1708808 (Refugee)

1708808 (Refugee) [2017] AATA 1999 (22 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1708808
COUNTRY OF REFERENCE: Malaysia
MEMBER:Tania Flood
DATE:22 September 2017
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 September 2017 at 11:02am
CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Women – Fear of physical violence – Islamic fundamentalists – Forced marriages – Internal relocation

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] April 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 [in] December 2016. The delegate refused to grant the visa on the basis that her claims are not credible or genuinely feared.
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
The issue in this case is whether there is a real chance the applicant will suffer serious harm on return to Malaysia for reason of her race, religion, nationality, membership of a particular social group or political opinion, or alternatively, whether 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 she will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
In her application for a Protection visa the applicant claims:
She was born on [date] in Pekan, Pahang, Malaysia.
She is ethnic Malay and a Sunni Muslim.
She has [specified family members] living in Malaysia.
Her occupation is [stated].
She arrived to Australia [in] October 2016 as the holder of a [temporary] visa.
She left Malaysia because there is no regular employment as a result of a downturn in the economy. Also she wanted to escape her ex-boyfriend who is hot-tempered, abusive.
If she returns to Malaysia she will be depressed and worried because of her relationship with her ex-boyfriend and because of her financial problems. Her ex-boyfriend will emotionally abuse her.
She cannot live safely anywhere in Malaysia because her ex-boyfriend will find her. She has moved to a lot of places in Malaysia but her life there is still depressing.
[In] April 2017 the applicant attended a Protection visa interview with a Delegate of the Department. At that interview she made the following claims:
She cannot remember when she broke up with her boyfriend but it was less than a year ago. They knew each other from high school.
Her boyfriend gets angry and cannot control himself and once or twice he used his hands.
She has not had any contact with him for a long time and he has not contacted her family.
She did not go to the police because her ex-boyfriends [relative] worked at the courts and she felt embarrassed to tell her family or anyone else about his temper.
Her ex-boyfriend once threw a ball at her about two years ago.
Her family think she came to Australia for a holiday and because there is no work in Malaysia.
On 1 September 2017 the applicant provided an additional statement to the Tribunal. In it, it is claimed:
[In] December 2016 she lodged an application for a protection visa with the help of a friend and using Google translate. She did not want her friend to know too much about her visa status because before coming to Australia she had heard about Malaysian gangs operating in Australia and she did not want to fall foul of them. That is why, wherever possible she wrote her application form herself.
She was nervous during the interview with the Delegate. She asked the Delegate for more time to find an interpreter to assist her to provide more information about her school friend but her request was declined. Also the Delegate incorrectly assumed she had come to Australia for economic reasons.
She claims that women in Malaysia face torture and harassment from Islamic fundamentalists and the dictator-like Sultans, Islamic prophets and Mullah’s.
Her ex-school friend wanted to abduct her. In early July 2016 she went to see her relative in his village which is hardly one kilometre from her village. While she was there her ex-school friend appeared and her relatives welcomed him as a King.
Her ex-school friend asked about to see her and the owner of the house told her to appear before him. She was scared and afraid because she heard he was a notorious man. He has a wife and lives the life of a sultan in Malaysia.
She went and sat of the sofa and he asked everybody else to leave the room. He said he wanted to marry her. He came very close and held her hands and said that he would go to her house in the next day to get the consent of her mother. After that he wanted to abuse her and she cried for help from the owner of the house. The owner entered the room and told the man not to do anything in his house. He left the house threatening to see her and her mother the next day at her house. He said that nobody will help her if he decides to take her by force.
She returned home and told the story to her mother. Her mother called her [Relative A] who advised her to go and live with him. Her [Relative A] helped her to come to Australia.
Her ex-school friend is a man of very high social status among the Muslim community. He is powerful and can do anything and the local authority is unable to take any action against him.
She is a Muslim woman from an Islamic country. She has been silenced by the extremism of Islam. There is a tradition of forced marriage. She wants to be free of slavery.
FINDINGS AND REASONS
Country of nationality
At the Tribunal hearing the applicant produced her Malaysian passport which verifies her claimed identity and nationality. In the absence of any information to the contrary the Tribunal finds the applicant is a national of Malaysia and has assessed her claims against Malaysia.
The applicant appeared before the Tribunal on 18 September 2017. At the outset of the Tribunal hearing she advised the following:
-    She is a single woman and a Sunni Muslim.
-    She was born in Pekan, Pahang, Malaysia but lived in Kuala Lumpur for more than two years prior to departing Malaysia. At first she lived with friends and then later with her [Relative B].
-    After finishing high school she commenced college studies but did not complete them.
-    She previously worked in [occupational] roles in Kuala Lumpur.
Feared harm from ex-school friend/boyfriend
During the hearing the Tribunal put it to the applicant that her written claims and oral evidence to the Delegate appears to differ significantly to the information contained in her latest statement to the Tribunal. The Tribunal asked the applicant to account for this.
The applicant responded that when she initially made her application for a protection visa she did not know what was required of her. She said she relied on a friend and Google translate to complete the application form. She reiterated that she asked the Delegate for more time to complete a statement using an interpreter but was not permitted to do so. She added that she was very nervous during the interview with the Delegate.
The Tribunal acknowledged the request made to the Delegate but noted that she was assisted by an interpreter at the interview and informed that she could orally state the full extent of her claims to the Delegate. The Tribunal pointed out that she had engaged in a lengthy discussion with the Delegate about the problems she encountered from a claimed boyfriend but failed to mention any of the matters contained in her latest statement. The Tribunal put it to the applicant that the late introduction of these claims in these circumstances could suggest she has resorted to embellishing her claims for protection. She repeated that she was nervous during the interview. The Tribunal accepted she was nervous but informed the applicant that this does not adequately explain her omission of very significant claims during that interview.
The Tribunal then asked the applicant to explain the reasons she fears returning to Malaysia. She stated that ‘the person’ is hot tempered and has abused her. She said she did not say anything about it to her family because she was too embarrassed. When questioned about the identity of the person she said it is someone she has known since high school – [named]. When asked if he was her boyfriend she said he was just a friend from school.
The Tribunal asked the applicant to elaborate on the problems she encountered with her high school friend. She said that if she didn’t follow his requests he would physically abuse her. When asked how often this occurred she said that whenever they spoke they would fight and when they fought he was violent. She said they fought because she didn’t accept him. When asked where this occurred she said it was nearby where she lived in Kuala Lumpur. She said they also met in her village.
When asked if any particular event prompted her departure from Malaysia she said that he was violent to her a long time ago. She said he beat her and threw plates at her.
The Tribunal put it to the applicant that her oral evidence is more aligned to the discussion she had with the Delegate than the written statement she submitted to the Tribunal. The Tribunal read out the key claims contained in her statement to the Tribunal and she merely replied ‘yes’. She offered no other explanation as to why she failed to mention her ex-school friend was a prominent person in her Muslim community who wanted to abduct her and that when she encountered him at a relative’s house near her village he told her he wanted to marry her and that he was going to go to her mother’s house to obtain her consent to marriage and that he then tried to abuse her which later caused her mother to send her to live with her [Relative A].
When asked why she did not seek police protection in the circumstances she said that she didn’t want to make a big issue of it and didn’t want everyone to know about it because they lived close together.
The Tribunal has considered the applicants written and oral evidence and her representative’s submission that she genuinely fears the events which she claims occurred in the village, but is not persuaded she is a truthful witness. The Tribunal accepts the applicant requested that the Delegate provide additional time for her to prepare a more thorough written statement which was declined. Having listened to the recording of the applicant’s interview with the Delegate and as discussed at hearing, the Tribunal is satisfied that the summary of claims outlined in the primary decision (which is before the Tribunal for the purpose of this review) accurately reflects the discussion between the applicant and the Delegate. Despite being afforded the opportunity to put forward her claims orally and being asked at the conclusion of the interview whether she had stated all her claims, and despite being assisted by an interpreter, the applicant made no mention at all of the serious claims outlined in her written statement to the Tribunal. The Tribunal accepts the applicant may have been nervous at the interview with the Delegate but is not persuaded that this accounts for her failure to refer to any of those events. This together with the fact the applicant also failed to mention to the Tribunal the claims contained in her statement of 1 September 2017 leads to a conclusion that the applicant is not a truthful witness. In the circumstances, the Tribunal cannot accept with any certainty that any of the applicant’s claims in respect of an ex-high school friend or boyfriend occurred as claimed.
The Tribunal finds the applicant’s claims lack credibility and accordingly the Tribunal is not prepared to accept that there is a real chance or real risk the applicant will face any serious or significant harm at the hands of an ex-high school friend or boyfriend on return to Malaysia, either now or in the reasonably foreseeable future. The Tribunal finds that she does not have a well-founded fear of persecution for this reason and nor are there substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Malaysia there is a real risk she will suffer significant harm for this reason.
Feared harm as a Muslim woman
The applicant also claims that women in Malaysia face torture and harassment by Islamic fundamentalists and that as a Muslim woman she has been silenced by the extremism of Islam. She claims there is forced marriage in Malaysia and that she wants to be free of slavery.
The applicant claims that she is a Sunni Muslim and the Tribunal accepts this. When asked whether she has personally been affected by or harmed by Islamic fundamentalists she said her claims relate more to the attitudes and the mentality of people in her village, including her mother. She said that in her community people who marry late are looked down on. She said that older relatives always ask her when she is going to get married and she doesn’t like the concept of arranged marriage. She said she feels restricted and controlled by her mother.
During the hearing the Tribunal put it to the applicant that her evidence appears to be at odds with her own personal circumstances. The Tribunal acknowledged that the attitudes of people in her village might be different to the views of people living in an urban cosmopolitan environment. However, the Tribunal noted that she was able to study and work and live with her friends in Kuala Lumpur and to travel to Australia unaccompanied by family and that this suggests she is afforded a degree of personal freedom as a Muslim woman. Furthermore, the Tribunal put it to the applicant that DFAT reports that women participate in all areas of society in Malaysia including in business, government, politics and civil society. The Tribunal noted that there are reportedly legal protections against violence and sexual harassment of women[1]. She replied that even though she is an adult she still feels she is under the control of her mother and when she lived in Kuala Lumpur with her [Relative B] she usually just went to work and home. She said her [Relative B] is no longer living in Kuala Lumpur and her mother won’t allow her to live with friends. She said she wants to remain in Australia because she feels free here.
[1] DFAT Country Information Report, Malaysia, 19 July 2017
Having discussed these matters with the applicant and considered her responses, the Tribunal is of the view her written claims in respect of her situation as a Muslim woman in Malaysia are exaggerated. While the Tribunal accepts she might be questioned by her relatives in the village and her mother about her intentions to marry, and that she probably finds this discomforting, there is nothing before the Tribunal to indicate her family or anybody else are trying to silence her or force her into an arranged marriage or to enslave or torture her in anyway. If anything, for the reasons noted above, it appears the applicant was able to live a relatively independent life, free from harm, for several years in Kuala Lumpur. There is also nothing before the Tribunal to indicate that she could not resume that lifestyle on return to Malaysia. The Tribunal acknowledges her evidence that her mother will not allow her to live with friends in Kuala Lumpur but the Tribunal is not persuaded by this because she has done so in similar circumstances in the past.
For the above reasons and noting DFAT’s advice and the applicant’s individual circumstances, the Tribunal is satisfied there is not a real chance or a real risk she will face serious or significant harm on return to Malaysia for reason of the fact she is a Muslim woman from an Islamic country. The Tribunal finds that she does not have a well-founded fear of persecution in Malaysia for this reason and nor are there substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Malaysia there is a real risk she will suffer significant harm for this or any other reason.
Economic downturn/no regular employment

For completeness the Tribunal notes the applicant’s reference to the economic downtown in Malaysia and the lack of regular employment in her written claims. The Tribunal notes that in her written statement of 1 September 2017 the applicant states that the Delegate incorrectly assumed she had come to Australia for economic reasons. In view of this, the Tribunal asked the applicant whether she fears returning to Malaysia because of the state of the economy or because she fears she will not find employment. The applicant replied that she does not fear harm for these reasons. She said her main fear is that she will be harmed by her ex-school friend. In view of her evidence the Tribunal finds the applicant does not fear harm for these reasons and has not considered these claims further.
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) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated, 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 satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
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 1999

22 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice