1706503 (Refugee)

1706503 (Refugee) [2018] AATA 5891 (20 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706503
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:K. Chapman
DATE:20 August 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 20 August 2018 at 8:54pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – women escaping domestic violence – fear of husband and his family and friends – adequate state protection – internal relocation – large urban centres – credibility issues – significant inconsistencies between written claims and oral evidence – delay in applying for protection – stated desire to remain in Australia only temporarily – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 on 22 March 2017 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 Malaysia, applied for the visa on 18 October 2016. Her initial written claims concern her purportedly fearing harm in Malaysia on account of suffering domestic violence by her husband. The delegate refused to grant the visa on the basis of not accepting the veracity of these claims for protection.
On 29 March 2017, the applicant applied for review of the protection visa refusal decision. She provided a copy of that decision with her application for review. On 19 April 2018, the Tribunal wrote to the applicant pursuant to subsection 424(2) of the Act inviting her to provide further information in support of her claims that she requires a protection visa. The applicant responded by sending an email and an untranslated document in the Malay language. The applicant’s response has been duly considered by the Tribunal.
The applicant appeared before the Tribunal on 7 August 2018 to give evidence and present arguments. The review hearing was conducted using the assistance of an interpreter in the Tamil and English languages. The applicant confirmed that she understood the interpreter, she was feeling well enough to give evidence and there were no other witnesses to be called.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 themselves 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
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Malaysia. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Issues
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 her being removed from Australia to her receiving country of Malaysia, there is a real risk she will suffer significant harm.
Documentary evidence before the Tribunal
The Tribunal has its own file, and the Department file, relating to the applicant before it. These files contain information including, but not limited to, the following:
a.the applicant’s protection visa application forms lodged on 18 October 2016 (including extracts from her passport, and a copy of her Malaysian Identity Card);
b.the Departmental delegate’s visa refusal decision dated 22 March 2017 (a copy of which was provided to the Tribunal by the applicant);
c.the application for review submitted on 29 March 2017;
d.the applicant’s correspondence responding to the s.424(2) invitation of 19 April 2018; and
e.Departmental movement and administrative records.
Claims for protection
The applicant’s initial written claims for protection may be summarised as follows:
a.she is a ‘sterile’ female (unable to have children) who suffered revenge from her husband, his family and his friends due to this circumstance;
b.her husband had several extra-marital affairs with other women, he tortured her (mostly) psychologically as did his family and friends;
c.she cannot return to Malaysia because her relatives are there;
d.she cannot seek State protection in Malaysia, noting she attempted to obtain a divorce in the Sharia Courts but one was not granted; and
e.she cannot relocate within Malaysia because her husband, his family and friends can locate her.
Evidence at the review hearing
The applicant’s oral evidence may be summarised as follows. She advised the Tribunal that her protection visa application was important to her. The applicant indicated her limited English language ability precluded her from completing the application form. She explained that a man named ‘[Mr A]’ filled in the form for her. [Mr A] has now returned to Malaysia. The applicant met him when she first arrived in Australia. The applicant advised that she told [Mr A] her claims for protection and he wrote them for her. [Mr A] told the applicant that he wrote down what she had said. The applicant indicated [Mr A] did not read back her claims to her. When asked by the Tribunal if all of her claims for protection are contained in her protection visa application, the applicant sought to disavow knowledge indicating she hoped that they were but [Mr A] did not read them back to her. The Tribunal raised with the applicant that she had advised her protection visa application was important to her, and it might have difficulty accepting that she didn’t check or understand the contents of her protection visa application, inviting her comment. The applicant replied, “At that time I had nobody to help me.” The applicant confirmed that she signed her application for protection. The Tribunal observed the applicant to provide her oral evidence regarding completion of the protection visa application in a vague and evasive fashion. The Tribunal notes that the applicant sought on the one hand to indicate she had help from [Mr A], then on the other submitted she had nobody to help her at that time.
The applicant advised that she lived in Ipoh, Malaysia from the ages of [age] years until [age] years. The applicant initially advised she lived in one address during those years, then changed tack with her evidence to indicate she lived in several houses during that time. When asked by the Tribunal why she provided a single street address for the years 2013 to 2016 in her application for protection, the applicant responded that this was her mother’s address. She wrote this down because she was advised to do so. When asked by the Tribunal to outline her residential address history in Malaysia, the applicant provided a vague account of having lived at ‘[Street 1]’ with her husband after marriage and she could not recall her prior address. When asked by the Tribunal why she earlier gave evidence that she lived in the one residence between the ages of [age] and [age] years, the applicant responded this was one of her addresses. The applicant indicated that prior to coming to Australia she lived with her mother and brother for around one month following trouble that saw her leave her husband. She then left for Australia.
When asked by the Tribunal when she married her husband, the applicant could not recall the year. She added that she was [age] years when she married so it would have been around 2010. The applicant confirmed she could not remember the year clearly, only her age. The applicant advised she had an arranged marriage through her family. She married her husband but didn’t know about him. Following marriage his behaviour changed towards her and they quarrelled. The applicant stated that she once checked his mobile phone and saw pictures of two men in homosexual poses.
The applicant completed [specified level of] schooling in Malaysia. She worked in [Occupation 1] at [Company 1], located on an [island]. The applicant maintains daily contact with her mother and brother. They have a good relationship. The applicant’s sisters are married and live away. The applicant does not talk to her sisters because it might get them in trouble as her husband has threatened them not to report him to the authorities. The applicant cannot remember when she last spoke to her husband. They have not spoken since she has been in Australia (since [August 2016]). The applicant stated she left her husband 4-5 years prior to her coming to Australia.
The applicant has travelled to both [Country 1] and Australia. She confirmed she arrived in Australia [in] August 2016 as reflected in the Departmental delegate’s decision. The applicant departed Malaysia legally through the airport using her own passport. She indicated she came to Australia to protect herself and her mother. She advised her mother was protecting her, the husband threatened her mother and she became sick. When asked by the Tribunal how long she wants to stay in Australia, the applicant explained that she didn’t plan to stay too long, until her problems were resolved. She added her problems are not resolved. The applicant currently works in a [workplace] in [Town 1]. She resides in [location]. She previously lived at [Town 2] and moved from there in February 2018. The applicant uses the English language at work, she understands English but sometimes has problems if people speak quickly.
When asked by the Tribunal to outline the contents of the untranslated document she submitted prior to the review hearing, the applicant explained that it is proof of her divorce. She added she attended counselling sessions to obtain the divorce and she was sent the proof of divorce. The applicant then changed tack with her evidence indicating the document was the application for her divorce but it was not approved. She applied for the divorce when around [age] years of age and she is now [age] years of age. The applicant then explained that she applied for divorce but then she withdrew the application. She told the Tribunal that her husband didn’t attend Court and her version of events was not accepted. Notwithstanding the inconsistency in her evidence regarding the document, the Tribunal is prepared to accept that it constitutes her application for divorce and that such application was unsuccessful.
When asked by the Tribunal what she fears if she returns to Malaysia, the applicant indicated she is afraid of her husband. She is in fear of him, his family and his friends. She confirmed his friends have threatened her. The applicant confirmed to the Tribunal that her husband is a homosexual. She confirmed to the Tribunal that he has had other relationships with men only and not with other women. When asked by the Tribunal to provide further detail of her husband’s other relationships, the applicant described that he went to work once and left his mobile phone. The applicant accessed the phone and saw explicit videos with homosexual content, with her husband depicted in the videos. When she later asked him about the videos he “beat her up”. He threatened that if she told his family he would kill her mother. He apparently only married the applicant due to the wishes of his family. When asked by the Tribunal if her discovery of his homosexual behaviour was the only reason he turned against her and harmed her, the applicant replied “yes”. When asked by the Tribunal how her health is, the applicant responded “it is well”.
The applicant outlined that she was married for around 7 years and lived together with her husband for around 1 year. She found the videos about 3 months after marriage. Her husband then harmed her. She left him and went to lodge a police report but he threatened her. After leaving him she went to live with her mother and brother in Ipoh, for about 3 months. She then lived on an island performing [specified] work. She then went to another town for around 1 year, then lived with a friend for 2 weeks, then decided to travel to Australia. She resided with her mother for about 1 month before coming to Australia.
When asked by the Tribunal why she waited over 2 months from arrival in Australia to applying for a protection visa, the applicant indicated she was new and had nobody to help her. She then looked for work, met a Malaysian man in a shop in [Town 2], and they talked. The Tribunal raised with the applicant that her delay in claiming protection might suggest her claims are not genuine, inviting her comment. She indicated she had nobody to help her until she met this man. When asked how she came to be in [Town 2], the applicant explained that she didn’t know where to go when she arrived at the airport. She took a taxi to the bus station then took a bus but did not know where it was going. She then found that Malaysians were working in [Town 2]. The applicant confirmed to the Tribunal that she randomly ended up in [Town 2] then met the man who helped her with the protection claim. When asked if she had anything further to add about her claims for protection, the applicant advised she doesn’t know whether her visa will be extended. She wants at least 1 year to make a decision then she doesn’t mind going back to Malaysia. The applicant added she doesn’t know anyone in Australia and is unhappy in this country. She confirmed she wants to return to Malaysia. The applicant then changed tack with her evidence indicating she needs to resolve her problems first. She stated her mother had a heart attack, there is nobody to help or protect her and that she wants to stay in Australia for a while.
When asked by the Tribunal if she made truthful claims in relation to her application for protection, the applicant responded that all claims are truthful but she doesn’t have documents to support them. She confirmed her claims in the protection visa application are truthful. She is certain of this. When asked if she checked with the person helping her that her written claims were correctly completed, the applicant responded that she did not because she could not read English and only learned it after working in Australia. The Tribunal raised with the applicant that given her earlier evidence the claim for protection is important to her, it might have difficulty accepting she didn’t check with the person helping her that her claims were accurately recorded. She replied that she didn’t read English. The Tribunal raised with the applicant that earlier she advised she didn’t check back with the person assisting her for him to read her claims back to her. The applicant advised that she asked the man to read them back but he said, “don’t worry I wrote what you said.” When asked by the Tribunal if she told this man what she said in oral evidence regarding her reasons for needing protection in Malaysia, the applicant responded “yes.”
When asked by the Tribunal if she fears anyone else other than her husband, the applicant indicated she fears her friends who have followed her and harassed her. They have not physically harmed her but her husband has beaten her. She last saw her friends in April 2016. She apparently last saw her husband in 2016 also. He threatened her at this time. She also last had contact with his friends at this time. When asked to describe when her husband last hurt her, the applicant explained that it was in 2016 when he came with his friends, chased her on a motorcycle, she was knocked down and broke her leg.
The Tribunal raised with the applicant that given she has not had contact with her husband, or anyone who harmed her, since 2016 this might tend to suggest there is not a real chance she will face harm if she returns to Malaysia, inviting her comment. She replied that she did not accept this because her mother advises her that persons regularly pass by and observe her residence checking for the presence of the applicant. The applicant indicated that she fears to return because of this. She then added she doesn’t fear for her own life, rather she fears for her mother because she is old and unwell. When asked if her mother had ever been attacked since the applicant came to Australia, she replied that once her husband rode a motorcycle close to her mother forcing her to fall and causing minor injuries. She added that her husband makes threatening calls and also threatens her outside of her residence.

When asked by the Tribunal if she can seek assistance from the police or other authorities in Malaysia if she returns, the applicant advised that she can but in reality they won’t assist her. She indicated that the police are corrupt and many times in traffic offences they take money. She doesn’t trust them. The applicant advised that she wanted to seek help from the police in Malaysia but when attempting to do so was discouraged by the threats of her husband. When asked if she could move to another part of Malaysia to avoid those she says have caused or might cause her harm, the applicant replied that she already tried this by working on the island for 2 years and moving between other residences. However, her husband always followed her. The applicant stated she moved to Australia because it was not safe for her.
The Tribunal raised country information from the Department of Foreign Affairs and Trade (DFAT) with the applicant indicating that generally the Royal Malaysian Police are a professional and effective police force, noting that some deficiencies still remain. Further, the Malaysian Government has implemented reforms to increase accountability and reduce corruption in the Police. Additionally, Malaysia has a functioning judiciary and ‘most cases in Malaysian civil courts comply with the rule of law and legal procedure’. There is also a system of Sharia Courts at State level. There are some deficiencies in these Courts regarding domestic violence victims and for women in child custody cases.[1]
[1] Paragraphs 5.5 to 5.14 DFAT Country Report Malaysia of 19 April 2018.
The DFAT country information also indicates that domestic violence against women occurs in Malaysia. Whilst there can be ambiguity between federal civil law and state sharia based law affecting the level of State Protection for victims, Malaysian law prohibits domestic violence. Whilst there are some deficiencies in Police and Judicial training on domestic violence, the Malaysian Government has taken significant steps to reduce domestic violence. Domestic violence conviction rates have increased over the past decade. The RMP Criminal Investigation Division includes a Sexual Investigation Division. Amendments to the Domestic Violence Act (1994), passed in August 2017, strengthens protections for victims of domestic violence through enhanced procedures including Emergency Protection Orders that can be applied immediately for up to a week and prevent a perpetrator from entering a safe location. The Act expands the definition of domestic violence. Women’s groups support the amendments, but call for greater training, enforcement, resources and further improvements to the law.[2]
[2] Paragraphs 3.105 to 3.111 DFAT Country Report Malaysia of 19 April 2018.
The Tribunal acknowledged to the applicant that according to the country information there can be some difficulties for women to gain adequate state protection, and to safely leave violent relationships. However, on balance the country information tends to suggest that in her circumstances she could obtain effective protection measures from the Malaysian Government if she returned to that country. The applicant was invited to comment and indicated that she didn’t deny there were law and procedures but queried whether they were being followed. She added that she is not talking about family violence now and cited a case of a boy dying in a traffic accident due to the slow response of the emergency services and this was covered up by the police. She indicated Malaysia is a corrupt system, there is no justice, it was better before the current Prime Minister, the new Government needs time, the situation will improve in the future and she needs more time for temporary protection so she can return later.
The Tribunal raised country information from DFAT with the applicant indicating that women escaping domestic violence often move to large urban centres to avoid attention and that people also move to different parts of Malaysia for economic reasons.’[3] The Tribunal indicated that this country information tends to suggest that she can relocate within Malaysia to avoid those she says have caused or might cause her harm. The Tribunal noted that her ability to relocate to another country and her personal attributes also suggest she would be able to relocate within Malaysia. The applicant was invited to comment upon the aforementioned. Following clarification with her, the applicant advised that she does not accept this country information because she attempted to move previously and her husband followed her. She added that she has the ability to relocate but then won’t be able to live with her family. The applicant advised she thought a lot before coming to Australia and she had no choice but to come to this country to save her life and that of her mother.
[3] Paragraph 5.21 DFAT Country Report Malaysia of 19 April 2018.
The Tribunal took an adjournment, following which it raised with the applicant that although it had not made a decision on her claims for protection, it had concerns with them which included the following matters. Her written claims indicate that her husband started hurting her because she is ‘sterile’ and cannot have children. They also indicate that he started having relationships with other women. However, as previously outlined, her oral evidence is inconsistent with the aforementioned in that she advised her husband started hurting her following questioning about homosexual videos found on his mobile telephone, her husband has only had other relationships with men and not women, and the applicant advised that her health is well. The Tribunal indicated to the applicant that these inconsistencies might tend to undermine her credibility and claims for protection, inviting her comment. She replied that she was unaware of these particulars in her written claims until the Tribunal raised them with her. The Tribunal raised with the applicant that she earlier gave oral evidence indicating she told the man who helped her write her claims for protection the same account as she has told the Tribunal and asked her why there might be such a discrepancy between what he wrote and her oral evidence. The applicant responded that she told the man to write that her husband had sex with other men and she is surprised he wrote the claims as he did.
The Tribunal asked the applicant why the man might write that she is sterile and this is the reason for him harming her. The applicant replied that she never told the man anything about her being sterile. The Tribunal raised with the applicant that it might have difficulty accepting the genuineness of her claims given the apparent discrepancy on this topic, inviting her comment. She replied that she did not know until the hearing what was written. The Tribunal raised with the applicant that her oral evidence of receiving a broken leg, and her mother being knocked over by her husband, is also inconsistent with her written claims (being omitted from them) and might tend to undermine the genuineness of her claims for protection, inviting her comment. The applicant responded that she did not know how to write in English. When asked why the man who helped her might be responsible for such discrepancies, the applicant indicated she didn’t know why, she told him her claims and she doesn’t know why they were written as they were.
The Tribunal raised with the applicant that her written claims indicate she cannot return to Malaysia because all of her relatives are there, yet in oral evidence she advised of a good relationship with her mother and brother. The applicant explained that she said she had a good relationship with her mother and brother but not with her sisters. The Tribunal asked the applicant why she hadn’t raised in earlier oral evidence that she had fear regarding some of her family members. The applicant responded that she doesn’t fear her own family members, just those of her husband. The Tribunal read from the applicant’s answer to question 90 in her protection visa application, “I realy (sic) do not wish to return because all my relatives are within that country…” and indicated she had not raised in oral evidence any fear of returning to Malaysia on account of her own family, inviting her comment. She replied that lots of her relatives didn’t know the true information because they got it from her husband. The Tribunal raised with the applicant that her written address history appears inconsistent with her address history outlined in oral evidence, inviting her comment. The applicant responded that ‘maybe’ she didn’t understand the question and ‘maybe’ she has forgotten her address history.
The Tribunal raised with the applicant that the delay in her claim for protection might tend to undermine its genuineness, inviting her comment. She replied that from the time of her arrival she looked for assistance and didn’t receive any until she met the man who helped her. The Tribunal raised with the applicant that it had discussed country information with her and invited her to make any further comment. She replied that she can relocate but questioned whether her security could be guaranteed every 24 hours and added that she would live in fear in Malaysia.
The applicant advised the Tribunal that she no longer plans to stay in Australia but wants a temporary stay until her troubles settle. She noted there is a new Prime Minister in Malaysia and wants to give him some more time. The applicant confirmed she wanted to remain in Australia temporarily. The Tribunal raised with the applicant that her oral evidence indicating she only wants a temporary stay in Australia might tend to undermine the genuineness of her claims for protection, inviting her comment. She replied that when given a Bridging Visa she was told it was a temporary visa and that is why she made the application. The applicant was provided the opportunity to provide any further evidence that she wished. She confirmed to the Tribunal that she had no further evidence to submit.
Analysis
That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal has very carefully considered the applicant’s claims and the evidence before it. During the review hearing the Tribunal developed serious concerns with the credibility of the applicant’s claims that she would face harm if she was returned to Malaysia for the following reasons. As previously expressed, there are significant inconsistencies in the applicant’s initial written claims and in her oral evidence. The Tribunal had the benefit of observing the applicant provide her oral evidence and formed the impression that she was vague and evasive with respect to how her application for protection came to be completed and also in response to apparent inconsistencies with her written claims being raised. Overall, the Tribunal formed the impression the applicant is an unreliable witness. The Tribunal finds it implausible, to the point of being fanciful and far fetched, that the applicant by chance met a man named ‘[Mr A]’ who assisted her to write her claims for protection, yet departed so dramatically from her instructions with respect to key aspects of her claims, and that her lack of awareness of her initial written claims explains her inconsistent oral evidence. The applicant could provide no plausible reasons why ‘[Mr A]’ might have been responsible for such dramatic errors. It is worth pausing to reflect that ‘[Mr A]’ has now departed Australia.
The Tribunal finds that the applicant knew the contents of her written claims for protection and that her oral evidence departs from such claims in several key respects. For example, as previously outlined, the purported homosexual videos on her husband’s mobile telephone, his homosexual partners, her good health, her alleged broken leg and her mother’s injuries as a result of being targeted by his motorcycle, are significant departures from her initial written claims. These departures arise, in the view of the Tribunal, because the applicant has made untruthful claims and has not been able to maintain a consistent narrative in advancing her claims for protection.
In conjunction with the other inconsistencies identified above, the delay in her claim for protection and her stated desire to remain in Australia only temporarily, the Tribunal finds that the applicant lacks credibility as a witness. Following careful consideration, the Tribunal does not accept that the applicant has ever faced any harm, or that there is a real chance of serious or significant harm for her, in Malaysia for any reason (including from violence (physical or psychological) at the hands of her husband, any family member on either side of her family, any friends or from any person at all, including any of the Malaysian authorities). The Tribunal has formed the view that the applicant fabricated her claims for protection in order to remain in Australia. The Tribunal does not accept the veracity of the applicant’s claims for protection and finds accordingly.
CONCLUSION
Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm.
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.
K. Chapman
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.
…

[2018] AATA 5891

20 August 2018

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