australia where homosexual acts are legal and homosexuality widely tolerated, the applicant responded that he did not know such liberties applied to him or how to go about making such friendship or even how to use the internet. These specific claims are far-fetched and implausible considering the applicant demonstrated to the Tribunal his [social media] page which had many personal contacts with members of both sexes and there was no evidence of any online activity linking the applicant to any gay themed organisations, events, venues or persons. In this regard the Tribunal notes that the applicant provided the written claims that he had sought the attention of friends and organisations in Malaysia. When cumulatively considering these credibility concerns and the lack of evidence to support the applicant’s claims, both oral and documentary, the Tribunal does not accept the applicant was unable to make any social or personal or even sexual relationships for the claimed reasons that he was solely interested in working or he did not know how to use the internet or did know he had opportunities to act on his same sex attraction. Later in the hearing, the applicant claimed that his same sex urge is not as strong in Australia as it had been in Malaysia. It is also not mutually supportive to have claimed that he was openly homosexual in Malaysia given his claims that he was afraid of societal discrimination and other harm in Malaysia and was not able to do so while in Australia, even after his application for protection visa had been lodged and that he claimed Australia was peaceful and treated people equally. Based on these additional credibility concerns, the applicant has further invited the Tribunal to consider that the applicant’s claims about his own marriage and homosexuality were not only weak and inconsistent but fabricated for migration purposes and not because the applicant had any genuine claims that Australia owed him protection.
The Tribunal has also considered the applicant’s claims to be both a practising Muslim since he has been in Australia, which the Tribunal accepts to be the case, and a homosexual. As raised during the hearing, the applicant was asked whether he could reconcile Islamic values against homosexual acts and his own claims to be a homosexual. The applicant responded that God wants him to refrain from such activities and that the urge is within him to act on same sex attraction since being in Australia. A more specific question was put to him about whether he supported same sex marriage; the applicant originally responded that such unions are not allowed from an Islamic point of view and that it was not normal. When he was asked for his own personal views on the matter, the applicant hesitantly claimed he supported same sex marriages. The Tribunal understands that holding social and religious views that cut across a person’s own desires and characteristics pertaining to sexual orientation is not unusual or implausible. However, in the context of the Tribunal’s other credibility concerns and its adverse findings outlined above, there is a strong thread of hesitant and vague oral evidence that the applicant is a practising Muslim who was not a homosexual with any corresponding experiences as claimed, but, also a Muslim without any genuinely curious, vexed or personal interest in same sex attraction.
The Tribunal also places some credibility concerns on the applicant in not providing any post hearing submissions, including photographic evidence or statements from friends, either here in Australia or back in his country of reference. During the hearing, the applicant stated that he was unsure if could provide any supportive evidence as he lost touch with friends in Malaysia and they were not connected to his social media accounts. Neither did the applicant provide any explanation about his difficulties in submitting any post hearing submission to the Tribunal. In the context of the Tribunal’s abovementioned credibility concerns and findings, the applicant’s non-responsiveness has further invited the Tribunal to consider that the applicant’s critical claims about his personal circumstances not to be genuine, credible or reliable.
Cumulative Credibility Findings
Having considered the evidence, both individually and cumulatively, the Tribunal does not accept the applicant has any credible or reliable evidence to support the applicant is a homosexual male with a real chance for being targeted for serious or significant harm if he were to return to Malaysia, now or in the foreseeable future. The Tribunal finds the applicant’s vague written claims were undermined by the applicant’s hesitant, evasive and inconsistent oral claims at the scheduled hearing. Neither did the applicant provide any third party statements or documentary evidence to support his claims.
Ordinarily, the Tribunal would provide applicants with such sensitive and personal claims about marriages and sexual orientation the benefit of the doubt to be credible. However, in this instance, the Tribunal’s credibility concerns and findings are so extensively adverse that it does not accept the applicant provided any genuine, mutually supportive or credible dispositive claims.
Accordingly, the Tribunal finds that the applicant provided considerably contrived and fabricated critical claims about his personal circumstances for migration purposes and not because he had any genuine claims that he is owed protection by Australia. Based on this adverse credibility finding, cumulatively considered, the Tribunal makes the following findings:
The Tribunal does not accept that the applicant is an actual homosexual male; that he had formed any homosexual relationships in the past; or that he had any homosexual encounters either in Malaysia or Australia. It does not accept the applicant was ever threatened or harmed by his wife, members of his wife’s family or even (based on his own admission) any of his own family in the past. Because the applicant’s claims about homosexual relationships with long term friends is found to be contrived for migration purposes, the Tribunal does not accept he was ever threatened or harmed by any persons back in Malaysia for the reasons claimed. Neither does the Tribunal accept that the applicant supports any homosexual causes, including same sex marriage, or organisations either back in Malaysia or here in Australia, as claimed.
Indeed, so extensive are the Tribunal’s credibility concerns and findings, it does not accept that the applicant is or has been separated, divorced or even estranged from his wife, as claimed. Neither does it accept the applicant’s written claims to have been forced into marriage or to remain in a marriage he wished to leave for those claimed or any other reasons.
Having considered the evidence individually and cumulatively, the Tribunal does not accept the applicant has any credible or reliable evidence to support the assessment that the applicant is an actual homosexual male or that his claimed political or religious views regarding homosexuality were genuinely personally-held views or that the applicant was actually a separated or divorced husband for the reasons claimed, with a real chance for being targeted for serious harm for any reason outlined in s.5J(1)(a) or a real risk of significant harm if he were to return to Malaysia, now or in the foreseeable future.
Imputed Homosexuality or Effeminacy
For completeness, the Tribunal has also considered if the applicant has a claim based on the facts, in so far as the applicant faces a real chance of serious harm as an imputed homosexual or his socialising with gay or effete men for reasons of religion, membership of a particular social group or any other reason mentioned in s.5J(1) or there are substantial grounds for it to believe the applicant has a real risk of significant harm, a necessary and foreseeable consequence of being removed from Australia to his home country arising from the same reasons.
Based on the country information above, the Tribunal has carefully considered this aspect of the facts before it that there may be a chance or a risk of harm for being a person to be imputed with being homosexual if he were to return to Malaysia. In this regard, the Tribunal finds that the applicant’s masculine demeanour and stature could not be reasonably construed as effete. Furthermore, the Tribunal had the opportunity to examine his [social media] page and there was no indication on that platform that he is at all interested in homosexuality or supports homosexual causes or organisations. The Tribunal notes that the applicant claimed that his own biological family is not aware of claims and that he does not have any known views supportive of homosexual causes or organisations. These accepted circumstances strongly indicate that that no family members, including his wife and her family, back in Malaysia is aware the applicant’s fabricated claims to be separated from his wife or that he is a homosexual or that he supports homosexual issues. It further indicates that the applicant is likely to return to Malaysia to live in a heterosexual marriage publicly sanctioned by his religion, family and community. The Tribunal also already made a firm finding above the applicant not to have any credible claims he is a genuine or actual homosexual. For the reasons, cumulatively considered, if the applicant were to return to Malaysia, the Tribunal does not consider the applicant will face a real chance of serious harm based or a real risk of significant harm of any kind as someone who will be imputed with homosexuality or effeminacy or for any related reason by his family and the wider community in Malaysia.
It is the Tribunal’s assessment that the applicant lacks overall credibility as a witness and this is a matter of central importance in the Tribunal's determination of this application for protection. It is this context that the Tribunal has also made a number of adverse credibility findings about the applicant’s claims of past harm, his personal circumstances and the real chance of serious harm, for any claimed or related reasons outlined in s.5J(1)(a), imputed or otherwise, now and into the reasonably foreseeable future that would satisfy s.36(2)(a).
Based on the same overall adverse credibility finding and those findings about homosexuality, his marriage and related claims, the Tribunal does not accept that has any substantial reasons for it to believe that the applicant, as a necessary and foreseeable consequences of being removed from Australia to his country of reference, will face a real risk of significant harm of any kind, pursuant to .36(2)(aa).
There are no other residual claims to be considered in this decision.
Does the applicant have a well-founded fear of persecution if he returned to Malaysia?
Having considered the applicant’s claims both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance that, if returned to Malaysia, that the applicant would be persecuted for one or more of the reasons mentioned in paragraph 5J(1)(a). The Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons.
Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Does the applicant have substantial grounds that there is a real risk he will significant harm if returned to another country?
Having considered the applicant's claims individually and cumulatively, for the reasons given above, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Federation of Malaysia there is a real risk the applicant will suffer significant harm, by way of being arbitrary deprived of his life; that the death penalty being carried out on him; that he will subjected to torture; be subjected to cruel or inhuman treatment or punishment, or be subjected to degrading treatment or punishment.
Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).
Conclusion
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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
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.
…

[2017] AATA 1960

5 October 2017

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Immigration

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Statutory Interpretation

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