1708215 (Refugee)

[2018] AATA 5967

1708215 (Refugee) [2018] AATA 5967 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708215

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:          8 November 2018 at 10:45 am (WA time)

DATE OF WRITTEN RECORD:                21 November 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 21 November 2018 at 9:04am

CATCHWORDS
REFUGEE – protection visa – Malaysia – credibility – inconsistent evidence – residence in another country – loveless marriage – residence in Australia with husband – religious divorce and remarriage to new partner – new partner a minority Shi’ite Muslim – fear not well founded – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 36(2)(a)

Migration Regulations 1994 (Cth), 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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 March 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 8 November 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

   STATEMENT OF DECISION AND REASONS

3. Attached to this decision record is a corrected transcript of the oral reasons for decision delivered to the applicant at the time of their delivery in person.

   DECISION

4. The Tribunal affirms the decision under review.

   Dr Colin Huntly
   Member

   
   

   CORRECTED TRANSCRIPT OF AN ORAL DECISION OF MEMBER HUNTLY          [10.33 am]

   MEMBER:  The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Regulations.  The applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria or under complementary protection grounds.  Where relevant, the Tribunal has taken into account the policy guidelines prepared by the Department of Immigration on refugee law and on complementary protection grounds together with any country information assessment prepared by the Department of Foreign Affairs and Trade as is required by Ministerial Direction No.56.  I note that on questions of credit I need to give the benefit of the doubt that that should not lead to an uncritical acceptance of any and/or allegations made. It is for an applicant to make their case with as much detail as possible.  Greater weight may be given to one piece of evidence against another and there is no rule that there must be a positive state of disbelief before making adverse assessments.

   Background

   The applicant appeared before the Tribunal on 25 July 2018 and again on 8 November 2018 to give evidence and present arguments.  The applicant was not represented in this application by a registered migration agent.  The Tribunal was assisted at both hearings by the services of an interpreter fluent and accredited in both the English and Malay languages.

   According to the applicant's movement record she arrived in Australia [in] April 2016 travelling on a [temporary] visa.  She thereafter applied for protection on 26 July 2016.  A delegate for the Minister for Immigration refused to grant the applicant a protection visa. That decision was made on 29 March 2017.  The applicant applies to the Tribunal for a review of that decision.

   Identity

   The applicant claims to be a citizen of Malaysia and has provided a copy of her passport to the department with her application.  The Tribunal finds the applicant is a citizen of Malaysia and Malaysia is therefore her receiving country for the purposes of the refugee and complementary protection assessments.  There is no evidence before the Tribunal to suggest the applicant has a right to enter and reside in any third country for the purposes of s.36(3) of the Act.

   Proceedings

   At the first hearing with the Tribunal on 25 July 2018, I explained to you what documents the Tribunal has in its possession.  I asked you if there was any information in those documents that should be changed.  You responded by stating that you were now divorced, as of [June] 2018.  You also stated that this was a religious divorce that was finalised in Australia by religious authorities and that you have a new partner who is a Malaysian Shia-Muslim male.  I then asked you if you wanted to add anything to your claims for protection and you responded in the negative.  I then asked if you were happy for me to proceed on the basis of the information that I had before me and you responded in the affirmative.

   Also at the first hearing, I read to you a summary of your claims for protection from the delegate's decision record at Part 4, which are as follows:

   The applicant ran away from "Islam law" and wants to convert to Christianity. 

   She will be castigated by the Moslem community.  You agreed that the summary was fair and accurate.

   At the start of the second and final hearing with the Tribunal on 8 November 2018, I reminded you of your answers to those questions.  I noted that you had made no further submissions to the Tribunal before the second hearing but that you had provided the Tribunal (on the day of the second hearing) with a copy of  a Nikah executed in Western Australia by Islamic authorities, purporting to grant an Islamic divorce to you from your first husband.  That Nikah is dated [September] 2018.

   I again read to you the summary of the claims from the delegate's record of decision and you again agreed that they were a fair and accurate summary of your claims at the time when they were made.  I pointed out to you that the delegate found that your claims for protection lacked credibility owing to the lack of appropriate detail in which they were expressed.  I asked you if you wished to respond to these findings and you agreed with them.  You indicated that your claims have changed. 

   In the course of the second hearing I raised my own concerns with you about your claims lacking appropriate detail; being inconsistent; and also at variance from credible country information in a number of respects.  During the hearing you provided me with considerable additional information. 

   You stated that you had been in a loveless marriage while in Malaysia and that you considered converting to Christianity as a way of escaping certain aspects of this marriage.  During your evidence you connected the issues you experienced in your marriage and your curiosity about Christianity together.  You indicated that you became particularly dissatisfied with Islam and your marriage during a period of time when you were resident in [Country].  You stated that your husband cheated on you and mistreated you.

   You indicated that you had explored the possibility of abandoning your Islamic faith considering whether or not you should convert to Christianity.

   On the basis of your evidence at the hearing I find that, while you may have been dissatisfied with certain aspects of the Islamic faith, at no time have you seriously considered converting to Christianity beyond attempting to discover more about it.  You were at all times and remain a person of the Islamic faith. 

   I raised with you the inconsistency between what you had written in your original application seeking protection and what you told me during the course of the hearing.  In particular there is no mention in your Application Form of having been married.  To the contrary, you indicated at Question 35 that you were never married.  Also, in Question 42 there is no mention of your having a husband.  In both instances when I asked you about these misstatements, you stated there was no reason for the failure to mention it and that it was your mistake.  This does not appear to be credible.

   Similarly, I noted that at Question 80 you indicated you had never travelled to any other country, despite having lived in [Country] for five years.  You agreed that your answers to residential and work history questions at Questions 81 and 84 are also incorrectly stated.

   I discussed with you the fact that your answers in these matters suggested that you had sworn a false and misleading Statutory Declaration at Question 100 in the Form.  You accepted that that was indeed the case.  I asked you if there were any particular reasons why you have misstated this information in your application for protection.  You indicated there was not.

   Accordingly, I find that you did wilfully misstate certain important aspects of your Application for Protection at the first instance, and that you failed subsequently on a number of occasions to correct these matters despite being given the opportunity to do so.

   These misstatements by you relate directly to your application for protection and the claims contained within it and present considerable difficulties in accepting that any of your claims are indeed credible, or in fact ever have been.

   Further complicating my concerns about the credibility of your claims were  the very late revelations in the hearing that you had actually resided in Australia for a number of months with your former husband, despite having claimed to have left Malaysia because of being in an unhappy marriage.  This late disclosure by you of information that you knew, or ought to have known, prior to applying for review of the original decision further undermines the credibility of your central claims in addition to your credibility as a witness of truth. 

   In the course of the hearing, I confirmed with you that you never tried to relocate anywhere in Malaysia prior to coming to Australia and you never experienced any harm in Malaysia towards.

   Towards the end of the hearing you asked whether or not you could change your claims once again, to reflect the fact that you are now married, in religious terms, to a Muslim practising Shia Islam.  You could not clarify to my satisfaction whether or not you yourself have adopted Shia Islam.  However, I accept your proposition that you may be assumed to have adopted Shia Islam if you have married a Shia Islamic male.

   You then suggested that you would face persecution in Malaysia on account of your perceived Shia Islamic status.  Even if the Tribunal were to accept the credibility of this related claim, the Tribunal finds that your claims to face persecution are inconsistent with the fact that your new partner's family came to Australia for your religious wedding and returned safely to Malaysia where you say they have continued to live safely as practicing Shia Muslims.

   Accordingly, the Tribunal finds it must place no weight on any of the claims you have made in support of your application for protection.

   Conclusions

   I carefully considered your claims made in both your application and at the hearing, individually and then cumulatively.  I have considerable doubts about much of the evidence you have provided to the Tribunal.  It has in all respects been lacking in appropriate detail, inconsistent and at variance from credible country information and otherwise illogical.  Most significantly, your claims have varied since they were originally made and have continued to vary throughout the Tribunal's consideration of your application.  Accordingly the Tribunal places weight on any of these claims for protection.

   On the basis of the concerns raised above the Tribunal does not accept that you genuinely hold a well-founded fear of persecution in Malaysia now or in the reasonably foreseeable future for any reason.  While the Tribunal accepts that you may have had an unhappy marriage in Malaysia, the Tribunal finds that nothing in your claims suggests that you face either a real chance of serious harm or a real risk of significant harm in Malaysia now or in the reasonable foreseeable future for any reason from any agent of 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) of the Act.  Having concluded that the applicant does not meet the refugee criteria the Tribunal has considered the alternative criteria.  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.  There is no suggestion that the applicant is a member of the same family unit as a person who meets either of these criteria.  Accordingly, the Tribunal is not satisfied the criterion in s.36(2).

   Decision

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

   END OF ORAL DECISION   [10.45 am]