1412576 (Refugee)

[2015] AATA 3396

1412576 (Refugee) [2015] AATA 3396 (24 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412576

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Lilly Mojsin

DATE:24 September 2015

PLACE OF DECISION:  Sydney

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

Statement made on 24 September 2015 at 11:59am

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

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

2. The applicant, a citizen of Malaysia, arrived in Australia [in] November 2013, as the holder of a subclass UD 601, Electronic Travel Authority valid for three months.

3. The applicant applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] June 2014.

4. The applicant appeared before the Tribunal on 6 August 2015 to give evidence and present arguments.

5. The Tribunal provided a Malay interpreter for the hearing. The applicant acknowledged that she understood English and said that she preferred to speak English. 

6. The applicant was represented in relation to the review by her registered migration agent who did not attend the Tribunal hearing.

   RELEVANT LAW

7. See Annexure A.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant claims she was born in [City 1], Pahang, Malaysia. She is a Muslim who lived in a de-facto relationship for seven years before she departed Malaysia. She completed [studies and] worked variously [in different occupations].

9. In her PVA the applicant stated that she got to know her [de-facto] in 2004. In 2006 they moved in together into a small rented house. After a few months his behaviour towards her changed and she started to live in hell. He was angry, shouting and hit her and he tortured her. This continued for three years until 2008, and then he stopped hurting her for a couple of years. However, at the end of 2010 his behaviour became more aggressive, unpredictable and mean than before. He treated her badly and injured her. He hit her head against the wall, kicked her and punched her. He nearly killed her. He threatened to injure and hurt her family if she left him.

10. Once he asked some people to break the windows of her brother's car and injured him. He warned her not to make a police report about what he did to her. When she finally made a police report, without his knowledge, the police told her it was a domestic issue and did not do anything to protect her. There is nothing the police can do. She feels helpless.

11. She did try to run away but he managed to find her and threatened to kill her if she ran away from him. She was scared that he would hurt or injure her or one of her family and went back to stay with him. He continued to torture and injure her until 2013. On New Years Eve 2013 he started to tell her they would get married and he asked her for one last chance to correct his mistakes. He promised not to torture her again. She pretended to forgive him. So in order to avoid being killed, she fled to Australia.

12. At the Tribunal hearing the applicant confirmed that she was born in [City 1] Malaysia in Pahang. She moved to Johor Baru in 1997 after she finished her [studies].

13. She has [siblings] who are all married and live in Malaysia, one in Kuala Lumpur, another in Johor Bahru and [City 1]. Her father is deceased and her mother remarried and lives with her step-father in [City 1]. [City 1] is a [number] hour drive from Johor Bahru. She worked first as [occupation], then she worked for a [professional], then as a [occupation] for [a certain company] for 4 years, went to [another country] for 4 years, and then returned working as a [occupation] in her sister’s business from 2009 until 2012 in [City 1].

14. She left Malaysia because she did not want to live with her boyfriend.  She started living with [her de-facto partner] in 2006 when she worked in [another country] and they lived in Johor. He worked for a [company]. They met when she worked at [a certain company], he worked in the same building. After a while they went out and became closer.

15. She started living in a rented apartment with her de-facto partner in Johor Bahru from 2006.  They moved to [City 1] when she went to work for her sister.

16. The relationship broke up when she left to go to Australia as he always tortured her. When asked what torture involved she said that when he gets angry they would fight, he would punch her or slap her. She just decided she wanted to go away. Their relationship was ok when they lived in Johor Baru, but she had problems with him.  He will get angry and hit her. She rang the police up and they said if he injured her or hurt her, then if she was taken to hospital they would so something.

17. When asked to describe her injuries she said that she was bruised but it was not sufficient to seek medical attention.  There was a scratch on her skin. They moved to [City 1] together but she told him he must change.

18. He said that if she leaves he will do something. He would get angry and ask her for money. They would argue about money or small things. They argued and he cannot control himself and hit her. They argued once or twice a month. She stayed with him almost 3 years in [City 1]. She never called the police and never needed medical assistance.

19. Her family did not know her boyfriend stayed with her as when they visited her, he was not there. As a Muslim they cannot stay together unless they are married. So her family only knew he was her boyfriend. She did not tell her family he was assaulting her.  His family did not know about their relationship and they did not have mutual friends that they mixed with. Her friends also did not know they lived together. For 5 to 6 years no-one came to visit them.

20. She moved out of the apartment as she decided she did not want to live that life. She told him during their fights she was leaving, she grabbed her things when he was not at home and she left. After a while he contacted her family who told him she had gone to Australia. She never contacted him again.

21. When asked what she feared about returning she said she is scared because she left him like that, she is scared he will harm her. She does not know where he is. When put to her that there were no friends they had contact with, neither family knew each other, they never had a bank account and it would be remote that he would know she had returned, she agreed.

22. She confirmed that her ex-boyfriend was not violent with any other person, his anger management was directed at her, it was over money or her asking him about marriage and their relationship. She confirmed she never required medical treatment and had never contacted the authorities regarding his violence and he had not targeted any of her family members.  

23. I asked the applicant what would happen if she went back to live with her mother in [City 1]. She said that her ex-boyfriend knows their home in Johor Baru and he knows where her mother lives, he knows her mother has moved to [City 1], with her husband but does not know where they live.  She would probably be able to go to [City 1], but she does not feel safe.

24. I asked the applicant if she feared being harmed in Malaysia by anyone other than her ex-boyfriend and she said no, it is more mental abuse. She was stressed that he will find her.  When asked how he would know she said eventually he would know. She met his friends but they are not close. She then said that she does not know how he would know.

25. I put to the applicant that the country information did not indicate that the police deliberately denied protection to women, she agreed and said that she does not feel safe.

26. I put to the applicant country information regarding Malaysia's Domestic Violence Act (1994) and the legal protections that can be sought under that Act. I also put to the applicant information regarding initiatives developed by the Malaysian government to assist victims of domestic violence[1]. These included the legal processes available. She responded “ok”.

    [1] MRT-RRT Country Advice, MYS40514- 12 June 2012

27. The applicant agrees that she can obtain work in Malaysia, she is able to return and stay with her mother in [City 1].

    REASONS AND FINDINGS

28. On the basis of her Malaysian passport, I accept that the applicant is a national of Malaysia and is not a national or citizen of any other country or has a right to enter and reside in any country other than Malaysia. Therefore I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Malaysia is the applicant's “receiving country” for the purposes of s.36(2)(aa).

29. The applicant claims that she suffered domestic violence from her ex-boyfriend when they lived together in Malaysia. In her PVA the applicant stated that in 2006 she and her boyfriend moved in together and he was angry, shouting and hitting her. At the end of 2010 he treated her badly and injured her, hit her head against the wall, kicked her and punched her. He tried to kill her. He threatened to injure and hurt her family if she left him. She tried to run away but he managed to find her and threatened to kill her if she ran away from him.  At the Tribunal hearing, the applicant said she and her boyfriend argued once or twice a month and that when her boyfriend gets angry they would fight, he would punch her or slap her. There was a scratch on her skin, she was bruised but it was not sufficient to seek medical attention.  She never called the police and never needed medical assistance.

30. I accept that her boyfriend abused her by shouting at her, threatening her, punching and slapping her. I do not accept that her boyfriend nearly killed her because when asked to describe her injuries she said that there was a scratch on her skin, she was bruised but it was not sufficient to seek medical attention. I also do not accept that her boyfriend tortured her because when I asked her to describe ‘torture’ she said that when he gets angry they would fight, he would punch her or slap her.

31. The applicant claims that she made a police report about her boyfriend asking some people to break the windows of her brother's car and injure him. He warned her not to make a police report about what he did to her. I accept that the police told her it was a domestic issue but as the applicant does not suggest that she suffered any harm or that her brother was injured in any way I do not accept her claim that the police did not do anything to protect her.

32. I accept that the applicant suffered domestic violence in Malaysia and I accept that instances of family violence or domestic violence can constitute ‘serious harm’ but I do not accept the harm the applicant suffered amounts to serious harm as required by s.91R(2). Whilst the applicant claimed in her PVA that her boyfriend threatened to kill her if she left him, as she did not repeat that threat of being killed when questioned about what she feared about returning to Malaysia, saying that she is scared he will harm her, I am satisfied that this verbal threat was simply a communication of an intention and not a likelihood of a threat to her life. I am satisfied there was no threat to her life or liberty. The applicant does not claim to have suffered any physical or psychological injuries requiring treatment or hospitalisation. I am satisfied there was no significant physical harassment or significant physical ill-treatment or significant economic hardship that threatened her capacity to subsist and there was no denial of a capacity to earn a livelihood of any kind, where the denial threatened her capacity to subsist. The applicant, at the Tribunal hearing said that she never called the police and never needed medical assistance, only suffering bruising and a scratch.

33. Domestic violence is a global issue. In most countries, domestic violence is recognized as a human rights violation and a criminal act that should be punished to the full extent of the law. According to a 2013 review of available international data, 35% of women worldwide have experienced physical or sexual violence from an intimate partner or sexual violence from a non-partner. A small number of countries, such as the United States, South Africa, the Republic of Peru and Malaysia pioneered anti–domestic violence legislation in the 1990s. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, marked the first international convention to safeguard women's right to equality within politics — including the right to vote and to stand for election — as well as within education, health, employment, and everyday life. Countries that have acceded to or ratified the convention are to take legal measures when required in order to effectively protect the rights and interests of women.

34. Whilst I accept that the applicant suffered domestic violence at the hands of her former boyfriend, I am not satisfied that the essential and significant reason for the applicant's ex-boyfriend's abuse in the course of their relationship was because the applicant is a member of a particular social group “women”.  As the applicant has claimed that the couple would argue over money, marriage and personal relationships I find that the domestic abuse was motivated personally because of the circumstances of their relationship and not for the applicant’s membership of a particular social group. I find that the harm suffered by the applicant in Malaysia was not Convention related.

35. In assessing whether there is a real chance the applicant would face serious harm, at the hands of her ex-boyfriend, a non-state agent, if she returned to Malaysia, I note that harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State agent is Convention-related, and the State is unable to provide adequate protection against the harm.  There is no independent evidence before me to suggest that the Malaysian authorities would withhold protection from the applicant. I am of the view that were it the situation it would be known to independent sources such as Amnesty International, US State Department or UK Home Office.

36. The independent evidence indicates that Malaysia enacted the Domestic Violence Act (1994), providing legal protections that can be sought under that Act. When put to the applicant information[2] regarding initiatives developed by the Malaysian government to assist victims of domestic violence, including the legal processes available, she did not disagree.

    [2] MYS40514- 12 June 2012

37. The independent evidence before me[3] indicates that the Government of Malaysia displays an ongoing commitment to curtailing domestic violence (DV) via various legislative, public health and enforcement measures, though many NGOs and DV rehabilitation service providers warn of discord between policy and practice. Malaysia's Domestic Violence Act (1994) (the Act), enacted 1 June 1996, states that the definition of domestic violence includes physical injury, fear of physical injury, unlawful detention and mischief or destruction to property “knowing that it is likely to cause distress to the victim.” The Act also states that domestic violence is perpetrated by persons against a spouse, former spouse, a child, an incapacitated adult, or “any other member of the family.”[4] According to the US Department of State (USDOS), the Act was amended in October 2011 to expand the definition of domestic violence to include mental, emotional, and psychological abuse[5]. The amendment also expands the application of protection orders beyond the perpetrator to prevent third parties from physically abusing, or even communicating with, victims of domestic violence and allows police to arrest a perpetrator when a protective order has been violated. The 2011 amendment further elevates the categorisation of DV to a 'sizeable offence' allowing for police to now act without an order to investigate from the deputy public prosecutor.

    [3] MYS40514- 12 June 2012

    [4] Laws Of Malaysia Act 521 – Domestic Violence Act 1994 (1 June 1996, P.U. (B) 226/1996) n.d., Attorney-General's Chambers of Malaysia website, p.6 <

    [5] US Department of State 2012, Country Reports on Human Rights Practices 2011 – Malaysia, 24 May, Section 6

38. The Malaysian government asserts that it possesses a policy commitment to eradicate violence against women in Malaysia via the Ministry for Women, Family and Community Development (MWFCD). Following DV legislative reforms in October 2011, the government stated that the issue of violence against women was a policy priority and that it held a zero tolerance for DV[6]. This forms part of a broader long term National Integrity Plan which prioritises the strengthening of familial institutions[7]. The government seeks a holistic approach to the prevention of DV, “including removing impunity and prosecuting those who commit violence, as well as protecting and rehabilitating victims.” As a result, the government has sought to act in conjunction with established NGOs in the delivery of services to assist victims of DV in addition to legislative and policing measures[8].

    [6] Ministry of Foreign Affairs, Malaysia n.d., Statement by the Honourable Mr. Nur Jazlan Mohamed Member of Parliament and Representative of Malaysia on Agenda Item 28 (A); Advancement of Women, Official Website of Permanent Mission of Malaysia to the United Nations (UN), New York, >

    [7] Office of the Prime Minister of Malaysia n.d., Message Rt. Hon. Dato' Seri Abdullah Haji Ahmad Badawi Prime Minister of Malaysia < Ministry of Foreign Affairs, Malaysia n.d., Statement by the Honourable Mr. Nur Jazlan Mohamed Member of Parliament and Representative of Malaysia on Agenda Item 28 (A); Advancement of Women, Official Website of Permanent Mission of Malaysia to the United Nations (UN), New York <

39. I accept that women who suffer domestic or family violence in situations such as those of the applicant may in certain circumstances come within the scope of the Convention. A majority of the High Court in MIMA v Khawar [(2002) 210 CLR 1] held that the Convention test may be satisfied by the selective and discriminatory withholding of state protection for a Convention reason from serious harm that is not Convention related. I have considered whether the applicant would be denied protection by the Malaysian authorities from harm at the hands of her ex boyfriend for the essential and significant reason of her membership of the particular social group of women. I accept that women in Malaysia are capable of constituting a particular social group for the purposes of the Convention.

40. I have had regard to the country information regarding domestic violence in Malaysia and the protection afforded by the State to victims of such violence. I note that the independent information suggests cultural, social and economic pressures lead many women not to report incidents of domestic violence. However, the information does not suggest that cultural norms or practices affect the willingness or ability of the police to protect victims of domestic violence.

1. I find that despite the fact that the efficiency and overall effectiveness of Malaysia's domestic violence laws have been criticised in the past, and that the laws are under utilised by victims, the independent information does not suggest that the Malaysian state condones or tolerates domestic violence or that there is a lack of willingness on the part of the Sri Lankan police to protect female victims of violence.

2. I have also considered whether state protection against the harm the applicant fears from her ex-boyfriend will be denied to her because of her membership of a particular social group, women. Although the independent information available indicates that there are some deficiencies in the implementation of the laws and enforcement measures that have been introduced by the State to address the issue of domestic violence in Malaysia, I do not accept on the evidence before me that there is the selective and discriminatory withholding of state protection from women victims of domestic violence in Malaysia. Nor do I accept that the evidence before me suggests that the failures identified in the policing of domestic violence in Malaysia are the result of discriminatory inaction or discriminatory withholding of protection from women.

3. I am satisfied that Malaysia is willing and able to provide protection to the applicant.

4. In light of the applicant’s evidence that she and her boy-friend had no contact with each other’s families and limited or no contact with each other’s friends during their relationship, I am not satisfied that there is a real chance if the applicant returns to Malaysia she will be targeted by her ex-boyfriend.

5. I find that the applicant does not meet the criterion in s.36(2)(a).

   COMPLIMENTARY PROTECTION

6. As discussed above, I have accepted that the applicant has suffered domestic violence at the hands of her ex-boyfriend in the past. However, the applicant has not claimed that the applicant has been threatened by her ex-boyfriend since she left him or left Malaysia. I do not accept that there is real chance if the applicant returns to Malaysia she would be targeted by her ex-boyfriend in the future.

7. Whilst I have considered the applicant's claims in relation to domestic violence I am not satisfied that her claims give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to Malaysia, there is a real risk that she would suffer significant harm, as defined in s.36(2A): s.5(1) of the Act. I am not satisfied, specifically, that there is a real risk that the applicant would be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

8. I have considered the applicant's claim both individually and cumulatively. I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that she will suffer significant harm.

9. I find that the applicant does not meet the criterion in s.36(2)(aa).

   DECISION

10. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Lilly Mojsin
    Member

    Annexure A

    RELEVANT LAW

11. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant 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.

    Refugee criterion

12. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

13. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

14. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

15. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

16. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

17. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

18. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

19. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ 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.

20. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

21. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

22. 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 a protection 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 the applicant 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’).

23. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): 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.

24. 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.

    Section 499 Ministerial Direction

25. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.