1732378 (Refugee)

[2023] AATA 3440

1732378 (Refugee) [2023] AATA 3440 (2 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732378

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Genevieve Hamilton

DATE:2 August 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 02 August 2023 at 1:00pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from acquaintance with criminal record – assault, property damage and threats to applicant and family – inaction by police – continuing harassment of family – other relationship violence – credibility – implausible claims and evidence – late, unsupported claim that father of child is trying to take child away – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), (2A), 65(1), 423A

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 September 2017. The delegate refused to grant the visa on 27 November 2017.

3. The applicant attended a hearing of the Tribunal on 12 July 2023.  The Tribunal hearing was conducted with the assistance of an interpreter.

   CRITERIA FOR A PROTECTION VISA

4. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

6. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

7. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

8. 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.

9. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

10. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

11. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations 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 they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. 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

16. In her protection visa application the applicant said she was born in Klang, Selangor, Malaysia on [Date].  She was a Malaysian citizen and had no other citizenship.  Her father and [siblings] were born in Selangor and her mother in Perak, and all live in Selangor.  She claimed she was not in contact with them.  She arrived in Australia [in] May 2017 travelling on her Malaysian passport.  In 2016 and 2017 she worked for [Company] in [Job task]. 

17. The applicant said she was a crime victim a few times and the criminal was her friend and was wanted by the police.  He was causing interruptions to her work and daily life.  She was unsafe wherever she went because he followed her all the time.  He threatened murder if she escaped and threatened her family too.  He broke her left hand and sprained her right, strangled her and stepped on her chest.  He damaged property such as by burning her personal belongings and breaking her phone.  He tried to blow up the kitchen with a gas cylinder.  He was jealous and followed her everywhere breaking into her home and following her daily including to her work place.  She reported it to the police but it was still under investigation as they had not been able to arrest him.  She escaped to Perak but he found her and brought her home and threatened to kill her if she ran from him again.  It was because she refused his love.  Her family has seen the gangs hanging around their house. Police were unable to keep an eye on her 24/7 and she lives and works in densely populated areas.  She cannot relocate to an area with lower salaries and job opportunities. 

18. The applicant provided an untranslated copy of a Malaysian police report.

19. The Tribunal wrote to the applicant asking if there was anything she wanted to add and she replied reiterating her general claims above.  She also mentioned something about her family chasing her. 

20. The Tribunal invited the applicant to a hearing.  Prior to the scheduled hearing the applicant provided further items as follows:

    ·Letter from a doctor in WA dated 30 May 2023 stating that the applicant had been under their care since July 2020.  With history of anxiety and depression due to past trauma.  Mirtazapine to sleep, did not want SSRIs and had been referred to psychotherapy. 

    ·Another copy of the police report.

    ·Birth certificate [September] 2014. 

    ·16 March 2021 referral by the GP of the applicant to [Mr A] for opinion and management of depression and anxiety.

    ·Screenshots of a social media conversation. 

    ·A photo of the applicant with bandages on her arms and hands and a sling around her neck. 

    ·Police feedback document and its purported translation: appears to be a response to a request for a copy of the police report. 

21. The Tribunal postponed the hearing and asked the applicant to provide certified translations of certain documents.  The applicant provided translations of the police report and the message thread but they are still not certified.  She did not provide a certified translation of the feedback email. 

22. The police report as translated reads as follows:

    On January [date], 2017 at around 5 pm, while I was at my house at [Address], my male friend, [Mr B], had come to my house and we had a misunderstanding because he was jealous after seeing the pictures of my ex boyfriend friend on my phone. Then he suddenly grabbed my stomach, punched me with his hand and threw things at me. He threatened to kill me and my family. After that he took me out for food because I haven't eaten all day and was feeling unwell. He was holding my personal belongings and followed me home until the next day. On February 1st, he acted by burning my belongings at home using a lighter and poured oil to blow up the kitchen. I came to the police station to make a report because I was concerned for my safety, my family and my belongings in the future. This is my report.

23. The message thread is dated August 2018 and appears to be a conversation between the applicant and a friend about why she has gone to Australia.  It is consistent with the applicant’s claims. 

24. In her response to the hearing invitation the applicant nominated her aunt [C] as a witness, who had saved her from her ex-boyfriend.  The applicant has a child and her aunt had also helped her financially and with raising the baby but the child had been taken away by the applicant’s family.  

25. The applicant submitted a further referral by the applicant’s GP, on this occasion dated 2 September 2022 and addressed to [Ms D]. 

26. The applicant named her GP in WA as a witness, but she was not available.  The Tribunal did not call Aunt [C] as a witness as it accepted she would have given evidence consistent with that given by the applicant at the hearing, relevantly concerning her knowledge of [Mr B] and his arrival at Uncle [E]’s (discussed below). 

27. At the hearing the applicant said she prepared her own application and it was not submitted until after her visa had expired due to difficulties understanding how to lodge it.  The Tribunal asked if the applicant was in contact with her family.  She answered “not really” as her family do not want her.  Her mother doesn’t want her because the guy that is tried to harm her is going to their house.  He burned it and tried to kill the applicant.  He is a criminal but she didn’t know that at the time. 

28. She met him at the end of 2016 through a friend that she used to hang out with in a group.  He was always following her including to her office.  The Tribunal asked the name of the friend but the applicant did not give the name.  She said it was someone she was acquainted with through social media. 

29. The guy (whom she knew as [Mr B]) was always following her.  He knew where her house was and he would follow her from work to the house.  She told him where she worked.  She didn’t tell her family because she wasn’t living with them at the time.  He knew she had an ex boyfriend who was in the police.  He broke her phone and took out the SIM card to get a picture of him and tried to make up a story that her ex boyfriend had raped her.  Then he injured her and damaged her property (as per her written claims).  Asked when this happened the applicant said it was at the end of 2016, or before she ran away to Australia.  Both her arms were broken and he took her to hospital.  He told her to lie to the hospital staff and held a knife to her back.  After she got home she went to Perak.  He found her there because he had her number.  He said he would do something to her family and child.

30. The Tribunal asked if the applicant had any hospital records concerning her broken arms.  The applicant claimed that she left them with her sister but her sister will not help her because they are not close.  The Tribunal asked if the applicant had requested copies from the hospital but the applicant said she could not get them from the hospital because she does not have a “case number”.  The Tribunal observed that it might not accept that the applicant was in hospital with broken arms.  It also observed that it had difficulty accepting that she was treated with a knife at her back.  The applicant said her best friend is married to a police officer and found out that [Mr B] has an extensive criminal record. 

31. The Tribunal observed that time had now passed.  The applicant said that [Mr B] got hold of her family’s phone number and told them she had been raped by her ex boyfriend; he was riding his motorbike around their house, and watching the house, and her child lives there. 

32. The Tribunal asked the applicant if she had consulted the therapists she was referred to.  The applicant said she went to someone else in a community centre but they tried to convert her to Christianity.  She did not go to the therapists she was referred to because of the cost.  She did not consult her GP about whether she would receive Medicare rebate for her therapy sessions. 

33. The applicant claimed that her child was conceived in rape.  Her family keep the child a secret.  Three months after delivery they came to her apartment and took the baby.  Her aunt helped her and she used to visit her.  One day she went with [Mr B] to visit her aunt’s relative (Uncle [E]), she went on his motorbike.  This was after he broke her arms.  Asked why she went with [Mr B] on a motorbike the applicant said she was thinking to get him to leave her there, as she didn’t know where to run.  Aunt [C] then found out about [Mr B] and was angry with the applicant for putting her relative in danger. 

34. The Tribunal asked if the applicant’s family went to the police about [Mr B].  The applicant said she did not know. 

35. The Tribunal noted that the police report was not a certified translation.  In any event it did not refer to the breaking of arms.  The Tribunal asked the applicant why, according to the police report, she went out for food with [Mr B].  The applicant said she was afraid. 

36. The applicant said the police told her they couldn’t look after all the time.  She became frustrated with them and said she wanted a gun to protect herself.  The Tribunal asked if [Mr B] could get into her apartment.  The applicant said he could.  The Tribunal asked the applicant if she got the locks changed.  The applicant said she did not. 

37. The Tribunal noted that the police report was dated 10 days later than the events it referred to.  The applicant said there were other police reports but she does not have them.  The Tribunal noted that this was new information.  The applicant said she cannot get the reports because her sister has them.  The police told her they would not help her because she was not a VIP and because she was a woman.  The Tribunal expressed reservations that the police would state such a position so frankly.  

38. The applicant said she lived with her child’s father after he was born, he also used to beat her.  Her aunt [helped] her escape from this relationship. 

39. The applicant said she was still at risk.  She called the police and said she was coming back to Malaysia and asked if they had caught [Mr B], but they would not give her any information unless she was in Malaysia.  The applicant said she also sent emails.  The Tribunal noted that it did not have any emails sent by the applicant to the police. 

40. [Mr B] burned her curtains and her Koran, she managed to stop him from blowing up the house.  She was too scared to call the police at the time.  She didn’t need the fire brigade. 

41. The Tribunal noted that the applicant did not leave Malaysia until May.  The applicant said she had to clean the apartment.  The Tribunal thought the applicant would not have gone back to the apartment after what happened there.  The applicant said she had no where else to go, even her aunt was angry with her at the time.

42. The applicant claimed that early this year (i.e. 2023) [Mr B] was still around her family’s place and that her parents had asked her for money for iron security gates. 

43. The applicant claimed that her child’s father was also looking for her as he wants the child.  The Tribunal asked the applicant what he planned to do regarding the child.  The applicant said he asks where she is and they have to watch the child all the time.  The Tribunal put t o the applicant that this was a new claim.  The applicant said she did not know that she had to put everything in her application.  The Tribunal put to the applicant that nothing had happened to the child.  The applicant said she was concerned that he was being beaten by her family. 

44. There followed a discussion of the applicant’s mental health.  The applicant is now taking an anti-depressant.  The Tribunal put to the applicant that aside from this she did not seem to be taking steps indicating that her mental health was a matter of serious concern. 

    FINDINGS AND REASONS

45. Based on the information in her application the Tribunal finds that the applicant’s country of nationality is Malaysia. 

46. The applicant’s claims are properly treated as gender-based, i.e. she fears harm as a member of the particular social group women in Malaysia.

47. Women in Malaysia are not generally at risk of persecution by virtue of being women.  DFAT states:            Women participate in all aspects of Malaysian society, including government, business and civil society. However, cultural and social barriers limit their levels of participation, as does a lack of resources to assist with re-entering the workforce after having children…  DFAT assesses that, while the situation is generally improving, a range of factors continue to create difficulties for women subjected to violence to report it, gain adequate state protection, and/or leave family settings safely.

48. The applicant, however, made specific claims to have been raped in the past and also regarding violence committed against her by [Mr B].  The Tribunal does not accept that the applicant was raped.  It was not readily plausible that she would remain with the rapist after conceiving and giving birth to their child.  And the applicant, in general, was not a credible witness. 

49. For the purpose of this decision the Tribunal accepts that the applicant knew someone called [Mr B].

50. The Tribunal does not accept that the applicant was the victim of personal and property crimes as claimed, or that [Mr B] followed her, blackmailed her ex boyfriend, and threatened her family.  The applicant could not explain why she kept hanging around with him after he broke her arms, including going out for food and going to visit Uncle [E].  She said she did these things because she was afraid of him or wanted to get away from him but she did not take steps to try to stop him getting into her flat.  The police report as evidence is weak because it is not a certified translation.  It also purports to refer to an event 10 days after it took place.  It does not refer to the breaking of arms.  The applicant’s contention that the police told her frankly they would not support her because she is not a VIP and is a woman, was not readily believable.  The applicant said there were other police reports but they are not before the Tribunal. 

1. There is no evidence of the applicant being in hospital, which would be expected if she was injured as claimed.  The contention that she was there but did not tell the doctors how her arms got broken because [Mr B] was holding a knife to her back was fanciful.  She could not have been examined and bandaged in such a situation.  Despite her belongings being set on fire she did not call police or the fire brigade.  Despite claiming that she left Australia to get away from [Mr B], she did not leave until several months after the claimed breaking of arms and burning of property.  Her explanation for this (that she had to clean out the flat) was not persuasive, as it could be done much more quickly than that. 

2. Moreover it was not readily plausible that [Mr B] or his gangs were still going to Puchong to drive around her parents house in 2023 when the applicant has been out of the country for 6 years. 

3. The Tribunal evaluated the anticipated evidence of Aunt [C] and private message thread, however they do not dispel the Tribunal’s concerns about the credibility of the applicant’s evidence.  They are not contemporaneous or direct but based on the applicant’s own reports of what she said happened.  The photo could easily have been contrived.   Her GP was not available to give evidence as to the background to her mental health problems. 

4. The Tribunal does not accept that the father of the applicant’s child is trying to take him away.  This is a new claim and as such the Tribunal draws an adverse inference about its credibility in accordance with s 423A.  Moreover it is unsupported.  The applicant’s contention that she is concerned for the safety of her child was speculative, and not consistent with her own behaviour in allowing the child to remain with her parents.  She appeared to exaggerate the estrangement from her family as they ask her for money for the house in which the child lives. 

5. Having considered all the evidence the Tribunal is not satisfied that the applicant faces a real chance of serious harm as defined in ss 5J(4) and (5) for any of the reasons specified in s 5J(1).  The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

6. With regard to complementary protection, as the Tribunal has not accepted the factual basis for the applicant’s claims to fear serious harm, it is also not satisfied that the applicant faces a real risk of significant harm as defined in s 36(2A), i.e. arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  The applicant suffers from anxiety and depression but it was not claimed, and there is no evidence before the Tribunal, that this would cause her to suffer significant harm as defined. 

7. Accordingly, the Tribunal is not satisfied there are substantial grounds to believe that there is real risk that the applicant will suffer significant harm on return to Malaysia warranting complementary protection. 

   CONCLUSION

8. 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) or s 36(2)(aa).

9. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

10. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Genevieve Hamilton
    Member