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Tribunal: Member Sean Baker

A delegate of the Minister for Immigration and Border Protection refused the applicant’s Protection visa. The Tribunal affirmed the decision on 18 May 2018.

The applicant was a citizen of Malaysia who claimed to fear returning because he was in a de facto relationship with his partner, something he claimed was not allowed under Islamic law. The applicant and his partner lived together in Kuala Lumpur for three years without being married before leaving for Australia. The applicant claimed that if he returned with his partner they would be harmed as he had received threats from his partner’s family, and her brother in particular.  

Section 36 of the Migration Act 1958 (the Act) sets out the criteria to be satisfied for a person to be granted a Protection visa. Only one of two criteria need to be satisfied. The first is the ‘refugee’ criterion, which requires there to be a ‘well-founded fear of persecution’. The second is classed as other ‘complementary protection’ grounds, which requires there to be ‘a real risk of significant harm’.

The majority of the Tribunal’s decision focused on concerns about the credibility of the applicant and his claims. In his written statement, the applicant claimed that his relationship with his partner was not allowed under Islamic law and he feared he would be forced to marry someone of his family’s choosing if he returned to Malaysia, and that he could not relocate because of his poor financial situation. At the hearing, his claims had a different focus in that he stated his partner’s brother had made multiple threats to harm or kill him and conceded it was these threats he feared, and he did not fear harm from his own family or the Malay community at large.

The Tribunal asked the applicant if he had reported these threats to the police. The applicant said he did, but his copy of the report was lost. During questioning about when and how the applicant lost the report, the Tribunal noted the applicant’s evidence seemed to be changing.

After the hearing, the applicant provided a police report he claimed to have submitted in Malaysia. The Tribunal found they could place no weight on the police report because there were serious concerns about whether it was a genuine document. This was because neither the applicant nor his partner stated in their written statements that death threats were made nor did they say in those statements that they had gone to the police and made a report. Further, the Tribunal was concerned because the police report was provided late in the process, after the Department refused their applications, after they applied to the Tribunal, and after the hearings.

The Tribunal did not accept that the partner’s brother had threatened to kill or harm the applicant at any time, or that the applicant or his partner had been forced by their families to marry each other or someone else. The Tribunal also did not accept that the applicant or his partner had been harmed by Malay society because of their relationship. The Tribunal found that while the partner’s family may not be happy with the relationship, there was no real chance or real risk that the applicant would be harmed.

Based on these findings the Tribunal concluded that the applicant did not meet the criteria for a Protection visa.

Read the full written decision on AustLII.