1705519 (Refugee)

[2017] AATA 2077

1705519 (Refugee) [2017] AATA 2077 (14 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705519

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Angela Cranston

DATE:14 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 14 July 2017 at 9:29am

CATCHWORDS
Refugee – Protection visa – Malaysia – Fears ex-fiance's family after not going through with wedding – Inconsistent evidence – Credibility concerns

LEGISLATION
Migration Act 1958, s. 5J, 5h, 5K-LA,36,65, 424a
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] March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Malaysia applied for the visa [in] November 2016.

3. In his application, the applicant stated the following:

   The reason why I leave that country because I received too much mind torture and I cannot live like this. This is because of I cannot give claim to my girlfriend family. We supposed to get marry [in] April 2016. I should prepare at least [amount of money] Malaysia for the wedding. When the time come I told my girlfriend and their family that I cannot prepare and give that much money to them for the wedding. They already invite people for the wedding and do all the preparation. Their family want to sue me because the feel embarrassing for what has happened. My girlfriend brother told me that he will find me and do something bad for me but I’m not sure what he going to do to me. I just scared and I don’t want to take risk for what was my girlfriend brother had said to me.

   I scared my girlfriend brother will do something bad to me because before I came here he already told me he will find me and I must pay for what his family gone through.

   I try to move and stay with my family at my home town the my girlfriend know where is my family house and I scared my girlfriend brother will do something bad to me.

   I just scared and I don’t want to return to my country because I know my girlfriend brother will find me and he had a lot of connection because he had gang.

4. The delegate refused to grant the visa and the applicant applied for review.

5. The applicant appeared before the Tribunal on 27 June 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

6. The applicant stated he came to Australia [in] May 2016 on a [temporary visa]. Before that he lived in Johor Malaysia for [number] months and before that he was in [another country] for [a few] months. He then stated that when he was in Johor he kept moving and stayed where he worked because he was running away from the family of his ex-girlfriend’s, [Ms A] as they were forcing him to marry her in early 2016. He could not remember exactly when.

7. The applicant confirmed he applied for the protection visa [in] November 2016. He stated someone told him the English questions in Malay and he himself wrote his English answers. He stated his answers were correct and he did not want to change or add anything.

8. The applicant stated he came to Australia because he had run away from [Ms A]’s family. He stated he had met [Ms A] in early 2016 but was unable to state the month. He stated they had been going out for two or three months and then he found out she was pregnant with someone else’s child. He was unable to state the month he stopped going out with her. He stated her family thought he was responsible for the pregnancy. He also stated that when they asked him to marry her he told them he did not want to. The Tribunal put to him that it was difficult to understand why they would organise a wedding when he had told them he did not want to marry her. He stated they forced him and her brother bashed him in March 2016 and he decided to come to Australia. The Tribunal asked how long it took him between being bashed and coming to Australia and he stated two months and the reason why he waited was because he went into hiding throughout Malaysia including in [various places] but they still found him because of mutual friends.

9. The Tribunal put to the applicant that none of that was in his protection visa application and he had just told the Tribunal that his last address in Malaysia was Johor. He stated he thought the Tribunal meant his family address. The Tribunal put to him that he had just stated he kept moving but had stayed in Johor.

10. The Tribunal asked why it took the applicant so long to apply for a protection visa once he came to Australia and he stated he did not know how to apply. The Tribunal put to him that he came to Australia in May 2016, his [temporary] visa ceased in August 2016 and he had not applied for a protection visa until November 2016. The applicant stated he paid twice to fill out the forms and the first time he was cheated. He stated in the end he found someone he could trust.

11. The Tribunal put to the applicant that his protection visa application did not state his girlfriend was pregnant with someone else’s child. He stated his protection visa application had just mentioned about the money. The Tribunal also put to him that in his protection visa application he had stated that he was supposed to get married [in] April 2016 but he had not been able to state that at hearing. The applicant stated he was not the one who wanted to get married. The Tribunal also put to him that his statement had said he told [Ms A]’s family that he could not marry her because he did not have the money and that they had already organised the wedding and wanted to sue him because they felt embarrassed and that [Ms A]’s brother had told him that he would find him and do something. The Tribunal put to him that his statement did not state that [Ms A] was pregnant, or that he immediately told them he would not marry her or that [Ms A]’s brother had bashed him. The applicant stated he was not really good at writing and he had given [Ms A]’s family a false promise that he would marry her and after that they organised everything but he really wanted to run away. He also stated that the person who told him about the protection visa application had said that he was going to have an interview. The Tribunal put to him that he had told the Tribunal that he himself completed the application. He stated his English was not that good. He stated he was told to keep it simple and short. He also stated he did not lodge his protection visa application for some time because he was trying to first solve his problems in Malaysia which he thought would settle down.

12. Following the hearing, the Tribunal sent a letter to the applicant pursuant to section 424A stating that movement records indicated he arrived in Australia [in] May 2016 on a [temporary] visa that ceased [in] August 2016 but did not apply for a protection visa [until] November 2016 and that may lead the Tribunal to find he had delayed in applying for a protection visa which was not consistent with his alleged fear and that if the Tribunal found that, then subject to his comments, it would affirm the decision under review. The applicant responded as follows:

    Firstly as I said on the hearing that I am not very good in English, that’s why I search in Internet about the visa/legal staying in Australia. Then I found one person that do the visa service. So I ask the person to apply it for me but I didn’t realise that the person lied to me. The truth is he doesn’t apply it. After applying for the first time the person said it might take a few months to process I waited but no answer. So after that I search and find again the visa agent then I found one so that guy did apply the visa for me and honestly I tell everything about my situation in Malaysia to the guy. The same as I tell at the hearing I attended. But I didn’t realise that the guy only wrote the reason half and not the same as I tell him. I really am mad but he already apply it so it cannot be changed. Please reconsider it is. I need to extend and need time until settle the problem in Malaysia.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.  

5. 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

1. 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

1. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.

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

3. The applicant stated in his application he left Malaysia because he was supposed to get married to his girlfriend [Ms A] [in] April 2016 but because he could not give her family the amount of money they wanted, he was not going to marry her. He also stated that as a result, her family wanted to sue him and her brother wanted to do something bad for him, but at hearing, he stated that he was asked to marry [Ms A] because her family thought he was responsible for her pregnancy, that he immediately told them he did not want to marry her and that her brother bashed him up. When it was put to him at hearing that [Ms A]’s pregnancy and his already being bashed by her brother were not in his application, he stated he was not really good at writing and he just gave them a false promise that he would marry her however the Tribunal finds that if [Ms A] had been pregnant with someone else’s child and if her brother had bashed him then these details would have been recorded in his statement. Following the hearing, the applicant stated that he did not realise that the guy who wrote his visa application only wrote half the reasons he came to Australia, however this is at odds with what he stated at hearing which was that he himself wrote his answers in English, that they were correct and that all of his claims were in his statement.

4. The Tribunal also finds that at hearing the applicant was unable to state when he was allegedly expected to marry, even though the date was in his application. Again, the Tribunal does not accept that the applicant could have forgotten the date he was expected to marry if in fact he was recalling a wedding that was being planned. In reaching this conclusion, the Tribunal has also taken into account that the applicant initially stated at hearing that he was in Johor before he came to Australia but subsequently alleged that during that period he went into hiding throughout Malaysia including in [various places]. The Tribunal finds the applicant gave inconsistent testimony in relation to where he allegedly lived before he came to Australia. In addition, the Tribunal finds that the applicant arrived in Australia [in] May 2016 but did not apply for a protection visa [until] November 2016 which was after he became unlawful [in] August 2016. When this was put to him at hearing, the applicant stated that he delayed in applying because he had paid someone to complete the form but had been cheated by them and that in the end he found someone he could trust. He also stated that he was trying to solve his problem in Malaysia by staying in Australia until it was solved. While the Tribunal has considered this, it also finds that the omissions in his statement and the changing nature of the applicant’s evidence and the changing nature of his explanations are such that the Tribunal considers he is making his evidence up as he goes along. The Tribunal is of the view that the applicant has fabricated his claims in order to found a claim for protection. Because the Tribunal does not find the applicant credible, it does not accept that the applicant had a girlfriend nor that he was supposed to marry her, nor that he called off the wedding because he did not have enough money, nor that she was pregnant. The Tribunal does not accept that his girlfriend’s brother has gang connections, nor that he threatened to bash or bashed him, nor that the applicant went into hiding and then fled Malaysia as a result. Neither does the Tribunal accept that the applicant delayed in applying for his protection visa because he was cheated.

5. The Tribunal is therefore not satisfied that the applicant on return to Malaysia now, or in the foreseeable future, faces a real chance of serious harm for reasons of his race, religion, nationality, membership of a particular social group or his political opinion.

6. The Tribunal is not satisfied that the applicant on return to Malaysia now, or in the foreseeable future, faces a real chance of serious harm for a refugee reason.

7. 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).

8. 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 has rejected all of the applicant’s refugee claims. The Tribunal is not satisfied that the applicant has, in the past, or that there is a real risk that he would, in the future, be subjected to the arbitrary deprivation of life; the death penalty; torture; or cruel or inhuman treatment or punishment or degrading treatment or punishment, as set out in s.36(2A) of the Act.

9. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. 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

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

Angela Cranston
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.

…