1712973 (Refugee)

1712973 (Refugee) [2022] AATA 4729 (19 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712973
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:K. Chapman
DATE:19 January 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 January 2022 at 2:01pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – lesbian – pro-LGBTI views – inter-religious marriage – credibility concerns – delay in seeking protection – worked illegally – late claims – lack of corroborating evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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 and Border Protection on 26 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
The Tribunal has obtained the following background information from the visa application, evidence presented to the delegate by the applicant, the decision of the delegate (submitted to the Tribunal) and the applicant’s evidence provided during the review (including her evidence at hearing).
[The applicant] claims to be a citizen of Malaysia. She applied for the protection visa on 7 October 2016. The applicant speaks English and Malay fluently. She also possesses a working knowledge of the Mandarin, Arabic and Japanese languages that she obtained whilst attending boarding school, on scholarship, at an advanced academic school in Malaysia.
The applicant arrived in Perth, Australia by air [in] August 2015 as the holder of an Electronic Travel Authority (ETA) Subclass 601 visa. She travelled to Australia with her sister, [Ms A], who remains in Perth and has also separately claimed protection (the applicant does not know upon what grounds). The applicant became an unlawful non citizen from 9 November 2015 until 7 October 2016, thereafter obtaining a Bridging Visa C in connection with her application for protection. The applicant performed agricultural work illegally in Western Australia and Victoria, prior to being granted permission to work in this country.
In mid-2017, a friend of the applicant advised her that a [Mr B] was looking for a girlfriend in Queensland and put them in touch through Face Book. [Mr B] apparently provided the applicant with funds through his credit card and she flew from Melbourne to Brisbane, whereupon she immediately commenced a relationship with him. In mid-2019, the applicant and [Mr B] were married. [Mr B] is a Sri Lankan national holding a Safe Haven Enterprise Visa (SHEV). He arrived in Australia unlawfully by boat and was subsequently granted the SHEV, which is a temporary protection visa.
The applicant made initial claims for protection to the Department, then also raised new claims during the review process. Her claims are most wide ranging. The applicant’s initial claims are as follows. She assisted her friend [Ms C] (a Philippine national) who was scammed by a bad Malaysian migration agent (who has a brother who is a Malaysian Police Officer) and she was convicted of immigration offences in Malaysia (then imprisoned and deported) thereby bringing them both to the adverse attention of Police and immigration officials; the applicant collected evidence of the migration agent’s malpractice (most of which was subsequently lost) and reported him to the Police but they did not assist with her reports regarding the migration agent and she was threatened by criminal connections of the agent in Kuala Lumpur who damaged her property; she was attacked by criminal elements in Kuala Lumpur who rammed her car whilst she was driving; she became depressed and could no longer work as a result of the harm she suffered; she has been discriminated against for her different political views as she supports the rights of Lesbians (her friend [Ms C] is a lesbian) and those who have an inter-religious marriage; and she has a Christian boyfriend (now husband) with them both to face discrimination in Malaysia due to their inter-religious relationship.
The applicant’s new claims raised at the review hearing are as follows. She was sexually assaulted by a previous boyfriend who was a Police Officer in Malaysia; she escaped to [Country 1] for work and suffered a miscarriage there arising from the assault; she entered into a lesbian relationship with [Ms C] in [Country 1] and returned with her to Malaysia where they suffered discrimination; the applicant was physically attacked (including with a hockey stick) by the migration agent, his wife and her own brother [Mr D] (who introduced the applicant to the bad migration agent) in Ipoh whilst a Police Officer and another man in plain clothes hid behind a curtain watching; her brother [Mr D] disappeared for around one year following this assault; she was warned by the Malaysian Police she could be charged with bribery when she requested a copy of her Police reports related to [Ms C]’s immigration case; she no longer practises Islam and does not wear the hijab; and the applicant took out loans to fund study and a business which were not repaid by her that resulted in her ‘blacklisted’ by the Malaysian Government including by way of being denied a passport renewal.
The applicant also claimed she cannot seek State Protection, nor can she relocate within Malaysia. Additionally, she claimed that upon arrival in Australia she was tricked by agricultural employers in both Western Australia and Victoria, which caused her to delay making a valid application for protection. The applicant denied knowingly being unlawfully in Australia or working illegally in this country.
The delegate refused to grant the protection visa application due to, in their view, a lack of corroborating evidence to support the claims for protection, in combination with relevant non-supportive country information. The applicant applied for review of the delegate’s visa refusal decision on 19 June 2017. She subsequently provided a copy of that decision to the Tribunal and further material including, but not limited to, an untranslated Malaysian Police report, an untranslated Malaysian loan document, application for Bridging Visa work rights, a tenancy agreement, telephone bill and a vehicle registration notice. The Tribunal has duly considered all submitted material. The Tribunal notes that during the review hearing the applicant raised many claims that were not before the delegate.
On 30 November 2021, the Tribunal invited the applicant to attend a hearing in person scheduled for 10 January 2022. Due to the emerging COVID-19 situation in Queensland, on 5 January 2022, the Tribunal amended the hearing mode to telephone to protect the health of all participants. The applicant requested the hearing to remain in person. The Tribunal, in writing, offered the applicant a video hearing, but received no response to this offer. Ultimately, the Tribunal decided to conduct the hearing by telephone, as to do otherwise would cause undue delay in the review when a hearing in person was not practicable for some time.
The applicant appeared by telephone before the Tribunal on 10 January 2022 to give evidence and present arguments. She confirmed to the Tribunal that she was comfortable proceeding with the hearing by telephone, although she preferred to have it conducted in person. The Tribunal discussed with the applicant the reasons for utilising a telephone hearing and the applicant agreed to participate in a telephone hearing. The Tribunal also took evidence by telephone from the applicant’s husband, [Mr B]. He required the assistance of an interpreter in the Tamil and English languages to give his evidence. [Mr B] confirmed he understood the interpreting service. The applicant also requested at the hearing that evidence be taken by telephone from [Ms C], who apparently resides in The Philippines. The Tribunal attempted to contact [Ms C] by telephone, to no avail.
On balance, the Tribunal is satisfied that the applicant received a fair and reasonable hearing using the telephone method. The Tribunal attempted to contact [Ms C], although no prior notification had been given. Furthermore, the Tribunal notes that the applicant displayed an excellent command of the English language and [Mr B] was provided with an interpreter in his native Tamil language. Of note, the hearing length was approximately four and a half hours (excluding breaks) and the Tribunal is satisfied that the applicant was provided with a significant opportunity to be heard using a clear telephone line.
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 (Cth) (‘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.
‘Significant harm’ for these purposes is exhaustively defined in the Act: s.36(2A) and s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Relocation
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
State protection
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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. Information including, but not limited to, the following is contained in those files:
a.the applicant’s protection visa application forms lodged on 7 October 2016;
b.the applicant’s identity documents including a Malaysian passport and a Queensland Driver Licence;
c.[a] boarding pass from Kuala Lumpur to Perth dated [in] August 2015;
d.an application for Bridging Visa work rights, including a tenancy agreement, telephone bill and a vehicle registration notice;
e.photographic evidence of an untranslated Malaysian Police report dated 4 January 2015;
f.photographic evidence of an untranslated loan document from Perbadanan Tabung Pendidikan Tinggi Nasional addressed to the applicant;
g.the Departmental delegate’s visa refusal decision dated 26 May 2017 (a copy of which was provided to the Tribunal by the applicant);
h.the application for review submitted on 19 June 2017; and
i.Departmental administrative and Movement records.
Claims for protection
The applicant has made claims for protection which may be summarised as follows (noting that information additional to the initial specified claims was raised during the review):
a.she was sexually assaulted by a previous boyfriend who was a Police Officer in Malaysia (new claim);
b.she escaped to [Country 1] for work and suffered a miscarriage there arising from the assault (new claim);
c.she entered into a lesbian relationship with [Ms C] in [Country 1] and returned with her to Malaysia where they suffered discrimination (new claim);
d.she assisted [Ms C] (a Philippine national) who was scammed by a bad Malaysian migration agent (who has a brother who is a Malaysian Police Officer) and she was convicted of immigration offences in Malaysia (then imprisoned and deported) thereby bringing them both to the adverse attention of Police and immigration officials (initial claim);
e.she was physically attacked (including with a hockey stick) by the migration agent, his wife and her own brother [Mr D] (who introduced the applicant to the bad migration agent) in Ipoh whilst a Police Officer and another man in plain clothes hid behind a curtain watching (new claim);
f.her brother [Mr D] disappeared for around one year following this assault (new claim);
g.she collected evidence of the migration agent’s malpractice (most of which was subsequently lost) and reported him to the Police but they did not assist with her reports regarding the migration agent and she was threatened by criminal connections of the agent in Kuala Lumpur who damaged her property (initial claim);
h.she was attacked by criminal elements in Kuala Lumpur who rammed her car whilst she was driving (initial claim);
i.she became depressed and could no longer work as a result of the harm she suffered (initial claim);
j.she has been discriminated against for her different political views as she supports the rights of Lesbians (her friend [Ms C] is a lesbian) and those who have an inter-religious marriage (initial claims);
k.she has a Christian boyfriend (now husband) with them both to face discrimination in Malaysia due to their inter-religious relationship (initial claim);
l.she was warned by the Malaysian Police she could be charged with bribery when she requested a copy of her Police reports related to [Ms C]’s immigration case (new claim);
m.she no longer practises Islam and does not wear the hijab (new claim); and
n.the applicant took out loans to fund study and a business which were not repaid by her that resulted in her ‘blacklisted’ by the Malaysian Government including by way of being denied a passport renewal (new claim).
The review hearing

The Tribunal notes that the applicant was afforded a lengthy review hearing so that she could fully ventilate all of her claims for protection. The applicant took full advantage of this opportunity and raised many new claims that had not been submitted to the Department. The content of the hearing may be summarised as follows.
The applicant confirmed she understood her claims for protection and that they are truthful. She prepared her protection claims for the Department by herself. The applicant indicated her claims for protection were all contained in the protection visa application submitted to the Department that she signed. She confirmed she understood its contents and that her written claims are accurate. The applicant agreed that her application for protection was important to her. She advised that she obtained the assistance of a [Mr E] for her review application (he is not listed on the record for this matter).
The Tribunal canvassed with the applicant her background (including particulars detailed above). She confirmed she is a citizen of Malaysia by birth. The applicant’s home town is Ipoh, however she most recently lived in Kuala Lumpur between 2012 and 2015. She indicated she was born a Muslim but is no longer practising. The applicant advised in 2015 she was in a lesbian relationship with [Ms C], who is a Philippine national. The Tribunal queried why this was not expressly indicated in her application for protection. The applicant insisted she informed the Department of this situation. Upon further canvassing of this topic by the Tribunal, the applicant advised she met [Ms C] in [Country 1] when she went there to work in hospitality. They formed a lesbian relationship and subsequently they went to Kuala Lumpur where they lived together for around three years without incident between 2012 and 2015. The applicant held an office job in Kuala Lumpur at the time. She indicated her family and society could not accept the nature of their relationship.
The applicant informed the Tribunal that [Ms C] came into Malaysian visa difficulties in 2015. They both consulted an immigration agent in Malaysia, who turned out to be a bad man. According to the applicant, [Ms C] consulted the immigration agent in Ipoh (the applicant’s home town). He apparently took [Ms C]’s passport and tried to send her back to Kuala Lumpur. Upon learning of this, the applicant informed [Ms C] to go to her parent’s house in Ipoh, whilst she travelled from Kuala Lumpur to confront the agent. The applicant apparently met with the agent and demanded he return [Ms C]’s passport. She argued with him because he had been paid but not helped [Ms C].
When asked by the Tribunal to provide further detail regarding the confrontation with the immigration agent in Ipoh in 2015, the applicant initially advised that there were four other persons in the building at the time. The immigration agent, his wife, her own brother [Mr D] and his then girlfriend [Ms F]. The applicant told the Tribunal that the immigration agent and [Mr D] beat her up. She provided limited detail until asked to elaborate by the Tribunal. Thereupon, the applicant indicated they used hockey sticks to hurt her and her left side became lame. The applicant added that [Ms F] tried to help her to no avail, then as she ran from the house to escape the attack, the applicant turned back and saw through a window that a Police Officer and a person in plain clothes were hiding behind a curtain in the building. According to the applicant, this Police Officer is the brother of the immigration agent, hence the enhanced risk to her from the Malaysian Police. Of note, the applicant also indicated that [Ms F] was no longer the girlfriend of her brother and she now has a different partner who was also scammed by the immigration agent. The details provided of the attack lacked significant detail.
The Tribunal canvassed with the applicant the relationship of [Mr D] and [Ms F] to the events of 2015. According to the applicant, [Ms F] has advised her that the immigration agent remains operating freely in Malaysia. However, unfortunately, [Ms F] is embroiled in her own battle against the immigration agent with her new partner and is too afraid to provide further information to the applicant. The applicant also explained that it was her brother [Mr D] who linked her with the immigration agent initially. According to the applicant, the immigration agent advised her brother [Mr D] of her being a lesbian. This upset [Mr D] and is the reason he attacked the applicant with the immigration agent and his wife.
Following the attack by the immigration agent, the applicant apparently went to hospital. She had bruising and an eye was damaged. She took time off work and provided the medical certificate to her then employer. The applicant no longer has a copy of any medical evidence regarding the assault. According to the applicant, her father spoke to the immigration agent by telephone after the assault and then became angry with her due to finding out she is a lesbian. The applicant also added that her brother then disappeared for around one year following the assault and this further angered her father. Apparently in 2016, after her arrival in Australia, the applicant was advised by her sister that her brother had resurfaced. The applicant only now speaks with her sister, who is also in Australia and has claimed protection (although the applicant subsequently advised she does not know upon what grounds), having no relationship with other family members in Malaysia.
The applicant explained that after the assault from the immigration agent she tried to flee Malaysia to Thailand with [Ms C]. However, [Ms C] was detained by Malaysian immigration officials. The applicant then outlined her efforts to engage with various Malaysian immigration authorities to have [Ms C] released, to no avail. [Ms C] was prosecuted for immigration offences and held in detention. According to the applicant, [Ms C] was forced by immigration officials to plead guilty to the immigration offences. In due course, [Ms C] was convicted by the Court and sentenced to one year imprisonment with deportation from Malaysia to follow.
The applicant advised that an immigration officer, [Mr G], obtained her phone number from the immigration detention centre and called her. He offered to have [Ms C]’s sentence reduced in return for payment. The applicant met with him, however, ultimately he failed to assist [Ms C] and she was deported to The Philippines after serving imprisonment. The applicant advised she later learned that [Mr G] was a corrupt Malaysian immigration official. Further, the applicant outlined that she made a report to Police about the immigration agent, however no action was taken. The applicant initially advised that she lost copies of all documentation regarding her complaint to Police. However, whilst in Australia she found an untranslated copy of her Police report and submitted it to the Tribunal (on 25 September 2018).
The applicant also detailed that criminal connections of the immigration agent threatened her in Kuala Lumpur, including placing a dead chicken on the back window of her vehicle. Additionally, the applicant explained that on one occasion she was run off the road whilst driving by another vehicle and she was lucky to survive. She continues to fear the criminal connections of the immigration agent. The applicant provided limited detail in relation to these incidents (the Tribunal also notes the applicant made brief written claims concerning some items being stolen from her such as her Malaysian Identity Card).
The applicant apparently also went to report corruption in [Ms C]’s case with the appropriate Government body. However, she was warned that her brother would become involved, given his connection to the immigration agent, so she did not proceed with a formal complaint. The applicant claims that she fears the Malaysian Police and immigration officials given the circumstances of [Ms C]’s case.
Following [Ms C]’s Court matter and deportation, the applicant apparently became depressed and was absent from her work in Kuala Lumpur. She was placed on suspension by her employer due to her absenteeism. The applicant was at a low ebb then and she went to stay with her sister in Kuala Lumpur because she could no longer work. Her friend then advised her that she should escape to Australia to claim protection as this country protects lesbians. Accordingly, the applicant made plans to come to Australia. [Ms C] agreed with this plan. She confirmed to the Tribunal that she travelled to Australia [in] August 2015 to seek protection as a lesbian.
The Tribunal canvassed with the applicant the details of her arrival in Australia. Her friend put her in contact with a man in Perth who could help her with a protection visa and employment. The applicant travelled from Malaysia to Perth. She departed Kuala Lumpur via a commercial flight using her own Malaysian passport. The applicant also informed the Tribunal that she flew to Australia with her sister, [Ms A]. Upon further enquiry of the Tribunal, the applicant advised that her sister has also claimed protection, although she doesn’t know of the reasons for this because she has not asked her.
The applicant contends she went to work in agriculture for her friend’s contact in Western Australia. However, he did not pay her and also failed to lodge her protection visa application as promised. The Tribunal canvassed in detail with the applicant how her application was lodged, noting she advised that she completed it herself. She advised that in November 2015 she rung the Department and was told it had not been lodged. When asked why she didn’t then lodge herself, the applicant said she had no money. The applicant then recounted that she travelled to Melbourne. When asked how she did this with no money, she advised the contact man gave her money to fly to Melbourne. In due course, the applicant variously advised that she again tried to lodge her protection visa application in Melbourne, but then says she didn’t know how to do it. She contends she went to work in agriculture again in Victoria. When asked why she didn’t lodge her application for protection then, she advised that she needed to work to obtain money at that time and was not thinking of how to apply for protection. She also added she lost her mobile phone containing all of her evidence for her protection visa application. The applicant claims that she then lodged her application for protection in Victoria, however she rung the Department and realised that it was ‘lost’. She subsequently applied once she had sufficient funds. The applicant also indicated the contractor in Victoria ripped her off with wages.
The applicant advised that after speaking to ‘a contact’ she was advised that a [Mr B] in Queensland was ‘looking for a girlfriend.’ The contact put them in touch and they communicated. [Mr B] funded the applicant to fly to Queensland, she moved in with him immediately and they apparently commenced a relationship. [Mr B] is from Sri Lanka and holds a Safe Haven Enterprise Visa (SHEV), a temporary protection visa. This is because he is a Christian and has problems in Sri Lanka. He works in a [farm] in Queensland.
The Tribunal canvassed with the applicant her work rights and visa status after arrival in Australia. The applicant confirmed she arrived on a Visitor visa. However, she advised her belief that her contactors had obtained a work visa for her. She denied ever being an unlawful non-citizen in Australia. The applicant explained that she obtained work rights herself in Australia around 2019.
When asked by the Tribunal if she had any other reasons for requiring a protection visa, the applicant advised that prior to meeting [Ms C] she was sexually assaulted by a former boyfriend in Malaysia. He apparently is a Malaysian Police Officer. That is why the applicant initially went to [Country 1] and it is another reason why she fears the Malaysian Police. She also had a miscarriage arising from the assault in [Country 1]. [Ms C] helped her through this difficult time and they entered into a lesbian relationship thereafter. When queried by the Tribunal as to why she did not raise this with the Department, the applicant responded that she has trust issues and this is why she didn’t raise it earlier. The applicant added that in Malaysia they protect the perpetrators of sexual assault and she can’t return because people in her religion will blame her and so will her father. At that point, the applicant advised she had no further reasons for requiring protection.
The Tribunal canvassed with the applicant her submission of the untranslated Malaysian Police Report and Loan Notice on 25 September 2018. She advised that the Police Report is the one she made about the immigration agent. The loan document pertains to a loan for business and study she took out. The applicant apparently found these documents in her online archive. She purportedly lost her phone earlier and that is why she didn’t have the evidence for the Department. The applicant then indicated she was ‘blacklisted’ from getting a new Malaysian passport due to her outstanding loan. Apparently, the Malaysian Embassy in Australia informed her of this situation. She added that she lost her most recently issued passport due to a burglary in Australia.
The Tribunal discussed with the applicant that she claimed to the Department to have lost all supporting documents pertaining to her claims for protection. The Tribunal raised with her that it might have difficulty accepting the genuineness of the documents submitted to it, given the significant delay in lodging them. The applicant was invited to comment and replied that she was afraid to apply for protection because she had no evidence at the time. This is another reason she delayed claiming protection. She added that she lost contact with people in Malaysia at that time, just staying on the farm. The applicant advised her husband helped her and found the documents in an archive. The applicant also informed the Tribunal that when she previously tried to obtain a copy of the Police Report, she was advised that she could be charged with bribery.
The Tribunal again asked the applicant if there were any other reasons she required protection. She advised that she is married to [Mr B] now and wants to stay in Australia legally. The Tribunal canvassed with the applicant that in her written claims for protection she cited her different political views regarding fighting for the rights of a lesbian ([Ms C]) and supporting marriage between different religions. The applicant indicated her husband is a Christian and under the Malaysian Constitution they can’t have an inter-religious marriage, they don’t want to go to Malaysia and he can’t pretend to be a Muslim. The Tribunal explored the relationship between the applicant and [Mr B]. The applicant confirmed [Mr B] provided her funds prior to meeting him and he paid for her flight from Melbourne to Brisbane. She then flew to Queensland and they immediately commenced a relationship. The applicant advised [Mr B] has a problem because he is a Christian. She advised that his family stays away from them because they are not married. She has received verbal abuse due to their relationship, but she doesn’t care because she loves him.
The Tribunal enquired as to the financial aspects of the relationship. The applicant provided limited detail, indicating [Mr B] funds her. She cannot work because they are trying IVF to have a child, thus far unsuccessfully. She gets too stressed if she works apparently. There is no financial hardship. The Tribunal enquired as to the nature of their household. The applicant again provided limited detail, indicating they have lived together in [Suburb 1] since 2017. The Tribunal enquired as to the social aspects of the relationship. The applicant advised she just stays home. [Mr B] apparently funds their IVF treatment and she doesn’t engage in any social activities. The Tribunal enquired as to the nature of their commitment to each other. The applicant indicated ‘I don’t know if I’m a lesbian or not’, but now she really loves him and they want a family together. When asked by the Tribunal when she married [Mr B], the applicant was initially unsure of the precise date, then settled on [a date in] June 2019.
The applicant explained her husband holds a SHEV (temporary protection visa) and this is not the reason she is with him. According to the applicant, [Mr B] cannot travel to Malaysia as he is a refugee who is wanted by the Sri Lankan Government due to his uncle helping Tamils. When asked if [Mr B] is a Tamil himself, the applicant was unsure. Nor could she elaborate on his reasons for needing protection in Australia. She advised he has his trauma and she has hers. Overall, the applicant provided very limited detail concerning her relationship with [Mr B].
The Tribunal asked the applicant why she waited approximately fourteen months from her arrival in Australia until making her application for a protection visa. The applicant indicated she didn’t really know the process. She added she depended upon others whom she trusted but they cheated her. The Tribunal raised with the applicant that she advised in earlier evidence she travelled to Australia to claim protection, however, there was a significant delay in her doing so which might tend to suggest her protection claims are not genuine. The applicant was invited to comment and advised her friend told her Australia would protect LGBTI people and that is why she came here. She added that she relied upon the contractor but he cheated her. She wanted a job so she could obtain money to hire a lawyer, however, she could not do so as her money was all finished. The applicant apparently had some savings when she arrived in Australia, but they are now all finished.
The Tribunal raised with the applicant that given she was unlawfully in Australia without a valid visa for a significant period of time and did not engage fully with the Department until applying for a protection visa, this might tend to suggest that her claims for protection are not genuine. The applicant was invited to comment and initially responded, ‘I don’t know, I’m not lying.’ She added that her life in Perth and Melbourne was not good and that is the reason for the delay. The applicant also asked the Tribunal to contact [Ms C] in The Philippines, whom she had not spoken with since 2015. The Tribunal agreed to do so, subsequently making several attempts to call [Ms C] with the number provided by the applicant. [Ms C] did not, however, answer the telephone.
The Tribunal canvassed country information from DFAT[1] suggesting that State protection from criminal elements is available for her if she returns to Malaysia. In summary, the applicant maintained that the Malaysian Police have not assisted her against the criminal connections of the immigration agent. She advised that the Police cannot be trusted, the immigration agent has connections with the Police, he remains free (conducting smuggling and selling Identity Cards) and she is a normal person who can’t fight them. The applicant added that she reported her problems to the Police Headquarters but they didn’t assist her and ultimately she ended up suspended from work because she couldn’t receive help.
[1] DFAT Country Report - Malaysia, 29 June 2021, paragraphs 2.47, 3.109-3.118 & 5.5.
The Tribunal canvassed with the applicant country information from DFAT[2] regarding the operations of the Malaysian judiciary. The Tribunal raised with the applicant that this country information might not tend to support her claims that [Ms C] received an unfair trial in relation to her immigration offences, or that she will not be protected by the State from criminal gang members. The Tribunal raised that it might tend to suggest there is adequate State protection for the applicant if she returns to Malaysia, inviting her comment. The applicant maintained she tried unsuccessfully to obtain assistance, she is a normal person, she couldn’t obtain a lawyer at that time and she had to come to Australia.
[2] DFAT Country Report - Malaysia, 29 June 2021, paragraphs 5.26-5.28.

The Tribunal canvassed with the applicant country information from DFAT[3] regarding Christians in Malaysia. The Tribunal raised with the applicant that this country information might not tend to support her claims that [Mr B] would face a real chance of harm as a Christian in Malaysia or that she would face a real chance of harm by being married to a Christian. The applicant was invited to comment and she replied that inter-religious marriage is prohibited under the Malaysian Constitution and the law.
[3] DFAT Country Report - Malaysia, 29 June 2021, paragraph 3.58.
The Tribunal canvassed with the applicant country information from DFAT[4] regarding religion and marriage in Malaysia. The Tribunal raised with the applicant that this country information regarding marrying a non-Muslim might tend to suggest she would face a high risk of official discrimination, but not a real chance of serious or significant harm if she returned to Malaysia having married a non-Muslim or being a supporter of inter-religious marriages to non-Muslims. The applicant was invited to comment and she replied that they can’t go back due to their marriage, it will cause problems for [Mr B] and they don’t push the other into what they believe or follow. The applicant confirmed her husband is a Christian but she doesn’t follow religion herself. She also added that they discussed [Mr B] converting to Islam, he didn’t do this, but he agreed to pretend to be Muslim and that was told to her sister, [Ms A] (the only relative she remains in contact with).
[4] DFAT Country Report - Malaysia, 29 June 2021, paragraphs 3.66-3.71.
The Tribunal canvassed with the applicant country information from DFAT[5] regarding lesbian issues. The Tribunal raised with the applicant that this country information regarding lesbians in Malaysia does not tend to support her claims that there is a real chance she would face serious or significant harm as a supporter of lesbians in Malaysia, noting she did not indicate she was a lesbian in her protection visa application. The applicant was invited to comment and she responded that society in Malaysia doesn’t accept LGBTI people, it is hard for them to get a job and this is why she and [Ms C] hid their lesbian relationship in Malaysia saying they were housemates.
[5] DFAT Country Report - Malaysia, 29 June 2021, paragraphs 3.66-3.71.
The Tribunal canvassed with the applicant country information from DFAT[6] regarding relocation within Malaysia, to a large urban centre, to avoid those whom she says have caused, or might cause, her harm. The applicant was invited to comment and she replied that the situation is the same in all areas of Malaysia. The community cannot accept her. The applicant added that she doesn’t cover herself with the hijab and this makes it hard to find a job. She also noted she can’t go to other parts of Malaysia. The Tribunal canvassed whether the applicant had raised with the Department her not wearing the hijab. The applicant didn’t remember. She then added that she has never worn the hijab before but was able to work in Kuala Lumpur without it, although she doesn’t have so many friends because she doesn’t wear it.
[6] DFAT Country Report - Malaysia, 29 June 2021, paragraphs 5.26-5.28.
The Tribunal advised the applicant it had not made up its mind on her application. The Tribunal then raised some potential concerns with her application including, she had not raised with the Department that she was a lesbian only indicating she supported her lesbian friend [Ms C]; she did not raise the claims relating to her former Malaysian Police Officer boyfriend with the Department; she did not provide fulsome details of the purported harm she suffered to the Department (including from the immigration agent, her brother, Police and immigration officials); there was a significant delay from her arrival in Australia to claiming protection, including time spent as an unlawfully non-citizen, which might tend to undermine the genuineness of her claims; the quick inception of the relationship and its particulars might tend to undermine its legitimacy; and the country information tends to suggest she does not face a real chance of serious or significant harm for any claim.
The Tribunal invited the applicant to comment upon these concerns. She advised that due to trust issues and trying to survive (including resisting thoughts of committing self-harm) she wasn’t thinking clearly when she made her claims. She added that [Mr E] helped her with her claims before the Tribunal and she wanted an in person hearing for the Tribunal to understand the truth. The applicant outlined that she has trust issues, didn’t want to be born a Muslim, [Ms C] helped her significantly, her life changed for the better in Australia and she wants to remain in this country with her husband and forget about Malaysia. The Tribunal then reiterated with the applicant that the country information concerning the judiciary in Malaysia did not tend to support her claims, inviting her comment. She replied that she does not trust the system in Malaysia.
The Tribunal took evidence by telephone from [Mr B], the applicant’s husband. He informed the Tribunal that he had only limited English. Therefore, a Tamil interpreter was engaged. [Mr B] confirmed he understood the interpreting service. The Tribunal canvassed with him how he communicates with the applicant. He advised she translates for him and ‘uses signs’. The Tribunal asked the applicant if she spoke the Tamil language. She does not. The Tribunal raised with the applicant that this might suggest they cannot communicate fully with each other, inviting her comment. The applicant advised that [Mr B] speaks English well and she is unsure why he requires a Tamil interpreter.
[Mr B]’s evidence may be summarised as follows. He is a Christian from Sri Lanka who came to Australia by boat. He holds a SHEV (temporary protection visa), valid for five years. He met the applicant through Face Book using a mutual contact. He can’t remember when as his memory is not good. [Mr B] confirmed to the Tribunal he suffers no medical issues. When asked about the applicant’s reasons for requiring protection, [Mr B] advised that he ‘hadn’t gone into detail’. He added that she was a lesbian and her mother, father and brother had beaten her up. He noted gangsters were involved. [Mr B] advised that he doesn’t know ‘the full history’ of the applicant and also informed the Tribunal he didn’t ‘know anything about her’. He thinks she has mental health problems, but he isn’t sure. [Mr B] provided only scant detail regarding the reasons the applicant seeks protection.
The Tribunal canvassed the particulars of the relationship between [Mr B] and the applicant. He explained she came to him and asked him to marry her. They married according to Muslim tradition, but he is not a Muslim. He doesn’t want to meet her family and he cannot move to Malaysia, nor has he ever visited that country. He couldn’t remember when they married and had to clarify this with the applicant, subsequently advising it was in 2019. The Tribunal enquired as to the financial aspects of the relationship. [Mr B] gave cursory detail indicating that he works on a farm, drives Uber and he is saving money for IVF. The Tribunal enquired as to the nature of their household. [Mr B] provided limited detail, advising only the two of them live together. The Tribunal enquired as to the social aspects of the relationship. [Mr B] indicated he doesn’t move around the community much. The Tribunal enquired as to the nature of their commitment to each other. [Mr B] advised they like each other, she gets angry a lot but he doesn’t judge her, he thinks she has mental health issues, she is of good nature and she knows how to cook.
[Mr B] concluded his evidence by indicating the applicant has a problem in Malaysia and she cannot return there, particularly due to her family. He believes the applicant. [Mr B] confirmed he had no further evidence to provide. The applicant was invited to comment upon [Mr B]’s evidence and she indicated her mental health is not too bad, rather sometimes she just gets triggered. She finds living with [Mr B] very helpful to her. The applicant confirmed she had no further evidence to provide.
The Tribunal reiterated its potential concerns with the applicant’s case (including the raising of new claims with it) and also raised with her that [Mr B]’s evidence appeared vague and this may cause it to be afforded low weight. The applicant replied that she did inform the Department she was a lesbian and she helped [Ms C]. Further, she maintained that the Malaysian immigration authorities warned she could be charged with bribery. Additionally, the applicant advised that her family have distanced themselves from her due to harm that may come to her brother. She indicated she might not have expressed her claims clearly initially, noting she has trust issues.
The Tribunal also advised that it might have concerns with the genuineness of her relationship with [Mr B] given the limited and vague evidence provided in that regard. The applicant maintained that she is in a genuine relationship with the applicant, they have lived together since 2017, they are married, they are trying IVF which he is funding but she has too much tension to conceive. The Tribunal raised with the applicant that no medical evidence has been provided, which might cause it to have difficulty accepting there are any medical issues involved in her case. The applicant was invited to comment and replied that her husband and the fertility Doctor want her to get help, she is not bad all of the time but sometimes she is triggered. The applicant indicated she is very happy with her husband and wants to stay with him.
The Tribunal raised with the applicant that the delay in her submitting supporting documentation and a lack of persuasive corroborating evidence might cause it to have difficulties accepting the genuineness of her claims for protection. The applicant was invited to comment and she indicated she understood the lack of evidence but could not avoid this as she is in a difficult situation. She maintained she told the truth. Prior to the conclusion of the review hearing the applicant confirmed 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. Section 5AAA of the Act also provides that it an applicant’s responsibility to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such claim.
The Tribunal accepts the importance of adopting a reasonable approach in making findings of credibility in matters relating to protection visa applications. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made salient comments on determining credibility, including those below. Numerous decisions have also endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at [39]:
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. During the review hearing the Tribunal developed serious concerns with the credibility of the applicant. This is due to the lack of persuasive explanation for the significant delay in making her claims for protection (both to the Department and regarding several new claims made during the review), the vagary and fancifulness of certain claims, the dearth of persuasive corroborating evidence and the sheer implausibility of the applicant’s claims when considered in their totality. On balance, the Tribunal is satisfied that the applicant has fabricated her claims for protection and is attempting to use all possible avenues to prolong her stay in Australia, that she commenced with arrival holding a Visitor visa in August 2015.
The applicant was steadfast in her evidence that she escaped Malaysia to claim protection in Australia. However, she proceeded straight to work in the agricultural sector in Western Australia, whilst knowingly holding a Visitor visa. Her account that she was prevented from applying for protection by unscrupulous agricultural contractors, in both Western Australia and Victoria, is not credible. During her time in Western Australia, the applicant claims to have checked with the Department as to the status of her application for protection, yet apparently took no immediate steps to lodge it when purportedly advised it had not been received by the Department. She was purportedly funded to fly from Western Australia to Victoria and gave vague evidence regarding her inability to lodge the protection visa application in Victoria. The applicant doggedly maintained she never worked without permission in Australia, nor that she was ever in this country without a valid visa, however in contrast she apparently understood how to make contact with the Department to check the status of her visa application and she has an excellent command of the English language. On balance, the Tribunal does not accept the applicant was under any misapprehension as to her visa status upon arrival or was prevented from making her application for protection. Rather, the Tribunal is satisfied that the applicant knowingly travelled to Australia to work illegally. Her significant delay in claiming protection, combined with working illegally and being an unlawful non citizen for some time, cast doubt upon the legitimacy of her claims.
The applicant advised the Tribunal that she made her claims for protection by herself. Given the applicant’s excellent command of the English language, the Tribunal does not accept that she would have omitted to expressly claim she was in a Lesbian relationship with [Ms C], and fully outline the relevant harm suffered, in her written application for protection if this claim was truthful. The Tribunal considers this omission to undermine the genuineness of her claims. Likewise, the Tribunal finds the lack of detail in the application for protection, regarding harm purportedly faced by the applicant, to detract from the credibility of her claims, particularly regarding the role of her family in harming her. The applicant’s account at hearing regarding the purported harm suffered by her on account of being a lesbian was somewhat inconsistent with her initial written claims, thus undermining their legitimacy. Her description of the assault by the immigration agent in company was vague. Additionally, it contained the fanciful assertion that as the applicant ran from the property, she looked back through a window to observe a Police Officer (purportedly the brother of the immigration agent) and another man hiding behind a curtain who watched the assault. Furthermore, her claims are not supported by any persuasive medical evidence. The applicant’s narrative regarding having been run off the road by gangsters whilst driving also contained much vagary. In short, the Tribunal does not accept that the applicant faced any harm whatsoever (including having property stolen or damaged) from the immigration agent, criminal connections, her brother (or wider family), Malaysian officials, or any other person in connection with an immigration matter concerning [Ms C] or their purported lesbian relationship.
Furthermore, given the significant credibility concerns outlined, the Tribunal does not accept that the applicant was involved in any immigration case involving a lesbian friend named [Ms C]. Of note, the supporting Malaysian Police report submitted to the Tribunal in 2018 was untranslated and tendered significantly after the application for protection was made, therefore calling into question its legitimacy. In combination with the credibility concerns outlined, the Tribunal does not accept the veracity of this document. Nor does the Tribunal accept that the applicant lost her employment due to any stress or medical issue arising from the purported Malaysian immigration case. Additionally, in the absence of any persuasive medical evidence, the Tribunal does not accept that the applicant, or her husband, have any significant physical or mental health conditions. Further, the Tribunal does not accept that the applicant is or was a lesbian, nor that she has ever expressed views in support of any LGBTI issue that have brought her to the adverse attention of the Malaysian state, her family, her employer, her friends or anybody else. This is due to concerns with her credibility.
The Tribunal notes that the applicant raised other new claims at hearing including that she was sexually assaulted by a previous boyfriend who was a Police Officer in Malaysia; she escaped to [Country 1] for work and suffered a miscarriage there arising from the assault; her brother [Mr D] disappeared for around one year following the assault with the immigration agent; she was warned by the Malaysian Police she could be charged with bribery when she requested a copy of her Police reports related to [Ms C]’s immigration case; and the applicant took out loans to fund study and a business which were not repaid by her that resulted in her ‘blacklisted’ by the Malaysian Government including by way of being denied a passport renewal. The Tribunal does not accept the genuineness of any of these claims given the manifest delay in the applicant raising them, in combination with their vagary and lack of persuasive supporting evidence. Additionally, the Tribunal records that it does not accept the veracity of the untranslated loan document given its submission well after the application for protection was made, in conjunction with the credibility concerns outlined with respect to the applicant.

The Tribunal accepts that the applicant and [Mr B] are lawfully married. Furthermore, the Tribunal accepts they have cohabitated since around 2017, having regard to the evidence at the review hearing, in conjunction with submitted material such as lease, Bridging Visa, telephone and vehicle registration documentation. However, the Tribunal is not satisfied that the applicant and [Mr B] are in a genuine relationship. This is due to the scant detail provided to the Tribunal at hearing by both the applicant and [Mr B] concerning their relationship, with each portion of their evidence accordingly being afford low weight. The dearth of persuasive evidence concerning the financial and social aspects, and the nature of the household and commitment to each other, was striking. The lack of medical evidence regarding IVF also undermines the legitimacy of this claim. Further, the quick inception of the relationship, preceded by an introduction from a contact using Face Book as [Mr B] was looking for a girlfriend, casts doubt on its legitimacy. On balance, the Tribunal is satisfied that the applicant and [Mr B] are engaged in a contrivance to enhance their prospects of a migration outcome, rather than a genuine relationship.
As the Tribunal does not accept there is a genuine relationship between the applicant and [Mr B], it follows it also does not accept there is any real chance of harm for either of them if they go to Malaysia. Furthermore, the Tribunal does not accept that the applicant has ever expressed views in support of inter-religious marriage that have brought her to the adverse attention of Malaysian officials, her family, her employer, her friends or anybody else. Regarding the applicant’s claims that she no longer practises Islam (or dislikes the religion, however expressed), the Tribunal is not satisfied with the legitimacy of this claim given its manifestly late submission at the review hearing, in combination with the credibility concerns regarding the applicant. Additionally, the applicant made reference to not wearing the hijab, yet resiled somewhat from claims of harm on that basis by indicating she was able to work in Kuala Lumpur without wearing it. For completeness, the Tribunal does not accept the legitimacy of the applicant’s claim to be at any risk of harm regarding not wearing the hijab, given the significant delay in raising the claim, in conjunction with concerns regarding her credibility. In short, the Tribunal does not accept that there is any risk to the applicant at all in Malaysia on the basis of relationship or religious related claims. As previously outlined, the Tribunal does not accept the applicant, or her husband, has any significant physical or mental health condition, given the lack of persuasive corroborating evidence. Accordingly, there is no risk of harm to either of them in Malaysia in relation to medical reasons.
The Tribunal notes that a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. Following careful consideration, the Tribunal finds that if the applicant returns to Malaysia now, or in the reasonably foreseeable future, there is not a real chance of her facing any harm whatsoever for any reason. As previously indicated, the Tribunal has formed the view that the applicant fabricated her claims for protection in order to remain in Australia. The Tribunal therefore does not accept the veracity of the applicant’s claims for protection and finds accordingly.
Given the Tribunal does not accept the genuineness of the applicant’s claims for protection, it is unnecessary for it to make comprehensive findings regarding State protection. For completeness, the Tribunal has considered the country information relating to State protection, which is referred to above, and finds that the applicant would be able to avail herself of protection from the Malaysian authorities, regarding criminal elements, if she returned to her country of nationality. Additionally, the Tribunal has considered the country information regarding internal relocation and finds that it would be reasonable for the applicant to relocate within Malaysia to avoid those she purportedly fears might cause her harm, noting she has demonstrated versatility in being able to travel to Australia and previously secure employment in this country. The country information is also suggestive of Kuala Lumpur being a location where the applicant would not face a real chance of serious or significant harm on the basis of expressing pro LGBTI views or being a lesbian. However, the Tribunal does not accept the applicant has ever been a lesbian, or widely expressed pro LGBTI views, for reasons previously outlined. Further, the country information tends to suggest the applicant does not face a real chance of serious or significant harm (as opposed to some discrimination) on the basis of being married to a Christian, particularly given there is no persuasive evidence they would engage in proselytising, nor is there persuasive evidence she is an apostate. As previously outlined, the Tribunal does not accept the genuineness of any of the applicant’s claims pertaining to relationship or religious matters.
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 outlined 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), 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) 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) 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.
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2022] AATA 4729

19 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Appeal

Statutory Construction