The Tribunal's reasons for decision
12 In its reasons for decision, the Tribunal devoted almost two pages of single-spaced text to summarising an exchange between the Tribunal member and the appellant's representative at the hearing. The purpose of this summary was said to be "to avoid any suggestion that the Tribunal may have misled the representative regarding any of the matters raised at the hearing or the Tribunal's need for any further submissions from him." The summary is defensive and self-justificatory. In the course of it, the Tribunal dealt with the appellant's claim that he was a Hindu whose identity card described him as a Muslim. The summary on that aspect is as follows:
The Tribunal observed that there was nothing on the identity card translation on the departmental file before it to indicate that the applicant had been identified in documents as a Muslim by the Malaysian authorities. The representative responded that this was because the information was contained on the microchip on the identity card. The Tribunal stated that whilst it understood this was the explanation, the applicant had not presented supporting evidence to substantiate the claim that the applicant is identified on his Malaysian identity card as a Muslim. The representative responded that the onus was not upon him to prove this matter. In response the Tribunal noted that it was up to the applicant and his representative to present evidence to support his client's case.
13 The Tribunal member referred to a substantial quantity of what it described as "information from a range of authoritative external sources regarding the issue of forced Islamic conversions and marriage between Muslims and non-Muslims in Malaysia." Under the heading "FINDINGS AND REASONS", the Tribunal described the appellant's claims as follows:
The applicant claimed that he is a practising Hindu who was forced to convert to Islam and who is now prevented from marrying a Hindu woman in accordance with Hindu tradition. Accordingly, the applicant claims that he fears persecution in Malaysia on the basis of his ethnicity/race and religion as well as his membership of a particular social group, namely, as a "forcibly proselyte Muslim" who is prevented from marrying a non-Muslim in Malaysia.
14 The Tribunal acknowledged that "the independent country information before it indicates that non-Muslims who wish to marry Muslims in Malaysia must convert to Islam" and that "this evidence also indicates that Indian Tamils and religious minorities in Malaysia, including Hindus, can and do face some discrimination in a range of economic and social matters."
15 In relation to the appellant's claims of assaults by unknown Malays in Johor, the Tribunal found that, if they were true, the essential and significant reason why the appellant was targeted was that he was identified as a suitable victim for the purposes of monetary theft. The Tribunal therefore did not accept that any such assaults were related to a Convention reason.
16 Under the heading "The Applicant's claim to have been forced to convert to Islam in Malaysia", the Tribunal discussed at length the appellant's claim that he was treated as a Muslim against his will. The Tribunal summarised the claim as follows:
The applicant stated that when he was approximately 14 years of age his employer asked him to sign certain documents, but due to his illiteracy he was not aware of what he was signing. The applicant stated following the signing of these documents arrangements were made for him to be circumcised, which he managed to evade. In addition, he was also issued with a new Malaysian identity card that he claims identified him as either a "Hindu Muslim" or a "Muslim".
17 The Tribunal then said:
However, the Tribunal observes that the [sic] other than his oral evidence the applicant has not submitted any evidence, such as the actual document he allegedly signed for his employer, to substantiate his claims to have signed documents that amounted to his consent to convert to Islam. Nor has the applicant submitted any documentary evidence to corroborate his claim that arrangements were made for him to undergo the medical procedure associated with circumcision at a hospital in Malaysia in or about 1995 or at any time thereafter.
18 The Tribunal acknowledged that the appellant may have some difficulty producing this kind of documentary or substantiating evidence. It met this by saying that, although the events were alleged to have taken place in approximately 1995, the appellant stated that he remained with the same employer until 2005. The Tribunal then said:
Whilst the Tribunal recognises the difficulties the applicant may face in providing documentary evidence or the like to establish his claims, the Tribunal does not find the applicant's claims to have been forcibly converted to Islam when he was aged 14 years by his employer plausible. The Tribunal does not accept, even having regard to the impoverished nature of the applicant's family circumstances, that the applicant would run away from an attempt to forcibly circumcise him as part of a forced conversion to Islam arranged by his previously benevolent Muslim employer, but continue to remain with the same employer for another decade after these events allegedly took place. This is particularly so given the applicant's oral evidence that
he did not have any problems with his employer until the employer expressed disapproval of his personal relationship with a Hindu woman in approximately 2005. As a result, the Tribunal considers these claims to be far-fetched and does not find this claim to be plausible.
19 The Tribunal then discussed the question of the information on the appellant's identity card. It said:
The Tribunal is prepared to accept that the microchip present on a Malaysian identity card may well contain information regarding the holder's personal details, including his race, ethnicity and religion. However, given the country information before the Tribunal doe [sic] not indicate that Hindus are forcibly required to convert to Islam, together with the Tribunal's earlier findings regarding the implausibility of the applicant's claims, the Tribunal does not accept that the contents of the information in the embedded microchip contained on the applicant's identity card indicate that the Malaysian authorities have identified the applicant to be a Muslim rather than a Hindu.
20 The Tribunal did not consider that the fact that the appellant may have been issued with a second identity card necessarily established that the second card was issued because he had been forcibly or otherwise required to convert to Islam. The Tribunal then gave weight to the fact that the appellant had not provided it with any independent or documentary evidence, other than his passport and his identity card, to indicate that he was identified by the Malaysian authorities as a Muslim, rather than a Hindu. It stated that the independent country information did not support the claim that Hindus are forcibly required to convert to Islam in Malaysia. Nor did such evidence support the claim that employers can, or have, required employees to sign documents to convert to Islam, either openly or by deception, as part of their employment in Malaysia.
21 The Tribunal did not accept that the Malaysian authorities would identify the appellant as a protest organiser, protestor, leader or member of HINDRAF or any other Hindu rights group. The Tribunal was not satisfied that there was a real chance that the appellant would be subjected to persecution in Malaysia in the reasonably foreseeable future on the basis of any imputed political opinion, his religion as a Hindu, his Tamil ethnicity or his race as an Indian. It was not satisfied that any discrimination the appellant might encounter as an ethnic Tamil Indian upon his return to Malaysia would amount to serious harm, within the meaning of s 91R of the Migration Act. Again, the Tribunal expressed its finding in terms that:
the Tribunal does not accept that the applicant was forced to convert to Islam at any point in time prior to his arrival in Australia. Nor does the Tribunal accept that the applicant has been or is identified by the Malaysian authorities as a Muslim rather than a Hindu.
The Tribunal continued:
Accordingly, given the fact that the Tribunal does not accept the applicant's claim to be a "proselyte Muslim", the Tribunal does not accept the applicant's claim that he was detained and beaten by the Hajee or religious police in Malaysia on 16 March 2007 because he was a Muslim who had entered into a relationship with a Hindu woman, notwithstanding the evidence that he has a number of physical scars on his body. Apart from the applicant's own evidence on this point, there is little in the evidence before the Tribunal to identify the nature or likely cause of these scars upon the applicant's body.
22 The Tribunal then rejected the appellant's claim so far as it was based on the fact that his fiancée had been forced to marry another man by her family. The Tribunal said it was not satisfied that this evidence established that the appellant, as distinct from his fiancée, had a well-founded fear of persecution by the Malaysian authorities for a Convention-related reason. In expressing its conclusions as to whether the appellant's fear of persecution was well-founded, the Tribunal again referred to "the implausibility of the applicant's claims regarding his forced Islamic conversion".